Kurt Lewis v. Walter A. McNeil

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 5, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14482
Non-Argument Calendar
________________________
D. C. Docket No. 06-00292-CV-4-RH-EMT
KURT LEWIS,
Petitioner-Appellant,
versus
WALTER A. MCNEIL,
Secretary Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 5, 2010)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:

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Kurt Lewis, a Florida prisoner serving a 10-year sentence for violations of
the terms of his community control, appeals pro se the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition. Lewis contends that he received
ineffective assistance of counsel because counsel failed to inform him that he could
be sentenced consecutively if he refused the government’s plea offer of a 5-year
concurrent sentence.
The state habeas court held two evidentiary hearings and heard testimony
from Lewis, his former counsel, and the prosecutor. The court denied relief after
finding that Lewis’ counsel properly advised him of the terms of the government’s
plea offer and the consequences of rejecting it. The district court upheld the state
habeas court’s ruling but granted a certificate of appealability on the following
issue:
[W]hether Mr. Lewis is entitled to relief on the ground
his attorney rendered ineffective assistance by failing to
advise him correctly that the state had offered a plea
agreement under which he would receive concurrent
sentences in the two cases now at issue—not consecutive
sentences as could be (and ultimately were) imposed in
the absence of the plea agreement.
Lewis contends that the district court erred by denying his § 2254 petition.
He argues that the record shows that his counsel affirmatively misadvised him on
the possibility of consecutive sentencing, which constitutes deficient performance
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under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 1052 (1984). Lewis
asserts that he also meets Strickland’s prejudice requirement because he would
have accepted the plea but for his counsel’s deficient advice, and as a result he is
serving a sentence of ten years imprisonment instead of five.
When examining a district court’s denial of a § 2254 habeas petition, we
review de novo an ineffective assistance of counsel claim, which is a mixed
question of law and fact. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009).
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996, a federal court may not grant habeas relief on claims that
were previously adjudicated in state court, unless the adjudication
(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 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).
“The factual findings of the state court, including the credibility findings, are
presumed to be correct unless [the petitioner] rebuts the presumption by clear and
convincing evidence.” Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006)
(citing 28 U.S.C. § 2254(e)(1)). In the present case, conflicting testimony was
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presented at the evidentiary hearing held by the state habeas court. In fact, this
case comes down to a swearing match. Lewis testified that he rejected the
government’s plea deal because his lawyer, Dennis Boothe, advised him to do so
on the grounds that the government offered nothing more than the maximum
sentence. He points to these comments that Boothe made to the court at the
community control revocation hearing: “A five year maximum sentence. [The
prosecutor’s] offer is five years. So we have nothing to lose to come and waste the
court’s time, because we’re being offered nothing but the maximum sentence under
the law.” Lewis relies on Boothe’s statement as proof that Boothe misadvised him1
about the possibility that the sentence would be imposed consecutively. At the
community control revocation hearing, the prosecutor told the court:
I offered him five years on all his cases. That’s not the maximum this
Court can impose. The Court can impose consecutive sentences on
these violations of probation cases, and I would ask this Court to
sentence him to the maximum on each case; five years in case #2001-
865, with a consecutive five years on #2001-1117-AF.
Lewis asserts the record establishes that Boothe never informed him about the
possibility of consecutive sentences.
The September 5, 2002 hearing on Lewis’ alleged violations of community control was1
designated as a “VOP” hearing in the transcript. This opinion will refer to that hearing as the
community control revocation hearing.
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At the hearing before the state habeas court, Boothe explained that his
statement at the community control revocation hearing was accurate because after
Lewis rejected the government’s plea offer, the offer was withdrawn and Lewis
was facing consecutive sentencing. Boothe testified that he was aware that Lewis
faced consecutive sentencing; he advised Lewis of that fact; and he strenuously
argued with Lewis in an attempt to get him to accept the plea agreement, but Lewis
refused. Boothe explained that Lewis wanted a hearing because he believed that
the allegations against him could not be proven. The prosecutor testified that
before the community control revocation hearing, she offered Lewis a deal to serve
five years concurrently on all three of his cases. She also informed Boothe that if
Lewis rejected the offer and went forward with the hearing, the offer would be
revoked, and she would seek consecutive sentences of five years in each case.
The state habeas court credited Boothe’s testimony. Although the parts of
the record Lewis relies on might raise some doubts about his counsel’s
understanding of the state’s plea offer, Lewis has not presented clear and
convincing evidence establishing that the state court’s credibility finding was
incorrect. See Rolling, 438 F.3d at 1301. As a result he has failed to establish that
he is entitled to habeas relief under § 2254.
AFFIRMED.
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