Case: 18-10801 Date Filed: 04/15/2020 Page: 1 of 35 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-10801 ________________________ D.C. Docket No. 2:17-cv-14117-RLR JAMES BUHS, Petitioner - Appellant, versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 15, 2020) Before JORDAN, JILL PRYOR, and WALKER, ∗ Circuit Judges. PER CURIAM: ∗Honorable John M. Walker, Jr., Senior United States Circuit Judge for the Second Circuit, sitting by designation. Case: 18-10801 Date Filed: 04/15/2020 Page: 2 of 35 James Buhs, a Florida prisoner serving a 25-year sentence following his guilty plea and conviction for morphine trafficking, being a felon in possession of firearms, and the unlawful sale of fireworks in violation of a county ordinance, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. In his petition, Mr. Buhs raised one claim of ineffective assistance of counsel. He alleged that his attorney failed to inform him of a prescription defense to the charge of morphine trafficking, and that he would not have pled guilty to that charge—which carried a statutory minimum sentence of 25 years—but for his attorney’s deficient advice. We conclude that the state post-conviction court’s adjudication of this claim was based on an unreasonable determination of facts under § 2254(d)(2). We therefore review Mr. Buhs’ ineffectiveness claim de novo. As Mr. Buhs acknowledges, the record in this case regarding his counsel’s performance has not been developed. Because his allegations remain untested, we remand for the district court to hold an evidentiary hearing and allow Mr. Buhs and the state an opportunity to develop the record. I After an informant provided a tip that Mr. Buhs was selling fireworks from his home and possessed automatic firearms, detectives investigated and discovered that Mr. Buhs was a convicted felon and did not have fireworks permits. The detectives obtained a warrant to search his home and discovered $4,000 in cash, 2 Case: 18-10801 Date Filed: 04/15/2020 Page: 3 of 35 thousands of pounds of fireworks, chemicals for making fireworks, and a cache of firearms and ammunition. In an air conditioning vent, they also found a bottle with 215mL of liquid morphine, three prescription bottles containing 90.1 grams of morphine pills, and other prescription bottles containing alprazolam, amotripoline, tizanidine, and cyclobenzaprine. Mr. Buhs was arrested and, soon after, hired a private defense attorney, Paul Auerbach. A Two weeks after the arrest, Florida charged Mr. Buhs in an information with being a felon in possession of firearms and ammunition in violation of Fla. Stat. § 790.23; trafficking morphine in violation of Fla. Stat. § 893.135(1)(c)(1); unlawful possession of alprazolam, a controlled substance, in violation of Fla. Stat. § 893.13(6)(a); and the unlawful sale of fireworks in violation of a county ordinance. Mr. Buhs entered into a plea agreement with the state in which he would plead guilty to the charges, refrain from challenging the search warrant, and ...
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