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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT LEE WILLIAMS, IV,

0-753945

Petitioner, 

vs. Cause No. 4:03cv264-SPM/AK

JAMES V. CROSBY, as Secretary,

Department of Corrections,

State of Florida 

Respondent. 

_____________________________/

REPORT AND RECOMMENDATION

This cause is before the Court on Petitioner’s petition for writ of habeas corpus under 28

U.S.C. § 2254. Doc. 1. Petitioner has paid the filing fee. Respondent has filed his answer, Doc.

6, and Petitioner has filed a reply. Doc. 7. This matter is therefore in a posture for decision. 

Having carefully considered the issues raised, the Court recommends that the petition be granted,

and the State be ordered to retry Petitioner. 

BACKGROUND

In September, 1998, Petitioner was convicted by a jury of DUI manslaughter and DUI

causing serious bodily injury. Doc. 1 at 1. After remand from the appellate court, he was

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sentenced to 180 months and 15.9 months imprisonment, to run consecutively. Id. Petitioner

filed a Rule 3.850 motion for post-conviction relief based on the following: (1) ineffective

assistance of counsel for failure properly to challenge the blood alcohol draw evidence, and (2)

ineffective assistance of counsel for failure to advise the trial judge of contact between a juror

and a member of Petitioner’s family. Doc. 1, Memorandum at 3. The court summarily denied

the petition, which was affirmed on appeal. Id. This petition ensued. On this occasion,

Petitioner advances the two ineffective assistance of counsel claims which were raised on postconviction. The pertinent facts follow.

Petitioner was charged with DUI manslaughter and DUI with serious bodily injury after

he was involved in an automobile accident with another vehicle in January, 1996. Doc. 6, Ex. A. 

The report from the Florida Highway Patrol stated that Petitioner had a blood alcohol level of

0.23. Id. Before trial, Petitioner filed a motion to suppress the results of the blood test on the

ground “that there were no objective facts to support the requisite probable cause” for the blood

draw. Id. at Ex. B. In arguing the motion, Petitioner’s trial counsel explained:

I would just elaborate on this written motion to point out that Corporal Johnson

stated that he arrived...approximately an hour after the accident had occurred,

that...it took approximately 30 minutes after he arrived, 30 minutes to an hour, to

extricate the injured survivor who was transported by helicopter to TMH.

[H]e spoke to [the defendant ] he said from 10 to 15 minutes during this period of

time before the defendant was transported to TMH; that the defendant at the time

he spoke to him was sitting on the bumper to the ambulance or emergency

vehicle; that he asked the defendant what happened and he told him basically

what had happened as far as he knew.

Officer Johnson at his deposition...testified that he smelled alcohol on the

defendant and that he observed bloodshot eyes.

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[B]ased on this, he’s done no investigation of the accident at that time because he

testified that he spent three and a half to four hours at the scene investigating the

accident.

His investigation report was not filed until some three months, four months later,

and obviously after that period of time he’s not only had the blood taken and

tested, but he’s also interviewed the defendant at the hospital some four or five

hours after he arrived at the scene. He went to TMH and interviewed the

defendant.

And...there’s no...factual basis for him to make a determination that the defendant

should have his blood taken which was done at TMH by an officer with the

Florida Highway Patrol that Trooper Johnson called ahead and asked him to go

there and take the blood sample.

There...were emergency persons on the ambulance and he could have–why didn’t

he tell them to take the test when they got him to the hospital? But he calls in to

the department and tells them to do it. This appears to be an afterthought.

And he had not investigated the accident. He couldn’t tell what had

happened....[U]nder the statute, in order for the defendant to have to submit to the

blood test, then there would have to have been reasonable cause to believe that he

was impaired from alcohol and that he in fact caused the accident....There’s no

way that Officer Johnson could have known that without just guesswork.

Id. at Ex. C, 7-9.

The court denied the motion, stating:

[W]hat you’ve got is the trooper at the scene long enough to have made at least a

preliminary investigation, his personal observation of the defendant where the

defendant’s eyes were bloodshot and the odor of alcohol was on him, and the

conversation with the defendant I would assume indicated that the defendant was

the driver of the vehicle that struck the rear of the first vehicle.

* * *

I think the fact that he observed the defendant with bloodshot eyes and with the

odor of alcohol on him and the defendant advised him that he was driving the car

that struck the other car in the rear is sufficient to establish probable cause for him

to take a blood test and I’ll deny the motion.

Id. at 11-13.

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The case then proceeded to trial. At trial, the State presented the testimony of Corporal

Virginia Johnson, who was a traffic homicide investigator for the Florida Highway Patrol at the

time of the accident. Id. at Ex. D, 76. Corporal Johnson testified that he was called to the scene

of the accident at 5:27 a.m. on January 8, 1996, and arrived on the scene at 6:15 a.m. Id. at 78. 

During the course of his investigation, Corporal Johnson collected “three empty beer cans and

one empty beer can that’s in some type of container and there [were] nine full cans.” Id. at 85. 

At the scene, he talked to Petitioner, who advised Johnson that he was the driver of the second

truck. Id. at 88. Corporal Johnson testified that Petitioner’s “eyes were bloodshot and there was

a moderate to high odor of alcoholic beverages coming from his person and about his breath. He

also had some minor facial and head injuries.” Id. at 89-90. At that time, Johnson did not have

Petitioner perform any roadside tests because he was concerned about his medical condition. Id.

at 90. Johnson did, however, request “the dispatcher out of Tallahassee to have an area trooper

that was on duty to go by the hospital and meet them at the hospital and draw some blood [from

Petitioner]” to “determine whether he had consumed any alcoholic beverages or drugs or

anything like that.” Id. “[B]ased on the fact of what [he] received from [Petitioner] and based

on what [he] recovered from his vehicle,” Johnson stated that in his opinion, Petitioner “was

intoxicated at the time.” Id. at 90-91.

After completing the scene investigation, Corporal Johnson went to the hospital to

interview Petitioner. Id. at Ex. E, 137-38. At that time, Petitioner was Mirandized by the other

investigating officer, Corporal Peter Bucher, and he consented to an interview. Id. at 139.

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Corporal Bucher testified next. He stated that after conferring with Johnson and seeing

evidence of alcohol use at the scene, they requested a blood draw from Petitioner. Id. at 160-61. 

After securing the scene, Corporal Bucher also went to the hospital to interview Petitioner. Id. at

162. After being assured by medical personnel that Petitioner could be interviewed, Bucher

advised Petitioner of his Miranda rights. Id. at 163. According to Corporal Bucher, Petitioner

appeared to understand his rights and there was no force, threat, or coercion used to obtain the

tape-recorded statement. Id. On the tape, the following pertinent exchange occurred:

CORPORAL BUCHER: There were signs of alcohol in your vehicle and

around your vehicle and about your person. Were

you drinking earlier?

THE DEFENDANT: The cooler and everything in there in the toolbox

and all of that has been there. Earlier today, a lot

earlier today, I had had a few drinks.

CORPORAL BUCHER: Okay. What do you mean by a lot earlier?

* * *

THE DEFENDANT: Time-wise probably before 8:00, 9:00, 10:00....

CORPORAL BUCHER: The day before?

THE DEFENDANT: I’m not going to lie to you and tell you I didn’t have

a beer on the way down here because I did....

* * *

THE DEFENDANT: I’m here admitting to something that I really

shouldn’t be doing, but there’s no sense in lying

about it. I don’t feel that I was intoxicated, you

know, .08, you know is mighty minute.

CORPORAL JOHNSON: How many beers did you drink on the way [back to

Tallahassee]?

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* * *

THE DEFENDANT: No more than two.

CORPORAL BUCHER: What type of beer were you drinking or what were

you drinking? Whether it was beer, I don’t know. 

What were you drinking?

THE DEFENDANT: Busch Light.

* * *

CORPORAL JOHNSON: Where did you get them from? Where did you buy

them?

CORPORAL BUCHER: In Sarasota?

THE DEFENDANT: I probably go them out of our refrigerator. I don’t

know where exactly I bought them. I don’t know.

CORPORAL JOHNSON: I was asking if you bought them on the way down

or if you had them when you left Sarasota. Did you

have them with you when you left?

THE DEFENDANT: Yeah. I didn’t stop and buy any, no, and there were

a couple that had been in there.

CORPORAL BUCHER: What time do you remember that you stopped

drinking, that you finished your last one? Do you

remember? Or were you sipping it at about the time

that this happened?

THE DEFENDANT: No. I didn’t have one when it happened.

* * *

THE DEFENDANT: I hadn’t had more than two beers between Sarasota

and Tallahassee and that’s a five hour ride.

* * *

CORPORAL BUCHER: Okay. The evening before[,] where were

you...when you were drinking? The evening before. 

I’m not talking about...coming up the road.

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THE DEFENDANT: The evening before? The evening before?

CORPORAL BUCHER: Well, you said–I’m talking about–this is the

morning, right?

THE DEFENDANT: Yes, sir.

CORPORAL BUCHER: This is Monday morning, right? So you’re talking

about Sunday evening. You said that you were–

THE DEFENDANT: I was at my brother’s house watching a football

game on channel 36. I was watching the Colts.

* * *

CORPORAL BUCHER: Okay. So what time did you–let’s just say you were

at your brother’s now. What time did you start

drinking?

THE DEFENDANT: I think it came on at 3:00.

CORPORAL BUCHER: So what time did you stop drinking, when the game

was over?

THE DEFENDANT: Probably.

CORPORAL BUCHER: And then what did you do after that?

THE DEFENDANT: Went home.

* * *

THE DEFENDANT: Turned the TV on. I don’t believe I really drank

any more after that. I got something to eat.

CORPORAL BUCHER: And then you left at what time to come up here to

Tallahassee did you say?

THE DEFENDANT: Approximately 1:00 a.m.

Id. at 170-74.

According to Corporal Bucher, Trooper Seymour obtained Petitioner’s blood draw and

then “brought that to the scene right after he obtained it....He brought it to us. We were still at

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the scene and I took it from his custody and secured it until the time that I left it at the lab shortly

after we left the hospital.” Id. at 181. 

On cross-examination, Corporal Bucher testified that Petitioner’s blood was drawn in the

presence of Trooper Seymour at 7:55 a.m., that he received the blood draw kit from Trooper

Seymour at the accident scene at 8:30 a.m., and that he “went to the crime lab in Tallahassee and

dropped the blood kit off there” after he left the interview with Petitioner, which terminated at

12:07 p.m. Id. at 183-86. The crime lab returned the kit to the patrol station in Madison,

Florida, in February, 1996, where it was kept on a shelf in the evidence and property room, until

Trooper Bucher retrieved it for trial. Id. at 185-87. During that time period, the kit was not

refrigerated. Id. at 188. In fact, the kit was never refrigerated:

Q [W]henever Seymour picked [the kit] up from the lab at the hospital and

brought it to you out in the field and then you carried it from the field back

to the hospital and then back to the crime lab, it wasn’t refrigerated then

either, was it?

A Not other than what the weather refrigerated.

Q Well, you didn’t leave it outside, did you?

A Well, no, but it was in my car and it was cool.

Id.

The State next tendered Dale Livingston, a toxicologist with the Florida Department of

Law Enforcement crime laboratory, as an expert in the field of forensic alcohol toxicology. Id.

at 195-98. At the outset, Livingston noted certain date on the blood draw kit, including

Petitioner’s name, the date and the time of the accident--January 8, 1996 at 5:25 a.m.–and the

date and time that the blood was drawn–“1/8/95 and the time is 7:50 a.m.” Id. at 201. Despite

the year discrepancy, Livingston testified that the blood “looked real typical, a normal blood

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sample, a couple of weeks old, three weeks old.” Id. at 202-03. When he analyzed the blood,

Livingston found “that the blood...contained 0.23 percent of ethyl alcohol by weight, or another

way to express that is 0.23 grams of ethyl alcohol per hundred milliliters of blood.” Id. at 205. 

Livingston then explained how to calculate “the relationship between the concentration of

alcohol in a person’s blood and the total amount of alcohol that’s in their body”:

For an individual of...average weight like you’re saying, 150, 160 pounds, one

drink, and if we define a drink as the quantity of alcohol in a 12 ounce can of four

percent beer, you’re looking at raising the blood alcohol concentration

somewhere between .02 and .03 percent.

Id. at 212. Then, the

alcohol is absorbed from the stomach into the bloodstream and then your body

essentially starts to rid itself of the alcohol right away. The alcohol passes

through the liver where it’s metabolized and part of it’s excreted in the urine and

some of it’s excreted in the breath...buth then the body starts to rid itself of that

alcohol.

It turns out that alcohol pretty much has a...constant rate of elimination, and it

varies between individuals.

Id. According to Livingston, the “average rate of elimination is usually stated to be about .018

grams percent per hour with a range of between .01 percent per hour up to a high of about .025

percent per hour.” Id. at 213. In his opinion,

The effect of alcohol on any individual at a blood alcohol concentration of 0.23

percent...would cause significant impairment in that person’s ability to safely

operate a car....I don’t think anyone could safely operate a motor vehicle with a

blood alcohol concentration of .23 percent.

Id. at 215. 

At the conclusion of the State’s case in chief, Petitioner’s counsel moved for judgment of

acquittal “based on the fact that the State has failed to carry their burden of establishing under

316.1933(c)(3) that [Petitioner] was under the influence of an alcoholic beverage to the extent

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that his normal faculties were impaired at the time that the accident occurred.” Id. at 232. The

court overruled the motion, finding that “there’s been sufficient testimony for this to be a

question that has to be determined by the jury....” Id. at 233.

Petitioner began his defense by calling Dr. Ricky Bateh, an attorney with a Ph.D. in

analytical chemistry, who was qualified as an expert in toxicology. Id. at 235-36 & 238. Dr.

Bateh testified that the blood draw kit looked “like...the type of collection kit that’s used” and

that he “could [test] the blood samples [himself] if the tubes were preserved meaning refrigerated

and/or kept at refrigeration temperature for the period of time that one can verify that you’re able

to analyze the blood sample over a certain period of time.” Id. at 239. However, “Forensically if

the samples were not refrigerated, they would not be considered a preserved sample.” Id. at 240. 

 Dr. Bateh questioned the protocol used in the blood draw, noting (1) a failure to “have two

different kits” so that “kit number two, that’s preserved for...retesting if there’s a [reliability]

question,” (2) a failure to perform blood analyses on both tubes of Petitioner’s blood, rather than

drawing two samples from one tube, and (3) a failure to seal the tubes in the blood draw kit to

prevent tampering. Id. at 243-44. Counsel then posed the following:

Q. Okay. Now, let me ask you a hypothetical. If this blood sample was

taken at 7:55 a.m. on January the 8th, 1996, and was received...by a state

trooper at that time....Then he transferred it to another state trooper at 8:30

a.m. at a location some twenty something miles from the hospital. Then

that trooper...put it in his car and he retains it until 12:06 p.m. at which

time he turns it over to the FDLE crime lab.

[I]s there anything wrong with that?

A Generally speaking, for blood alcohol analyses, once you collect the

sample, it’s preferable to have it refrigerated as soon as possible.

Q Why is that?

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A Because once the blood is collected, there are a variety of conditions that

may cause the alcohol level to either increase or decrease, and by

refrigerating the sample, you would minimize the increase or the decrease

based upon the materials that are in the tube and how they interact with

the blood sample that’s collected.

Q Okay. So, in other words, the temperature that the sample is kept in could

affect the validity of it or the increase or decrease of what it would read; is

that correct?

A That’s correct.

Id. at 245-46.

After being additionally accepted as an expert in pharmacology, Dr. Bateh was

questioned further:

Q A person that is 5’7” and approximately 140 to 145 pounds, has his blood

extracted for purposes of running this [chromatogram]?

A Chromatogram.

Q Chromatogram. And the blood is extracted some three hours after the

accident. Would you have an opinion as to whether or not that person

would be acting normal or not or would be impaired to the extent that he

couldn’t talk and walk and do the things that normal people can do when

they’re sober?

A Generally speaking, an alcohol level of a .23 some three hours after a

point in question presuming that no alcohol was ingested between the time

of interest versus when the blood sample was collected...then the alcohol

level at the time in the past would have been higher than the time that it

was collected.

An approximately three hour time lapse between the incident in

question versus the collection could bring the alcohol level up to a

0.26. A 0.26 is a very high alcohol level. It’s approximately three

times more than what is considered to be under the influence in the

State of Florida. The State of Florida uses a 0.08.

And in most cases one observes the effects of alcohol generally

anywhere between 0.05 and 0.1. A person becomes let’s say more

sociable. They may...laugh a little bit more, may be more

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talkative. Their eyes may not focus as well as if alcohol were not

present.

From .1 to .15 those characteristics become more exaggerated. 

Some people...even act completely different when they are at that

alcohol level. For instance, a calm person may be very agitated

and on the other hand an agitated person without alcohol may have

alcohol serve as a calming effect.

If you then increase above a .15, alcohol has a much more severe

impact on the body where both your fine motor skills and gross

motor skills are affected....That’s between .15 and .2.

Above .2, the effects of alcohol even become more exaggerated for

the gross motor skills and you pretty much lose all fine motor

skills. So a person that would be with an alcohol level of a .2 and

above would exhibit...grossly slurred speech, stumbling, fumbling

around....

Above .3 you would start approaching a very dangerous alcohol

level in which some of your body functions start to slow down and

sometimes even stop depending upon the person.

Id. at 249-51.

Finally, Dr. Bateh opined:

Q Based on the information I have provided to you in the hypothetical where

the accident was discovered between 5:00 and 5:15 in the morning and

then the testing, how that was addressed, and then the process of the

taking of blood, how it was handled, and then the testing of the blood, and

further that...there has been no testimony or there’s no evidence that

[Petitioner] had any effects other than an odor of alcohol about his person

and bloodshot eyes, can you base an opinion as to the reliability of this

reading? Would that be consistent with his actions?

A If there was no testimony that [Petitioner] was exhibiting effects of

alcohol, then my opinion would be that a 0.23 some three hours later is not

consistent with a person not exhibiting any effects of alcohol.

Id. at 253.

Petitioner testified on his own behalf, advising the jury that he had three beers the night

before the accident; that, although he had two or three additional beers in the time leading up to

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the accident, he was not drinking immediately before the wreck; and that the beers found at the

scene had been in his toolbox. Id. at 276-78. He absolutely denied being impaired at the time of

the accident. Id. at 290.

On cross-examination, Petitioner clarified that he had six beers between 1:00 p.m. and

5:00 a.m. Id. at 292. He denied being a “dedicated drinker.” Id. at 297.

At the conclusion of the evidence, Petitioner’s counsel renewed the motion for judgment

of acquittal, which was denied. Id. at 302.

In closing arguments, the State concluded with the following:

If he’s not a dedicated drinker, if he’s not one to really party a lot, a man who has

his own brand, why was he drinking beer between 1:00 and 5:00 on a Monday

morning, drinking Busch Light beer just like he said on the tape, two or three or

four? That man was intoxicated. That man was intoxicated from the day before

and he was just topping off the tank.

Id. at 312.

Petitioner counsel’s countered:

And I just submit to you that the State has woefully failed to prove above and

beyond a reasonable doubt that [Petitioner] was, number one, intoxicated, number

two, that his blood alcohol was above .1, and that he was involved in the accident

and was the cause of the accident....

Id. at 322. 

In instructing the jury, the court stated:

With regard to Count I, before you can find the defendant guilty of manslaughter

by driving under the influence, the State must prove the following three elements

beyond a reasonable doubt: One, that the defendant...operated a vehicle; two, that

the defendant by reason of such operation caused or contributed to the cause of

the death of [the decedent]; three, at the time of such operation the defendant was

under the influence of alcoholic beverages to the extent that his normal faculties

were impaired, or had a blood alcohol level of 0.08 percent or higher.

* * *

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If you find from the evidence that the defendant had a blood or a breath alcohol

level of 0.05 percent or less, you shall presume that the defendant was not under

the influence of alcoholic beverages to the extent that his normal faculties were

impaired.

If you find from the evidence that the defendant had a blood or an alcohol level in

excess of 0.05 percent but less than 0.08 percent, you may consider that evidence

with other competent evidence in determining whether the defendant was under

the influence of alcoholic beverages to the extent that his normal faculties were

impaired.

If you find from the evidence that the defendant had a blood or breath alcohol

level of 0.08 percent or more, that evidence would be sufficient by itself to

establish that the defendant was under the influence of alcohol to the extent that

his normal faculties were impaired.

However, such evidence may be contradicted or rebutted by other evidence. 

These presumptions may be considered along with any other evidence presented

in deciding whether the defendant was under the influence of alcoholic beverages

to the extent that his normal faculties were impaired.

Id. at 328-30. The jury was instructed that the “same presumptions apply in [Count II] as

applied in the first count. Id. at 332. Petitioner’s counsel agreed to these instructions. Id. at

342.

The jury deliberated for approximately thirty minutes before returning guilty verdicts on

both counts. Id. at 343-44; Doc. 6, Ex. G. Petitioner was subsequently sentenced to 180 months

imprisonment on the conviction for DUI manslaughter and 60 months imprisonment on the

conviction for DUI causing serious bodily injury, to run consecutively. Doc. 6, Ex. H.

Petitioner appealed his sentence. Williams v. State, 769 So.2d 403, 404 (Fla. D. Ct. App.

2000). The appellate court remanded the case to the trial court “for its determination of whether

[Petitioner’s] sentences could have been imposed under the 1994 guidelines, without an upward

departure.” Id. On December 11, 2000, he was resentenced to 180 months on the manslaughter

conviction and 15.9 months on the bodily injury conviction, to run consecutively. Doc. 1 at 1.

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Petitioner then filed a timely motion for post-conviction relief in state court. Doc. 6 at

Ex. N. In that motion, he raised two claims of ineffective assistance of counsel. Id. at 5-6. In

the first, Petitioner argued:

[Petitioner] received constitutionally ineffective assistance of counsel due to the

failure of counsel to properly challenge the results of the blood draw ordered by

law enforcement officers....Had counsel properly challenged the blood draw

evidence based on non-compliance with the statutory mandate for reliable

procedures and administrative rules, the state would not have been entitled to the

statutory presumption of impairment upon which the state exclusively relied to

support its theory of prosecution. No alternative, independent evidence of

impairment was introduced at trial. Had counsel properly challenged the blood

evidence, the state would not have been able to prove that [Petitioner’s] faculties

were impaired beyond a reasonable doubt....But for the deficient performance

rendered by counsel, [Petitioner] would have been acquitted.

Id.

In the second claim for relief, Petitioner maintained:

Trial counsel...rendered ineffective assistance by failing to advise the Court upon

learning that a juror had improperly made verbal contact with members of

[Petitioner’s] family during a break from the trial proceedings. [Counsel] was

made aware of the improper contact immediately following its occurrence, and

his failure to advise the Court undermines any confidence in the resulting verdicts

tendered by the jury. [Counsel], as an officer of the court, was obligated to inform

the court when jurors engaged in the type of misconduct displayed during the

trial....In turn, the trial court would have been obliged to conduct an on-the-record

inquiry of the juror to determine whether the trial had been compromised by the

juror misconduct. Upon such a finding, [Petitioner] would have been entitled to a

mistrial. Because [counsel] knowingly failed to protect the rights of [Petitioner]

by neglecting to advise the Court of juror misconduct, [Petitioner] was denied the

effective assistance of counsel. Absent the proper inquiry from the trial court to

which [Petitioner] was entitled, it is submitted that [Petitioner] was denied his

right to a fair trial by an impartial jury.

Id. at 6.

The court denied the motion, finding:

Defendant has failed to conclusively demonstrate that trial counsel...was

ineffective for failure to challenge the admission of Defendant’s blood sample in

a particularized legal strategy and neglecting to inform the court of a jury taint.

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[Counsel] properly challenged the admission of Defendant’s blood sample

through pre-trial motion and cannot be labeled ineffective after failing to prevail. 

Next, Defendant, with full knowledge of contact between his family and a juror,

chose not to bring the potential taint to the court’s attention until after the bias did

not favor his side; therefore, he may not make issue of it afterward.

Not only has Defendant failed to demonstrate that an evidentiary hearing is

warranted, the underlying assertions are matters to be heard on direct appeal and

may not be subsequently placed at issue through collateral attack under Florida

Rule of Criminal Procedure 3.850.

Doc. 6, Ex. O (citations omitted).

Petitioner appealed the decision on the ground that the court erred in denying his motion

without evidentiary hearing. Doc. 6, Ex. P. The court of appeal affirmed without written

decision. Doc. 6, Ex. Q. The instant petition ensued.

On this occasion, Petitioner raises the identical claims of ineffectiveness raised in the

post-conviction motion. Doc. 1 at 6-7. According to Petitioner,

The specific grounds of ineffective assistance of counsel alleged by

Petitioner...involve (1) the failure to properly challenge the blood alcohol draw

evidence, as the scientific reliability of the evidence was compromised by

handling of the blood kit and blood samples and (2) the failure to advise the trial

judge of improper jury contact between one of the jurors and Petitioner[’s] family

(juror commented he had a close family member in jail and there was nothing to

worry about).

Doc. 1, Memorandum at 19.

Respondent concedes that Petitioner has “exhausted or technically exhausted available

state remedies at this time.” Doc. 6 at 2. He denies, however, that Petitioner is entitled to any

relief. 

DISCUSSION

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

court adjudication

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(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 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 state-court 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.

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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).

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 the Department of Corrections, 278 F.3d 1245,1255 (11th Cir. 2002).

Because both of Petitioner’s claims involve allegations that his counsel was ineffective, a

consideration of Strickland v. Washington, 466 U.S. 668 (1984), is appropriate.

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. 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

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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). “The

relevant question is not whether counsel’s choices were strategic, but whether they were

reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules” for

determining whether counsel’s actions were indeed reasonable, as “[a]bsolute rules would

interfere with counsel’s independence–which is also constitutionally protected–and would

restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001). “To uphold a lawyer’s strategy, [the Court] need not attempt to

divine the layer’s mental processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. 

“No lawyer can be expected to have considered all of the ways [to provide effective assistance].” 

Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A,

course B, and so on. The lawyer’s strategy was course A. And [the Court’s]

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

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 as a probability sufficient to undermine confidence in the

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 1The presumption statute states:

At the trial of any...criminal action...arising out of acts alleged to have been

committed by any person while driving, or in actual physical control of, a vehicle

while under the influence of alcoholic beverages...when affected to the extent that

the person’s normal faculties were impaired or to the extent that he...was deprived

of full possession of his...normal faculties, the results of any test administered in

accordance with § 316.1932 or § 316.1933 and this section are admissible into

evidence when otherwise admissible, and the amount of alcohol in the person’s

blood or breath at the time alleged, as shown by chemical analysis of the person’s

blood...gives rise to the following presumptions:

* * *

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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).

I. Failure properly to challenge the blood alcohol draw evidence.

In his first ground for relief, Petitioner claims that the “evidence adduced at trial

illustrates that the blood evidence introduced against Petitioner Williams was not obtained in

accordance with the core policies of the [Florida] implied consent law....” Doc. 1, Memorandum

at 19. Thus, because the “integrity and reliability of the blood purported to have been drawn

from Petitioner Williams...was compromised,” the State should not have been “entitled to the

presumption of impairment authorized under [the statute].”1

 Id. In Defendant’s estimation,

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(c) If there was at that time a blood-alcohol level...of 0.08 or higher, that fact is

prima facie evidence that the person was under the influence of alcoholic

beverages to the extent that his...normal faculties were impaired. Moreover, such

person who has a blood-alcohol level...of 0.08 or higher is guilty of driving, or

being actual physical control of, a motor vehicle, with an unlawful blood-alcohol

level....

The presumptions provided in this subsection do not limit the introduction of any

other competent evidence bearing upon the question of whether the person was

under the influence of alcoholic beverages to the extent that his...normal faculties

were impaired.

Fla. Stat. Ann. § 316.1934(2).

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counsel was ineffective for failing to challenge this aspect of the blood draw and the State’s right

to the presumption instruction.

According to Respondent, the state court “considered the same argument...and found that

there was no deficient performance and no prejudice” which “ was not an unreasonable

application of established federal law.” Doc. 6 at 9.

Petitioner did indeed present this identical argument to the state court on post-conviction. 

 Doc. 6, Ex. N at 5. This is important because if the state court failed to resolve the merits of this

claim, “the present controversy falls outside of § 2254(d)(1)’s requirement that [the Court] defer

to state court decisions that are not contrary to, or an unreasonable application of, clearly

established federal law.” Davis v. Secretary for Department of Corrections, 341 F.3d 1310,

1313 (11th Cir. 2003); see also Riley v. Cockrell, 339 F.3d 308 (5th Cir. 2003) (deferential

standard of review inapplicable where state court misunderstood nature of claim and therefore

did not adjudicate claim on merits).

As previously noted, the state court found: “Defendant has failed to conclusively

demonstrate that trial counsel...was ineffective for failure to challenge the admission of

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Defendant’s blood sample in a particularized legal strategy....[Counsel] properly challenged the

admission of Defendant’s blood sample through pre-trial motion and cannot be labeled

ineffective after failing to prevail.” Doc. 6, Ex. O. When the court’s holding is read in context,

it is clear that the state court did not fail to resolve the merits of the claim but rather determined

that the manner in which counsel challenged the blood draw--lack of probable cause--was a

“particularized legal strategy” for which counsel could not be faulted simply because he failed to

prevail on it. Thus, this Court must defer to that finding unless the decision is contrary to or

involves an unreasonable application of clearly established Supreme Court precedent. The Court

therefore focuses on the issue of “strategy.”

In this case, counsel did not simply choose course A–attacking the blood draw on a lack

of probable cause–but he also chose course B–attacking the blood draw based on failure to

follow proper protocol. As Petitioner acknowledges, counsel questioned witnesses about the

procedures for the blood draw and other pertinent matters, such as the time lapse between the

draw and the testing and the need for refrigerating the sample, see Doc. 1, Memorandum at 25-

26; however, in Petitioner’s estimation, counsel was ineffective for not pursuing course C, which

was the course taken by the defendant in State v. Miles, 775 So.2d 950 (Fla. 2000). In Miles,

counsel challenged the adequacy of the Florida Department of Law Enforcement (FDLE)

administrative rules governing the proper preservation of blood samples drawn pursuant to the

implied consent law, leading the Florida Supreme Court to find that “the absence of maintenance

standards renders [the FDLE regulations governing the testing of blood samples] inadequate and

inconsistent with the purpose of the implied consent law as it relates to ensuring the reliability of

test results.” Miles, 775 So.2d at 955. Thus, because there was no provision in the rule for

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preservation of the sample pending testing, the State was not entitled to the statutory

presumptions associated with the implied consent law. Id. at 953-54.

The Miles court reached its decision based in part on State v. Bender, 382 So.2d 697 (Fla.

1980). In Bender, the Florida Supreme Court, in finding pertinent sections of the implied

consent law delegating approval of testing methods to executive agencies to be constitutional,

held that “compliance with the statutory mandate for reliable procedures and administrative is

essential.” Miles, 775 So2d at 953. Therefore, the statutory presumptions in the implied consent

law did not apply absent compliance with the administrative rules. Bender, 382 So.2d at 700.

While Petitioner acknowledges that his trial counsel cannot be faulted for not being

clairvoyant (Miles was not decided by the Florida Supreme Court until three years after

Petitioner’s conviction), he argues that Bender dictated that counsel file a motion to suppress or

in limine to exclude evidence which he knew did not comply with proper protocol. Doc. 1,

Memorandum at 26. In other words, Petitioner attacks counsel’s representation not only because

he did not challenge the administrative rules themselves but also because he did not challenge

the blood draw evidence before trial, rather than during trial.

Regardless of how Petitioner shapes these arguments, they synthesize into an attack on

the strategic choices made by counsel in defending Petitioner, choices which cannot amount to

deficient performance unless they were unreasonable. As to counsel’s failure to challenge the

administrative rules themselves, the Court believes that the Miles court itself answered this

question when it recognized that the method of attacking the blood draw evidence in that case

was not the usual mode of attack: “Note that this case is different from many others in that the

adequacy of the rule itself was challenged at trial, as opposed to the noncompliance with the

rule.” Miles, 775 So.2d at 954 n.4. Since counsel utilized the usual method of attacking blood

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draw evidence, i.e., noncompliance with the rules, it is clear that Petitioner cannot show that “no

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

1216.

As to Petitioner’s argument that counsel should have lodged a pretrial challenge to the 

procedures actually used to draw and store Petitioner’s blood, rather questioning the procedures

during trial, the Court is of the opinion that this decision clearly falls within that realm of

reasonable strategic choices which is afforded protection from hindsight. It must be remembered

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

have done. Instead, the test is whether a reasonable lawyer could have acted in the circumstances

as defense counsel acted. Williamson, 221 F.3d at 1180. In this Court’s view, counsel’s actions

meet this test. As Petitioner himself admits, Counsel did not fail to attack the manner that

Petitioner’s blood sample was handled, transported, and stored. He just did not mount his attack

in the same manner that some other lawyer might have chosen. Although counsel did not attack

Petitioner’s blood sample via pretrial motion, it was not unreasonable for counsel to attack these

matters through the pertinent witnesses in the midst of trial. In short, this was a reasonable

tactical decision. 

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II. Failure to report improper jury contact.

In this ground for relief, Petitioner charges that counsel was ineffective for failing to

report juror contact with Petitioner’s family during trial. The facts underlying this claim were

presented to the state court as follows:

After the jury was seated at one point during a break a black female juror came

over to where we were standing asked [Petitioner’s] parents if he was their son. 

Then she said, “I know how it feels, my boy is in prison. You folks got nothing to

worry about.” [Petitioner’s] father related this incident to [trial counsel]

immediately. And on another occasion she started to talk to us, but this time a

bailiff caught her and [told] her to move on and not speak to the principles in the

trial.

Doc. 6, Ex. P. Respondent does not contest this version of the events. While the state court did

not find these factual assertions unworthy of credit, it addressed only Petitioner’s failure “to bring

the potential taint to the court’s attention until after the bias did not favor his side,” without

considering whether counsel was ineffective for not bringing the matter to the court’s attention. 

Although the Court has no basis for questioning the state court’s factual determinations and

defers to its factual conclusions, its failure to address the claim before it, i.e., whether counsel

violated Strickland, takes this matter “outside of § 2254(d)(1)’s requirement that [the Court]

defer to state court decisions that are not contrary to, or an unreasonable application of, clearly

established federal law.” Davis, 341 F.3d at 1313.

The Court begins with the following premise:

In a criminal case, any private communication, contact, or tampering, directly or

indirectly, with a juror during a trial about the matter pending before the jury is,

for obvious reasons, deemed presumptively prejudicial, if not made in pursuance

of known rules of the court and the instructions and directions of the court made

during the trial, with full knowledge of the parties. The presumption is not

conclusive, but the burden rests heavily upon the Government to establish, after

notice to and hearing of the defendant, that such contact with the jury was

harmless to the defendant.

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Remmer v. United States, 347 U.S. 227, 229 (1954). Defense counsel has an affirmative duty to

bring juror misconduct to the attention of the court. United States v. Curry, 471 F.2d 419, 422

(5th Cir. 1973). In Florida, “where...the trial court has...been made aware of juror misconduct

through a source other than the juror alleged to have caused the jury taint, such information,

where corroborated, has been deemed to require the declaration of a mistrial.” Lebron v. State,

799 So.2d 997, 1013-14 (Fla. 2001).

Respondent’s suggestion that counsel owed no duty to Petitioner to bring the contact to

the court’s attention is disingenuous. Counsel had an absolute duty to bring the matter to the

court’s attention so that his client’s right to a fair and impartial trial by a jury of his peers was

protected. Without knowledge of the comment, the trial court could not fulfill its responsibility

to the parties to ensure the integrity of the judicial process, as it could neither make inquiries

regarding the juror’s comment nor take curative action if necessary. Counsel should have

reported the comment to the court and let it decide whether the comment was favorable or

unfavorable to his client. There was no discretion on counsel’s part about this point, and no

reasonable attorney in counsel’s position would have acted as he did. Thus, counsel’s failure to

alert the court to the juror’s contact was deficient performance, and the Court turns to the

question of prejudice. 

Respondent argues that Petitioner cannot show prejudice because the “most” he had to

gain if counsel had been forthright with the court was a mistrial. Under Florida law, the

declaration of a mistrial was absolutely required if the juror contact was corroborated, and

Respondent does not even suggest that the declaration of a mistrial would not have been a

different outcome. But, in this Court’s view, to focus only on the verdict is too narrow a view to

take. Petitioner was deprived of more than the possibility of a mistrial: He was deprived of the

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opportunity for the court to ascertain whether the panel seated to determine his guilt or innocence

was fair and impartial, whether this juror had improperly formed an opinion before submission of

the case for deliberation, and whether the jury panel had been tainted in any way by the offending

juror’s opinions. This Court is not in a position to determine whether the juror’s comment was

favorable or unfavorable to Petitioner, and because of counsel’s silence, the trial court was not

allowed to make that determination in the first instance. Though the Court cannot say that in the

end the verdict would have been different, i.e., that Petitioner would have been acquitted of the

charges, it does believe that counsel’s unilateral decision to deprive the trial court of the

opportunity to exercise a gate-keeping function of this magnitude led to a different outcome in

the sense that there is a reasonable probability that, at the very least, the juror would have been

replaced with the alternate, and, thus, a different jury with different dynamics would have

considered and debated the evidence before rendering its verdict. As it stood, counsel was well

aware that the juror had violated the court’s instructions, Doc. 6, Ex. D at 15-16, and his failure

to fulfill this duty to his client allowed the trial to continue unabated, which in this Court’s

opinion, is sufficient to render the proceeding fundamentally unreliable, thereby establishing

prejudice.

CONCLUSION

Therefore, having found that counsel’s failure to inform the court of the improper juror

contact was deficient, and that this deficient performance prejudiced Petitioner’s right to a trial by

a fair and impartial jury, Petitioner is entitled to relief. Petitioner maintains that he “is not

requesting a discharge; he is merely requesting a retrial, wherein he is afforded a fair trial.” As

retrial is the only relief requested, the Court will recommend that this be the only form of relief

granted. However, if the State fails to retry Petitioner as ordered, the Court should reserve the

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right to order Petitioner’s discharge from custody and the dismissal of all charges against him. 

See Capps v. Sullivan, 13 F.3d 350 (10th Cir. 1993) (federal district courts have authority to

dispose of habeas corpus matters “as law and justice require”) (quoting 28 U.S.C. § 2243);

In light of the foregoing, it is respectfully RECOMMENDED:

That the petition for writ of habeas corpus, Doc. 1, be GRANTED;

That the State of Florida be ORDERED TO RETRY Petitioner within ninety (90) days

after the judgment is entered adopting the Report and Recommendation;

That the Court RESERVE the right to order Petitioner’s discharge from custody and the

dismissal of all charges against him if the State does not timely comply with the Court’s order to

retry.

IN CHAMBERS at Gainesville, Florida, this 25th day of January, 2006.

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.

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