United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
initiated this case by filing a pro se petition for
a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No.
1.) In his petition, Petitioner contends that his trial
counsel was ineffective based on three grounds.
(Id.) Respondent filed a response, ECF No. 13, along
with relevant portions of the state-court record. (ECF Nos.
13-1-13-3.) Upon due consideration of the petition, response,
and state-court record, the undersigned recommends that the
petition be denied.
of State-Court Proceedings
August 2011 Petitioner was charged with burglary of an
occupied dwelling (Count 1) and grand theft (Count 2). (ECF
No. 13-1 at 14.) Petitioner proceeded to a jury trial on his
charges in February 2012, and he was found guilty as charged.
(Id. at 37.) At sentencing, the trial court found
that Petitioner qualified for sentencing as a Prison Releasee
Reoffender, and he was sentenced to 15 years in prison for
Count 1 and five years in prison for Count 2, to run
concurrent with the sentence for Count 1. (Id. at
filed a motion to correct illegal sentence under Florida Rule
of Criminal Procedure 3.800(b)(2) in November 2012. (ECF No.
13-2 at 259-62.) The trial court denied that motion on
November 13, 2012. (Id. at 266-67.)
filed a direct appeal to the First District Court of Appeal
(“First DCA”) on November 30, 2012. (ECF No. 13-3
at 8-21.) The First DCA per curiam affirmed without
opinion on July 3, 2013, and the mandate followed on July 19,
2013. (Id. at 32, 34.)
then filed multiple motions for post-conviction relief, which
were stricken. (Id. at 41-124, 160-61.) The trial
court ruled on his fourth amended motion for post-conviction
relief, denying the motion on November 21, 2014.
(Id. at 153-59.) Petitioner appealed the denial of
his motion to the First DCA, which per curiam
affirmed without opinion on February 26, 2015. (Id.
at 218.) The mandate followed on March 24, 2015.
(Id. at 217.)
12, 2014, Petitioner filed a petition alleging ineffective
assistance of appellate counsel with the First DCA.
(Id. at 219-27.) The First DCA denied this petition
on the merits on July 3, 2014. (Id. at 238.)
then submitted the instant petition to prison officials for
mailing on April 3, 2015. (ECF No. 1.)
2254 Standard of Review
role of a federal habeas court when reviewing a state
prisoner's application pursuant to 28 U.S.C. § 2254
is limited. Williams v. Taylor, 529 U.S. 362, 403-04
(2000). Under section 2254(a), federal courts “shall
entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgement of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
federal courts must give deference to state court
adjudications unless the state court's adjudication of
the claim is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
regard to factual findings, under 28 U.S.C. §
2254(d)(2), a federal court may not grant a state
prisoner's application for a writ of habeas corpus based
on a claim already adjudicated on the merits in state court
unless that adjudication “resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” Under § 2254(e)(1), the petitioner
must advance clear and convincing evidence that the state
court's factual determination was “objectively
unreasonable” to rebut the presumption that the
determination was correct. Gill v. Mecusker, 633
F.3d 1272, 1287 (11th Cir. 2011); 28 U.S.C. §
2254(e)(1). “‘[A] state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.'” Burt v. Titlow, 134
S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S.
290, 301 (2010)).
legal findings, as mentioned above, a petitioner is entitled
to federal habeas relief only if the state court's
adjudication of the merits of the federal claim
“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.” § 2254(d)(1). “[C]learly
established Federal law, as determined by the Supreme Court
of the United States, ” refers only to holdings (rather
than dicta) of the Supreme Court, but decisions of
lower federal courts may be considered to the extent that
they demonstrate how those courts applied Supreme Court
holdings. Hawkins v. Alabama, 318 F.3d 1302, 1309
(11th Cir. 2003); see also Carey v. Musladin, 549
U.S. 70, 74-77 (2006).
§ 2254(d)(1)'s ‘contrary to' clause, we
grant relief only ‘if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of
materially indistinguishable facts.'” Jones v.
GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014)
(alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)). For §
2254(d)(1), clearly established federal law includes only the
holdings, not the dicta of Supreme Court decisions. White
v. Woodall, 134 S.Ct. 1697, 1702 (2014). “Under
§ 2254(d)(1)'s ‘unreasonable application'
clause, we grant relief only ‘if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's
case.'” Jones, 753 F.3d at 1182
(alteration in original) (quoting Williams, 529 U.S.
Supreme Court has interpreted § 2254(d) as requiring
that “a state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011).
“[A]n ‘unreasonable application' of [Supreme
Court] holdings must be ‘objectively unreasonable,
' not merely wrong; even ‘clear error' will not
suffice.” Woodall, 134 S.Ct. at 1702. In other
words, Petitioner must establish that no fairminded jurist
would have reached the Florida court's conclusion.
See Richter, 562 U.S. at 102-03; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257-58
(11th Cir.2012). “If this standard is difficult to
meet, that is because it was meant to be.”
Richter, 562 U.S. at 102.
light of Gill, the “unreasonable determination
of facts” standard plays a limited role in habeas
review because the district court considers the
reasonableness of the trial court's fact-finding only to
the extent that the state court's ultimate conclusion
relied on it. 633 F.3d at 1292. A federal habeas court can
consider the full record before it to answer “the only
question” that matters: “whether the state
court's determination [was] objectively
unreasonable.” Id. at 1290.
Assistance of Counsel
Petitioner's claims allege ineffective assistance, a
review of the applicable law is necessary. Under
Strickland v. Washington, to prevail on a
constitutional claim of ineffective assistance of counsel, a
defendant must demonstrate that (1) his counsel's
performance was below an objective and reasonable
professional norm, and (2) he was prejudiced by this
inadequacy. Strickland, 466 U.S. 668, 686-96 (1984).
The court may dispose of the claim if a defendant fails to
carry his burden of proof on either the performance or the
prejudice prong. Id. at 697.
counsel's performance was unreasonable, a defendant must
establish that “no competent counsel would have taken
the action that his counsel did take.” Grayson v.
Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis
omitted). “The relevant question is not whether
counsel's choices were strategic, but whether they were
reasonable.” Roe v. Flores-Ortega, 528 U.S.
470, 481 (2000). There are no “absolute rules”
for determining whether counsel's actions were indeed
reasonable, as “[a]bsolute rules would interfere with
counsel's independence-which is also constitutionally
protected-and would restrict the wide latitude counsel have
in making tactical decisions.” Putnam v. Head,
268 F.3d 1223, 1244 (11th Cir. 2001). “To uphold a
lawyer's strategy, [the Court] need not attempt to divine
the lawyer's mental processes underlying the
strategy.” Chandler v. United States, 218 F.3d
1305, 1314 n.16 (11th Cir. 2000) (en banc). “No lawyer
can be expected to have considered all of the ways [to
provide effective assistance].” Id.
If a defense lawyer pursued course A, it is immaterial that
some other reasonable courses of defense (that the lawyer did
not think of at all) existed and that the lawyer's
pursuit of course A was not a deliberate choice between
course A, course B, and so on. The lawyer's strategy was
course A. And [the Court's] inquiry is limited to whether
this strategy, that is, course A, might have been a
prejudice, a defendant must show more than simply that
counsel's unreasonable conduct might have had “some
conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. Instead, a defendant
must show a “reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. A ...