                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-12270                   MAR 16, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                D. C. Docket No. 04-01930-CV-T-23-MSS

DALE EDWARD JONES,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (March 16, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Dale Edward Jones appeals the denial of his petition for a writ of habeas

corpus. 28 U.S.C. § 2254. We granted a certificate of appealability to resolve two

issues: (1) whether “the district court correctly applied the deferential standard of

review set out in 28 U.S.C. § 2254(d)(1)” when the record was unclear whether the

state court had considered Jones’s argument that he declined an offer to plead

guilty based on the advice of counsel to consolidate his criminal charges; and (2)

whether “the district court erred in denying [Jones’s] claim that his trial counsel

was ineffective for failing to correctly advise him regarding the maximum possible

sentence he faced if he declined the state’s plea offer and went to trial.” We

affirm.

                                 I. BACKGROUND

      Jones was charged in two separate informations with five counts of lewd and

lascivious acts against a minor, C.C., and four counts of lewd and lascivious acts

against another minor, T.B. Fla. Stat. § 800.04. Jones moved to consolidate the

cases because the “offenses charged” were “allegedly based on two or more

connected or related acts.” A Florida court granted Jones’s motion.

      Before trial, the state offered to recommend a sentence of fifteen years of

imprisonment in exchange for Jones’s plea of guilt. Jones rejected the offer. A

jury convicted Jones of five counts involving C.C. and three counts involving T.B.



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      At the sentencing hearing, Jones asked the trial court to impose concurrent

minimum sentences of imprisonment. Jones argued that the offenses involved an

ongoing criminal episode and the trial court could not enhance his sentence as an

habitual offender and impose consecutive sentences. The trial court sentenced

Jones as an habitual offender to concurrent sentences of thirty years of

imprisonment for the crimes against C.C. to run consecutive to a sentence of ten

years of imprisonment for the crimes against T.B., followed by five years of

supervised probation. The state appellate court affirmed Jones’s convictions and

sentences. See Jones v. State, 719 So. 2d 899 (Fla. Dist. Ct. App. 1998).

      Jones later filed in a Florida court a motion for post-conviction relief. Jones

alleged ineffective assistance of appellate counsel. See Fla. R. Crim. P. 3.850. The

court denied relief, and the appellate court affirmed.

      In 1999, Jones filed in a Florida court a second motion for post-conviction

relief. Jones argued that counsel was ineffective for failing to provide accurate

information necessary to evaluate the offer to plead guilty. Jones alleged that trial

counsel advised him that if he were to consolidate his criminal charges, he would

receive a maximum sentence of concurrent thirty-year terms of imprisonment, but

if he were convicted in separate trials, he could receive consecutive thirty-year

sentences. Jones made equivocal statements about whether he would have pleaded



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guilty if counsel had told him he faced a sentence greater than thirty years of

imprisonment. Jones asserted that he would have accepted the offer to plead

guilty, but stated in a footnote that “the (15) years would have been easier to

consider if [he] knew he was facing (60) years as opposed to the (30) . . . years [he]

was led to believe he was facing . . . .” Jones later stated that he would have

“definitely opted to have separate trials.” Jones requested that he receive new

separate trials or “in the alternative, an opportunity to re-negotiate a plea.”

      The trial court denied Jones’s second motion. The court interpreted Jones’s

argument as alleging that counsel was ineffective for advising Jones to consolidate

his criminal charges. The court ruled that counsel’s decision to consolidate “was

within the broad range of reasonably competent performance” and that Jones was

not prejudiced because, even if the cases had been tried separately, “the outcome at

trial would not have been any different.”

      Jones moved for rehearing and asked the trial court to consider his argument

that he declined the offer to plead guilty based on counsel’s advice. The court

issued an order in which it identified both of Jones’s arguments, but the court

repeated its previous ruling. Jones appealed and the state appellate court affirmed

summarily.

      Jones filed a federal petition for a writ of habeas corpus and raised both



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grounds of ineffectiveness of trial counsel. The district court found that counsel’s

advice to consolidate was a reasonable “trial strategy,” and, even if unreasonable,

Jones failed to prove that, but for counsel’s advice he would have accepted the

offer to plead guilty. The district court concluded that “[b]ased on the bare

allegations presented to support this claim, the state court’s rejection of this claim

amounts to neither an unreasonable application of Strickland nor an unreasonable

determination of the facts.”

                           II. STANDARD OF REVIEW

      We review de novo the denial of a petition for a writ of habeas corpus.

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2006). An issue of

ineffective assistance of counsel presents a mixed question of law and fact that we

review de novo. Id.

                                  III. DISCUSSION

      A petitioner is entitled to a writ of habeas corpus if the state court reached a

decision that was “contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1). When the state court fails to

rule on the merits of the argument, we are not required to defer to the decision of

the state court. See Davis v. Sec’y for the Dep’t of Corr., 341 F.3d 1310, 1313

(11th Cir. 2003). Because the state court did not address the merits of Jones’s



                                           5
argument that but for counsel’s advice he would have accepted the offer to plead

guilty, we review this issue with no deference to the state court decision. We

nonetheless conclude that Jones is not entitled to habeas relief.

      To establish ineffective assistance of counsel, a petitioner must prove that

counsel provided deficient representation and that the petitioner was prejudiced by

the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984); Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.

1990). A petitioner satisfies the prejudice element if he establishes that “counsel’s

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at

686, 104 S. Ct. at 2064. In the context of a guilty plea, the prejudice inquiry

“focuses on whether counsel’s constitutionally ineffective performance affected the

outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366,

370 (1985). To establish prejudice after the petitioner has rejected an offer to

plead guilty, the petitioner must “establish a reasonable probability that, absent

counsel’s alleged ineffective assistance, he would have accepted the plea

agreement.” Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991); accord

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995).

      Jones contends that counsel gave erroneous advice that prejudiced the



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outcome of his case. Jones argues that counsel advised him that he would receive

after trial a maximum sentence of thirty years of imprisonment if he consolidated

his charges when in fact he might have received a sixty year sentence. Jones

argues that, but for counsel’s advice, he would have accepted the offer to plead

guilty to fifteen years of imprisonment. Jones’s argument fails.

       The record supports the finding of the district court that Jones was not

prejudiced by counsel’s advice because Jones failed to establish that he would have

pleaded guilty had he been advised correctly about the punishment he faced. See

Diaz, 930 F.2d at 835 (“[A]fter the fact testimony concerning [the] desire to plead,

without more, is insufficient to establish that but for counsel’s alleged advice or

inaction, [the defendant] would have accepted the plea offer.”). Jones stated in his

petition for a writ of habeas corpus that counsel’s advice “played a key part,” not

that it was the deciding factor that motivated him to reject the offer to plead guilty.

Jones told the state courts that, had he known he faced consecutive sentences of

imprisonment, he would have demanded separate trials, and Jones requested new

trials as a remedy for counsel’s allegedly deficient conduct, even though Jones

would again face a potential sixty year sentence after separate trials. The record

establishes that Jones wanted and is still willing to risk greater punishment for the

possibility of an acquittal.



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                       IV. CONCLUSION

The denial of Jones’s petition is AFFIRMED.




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