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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11136 Non-Argument Calendar ________________________
D.C. Docket No. 0:17-cv-61752-BB
CYNTHIA SCHWARTZ,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 20, 2021)
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
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Petitioner Cynthia Schwartz appeals the district court’s denial of her 28
U.S.C. § 2254 habeas petition. She argues that the state postconviction court, in
evaluating whether her plea was knowingly and voluntarily entered in light of her
counsel’s alleged mistaken advice, improperly focused on the outcome of the direct
appeal of her conviction rather than her decision-making process in entering the plea.
Because the state court’s consideration of the outcome of her direct appeal was not
an unreasonable application of United States Supreme Court precedent, we affirm
the district court’s denial of her habeas petition.
I. FACTUAL AND PROCEDURAL HISTORY
In February 2002, Schwartz was charged in Florida court with one count of
trafficking in cocaine in an amount between four hundred grams and one hundred
fifty kilograms and two counts of trafficking in oxycodone in an amount between
fourteen and twenty-eight grams. The case proceeded through extensive pretrial
motions practice, which included the state trial court denying four motions relevant
to this appeal: (1) a motion to suppress evidence; (2) a motion to dismiss based on
objective entrapment; (3) a motion to dismiss based on presenting false testimony
during the hearings on the above motions; and (4) a motion for a Franks1 hearing.
1 Franks v. Delaware, 438 U.S. 154 (1978) (requiring a hearing when a defendant claims that allegedly false statements are contained in an affidavit in support of the issuance of a search warrant). 2 USCA11 Case: 20-11136 Date Filed: 01/20/2021 Page: 3 of 14
In 2011, after nine years of litigation, Schwartz accepted a negotiated plea.
She now contends that she only accepted the plea based on her attorney’s advice that
he believed she would be successful in appealing various pre-trial motions and
would likely secure a dismissal of the charges on review. The plea deal outlined
Schwartz’s various rights in connection with the plea, including a right to appeal all
dispositive pre-trial motions. Based on the parties’ stipulation, the state trial court
designated the above four pre-trial motions as “dispositive” for purposes of
Schwartz’s rights of appeal. In accordance with the plea agreement, the state court
sentenced Schwartz to consecutive thirty-year terms of imprisonment on each count.
The court then granted her a furlough, after which her sentence was mitigated to
concurrent terms of imprisonment of fifteen years—the mandatory minimum on
each count.
Schwartz filed a timely direct appeal of her convictions and sentence to the
Florida Fourth District Court of Appeal, arguing that the state trial court erred in
denying her various pretrial motions, including the four outlined above. The Fourth
District Court of Appeal affirmed Schwartz’s convictions and sentence and denied
her subsequent motion for rehearing and rehearing en banc. Schwartz v. State, 125
So. 3d 946 (Fla. Dist. Ct. App. 2013). Of relevance here, the appellate court only
analyzed the merits of Schwartz’s motion to suppress and motion to dismiss based
on objective entrapment, holding that the trial court did not err in denying either
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motion. Id. at 950–52. The court found that the remaining pre-trial motions,
including the motion to dismiss based on presenting false testimony during the pre-
trial hearings and the motion for a Franks hearing, were not dispositive and therefore
could not be appealed under the plea agreement. Id. at 952. As to the motion to
dismiss based on false testimony, the court further noted that, even if it could review
the motion, the record indicated “that none of the [lead detective’s] statements
constitute[d] false testimony,” as it perceived only “minor discrepancies or imperfect
memory of events” from the lead detective’s testimony. Id. As to the motion for a
Franks hearing, the court noted that the motion in any event was irrelevant to the
instant case “as a search warrant was not involved in this case.” Id. Schwartz then
petitioned the Florida Supreme Court for discretionary review of her case, which the
court denied. Schwartz v. State, 134 So. 3d 450 (Fla. 2014).
After exhausting her direct appeals, Schwartz filed a motion for
postconviction relief in state court pursuant to Florida Rule of Criminal Procedure
3.850, arguing that her attorney provided mistaken advice that her pretrial motions
were dispositive motions that could be appealed. She also attached to that motion
an affidavit from her trial attorney—Lewis Midler—stating that he had informed
Schwartz that it was his belief that the denials of her various pretrial motions would
be overturned on appeal and that Schwartz had accepted the plea based on this
advice. He then stated that the trial court, the prosecutor, and he were under the
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“mistaken impression” that the pretrial motions were dispositive and, therefore,
capable of appellate review and that, but for this mistaken impression, Schwartz
would have proceeded to a jury trial on all counts.
The state court denied the motion for postconviction relief, holding that
Schwartz was not entitled to relief on her claims related to the involuntariness of her
plea based on her attorney’s mistaken advice. Specifically, the court found that,
even though some the issues on direct appeal were not dispositive, the Fourth District
Court of Appeal specifically addressed each issue, finding them all to lack merit such
that it would not have provided any relief. Schwartz appealed this decision to the
Fourth District Court of Appeal, which affirmed without opinion. Schwartz v. State,
227 So. 3d 594 (Fla. Dist. Ct. App. 2017).
After exhausting her state remedies, Schwartz filed the instant petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Relying on the United States Supreme
Court’s decision in Lee v. United States, 137 S. Ct. 1958 (2017), she argued that
“[t]he state court made an objectionably unreasonable application of Federal Law by
failing to examine the decision-making process of the plea itself.” Schwartz raised
the same grounds that she raised in her state motion for postconviction relief: (1) her
plea was not voluntary or knowingly made because her attorney provided mistaken
advice that the pretrial motions could be appealed and would likely result in
dismissal of the charges; and (2) she received ineffective assistance of counsel based
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on her attorney’s mistaken advice that (a) she could appeal the denial of the pretrial
motions, (b) the false testimony at the pretrial hearings could result in dismissal of
the charges, and (c) she would prevail on appeal.
The district court referred the petition to the magistrate judge, who
recommended that each claim be denied in a report and recommendation.
Specifically, the magistrate judge found that Lee did not change the existing
framework for evaluating ineffective assistance of counsel claims related to
allegedly involuntary pleas under Strickland v. Washington, 466 U.S. 668 (1984),
and Hill v. Lockhart, 474 U.S. 52 (1985). The magistrate judge then found that Lee
was distinguishable from, and therefore inapplicable to, Schwartz’s case because
Lee dealt with mistaken advice relating to the immigration consequences of a
conviction—an issue of “paramount importance” to the petitioner—and because the
petitioner’s subjective importance of avoiding deportation was present in Lee,
making the decision to proceed to trial rational even in the face of slim chances of
acquittal. According to the magistrate judge, neither unusual circumstance was
present here—Schwartz was not facing a “particularly severe penalty” like
deportation or other collateral consequence, and her stated goal was to avoid
conviction altogether, not to avoid such collateral penalty like deportation. The
magistrate judge further found that Lee was distinguishable because it involved a
federal conviction, whereas Schwartz’s conviction is a state conviction, thereby
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adding an extra layer of deference to the Strickland analysis. Looking to the
prejudice prong of the Strickland analysis, as refined by Hill, the magistrate judge
determined that Schwartz failed to show prejudice because she received the full
benefit of her bargain, as her motions were reviewed on their merits by the Fourth
District Court of Appeals. As such, the magistrate judge concluded that Schwartz
failed to meet her “remarkably heavy burden.”
Schwartz filed objections to the report and recommendation, including that
the magistrate judge failed to differentiate her claims as both ineffective assistance
claims and due process claims, that Lee was not distinguishable to her case, and that
the magistrate judge improperly relied on the outcome of the appeal, rather than the
effect of the mistake advice on her decision-making process, in analyzing the
prejudice prong. The district court overruled Schwartz’s objections, adopted the
report and recommendation, and denied the habeas petition.
Schwartz appealed the denial of her petition. This Court issued a certificate
of appealability on the following issue: “Whether the state court and the district
court, in evaluating whether Ms. Schwartz entered a plea due to counsel’s mistaken
advice, improperly focused on the result of her appeal, rather than on her decision-
making process. See Lee v. United States, 137 S. Ct. 1958 (2017).”
II. STANDARD OF REVIEW
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We review a district court’s denial of a § 2254 petition de novo. Bester v.
Warden, 836 F.3d 1331, 1336 (11th Cir. 2016). But our review is highly deferential
to the state court’s habeas determination. Reed v. Sec’y, Fla. Dep’t of Corr., 593
F.3d 1217, 1239 (11th Cir. 2010); Renico v. Lett, 559 U.S. 766, 773 (2010). Our
review is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which provides that, after a state court has adjudicated a claim on the
merits, a federal court may grant habeas relief only if the state court’s decision was
“(1) contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court”, or (2) “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 involves an “unreasonable application” of Supreme
Court precedent if the state court applies a rule that contradicts governing law set
forth in the Supreme Court’s decisions or if it confronts a set of facts that is
materially indistinguishable from a Supreme Court decision but reaches a different
result. Brown v. Payton, 544 U.S. 133, 141 (2005). The “unreasonable application”
inquiry requires that the state court decision be more than incorrect or erroneous—
it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Thus, a petitioner must show that the state court’s ruling was “so lacking in
justification that there was an error well understood and comprehended in existing
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law beyond any possibility for fairminded disagreement.” White v. Woodall, 572
U.S. 415, 419–20 (2014).
III. ANALYSIS
Schwartz raises one argument on appeal—that the district court erred when it
unreasonably applied Supreme Court precedent by improperly focusing on the
ultimate outcome of her direct appeal, rather than the effect that her attorney’s
mistaken advice had on her decision-making process underlying the plea. The Sixth
Amendment guarantees criminal defendants the right to counsel. U.S. Const. amend.
VI; Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963). As the Supreme Court has
explained, “the right to counsel is the right to the effective assistance of counsel.”
Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)). This right attaches not only during a criminal trial but also when a criminal
defendant is deciding whether to plead guilty. See Lafler v. Cooper, 566 U.S. 156,
162 (2012); Hill, 474 U.S. at 58.
To succeed on a claim of ineffective assistance of counsel, a defendant must
establish both that (1) her attorney’s “performance was deficient” and (2) her
attorney’s “deficient performance prejudiced the defense.” Strickland, 466 U.S. at
687. Here, because the district court denied Schwartz’s petition without considering
the first prong—her attorney’s performance under Strickland—this Court must
likewise limit its analysis to considering only Strickland’s prejudice requirement.
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See McKathan v. United States, 969 F.3d 1213, 1222 (11th Cir. 2020); see also
Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies.”). Under the second prong, Schwartz must
show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” McKathan, 969 F.3d at 1222–
23 (quoting Strickland, 466 U.S. at 694). A reasonable probability means “a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
In the context of pleas, the prejudice prong “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.”
Hill, 474 U.S. at 59. As such, when a defendant alleges that her counsel’s “deficient
performance led [her] to accept a guilty [or nolo contendere] plea rather than go to
trial, we do not ask whether, had [she] gone to trial, the result of that trial ‘would
have been different’ than the result of the plea bargain”; rather, we consider “whether
the defendant was prejudiced by the ‘denial of the entire judicial proceeding . . . to
which he had a right.’” Lee, 137 S. Ct. at 1965 (quoting Roe v. Flores-Ortega, 528
U.S. 470, 483 (2000)). We therefore inquire into whether there is a “reasonable
probability that but for counsel’s errors, [the defendant] would not have pleaded
guilty and would have insisted on going to trial.” Id. (quoting Hill, 474 U.S., at 59).
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Supreme Court precedent, in the context of pleas, has distinguished between
claims related to the prospects on the underlying charges and claims related to
resulting consequences from the plea. See id. Where the ineffective assistance claim
relates to a defendant’s prospects of success on the underlying charges against her
and those are affected by the attorney’s error, the inquiry includes whether she would
have been better off going to trial—i.e., requiring predictions regarding the ultimate
outcome. See Lee, 137 S. Ct. at 1965; Premo v. Moore, 562 U.S. 115, 126–27, 132
(2011); Hill, 474 U.S. at 59. Where the claim relates to the consequences of the
plea—as was the case in Lee—the claim may not turn solely on the likelihood of the
outcome resulting from a trial. 137 S. Ct. at 1966. Under either claim, the prejudice
inquiry requires a case-specific review of the record. See, e.g., id. at 1966–69.
Here, we “look through” the Fourth District Court of Appeal’s summary
affirmance of the state postconviction court’s order, which was the last reasoned
adjudication on the merits of Schwartz’s claim. Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018) (holding that a federal habeas court reviewing an unexplained state-
court decision on the merits should “look through” that decision to “the last related
state-court decision” that provides a relevant rationale and “then presume that the
unexplained decision adopted the same reasoning”). We find that the state
postconviction court’s consideration of the outcome of Schwartz’s direct appeal was
not an unreasonable application of federal law. Schwartz claims that her attorney
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provided mistaken advice relating to her ability to appeal various pretrial motions
and the success of such an appeal. The allegedly mistaken advice can reasonably be
considered to relate to Schwartz’s ultimate prospects on the underlying charges, and
therefore, consideration of the ultimate outcome was not unreasonable.
Schwartz argues that her ineffective assistance claim is similar to the
defendant’s in Lee, requiring the state and district court to focus only on her decision-
making process, not the ultimate outcome. We disagree, as the state and district
court reasonably distinguished Lee from this appeal. In Lee, the mistaken advice
related to the consequences of the defendant’s plea, i.e., that the defendant would
not face mandatory deportation if he pled guilty to a drug distribution charge. 137
S. Ct. at 1963. That advice was incorrect, and the defendant pled guilty and was
ordered deported. Id. The Supreme Court concluded that the defendant had
demonstrated Strickland prejudice because he showed a reasonable probability that,
but for his attorney’s erroneous advice, he would have proceeded to trial, even
though he did not show that he necessarily would have been better off by going to
trial. Id. at 1967–68. For the defendant, “avoiding deportation was the determinative
factor for him.” Id. at 1967 (emphasis in original). As such, the Supreme Court
determined that the decision to go to trial would not have been “irrational” in
retrospect, even though his prospects were “grim.” Id. at 1965, 1968. Although at
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trial the defendant’s chances of deportation were almost certain, a guilty plea
guaranteed deportation. Id. at 1968–69.
In this case, Schwartz claims that, but for her attorney’s alleged mistaken
advice, she would not have accepted a plea and would have instead proceeded to
trial. But the determinative factor for her—the ability to appeal her pretrial
motions—did not relate to a consequence of her plea. Instead, her claim relates to
the ultimate prospects on the charges against her, which permits a court to consider
objective predictions regarding the ultimate outcome had she gone to trial. See Hill,
474 U.S. at 59. Here, because appellate review was Schwartz’s main concern, her
calculation in deciding to take a plea seemingly included the assumption that she
would not prevail at trial—a reasonable assumption given the large amount of
condemning evidence that was determined to be admissible—and would then have
the ability to appeal any pretrial motions. But, as the state postconviction court
determined, she did receive review on the merits of her pre-trial motions after
accepting the plea. The ultimate outcome, then, had she gone to trial and appealed
her pretrial motion, would have been the same—the denials of her pretrial motions
would have been affirmed. In retrospect, it would therefore have been “irrational”
for her to proceed to trial given her grim chances of acquittal, the potential for a
greater sentence for taking the case to trial, and the certainty that an appeal of her
pretrial motions would likewise fail.
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The underlying issue in Schwartz’s petition is that the Florida appellate court
did not rule in her favor even though her attorney expressed that he believed that she
would be successful. But the fact that the outcome did not go in her favor does not
mean that the court did not “meaningfully review” her motions. The court made
determinations as to the merits of each of her pretrial motions, which was the
determinative factor for her to take a plea. It was therefore not unreasonable for the
state postconviction court and the district court to determine that she was not
prejudiced by any alleged mistaken advice from her attorney. Unlike in Lee, this
appeal does not present “unusual circumstances” to warrant reversal of the denial of
her habeas petition.
IV. CONCLUSION
Because the consideration of the outcome of Schwartz’s direct appeal was not
an unreasonable application of federal law by the state postconviction court and the
district court, we affirm the district court’s denial of Schwartz’s habeas petition.
AFFIRMED.