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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DAVID P. KEVER,

Petitioner,

v. CASE NO. 1:03-cv-00114-MP-AK

JAMES MCDONOUGH,

Respondent.

________________________________/

O R D E R

This matter is before the Court on Doc. 105, Report and Recommendation of the

Magistrate Judge, recommending that Petitioner’s amended petition for writ of habeas corpus,

Doc. 46, be denied. The Magistrate Judge filed the Report and Recommendation on Wednesday,

October 4, 2006. The parties have been furnished a copy of the Report and have been afforded

an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1),

this Court must make a de novo review of those portions to which an objection has been made. 

Petitioner has filed objections, Doc. 113. 

Petitioner Kever was charged in state court in three separate cases with various counts

sexual battery upon a mentally defective minor and lewd or lascivious assault on a minor, each

case involving the same child and allegedly occurring during the same time period. In Case

Number 94-80, Petitioner initially acted as his own counsel after a Faretta hearing, with attorney

Dean Galigani appointed to act as stand-by counsel. Prior to this case going to trial, Petitioner

withdrew from representing himself. At this point, Mr. Galigani took over as counsel, and filed

a motion for continuance in all three cases, with Petitioner expressly waiving entitlement to a

speedy trial. The three cases were eventually consolidated, and trial commenced on February

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28, 1996. In the three consolidated cases, the jury found Petitioner guilty of one count of sexual

battery on a mentally defective person and two counts of lewd and lascivious assault, guilty of

one count of sexual battery on a mentally defective person and one count of lewd and lascivious

assault upon a minor, and guilty of one count of attempted sexual battery on a mentally defective

person and one count of lewd and lascivious assault. On appeal, the District Court of Appeal

found that the “evidence presented at trial was insufficient as a matter of law to prove that the

victim was ‘mentally defective,’” and reversed the Petitioner’s convictions on those counts, with

the trial court instructed to enter judgments of conviction on the lesser included offenses of

sexual battery and attempted sexual battery. Keever v. State, 704 So.2d 222, 222-23 (Fla. Dist.

Ct. App. 1998). After seeking post-conviction review of his claims in state court, Petitioner filed

the instant petition, which Respondent concedes is timely. However, Respondent contends that

Petitioner is not entitled to relief on any of his fourteen grounds, and that Petitioner did not

properly exhaust several claims in state court, thereby resulting in procedural default.

Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, federal courts

review state court decisions under 28 U.S.C. § 2254 subject to a more deferential standard. 

Under § 2254, a person in custody pursuant to the judgment of a state court is not entitled to

habeas corpus relief unless the state court proceedings meet the following criteria: 

(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; or

(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)(1) & (2). The first prong ensures state compliance with Supreme Court

precedent. This standard requires Petitioner to show that the reasoning or the result of the

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state-court decision contradicts clearly established federal law, or is an unreasonable application

of clearly established federal law, before the Court may independently consider the merits of

Petitioner’s claim. Under the second prong, factual determinations made by a state court are

presumed to be correct, and Petitioner bears “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). In order to raise one of

these issues in federal court, a petitioner must first fairly present the same federal claim to the

state courts, exhausting state remedies before seeking federal relief.

Petitioner contends that he was coerced into retaining counsel for sentencing, that the

trial court erred in failing to grant him a bill of particulars, that the trial court’s resentencing

resulted in a double jeopardy and due process violation, that jeopardy had already attached when

the trial court dismissed the first jury, that the trial court erred in denying an evidentiary hearing

to correct the record, that the trial court erred in sustaining a conviction of attempted sexual

battery, that the trial court violated due process by citing false evidence, that his right to a speedy

trial was violated, and that counsel was ineffective on numerous grounds. After a thorough

review of these claims, the Magistrate recommends that the amended petition for writ of habeas

corpus be denied. 

Petitioner first objects to the denial of his motion for leave to file a second amended

petition, Doc. 75. In an abundance of caution, the Magistrate reviewed Petitioner’s proposed

amendments, as well as over two hundred pages of exhibits, and concluded that this additional

information was either redundant or did not change the analysis and result. After reviewing

Petitioner’s proposed second amended complaint, the Court agrees with the Magistrate. 

Although Petitioner claims the amendments cured his failure to properly exhaust the issue of

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whether the trial court erred in denying a bill of particulars, exhaustion was not material to the

Magistrate’s decision of this issue. In fact, the Magistrate treated the issue as if it had been

exhausted, and then addressed the merits of the claim. “The Court believes that it is appropriate

for it to assume exhaustion of this claim, especially since it has no merit.” Doc. 105 at 42.

Petitioner also asserts that the record of the state court is false; specifically, Petitioner

argues that the trial record indicating that the jury had not been empaneled–and that jeopardy had

not yet attached–is a fraud on the court. Pointing to the findings of the trial court after a Faretta

hearing that Petitioner was competent to represent himself, Petitioner concludes that he must

have had the mental faculties to know that a trial was occurring around him. The Magistrate’s

finding that Petitioner was not committing perjury in his arguments was not, as Petitioner argues,

an attempt to keep Petitioner from issuing subpoenas to the trial jurors. It was, instead, a

realization that what Petitioner may have believed to be the empaneling of the jury was merely

the swearing of the entire venire and the selection of jurors. The Court agrees with the

Magistrate that the jury was never actually sworn after its selection, and that certified state court

record reflecting this is not a fraud orchestrated on the Court. 

For his next objection, Petitioner again argues that state court officials are falsifying the

record on his speedy trial motion. Petitioner objects that counsel was acting against his interest

and without his authorization in allowing a continuance. Again, the Court agrees with the

Magistrate. Petitioner waived his right to a speedy trial in all three cases. Irrespective of

Petitioner’s arguments as to the accuracy and integrity of the transcript, he admits in his

amended petition that he waived his speedy trial rights, and the record supports this admission. 

Therefore, this objection does not affect the analysis of the speedy trial issue. 

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Next, Petitioner states that the trial court’s finding that testimony of the emergency room

examining physician would have been cumulative to evidence from other persons and sources is

incorrect, and therefore Petitioner was prejudiced by counsel’s failure to compel such testimony.

Petitioner also objects to the exclusion of other evidence by the state court as cumulative. 

As the Magistrate notes, the state court ruling is entitled to deference unless it resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established

Supreme Court law, or 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 Court agrees with the Magistrate that the state court rulings extensively reviewed

Petitioner’s claims, are well reasoned, and are not contrary to or an unreasonable application of

Strickland v. Washington, 466 U.S. 668 (1984). Therefore, whether the state court’s ruling were

incorrect is of no moment, since they were not unreasonable. 

Petitioner next objects to the Magistrate’s finding that sufficient evidence existed to

sustain a conviction for attempted sexual battery. Petitioner argues that he lacked the requisite

intent, and that no evidence exists that Petitioner attempted to digitally penetrate the victim. The

victim testified that Petitioner touched her breast and her vagina, and that he stopped when her

brother came into the room. The Court agrees that a rational trier of fact could easily have found

the essential elements of the crime beyond a reasonable doubt. 

The remaining grounds Petitioner raises all allege fraud by the state court and state

officials in altering or fabricating the record, which the Court has already addressed, or that

counsel was ineffective for failing to impeach certain witnesses. As previously stated, because

the state court’s application of Strickland was not unreasonable, this ruling in entitled to

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deference, and Petitioner in not entitled to habeas relief. After reviewing the Magistrate Judge

Report and Recommendation, and the Petitioner’s objections, the Court agrees with the

Magistrate that Petitioner’s claims are either procedurally defaulted or without merit. Therefore,

Petitioner’s petition for writ of habeas corpus must be denied.

On the docket, Petitioner has also filed several allegations of deprivation of access to the

courts. These allegations state that prison officials are mishandling or destroying his legal

mailings. Because these claims are not proper in a habeas petition, they are denied. Petitioner is

advised that these claims should be raised in an action challenging the conditions of his

confinement, pursuant to 42 U.S.C. § 1983, rather than a habeas petition challenging the fact of

his confinement. Therefore, having considered the Report and Recommendation, and the

objections thereto, I have determined that it should be adopted. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Magistrate Judge’s Report and Recommendation, Doc. 105, is adopted and

incorporated by reference in this order;

2. Petitioner’s amended petition for writ of habeas corpus, Doc. 46, is denied, and

this case is dismissed with prejudice;

3. Petitioner’s pending motions challenging deprivation of access to the courts,

Docs. 107, 108, 111, 115, 116, 118, and 119, are denied.

DONE AND ORDERED this 10th day of April, 2007

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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