           Case: 16-12184   Date Filed: 06/23/2017    Page: 1 of 14




                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-12184
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:13-cv-01860-SDM-EAJ



SHAWN MARTIN,

                                                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 23, 2017)

Before HULL, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Shawn Martin, a Florida prisoner, appeals the denial of his 28 U.S.C. § 2254

habeas corpus petition. Following a probation-revocation hearing in Florida state

court, Martin was sentenced to a 35-year imprisonment term. This Court granted a

certificate of appealability (“COA”) on one issue: whether Martin’s state trial

counsel, Rick Terrana, provided ineffective assistance of counsel at the probation-

revocation hearing by failing to advise Martin of the State’s burden to show that

Martin’s probation violations were “willful and substantial.” After thorough

review, we affirm the district court’s denial of Martin’s § 2254 petition.

                                  I. BACKGROUND

A.     Underlying State Court Convictions

       In Florida state court (the “state trial court”), Martin pled guilty to charges of

lewd or lascivious battery on a child, procurement of a child for prostitution,

possession of photographs depicting sex with a child, promotion of child sex acts,

and possession of child pornography. As part of his plea, Martin agreed to provide

assistance to the State and to law enforcement in exchange for a five-year

maximum term of imprisonment.1 At sentencing, the state trial court sentenced

Martin to a term of 48 months’ imprisonment and 10 years of sex-offender

probation. In June 2004, following his release from prison, Martin began serving

his probationary term.

       1
        Barring the plea agreement, Martin’s Criminal Punishment Code Scoresheet provided
for a minimum permissible sentence of approximately 34 years in prison.
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      In April 2005, the State filed an affidavit alleging that Martin violated his

probation by: (1) leaving the county without the permission of his probation

officer; (2) disregarding his probation officer’s instructions by not traveling

directly from his job to his home; (3) failing to answer truthfully questions about

whether he was driving; and (4) failing to maintain a driving log.

B.    Probation-Revocation Hearing and Sentencing

      On April 21, 2005, the state trial court held a hearing concerning Martin’s

alleged violations of probation. Martin testified, admitting to the four violations

and offering explanations for each of them.

      As to the first violation, Martin testified that he had a travel permit to leave

the county for his job. As to the second violation, Martin testified that, on one

occasion, he made a brief detour on his drive home from work to pick up a lasagna

that his aunt had made for him. As to the third violation, Martin testified that he

was truthful in response to his probation officer’s questions because he had been

receiving rides to work, which he believed was permissible. As to the fourth

violation, Martin testified that his probation officer never presented him with a

driving log to maintain.

      Martin’s probation officer offered contrasting testimony. Martin’s probation

officer testified that Martin made several detours from his job commute, that he

failed to tell the probation officer that he was driving his own car (not merely


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receiving rides from others), and that he was repeatedly informed of the

requirement to maintain a driving log.

       Following the probation officer’s testimony, Martin’s counsel Terrana

argued to the state trial court that Martin’s probation should not be revoked

because Martin’s violations, even if admitted, were not willful and substantial.

Martin’s counsel described Martin’s violations as “a couple of incidents where

driving wasn’t reported or he was driving in an area that he wasn’t supposed to be

driving without consent.” Martin’s counsel suggested that Martin’s violations were

“something other than willful and substantial . . . [because] there is no reason for

him to deceive or engage in a pattern of deception as the State is suggesting.”

       Following the arguments made by Martin’s counsel, the state trial court

revoked Martin’s probation and imposed a sentence of 35 years’ imprisonment. 2

C.     Martin’s State-Court Challenges to His Sentence

       On May 27, 2005, Martin moved to mitigate his sentence or withdraw his

admissions to the probation violations. Martin argued that, at the April 21, 2005

probation-revocation hearing, he did not make a full presentation concerning his

probation violations. Martin also argued that, in the time since the April 21, 2005

hearing, Martin had obtained witnesses who would contradict his probation


       2
        Martin’s Criminal Punishment Code Scoresheet reflected a minimum possible prison
sentence of approximately 34 years’ imprisonment, with a maximum sentence of 85 years’
imprisonment.
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officer’s testimony at the April 21, 2005 hearing. On June 7, 2005, the state trial

court held a hearing on Martin’s motion and denied relief.

      Martin appealed the state trial court’s judgment revoking his probation to the

Florida Second District Court of Appeal (“Second DCA”). On April 18, 2007, the

Second DCA summarily affirmed the state trial court’s judgment. Martin v. State,

954 So. 2d 34 (Fla. Dist. Ct. App. 2007).

D.    Rule 3.850 Motions and Hearing

      On April 17, 2008, Martin filed a motion for postconviction relief, pursuant

to Florida Rule of Criminal Procedure 3.850, in the state trial court. The state trial

court dismissed the motion without prejudice as facially insufficient.

      On June 22, 2009, Martin filed an amended 3.850 motion for postconviction

relief. In the amended motion, Martin argued that he received ineffective assistance

of counsel at his April 21, 2005 probation-revocation hearing because his attorney

Terrana: (1) misadvised him about the sentence he would receive if he admitted to

the probation violations; (2) failed to advise him of the State’s burden to prove that

the alleged violations were willful and substantial; and (3) threatened to withdraw

from the case if Martin did not admit to the violations. Martin asserted that,

because of Terrana’s errors, Martin’s admissions were not made knowingly and

voluntarily. Martin also asserted that, had he known of the State’s burden to prove




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that his probation violations were willful and substantial, he would not have

admitted to the violations.

      On November 17, 2010, the state trial court held an evidentiary hearing on

Martin’s amended 3.850 motion for postconviction relief. Martin testified that,

prior to Martin’s admissions, Terrana assured him that he would be placed back on

probation because the violations were “just . . . technical.” Martin also testified that

Terrana appeared “confused” at the April 21, 2005 probation-revocation hearing

and entered the courtroom “empty-handed” with no files on Martin’s case.

According to Martin, Terrana made no mention of the State’s “willful and

substantial” evidentiary burden until after Martin admitted to the probation

violations.

      Martin also called witnesses to testify about his probation violations. One

witness, Martin’s aunt, testified that she only saw Martin once during his

probationary term, when he briefly came to her house to pick up a lasagna.

Martin’s aunt testified that Martin left her house “within . . . a minute or two” of

arriving.

      Counsel Terrana’s testimony contradicted Martin’s testimony. Terrana

testified that, prior to the April 21, 2005 probation-revocation hearing, he

discussed Martin’s probation violations with him. Terrana testified that Martin

“strategized with [Terrana] about getting a sentence . . . that would allow [Martin]


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in effect to get out because of his credit time.” Terrana also stated that he had been

concerned that, if Martin were to go to a probation-revocation hearing, deny the

violations, and lose, Martin could receive the maximum sentence of 80 years in

prison. Terrana stated that he was in part concerned about this possibility because

he knew the state court trial judge “to be an extremely hard sentencer.” According

to Terrana, he shared this concern with Martin, and the two “agreed . . . that the

best course of action for [Martin] would be to admit to the violations of probation

and . . . explain [the violations] to [the state trial court].” Terrana considered this to

be a “strategic decision” that was calculated to ensure a lesser sentence than what

might result if Martin challenged whether the violations occurred.

      According to Terrana, he also did not assure Martin that Martin would be

reinstated to probation if Martin admitted to the probation violations. Terrana

testified that he only told Martin that such an outcome was possible “given all the

circumstances.” Terrana further stated that, while he did not recall a specific

conversation in which he informed Martin of the State’s “willful and substantial”

evidentiary burden, he believed Martin was aware of this burden because Terrana

“argued [it] over and over to the judge.”

      On February 14, 2011, the state trial court denied Martin’s amended 3.850

motion for postconviction relief, finding that Terrana’s testimony credibly refuted

Martin’s ineffective assistance of counsel claims. The state trial court determined


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that Martin’s decision to admit to the probation violations was “a reasonable

strategic decision under these circumstances.” The state trial court also determined

that, “considering the totality of the circumstances surrounding [Martin’s]

violations and admission, . . . there [was not] a reasonable probability that [Martin]

would have proceeded to a revocation hearing.” Martin appealed the state trial

court decision, but the Second DCA summarily affirmed. See Martin v. State, 111

So. 3d 889 (Fla. Dist. Ct. App. 2013). 3

E.     Section 2254 Petition

       On July 11, 2013, Martin filed a § 2254 petition, claiming ineffective

assistance of counsel in violation of his Sixth Amendment and Fourteenth

Amendment rights. Martin raised allegations about Terrana’s performance, stating

that Terrana never informed him of the State’s “willful and substantial” evidentiary

burden and never investigated potential defenses to the alleged probation

violations. Martin argued that, without that information, he could not make a

knowing and voluntary decision to waive his defenses to the allegations. Martin

also asserted that the state trial court’s conclusion—that Terrana’s performance

was not deficient and that he made a reasonable strategy decision—constituted an



       3
       We need not decide here whether to look through to the state trial court decision or the
summary Second DCA decision because it does not matter to the result. This avoids any
complications whether the Supreme Court agrees or disagrees with our Court’s decision in
Wilson v. Warden, 834 F.3d 1227, 1232-33 (11th Cir. 2016) (en banc), cert granted, 2017 WL
737820 (U.S. Feb. 27, 2017) (No. 16-6855).
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unreasonable application of clearly established federal law and an unreasonable

determination of the facts. The State filed a response, and Martin filed a reply.

       On April 5, 2016, the district court denied Martin’s § 2254 petition. Citing

Jones v. Wainwright, 604 F.2d 414, 416 (5th Cir. 1979), the district court

determined that Martin’s ineffective-assistance claim was not cognizable in a

federal habeas action because there is no Sixth Amendment right to counsel in a

probation-revocation proceeding, despite the fact that Martin had a state-created

right to counsel under Florida law.

       The district court alternatively concluded that Martin failed to meet his

burden under § 2254. The district court did not find Terrana’s performance to be

constitutionally deficient because Terrana’s advised strategy—that Martin admit to

the probation violations in hopes of a lesser sentence—was “a reasonable strategy

under the circumstances.” Additionally, the district court determined that, even if

Terrana never informed Martin of the State’s “willful and substantial” evidentiary

burden, Martin failed to “show that every reasonably competent attorney would

have advised him that his violations were not willful and substantial.” Martin also

did not show that Terrana’s actions impermissibly prejudiced Martin’s case, as

Martin’s claim “ignore[d] the strategy that, by admitting the violations, he was in a

better position to argue that his acts . . . did not warrant the loss of his liberty.”

       This appeal followed.


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                                  II. DISCUSSION

A.    Standard of Review

      In examining the denial of a § 2254 petition, “we review questions of law

and mixed questions of law and fact de novo, and findings of fact for clear error.”

Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007). When a

state court denies relief on a federal constitutional claim, we presume “that the

state court adjudicated the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.” See Harrington v. Richter, 562

U.S. 86, 99, 131 S. Ct. 770, 784-85 (2011). “A state court’s determination that a

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” Id. at 101, 131 S.

Ct. at 786.

      We follow a “general framework of substantial deference” when reviewing

federal issues that state courts have decided. Diaz v. Sec’y for the Dep’t of Corr.,

402 F.3d 1136, 1141 (11th Cir. 2005). To grant a § 2254 petition, we must find

not only that the petitioner’s claims are meritorious, but also that the state court’s

judgment: “(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the


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State court proceeding.” 28 U.S.C. § 2254(d); Guzman v. Sec’y, Dep’t of Corr.,

663 F.3d 1336, 1345-46 (11th Cir. 2011).

B.    Applicable Law

      To make a successful claim of ineffective assistance of counsel, a defendant

must show that: (1) his counsel’s performance was deficient; and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984). Deficient performance is “representation [that]

f[alls] below an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at

2064. Prejudice requires a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

at 694, 104 S. Ct. at 2068. If the defendant fails to satisfy the performance prong,

the court need not address the prejudice prong, and vice versa. See Holladay v.

Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

      When analyzing a claim of ineffective assistance under § 2254(d), this

Court’s review is “doubly” deferential to counsel’s performance and the state

court’s decision. See Harrington, 562 U.S. at 105, 131 S. Ct. at 788. Under this

standard, “the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id.




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       Under Florida law, a defendant’s probation can only be revoked on the basis

of a willful and substantial violation, which must be shown by the greater weight

of the evidence. See Gilbert v. State, 913 So. 2d 84, 87 (Fla. Dist. Ct. App. 2005).

C.     Discussion

       In his brief on appeal, Martin again asserts that Terrana failed to inform him

of the State’s “willful and substantial” evidentiary burden. Martin argues that the

evidence does not support that he understood the law in relation to the facts of his

case. He also suggests that, had he been properly advised, he would have not

admitted to his probation violations.

       However, the state court’s determination was not contrary to, and did not

involve an unreasonable application of, federal law, nor was it based on an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 4 In this case, the

state court considered Martin’s ineffective assistance claim according to

Strickland’s requirements and concluded that Martin did not suffer from

constitutionally deficient counseling.

       Regarding Terrana’s allegedly deficient performance, the state court

considered the full evidentiary record, which included the testimony of Martin,

witnesses such as Martin’s aunt, and Terrana. While the record suggests that


       4
         Because Martin’s ineffective assistance claim fails on the merits, we need not, and do
not, address the district court’s discussion of the scope of the Sixth Amendment right to counsel
at a probation-revocation hearing.
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Terrana could not recall a specific conversation in which he informed Martin of the

State’s “willful and substantial” evidentiary burden, Terrana also testified that he

was “sure” he mentioned it to Martin because “[he] argued that over and over to

the judge. That was [his] argument; [the violations] were not willful and

substantial.” Terrana also testified, and Martin does not dispute, that the two

discussed Martin’s admissions as a strategy designed to improve his chances of

getting a lesser sentence before a judge known for harsh sentencing. “Because

advocacy is an art and not a science, and because the adversary system requires

deference to counsel’s informed decisions, strategic choices must be respected in

these circumstances if they are based on professional judgment.” Strickland, 466

U.S. at 681, 104 S. Ct. at 2061. Given the record evidence demonstrating Terrana’s

research of defense theories, consultation with Martin about those theories, and

resulting strategic advice based on those theories, it was not unreasonable for the

state court to determine that Terrana’s performance did not fall below the

constitutional minimum.

      And even if Terrana’s performance was constitutionally deficient, the state

court also was not unreasonable in determining that no prejudice resulted.

Specifically, the state court determined that “there [was not] a reasonable

probability that [Martin] would have proceeded to a revocation hearing” barring

Terrana’s alleged mistakes. Prior to Martin’s admissions, Terrana informed Martin


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that, if he were to proceed to a probation-revocation hearing, challenge the

violations, and lose, he could face a maximum sentence of 80 years’ imprisonment.

Even assuming arguendo that Martin had been perfectly informed of the State’s

burden to show that his violations were willful and substantial, it is far from clear

from this record that Martin might have preferred to risk receiving such a sentence

instead of attempting to secure a lower sentence by admitting to the technical

violations and offering mitigating explanations. Thus, the state court did not

unreasonably determine that Martin had not carried his burden to show prejudice.

                                III. CONCLUSION

      For all of the above reasons, we affirm the district court’s denial of relief.

      AFFIRMED.




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