United States District Court, N.D. Florida, Gainesville Division
REPORT & RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
initiated this case by filing a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1.) Respondent filed a response, ECF No. 10, along
with relevant portions of the state-court record. (ECF No.
10-1-10-4.) Upon due consideration of the petition, response,
and state-court record, the undersigned recommends that the
petition be denied.
of State-Court Proceedings
September 20, 2010, Petitioner was charged by information
with possession of cocaine and tampering with physical
evidence. (ECF No. 10-1 at 26.) Petitioner then pleaded nolo
contendere on January 26, 2012, to possession of cocaine and
felony battery, and he was sentenced to twelve months of
probation on each charge, to run concurrently. (Id.
on probation Petitioner was arrested during a traffic stop in
Lake County, Florida on charges of possession of a controlled
substance and trafficking in a controlled substance.
(Id. at 99-102.) An amended affidavit of violation
of probation was filed on May 8, 2012, alleging that
Petitioner violated Condition Five, failure to refrain from
violating the law; Condition Three, leaving his county of
residence without consent of the probation officer; and
Condition Six, association with persons engaged in criminal
activity. (Id. at 109-10.) The circuit court revoked
Petitioner's probation on March 27, 2013, and he received
two consecutive sentences of five years in prison.
(Id. at 154-59.)
22, 2013, Petitioner filed a Motion to Correct Sentencing
Error Pursuant to Rule 3.800(b)(2), Florida Rules of Criminal
Procedure. (ECF No. 10-2 at 201-05.) The circuit court
granted in part and denied in part this motion on July 25,
2013, amending the credit for time served. (Id. at
then appealed his revocation of probation to the First
District Court of Appeal (“First DCA”).
(Id. at 272-86.) Petitioner argued that the evidence
presented at the hearing was “insufficient to prove a
willful and substantial violation of probation.”
(Id.) The First DCA per curiam affirmed
without written opinion on February 24, 2014, and the mandate
followed on March 24, 2014. (Id. at 318, 320.)
Petitioner then filed a pro se motion for rehearing,
which the First DCA denied on April 25, 2014. (Id.
at 322-25; ECF No. 10-3 at 18.)
April 17, 2014, Petitioner filed a pro se motion to
the circuit court for modification of sentence under Rule
3.800(c) of the Florida Rules of Criminal Procedure. (ECF No.
10-3 at 20-26.) The circuit court denied Petitioner's
motion on April 24, 2014. (Id. at 33-34.)
then filed a pro se motion to correct illegal
sentence under Rule 3.800(a) on January 7, 2015.
(Id. at 38-40.) The circuit court denied this motion
on January 13, 2015. (Id. at 69-71.) Petitioner
appealed, and on April 29, 2015, the First DCA per
curiam affirmed without written opinion. (Id.
at 118.) The mandate followed on May 27, 2015. (Id.
June 22, 2015, Petitioner filed a pro se petition
for a writ of habeas corpus to the First DCA, alleging
ineffective assistance of appellate counsel. (Id. at
122-29.) Petitioner argued that the First DCA's panel
lacked jurisdiction to enter a per curiam affirmance
and deprived him of his rights, and that because his
appellate counsel failed to raise these arguments, his
appellate counsel was ineffective. (Id.) The First
DCA denied the petition on the merits without written opinion
on July 9, 2015. (Id. at 132.) The First DCA then
denied Petitioner's motion for clarification and written
opinion on August 21, 2015. (Id. at 134-37, 139.)
June 22, 2015, Petitioner filed a pro se motion to
correct sentence under Rule 3.800(a). (Id. at
231-34.) The circuit court denied Petitioner's motion on
July 1, 2015. (Id. at 236-37.) Petitioner appealed.
(Id. at 281; ECF No. 10-4 at 1-13.)
also filed a pro se motion to the trial court for
post-conviction relief under Rule 3.850 on July 1, 2015. (ECF
No. 10-3 at 143-61.) The trial court denied the motion with a
written opinion on July 17, 2015. (Id. at 163-69.)
Petitioner then filed a notice of appeal to the First DCA on
July 21, 2015. (Id. at 225.) The First DCA per
curiam affirmed without written opinion on October 9,
2015. (ECF No. 10-4 at 51.) The mandate followed on November
4, 2015. (Id. at 53.)
submitted this petition for a writ of habeas corpus to prison
officials for mailing on July 28, 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, ”
or unless the adjudication “was based on an
unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d).
regard to factual findings, 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, “under § 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, 529 U.S. at 413). “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.
“clearly 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).
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.
Assistance of Counsel
some of Petitioner's claims allege ineffective assistance
of counsel, 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].”
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 “reasonable probability is defined as a
probability sufficient to undermine confidence in the
2254 Exhaustion Requirement
bringing a habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for
challenging his conviction, either on direct appeal or in a
state post-conviction motion. 28 U.S.C. § 2254(b)(1),
(c). Exhaustion requires that prisoners give the state courts
a “full and fair opportunity” to resolve all
federal constitutional claims by “invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). To properly exhaust a federal claim, a
petitioner must fairly present the claim in each appropriate
state court, thereby affording the state courts a meaningful
“opportunity to pass upon and correct ...