United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Anthony Hartley's Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by A Person
in State Custody (Doc. 1) filed on May 16, 2016, and
Respondent Secretary of the Department of Correction's
Response. (Doc. 8). Petitioner filed a Reply Brief to
Respondent's Response. (Doc. 12). The Petition is briefed
and ripe for the Court's review.
was found guilty by a jury of Felony Battery (Count I) and
First-Degree Burglary with Assault or Battery (Count II) on
July 8, 2008. Petitioner was sentenced to five (5) years on
Count I and life imprisonment on Count II. (Ex. 31).
Petitioner's burglary conviction (Count II) was
overturned because the Circuit Court failed to include the
lesser included jury instruction for burglary of a conveyance
with a battery. (Ex. 32). Petitioner was retried on Count II
and was found guilty of burglary on a conveyance with assault
or battery. (Ex. 33). Petitioner was then re-sentenced to
thirty (30) years. (Ex. 34).
appeal, Petitioner's re-trial conviction was remanded for
the trial court to reconsider his motion for a new trial, but
the conviction was affirmed. (Ex. 35). Petitioner appealed
arguing ineffective assistance of counsel because Trial
Counsel failed to properly prepare him to testify. Petitioner
filed a second direct appeal after the Post-conviction Court
denied his motion for a new trial. (Ex. 36). The
Post-conviction Court was affirmed per curiam and
mandate issued on May 28, 2014. (Ex. 36).
October 6, 2014, Petitioner filed a Rule 3.850 Motion
alleging that he was provided ineffective assistance of
counsel because counsel failed to advise him not to mention
his probationary status during his testimony. The
Post-conviction Court denied Petitioner's Motion on
September 8, 2015. (Doc. 29). And the Second District Court
of Appeal affirmed per curiam and mandate issued on
March 30, 2016. (Doc. 23). The Respondent does not dispute
the timeliness of the Petition.
Effective Death Penalty Act (“AEDPA”)
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996), governs this action. Abdul-Kabir v.
Quarterman, 550 U.S. 233, 246 (2007). Under AEDPA, the
standard of review is greatly circumscribed and highly
deferential to the state courts. Alston v. Fla. Dep't
of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010)
(citations omitted). AEDPA altered the federal court's
role in reviewing state prisoner applications 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).
the AEDPA, federal habeas relief may not be granted regarding
a claim adjudicated on the merits in state court unless the
adjudication of the claim:
(a) 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;
(b) 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). This standard is both mandatory and
difficult to meet. White v. Woodall, 134 S.Ct. 1697,
1702 (2014). A state court's summary rejection of a
claim, even without explanation, qualifies as an adjudication
on the merits which warrants deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably,
a state court's violation of state law is not sufficient
to show that a petitioner is in custody in violation of the
“Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a); Wilson v.
Corcoran, 562 U.S. 1, 16 (2010).
established federal law” consists of the governing
legal principles, rather than the dicta, set forth
in the decisions of the United States Supreme Court at the
time the state court issued its decision. White, 134
S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74
(2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). The Supreme Court has also explained that “the
lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established
federal law, since ‘a general standard' from [the
Supreme Court's] cases can supply such law.”
Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). State courts “must reasonably apply the rules
‘squarely established' by [the Supreme] Court's
holdings to the facts of each case. White, 134 S.Ct.
at 1706 (quoting Knowles v. Mirzayance, 556 U.S.
111, 122 (2009)).
there is clearly established federal law on point, habeas
relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,
” that federal law. 29 U.S.C. § 2254(d)(1). A
decision is “contrary to” clearly established
federal law if the state court either: (1) applied a rule
that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme
Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010);
Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
court decision involves an “unreasonable
application” of the Supreme Court's precedents if
the state court correctly identifies the governing legal
principle, but applies it to the facts of the
petitioner's case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005);
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Bottoson, 234 F.3d at 531 (quoting
Williams, 529 U.S. at 406). The petitioner must show
that the state court's ruling was “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White, 134 S.Ct. at
1702 (quoting Harrington v. Richter, 562 U.S. 86
(2011)). Moreover, “it is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.”
Knowles, 556 U.S. at 122.
when reviewing a claim under § 2254(d), a federal court
must bear in mind that any “determination of a factual
issue made by a State court shall be presumed to be correct[,
]” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. §
2254(e)(1); Burt v. Titlow, 134 S.Ct. 10,
15 (2013) (“[A] state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.”) (quoting Wood v. Allen, 558 U.S.
290, 293 (2010)).
Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen, 131 S.Ct. at
1398. The Court is limited to reviewing only the record
before the state court when it rendered its order.
for Ineffective Assistance of Counsel
Strickland v. Washington, the Supreme Court
established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687-88
(1984). A petitioner must establish that counsel's
performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance
prejudiced the defense. Id. This is a “doubly
deferential” standard of review that gives both the
state court and the petitioner's attorney the benefit of
the doubt. Burt, 134 S.Ct. at 13 (citing Cullen
v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
focus of inquiry under Strickland's performance
prong is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688-89. In
reviewing counsel's performance, a court must adhere to a
strong presumption that “counsel's conduct falls
within the wide range of reasonable professional
assistance.” Id. at 689. Indeed, the
petitioner bears the heavy burden to “prove, by a
preponderance of the evidence, that counsel's performance
was unreasonable[.]” Jones v. Campbell, 436
F.3d 1285, 1293 (11th Cir. 2006). A court must “judge
the reasonableness of counsel's conduct on the facts of
the particular case, viewed as of the time of ...