United States District Court, M.D. Florida, Jacksonville Division
MORALESHOWARD UNITED STATES DISTRICT JUDGE.
Dwaine Elmer Poole initiated this action by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under
28 U.S.C. § 2254 and Memorandum of Law in Support of
Petition (Memorandum; Doc. 2) on September 29, 2015. In the
Petition, Poole challenges his violation of probation
relating to a 2012 state court (Columbia County, Florida)
judgment of conviction for uttering a forgery. Respondents
have submitted a memorandum in opposition to the Petition.
See Respondents' Answer (Response; Doc. 17) with
exhibits (Resp. Ex.). On October 18, 2016, the Court entered
an Order to Show Cause and Notice to Petitioner (Doc. 6),
admonishing Poole regarding his obligations and giving Poole
a time frame in which to submit a reply. Poole submitted a
brief in reply on June 20, 2017. See Reply to
Respondents' Answer (Reply; Doc. 20). This case is ripe
August 20, 2008, the State of Florida charged Poole with six
counts of uttering a forgery. See Resp. Ex. A-1 at
1-3, Information. Poole entered a negotiated plea agreement
with the State on July 13, 2009. See Resp. Ex. B at
164-68. Pursuant to the terms of the negotiated plea
agreement, Poole pled guilty to all six counts. That same
day, the court sentenced Poole to a term of imprisonment of
thirty-six months for count one, and three years of probation
for counts two through six, to run concurrently with each
other and consecutively to count one. See id. at
174-88, Judgment. On May 2, 2011, Ronald Raymond (Poole's
probation officer) filed an Affidavit of Violation of
Probation (VOP), asserting that Poole had violated several
conditions of the Order of Probation. See id. at
193-97. Raymond amended the VOP Affidavit on May 16, 2011, to
include allegations of new charges in Polk County, Florida.
See Resp. Ex. J at 66-67.
case proceeded to a hearing, at the conclusion of which, on
June 13, 2012, the court revoked Poole's probation.
See Resp. Ex. D, Transcript of the VOP hearing
(Tr.). The court sentenced Poole to terms of imprisonment of
five years on counts two and three, to run concurrently with
each other, and terms of imprisonment of five years on counts
four, five, and six, to run concurrently with each other, and
consecutively to the sentences imposed for counts two and
three. See Resp. Ex. C at 229-34, Judgment; Tr. at
direct appeal, Poole, with the benefit of counsel, filed an
initial brief pursuant to Anders v. California, 386
U.S. 738 (1967). See Resp. Ex. E. Poole filed a pro
se brief, arguing that the trial court erred when it revoked
his probation based on hearsay testimony. See Resp.
Ex. F. The State did not file an answer brief. See
http://onlinedocketsdca.flcourts.org, No. 1D12-3086.
On January 7, 2013, the appellate court affirmed Poole's
conviction and sentence per curiam without issuing a written
opinion, see Resp. Ex. G, and the mandate issued on
February 4, 2013, see Resp. Ex. H.
filed a pro se motion for post-conviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion)
on July 4, 2013. See Resp. Ex. I at 1-38. In his
request for post-conviction relief, Poole asserted that
counsel (Thomas Nemeck) was ineffective because he failed to:
obtain medical records that would refute Florida Highway
Patrol Trooper Walt Smith's account and the State's
version of the events (ground 1A); object to the State's
discovery violation and seek a
Richardson hearing (ground 1B); adequately
investigate and prepare for the VOP hearing (ground 1C);
object to the court's decision to conduct the VOP hearing
before a jury trial on the new law violations (ground 1D);
investigate and call medical personnel as witnesses to refute
Trooper Smith's testimony (ground 1E); obtain a copy of
the other driver's deposition and provide a copy to Poole
for his review (ground 1F); object to the State's use of
facts related to the Polk County charges (ground 1G); and
investigate, take photographs, and call the tow truck driver
and owner of the wrecking yard as witnesses to refute Trooper
Smith's testimony (ground 1H). Additionally, he
maintained that the State committed a discovery violation
when it withheld the names of two eyewitnesses who had
identified Poole as the driver of the vehicle involved in the
traffic collision (ground two). He also stated that
counsel's cumulative errors deprived him of a fair and
impartial VOP hearing (ground three). The court denied the
Rule 3.850 motion on October 31, 2014, see Resp. Ex.
J at 58-186, and later denied his motion for rehearing,
see id. at 190-205, 206-07. On March 10, 2015, the
appellate court affirmed the trial court's denial of
post-conviction relief per curiam, see Resp. Ex. M,
and later denied Poole's motion for rehearing,
see Resp. Exs. N; O. The mandate issued on May 8,
2015. See Resp. Ex. P.
One-Year Limitations Period
Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). "In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007);
Jones v. Sec'y, Fla. Dep't of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). "It follows that
if the record refutes the applicant's factual allegations
or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing."
Schriro, 550 U.S. at 474. The pertinent facts of
this case are fully developed in the record before the Court.
Because this Court can "adequately assess [Poole's]
claim[s] without further factual development,"
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), an evidentiary hearing will not be conducted.
Governing Legal Principles
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017).
"'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'" Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of
final state court decisions is "'greatly
circumscribed' and 'highly deferential.'"
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its
rationale in order for the state court's decision to
qualify as an adjudication on the merits. See
Harrington v. Richter, 562 U.S. 86, 100 (2011).
Where the state court's adjudication on the merits is
unaccompanied by an explanation, the United States Supreme
Court recently stated:
[T]he federal court should "look through" the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The
presumption may be rebutted by showing that the higher state
court's adjudication most likely relied on different
grounds than the lower state court's reasoned decision,
such as persuasive alternative grounds that were briefed or
argued to the higher court or obvious in the record it
reviewed. Id. at 1192, 1196.
United States Supreme Court reiterated the standard of review
when there is not a reasoned state court adjudication on the
merits. See Sexton v. Beaudreaux, 138 S.Ct. 2555,
2558 (2018) (per curiam).
When, as here, there is no reasoned state-court decision on
the merits, the federal court "must determine what
arguments or theories ... could have supported the state
court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of this Court." Harrington v.
Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d
624 (2011). If such disagreement is possible, then the
petitioner's claim must be denied. Ibid. We have
often emphasized that "this standard is difficult to
meet" "because it was meant to be."
Ibid.; e.g., Burt v. Titlow, 571
U.S. 12, 20, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013).
claim was "adjudicated on the merits" in state
court, § 2254(d) bars relitigation of the claim unless
the state court's decision (1) "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) "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
2254(d); Richter, 562 U.S. at 97-98. As the Eleventh
Circuit has explained:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for 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." Id. at
413, 120 S.Ct. at 1523 (plurality opinion). The
"unreasonable application" clause allows for 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." Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts' erroneous factual determinations.
Section 2254(d)(2) allows federal courts to grant relief only
if the state court's denial of the petitioner's claim
"was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(2). The Supreme
Court has not yet defined § 2254(d)(2)'s
"precise relationship" to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state
court's factual findings "by clear and convincing
evidence." See Burt v. Titlow, 571 U.S. ___,
___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269,
2282, 192 L.Ed.2d 356 (2015). Whatever that "precise
relationship" may be, "'a state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.'" Titlow, 571 U.S. at ___, 134
S.Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir.
2016), cert. denied, 137 S.Ct. 2298 (2017).
Also, deferential review under § 2254(d) generally is
limited to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 182 (2011) (stating the
language in § 2254(d)(1)'s "requires an
examination of the state-court decision at the time it was
"AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in
state court." Burt v. Titlow, 134 S.Ct. 10, 16
(2013). "Federal courts may grant habeas relief only
when a state court blundered in a manner so 'well
understood and comprehended in existing law' and 'was
so lacking in justification' that 'there is no
possibility fairminded jurists could disagree.'"
Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is "meant to be"
a "difficult" one to meet. Richter, 562
U.S. at 102. Thus, to the extent that Poole's claims were
adjudicated on the merits in the state courts, they must be
evaluated under 28 U.S.C. § 2254(d).
are prerequisites to federal habeas review. Before bringing a
§ 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for
challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the
petitioner must "fairly present" every issue
raised in his federal petition to the state's highest
court, either on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351 (1989)
(emphasis omitted). Thus, to properly exhaust a claim,
"state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999).
addressing exhaustion, the United States Supreme Court
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364,
365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam)
(quoting Picard v. Connor, 404 U.S. 270, 275, 92
S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the State with
the necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the
federal nature of the claim. Duncan, supra,
at 365-366, 115 S.Ct. 887; O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a
potential bar to federal habeas review. The United States
Supreme Court has explained the doctrine of procedural
default as follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner's conviction and sentence are guided by
rules designed to ensure that state-court judgments are
accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of
federalism. These rules include the doctrine of procedural
default, under which a federal court will not review the
merits of claims, including constitutional claims, that a
state court declined to hear because the prisoner failed to
abide by a state procedural rule. See,
e.g., Coleman,  supra, at 747-748,
111 S.Ct. 2546; Sykes,  supra, at 84-85, 97
S.Ct. 2497. A state court's invocation of a procedural
rule to deny a prisoner's claims precludes federal review
of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support
the judgment and the rule is firmly established and
consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. ___, ___, 131 S.Ct. 1120,
1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S. ___, ___, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal
law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus,
procedural defaults may be excused under certain
circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider
the claim if a state habeas petitioner can show either (1)
cause for and actual prejudice from the default; or (2) a
fundamental miscarriage of justice. Ward v. Hall,
592 F.3d 1144, 1157 (11th Cir. 2010); In Re Davis,
565 F.3d 810, 821 (11th Cir. 2009). In order for a petitioner
to establish cause,
the procedural default "must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct." McCoy v. Newsome, 953 F.2d
1252, 1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the prejudice prong, [a
petitioner] must show that "the errors at trial actually
and substantially disadvantaged his defense so that he was
denied fundamental fairness." Id. at 1261
(quoting Carrier, 477 U.S. at 494, 106 S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir.
Martinez, the Supreme Court modified the general
rule in Coleman to expand the "cause" that
may excuse a procedural default. 132 S.Ct. at 1315.
Allowing a federal habeas court to hear a claim of
ineffective assistance of trial counsel when an
attorney's errors (or the absence of an attorney) caused
a procedural default in an initial-review collateral
proceeding acknowledges, as an equitable matter, that the
initial-review collateral proceeding, if undertaken without
counsel or with ineffective counsel, may not have been
sufficient to ensure that proper consideration was given to a
substantial claim. From this it follows that, when a State
requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of
an ineffective-assistance claim in two circumstances. The
first is where the state courts did not appoint counsel in
the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where
appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To overcome the default, a prisoner must also
demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit. Cf.
Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029,
154 L.Ed.2d 931 (2003) (describing standards for certificates
of appealability to issue).
Id. at 1318-19.
absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally
defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one
who is actually innocent, otherwise would result. The
Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. "[I]n
an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default." Carrier, 477 U.S. at 496, 106 S.Ct.
at 2649. "This exception is exceedingly narrow in
scope," however, and requires proof of actual innocence,
not just legal innocence. Johnson v. Alabama, 256
F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "To meet this standard,
a petitioner must 'show that it is more likely than not
that no reasonable juror would have convicted him' of the
underlying offense." Johnson v. Alabama, 256
F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally,
"'[t]o be credible,' a claim of actual innocence
must be based on reliable evidence not presented at
trial." Calderon v. Thompson, 523 U.S. 538, 559
(1998) (quoting Schlup, 513 U.S. at 324). With the
rarity of such evidence, in most cases, allegations of actual
innocence are ultimately summarily rejected. Schlup,
513 U.S. at 324.
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense
attorney's performance falls below an objective standard
of reasonableness and thereby prejudices the defense."
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668,
To establish deficient performance, a person challenging a
conviction must show that "counsel's representation
fell below an objective standard of reasonableness."
[Strickland, ] 466 U.S. at 688, 104 S.Ct. 2052. A
court considering a claim of ineffective assistance must
apply a "strong presumption" that counsel's
representation was within the "wide range" of
reasonable professional assistance. Id., at 689, 104
S.Ct. 2052. The challenger's burden is to show "that
counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant
by the Sixth Amendment." Id., at 687, 104 S.Ct.
With respect to prejudice, a challenger must demonstrate
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id., at 694, 104 S.Ct. 2052. It is
not enough "to show that the errors had some conceivable
effect on the outcome of the proceeding." Id.,
at 693, 104 S.Ct. 2052. Counsel's errors must be "so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
Richter, 562 U.S. at 104. The Eleventh Circuit has
recognized "the absence of any iron-clad rule requiring
a court to tackle one prong of the Strickland test
before the other." Ward, 592 F.3d at 1163.
Since both prongs of the two-part Strickland test
must be satisfied to show a Sixth Amendment violation,
"a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and
vice-versa." Id. (citing Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated
in Strickland: "If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed." Strickland, 466 U.S. at
court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he standard for judging counsel's representation
is a most deferential one." Richter, - U.S. at
-, 131 S.Ct. at 788. But "[e]stablishing that a state
court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult.
The standards created by Strickland and §
2254(d) are both highly deferential, and when the two apply
in tandem, review is doubly so." Id. (citations
and quotation marks omitted). "The question is not
whether a federal court believes the state court's
determination under the Strickland standard was
incorrect but whether that determination was unreasonable -a
substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420, 173
L.Ed.2d 251 (2009) (quotation marks omitted). If there is
"any reasonable argument that counsel satisfied
Strickland's deferential standard," then a
federal court may not disturb a state-court decision denying
the claim. Richter, __U.S. at__, 131 S.Ct. at 788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th
Cir. 2014); Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). "In addition to the deference to counsel's
performance mandated by Strickland, the AEDPA adds
another layer of deference--this one to a state court's
decision--when we are considering whether to grant federal
habeas relief from a state court's decision."
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, "[s]urmounting Strickland's
high bar is never an easy task." Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
Findings of Fact and Conclusions of Law
ground one, Poole asserts that the trial court erred when it
revoked his probation based on hearsay testimony.
See Petition at 6-8; Memorandum at 1-3. Respondents
argue that Poole did not present this claim as a federal due
process violation on direct appeal, and thus Poole's
federal due process claim has not been exhausted and
therefore is procedurally barred. See Response at
18. On this record, the Court agrees that the federal due
process claim has not been exhausted and is therefore
procedurally barred since Poole failed to raise the claim in
a procedurally correct manner. Poole has not shown either
cause excusing the default or actual prejudice resulting from
the bar. Moreover, he has failed to identify any fact
warranting the application of the fundamental miscarriage of
assuming that Poole's federal due process claim is not
procedurally barred, Poole is not entitled to relief. As
previously stated, Poole argued this issue in a pro se brief
on direct appeal,  see Resp. Ex. F; the State did
not file an answer brief, see
http://onlinedocketsdca.flcourts.org, No. 1D12-3086;
and the appellate court affirmed Poole's conviction and
sentence without issuing a written opinion, see
Resp. Ex. G.
extent the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to
deference under AEDPA. After a review of the record and the
applicable law, the Court concludes that the state
court's adjudication of this claim was not contrary to
clearly established federal law and did not involve an
unreasonable application of clearly established federal law.
Nor was the state court's adjudication based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Accordingly, Poole is not entitled to relief on the basis of
even assuming the state appellate court's adjudication of
the claim is not entitled to deference, and that the claim
presents a sufficiently exhausted issue of federal
constitutional dimension,  Poole's claim, nevertheless, is
without merit. At the VOP hearing, Trooper Smith testified
that he arrived at the crash scene to investigate the
accident as an ambulance left to transport Poole to the
hospital. See Tr. at 22. Smith stated that he spoke
to the driver of the semi-truck involved in the crash as well
as fire rescue personnel. See id. The following
Q Did the driver talk to you about the incident that
A Yes, ma'am.
Q What did the driver ...