United States District Court, M.D. Florida, Tampa Division
Cbarlene Edwards Honeywell, United States District Judge.
a Florida prisoner, initiated this action by filing a
petition for the writ of habeas corpus pursuant to 28 U.S.C.
Section 2254 (Doc. 1), and a memorandum in support (Doc. 2).
Upon consideration, the Court ordered Respondent to show
cause why the relief sought in the petition should not be
granted (Doc. 10). Thereafter, Respondent filed a response in
opposition (Doc. 11).
alleges four grounds for relief in his petition:
1. Counsel was ineffective in his assistance when rendering
affirmative misadvice to petitioner;
2. Counsel was ineffective in his assistance when failing to
call a witness to testify for the defense;
3. Lower court erred in denying JOA filed based on
insufficient evidence of a “deadly weapon, ” as
4. Lower court erred in denying JOA based on insufficient
evidence of “great bodily harm.”
was convicted of aggravated battery with a deadly weapon
resulting in great bodily harm for smashing a glass beer
bottle on the head and face of his former girlfriend
(Respondent's Ex. A2), and sentenced to 30 years in
prison as a prison releasee reoffender (Respondent's Ex.
A3). His conviction and sentence were affirmed on appeal
(Respondent's Ex. B3).
filed a motion for post-conviction relief under Rule 3.850,
Florida Rules of Criminal Procedure, alleging two claims of
ineffective assistance of trial counsel (Respondent's Ex.
C1) and, subsequently, filed an amendment to the motion
(Respondent's Ex. C3). Following an evidentiary hearing
(Respondent's Ex. C4), the Rule 3.850 motion was denied
(Respondent's Ex. C5). The denial of the Rule 3.850
motion was affirmed on appeal (Respondent's Ex. C10).
thereafter filed his federal habeas petition and memorandum
in this court (Docs. 1, 2).
GOVERNING LEGAL PRINCIPLES
Petitioner filed his petition after April 24, 1996, this case
is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Penry v. Johnson, 532 U.S.
782, 792 (2001); Henderson v. Campbell, 353 F.3d
880, 889-90 (11th Cir. 2003). The AEDPA “establishes a
more deferential standard of review of state habeas
judgments, ” Fugate v. Head, 261 F.3d 1206,
1215 (11th Cir. 2001), in order to “prevent federal
habeas ‘retrials' and to ensure that state-court
convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002);
see also Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (recognizing that the federal habeas court's
evaluation of state-court rulings is highly deferential and
that state-court decisions must be given the benefit of the
Standard of Review Under the AEDPA
to the AEDPA, habeas relief may not be granted with respect
to a claim adjudicated on the merits in state court 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). The phrase “clearly
established Federal law, ” encompasses only the
holdings of the United States Supreme Court “as of the
time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
2254(d)(1) provides two separate bases for reviewing state
court decisions; the ‘contrary to' and
‘unreasonable application' clauses articulate
independent considerations a federal court must
consider.” Maharaj v. Secretary for Dep't. of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning
of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th
Under the “contrary to” clause, a federal court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case
differently than [the United States Supreme Court] has on a
set of materially indistinguishable facts. Under the
‘unreasonable application' clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from [the United States
Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.
federal court concludes that the state court applied federal
law incorrectly, habeas relief is appropriate only if that
application was “objectively unreasonable.”
under § 2254(d)(2), a federal court may grant a writ of
habeas corpus if the state court's decision “was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” A determination of a factual issue made by
a state court, however, shall be presumed correct, and the
habeas petitioner shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
See Parker, 244 F.3d at 835-36; 28 U.S.C. §
Ineffective Assistance of Counsel Standard
of ineffective assistance of counsel are analyzed under the
test set forth in Strickland v. Washington, 466 U.S.
668 (1984), which requires a petitioner to demonstrate both
deficient performance by counsel and resulting prejudice.
Demonstrating deficient performance “requires showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. at 687.
Deficient performance is established if, “in light of
all the circumstances, the identified acts or omissions [of
counsel] were outside the wide range of professionally
competent assistance.” Id. at 690. However,
“counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id.
Additionally, “a court deciding an actual
ineffectiveness claim must judge the reasonableness of
counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's
must demonstrate that counsel's alleged errors prejudiced
the defense because “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. at 691-92. To
show prejudice, a petitioner must show “a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been