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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOEY SMELLEY,

Petitioner,

vs. Case No.: 3:20cv5902/LAC/EMT

MARK S. INCH,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner Joey Smelley (Smelley) filed a counseled petition for writ of habeas 

corpus under 28 U.S.C. § 2254 (ECF No. 1). Respondent (the State) filed an answer 

and relevant portions of the state court record (ECF No. 6). Smelley filed a reply 

(ECF No. 9).

The case was referred to the undersigned for the issuance of all preliminary 

orders and any recommendations to the district court regarding dispositive matters. 

See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B)–(C) and Fed. R. 

Civ. P. 72(b). After careful consideration of the issues presented by the parties, it is 

the opinion of the undersigned that no evidentiary hearing is required for the 

disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is 

further the opinion of the undersigned that the pleadings and attachments before the 

court show that Smelley is not entitled to habeas relief.

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I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established 

by the state court record (see ECF No. 6).1 Smelley was charged in the Circuit Court 

in and for Okaloosa County, Florida, Case No. 2018-CF-179, with burglary of a 

dwelling with assault or battery (Count 1), grand theft (over $20,000 but less than 

$100,000) (Count 2), grand theft of a firearm (Count 3), and grand theft auto (Count 

4) (ECF No. 6-1 at 18 (amended information)). 

On July 18, 2018, Smelley entered a written plea agreement with the State

(see ECF No. 6-1 at 21–24 (plea agreement)). The plea agreement encompassed 

Smelley’s four charges in Case No. 2018-CF-179, as well as a charge of felony 

criminal mischief in Case No. 2017-CF-2858 and a charge of violation of probation 

(VOP) in Case No. 2017-CF-1072 (id.). Smelley agreed to enter an “open plea” of 

no contest to the charges to enable him to seek a downward departure sentence (see

ECF No. 6-1 at 21–24 (plea agreement); ECF No. 1 at 31). Smelley agreed that the 

probable cause affidavit(s) filed with the court provided a factual basis for his plea

to each of the charges (id.). Specifically with respect to the charges in Case No. 

2018-CF-179, the probable cause affidavit set forth the following facts:

1 Citations to the state court record refer to the document numbers and page numbers assigned by 

the court’s electronic filing system. 

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On September 10, 2017, the Okaloosa County Sheriff’s Office received 

a report of [sic] and responded to 5371 N. Hilton Road, Baker, FL, 

regarding a Home Invasion Robbery and subsequent stolen vehicle, 

firearm, precious metals, and monies. Per sworn Affidavits of 

Complaint by the victims, two male suspects entered the home 

surreptitiously through a window of the residence. The suspects then 

entered the master bedroom, occupied by Marilyn Maloney and Bruce 

Hoffman. Mrs. Maloney awoke and was confronted by the suspects, 

and was informed that the other occupants of the residence were being 

held hostage. The suspects demanded money and guns before fleeing 

the residence with only Hoffman’s wallet. As the suspects fled, they 

obtained the keys to a 2005 Lincoln Towncar belonging to Marilyn 

Maloney’s son Robert, who was asleep in a separate bedroom of the 

residence at the time of the offense. The suspects departed the property 

by stealing Robert Maloney’s Lincoln Towncar, which at the time 

contained a bank bag containing approximately $5,000 cash, several 

collectible silver coins, gold bars, Glock Firearm, and retired law 

enforcement credentials. The monetary value of the precious metals is 

approximated at $22,000. The manner of the robbery and the seeming 

familiarity of the suspects with the contents and layout of the residence 

led investigators to believe from the outset that one if not both or the 

suspects were known to the victims.

On November 27, 2017, your affiant received a letter from a 

confidential source claiming to have information identifying the 

suspects in the robbery. The letter contained details of the incident 

which could only be known by the victims or suspects to include a 

description of the property taken and quotes spoken by the suspects 

during the offense and reported by Mrs. Maloney. An interview of this 

confidential source was later conducted and further details were 

provided which confirmed the credibility of the information which the 

CS claimed to have obtained directly from the defendant, Joey Kyle

SMELLEY. According to the CS, SMELLEY also identified coconspirators in the offense. The CS stated SMELLEY had identified 

the other suspect who entered the home as “Cody” but was unclear on

“Cody’s” last name. The CS believed “Cody’s” last name was 

Copeland or Kirkland or something similar. According to the CS 

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“Cody” was the individual who already had intimate knowledge of the 

residence and the victims.

In addition to the information provided by the CS, a tip was received 

on November 28, 2017, through Emerald Coast Crimestoppers, 

identifying Cody J. KURPIL as a person or interest. According to the 

Crimestoppers tip, KURPIL had made remarks and bragged to the 

tipster that “if they find out he will do 25 years. One home invasion in 

Laurel Hill had women in the home and did not go as expected.”

Although the location of the original offense did not match this tip, the

remainder of the Information is indicative of the Home Invasion 

Robbery on Hilton Road under investigation, further corroborating the 

information provided by the CS.

When Robert Maloney was contacted and asked as to whether he knew 

anyone by the name “Cody”, he immediately identified Cody KURPIL 

as an acquaintance, and stated that at one time KURPIL had done 

landscaping and maintenance work at the residence. This information 

from Maloney further authenticated information which had now been

provided by the CS.

According to information provided by the CS, shortly after the date of 

the offense, SMELLEY purchased a Lincoln Towncar with his part of 

the proceeds from the robbery and intended on using parts from the 

stolen vehicle to replace and repair the vehicle be purchased. OCSO 

call history records show that on September 12, 2017, SMELLEY was 

found walking on Hilton Road, away from an abandoned 2001 Lincoln 

Towncar which had run into a ditch and sustained a flat tire. On

October 3, 2017, SMELLEY was found to be operating the same 

vehicle and was taken into custody for traffic related offenses. The 

vehicle and concern for it is discussed in multiple recorded telephone 

conversations between SMELLEY and others, since his incarceration 

at the Okaloosa County Jail. In one such conversation, Sheila 

EMERSON (SMELLEY’s mother) states that she had SMELLEY’s 

2001 Lincoln towed to her residence. Although conversations between 

the two are often guarded, when put into context with the information 

provided by the CS, these recorded conversations support the probable 

cause:

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On October 4, 2017, EMERSON tells SMELLEY, “I got your car . . . 

backed up at the house.” SMELLEY then tells EMERSON, “There’s 

some things that go on the tires, did you see those in the trunk? Take 

those and put those up. You know what I’m talking about.”

On October 18, 2017, SMELLEY asks EMERSON “Did you see in the 

trunk them little circle things that go inside the wheels?” EMERSON 

replies, “I threw them away.” SMELLEY then states, “I been stressin’

over it.”

On October 20, 2017, in a conversation with his girlfriend Alyssa 

ROGERS, SMELLEY says, “Listen, I don’t want to say too much over 

the phone but you know what I did right? What me and Cody did? . . . 

I didn’t want you involved in that and I’m still scared that Cody gonna 

leak something out . . . but I took care of everything, and it’s pretty 

shitty. I made sure Anna, and everybody was straight. Cody and them 

don’t have nothin’ to show for the job . . . I got a car, I bought me a

car.” (Anna was identified by the CS as Anna Delpozo and according

to the information provided by the CS, Delpozo was among those privy 

to the planned robbery and was in the vehicle that dropped SMELLEY 

and KURPIL off on Hilton Road to approach the residence on foot.)

On an unspecified date in December, 2017 a clandestine recording 

device was introduced into the Okaloosa County Jail and captured 

several conversations involving SMELLEY. SMELLEY makes 

several incriminating statements throughout this recording, however at 

one point, while SMELLEY is discussing the dividing of the profits, 

SMELLEY says that he gave his mother one of the coins (referring to 

the collectible silver coins) and SMELLEY has made several references 

to “the silver” throughout multiple, recorded jail conversations. In 

further recorded conversation, SMELLEY also states, “Mom (Sheila 

EMERSON) took the badge away from me because I told her l was 

gonna be driving around busting people.” The badge, SMELLEY is 

referring to could only he the retired OCSO Lieutenant’s badge which 

was in Maloney’s car at the time it was stolen. In other excerpts of 

recorded conversation in which SMELLEY speaks of the offense he 

says, “I did what I did . . . I risked my life in prison . . . That shit 

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punishable by life, home invasion, armed robbery . . . I was masked up, 

gloves on . . .”

When speaking about press coverage of the robbery he says, “Two 

individuals armed . . . they didn’t mention the gold . . .” This gold he 

refers to were the gold bars (purchased as precious metal investments) 

which bad been in the vehicle at the time it was stolen. He then goes 

on to wonder aloud, “who Dustin (SMELLEY’s brother Dustin 

Emerson) gave that gun to. Whoever gets caught with that bitch is 

going down. That Glock .40.” This refers to the Sheriff’s Office issued 

Glock .40, presented to Maloney at the time of his retirement, which 

was also in the vehicle at the time it was stolen.

In one lengthy recorded statement by SMELLEY, he describes the 

events which took place inside the home. “I didn’t even know he was 

laying in the bed, [Bruce Hoffman was asleep on the bed when suspects 

entered his bedroom and confronted Marilyn Maloney] all I knew was 

the old lady right there. I saw her to my right . . . I’d never have gone 

in there if I knew she was in there but there was kids in there too . . . I 

was in the room already when she said, ‘What are you doing?’ I didn’t

know the dude was in front of me like that. . . 1 went in his pockets got

his keys, got his wallet . . . Cody was trying to get a big old flatscreen

too . . . She was sitting in the chair like she was knitting or something

. . . I did that like three to four days out on probation when I hit that 

lick.” This information is all corroborated almost verbatim by the 

statements of Bruce Hoffman and Marilyn Maloney as to the sequence 

of events which occurred on September 10, 2017, to include the fact

that SMELLEY bad been released from the Okaloosa County Jail on 

September 6, 2017 with probation for a previous offense.

(ECF No. 6-1 at 10–13 (probable cause affidavit)).

At a hearing on July 18, 2018, the court conducted a colloquy with Smelley, 

determined that Smelley’s plea was voluntarily entered, accepted the plea, ordered

a PSI, and set the cases for sentencing (ECF No. 6-1 at 26 (felony minute sheet)).

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Smelley was sentenced on August 22, 2018 (ECF No. 6-2 at 43–73 (transcript

of sentencing)). Smelley’s sentencing scoresheet reflected a statutory maximum of 

65 years in prison and a lowest permissible prison sentence of 97.2 months 

(approximately 8 years) (see ECF No. 6-1 at 45–47 (sentencing scoresheet)). The 

court sentenced Smelley to a total sentence of 20 years in prison followed by 30 

years of probation (ECF No. 6-1 at 39–44 (judgment and sentence)). Smelley did 

not appeal the judgment. 

On February 27, 2019, Smelley filed a counseled motion for post-conviction 

relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of 

Criminal Procedure (ECF No. 6-2 at 24–123 (Rule 3.850 motion and attachments)). 

The circuit court summarily denied the motion in an order rendered on July 24, 2019

(id. at 131–207 (order and attachments)). Smelley appealed the decision to the

Florida First District Court of Appeal, Case No. 1D19-3014 (id. at 208–09 (notice 

of appeal), 212–13 (notice of no initial brief)). The First DCA affirmed the circuit 

court’s decision per curiam without written opinion on March 12, 2020 (id. at 215–

16 (opinion)). Smelley v. State, 291 So. 3d 924 (Fla. 1st DCA 2020) (Table). The 

mandate issued April 3, 2020 (id. at 217 (mandate)). 

Smelley commenced this federal habeas action on October 25, 2020 (ECF No.

1). 

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II. STANDARD OF REVIEW

A federal court “shall not” grant a habeas corpus petition on any claim that 

was adjudicated on the merits in state court unless the state court’s decision “was 

contrary to, or involved an unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The United 

States Supreme Court explained the framework for § 2254 review in Williams v. 

Taylor, 529 U.S. 362 (2000).2 Justice O’Connor described the appropriate test:

Under the “contrary to” clause, a federal habeas court may grant 

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

by this court on a question of law or if the state court decides a case 

differently than this Court has on a set of materially indistinguishable 

facts. Under the “unreasonable application” clause, a federal habeas 

court may grant the writ if the state court identifies the correct 

governing legal principle from this Court’s decisions but unreasonably 

applies that principle to the facts of the prisoner’s case.

Id., 529 U.S. at 412–13 (O’Connor, J., concurring). 

Under the Williams framework, the federal court must first determine the 

“clearly established Federal law,” namely, “the governing legal principle or 

principles set forth by the Supreme Court at the time the state court render[ed] its 

2 Unless otherwise noted, references to Williams are to the majority holding, written by Justice 

Stevens for the Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in 

parts I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and Justice O’Connor for the 

Court (joined by Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia)

in part II (529 U.S. at 403–13). The opinion of Justice Stevens in Part II was joined by Justices 

Souter, Ginsburg, and Breyer. 

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decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). After identifying the 

governing legal principle, the federal court determines whether the state court’s 

adjudication is contrary to the clearly established Supreme Court case law. The 

adjudication is “contrary” only if either the reasoning or the result contradicts the 

relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding 

th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases—indeed, it does 

not even require awareness of our cases, so long as neither the reasoning nor the 

result of the state-court decision contradicts them.”). 

If the “contrary to” clause is not satisfied, the federal court determines whether 

the state court “unreasonably applied” the governing legal principle set forth in the 

Supreme Court’s cases. The federal court defers to the state court’s reasoning unless 

the state court’s application of the legal principle was “objectively unreasonable” in 

light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. 

Jackson, 542 U.S. 649, 652 (2004). “[E]ven a strong case for relief does not mean 

the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562 

U.S. 86, 102 (2011). 

Section 2254(d) also allows habeas relief for a claim adjudicated on the merits 

in state court where that adjudication “resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

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court proceeding.” 28 U.S.C. § 2254(d)(2). The “unreasonable determination of the 

facts” standard is implicated only to the extent the validity of the state court’s 

ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 

633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable application” 

clause, the federal court applies an objective test. See Miller-El v. Cockrell, 537 

U.S. 322, 340 (2003) (holding that a state court decision based on a factual 

determination “will not be overturned on factual grounds unless objectively 

unreasonable in light of the evidence presented in the state court proceeding.”). “The 

question under AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996]

is not whether a federal court believes the state court’s determination was incorrect 

but whether that determination was unreasonable—a substantially higher threshold.” 

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). 

AEDPA also requires federal courts to “presume the correctness of state courts’ 

factual findings unless applicants rebut this presumption with ‘clear and convincing 

evidence.’” Landrigan, 550 U.S. at 473–74 (quoting 28 U.S.C. § 2254(e)(1)). 

The Supreme Court has often emphasized that a state prisoner’s burden under 

§ 2254(d) is “difficult to meet, . . . because it was meant to be.” Richter, 562 U.S. 

at 102. The Court elaborated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete 

bar on federal-court relitigation of claims already rejected in state 

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proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 

135 L. Ed. 2d 827 (1996) (discussing AEDPA’s “modified res judicata 

rule” under § 2244). It preserves authority to issue the writ in cases 

where there is no possibility fairminded jurists could disagree that the 

state court’s decision conflicts with this Court’s precedents. It goes no 

further. Section 2254(d) reflects the view that habeas corpus is a “guard 

against extreme malfunctions in the state criminal justice systems,” not 

a substitute for ordinary error correction through appeal. Jackson v. 

Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781, 61 L. Ed. 2d 560 

(1979) (Stevens, J., concurring in judgment). As a condition for 

obtaining habeas corpus from a federal court, a state prisoner must 

show that the state court’s ruling on the claim being presented in federal 

court was so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility 

for fairminded disagreement.

Richter, 562 U.S. at 102–03 (emphasis added). 

A federal court may conduct an independent review of the merits of a 

petitioner’s claim only if it first finds that the petitioner satisfied § 2254(d). See 

Panetti v. Quarterman, 551 U.S. 930, 954 (2007). Even then, the petitioner must 

show that he is in custody “in violation of the Constitution or laws and treaties of the 

United States,” see 28 U.S.C. § 2254(a), and that the constitutional error resulted in 

“actual prejudice,” meaning, the error “had a substantial and injurious effect or 

influence in determining the jury’s verdict,” see Brecht v. Abrahamson, 507 U.S. 

619, 637 (1993) (internal quotation marks and citation omitted).

III. SMELLEY’S CLAIMS

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A. “Ineffective assistance of counsel—counsel failed to introduce 

medical records and/or present expert testimony in support of a 

downward departure.”

Smelley asserts defense counsel was ineffective for failing to introduce 

medical records and/or expert testimony in support of a downward departure 

sentence (ECF No. 1 at 5, 16–29). Smelley alleges he has a long and welldocumented history of suffering from congenital static encephalopathy (a brain 

abnormality), mild retardation, and mental health issues, including Attention Deficit 

Hyperactivity Disorder (ADHD), poor impulse control, Asperger’s Syndrome (a 

form of autism), and anxiety with tachycardia (id. at 16–17). 

Smelley alleges he appeared for a sentencing hearing in an earlier Okaloosa 

felony case in 2010 (eight years prior to his sentencing in the instant case) (ECF No. 

1 at 18). Smelley alleges at the 2010 sentencing hearing, James D. Larson, Ph.D. 

testified regarding Smelley’s mental health disorders and defects (id. at 17). Dr. 

Larson additionally testified that he did not believe that the Florida Department of 

Corrections (FDOC) could adequately treat Smelley due to the complexity of his 

case (id. at 18–19). 

Smelley alleges at the sentencing hearing in the instant case, defense counsel 

informed the court that he was seeking a downward departure based upon Smelley’s 

mental health issues, but counsel failed to present medical records and/or expert 

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testimony in support of a downward departure (id. at 19–21). Smelley asserts the 

trial court found that the evidence was insufficient to support a downward departure 

sentence (id. at 21). 

Smelley states he presented an ineffective-assistance-of-trial-counsel (IATC) 

claim in his Rule 3.850 motion, arguing—as he does here—that his trial counsel was 

ineffective for failing to present medical evidence (documentary and/or expert 

testimony) in support of his request for a downward departure (see ECF No. 1 at 

21–22).

The State concedes that Smelley presented Ground One in his Rule 3.850 

motion, and “it appears” he exhausted the claim (see No. 6 at 17–18 & n.3). The 

State contends the claim was adjudicated on the merits by the state court, and 

Smelley had not satisfied the standard for habeas relief under § 2254(d) (id. at 17–

26). 

a. Clearly Established Federal Law

The standard for evaluating claims of ineffective assistance of counsel is set 

forth in Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under 

Strickland, the petitioner must show (1) deficient performance by counsel, and (2) a 

reasonable probability that, but for counsel’s deficient performance, the result of the 

proceeding would have been different. Id. at 687–88. If the petitioner fails to make 

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a showing as to either performance or prejudice, he is not entitled to relief. Id. at 

697. 

The focus of inquiry under the performance prong of Strickland is whether 

counsel’s assistance was “reasonable considering all the circumstances,” and 

reasonableness is measured “under prevailing professional norms.” Strickland, 466 

U.S. at 688. “The petitioner’s burden to prove, by a preponderance of the evidence, 

that counsel’s performance was unreasonable is a heavy one.” Jones v. Campbell, 

436 F.3d 1285, 1293 (11th Cir. 2006) (citing Chandler v. United States, 218 F.3d 

1305, 1313 (11th Cir. 2000) (en banc)). If the record is not complete regarding 

counsel’s actions, “then the courts should presume that what the particular defense

lawyer did at trial—for example, what witnesses he presented or did not present—

were acts that some lawyer might do.” Jones, 436 F.3d at 1293 (citing Chandler, 

218 F.3d at 1314–15 n.15). “Even if many reasonable lawyers would not have done 

as defense counsel did at trial, no relief can be granted on ineffectiveness grounds 

unless it is shown that no reasonable lawyer, in the circumstances, would have done 

so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). 

The Supreme Court instructed that in reviewing claims of ineffective 

assistance of counsel the court must be mindful of the following:

Judicial scrutiny of counsel’s performance must be highly 

deferential. It is all too tempting for a defendant to second-guess 

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counsel’s assistance after conviction or adverse sentence, and it is all 

too easy for a court, examining counsel’s defense after it has proved 

unsuccessful, to conclude that a particular act or omission of counsel 

was unreasonable. A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of counsel’s challenged conduct, and 

to evaluate the conduct from counsel’s perspective at the time. Because 

of the difficulties inherent in making the evaluation, a court must 

indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance; that is, the defendant 

must overcome the presumption that, under the circumstances, the 

challenged action “might be considered sound trial strategy.” There are 

countless ways to provide effective assistance in any given case. Even 

the best criminal defense attorneys would not defend a particular client 

in the same way.

Strickland, 466 U.S. at 689 (citations omitted). 

As to the prejudice prong of the Strickland standard, the petitioner’s burden 

of demonstrating prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 

(11th Cir. 2002). To establish prejudice, the petitioner must show “that every fairminded jurist would conclude ‘that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” Jones v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014) (quoting 

Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome,” not that counsel’s conduct more likely than 

not altered the outcome of the proceeding. Id. (citation omitted). The petitioner 

must show that the likelihood of a different result is substantial, not just conceivable. 

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Williamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (citing 

Richter, 562 U.S. at 112). When ineffective assistance of counsel is raised in the 

context of sentencing, a defendant must demonstrate that there is a reasonable 

probability that, but for counsel’s errors, the result of the sentence would have been 

less severe. See Glover v. United States, 531 U.S. 198, 203–04 (2001).

Finally, when a district court considers a habeas petition, the state court’s 

findings of historical facts in the course of evaluating an ineffectiveness claim are 

subject to the presumption of correctness, while the performance and prejudice 

components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier 

v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “Surmounting Strickland’s high 

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). 

“Establishing that a state court’s application of Strickland was unreasonable under 

§ 2254(d) is all the more difficult.” Richter, 562 U.S. at 105. As the Richter Court 

explained:

The standards created by Strickland and § 2254(d) are both 

“highly deferential,” and when the two apply in tandem, review is 

“doubly” so. The Strickland standard is a general one, so the range of 

reasonable applications is substantial. Federal habeas courts must 

guard against the danger of equating unreasonableness under Strickland

with unreasonableness under § 2254(d). When § 2254(d) applies, the 

question is not whether counsel’s actions were reasonable. The 

question is whether there is any reasonable argument that counsel 

satisfied Strickland’s deferential standard.

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Id. (citations omitted).

b. Federal Review of State Court Decision

Smelley presented Ground One in his counseled Rule 3.850 motion (ECF No. 

6-2 at 24–39). Smelley attached two transcripts to his Rule 3.850 motion: (1) the 

transcript of the sentencing hearing in Smelley’s 2010 case, Okaloosa County Case 

No. 2009-CF-1990, and (2) the transcript of the sentencing hearing in Smelley’s 

2018 case, Okaloosa County Case No. 2018-CF-179 (the case he challenged in the 

Rule 3.850 proceeding (and challenges in this federal habeas case)) (ECF No. 6-2 at 

40–123). Smelley argued that if defense counsel had presented medical evidence of 

Smelley’s mental health condition in support of his request for a downward 

departure under Fla. Stat. § 921.0026(2)(d), as Smelley’s counsel had done at the 

2010 sentencing, there was a reasonable probability the court would have imposed 

a less severe sentence. 

Florida courts apply a two-part analysis for determining the propriety of a 

downward departure sentence. First, the trial court must determine whether it can

depart, i.e., whether there is a valid legal ground and adequate factual support for 

that ground in the case pending before it. Banks v. State, 732 So. 2d 1065, 1067 

(Fla. 1999). To satisfy the first step, the defendant must present competent 

substantial evidence to support the departure. Id. If the defendant makes that 

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showing, the trial court must then determine whether it should depart, i.e., whether 

departure is the best sentencing option for the defendant. Id. at 1068. The court 

must weigh the totality of the circumstances in the case, including aggravating and 

mitigating factors. Id.

Florida statutes authorize a trial court to give a downward departure sentence 

if it finds that “[t]he defendant requires specialized treatment for a mental disorder 

that is unrelated to substance abuse or addiction or for a physical disability, and the 

defendant is amenable to treatment.” Fla. Stat. § 921.0026(2)(d). A defendant who 

is requesting a downward departure sentence pursuant to subsection 921.0026(2)(d) 

must prove the following three elements by a preponderance of the evidence: (1) 

the defendant has a mental disorder (unrelated to substance abuse or addiction) or a 

physical disability; (2) which requires specialized treatment; and (3) the defendant 

is amenable to such treatment. State v. Chubbuck, 141 So. 3d 1163, 1171 (Fla. 

2014). “Amenability” is defined as “’a reasonable possibility that . . . treatment will 

be successful.’” Id. at 1171 n.22 (quoting Herrin v. State, 568 So. 2d 920, 922 

(Fla.1990)).

As previously noted, Smelley argued in his Rule 3.850 motion that defense 

counsel should have offered medical evidence in support of his request for a 

downward departure. In support of his claim, Smelley proffered Dr. Larson’s 

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testimony at the 2010 sentencing. At the 2010 sentencing, Dr. Larson testified as an 

expert in psychology and psychiatry (ECF No. 6-2 at 78–79). He testified he 

interviewed Smelley and reviewed “voluminous” records, including Smelley’s 

criminal history, psychiatric records, and medical records, including a report from a 

pediatric neurologist (id. at 79–80). Dr. Larson testified Smelley was born 

premature and suffered brain damage as a result (specifically, encephalopathy or 

chronic inflammation of the brain) (id. at 80–84). Dr. Larson testified Smelley had 

a low IQ “in the 60’s or mildly retarded range” (id. at 82). Dr. Larson testified that 

Smelley’s former psychiatric treatment providers diagnosed him with poor impulse 

control, intermittent explosive disorder, Attention Deficit Disorder (ADD), 

Attention Deficit Hyperactive Disorder (ADHD), depression, anxiety, and 

Asperger’s Syndrome (a “lesser form of autism”) (id. at 81–85). Dr. Larson testified 

he noted that Smelley had been involuntarily committed approximately 15 times (by 

the age of 18) due to suicidal attempts or self-injurious behavior (id. at 84, 86). 

Dr. Larson testified he expected patients suffering from Smelley’s medical 

and mental health conditions to “show poor judgment and not be compliant to 

medications or—nor to conform their conduct generally to the norms and mores of 

society” (ECF No. 6-2 at 85, 88). Dr. Larson testified that a person with Smelley’s 

conditions was susceptible to influence by others, lacked good judgment, and was 

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impulsive, but that Smelley had the capacity to understand the wrongfulness of his 

conduct (id. at 87, 98). Dr. Larson testified that Smelley’s criminal history reflected 

28 arrests (again, Smelley was 18 years old at the time of the 2010 sentencing) (id.

at 87–88).

Dr. Larson testified that even when Smelley was not in a penal institution, his

treatment providers were unable to keep his behavior under control:

Q [by defense counsel]. . . . An individual with his medical 

history and his diagnoses, are—is it possible to keep his behavior

under control through a course of treatment and medication?

A. Based on my review of the records, they were—in spite of 

the treatment that he had at Baptist, the adolescent treatment program, 

they couldn’t keep it under control there even though that’s in a 

psychiatric facility, he’s Baker-acted [involuntarily committed]. So 

they moved him to what’s called a PAX program, which is for adults. 

And at certain times, his behavior would be under reasonable control in 

a psychiatric facility; but as I pointed out, there were multiple 

hospitalizations during—I forgot just how long he was with DJJ 

[Department of Juvenile Justice], but I’d say ten or twelve 

hospitalizations. So he was never able to sustain a significant period 

of time in stability.

(ECF No. 6-2 at 88) (emphasis added).

Defense counsel asked Dr. Larson if Smelley’s condition could be adequately 

treated in the Florida Department of Corrections (FDOC) (ECF No. 6-2 at 88). Dr. 

Larson answered, “Probably not” (id.). Dr. Larson stated that the basis for his 

answer was the FDOC’s inability to provide “a complete neurological evaluation 

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and a complete psychological evaluation with cognitive testing,” which one of 

Smelley’s psychiatrists had recommended (id. at 89). Dr. Larson testified there was 

no indication that the DJJ performed these recommended evaluations and testing, so 

Larson surmised that all state institutions lacked the resources to meet Smelley’s 

needs (id.). Dr. Larson testified he belonged to “an Internet group” and had talked 

to mental health providers in a number of different prisons (id.). Larson testified 

that a forensic psychologist who he recently contacted said that resources for mental 

health treatment had been reduced in the prisons he had visited (id.). Dr. Larson 

testified he recently spoke with a mental health worker in one particular FDOC 

institution, Santa Rosa Correctional Institution, who stated that their resources were 

limited, and they were providing group therapy but not individual therapy (id. at 89–

90). 

Dr. Larson opined that Smelley “has a mental disorder for which he is in need 

of specialized treatment, disorders unrelated to substance abuse and he’s amenable 

to treatment” (ECF No. 6-2 at 94), which is a nearly verbatim recitation of the 

statutory language of the “mental disorder” mitigating circumstance, see Fla. Stat. 

§ 921.0026(2)(d). Dr. Larson followed that opinion with testimony regarding the 

possibility of Smelley’s receiving successful treatment:

I don’t think—first of all, it’s hard to offer this man adequate 

treatment no matter where he is. Secondly, you compare the 

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treatment he had at DJJ versus Baptist Hospital, they weren’t able to 

manage him at DJJ, and so he had to have multiple psychiatric 

hospitalizations while he was under the control of the Department of

Corrections. So Department of Corrections does have some facilities 

where they have a total psychiatric ward. I haven’t toured those wards, 

but it’s hard for me to imagine that in this time of limited resources that 

the kind of care and treatment he needs could be adequately provided 

readily in a state facility.

(ECF No. 6-2 at 94) (emphasis added). 

At the 2010 sentencing, Smelley was being sentenced on nine felony counts, 

including one count of aggravated battery with great bodily harm with a deadly 

weapon, which was based upon his membership of a group of persons who assaulted 

an individual (see ECF No. 6-2 at 90). Dr. Larson testified that persons with 

Smelley’s condition “are much more vulnerable to being influenced by others and 

to engage in inappropriate behavior in the community” (id. at 90–91). Dr. Larson 

testified that Smelley’s psychiatric and neurological history substantially impaired 

his ability to conform his conduct with the law but did not meet the legal standard 

of insanity (id. at 95–96).

Smelley addressed the court at the 2010 sentencing and requested a 

probationary sentence (ECF No. 6-2 at 107). Smelley admitted he did not take his 

medication but promised to comply with any court-ordered treatment (id.). Smelley

also promised, “I won’t never [sic] break the law again” (id.).

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The 2010 sentencing court determined that despite Dr. Larson’s testimony, a 

downward departure was not appropriate (ECF No. 6-2 at 111-14). The court’s 

decision boiled down to whether a downward departure sentence, meaning a nonprison sentence of community supervision, was the best sentencing option (id.). The 

court opined that there were not sufficient resources in the probationary system to

supervise Smelley and ensure his compliance with the mental health treatment he 

required:

There is no [non-prison] sanction that I can impose upon him 

which will give him the direct supervision and assistance that he needs 

to be compliant with these circumstances. I can’t order that community 

supervision, at least in our district—I’m not sure anywhere in Florida 

that there is a residential program that I can place him in with the 

circumstances he finds himself in that would supervise him and 

maintain and be sure that he maintains his compliance with his course 

of treatment.

(ECF No. 6-2 at 112). The court stated, “I might even go out on a limb if I felt there 

was some alternative where I could provide for the kind of treatment . . . [such] that 

supervision would work for Mr. Smelley, but there is no such thing for him.” (id. at 

113).

The 2010 sentencing court also determined that a downward departure was 

not appropriate under the factor that permits mitigation where the defendant’s 

capacity to appreciate the criminal nature of his conduct or to conform his conduct 

to the requirements of the law was substantially impaired, see Fla. Stat. 

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§ 921.0026(c) (ECF No. 6-2 at 112–13). The court determined that Smelley had the 

capacity to appreciate the criminal nature of his conduct or to conform his conduct 

to the law, noting that Smelley admitted he had broken the law and promised he 

would not do so in the future (id. at 113). The court imposed a prison sentence of 

94.3 months (almost 8 years) in prison, with 36 months suspended (id. at 114–16).

Fast forward to Smelley’s 2018 sentencing. According to Smelley’s 

sentencing scoresheet, the statutory maximum sentence for Smelley’s offenses was 

65 years in prison, and the lowest permissible prison sentence was 97.2 months 

(approximately 8 years and 1 month) (see ECF No. 6-2 at 140–44).

At sentencing, Smelley’s counsel requested a downward departure based upon 

Smelley’s longstanding severe mental health issues (see ECF No. 6-2 at 47–48). 

Counsel presented testimony from Smelley’s mother, Sheila Emerson. Ms. Emerson 

testified that Smelley “always had mental problems” and tried to kill himself “a lot” 

(id. at 52). Ms. Emerson testified, “He’s got something wrong with his brain when 

he was little, but they said that he had something with his brain. He’s always been 

on medication for bi-polar, depression, whatever you call it.” (id. at 52). The court 

sustained the State’s objection to any further testimony from Ms. Emerson regarding 

Smelley’s medical diagnoses (id.). Ms. Emerson testified Smelley had been taking 

medication since he was 7 years old (id.). She testified Smelley “has been on his 

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disability all his life for mental problems” and received a disability check (id. at 53–

54). Ms. Emerson testified that if Smelley was released to the community, he would 

live with her and Smelley’s stepfather (recall that during a jail conversation, Smelley 

and his mother discussed removing some of the stolen collectible silver coins (“them 

little circle things”) from the trunk of the car, and Smelley admitted in another jail 

phone call that his mother was the recipient of one of the silver coins stolen during 

the burglary) (id. at 53). 

Smelley personally addressed the sentencing court as follows:

Your Honor, I just wanted to apologize to the courts and 

everybody for what I’ve done. I understand that I made a mistake, you 

know. I wasn’t—I wasn’t on my meds and stuff and I’m not, you know, 

saying that was it, but I wasn’t on my meds and I was on drugs and 

easily influenced. But I’m sorry for everything I’ve done and I would 

just like a chance, if anything, if I can get like some help, you know, 

instead of just sending me to prison, I need help. I’m sorry for 

everything.

(ECF No. 6-2 at 55).

Defense counsel argued the following in support of the downward departure:

I think it’s very important for the Court—I think the Court does 

understand that he has a severe mental condition and on page nine, Your 

Honor, of the PSI report, the assessment and the recommendation, the 

alternative recommendation, disposition, I’ve never seen anything like 

that written before, Judge. And it goes on for—from page nine into 

page ten and it talks about all the mental health counseling sessions and 

that he is supposed to be taking his medications and they are 

recommending that he submit to random multi drug testing. . . .

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And it goes on and it says, Your Honor, it says the defendant 

might return to an unstable environment as both he and his mother state 

that he has severe mental health issues that he hasn’t been adequately 

treated for. Mr. Smelley does not appear to have a strong support 

system to help ensure that he gets the extensive level of mental health 

treatment that he may require.

(ECF No. 6-2 at 56).

The prosecutor argued for a prison sentence of 30 years (see ECF No. 6-2 at 

57–60). The prosecutor noted that the primary recommendation of the PSI was 

incarceration in prison. The prosecutor argued that Smelley’s statements included 

in the probable cause affidavit demonstrated (1) he knew what he was doing when 

he committed the offenses, (2) he knew that his conduct was wrong, and (3) he knew 

that his conduct exposed him to life imprisonment. The prosecutor argued that 

Smelley’s criminal history demonstrated he was a danger to society. The prosecutor

further argued that the circumstances of the burglary also demonstrated he was a 

danger to society, specifically, that Smelley held the victims inside their bedroom, 

told the victims that there was a hostage in another room, demanded guns and 

money, and stole tens of thousands of dollars as well as a car. The prosecutor

referenced a letter written by one of the victims, Ms. Maloney, which was submitted 

to the court and referenced in the PSI. The prosecutor noted that Ms. Maloney stated 

she suffered “severe medical complications” and “extreme stress” from the burglary, 

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and “starts to relive it” every time she received notifications from the court or the 

State regarding the case. The prosecutor closed with the following:

Her [Ms. Maloney’s] feeling of sanctity and safety in her home 

was destroyed by this man and his co-defendants in the case. Your 

Honor, the defendant has a guideline score. I don’t believe that’s 

appropriate. Not at all. Not given his prior history, his prior violence 

offenses, his prior thefts. He was on probation for a grand theft out of 

this county and four days later committed a punishable by life offense 

by burglarizing with an assault, the victims in this case, and three new 

felony thefts while he was on probation for four days for theft. And in 

the probable cause statement, his quote on the jail call was, “I was out 

for four days before I hit that lick”. He did not care then what his 

actions would be. He did not care what his consequences would be with 

those actions as relevant to the victims in this case.

, , , ,

And finally, just to touch on a downward departure that was 

mentioned. I presume the downward departure would be some kind of 

mental health basis that he requires treatment. Based on the very, very 

limited testimony that we have heard today, I don’t believe there is any 

factual basis to rise to the level the defense has shown a burden [sic] 

that he has something available, that he meets the qualifications for that, 

that he’s amenable to receiving that treatment and benefiting from it 

and recovering from it.

(ECF No. 6-2 at 58–60).

Prior to pronouncing sentence, the court stated the reasons underlying its 

sentencing decision:

First, let me start with the easier part. Mr. Smelley, things that courts 

traditionally do is decide the easy things first and then if they have to 

decide the more difficult things, then they move onto those. And I 

certainly have to make that determination.

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I do not have sufficient evidence to find for a downward 

departure under the statute. The statute says, if you require specialized 

treatment for a mental disorder that is unrelated to substance abuse or 

addition or for a physical disability and the defendant is amenable to 

that treatment. I don’t have sufficient evidence to make that 

determination, so I’m not going to downwardly depart.

So then it comes down to what your attorney’s arguing for, or at 

least his fall-back [sic] position and what the State is. In the presentence investigation and your attorney read it and I certainly noted 

that when I read the pre-sentence investigation and tabbed the presentence investigation, but the biggest concern that I have at this point 

is the safety of the community. And what the pre-sentence 

investigation says, that there isn’t sufficient support to ensure that you 

get extensive level of mental health treatment that you may require. I’m 

concerned about the safety for the community. So that being said, a 

longer incarceration is the only way that I know that I can protect 

society.

(ECF No. 6-2 at 64–65).

The state circuit court applied the Strickland standard to Smelley’s claim (see

ECF No. 6-2 at 134). The court adjudicated the IATC claim as follows:

Defendant’s scoresheet provides for a lowest permissible prison 

sentence of 97.2 months (i.e., 8.1 years). During the sentencing 

hearing, the Court heard the testimony of Defendant’s mother, who 

stated that Defendant “always had mental problems” and has “always 

been on medication for bi-polar . . . .” She testified that Defendant had 

“been taking medication ever since he was about seven years old.” She 

testified, in regard to whether Defendant had an income, that he “has 

been on his disability all his life for mental problems.”

Defendant testified during the sentencing hearing and indicated 

that at the time of the crimes, he “wasn’t on [his] meds and [he] was on 

drugs and easily influenced.”

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In regard to the imposition of an appropriate sentence, the Court 

stated:

[T]he biggest concern that I have at this point is the safety 

of the community. And what the pre-sentence 

investigation says, that there isn’t sufficient support to 

ensure that you get extensive level of mental health 

treatment that you may require. I’m concerned about 

the safety for the community. So that being said, a longer 

incarceration is the only way that I know that I can 

protect society.

The transcript of the sentencing hearing shows that the Court was 

aware of mental health issues regarding the Defendant. The lowest 

permissible sentence on the scoresheet is 8.1 years, so the Court could 

have imposed—without any downward departure—a much shorter 

sentence than the 20-year term of incarceration that was imposed. 

Consequently, based on the aforementioned circumstances, the Court 

finds that there is no reasonable probability that, had defense counsel 

presented the evidence that Defendant now claims should have been 

presented, the Court would have imposed a lesser sentence than the one

imposed.

(ECF No. 6-2 at 136–37) (emphasis in original) (footnote citations to sentencing 

scoresheet and transcript omitted). The First DCA affirmed the decision without 

written opinion. Smelley v. State, 291 So. 3d 924 (Fla. 1st DCA 2020) (Table). 

Where, as here, the relevant state court decision on the merits does not come 

accompanied with the state court’s reasons, the federal court should “look through” 

the unexplained decision to the last related state court decision that does provide a 

relevant rationale. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal 

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court should then presume that the unexplained decision adopted the same reasoning. 

Id. 

Smelley contends he is entitled to federal habeas relief under § 2254(d)(1), 

because the state court unreasonably applied Strickland in determining that he was 

not prejudiced by defense counsel’s failure to present medical evidence in support 

of his request for a downward departure (see ECF No. 1 at 27–29). 

This court’s review under § 2254(d)(1) is “limited to the record that was 

before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 

563 U.S. 170, 181 (2011). Considering the record that was before the Rule 3.850 

court, the undersigned concludes that a fairminded jurist could agree with the state 

court that there is no reasonable probability Smelley would have received a different 

sentence if defense counsel had presented medical evidence like Dr. Larson’s 

testimony.

Although Dr. Larson provided evidence regarding the first and second

Chubbuck elements (first, that Smelley had a metal disorder, and second, the 

disorder required specialized treatment), his testimony regarding the third elements, 

i.e., the “amenability” element, was somewhat contradictory. As previously noted, 

“amenability” means there is a reasonable possibility treatment would be successful

for Smelley. Dr. Larson testified, “he’s [Smelley amenable to such [specialized] 

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treatment”; yet Larson immediately followed that testimony with the statement that, 

“it’s hard to offer this man adequate treatment no matter where he is” (see ECF No. 

6-2 at 94).

Moreover, even if the sentencing court would have determined that Dr. 

Larson’s testimony satisfied all three Chubbuck elements, and thus satisfied the first 

step of the Banks process, there is no reasonable probability the sentencing court 

would have taken the second step of determining that a downward departure was the 

best sentencing option. Notably, the 2010 sentencing court did not depart downward 

despite hearing Dr. Larson’s testimony. The basis for the 2010 sentencing court’s 

decision not to depart was the absence of sufficient resources to supervise Smelley 

and ensure his compliance with the mental health treatment he required. Similarly, 

the 2018 sentencing court noted that Smelley’s PSI stated that there was not 

sufficient support to ensure that Smelley would receive the extensive level of mental 

health treatment he required. Additionally, the 2018 sentencing court stated that its 

biggest concern was the safety of the community. Indeed, the fact that Smelley was 

on probation when he burglarized the Maloney home demonstrated that the safety 

of the community was at risk when Smelley was out of prison. 

Because a fairminded jurist could agree with the state post-conviction court’s 

conclusion, that there was no reasonable probability Smelley would have received a 

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less severe sentence if defense counsel had presented evidence of the nature and 

extent of Smelley’s mental disorder, Smelly is not entitled to federal habeas relief 

on Ground One. See Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 

(11th Cir. 2101) (“[I]f some fairminded jurists could agree with the state court’s 

decision, although others might disagree, federal habeas relief must be denied.”); 

Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 910 (11th Cir. 2011) (“[O]nly ‘if 

there is no possibility fairminded jurists could disagree that the state court’s decision 

conflicts with [the Supreme] Court’s precedents’ may relief be granted.”) (quoting 

Richter, 562 U.S. at 786).

B. “Ground Two: “Ineffective assistance of counsel—counsel failed 

to object to the sentencing disparity based on Petitioner’s inability 

to pay restitution.”

Smelley asserts his co-defendant, Cody Kurpil, was more culpable than him 

(ECF No. 1 at 30–41). Smelley asserts Kurpil does not suffer from the mental 

infirmities that Smelley suffers from (id. at 30). Smelley further asserts Kurpil

personally knew the victims and performed landscaping services for them (id.). 

Smelley alleges Kurpil strategically planned the robbery, and Smelley simply 

“followed Kurpil’s lead” (id.).

Smelley alleges the prosecutor offered Kurpil a plea of 4 years in prison 

followed by 10 years of probation, but the prosecutor offered Smelley a plea of 30 

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years in prison (ECF No. 1 at 30). Smelley asserts the prosecutor’s stated reason for 

the disparity was the fact that Kurpil paid the victims $5,000 “upfront” in restitution 

as part of his plea deal (id. at 30–31). 

Smelley contends defense counsel should have objected to the prosecutor’s 

conduct on the ground that the more culpable co-defendant received more favorable 

treatment based upon financial status (i.e., his ability to pay restitution), in violation 

of Smelley’s due process and equal protection rights ECF No. 1 at 32–41). Smelley 

argues he suffered discrimination “at the hands of a prosecutor who abused his 

discretionary power” by offering leniency to the more culpable defendant because 

of his ability to pay (id. at 40). Smelly asserts “had these issues been properly 

illustrated to the court—especially the fact that the victims agreed to allow Kurpil to 

purchase a lenient sentence, while at the same time requesting a harsh sentence for 

Petitioner . . . ,” there is a reasonable probability the sentencing court would have 

imposed the lowest permissible prison sentence of 8.1 years (id. at 40–41).

Smelley concedes he did not exhaust Ground Two (ECF No. 1 at 7, 12, 33–

34, 41). Smelley argues his procedural default was caused by ineffective assistance

of collateral counsel (id.). Smelley asks the court to review Ground Two de novo, 

pursuant to Martinez v. Ryan, 566 U.S. 1 (2012) (id.).

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The State contends Smelley failed to meet the “cause and prejudice” standard 

for receiving de novo review of Ground Two (see ECF No. 6 at 26–33). The State 

contends there is no reasonable probability Smelley would have received a less harsh 

sentence if Smelley’s trial counsel had argued that the disparities in the prosecutor’s 

treatment of Smelley and Kurpil during the plea process violated due process and 

equal protection (id. at 26–33). 

A federal court may consider the merits of a procedurally defaulted claim if 

the petitioner can show both “cause” for the default and “prejudice” from a violation 

of his constitutional right. Wainwright v. Sykes, 433 U.S. 72, 84–85 (1977). To 

establish cause, a petitioner must ordinarily “demonstrate ‘some objective factor 

external to the defense’ that impeded his effort to raise the claim properly in state 

court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting Murray, 477 

U.S. at 488). 

Before its 2012 decision in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme 

Court had long held that § 2254 petitioners cannot rely on errors made by their state 

collateral counsel to establish cause. See Coleman, 501 U.S. at 752–53. Martinez

created a limited, equitable exception to Coleman where, (1) “a State requires a 

prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral 

proceeding,” as opposed to on direct appeal; (2) “appointed counsel in the initialCase 3:20-cv-05902-LC-EMT Document 10 Filed 10/12/21 Page 34 of 44
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review collateral proceeding, where the claim should have been raised, was 

ineffective under the standards of Strickland”; and (3) “the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one.” Martinez, 566 U. S. at 14 

(citations omitted). Accordingly, the petitioner must “establish that his collateral 

counsel’s conduct ‘fell below an objective standard of reasonableness,’ and that, ‘but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” Hittson v. GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014) 

(quoting Strickland, 466 U.S. at 688).

In Hittson, the Eleventh Circuit explained:

[T]he merits of the underlying claim is only a part of the 

Strickland analysis. With unlimited time and the benefit of hindsight, 

a petitioner can come up with any number of potentially meritorious 

ineffective-assistance claims that he now wishes his collateral counsel 

had raised. However, a petitioner does not establish constitutionally 

defective performance simply by showing that (a) potentially 

meritorious claims existed and (b) his collateral counsel failed to raise 

those claims. Murray, 477 U.S. at 486, 106 S. Ct. at 2644 (“[T]he mere 

fact that counsel failed to recognize the factual or legal basis for a claim, 

or failed to raise the claim despite recognizing it, does not constitute 

cause for a procedural default.”). “Experienced advocates since time 

beyond memory have emphasized the importance of winnowing out 

weaker arguments on appeal and focusing on one central issue if 

possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 

745, 751–52, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987 (1983). “[A] per 

se rule that . . . the professional advocate, [is not] allowed to decide 

what issues are to be pressed . . . seriously undermines the ability of 

counsel to present the client’s case in accord with counsel’s 

professional evaluation.” Id. at 751, 103 S. Ct. at 3313.

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As we have explained, Strickland instructs courts to “indulge a 

strong presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance”—that counsel “rendered 

adequate assistance and made all significant decisions in the exercise 

of reasonable professional judgment.” 466 U.S. at 689–90, 104 S. Ct. 

at 2065–66. To overcome this presumption, a petitioner must “establish 

that no competent counsel would have taken the action that his counsel 

did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 

2000) (en banc).

Thus, to show that his habeas counsel failed to provide the level 

of representation required by Strickland, [the petitioner] must show 

more than the mere fact they failed to raise potentially meritorious 

claims; he must show that no competent counsel, in the exercise of 

reasonable professional judgment, would have omitted those claims.

Hittson, 759 F.3d at 1263 (footnote omitted).

Here, Smelley has not shown that his collateral counsel was ineffective under 

Strickland. As the Eleventh Circuit explained, the petitioner must show more than 

the mere fact counsel failed to raise a potentially meritorious claim; the petitioner 

must show that no competent counsel, in the exercise of reasonable professional 

judgment, would have omitted the claim. Hittson, 759 F.3d at 1263.

The omitted claim is Smelley’s IATC claim based upon defense counsel’s 

failure to argue that the prosecutor’s allegedly discriminatory conduct during the 

plea process violated Smelley’s due process and equal protection rights. 

As Smelley correctly points out, a defendant has no constitutional right to plea 

bargaining. Weatherford v. Bursey, 429 U.S. 545 (1977). “[S]o long as the 

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prosecutor has probable cause to believe that the accused committed an offense 

defined by statute, the decision whether or not to prosecute, and what charge to file 

or bring before a grand jury, generally rests entirely in [the prosecutor’s] discretion.” 

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). As Smelley further points out, 

prosecutorial discretion is not unbridled. “‘[T]he conscious exercise of some 

selectivity in enforcement is not in itself a federal constitutional violation’ so long 

as ‘the selection was [not] deliberately based upon an unjustifiable standard such as 

race, religion, or other arbitrary classification.’” Id. (quoting Oyler v. Boles, 368 

U.S. 448 (1962)); see also Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) 

(“Though the law itself be fair on its face, and impartial in appearance, yet, if it is 

applied and administered by public authority with an evil eye and an unequal hand, 

so as practically to make unjust and illegal discriminations between persons in 

similar circumstances, material to their rights, the denial of equal protection is still 

within the prohibition of the Constitution.”).

In Bordenkircher, the Supreme Court held that the prosecutor did not violate 

the defendant’s due process rights when he “carrie[d] out a threat made during plea 

negotiations to reindict the accused on more serious charges if he [did] not plead 

guilty to the offense with which he was originally charged.” 434 U.S. at 358, 365. 

The Court held that “the course of conduct engaged in by the prosecutor in this case, 

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which no more than openly presented the defendant with the unpleasant alternatives 

of forgoing trial or facing charges on which he was plainly subject to prosecution, 

did not violate the Due Process Clause of the Fourteenth Amendment.” Id. at 365.

The sentencing transcript shows that the court asked the prosecutor why 

Smelley should not be sentenced to the 97.2 months indicated in his scoresheet, 

because it was “closer” to the sentence agreed to by the prosecutor in Kurpil’s case 

(ECF No. 62-2 at 61). The prosecutor responded that there were two “primary” 

reasons: (1) Kurpil cooperated with the State and “secured” Smelley’s conviction; 

and (2) Kurpil paid $5,000 in restitution “upfront” to the victims (ECF No. 62-2 at 

61–62). The prosecutor informed the court that the victims did not want to be 

reminded of the stressful events by receiving monthly restitution payments over a 

long period of time, and Kurpil relieved them of that by giving them “his share that 

he received from the theft” (id. at 62).3

 The prosecutor then provided additional 

reasons for his recommendation of a much harsher sentence for Smelley:

3 The prosecutor’s assertion is supported by the letter from Marilyn Maloney, one of the victims, 

to the sentencing court in which she expressed the following:

My husband and I have had to undergo serious medical treatment as a result of the 

stress created by this event and the proceedings related thereto. Every time we 

receive a letter from the state, the trauma of that day causes me to relive that event. 

I wish this matter to be resolved and the individual be treated in a manner 

commensurate with what he did to traumatize my family. I trust the court will

sentence him accordingly.

(ECF No. 6-1 at 35).

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And additionally, beyond that, his [Kurpil’s] prior convictions on 

his scoresheet were a couple of misdemeanor offenses. This was 

coming out of the blue. This was not coming out of the blue for Mr. 

Smelley. This has been something building for a very long time 

through his juvenile history. Five convictions for burglary of a 

conveyance, petty thefts, grand thefts, aggravated battery with a deadly 

weapon, resisting officers without violence, and also assault on law 

enforcement. Grand theft he was on probation for in this case, which 

is also before the Court today. And then these newest offenses from 

last year. This has been a long time coming. I think the sentence from 

the Court should [ ] take into account not only his actions in this case, 

but also all those that came before leading up to this.

(ECF No. 6-2 at 62–63). And even before the court asked the prosecutor about the 

disparity in plea offers, the prosecutor provided the following reasons for his 

decision to recommend a 30-year sentence for Smelley: (1) Smelley admitted he 

knew what he was doing and that it exposed him to significant criminal penalties; 

(2) Smelley’s criminal history demonstrated he posed a danger to society; and (3) 

Smelley committed the burglary (and the other felonies with which he was charged) 

while he was on probation for another criminal offense (ECF No. 6-2 at 57– 59).

The record clearly refutes Smelley’s assertion that the prosecutor offered him 

a less favorable plea deal than co-defendant Kurpil based “purely” on Smelley’s 

financial status (i.e., his inability to immediately pay restitution) rather than criminal 

conduct. Further, there was nothing unconstitutional about the prosecutor’s 

rewarding Kurpil for immediately returning $5,000 of the burglary proceeds to the 

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victims, and not rewarding Smelley for using his share to purchase a car (within 2 

days of the burglary) and give his mother a gift (one of the collectible silver coins).4

 

Considering the record, competent collateral counsel could decide to omit a 

claim that Smelley’s trial counsel was ineffective for failing to argue that the 

prosecutor’s conduct during the plea process was unconstitutionally discriminatory, 

in violation of the due process and equal protection clauses of the Fourteenth 

Amendment. 

This leads to a somewhat new but related argument asserted by Smelley in his 

reply brief. Smelley argues the sentencing court engaged in unconstitutional 

discrimination and violated his substantive due process rights by sentencing him to 

a longer prison term based “entirely” on his mental health status, not his criminal 

conduct (ECF No. 9 at 6–7). Petitioner argues:

The sentencing judge in this case made very clear that whatever 

sentence he intended to impose for the underlying offenses and 

Petitioner’s criminal history, he was compelled to extend the length of 

that sentence because of the need to protect society from Petitioner’s 

untreated mental health issues.

4 A sentencing court’s consideration of a defendant’s ability to pay restitution is not prohibited. 

For example, Florida law recognizes that a defendant’s ability to pay restitution may be considered 

in determining whether a downward departure is appropriate. See Fla. Stat. § 921.0026(2)(e)

(stating that a downward departure is “reasonably justified” where “[t]he need for payment of 

restitution to the victim outweighs the need for a prison sentence.”). The sentencing court reserved 

jurisdiction on the issue of restitution in Smelley’s case (see ECF No. 6-1 at 40).

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(ECF No. 9 at 6). Citing Robinson v. California, 370 U.S. 660, 666 (1962), Smelley

argues the sentencing court’s reasoning was “flawed” and “a blatant violation of 

substantive due process and amounts to cruel and unusual punishment” (id.). 

In Robinson, the Supreme Court considered the constitutionality of a state 

statute which made it a misdemeanor for a person to “be addicted to the use of 

narcotics.” 370 U.S. at 662. The Court noted that the statute was not one which 

punished a person for using, purchasing, selling, or possessing narcotics, or for 

antisocial or disorderly behavior resulting from the administration of narcotics. Id. 

Rather, the statute made the “status” of narcotic addiction a criminal offense. Id. 

The Court opined:

It is unlikely that any State at this moment in history would 

attempt to make it a criminal offense for a person to be mentally ill, or 

a leper, or to be afflicted with a venereal disease. A State might 

determine that the general health and welfare require that the victims of 

these and other human afflictions be dealt with by compulsory 

treatment, involving quarantine, confinement, or sequestration. But, in 

the light of contemporary human knowledge, a law which made a 

criminal offense of such a disease would doubtless be universally 

thought to be an infliction of cruel and unusual punishment in violation 

of the Eighth and Fourteenth Amendments.

370 U.S. at 666 (citation omitted). The Court held that “a state law which imprisons 

a person thus afflicted as a criminal, even though he has never touched any narcotic 

drug within the State or been guilty of any irregular behavior there, inflicts a cruel 

and unusual punishment in violation of the Fourteenth Amendment.” Id. at 667.

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Here, the state court did not imprison Smelley simply because he was afflicted 

with mental disorders; rather the court imprisoned him for his criminal behavior of 

breaking into the Maloney’s home, threatening the occupants with physical harm, 

and stealing their personal property. The court punished Smelley for his behavior, 

not his “status” of mental illness. This was constitutional. Accordingly, Smelley’s 

collateral counsel was not ineffective for omitting an IATC claim based upon 

defense counsel’s failure to object to Smelley’s sentence on the ground that it 

violated the Eighth and Fourteenth Amendments.

Smelley has not satisfied the second element of the Martinez standard (i.e., he 

has not shown that collateral counsel was ineffective under Strickland), therefore, he 

has not shown “cause” for his procedural default of Ground Two. Smelley thus is 

not entitled to a federal merits review of Ground Two.

IV. CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States 

District Courts provides that “[t]he district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant,” and if a certificate 

is issued “the court must state the specific issue or issues that satisfy the showing 

required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice 

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of appeal must still be filed, even if the court issues a certificate of appealability. 28 

U.S.C. § 2254 Rule 11(b).

“Section 2253(c) permits the issuance of a COA only where a petitioner has 

made a ‘substantial showing of the denial of a constitutional right.’” Miller-El v. 

Cockrell, 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). “At the COA stage, the 

only question is whether the applicant has shown that ‘jurists of reason could 

disagree with the district court’s resolution of his constitutional claims or that jurists 

could conclude the issues presented are adequate to deserve encouragement to 

proceed further.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citing Miller-El, 537 

U.S. at 327). The petitioner here cannot make that showing. Therefore, the 

undersigned recommends that the district court deny a certificate of appealability in 

its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order, 

the court may direct the parties to submit arguments on whether a certificate should 

issue.” Thus, if there is an objection to this recommendation by either party, that 

party may bring this argument to the attention of the district judge in the objections 

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (ECF No. 1) be DENIED.

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2. That a certificate of appealability be DENIED.

3. That the clerk be directed to enter judgment accordingly and close the 

case.

At Pensacola, Florida, this 12th day of October 2021.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be 

filed within fourteen days of the date of the Report and Recommendation. Any 

different deadline that may appear on the electronic docket is for the court’s 

internal use only and does not control. An objecting party must serve a copy of 

the objections on all other parties. A party who fails to object to the magistrate 

judge’s findings or recommendations contained in a report and 

recommendation waives the right to challenge on appeal the district court’s 

order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 

3-1; 28 U.S.C. § 636.

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