           Case: 13-15223    Date Filed: 06/24/2015   Page: 1 of 13


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-15223
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 8:13-cv-00489-JSM-TBM



LESTER FISHER,

                                                            Petitioner-Appellant,

                                   versus

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

                                                        Respondents-Appellees.

                        ________________________

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

                               (June 24, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Petitioner Lester Fisher, a Florida state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition. In support of his claim for

habeas relief, Petitioner argues that trial counsel was ineffective for failing to

advise him during plea negotiations that he faced a potential 40-year sentence, with

a 30-year mandatory minimum, if sentenced as a Violent Career Criminal

(“VCC”), and that as a result, he chose to reject the more favorable plea offer made

by the State of Florida (“the State”) and to proceed to trial. The Florida court

rejected Petitioner’s ineffective assistance argument in state post-conviction

proceedings, finding after a hearing that he had failed to show prejudice. We agree

with the district court that the Florida court’s decision was based neither on an

unreasonable determination of the facts nor on an unreasonable application of

clearly established federal law. Accordingly, we affirm.

                                   I. Background

      A.     State Criminal Conviction

      In March 2005, Petitioner was charged in a Florida state court with one

count of second-degree robbery. Around the same time, Petitioner was separately

charged with three additional robberies, as well as burglary and possession of

drugs and drug paraphernalia. After unsuccessful global plea negotiations,

Petitioner proceeded to trial in the second-degree robbery case (which is the only

conviction at issue in this habeas petition and appeal), and a jury found him guilty.


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The Florida court found that Petitioner qualified as a VCC based on his criminal

history, and imposed the maximum sentence available under the VCC statute: 40

years in prison, with a minimum of 30 years to serve. The Florida appellate court

affirmed Petitioner’s conviction and sentence on direct appeal.

       B.      State Post-Conviction Proceedings

       In October 2007, Petitioner filed a motion for state post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Among numerous other

grounds for relief asserted in his Rule 3.850 motion, Petitioner argued that his

attorney was ineffective by failing to advise Petitioner prior to trial that, if

convicted, he potentially faced a 40-year maximum sentence, with 30 years

mandatory to serve, as a VCC. Petitioner argued further that, had he been aware of

his eligibility for VCC status, and of the maximum and mandatory minimum

sentence associated with that status, he would have accepted the State’s plea offer

of a 15-year sentence to resolve all of the charges against him. 1

       The Florida court held an evidentiary hearing on Petitioner’s ineffective

assistance claim, at which both Petitioner and his trial counsel, Maria Pavlidis,

testified. Petitioner indicated in his testimony that Pavlidis had advised him of the



       1
           The record indicates that the State offered Petitioner an 18-year and then a 15-year
sentence. Petitioner testified at his Rule 3.850 evidentiary hearing that the State made separate
18-year and 15-year plea offers. However, his trial counsel’s testimony and notes only reflected
an 18-year offer. For ease of reference, and to give Petitioner the benefit of the doubt, we will
refer to the plea offer as being for a 15-year sentence.
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15-year plea offer, and had told him about several sentencing enhancements that

would potentially apply if he rejected the offer, including the Habitual Felony

Offender (“HFO”) enhancement, the Prison Release Reoffender (“PRR”)

enhancement, and the Habitual Violent Felony Offender (“HVFO”) enhancement.

Petitioner testified that, based on his discussions with Pavlidis, he understood that

he would likely face a sentence of 30 years in prison if convicted on the second-

degree robbery charge. However, Petitioner stated that Pavlidis neglected to tell

him about his potential VCC status, and he was thus unaware that he actually faced

a 40-year sentence, with 30 years minimum to serve. Petitioner testified that he

would have accepted the State’s 15-year plea offer if he had known the full extent

of his exposure under the VCC statute.

      Pavlidis acknowledged in her testimony that she had not explained the VCC

enhancement to Petitioner prior to trial because she was unaware that the State

would pursue such an enhancement. She testified, however, that she had discussed

with Petitioner the fact that he faced a maximum sentence of 85 years on all of his

charges without any enhancements, and that Petitioner could potentially be

sentenced to 30 years for each robbery as a Habitual Violent Felon, resulting in a

total of 120 years if the sentences on each robbery charge were imposed

consecutively. Pavlidis testified further that she had advised Petitioner that the

trial court might well impose maximum, consecutive sentences on each robbery


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count because of his lengthy criminal record, which included 20 or 21 prior

robberies. According to Pavlidis, the State’s 15-year offer would have disposed of

all four of Petitioner’s pending robbery charges, in addition to the other charges

against him.

      Based on the above testimony, the Florida court denied Petitioner’s

ineffective assistance claim. Specifically, the Florida court found that Petitioner

could not demonstrate that he was prejudiced by trial counsel’s alleged deficiency

in failing to inform him about the sentencing consequences of a VCC

enhancement. In reaching this conclusion, the Florida court found it significant

that Petitioner had rejected the State’s 15-year plea offer to resolve all of his

pending cases, despite knowing that he faced a maximum exposure that was

significantly higher than the 40-year sentence he received as a VCC. Given that

fact, the Florida court found that Petitioner’s testimony that he would have

accepted the plea offer if he had known about the VCC enhancement was not

credible. Petitioner appealed this decision to the Florida appellate court, which

affirmed without opinion.

      C.       Federal Habeas Petition

      Petitioner subsequently filed the present § 2254 petition, asserting multiple

grounds for relief. As relevant to this appeal, Petitioner alleged that trial counsel

was ineffective for failing to advise him of his eligibility for VCC status and the


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sentencing implications of that status. The district court denied the petition on all

grounds, specifically concluding that the Florida court’s decision on the ineffective

assistance claim was not based on an unreasonable determination of the facts or an

unreasonable application of clearly established federal law. This Court granted a

certificate of appealability as to whether Petitioner’s trial counsel “was ineffective

for misadvising him of his potential sentencing exposure.”

                                   II. Discussion

      A.     Standard of Review

      We review a district court’s denial of a habeas petition under 28 U.S.C.

§ 2254 de novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245

(11th Cir. 2014). Although we review the district court’s factual findings for clear

error, we review its rulings on questions of law and mixed questions of law and

fact de novo. Id. An ineffective assistance claim “presents a mixed question of

law and fact that we review de novo.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d

1254, 1261 (11th Cir. 2014).

      B.     Availability of Federal Habeas Relief

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets

a high bar for granting federal habeas relief on a claim that the state court has

adjudicated on the merits. See White v. Woodall, 134 S. Ct. 1697, 1702 (2014)

(noting the difficulty of obtaining habeas relief under AEDPA); Harrington v.


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Richter, 562 U.S. 86, 102 (2011) (“If this standard is difficult to meet, that is

because it was meant to be.”). Under AEDPA, a federal court may only grant

habeas relief on such a claim if the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established [f]ederal law” or “was

based on an unreasonable determination of the facts in light of the evidence

presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d). As discussed

below, neither requirement is met in this case.

             1.     The Florida court’s decision that Petitioner failed to show
                    prejudice is not based on an unreasonable determination of the
                    facts in light of the evidence presented.

      To prevail on this prong of § 2254(d), a petitioner must do more than

convince the federal habeas court that it would have made a different factual

determination than the state court. Landers v. Warden, Att’y Gen. of Ala., 776 F.3d

1288, 1294 (11th Cir. 2015). Instead, the petitioner must satisfy the “substantially

higher threshold” of showing that the state court’s factual determination was

“objectively unreasonable” based on the evidence presented in the state court

proceeding. Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007) and

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)) (internal quotation marks

omitted). The Supreme Court has found that this standard was satisfied when “the

direction of the evidence, viewed cumulatively, was ‘too powerful to conclude

anything but’” a petitioner’s factual claim. Id. (quoting Miller-El v. Dretke, 545


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U.S. 231, 265 (2005)). We have further explained that a state court’s factual

finding is unreasonable if “no ‘fairminded jurist’ could agree” with it. Id. (quoting

Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012)).

      Petitioner contends that the Florida court’s prejudice ruling was based on an

unreasonable determination that Petitioner was aware that his exposure on the one

second-degree robbery charge that he took to trial was 85 to 120 years in prison.

However, read in context, it is clear that what the Florida court actually found was

that Petitioner rejected the 15-year plea offer knowing that his maximum exposure

on all of his pending charges, including the four robberies and the burglary and

drug possession charges, was 85 to 120 years. That finding was reasonable, as it

was directly supported by Pavlidis’s testimony that she advised Petitioner during

the plea negotiations that he faced a maximum unenhanced sentence of 85 years on

all of his cases, and an enhanced sentence of 30 years on each robbery that, if

imposed consecutively, would amount to 120 years.

      Petitioner alternatively suggests that it was unreasonable for the Florida

court to consider his knowledge about the maximum sentence that could be

imposed if convicted in all of his cases to determine whether he was prejudiced in

this case. We disagree. To establish prejudice, Petitioner had to demonstrate a

reasonable probability that he would have accepted the plea if he had been advised

about the maximum 40-year sentence and the 30-year mandatory minimum


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applicable under the VCC statute. See Lafler v. Cooper, 566 U.S. __, 132 S. Ct.

1376, 1385 (2012) (holding that to show prejudice in the context of a foregone

guilty plea, a petitioner must show, inter alia, that, but for the ineffective

assistance of counsel, there is a reasonable probability that he would have accepted

the plea offer); Osley v. United States, 751 F.3d 1214, 1223 (11th Cir. 2014)

(affirming the denial of a § 2255 motion to vacate on the ground that the movant

failed to establish a reasonable probability that he would have accepted a plea offer

because he had already refused to accept a deal that proposed a significantly lower

sentence). The fact that Petitioner rejected a 15-year plea offer to dispose of

numerous cases that he knew potentially carried a 120-year combined sentence is

unquestionably relevant to this inquiry. 2 See Osley, 751 F.3d at 1224 (finding that

the movant’s claim that he would have accepted a plea offer had he known that he

faced a guideline range of up to 262 months, instead of 121 months, and included a

15-year mandatory minimum, was undermined by the fact that he turned down a

plea of 70-87 months knowing his maximum exposure at trial was life

imprisonment); cf. Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003)

(“Other panels in this and other circuits have pointed to the disparity between the

plea offer and the potential sentence exposure as strong evidence of a reasonable

       2
           Petitioner notes that one of his robbery charges was dismissed before trial. Assuming
that is true, and that the 15-year plea deal was still an offer to resolve the remaining cases,
Petitioner still decided to forego the offer knowing that he faced 90 years on the remaining three
robbery charges.
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probability that a properly advised defendant would have accepted a guilty plea

offer.”).

       Finally, Petitioner argues that the Florida court’s credibility finding was

unreasonable because his testimony that he would have accepted the plea offer if

he had been advised about his sentencing exposure as a VCC was “uncontested.”

This argument mischaracterizes the evidence presented at the state post-conviction

hearing. Although Petitioner did testify that he would have accepted the plea if he

had been aware of the 40-year maximum/30-year mandatory minimum sentence

that could be imposed under the VCC statute, his credibility on that point was

called into question by Pavlidis’s testimony that: (1) Petitioner rejected the State’s

15-year plea offer in spite of her advice (a) that he could potentially be sentenced

to 120 years if convicted in all of the cases that the plea would resolve and (b) that

the trial court might well impose maximum, consecutive sentences in each case,

given Petitioner’s lengthy prior record (which included 20 robberies); (2)

Petitioner stated unequivocally that he would not accept any sentence that required

more than five years in prison; and (3) Petitioner’s steadfast refusal to accept more

than five years in prison ended plea negotiations. Based on Pavlidis’s testimony,

the Florida court reasonably found that Petitioner’s claim that he would have

accepted the 15-year plea offer if he had been aware of the potential VCC

enhancement was not credible. See Bishop v. Warden, GDCP, 726 F.3d 1243,


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1259 (11th Cir. 2013) (concluding that, absent clear and convincing evidence, this

Court has no power to revisit the state court’s credibility determinations).

             2.     The Florida court did not unreasonably apply clearly
                    established federal law.

      A state court decision is “contrary to” clearly established federal law if it

applies a rule that contradicts the governing Supreme Court precedent or arrives at

a different result than the Supreme Court in the face of materially indistinguishable

facts. Burton v. Comm’r, Ala. Dep’t of Corr., 700 F.3d 1266, 1269 (11th Cir.

2012). An “unreasonable application” of clearly established federal law occurs if

the state court correctly identifies the governing legal principle from Supreme

Court precedent but “unreasonably applies it to the facts of the particular case.” Id.

(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)) (quotation marks omitted).

Relief is not available under this prong of § 2254(d) if the state court’s application

of federal law is “merely wrong.” Woodall, 134 S. Ct. at 1702. Rather, the

application must be “objectively unreasonable” to warrant relief. Id. (the state

court’s error must be “well understood and comprehended in existing law beyond

any possibility for fairminded disagreement”).

      The Florida court’s decision clearly was not “contrary” to federal law, as it

correctly identified the governing legal principles from the relevant Supreme Court

authority. In Strickland v. Washington, the Supreme Court held that, to prevail on

a claim of ineffective assistance of counsel, a petitioner must demonstrate that (1)
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counsel’s performance was deficient, falling below an objective standard of

reasonableness, and (2) the petitioner suffered prejudice as a result of the deficient

performance. 466 U.S. 668, 687-88 (1984). The Supreme Court later clarified

that, to show prejudice in the context of a foregone guilty plea, the petitioner must

show that he would have accepted the plea offer but for the ineffective advice of

counsel. Lafler, 566 U.S. at ___, 132 S. Ct. at 1385.

       While the Florida court did not cite to either Strickland or Lafler, 3 it

determined that Petitioner had to show prejudice in order to prevail on his claim, as

required by Strickland. The Florida court further determined that in order to

establish prejudice, Petitioner had to show a reasonable probability that he would

have accepted the plea, as required by Lafler. Accordingly, the court correctly

identified the governing legal principles, and thus, its decision was not contrary to

federal law. Petitioner does not cite any materially indistinguishable Supreme

Court cases that arrive at a different result.

       Neither was the Florida court’s prejudice determination an “unreasonable

application” of federal law. In denying Petitioner’s Rule 3.850 motion, the Florida


       3
          In fact, the Florida court could not have cited to Lafler as that case was decided in
March 2012, and the Florida court issued its decision in January 2011. However, the Florida
court nevertheless applied the principle set forth in Lafler, as the decision in Lafler confirmed
this Court’s approach to prejudice in previous cases examining the question of prejudice in a
guilty plea context. See Coulter v. Herring, 60 F.3d 1499, 1503-04 (11th Cir. 1995) (holding
that to succeed on an ineffective assistance of counsel claim based on a foregone guilty plea, a
petitioner must show that there was a reasonable probability that, but for counsel’s errors, he
would have pleaded guilty and not insisted on going to trial).
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court did not consider whether counsel’s performance was deficient, but instead

denied Petitioner’s claim based solely on Strickland’s prejudice prong. Such an

approach does not make the determination unreasonable, as we have held that if

the petitioner makes an insufficient showing on the prejudice prong, the court need

not address the performance prong, and vice-versa. See Holladay v. Haley, 209

F.3d 1243, 1248 (11th Cir. 2000).

      Finally, and as discussed above, the Florida court reasonably found, based

on the evidence presented, that Petitioner could not show that he would have

accepted the plea offer had he known of the 40-year maximum/30-year mandatory

minimum sentences applicable under the VCC. Such a showing is required by

Lafler. Accordingly, Petitioner cannot prevail on the “unreasonable application”

prong of § 2254(d).

                                  III. Conclusion

      For the reasons stated above, we affirm the denial of Petitioner’s § 2254

petition for a writ of habeas corpus.

      AFFIRMED.




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