JOHNSON v. DIXON

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
KEILON JOHNSON,
Petitioner,
v. 	Case No. 3:24-cv-451-LC-MJF
RICKY D. DIXON,
Respondent.
_______________________________/
REPORT AND RECOMMENDATION
Keilon Johnson, proceeding pro se, has filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. Doc. 1. Respondent (“the State”)
answered and provided relevant portions of the state-court record. Doc.
20. 	Johnson 	replied. 	Doc. 	26. 	The 	undersigned 	concludes 	that 	no
evidentiary hearing is required, and that Johnson is not entitled to
habeas relief.
B ACKGROUND AND P ROCEDURAL H ISTORY
On May 8, 2019, Johnson pled nolo contendere to the following
charges in the Okaloosa County Circuit Court:
● 	Attempted armed kidnapping with a weapon with intent to
commit a felony (Count 1, Case No. 2017-CF-3125, which carried a
maximum possible sentence of 30 years of imprisonment);
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● 	Attempted home-invasion robbery with a firearm (Count 2,
Case No. 2017-CF-3125, which carried a mandatory minimum term
of imprisonment of 10 years under Florida’s “10-20-Life” statute,
Fla. Stat. § 775.087(2)(a)1., and a maximum possible sentence of 15
years of imprisonment); and
● 	Aggravated battery with great bodily harm (Case No. 2017-
CF-3398, which carried a maximum possible sentence of 15 years
of imprisonment).
See Doc. 20-5 (Plea Agreement, Case No. 2017-CF-3125); Doc. 20-6 (Plea
Agreement, Case No. 2017-CF-3398); Doc. 20-7 (Plea Hr’g Tr.). Johnson’s
nolo contendere plea was an open plea “to the court,” meaning that there
was no agreement as to sentence (except that the sentences in the two
cases 	would 	run 	concurrently), 	thereby 	leaving 	the 	sentence
determination for the state trial court. Id.
The 	trial 	court 	conducted 	a 	plea 	colloquy, 	determined 	that
Johnson’s 	nolo 	contendere 	plea 	was 	entered 	freely, 	voluntarily 	and
knowingly, and accepted the plea. Doc. 20-7. Before sentencing, Johnson
moved to withdraw his plea, but then withdrew that motion. Doc. 20-23
at 19–30 in ECF.
On January 23, 2020, the trial court held a sentencing hearing and
sentenced 	Johnson 	to 	15 	years 	of 	imprisonment 	(with 	a 	10-year
mandatory minimum) for the attempted 	home-invasion robbery with a
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firearm (Count 2, Case No. 2017-CF-3125) followed by a consecutive term
of 10 years of probation for the attempted armed kidnapping (Count 1,
Case No. 2017-CF-3215). The trial court sentenced Johnson to 15 years
of imprisonment for the aggravated battery (Case No. 2017-CF-3398),
concurrent with the 15-year sentence on Count 2 in Case No. 2017-CF-
3125. See Doc. 20-8 (Sentencing Hr’g Tr.); Doc. 20-9 (J. & Sentence).
Judgment was entered on February 7, 2020. Doc. 20-9. Johnson filed a
direct appeal in one case (Case No. 2017-CF-3398), but then voluntarily
dismissed the appeal. Doc. 20-11.
On December 21, 2020, Johnson filed a pro se motion to correct
illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Doc.
20-12. The state circuit court denied relief. Doc. 20-13. The Florida First
District Court of Appeal (“First DCA”) per curiam affirmed without
written opinion. Johnson v. State, 332 So. 3d 461 (Fla. 1st DCA 2022)
(Table) (copy at Doc. 20-17). The mandate issued February 17, 2022.
On 	February 	14, 	2022, 	Johnson 	filed 	a 	pro 	se 	motion 	for
postconviction relief under Florida Rule of Criminal Procedure 3.850.
Doc. 20-18. On March 23, 2022, the state circuit court dismissed the
motion as facially insufficient with leave to amend. Doc. 20-19. Johnson
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filed an amended motion. Doc. 20-20. On June 8, 2022, the state circuit
court dismissed the amended motion as facially insufficient with leave to
amend. Doc. 20-21. Johnson chose not to amend and instead filed a
motion for entry of a final order disposing of the amended Rule 3.850
motion. Doc. 20-22. On October 17, 2022, the state circuit court entered
a final order denying Johnson’s amended motion on the merits, but sua
sponte directed the clerk of court to correct Johnson’s jail credit and other
scrivener’s errors in the judgment. Doc. 20-23 (Order); Doc. 20-10 (Am. J.
& Sentence). The First DCA per curiam affirmed without written opinion.
Johnson v. State, No. 1D2022-3902, 381 So. 3d 521 (Fla. 1st DCA 2024)
(Table). The mandate issued March 21, 2024. Doc. 20-24 (First DCA
docket sheet).
At some point, Johnson filed in the First DCA a pro se petition for
writ of habeas corpus which was dismissed on June 25, 2025. See Johnson
v. State, No. 1D2024-2603, 413 So. 3d 1026 (Fla. 1st DCA 2025) (Mem.)
(citing Baker v. State, 878 So. 2d 1236 (Fla. 2004)).
Johnson filed his federal habeas petition on August 21, 2024. Doc.
1. The petition raises four grounds for relief. The State asserts that
Johnson is not entitled to relief on any claim for one or more of these
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reasons: (1) the claim is procedurally defaulted; (2) the claim lacks merit;
(3) the claim presents a purely state-law issue; (4) Johnson fails to satisfy
§ 2254(d)’s demanding standard. Doc. 20.
RELEVANT LEGAL STANDARDS
A. 	The Federal Habeas Exhaustion Requirement
“To respect our system of dual sovereignty, the availability of
habeas relief is narrowly circumscribed.” Shinn v. Ramirez, 596 U.S. 366,
375 (2022) (citations omitted). One such constraint is the exhaustion
requirement and corollary principle of procedural default. See 28 U.S.C.
§ 2254(b); Shinn, 596 U.S. at 375-79.
Section 2254 “requires state prisoners to ‘exhaust the remedies
available in the courts of the State’ before seeking federal habeas relief.”
Shinn, 	596 	U.S. 	at 	377 	(alteration 	adopted) 	(quoting 	28 	U.S.C. 	§
2254(b)(1)(A)). “To satisfy the exhaustion requirement, the petitioner
must have fairly presented the substance of his federal claim” to the
state’s highest court, either on direct appeal or on collateral review.
Picard v. Connor, 404 U.S. 270, 277–78 (1971); Castille v. Peoples, 489
U.S. 346, 351 (1989).
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A petitioner “fairly” presents the substance of his federal claim to
the state courts when he describes the claim “such that the reasonable
reader would understand each claim’s particular legal basis and specific
factual foundation.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1135
(11th Cir. 2022) (quoting Kelley v. Sec’y Dep’t of Corr., 377 F.3d 1317,
1344–45 (11th Cir. 2004)).
When a petitioner fails to exhaust his federal claim and the state
court 	remedy 	no 	longer 	is 	available, 	that 	failure 	to 	exhaust 	is 	a
procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 839–40 (1999);
see also Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999) (when a
petitioner fails to properly exhaust a federal claim in state court, and it
is obvious that the unexhausted claim now would be procedurally barred
under state law, the claim is procedurally defaulted).
Together, exhaustion and procedural default promote
federal-state 	comity. 	Exhaustion 	affords 	States an 	initial
opportunity to pass upon and correct alleged violations of
prisoners’ 	federal 	rights, 	and 	procedural 	default 	protects
against the significant harm to the States that results from
the failure of federal courts to respect state procedural rules.
Ultimately, 	it would be 	unseemly in 	our dual system of
government for a federal district court to upset a state court
conviction without giving an opportunity to the state courts to
correct a constitutional violation, and to do so consistent with
their own procedures.
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Shinn, 596 U.S. at 378–79 (internal quotation marks and citations
omitted, alteration adopted).
A 	petitioner 	seeking 	to 	overcome 	a 	procedural 	default 	must
“demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider
the claim[ ] will result in a fundamental miscarriage of justice.” Coleman
v. Thompson, 501 U.S. 722, 750 (1991); Lucas v. Sec’y, Dep’t of Corr., 682
F.3d 1342, 1352–53 (11th Cir. 2012).
A petitioner establishes “cause” by showing that an objective factor
external to the defense impeded an effort to properly raise the claim in
the state court. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003). 	A 	petitioner 	establishes 	“prejudice” 	by 	showing 	at 	least 	a
reasonable probability that the proceeding’s result would have been
different. Id. at 892.
To satisfy the miscarriage of justice exception, the petitioner must
show 	that 	“a 	constitutional 	violation 	has 	probably 	resulted 	in 	the
conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298,
327 (1995). “To establish the requisite probability, the petitioner must
show that it is more likely than not that no reasonable juror would have
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convicted him.” Schlup, 513 U.S. at 327. The Schlup standard is very
difficult to meet:
a substantial claim that constitutional error has caused the
conviction of an innocent person is extremely rare. To be
credible, such a claim requires [a] petitioner to support his
allegations 	of 	constitutional 	error 	with 	new 	reliable
evidence—whether 	it 	be 	exculpatory 	scientific 	evidence,
trustworthy 	eyewitness 	accounts, 	or 	critical 	physical
evidence—that that was not presented at trial.
Schlup, 513 U.S. at 327.
B. 	Section 2254 Standard of Review
A federal court “shall not” grant a habeas corpus petition on any
claim that was adjudicated on the merits in state court unless the state
court’s decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court.”
28 U.S.C. § 2254(d)(1). The United States Supreme Court explained the
framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).1
Justice O’Connor described the appropriate test:
1 Unless otherwise noted, references to Supreme Court’s Williams case
are to the majority holding, written by Justice Stevens for the Court
(joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in
parts I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and
Justice O’Connor for the Court (joined by Justices Rehnquist, Kennedy,
Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at
403–13).
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Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law or
if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court may
grant 	the 	writ 	if 	the 	state 	court 	identifies 	the 	correct
governing 	legal 	principle 	from 	this 	Court’s 	decisions 	but
unreasonably 	applies 	that 	principle 	to 	the 	facts 	of 	the
prisoner’s case.
529 	U.S. 	at 	412-13 	(O’Connor, 	J., 	concurring). 	In 	applying 	the
“unreasonable application” clause, the federal court defers to the state
court’s reasoning unless the state court’s application of the governing
legal principle was “objectively unreasonable” in light of the record before
the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542
U.S. 649, 652 (2004).
Section 2254(d) also allows habeas relief for a claim adjudicated on
the merits in state court where that adjudication “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)(2). As with the “unreasonable application” clause of § 2254(d)(1),
the federal court applies an objective test. See Miller-El v. Cockrell, 537
U.S. 322, 340 (2003).
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“The question under AEDPA is not whether a federal court believes
the 	state 	court’s 	determination 	was 	incorrect 	but 	whether 	that
determination 	was 	unreasonable—a 	substantially 	higher 	threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S.
at 410). AEDPA also requires federal courts to “presume the correctness
of state courts’ factual findings unless applicants rebut this presumption
with ‘clear and convincing evidence.’” Landrigan, 550 U.S. at 473–74
(quoting 28 U.S.C. § 2254(e)(1)).
A federal court may conduct an independent review of the merits of
a petitioner’s claim only if it first finds that the petitioner satisfied §
2254(d). See Panetti v. Quarterman, 551 U.S. 930, 954 (2007). Even then,
however, the writ will not issue unless the petitioner shows that he is in
custody “in violation of the Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a).
D ISCUSSION
Ground One 	“Conviction obtained by plea of guilty that
was unlawfully induced by the state and my
lawyer” Doc. 1 at 8.
Johnson alleges that his nolo contendere plea is invalid because the
prosecutor and defense counsel told Johnson “that the 10-20-Life statute
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would apply only if [Johnson] tried to take the cases to trial.” Doc. 1 at 8.
Johnson elaborates:
It was explained to me that the charging information had to
include any and all possible aspects of my charges regardless
of whether or not I admitted any of it, and that when I plead
guilty 	then 	everything 	could 	be 	straightened 	out 	before
sentencing. I was and still am ignorant of the law. I did not
know that the state could pick out what they wanted to
convict me of, and sentence me for that after the judge had
accepted my nolo contendere plea, I only knew what was
explained to me. No one read the charges to me at my plea
hearing 	or 	explained 	what 	would 	be 	changed 	after 	my
pleading.
Doc. 1 at 8. Johnson alleges that he presented this claim to the state
courts in his original Rule 3.850 motion which the state circuit court
dismissed without 	prejudice 	on 	March 	23, 	2022. 	Id. 	at 	9. 	Johnson
indicates that he did not pursue the claim further. Id. at 9.
The State asserts that Johnson is not entitled to habeas relief
because: (1) Johnson’s claim does not allege a violation of a constitutional
right; (2) Johnson procedurally defaulted this claim. Doc. 20 at 21–24.
The 	undersigned 	liberally 	construes 	Johnson’s 	allegations 	as
claiming that his plea was involuntary and unknowing, in violation of
due process. See Boykin v. Alabama, 395 U.S. 238, 243–44 (1969).
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A. 	Johnson Procedurally Defaulted Ground One
Johnson raised the same claim, verbatim, as “Ground 1” of his
original Rule 3.850 motion. Doc. 20-18 at 5. The state circuit court
dismissed that motion without prejudice, with leave to amend. Doc. 20-
19. The state court explicitly advised Johnson that any amended motion
“must include all the claims he wishes the Court to consider.” Id. at 1.
Johnson filed an amended Rule 3.850 motion wherein he removed
this claim that the prosecutor and defense counsel “induced” him to plead
nolo contendere by misrepresenting the applicability of the 10-20-Life
statute. Doc. 20-20. By removing the claim, Johnson abandoned it and
the state courts did not address it. See Watson v. State, 247 So. 3d 685,
687 	(Fla. 	1st 	DCA 	2018) 	(amended 	Rule 	3.850 	motion 	“effectively
abandoned any claims it failed to raise” that had been asserted in original
motion); 	Rincon v. State, 996 So. 2d 922, 923 (Fla. 4th DCA 2008)
(amended Rule 3.850 motion abandoned original motion); 	Rolling v.
State, 825 So.2d 293, 295 n. 1 (Fla.2002) (amended Rule 3.850 motion
raising two claims abandoned an additional twenty-nine claims that were
raised in summary fashion in original motion).
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Because Johnson failed to give the state courts “one full opportunity
to resolve” the claim in Ground One of his habeas petition, this claim is
unexhausted. Johnson now is procedurally barred from returning to the
state 	courts 	to 	present 	this 	claim, 	so 	Ground 	One 	is 	procedurally
defaulted. See Fla. R. Crim. P. 3.850(b), (c), (h); see also e.g., Boerckel, 526
U.S. at 848 (petitioner’s filing of discretionary review petition but leaving
out three issues he later included in federal habeas petition rendered the
issues unexhausted and procedurally defaulted); Coleman, 501 U.S. at
735 n.1; Sims v. Singletary, 155 F.3d 1297, 1311 (11th Cir. 1998) (“Sims
abandoned the photograph component of this claim on appeal of the
denial of his motion for post-conviction relief. Therefore, this portion of
the argument is procedurally barred for federal habeas purposes.”).
Johnson has not made any of the requisite showings to excuse his
procedural default. Johnson’s procedural default bars federal habeas
review of Ground One.
Ground Two 	“Denial of effective assistance of counsel due
to the cumulative errors of trial counsel, Mr.
Time [sic] Shaw” Doc. 1 at 10.
Johnson alleges that the cumulative effect of these errors by trial
counsel deprived Johnson of effective assistance of counsel:
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● 	Counsel refused to file a motion for a bond hearing;
● 	Counsel failed to visit Johnson at the jail to discuss “the
necessary aspects of going to trial” and instead discussed only a plea
agreement;
● 	Counsel failed to inform Johnson that abandonment was a
viable defense to the attempted armed kidnapping charge;
● 	Counsel failed to file a motion to dismiss the attempted armed
kidnapping charge “for lack of evidence for any factual basis [to]
support the charge”;
● 	Counsel 	“induced” 	Johnson 	to 	plead 	nolo 	contendere 	to
charges “unsupported by factual basis or any tangible evidence”;
and
● 	Counsel failed to request that the trial court “follow the
precepts 	of 	Florida 	Rules 	of 	Criminal 	Procedure 	3.170(k) 	and
3.172(a), (c)(1) (3) and (c10d and e)” during the plea colloquy.
Doc. 1 at 10–12. Johnson alleges that he presented this claim to the state
courts in his amended Rule 3.850 motion which the state circuit court
dismissed on June 8, 2022, and the First DCA affirmed. Id. at 12–13.
The State asserts that Johnson is not entitled to relief because: (1)
Johnson procedurally defaulted a cumulative-error claim insofar as his
amended Rule 3.850 motion presented only individual errors of counsel;
and (2) the state court’s denial of relief on the individual allegations of
ineffective assistance was neither contrary to, nor an unreasonable
application of, clearly established federal law. Doc. 20 at 25–30.
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A. 	Johnson Exhausted Ground Two
Johnson presented this same claim to the state courts as “Ground
2” of his amended Rule 3.850 motion. Doc. 20-20 at 10–12. Johnson
identified not only the individual instances of trial-counsel error, but also
argued that the cumulative effect of those errors deprived Johnson of his
right to effective assistance of counsel.
B. 	The State Court’s Decision
The state circuit court summarily denied relief as follows:
In Ground 2 of the instant motion, Defendant claims
that 	trial 	counsel 	in 	case 	number 	2017-CF-3125 	was
ineffective for failing to file a motion for bond hearing, failing
to visit him in the jail to discuss his case, failing to inform him
of the 	defense of abandonment 	for the attempted armed
kidnapping charge, failing to file a motion to dismiss, inducing
him to plea to charges unsupported by a factual basis or any
tangible evidence, and failing to request that the Court follow
the precepts of Florida Rule of Criminal Procedure 3.170. The
Court finds that these claims should be denied.
During the plea colloquy, Defendant advised the Court
that he understood that he was pleading to the two-count
information as orally amended by the State, no one was
forcing him to enter the plea, he understood he was waiving
his right to a jury trial, and he was satisfied with what trial
counsel had done to help him in the case.FN8 By entering the
plea, he waived his right to have trial counsel file pretrial
motions, investigate, present evidence, and develop or put
forth 	defenses. 	He 	may 	not 	now 	attack 	trial 	counsel’s
effectiveness for not doing those things. See Clift v. State, 43
So. 3d 778, 779-80 (Fla. 1st DCA 2010) (“By entering a plea to
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the 	charges, 	Appellant 	waived 	his 	right 	to 	have 	counsel
investigate or put forward a defense, including filing motions
to suppress. Where a defendant enters a plea and swears that
he is satisfied with his counsel’s advice, he may not later
attack counsel’s effectiveness for failure to investigate or
defend the charge.”) (citation omitted).
FN8 Exhibit B, Plea Hearing Transcript, pp. 3–4.
Additionally, before entering the plea, Defendant signed
a written plea and sentencing agreement. The agreement
listed the specific charges and the rights that Defendant was
giving up by entering a plea. The agreement also provided
that “[t]he arrest report or offense report or probable cause
affidavit which is a part of the court record filed with the clerk
is hereby incorporated by reference and agreed to by the
defendant as a factual basis for the plea.”FN9
FN9 Exhibit C, Plea and Sentencing Agreement.
Furthermore, Defendant raised similar claims in this
motion to withdraw plea,FN10 which he withdrew before
sentencing.FN11
FN10 Exhibit D, Motion to Withdraw Plea.
FN11 Exhibit E, Hearing Transcript, p. 4.
Doc. 20-23 at 3–4 (alteration in original). The First DCA affirmed without
explanation.
The First DCA’s summary affirmance is an “adjudication on the
merits” of Johnson’s claim and, therefore, is reviewed under § 2254(d)’s
deferential standard. See Harrington v. Richter, 562 U.S. 86, 99 (2011).
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Because the First DCA’s decision is unexplained, this court presumes
that the First DCA rejected Johnson’s claim for the reasons provided by
the state circuit court. See Wilson v. Sellers, 584 U.S. 122, 125 (2018).
C. 	Clearly Established Federal Law
In determining the validity of a plea to a criminal charge, a plea of
nolo contendere stands on equal footing with a guilty plea. North Carolina
v. Alford, 400 U.S. 25, 35–36 (1970); Hudson v. United States, 272 U.S.
451 (1926); see also Florida v. Royer, 460 U.S. 491, 495 n.5 (1983) (“Under
Florida law, a plea of nolo contendere is equivalent to a plea of guilty.”).
“A reviewing federal court may set aside a state court guilty plea only for
failure to satisfy due process.” Stano v. Dugger, 921 F.2d 1125, 1141 (11th
Cir. 1991) (en banc) (citing Boykin, 395 U.S. at 243–44). The Due Process
Clause requires that a guilty plea be entered knowingly and voluntarily.
Boykin, 395 U.S. at 243 n.5; see also Bousley v. United States, 523 U.S.
614, 618 (1998). The assistance of counsel received by a defendant is
relevant to the question of whether a defendant's guilty plea was knowing
and 	intelligent 	insofar 	as 	it 	affects 	the 	defendant's 	knowledge 	and
understanding. See McMann v. Richardson, 397 U.S. 759, 769–72 (1970).
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“Once 	a 	plea 	of 	guilty 	has 	been 	entered, 	nonjurisdictional
challenges to the conviction’s constitutionality are waived, and only an
attack 	on 	the 	voluntary 	and 	knowing 	nature 	of 	the 	plea 	can 	be
sustained.” Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983);
Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975) (“[T]he general rule is
that a guilty plea, intelligently and voluntarily made, bars the later
assertion of constitutional challenges to the pretrial proceedings.”). This
waiver includes claims of ineffective assistance of counsel “except insofar
as 	the 	ineffectiveness 	is 	alleged 	to 	have 	rendered 	the 	guilty 	plea
involuntary.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000);
see also Bullard v. Warden, Jenkins Corr. Ctr., 610 F. App’x 821, 824
(11th Cir. 2015) (the waiver rule “includes any claim of ineffective
assistance of counsel unless the deficient performance relates to the
voluntariness of the plea itself”) (citing McMillin v. Beto, 447 F.2d 453,
454 (5th Cir. 1971) and Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.
1983)).
The Supreme Court explained in Tollett v. Henderson, 411 U.S. 258
(1973):
[A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal
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defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may not
thereafter 	raise 	independent 	claims 	relating 	to 	the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea by showing that the
advice he received from counsel was not within the standards
set forth in McMann.
Id. at 267.
Recognizing that a prisoner often “has everything to gain and
nothing to lose from filing a collateral attack upon his guilty plea,” courts
accord great deference to a defendant’s statements during a plea colloquy
and are reluctant to allow a defendant to go behind his own sworn
testimony. Blackledge v. Allison, 431 U.S. 63, 71 (1977).
[T]he representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by
the judge accepting the plea, constitute a formidable barrier
in 	any 	subsequent 	collateral 	proceedings. 	Solemn
declarations in open court carry a strong presumption of
verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly
incredible.
Id. at 73–74 (citations omitted).
When a petitioner challenges the voluntariness of his plea based on
allegations of ineffective assistance of counsel, the two-prong standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984), applies. Hill
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v. Lockhart, 474 U.S. 52, 58 (1985). To obtain relief under Strickland, a
petitioner must establish that: (1) “counsel's representation fell below an
objective standard of reasonableness,” and (2) “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
To meet Strickland’s prejudice prong in a plea situation, petitioner
must establish that “counsel’s constitutionally ineffective performance
affected the outcome of the plea process.” Hill, 474 U.S. at 59. “It is not
enough for [petitioner] to show that the errors had some conceivable
effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693.
Petitioner 	must 	demonstrate 	a 	reasonable 	probability 	that, 	but 	for
counsel’s errors, he would not have pleaded guilty and would have
insisted 	on 	going 	to 	trial. 	Hill, 	474 	U.S. 	at 	58–59. 	“A 	reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
D. 	Johnson Is Not Entitled to Habeas Relief
The 	state 	court 	determined that 	Johnson 	waived some 	of 	his
ineffective-assistance claims by entering the nolo contendere plea, and
that other claims were conclusively refuted by the record.
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1. 	Counsel’s Failure 	to 	File Pretrial Motions 	and
Develop a Trial Strategy
The state court reasonably applied federal law when it concluded
that the following claims did not affect the voluntariness of Johnson’s
plea and, therefore, were waived: (1) counsel’s failure to move for a bond
hearing; (2) counsel’s failure to move to dismiss the attempted armed
kidnapping charge for lack of a factual basis; (3) counsel’s discussing a
plea agreement above trial strategy. 	McMann, 397 U.S. at 770–71;
Bullard, 610 F. App’x at 824 (petitioner’s guilty plea waived claim that
counsel was ineffective for failing to move to suppress evidence, because
petitioner did not claim that his plea was involuntary due to his counsel’s
failure to file the motion).
Johnson, therefore, is not entitled to habeas relief on this aspect of
Ground Two.
2. 	Counsel’s 	Failure 	to 	Advise 	of 	Abandonment
Defense
Johnson claims that his plea to the attempted armed kidnapping
charge was involuntary because counsel failed to advise Johnson that he
had a viable abandonment defense. Specifically, Johnson alleges that his
“voluntary ceasing of action and decision not to accost or grab the alleged
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victim in Count 1 constituted a viable and statutorily enacted defense of
abandonment.” Doc. 1 at 10–11.
This claim fails on de novo review. “[W]here the alleged error of
counsel is a failure to advise the defendant of a potential affirmative
defense to the crime charged, the resolution of the ‘prejudice’ inquiry will
depend largely on whether the affirmative defense likely would have
succeeded at trial.” 	Hill, 474 U.S. at 59.
In 	Florida, 	“[t]he 	law 	distinguishes 	between 	a 	‘voluntary
abandonment’ and an ‘involuntary abandonment.’” Carroll v. State, 680
So. 2d 1065, 1066 (Fla. 3rd DCA 1996). “In order to constitute a defense,
the abandonment must be complete and voluntary.” 	Id. at 1066–67
(citations and footnote omitted). “An involuntary abandonment occurs
when the defendant fails because of unanticipated difficulties in carrying
out the criminal plan at the precise time and place intended and then
decides 	not 	to 	pursue 	the 	victim 	under 	these 	less 	advantageous
circumstances.” Id.
Here, Johnson certified in his written plea agreement that: “The
arrest report or offense report or probable cause affidavit which is
a part of the court record filed with the clerk of the court is hereby
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incorporated by reference and agreed to by the defendant as a factual
basis for the plea.” Doc. 20-5 at 3 ¶ 7. Johnson also certified that he
“reviewed the facts of my case(s) with my attorney and I agree and
stipulate there are sufficient facts available to the State to justify my plea
of guilty or nolo contendere to the charge(s).” Id. at 2 ¶ 8. In addition,
Johnson certified that he “read the information or indictment and I
understand the charge(s) set forth in the information or indictment.” Id.
at 1 ¶ 4; see also Doc. 20-2 (Information).
The facts Johnson admitted to in the arrest report did not support
an abandonment defense. See Doc. 20-1. The facts in that report—which
were based on the victims’ and Johnson’s co-defendants’ statements—
establish the following.
Johnson erected a barricade on the road leading to the victims’
residence in an attempt to make the young female victim (A.B.) stop her
car so that Johnson and his co-defendants could take A.B. out of the car
by force, coerce A.B. to open the security gate and enable them to enter
the curtilage, and coerce A.B.’s father to exit the residence so Johnson
and 	his 	co-defendants 	could 	rob 	it. 	The 	reason 	Johnson’s 	armed
kidnapping plot failed was because A.B. unwittingly foiled it by driving
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around the barricade instead of stopping. Nothing in the arrest report or
the state-court record suggests that Johnson completely and voluntarily
abandoned 	the 	kidnapping 	plan. 	See 	Carroll, 	680 	So. 	2d 	at 	1067;
Anderson v. State, 377 So. 3d 1225, 1227 (Fla. 4th DCA 2024).
The fact that Johnson did not “accost or grab” A.B. after she
unexpectedly drove around the barricade did not give rise to a viable
voluntary-abandonment defense. Thus, Johnson was not prejudiced by
counsel’s failure to advise of that defense. Because Johnson fails to
establish prejudice under Strickland, this aspect of Ground Two must be
denied.
3. 	Counsel’s Advice to Plead Guilty to a Charge That
Lacked a Factual Basis
Johnson claims that his plea to the attempted armed kidnapping
charge violates due process because the charge was “unsupported by
factual basis or any tangible evidence.” Doc. 1 at 11. Specifically, Johnson
alleges that there was no evidence that he “commit[ted] some act towards
the actual commission of the charged offense.” Id.
This ineffective-assistance claim fails for the same reason as the
previous one. Johnson certified in the written plea agreement that he
read the arrest report and agreed that the facts stated in the arrest report
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were the factual basis for his nolo contendere plea. Doc. 20-5. The facts in
the arrest report adequately cover Florida’s elements for the crime of
attempted armed kidnapping with a weapon with intent to commit a
felony. See Doc. 20-1.
Because 	Johnson 	fails 	to 	establish 	deficient 	performance 	and
prejudice under Strickland, this ineffective-assistance claim must be
denied.
4. 	Counsel’s 	Failure 	to 	Request 	the 	Trial 	Court’s
Compliance with Fla. R. Crim. P. 3.170
Johnson alleges that trial counsel was ineffective for failing to
request that the trial court “follow the precepts of Florida Rules of
Criminal Procedure 3.170(k) and 3.172(a)(c)(1) (3) and (c10d and e).”
Doc. 1 at 12. Johnson alleges that had counsel made that request, the
trial court “would have seen that I was misinformed concerning any
possible defense, subsequently and consequently being induced into
making an involuntary plea.” Id.
The 	foregoing 	discussion 	demonstrates 	that 	Johnson’s
hypothesized abandonment defense was not viable. Also, as the state
court pointed out, the arrest report, Johnson’s written plea agreement,
and 	Johnson’s 	statements 	during 	the 	plea 	colloquy 	establish 	that
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Johnson’s plea was knowing and voluntary, and that the plea was
supported by a factual basis. See Doc. 20-1; Doc. 20-5, Doc. 20-7; Doc. 20-
8. The state court’s rejection of this claim was neither contrary to, nor an
unreasonable application of the Strickland standard.
For all the reasons set forth above, the District Court should deny
relief 	on 	Johnson’s 	ineffective-assistance 	claims 	in 	Ground 	Two,
including his claim of cumulative error.
Ground Three 	“Illegal sentence” Doc. 1 at 13.
Johnson alleges that the 10-year mandatory minimum term of
imprisonment for the attempted home-invasion robbery with a firearm is
“illegal” for two reasons. Doc. 1 at 13. First, “the Court neglected during
oral 	pronouncement 	to 	inform 	this 	Defendant 	that 	he 	was 	being
sentenced pursuant to the ‘10-20-Life’ Florida Statute.” Doc. 1 at 13.
Second, “the Defendant, not Defendant’s counsel, was required by law to
specifically admit to the actual possession of a firearm in order to be
subjected to sentencing pursuant to the minimum mandatory portion as
required by Fla. Statute 775.087(2)(a)(1).” Id. at 14. Johnson alleges that
he exhausted this claim by presenting it in his Rule 3.800(a) motion that
was denied on May 18, 2021. Doc. 1 at 14.
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The State argues that Johnson is not entitled to relief because (1)
this claim raises a purely state-law issue; (2) to the extent it raises a
federal claim, the federal claim is procedurally defaulted; (3) the claim
has no merit. Doc. 20 at 30–31.
A. 	No Habeas Relief for State-Law Violations
To the extent Johnson alleges that the state trial court failed to
follow Florida’s procedural requirements before imposing the 10-year
mandatory minimum, his claim provides no basis for federal habeas
relief. Federal habeas relief is available to correct only constitutional
injury. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[F]ederal habeas corpus relief
does not lie for errors of state law.”); Estelle v. McGuire, 502 U.S. 62, 67-
68 (1991) (errors that do not infringe upon a defendant’s constitutional
rights provide no basis for federal habeas corpus relief; “[I]t is not the
province 	of 	a 	federal 	habeas 	court 	to 	reexamine 	state-court
determinations on state-law questions.”); Branan v. Booth, 861 F.2d
1507, 1508 (11th Cir. 1988) (“[W]e consistently have held that federal
courts cannot review a state’s alleged failure to adhere to its own
sentencing procedures.”).
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B. 	Johnson Knew He Would Be Sentenced to the 10-Year
Mandatory Minimum and Johnson Admitted that He
Possessed a Firearm
To the extent Johnson suggests that his plea was unknowing
because he did not understand he would be sentenced to a 10-year
mandatory minimum for the attempted home-invasion robbery with a
firearm, his claim is refuted by the record. The charging document
specifically 	alleged 	that 	Johnson 	possessed 	a 	firearm 	during 	the
commission of the attempted home-invasion robbery, and cited Fla. Stat.
§ 775.087. Doc. 20-2.
Johnson’s written plea agreement indicated that the offense of
attempted home-invasion robbery with a firearm was subject to a 10-year
mandatory minimum. Doc. 20-5 at 1. Johnson certified in the written plea
agreement 	that 	he 	understood 	“that 	the 	maximum 	period 	of
imprisonment/incarceration 	and 	fines, 	as 	well 	as 	any 	mandatory
minimum that apply, with regard to the charges to which I am entering
my plea are as indicated on page 1 of this agreement.” Doc. 20-5 at 2 ¶
4(7).
Johnson also certified in the plea agreement that the facts stated in
the arrest report were the factual basis for his plea. Doc. 20-5 at 3 ¶ 7.
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The arrest report stated that Johnson actually possessed a firearm
during the commission of the attempted home-invasion robbery. Doc. 20-
1.
Before 	Johnson 	entered 	his 	nolo 	contendere 	plea 	at 	the 	plea
hearing, the State orally amended the information to include citation to
the 	specific 	10-20-Life 	subsection 	of 	the 	statute, 	Fla. 	Stat. 	§
775.087(2)(a)(1). Doc. 20-7 at 3. Johnson swore under oath at the plea
hearing that he was pleading nolo contendere “to the Court in the two-
count information as orally amended by the State. Doc. 20-7 at 3–4.
For all the reasons set forth above, Johnson is not entitled to habeas
relief on Ground Three.
Ground Four 	“Conviction 	obtained 	without 	any 	factual
basis for the crimes listed in the judgment
and sentence” Doc. 1 at 15.
In his final claim, Johnson alleges that the written judgment has
three errors. First, the judgment incorrectly reflects Count 1 of Case No.
2017-CF-3125 as a conviction for violating Fla. Stat. § 787.01(1a3), which
“cites this as a crime committed against a child under the age of 13.” Doc.
1 at 15 (emphasis added). Second, the “conviction papers show [Johnson]
as a child predator.” Id.
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Third, the written judgment incorrectly reflects that in Case No.
2017-CF-3398, 	Johnson 	was 	convicted 	of 	“Agg 	Battery 	w/Firearm;
Discharging 	Firearm” 	in 	violation 	of 	Fla. 	Stat. 	784.045(1a), 	but
Johnson’s nolo contendere plea was to “battery with great bodily harm,
no firearm.” Doc. 1 at 15–16 (emphasis added).
The State argues that Johnson is not entitled to relief because (1)
Johnson procedurally defaulted this claim by failing to raise it on direct
appeal; (2) Johson procedurally defaulted this claim by abandoning it in
his Rule 3.850 proceeding (failing to raise it in the amended motion); and
(3) the claim has no merit. Doc. 20 at 32–35.
Johnson raised the same claim, verbatim, as “Ground 3” of his
original Rule 3.850 motion. Doc. 20-18 at 7. Johnson, however, removed
the claim from his amended Rule 3.850 motion. Doc. 20-20. Nevertheless,
the state circuit court addressed the scrivener’s errors in the written
judgment in its final order denying Johnson’s amended Rule 3.850
motion:
The Court sua sponte finds that the judgment and
sentence should be corrected to reflect the following: (1) the
offense statute number for Count 1 in case number 2017-CF-
3125 is section 787.01(1)(a)2.; (2) the crime for Count 1 in case
number 2017-CF-3398 is aggravated battery with great bodily
harm with no firearm, the offense statute number is section
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784.045(1)(a)1., and the degree of crime is a second-degree
felony; and (3) Defendant is entitled to a total of 808 days of
jail credit in case number 2017-CF-3125 and a total of 778
days of jail credit in case number 2017-CF-3398.
Doc. 20-23 at 4 (footnotes omitted). The First DCA summarily affirmed.
On October 31, 2022, the state court entered an amended judgment
that incorporated the corrections. Doc. 20-10. The amended judgment
accurately reflects that Johnson was convicted in Count 1, Case No. 2017-
CF-3125, of attempted kidnapping under Fla. Stat. § 787.01(1)(a)2. See
Doc. 20-10 at 1. The amended judgment accurately reflects that Johnson
was convicted in Case No. 2017-CF-3398 of aggravated battery with great
bodily harm with no firearm under Fla. Stat. § 784.045(1)(a)1. See Doc.
20-10 	at 	1. 	Contrary 	to 	Johnson’s 	allegation, 	neither 	the 	original
judgment 	nor 	the 	amended 	judgment 	indicates 	that 	Johnson 	was
designated a child predator. See Doc. 20-9; Doc. 20-10.
Because Johnson’s claim was mooted by entry of the amended
judgment and otherwise lacks merit, the District Court should deny relief
on Ground Four.
A CERTIFICATE OF A PPEALABILITY IS N OT WARRANTED
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides: “[t]he district court must issue or deny a
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certificate of appealability when it enters a final order adverse to the
applicant.” If a certificate is issued, “the court must state the specific
issue 	or 	issues 	that 	satisfy 	the 	showing 	required 	by 	28 	U.S.C. 	§
2253(c)(2).” 	28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must
still be filed, even if the court issues a certificate of appealability. See 28
U.S.C. § 2254 Rule 11(b).
“[Section] 2253(c) permits the issuance of a COA only where a
petitioner 	has 	made 	a 	‘substantial 	showing 	of 	the 	denial 	of 	a
constitutional right.’” Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. §
2253(c)). “At the COA stage, the only question is whether the applicant
has shown that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed
further.” Buck v. Davis, 580 U.S. 100, 115 (2017). “When the district court
denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the
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district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (emphasis added). Here, Petitioner has not made the
requisite demonstration. Accordingly, the court should deny a certificate
of appealability in its final order.
“Before entering the final order, the court may direct the parties to
submit arguments on whether a certificate should issue.” 28 U.S.C. §
2254 Rule 11(a). If there is an objection to this recommendation, the
relevant party shall file such an objection with the District Court.
C ONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	DENY the petition for writ of habeas corpus, Doc. 1.
2. 	DENY a certificate of appealability.
3. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 14th day of November 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
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matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this report and recommendation waives the
right to challenge on appeal the District Court’s order
based on unobjected-to factual and legal conclusions.
See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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