              Case: 16-11756     Date Filed: 02/27/2018   Page: 1 of 5


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-11756
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:14-cv-00458-EAK-EAJ

JAMES DUFFY,

                                                                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
                         ________________________

                                (February 27, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      James Duffy, a Florida prisoner serving a fifteen-year imprisonment

sentence for trafficking in methamphetamine or amphetamine, appeals the denial

of his 28 U.S.C. § 2254 petition, which had raised, in relevant part, a claim that his
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trial counsel had rendered ineffective assistance by failing to discuss the pros and

cons of his plea offer. The district court denied Duffy’s petition as to that issue

because the claim had been procedurally defaulted in the state court. Duffy argues

on appeal that, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), the procedural

default should be excused and that his claim of ineffectiveness of his trial counsel

should be considered on the merits because his post-conviction counsel was

ineffective for failing to raise that issue in the original state post-conviction

proceeding. After careful review, we affirm.

      When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). We may

affirm the denial of habeas relief for any ground supported by the record. Trotter

v. Sec’y, Dep’t of Corrs., 535 F.3d 1286, 1291 (11th Cir. 2008).

      Under Martinez, a prisoner may establish cause for the default of a claim of

ineffective assistance of trial counsel by showing that: (1) post-conviction counsel

was ineffective under the two-prong test of Strickland v. Washington, 466 U.S.

668 (1984); and (2) the defaulted claim is a “substantial one,” which means that the

prisoner must show that “the claim has some merit.” Martinez, 566 U.S. at 14. A

defaulted claim is substantial if the resolution of its merits would be debatable

among jurists of reason. Miller–El v. Cockrell, 537 U.S. 322, 336 (2010).


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      To make a successful claim of ineffective assistance of counsel under

Strickland, a defendant must demonstrate both that (1) his counsel’s performance

was deficient, and (2) the deficient performance prejudiced his defense. 466 U.S.

at 687. First, deficient performance requires showing that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed the defendant

by the Sixth Amendment. Id. The burden is on a petitioner to prove, by a

preponderance of competence evidence, that counsel’s performance was

unreasonable. Putman v. Head, 268 F.3d 1223, 1243 (11th Cir. 2001).

      Second, prejudice occurs when 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. If a plea offer has been rejected due to

counsel’s allegedly deficient performance, a defendant shows prejudice by

demonstrating a reasonable probability that: (1) he would have accepted the earlier

plea offer had he been afforded effective assistance of counsel during plea

negotiations; (2) the plea would have been entered without the state canceling it or

the trial court refusing to accept it; and (3) the end result of the criminal process

would have been more favorable by reason of a plea to a lesser charge or a

sentence of less prison time. Lafler v. Cooper, 566 U.S. 156, 164 (2012).

      In this case, Duffy has failed to satisfy the standard set forth in Martinez. As

for its first prong, Duffy must show that his post-conviction counsel was


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ineffective under Strickland for failing to raise in Duffy’s first Rule 3.850 motion

the issue of trial counsel’s ineffectiveness. Martinez, 566 U.S. at 14. In relevant

part, Duffy argues that his post-conviction counsel should have argued that his trial

counsel was ineffective when it failed to properly advise him regarding the state’s

plea offer, which was a four-year sentence in exchange for his guilty plea. Duffy

says that, when the offer was made by the state, defense counsel told him about the

offer and told him to think about it, without advising him of the “pros and cons” of

the offer. Duffy claims that if he had been fully advised of the offer, he would

have pled guilty and not gone to trial.

      However, Duffy has not met his burden of showing that his post-conviction

counsel was ineffective for failing to raise his trial counsel’s ineffectiveness. Id.

While Duffy alleges that he would have accepted the plea offer if he had known

more information, he offers nothing indicating -- much less showing a reasonable

probability -- that he had any intent to plead guilty. See Lafler, 566 U.S. at 164.

Nor has Duffy has cited to anything suggesting that the trial court would have

accepted the negotiated plea of a four-year sentence, especially when the

mandatory-minimum sentence was fifteen years’ imprisonment. See Lafler, 566

U.S. at 164; Putman, 268 F.3d at 1243. Indeed, we’ve held that a defendant failed

to satisfy Lafler where, as here, the district court could not have sentenced him to

the prosecutor’s recommended sentence under the plea, since it was less than the


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mandatory minimum. See Osley v. United States, 751 F.3d 1214, 1225 (11th Cir.

2014) (citing United States v. Castaing–Sosa, 530 F.3d 1358, 1360 (11th Cir.

2008) (“It is well-settled that a district court is not authorized to sentence a

defendant below the statutory mandatory minimum unless the government filed a

substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. §

5K1.1 or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).”)).

         As for the second prong of Martinez, even if Duffy’s allegations are

sufficient to demonstrate deficient performance on the part of post-conviction

counsel, Duffy has failed to demonstrate that his underlying claim of ineffective

assistance of trial counsel is “substantial.” To do so, he would need to show that

his claim has merit, yet as we’ve already explained, he has not done so. See

Martinez, 566 U.S. at 14; Miller–El, 537 U.S. at 336. Indeed, he has failed to

demonstrate that his trial counsel was deficient, or that the alleged deficiency

prejudiced him. See Strickland, 466 U.S. at 687-90; Putman, 268 F.3d at 1243.

Because he did not meet this burden, he did not meet the standard in Martinez to

excuse the procedural default. See Putman, 268 F.3d at 1243; Martinez, 566 U.S.

at 14.

         AFFIRMED.




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