United States District Court, N.D. Florida, Tallahasee Division
REPORT AND RECOMMENDATION TO DENY § 2254
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
11, 2018, Petitioner, Horace Ash, a prisoner in the custody
of the Florida Department of Corrections, proceeding pro se
under the mailbox rule, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.
Respondent filed an answer on April 3, 2019, with record
exhibits. ECF No. 13. Petitioner was given leave to file a
reply, ECF No. 12, but no reply was filed.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration of all the issues
raised, the undersigned has determined that no evidentiary
hearing is required for disposition of this case.
See Rule 8(a), R. Gov. § 2254 Cases in U.S.
Dist. Cts. For the reasons set forth herein, the pleadings
and attachments before the Court show that Petitioner is not
entitled to federal habeas relief and this § 2254
petition should be denied.
and Procedural History
was charged by Information on January 2, 2014, in the circuit
court of Leon County, Florida, with felony battery of his
girlfriend, possession of cannabis, possession of Diazepam,
and possession of paraphernalia, all occurring on December
15, 2013. Ex. A at 29. An Amended Information was filed adding a
count charging possession of cocaine. Ex. A at 30. Jury trial
was held on December 8, 2014, at which Petitioner was
acquitted of felony battery but found guilty as charged of
possession of cannabis, possession of cocaine, possession of
Diazepam, and possession of paraphernalia. Exs. C, A at
67-68. Petitioner was sentenced to a total of eight years in
prison followed by two years of probation. Ex. A at 72-83.
direct appeal from his convictions and sentences, in case
number 1D14-5840, his counsel filed an Anders
brief. Ex. E. Petitioner was granted leave to
file a pro se brief but none was filed. The court
affirmed per curiam without opinion on February 17, 2016. Ex.
F. The mandate was issued on March 15, 2016. Id. See Ash
v. State, 185 So.3d 1237 (Fla. 1st DCA 2016) (table).
April 12, 2016, Petitioner filed a motion for post-conviction
relief under Florida Rule of Criminal Procedure
3.850. Ex. G at 3-28. An evidentiary hearing was
held on September 7, 2016, (Ex. G at 35-73), after which the
postconviction court denied the claims. Ex. G at 33.
Petitioner appealed in case number 1D16-4217 and filed an
initial brief. Ex. H. The appellate court affirmed per
curiam without opinion on November 21, 2017, and the mandate
was issued on January 10, 2018. Exs. J, K. See Ash v.
State, 236 So.3d 2017 (Fla. 1st DCA 2017) (table).
December 12, 2016, Petitioner filed a motion to correct
sentence under Florida Rule of Criminal Procedure 3.801(a)
for correction of jail credit. Ex. L at 3-8. The motion was
denied on January 30, 2017, finding that Petitioner was
seeking double credit for jail time served and that the
sentencing documents and sentencing hearing did not indicate
such double credit should be awarded. Ex. L at 9-37.
Petitioner's appeal in case number 1D17-0583 was affirmed
per curiam on April 26, 2017, and the mandate was issued on
May 23, 2017. Ex. M. See Ash v. State, 225 So.3d 801
(Fla. 1st DCA 2017) (table).
filed his petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 in this Court raising the following
grounds for relief:
(1) Ineffective assistance of trial counsel for failing to
ensure Petitioner was mentally competent at the time of the
offense as well as in preparation for and participation in
(2) Ineffective assistance of counsel for failing to advise
Petitioner of the possibility of consecutive sentences if he
proceeded to trial and was convicted, resulting in rejection
of a favorable plea offer;
(3) Trial court error in denying legal representation to
Petitioner at the post-conviction evidentiary hearing and in
denying a full and fair hearing.
ECF No. 1.
to 28 U.S.C. § 2254, as amended by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), federal
courts may grant habeas corpus relief for persons in state
custody only under certain specified circumstances. Section
2254(d) provides in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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;
(2) 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.
28 U.S.C. § 2254(d). See also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); Gill v.
Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).
the ‘contrary to' clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law
or if the state court decides a case differently than this
Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000) (O'Connor, J., concurring).
“Under the ‘unreasonable application' clause,
a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case.” Id.
at 413 (O'Connor, J., concurring).
Supreme Court has explained that “even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). The Court stated:
As amended by AEDPA, § 2254(d) stops short of imposing a
complete bar on federal-court relitigation of claims already
rejected in state proceedings. . . . It preserves authority
to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with this Court's precedents. It goes
no further. Section 2254(d) reflects the view that habeas
corpus is a “guard against extreme malfunctions in the
state criminal justice systems, ” not a substitute for
ordinary error correction through appeal. Jackson v.
Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
concurring in judgment).
Id. at 102 (citation omitted). The federal court
employs a “ ‘highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.'
” Pinholster, 563 U.S. at 181 (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
a federal court may grant habeas relief to a state prisoner,
the prisoner must exhaust his remedies in state court.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); 28 U.S.C. § 2254(b). The Petitioner must have
apprised the state court of the federal constitutional claim,
not just the underlying facts of the claim or a
“somewhat similar state-law claim.” Snowden
v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)
(quoting Anderson v. Harless, 459 U.S. 4, 5-6
(1982)). Petitioner must “fairly present” his
claim in each appropriate state court in order to alert the
state courts to the federal nature of the claim. Duncan
v. Henry, 513 U.S. 364, 365 (1995); Picard v.
Connor, 404 U.S. 270, 275 (1971); O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
regard to claims of ineffectiveness of trial counsel, the
Petitioner must have presented those claims in state court
“ ‘such that a reasonable reader would understand
each claim's particular legal basis and factual
foundation.' ” Ogle v. Johnson, 488 F.3d
1364, 1368 (11th Cir. 2007) (citing McNair v.
Campbell, 416 F.3d 1291, 1302 (11th Cir. 2015)).
order to obtain review where a claim is unexhausted and,
thus, procedurally defaulted, the Petitioner must show cause
for the default and prejudice resulting therefrom or a
fundamental miscarriage of justice. Tower v.
Phillips, 7 F.3d 206, 210 (11th Cir. 1993). In order to
demonstrate cause, Petitioner must show that an
“external impediment, whether it be governmental
interference or the reasonable unavailability of the factual
basis for the claim, must have prevented petitioner from
raising the claim.” Alderman v. Zant, 22 F.3d
1541, 1551 (1994) (citing Murray v. Carrier, 477
U.S. 478, 488 (1986)); see also McCleskey v. Zant,
499 U.S. 467, 497 (1991) (emphasizing that the external
impediment must have prevented the petitioner from raising
the claim). A federal court may grant a habeas petition on a
procedurally defaulted claim without a showing of cause or
prejudice if necessary to correct a fundamental miscarriage
of justice. Henderson v. Campbell, 353 F.3d 880, 892
(11th Cir. 2003). In order to satisfy the miscarriage of
justice exception, the Petitioner must show that a
constitutional violation has occurred that “probably
resulted in a conviction of one who is actually
innocent”-that it is more likely than not that no
reasonable juror would have convicted him-which is a stronger
showing than is necessary to establish prejudice. See
Schlup v. Delo, 513 U.S. 298, 327 (1995). Such a case is
“extremely rare.” Id. at 324.
Court's review “is limited to the record that was
before the state court that adjudicated the claim on the
merits.” Pinholster, 563 U.S. at 181. The
state court's factual findings are entitled to a
presumption of correctness and to rebut that presumption, the
Petitioner must show by clear and convincing evidence that
the state court determinations are not fairly supported by
the record. See 28 U.S.C. § 2254(e)(1).
However, “it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions” and “[i]n conducting habeas review, a
federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). See also Swarthout v. Cooke, 562 U.S.
216, 222 (2011) (“[W]e have long recognized that
‘a “mere error of state law” is not a
denial of due process.' ” (quoting Engle v.
Isaac, 456 U.S. 107, 121, n.21 (1982))).
under § 2254(d), “[d]etermining the credibility of
witnesses is the province and function of the state courts,
not a federal court engaging in habeas review.”
Consalvo v. Sec'y, Dep't of Corr., 664 F.3d
842, 845 (11th Cir. 2011). Credibility and demeanor of a
witness are considered to be questions of fact entitled to a
presumption of correctness under the AEDPA and the Petitioner
has the burden to overcome the presumption by clear and
convincing evidence. Id.
claims of ineffective assistance of counsel, the United
States Supreme Court has adopted a two-part test:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's ...