Jack Liebman v. Dept. of Corrections

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 27, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-15787
Non-Argument Calendar
________________________
D. C. Docket No. 08-61260-CV-ASG
JACK LIEBMAN,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 27, 2011)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
Petitioner Jack Liebman appeals the district court’s denial of habeas relief

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under 28 U.S.C. § 2254.
On March 1, 2000, Liebman pled guilty to various criminal offenses
comprising seven different cases in Broward County Circuit Court. At his1
sentencing hearing on March 30, 2000, Liebman personally requested and was
granted leave to change his pleas from “guilty” to “no contest.” Prior to accepting2
the change, the trial court advised Liebman that the effect of no-contest pleas
would essentially be the same as guilty pleas. Liebman indicated that he
understood as much and that he was “hoping it [would] be the same,” as he did not
want to “inconvenience the Court, or upset anyone.” Following the change, the
trial court sentenced Liebman as a habitual offender to various concurrent terms of
imprisonment, the longest being thirty years.
Following state appellate and post-conviction proceedings, Liebman
challenged his conviction in the Southern District of Florida, claiming, among
other things, that his pleas were involuntary as the result of ineffective assistance
of counsel. According to Liebman, he was under the influence of the psychotropic
antidepressant, Elavil, during his plea proceedings. In particular, Liebman alleged
that counsel knew he was under the influence of a double dose of the drug on the
Liebman’s pleas were “open” and not pursuant to any plea agreement.1
According to Liebman’s brief, Liebman asked his counsel to implement the change.2
When counsel refused, Liebman addressed the court directly.
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day he changed his plea to no contest, but that counsel neglected to inform the
court. Liebman claims that, had the court been so informed, the outcome of his
proceeding would have been different, in that the court would have rejected his
pleas as involuntary. Following a categorical denial of relief below, we granted
Liebman leave to appeal a single, narrow issue:
Whether the state court made a decision that was contrary
to, or an unreasonable application of, clearly established
federal law or made an unreasonable determination of
fact when it found that counsel was not ineffective for
failing to raise concerns about Liebman’s competency to
be sentenced due to his mental condition prior to and
during the March 30 sentencing hearing and the
increased dosage of his psychotropic medication on the
morning of the sentencing hearing.
Because we decide that Liebman has failed to demonstrate the requisite
prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
we affirm the district court’s denial of habeas relief.
We begin by noting that, in our order granting Liebman’s Certificate of
Appealability, we specifically rejected Liebman’s contention that the state court
unreasonably determined that his March 1 guilty pleas were voluntary. Those
pleas followed two separate mental competency evaluations, as well as a thorough
plea colloquy. Consequently, in evaluating Liebman’s ineffective-assistance
claim, we limit our determination of whether Liebman can show Strickland
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prejudice to the events that followed his initial guilty plea.
To demonstrate prejudice under Strickland, Liebman must show that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 466 U.S. at 694, 104 S. Ct. at 2068.
In the context of an ineffective-assistance challenge to the voluntariness of a guilty
or no-contest plea, Liebman must show there is “reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
Particularly in light of his prior, voluntary guilty plea, we believe Liebman can
show no such reasonable probability.
In a summary order, Liebman’s state post-conviction court disposed of his
various claims on the merits “for the reasons stated in the State’s Response” to
Liebman’s petition, triggering the Antiterrorism and Effective Death Penalty Act’s
restrictions on federal habeas relief. See 28 U.S.C. § 2254; see also Harrington v.
Richter, No. 09-587, 2011 WL 148587, at *9 (U.S. Jan. 19, 2011) (concluding that
the summary nature of a state court’s decision does not lessen the deference that it
is due); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)
(same). We need not reach any of Liebman’s arguments about performance issues
because, even if we assume, arguendo, that Liebman’s counsel performed
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deficiently by failing to alert the court that his client was under the influence of
medication, Liebman has not made an adequate showing of prejudice to warrant3
further proceedings. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)
(“[A] court need not address the performance prong of [Strickland] if the defendant
cannot meet the prejudice prong, or vice versa.” (internal citation omitted)).
We agree with the district court that the facts do not show Liebman’s
original March 1 guilty plea was constitutionally deficient. Liebman has failed to
explain how he was prejudiced by the events thereafter, except to baldly assert that,
but for counsel’s errors, he would not have pled guilty and instead gone to trial.
Though it is certainly possible that Liebman’s state of mind may have deteriorated
in the interim between his plea colloquy and his sentencing hearing such that
counsel should have intervened when Liebman attempted to change his plea, we4
see little, if anything, in the record to suggest any such deterioration or resulting
Because Liebman has never been afforded an evidentiary hearing, the record is silent3
on what his counsel actually knew relating to Liebman’s medication. However, even if
Liebman’s allegations are true, they would not necessarily result in our finding deficient
performance. See Miles v. Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997) (“Assuming arguendo
that [counsel] had reason to doubt his competence on the day of the guilty plea, we are not
willing to say that her failure to bring the matter to the court’s attention—which would
jeopardize the plea bargain, against her client’s wishes—is a transgression that violates
Strickland’s ‘strong presumption’ of reasonable conduct.”).
A defendant’s mental competency is not static. See Indiana v. Edwards, 554 U.S. 164,4
175, 128 S. Ct. 2379, 2386 (2008) (“Mental illness itself is not a unitary concept. It varies in
degree. It can vary over time. It interferes with an individual’s functioning at different times in
different ways.”).
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harm. During the sentencing hearing, Liebman himself stated, “I do not wish in
any means [sic] to inconvenience or burden the courts with any trials that I don’t
think I can win with any defense.” In short, Liebman simply fails to make a5
plausible case that, but for his alleged incapacitation and counsel’s errors, he would
have insisted on going to trial. Even assuming the truth of an alteration in his
Elavil consumption, Liebman has illuminated no reasons that his plea calculus
changed or would have changed from the time he voluntarily pled guilty until the
time that he altered that plea to no contest.6
Liebman attempts make his prejudice case by pointing to a portion of the
sentencing hearing transcript where he told the court, “I wish to withdraw my
guilty plea in order to reserve my right to appeal, entering pleas of no contest”
(emphasis added). Since, absent a preservation agreement, no material differences
exist in a defendant’s appellate rights after a no-contest plea versus a guilty plea,
we interpret Liebman’s argument to contend that this confusing statement
This statement occurred while Liebman was allegedly under the influence of the5
increased dose of Elavil, so we are loath to give it much weight in evaluating Liebman’s state of
mind. However, it is somewhat probative.
Additionally, he has shown no prejudice that might have arisen solely from the fact that6
his conviction followed from a plea of no contest versus a plea of guilty, and we can think of
none. See United States v. Caraway, 474 F.2d 25, 28 (5th Cir. 1973) (“Under normal
circumstances, a plea of nolo contendere is the legal equivalent of a guilty plea and a waiver of
all nonjurisdictional defects.”), vacated on other grounds, 483 F.2d 215 (5th Cir. 1973) (en banc)
(per curiam).
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demonstrates that, had he been of sound mind, Liebman would have pursued a
course of pleading that would have preserved broader appellate rights: viz., taking
his case to trial. Leaving aside any issues related to the fact that Liebman was not
necessarily entitled to withdraw a constitutionally made guilty plea, we find this
argument unavailing.
Though such a statement might indicate Liebman misunderstood the
consequences of his no-contest plea, such a subjective misunderstanding alone is
not necessarily sufficient to render his plea involuntary. Cf. United States v. Plain,
748 F.2d 620, 622 (11th Cir. 1984) (per curiam). Furthermore, to the extent that
this misunderstanding should have alerted counsel and the court to some possible
cognitive defect in Liebman’s mental process, Liebman has failed to indicate
exactly which appellate issues he wished to preserve such that, had he known his
appellate rights under an open no-contest plea were severely limited, he would
have chosen instead to take his case to trial. In other words, while his statement at
the sentencing hearing might be probative of his attorney’s performance, without
more, it stops short of demonstrating prejudice.
At its core, Strickland is designed to help us identify and reverse judgments
where an attorney’s error has undermined our confidence the case’s outcome. See
466 U.S. at 694, 104 S. Ct. at 2068. Here, we are confident that Liebman’s case
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was properly resolved.
AFFIRMED.
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