Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GEORGE M. DAVIS, JR., 

Petitioner, 

vs. 4:03cv250-SPM/AK

JAMES V. CROSBY, JR., 

Respondent. 

_________________________________/

REPORT AND RECOMMENDATION

Petitioner, an inmate proceeding pro se, has filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Respondent has filed a response, Doc.

8, and Petitioner has filed his reply. Doc. 10. This cause is therefore in a posture for

decision. Having carefully considered the matter, the Court respectfully recommends

that habeas relief be denied.

BACKGROUND

On April 6, 2000, a jury convicted Petitioner of the first degree murder of his wife,

and the court sentenced him to life imprisonment. Doc. 8, Ex. B. Petitioner appealed

the conviction arguing that the court had erred in denying his motion for judgment of

acquittal “because the state’s circumstantial evidence case was legally insufficient to

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 1 of 11
Page 2 of 11

Case No: 4:03cv250-spm/ak

establish premeditation.” Doc. 8, Ex. C at 20. The court of appeal affirmed without

opinion. Doc. 8, Ex. E. Petitioner then filed a Rule 3.850 motion for post-conviction

relief, raising two grounds of ineffective assistance of counsel. Doc. 8, Ex. F at 1-32. 

In his first claim of ineffectiveness, Petitioner argued that his attorney failed to

pursue a viable insanity defense and that he failed to call witnesses who would have

corroborated the defense. Id. at 6. In his second claim, Petitioner maintained that

counsel was ineffective “for admitting to the jury in opening arguments and closing

arguments that [Petitioner] shot and killed his wife.” Id. at 7.

Citing Strickland v. Washington, the court denied both claims on their merits. 

Id. at 67-132. As to the first claim, the court found that Petitioner had “fail[ed] to

make a facially sufficient claim of prejudice....” Id. at 68. More specifically, the court

stated:

The record shows that very early in [Petitioner’s] case, [Petitioner] was

evaluated regarding insanity at the time of the offense. An

Order...indicates that Harry A. McClaren, Ph.D., was appointed as a

confidential defense expert to examine [Petitioner] to determine “(1)

Whether [Petitioner] was insane at the time of the alleged offense, (2)

Whether he is suffering from a major mental illness and lacks sufficient

capacity to seek help on his own behalf, [and] (3) Whether [Petitioner]

is competent to proceed and aid defense counsel.” This expert was

appointed...prior to the point at which...trial counsel took over the case. 

Dr. McClaren’s billing statement...indicates the extensive nature of Dr.

McClaren’s examination of [Petitioner] and his mental history records.

Dr. McClaren submitted his Confidential Forensic Psychological

Evaluation report. Dr. McClaren did not report that he found any

likelihood that [Petitioner] was insane at the time of the offense, but

rather recommended that [Petitioner] be assessed regarding his

competency to proceed, as Dr. McClaren felt he was “currently

operating near the mid-point of the mild range of mental retardation....”

Defendant was then evaluated by Gregory A. Prichard, Psy.D., who

found that [Petitioner] does not meet the criteria for mental retardation,

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 2 of 11
Page 3 of 11

Case No: 4:03cv250-spm/ak

and as a result, Dr. Prichard did not proceed to the issue of

competency....Dr. Prichard noted that [Petitioner] had “no history of a

major psychiatric disorder, and no evidence would suggest [Petitioner]

suffers from a mental disorder at this time.” Dr. Prichard also observed

that [Petitioner] “appeared to be intentionally attempting to perform

beneath his capacity” and “was making an effort to appear less

knowledgeable than he actually is.”

Although [Petitioner] alleges insanity was a viable defense, he does not

provide factual support for this claim. On the contrary, the fact that

[Petitioner] was evaluated early on to determine insanity at the time of

the offense, and was not found to be insane at the time of the offense,

demonstrates that insanity was not a viable defense. Further, this

Court would note that the defense of insanity is not usually successful. 

The findings set forth in the psychiatric evaluation reports prepared by

Drs. McClaren and Prichard indicating [Petitioner’s] mental history and

status refute [Petitioner’s] allegations in Ground 1 as well. Trial

counsel had no basis upon which to inquire into the area of

[Petitioner’s] mental condition. [Petitioner] fails to show representation

by trial counsel below a reasonable standard that affected the outcome

of the proceeding....

Id. at 68-70 (emphasis in original) (citations omitted).

As to the second claim, the court found:

In Ground 2, [Petitioner] alleges that trial counsel was ineffective

because counsel conceded [Petitioner’s] guilt during opening and

closing arguments without discussing this strategy with [Petitioner]. 

This claim is also facially insufficient. A review of the trial transcript

reveals that trial counsel did not concede [Petitioner’s] guilt in either

opening or closing arguments. The statement made by counsel

during his opening argument which [Petitioner] in his Motion contends

conceded guilt does no such thing. Counsel stated, “Thoughtful

reflection. That’s what [Petitioner] is charged with doing before he

shot and killed his wife, Marilyn.” This is merely a repetition of the

charge against [Petitioner], not a concession of guilt.

* * *

Additionally, [Petitioner] himself conceded his own guilt several times

during his own trial testimony. In his description of the night of the

offense, he described getting the gun from his car, putting it in the

back of his pants, walking around to his wife’s location, and bringing

the gun out in his wife’s presence. He then proceeded to describe the

altercation with his wife during which the gun went off several times.

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 3 of 11
Page 4 of 11

Case No: 4:03cv250-spm/ak

[Petitioner] even outright admitted to shooting his wife when the

Assistant State Attorney asked him, “You shot your wife?” and

[Petitioner] replied, “Yes, sir.” [Petitioner] also stated that his wife was

shot during his struggle with her and said the bullets that killed his

wife came from the gun he was holding that night. Accordingly,

because [Petitioner] fails to sufficiently allege ineffectiveness of

counsel, much less prejudice, in Ground 2, it is facially insufficient....

Id. at 70-71 (citations omitted).

Petitioner appealed this ruling, and the court of appeal affirmed. Doc. 8, Ex.

G. The instant petition followed. On this occasion, Petitioner first attacks the trial

court’s failure to grant his motion for judgment of acquittal “because the State’s

circumstantial evidence case was insufficient to establish premeditation in violation

of the 6th Amendment of the U.S. Constitution.” Doc. 1 at 5. Petitioner’s second

and third claims raise the same ineffective assistance of counsel grounds which

were raised in the state court post-conviction motion. Respondent concedes that

the petition is timely and maintains that all claims have been exhausted.

DISCUSSION

Under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief only if

the state court adjudication

(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).

Under the “contrary to” clause of § 2254(d), “a federal habeas court may grant

the writ if the state court arrives at a conclusion opposite to that reached by [the

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 4 of 11
Page 5 of 11

Case No: 4:03cv250-spm/ak

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.” Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). “A state-court decision will certainly be contrary

to...clearly established precedent if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases.” Williams, 529 U.S. at 405. A statecourt decision will also be contrary to clearly established Supreme Court precedent “if

the state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme Court] and nevertheless arrives at a result different from [the

Court’s] precedent.” Id. at 406. 

Under the “unreasonable application” clause of § 2254(d), “a federal habeas

court may grant the writ if the state court identifies the correct governing legal principle

from [Supreme Court] decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id. at 413. The federal court considering a habeas petition “may

not issue the writ simply because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” Id. at 412.

Further, in reviewing the decision of the state court, this Court must presume that

the state court’s factual determinations are 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). Finally, the fact that the state court did not write “an opinion that

explains the state court’s rationale,” does not detract from the deference owed to that

court’s decision. Wright v. Secretary for Department of Corrections, 278 F.3d

1245,1255 (11th Cir. 2002). Under § 2254, the Court is to focus on the result of the state

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 5 of 11
Page 6 of 11

Case No: 4:03cv250-spm/ak

proceeding, not the reasoning underlying it, since all that is required for a state-court

adjudication on the merits is a rejection of a claim on the merits, not an explanation. Id.

at 1254-55.

I. Insufficiency of evidence.

In this ground, Petitioner charges that the state court erred in denying his motion

for judgment of acquittal because the State failed to prove premeditation beyond a

reasonable doubt. This claim was raised on Petitioner’s direct appeal as follows:

The trial court erred in denying the defense motion for judgment of

acquittal because the state’s circumstantial evidence case was legally

insufficient to establish premeditation. Although premeditation may be

established by circumstantial evidence, such evidence must be

inconsistent with any reasonable hypothesis of innocence. Here, the

evidence indicated [Petitioner] was in a highly emotional state as a result

of marital difficulties, the event with the locksmith was unexpected, the

witnesses did not contradict [Petitioner’s] account of what happened

behind the locksmith’s truck, and the state witnesses did not contradict

[Petitioner’s] testimony that he did not plan to kill his wife. The evidence

thus was not inconsistent with a lack of premeditation and was therefore

insufficient to establish premeditation.

Doc. 8, Ex. C at 20. At no time was the claim framed as a violation of the United States

Constitution.

Though the issue was not framed in state court as a denial of due process, the

basic issues in both proceedings are the same, since

an essential of the due process guaranteed by the Fourteenth Amendment

[is] that no person shall be made to suffer the onus of a criminal conviction

except upon sufficient proof–defined as evidence necessary to convince a

trier of fact beyond a reasonable doubt of the existence of every element

of the offense.

Jackson v. Virginia, 443 U.S. 307, 316 (1979). Thus, the question for this Court is

whether the state court adjudication “resulted in a decision that was contrary to, or

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 6 of 11
Page 7 of 11

Case No: 4:03cv250-spm/ak

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States....” 28 U.S.C. § 2254(d)(1).

In this situation, “the relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,” Jackson, 443 U.S. at 319,

or phrased slightly differently, “whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt.” Id. at 320.

The Court has reviewed the trial transcript, and the record fully supports the

jury’s conclusion that Petitioner premeditated the killing of his wife. As defined in the

jury instructions, a premeditated killing under Florida law is

killing after consciously deciding to do so. The decision must be present

in the mind at the time of the killing. The law does not fix the exact period

of time that must pass between the...formation of the premeditated intent

to kill and the killing. The period of time must be long enough to allow for

reflection by the defendant. 

The premeditated intent to kill must be formed before the killing. The

question of premeditation is a question of fact to be determined by you

from the evidence. It will be sufficient proof of premeditation if the

circumstances convince you beyond a reasonable doubt of the existence

of premeditation at the time of the killing.

Doc. 8, Ex. C at 334.

The evidence at trial, taken in the light most favorable to the prosecution, was

(1) that Petitioner and his wife were having marital difficulties and that on

the day of the shooting, Petitioner’s father-in-law had told Petitioner and

his daughter that “if ya’ll can’t get along, one needs to leave or ya’ll need

to separate,” Doc. 8, Ex. C at 37;

(2) that after seeing a locksmith on the marital property and after

forbidding the locksmith to make keys for a car, Petitioner briefly left,

retrieved his gun from his car, and concealed it in the back of his pants

before returning to the scene; and

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 7 of 11
Page 8 of 11

Case No: 4:03cv250-spm/ak

(3) that when he returned, he repeatedly fired the gun, saying “‘what I told

you, Mel; what I told you, Mel.’” 

Id. at 56. Furthermore, the evidence showed that Petitioner’s wife did not have a

weapon on her or otherwise physically attack him before the shooting. In addition, the

State offered evidence from a firearms expert, witnesses at the scene, and a pathologist

who negated Petitioner’s defenses that the gun accidentally discharged and that

Petitioner was aiming at the sky and at the tires on the vehicle, rather than his wife,

when the gun was discharged. When considered under the Jackson standards, this is

more than sufficient evidence to support the jury’s determination that the State proved

beyond a reasonable doubt that Petitioner killed the decedent after consciously deciding

to do so. Thus, Ground One is without merit.

II. Ineffective assistance of counsel.

In this case, Petitioner has raised two claims of ineffective assistance of counsel

which were plainly and thoroughly adjudicated on their merits in state court. Thus, the

question for this Court is whether the state court adjudication “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 “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). That task

involves a consideration of Strickland v. Washington, 466 U.S. 668 (1984).

To prevail on a constitutional claim of ineffective assistance of counsel, a

defendant must demonstrate (1) that his counsel’s performance was below an objective

and reasonable professional norm, and (2) that he was prejudiced by this inadequacy. 

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 8 of 11
Page 9 of 11

Case No: 4:03cv250-spm/ak

Strickland, 466 U.S. at 686. The court may dispose of the claim if a defendant fails to

carry his burden of proof on either the performance or the prejudice prong. Id. at 697. 

The court need not address the adequacy of counsel’s performance when a defendant

fails to make a sufficient showing of prejudice. Id.; see also Tafero v. Wainright, 796

F.2d 1314, 1319 (11th Cir. 1986).

With regard to the performance prong of Strickland, a defendant must provide

factual support for his contentions that counsel’s performance was constitutionally

deficient. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The court must

consider counsel’s performance in light of all of the circumstances at that time and

indulge in a strong presumption that counsel’s conduct fell within the wide range of

reasonably professional assistance. Strickland, 466 U.S. at 689-90. To show counsel’s

performance was unreasonable, a defendant must establish that “no competent counsel

would have taken the action that his counsel did take.” Grayson v. Thompson, 257 F.3d

1194, 1216 (11th Cir. 2001) (emphasis omitted). “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption...that [counsel] did what he

should have done and that he exercised reasonable professional judgment.” Chandler

v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531

U.S. 1204 (2001).

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

“reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability is defined

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 9 of 11
Page 10 of 11

Case No: 4:03cv250-spm/ak

as a probability sufficient to undermine confidence in the outcome.” Id. Additionally,

prejudice is established only with a showing that the result of the proceeding was

fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can properly

prevail...are few and far between.” Chandler, 218 F.3d at 1313 (11th Cir. 2000). This is

because the test is not what the best lawyers would have done or even what most good

lawyers would have done, but rather whether a reasonable lawyer could have acted in

the circumstances as defense counsel acted. Williamson v. Moore, 221 F.3d 1177,

1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

Having carefully considered the matter, the Court finds that the state court’s

ruling on Petitioner’s ineffective assistance of counsel claims was not contrary to or

did not involve an unreasonable application of clearly established Supreme Court law,

and the state court did not base its decision on an unreasonable determination of the

facts in light of the evidence presented at trial. The post-conviction court meticulously

examined the record evidence with the Strickland requirements in mind and made a

well-reasoned, well-supported decision. Thus, Grounds Two and Three should also be

denied.

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 10 of 11
Page 11 of 11

Case No: 4:03cv250-spm/ak

CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED that the petition

for writ of habeas corpus, Doc. 1, be DENIED, and this cause be DISMISSED WITH

PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 25th day of May, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

Case 4:03-cv-00250-SPM-AK Document 11 Filed 05/25/05 Page 11 of 11