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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BRYAN KEITH EDMONDSON,

Petitioner,

vs. Case No.: 5:03cv99/MCR/EMT

JAMES CROSBY, JR.,

Respondent.

 /

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254

(Doc. 1). Plaintiff originally asserted fourteen grounds for relief. Respondent filed an answer

asserting that Grounds 2-4, 6, and 8-14 were not exhausted in the state courts, therefore, the petition

was subject to dismissal as a “mixed” petition (see Doc. 7). Petitioner filed a reply conceding that

he had not exhausted Grounds 11, 13, and 14, and he did not contest Respondent’s contention that

Grounds 8-10 and 12 were not exhausted (see Doc. 9). Upon review, this Court concluded that the

petition contained both exhausted and unexhausted claims, therefore, Petitioner was directed to file

a notice with the court indicating whether he wished to voluntarily dismissed Grounds 8-14 (see

Doc. 10). In response, Petitioner stated he wished to abandon Grounds 11, 13, and 14; additionally,

he attached an exhibit indicating that after the filing of the instant petition, Grounds 8-10 and 12 had

completed a full round of state court review (see Doc. 11). This Court then ordered Respondent to

file a supplement to its answer (see Doc. 12). Upon submission of the supplemental answer,

Petitioner filed a supplemental reply (see Docs. 20, 30). 

The matter is referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D.Fla. Loc. R. 72.2(b). After a careful review of the state court

proceedings and consideration of all issues raised by Petitioner, it is the opinion of the undersigned

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1

Additionally, in the order of probation on the kidnapping count, the trial court included sex offender conditions,

specifically, the requirement that Petitioner receive “sexual and psychological treatment” during his imprisonment (id.).

Petitioner appealed the imposition of the sex offender conditions, and on May 9, 2002, the First DCA reversed the

decision, directing that the sex offender conditions be stricken from the probation order. Edmondson v. State, 816 So.2d

768 (1st DCA 2002).

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that an evidentiary hearing is not required for 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 Petitioner is not entitled to relief.

I. BACKGROUND

Petitioner was charged by an amended information filed in the Circuit Court in and for Bay

County, Florida, with burglary of a dwelling, sexual battery involving serious physical force, and

kidnapping (Doc. 7, Ex. A). Following a jury trial, Petitioner was found guilty on all counts (see

id., Ex. B). On September 18, 1998, he was sentenced to concurrent terms of fifty (50) years of

imprisonment on all counts, followed by probation for his natural life on the kidnapping count (id.).

Petitioner directly appealed his convictions and sentences to the Florida First District Court of

Appeal (“First DCA”). The appellate court affirmed the convictions and sentences. Edmondson v.

State, 745 So.2d 533 (Fla. 1st DCA 1999). Petitioner appealed the appellate court’s decision to the

Florida Supreme Court, and the state supreme court quashed the decision and remanded for further

proceedings. Edmondson v. State, 771 So.2d 1136 (Fla. 2000). 

On remand, the First DCA reversed Petitioner’s sentences, which were upward departures

from the state sentencing guidelines, and remanded the case to the trial court with directions that the

court impose sentences within the guidelines range. Edmondson v. State, 777 So.2d 434 (1st DCA

2000). Petitioner was resentenced within the guidelines to concurrent terms of 336.25 months

(approximately 28 years) of imprisonment on all counts, followed by probation for his natural life

on the kidnapping count (Doc. 7, Ex. D).1

On June 19, 2002, Petitioner filed a motion for postconviction relief under Rule 3.850 of the

Florida Rules of Criminal Procedure (Doc. 7, Ex. G at 1-25). The trial court summarily denied the

motion on February 20, 2003 (id. at 26-27). Petitioner appealed the denial to the First DCA, and the

appellate court affirmed on August 25, 2003. Edmondson v. State, 854 So.2d 196 (Fla. 1st DCA

2003) (Table). 

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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 367-375, 390-399, 120 S.Ct. at 1499-1503, 1511-1516); 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 403-413, 120 S.Ct. at 1518-

1523). The opinion of Justice Stevens in Part II was joined by Souter, Ginsburg, and Breyer. 

Case No.: 5:03cv99/MCR/EMT

Petitioner filed the instant petition on April 30, 2003 (Doc. 1). Respondent concedes the

petition is timely (Doc. 7 at 3).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides, “a district court shall entertain an application for a writ

of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws of the United States.” As

the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for

federal habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism

and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214,

1218-19.

Section 2254 now provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings unless

the adjudication of the claim–

(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 (West Supp. 2001).

The United States Supreme Court explained the framework of review under § 2254(d)(1) in

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).2

 The appropriate test

in habeas cases was described by Justice O’Connor as follows:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court

to grant a state prisoner’s application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may

issue only if one of the following two conditions is satisfied - the state court

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adjudication resulted in a decision that (1) “was contrary to . . . clearly established

Federal law, as determined by the Supreme Court of the United States,” or (2)

“involved an unreasonable application of . . . clearly established Federal law, as

determined by the Supreme Court of the United States.” 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; Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119-20, 147 L.Ed.2d

125 (2000).

In deciding whether a state court decision involved “an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding” under § 2254(d)(2),

determinations of fact are “presumed to be correct,” unless the presumption is rebutted by Petitioner

“by clear and convincing evidence.” § 2254(e)(1); see Miller-El v. Cockrell, 537 U.S. 322, 123

S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003); Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001),

cert. denied, 535 U.S. 1104, 122 S.Ct. 2310, 152 L.Ed.2d 1065 (2002) (quoting 28 U.S.C. §

2254(e)(1)); Parker v. Head, 244 F.3d 831, 835-36 (11th Cir. 2001) (citing § 2254(d)(2) and (e)(1));

see also Crawford v. Head, 311 F.3d 1288 (11th Cir. 2002) (explaining that the new statute provides

a “highly deferential standard of review” of the state court's factual determinations). Although

Williams set forth the Supreme Court's interpretation of § 2254(d)(1), not § 2254(d)(2), the Court

subsequently enunciated the § 2254(d)(2) standard:

Factual determinations by state courts are presumed correct absent clear and

convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the

merits in a state court and 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, § 2254(d)(2); see also Williams, 529 U.S. at 399, 120

S.Ct. 1495 (opinion of O’CONNOR, J.).

Miller-El, 537 U.S. 322, 123 S.Ct. at 1041 (dicta).

The Eleventh Circuit has developed a three-step process for applying the Williams test to any

issue raised in a federal habeas petition upon which there has been an adjudication on the merits in

a formal state court proceeding. See Wellington v. Moore, 314 F.3d 1256, 1260-61 (11th Cir. 2002);

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Robinson v. Moore, 300 F.3d 1320, 1343-45 (11th Cir. 2002); Fugate, 261 F.3d 1206. First, the court

must ascertain the controlling legal principles that are clearly established by the Supreme Court at

the time of the state court adjudication. Wellington, 314 F.3d at 1260; Robinson, 300 F.3d at 1343.

Second, the court must determine whether the state court adjudication was contrary to the clearly

established Supreme Court law. Wellington, 314 F.3d at 1260, Robinson, 300 F.3d at 1344. “The

‘contrary to’ clause in § 2254(d)(1) ‘suggests that the state court's decision must be substantially

different’ from the relevant Supreme Court precedent.” Wellington, 314 F.3d at 1260 (quoting

Fugate, 261 F.3d at 1216 (quoting Williams, 529 U.S. at 405)). “Although a state court’s decision

that ‘applies a rule that contradicts’ the governing Supreme Court law is ‘contrary,’ a state court

decision that applies ‘the correct legal rule’ based on Supreme Court law to the facts of the

petitioner’s case would not fit within the ‘contrary to’ clause even if the federal court might have

reached a different result relying on the same law.” Wellington, 314 F.3d at 1260 (citing and

quoting Williams, 529 U.S. at 404-04). If the state court applied the correct Supreme Court

precedent, and the United States Supreme Court, faced with materially indistinguishable facts, has

not reached a decision different from the decision reached by the state court in the petitioner’s case,

the case does not fit within the “contrary to” clause, and the federal habeas court must go to the third

step and determine whether the state court “unreasonably applied the relevant Supreme Court

authority.” Fugate, 261 F.3d at 1216. Likewise, if the facts of the Supreme Court cases and

petitioner’s case are not substantially similar, “a state court decision that applies ‘the correct legal

rule’ based on Supreme Court law to the facts of the petitioner’s case would not fit within the

‘contrary to’ clause even if the federal court might have reached a different result relying on the

same law.” Id. (citing and quoting Williams, 529 U.S. at 406).

The standard for an unreasonable application inquiry is “whether the state court’s application

of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 410. The

Supreme Court has explained that “a federal habeas court may not issue a writ under the

unreasonable application clause ‘simply because that court concludes in its independent judgment

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

incorrectly.’” Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002) (quoting

Williams, 529 U.S. at 411). Indeed, “[t]he gloss of clear error fails to give proper deference to state

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3

Section 2254 provides, in pertinent part:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it appears that –

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the

applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of

the State, within the meaning of this section, if he has the right under the law of the State to

raise, by any available procedure, the question presented. 

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courts by conflating error (even clear error) with unreasonableness.” Lockyer v. Andrade, 538 U.S.

63, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). A state court’s incorrect application of clearly

established law will be held to be reasonable and not warrant a writ unless “thorough analysis by

a federal court produces a firm conviction that [the state court] judgment is infected by constitutional

error.” Williams, 529 U.S. at 389. “[E]valuating whether a rule application was unreasonable

requires considering the rule’s specificity. The more general the rule, the more leeway courts have

in reaching outcomes in case by case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 124

S.Ct. 2140, 2149 (2004). Although § 2254(d)(1) is concerned only with federal law as clearly

established by the Supreme Court, this court may look to circuit precedent to demonstrate reasonable

applications of Supreme Court precedent. Van Poyck v. Fla. Dep’t of Corrections, 290 F.3d 1318,

1322 n. 4 (11th Cir. 2002).

III. EXHAUSTION AND PROCEDURAL DEFAULT

It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the

petitioner have exhausted available state court remedies, 28 U.S.C. § 2254(b)(1),3 thereby giving

the State the “‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (quoting

Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). To

satisfy the exhaustion requirement, the petitioner must “fairly present” his claim in each appropriate

state court, alerting that court to the federal nature of the claim. Duncan, supra, 513 U.S. at 365-66;

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O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, supra,

404 U.S. at 277-78.

The Supreme Court has offered the following guidance for determining whether a habeas

petitioner has met the “fair presentation” requirement. In Picard v. Connor, supra, the Court held

that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include

reference to a specific federal constitutional guarantee, as well as a statement of the facts which

entitle the petitioner to relief. In announcing that “the substance of a federal habeas corpus claim

must first be presented to the state courts,” id. at 278, 92 S.Ct. at 513, the Court rejected the

contention that the petitioner satisfied the exhaustion requirement by presenting the state courts only

with the facts necessary to state a claim for relief.

Additionally, the Court has indicated that it is insufficient to make a general appeal to a

constitutional guarantee as broad as due process to present the “substance” of such a claim to a state

court. In Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), the habeas petitioner

was granted relief on the ground that a jury instruction violated due process because it obviated the

requirement that the prosecutor prove all the elements of the crime beyond a reasonable doubt. 459

U.S. at 7, 103 S.Ct. at 278 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d

39 (1979)). The only manner in which the habeas petitioner had cited federal authority was by

referring to a state court decision in which “the defendant . . . asserted a broad federal due process

right to jury instructions that properly explain state law.” Anderson, 459 U.S. at 7, 103 S.Ct. at 278

(internal quotation marks omitted). The Court expressed doubt that a defendant’s citation to a statecourt decision predicated solely on state law was sufficient to fairly apprise a reviewing court of a

potential federal claim merely because the defendant in the cited case advanced a federal claim.

Furthermore, the Court clarified that such a citation was obviously insufficient when the record

satisfied the federal habeas court that the federal claim asserted in the cited case was not the same

as the federal claim on which federal habeas relief was sought. 459 U.S. at 7 and n. 3, 103 S.Ct. at

278 and n. 3.

Years later, the Supreme Court readdressed the “fair presentation” requirement in Duncan

v. Henry, supra. The Duncan Court strictly construed the exhaustion requirement so as to mandate

that, if state and federal constitutional law overlap in their applicability to a petitioner’s claim, the

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4

The petitioner in Duncan raised a federal due process claim in his habeas petition, but had raised only a state

constitutional claim in his state appeal. Presented with a state constitutional claim, the state court applied state law in

resolving the appeal. 

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petitioner must raise his issue in terms of the applicable federal right in state court in order to obtain

federal review of the issue.4 The Supreme Court explained, “[i]f a habeas petitioner wishes to claim

that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the

Fourteenth Amendment, he must say so, not only in federal, but in state court.” Duncan, 115 S. Ct.

at 888. Very recently, the Supreme Court again focused upon the requirement of “fair presentation,”

holding that “ordinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court

must read beyond a petition or a brief (or a similar document) that does not alert it to the presence

of a federal claim in order to find material, such as a lower court opinion in the case, that does so.”

Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004). The Baldwin Court

commented that “a litigant wishing to raise a federal issue can easily indicate the federal law basis

for his claim in a state court petition or brief, for example, by citing in conjunction with the claim

the federal source of law on which he relies or a case deciding such a claim on federal grounds, or

by simply labeling the claim ‘federal.’” Id.

Prior to Duncan, the Eleventh Circuit broadly interpreted the “fair presentation” requirement.

See, e.g., Watson v. Dugger, 945 F.2d 367 (11th Cir. 1991) (finding issue to be exhausted when

petitioner argued in state court that trial court had failed to follow state law which required proof

of all elements of the crime, and argued in federal court that this was a due process violation);

Mattox v. Dugger, 839 F.2d 1523 (11th Cir. 1988) (holding that a federal habeas corpus petition

should not be dismissed on grounds of procedural default when a petitioner has previously brought

an issue before a state court alleging only state law violations, when such a claim is equally

supported by federal law, and the state cites such federal law in support of its position). However,

after Duncan, the Eleventh Circuit has taken a more restrictive approach. For example, in Zeigler

v. Crosby, the Circuit Court held that the habeas petitioner failed to “fairly present” his juror

misconduct claims to the state courts where his brief to the state appellate court did not refer to the

federal constitutional issues raised in his federal habeas petition, and none of the cases cited in his

direct appeal discussed the Federal Constitution. 345 F.3d 1300, 1307 (11th Cir. 2003). The court

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specifically noted that the section of the petitioner’s appellate brief which dealt with juror

misconduct contained the words: “Appellant was denied due process and a fair trial . . . ,” which

could be interpreted as asserting a fair trial claim under the Florida Constitution and Florida’s Due

Process Clause. Id. at 1308 n.5. The only cases cited in the discussion of the issue in petitioner’s

state appellate brief were state supreme court cases that made no mention of the United States

Constitution and cited no federal cases. The court concluded that petitioner’s “[c]ursory and

conclusional sentence (unaccompanied by citations to federal law), . . . did not present to the Florida

courts the federal claim asserted to us.” Id. 

Claims which have not been fairly presented but are defaulted from state court review are

considered technically exhausted, because no remedies are available for purposes of § 2254(c).

Coleman v. Thompson, 510 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991); Engle

v. Isaac, 456 U.S. 107, 125-26 n.28, 102 S.Ct. 1558, 1570 n.28, 71 L.Ed.2d 783 (1982). This court

will consider a claim procedurally defaulted if it was presented in state court and rejected on the

independent and adequate state ground of procedural bar or default, or was never presented but the

state court would now find the claim procedurally barred. Coleman, 501 U.S. at 734-35 and n.1;

Caniff v. Moore, 269 F.3d 1245, 1427 (11th Cir. 2001) (“[C]laims that have been held to be

procedurally defaulted under state law cannot be addressed by federal courts.”); Chambers v.

Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (applicable state procedural bar should be

enforced by federal court even as to a claim which has never been presented to a state court); accord

Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990),

rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L.Ed. 2d 812 (1991). However, a

petitioner may obtain federal review of his claim if the state procedural rule is applied in an

“arbitrary or unprecedented fashion,” Judd v. Haley, 250 F.3d 1308,1313 (11th Cir. 2001), or in a

manifestly unfair manner. Ford v. Georgia, 498 U.S. 411, 424-25, 111 S.Ct. 850, 858, 112 L.Ed.2d

935 (1991); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).

To overcome a procedural default, the petitioner must show cause and prejudice or a

fundamental miscarriage of justice in order for the federal habeas court to reach the merits of a

claim. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. “For cause to exist, an external impediment,

whether it be governmental interference or the reasonable unavailability of the factual basis for the

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claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467,

497, 111 S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. at 488,

106 S. Ct. at 2645). To satisfy the miscarriage of justice exception, the petitioner must show that

“a constitutional violation has probably resulted in the conviction of one who is actually innocent.”

Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 85, 130 L.Ed.2d 808 (1995). “To establish the

requisite probability, the petitioner must show that it is more likely than not that no reasonable juror

would have convicted him.” Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent

person is extremely rare. To be credible, such a claim requires [a] petitioner to

support his allegations of constitutional error with new reliable evidence -- whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence -- that was not presented at trial.

Id.

Within this framework, the court will review Petitioner’s claims.

IV. PETITIONER’S CLAIMS

A. Ground One: “The Trial Court Had No Subject Matter Jurisdiction At The

Time It Purported To Enter An Order Setting Conditions For Appellant’s Probation”

Petitioner claims that the trial court had no jurisdiction to enter the order of probation on his

original sentence (Doc. 1 at 5). He states the judgment of conviction and sentence was issued on

September 18, 1998, he filed his notice of appeal of the judgment on October 8, 1998, and the

probation order was entered December 9, 1998 (id.). Petitioner contends the trial court was divested

of jurisdiction upon his filing the notice of appeal, therefore, it lacked jurisdiction to enter the

probation order.

Respondent contends this claim is moot, because the original sentence and probation order

were superceded upon Petitioner’s resentencing (Doc. 7 at 5). Respondent is correct. Where a

defendant’s sentence is invalidated by a state reviewing court, and the case is remanded for

resentencing, a defendant’s federal habeas challenge to the original sentence is rendered moot. See

James v. Singletary, 995 F.2d 187, 188 (11th Cir. 1993). Therefore, Petitioner is not entitled to relief

on this claim.

B. Ground Two: “Trial Court Reversibly Erred By Failing To Instruct The Jury

On Trespass As a Permissive Lesser Of Burglary With Assault Or Battery”

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Petitioner asserts error of the trial court in denying his requested instruction on trespass, as

a permissive lesser included offense of burglary with assault or battery.

Respondent argues Petitioner did not fairly present this issue as a federal claim in the state

courts. Furthermore, the issue is a matter of state law and therefore not cognizable under § 2254.

Moreover, Petitioner was not entitled to the requested instruction under state law.

A review of Petitioner’s initial brief in the direct appeal of his conviction shows that

Petitioner mentioned his right to due process under the Fifth, Sixth, and Fourteenth Amendments

in relation to this claim (see Doc. 7, Ex. H at 26). The appellate court affirmed the conviction

without discussion of the issue. See Edmondson v. State, 745 So.2d 543 (Fla. First DCA 1999).

Even if Petitioner’s reference to Constitutional amendments was sufficient to fairly present a federal

claim to the state courts, Petitioner has failed to show he is entitled to federal habeas relief on this

claim.

While due process requires that a defendant in a capital case receive instructions on lesser

included offenses, the Supreme Court has not decided whether such instructions are required in

noncapital cases. Beck v. Alabama, 447 U.S. 625, 638 and n. 14, 100 S.Ct. 2382, 2390 and n. 14,

65 L.Ed.2d 392 (1980). The Eleventh Circuit has held, however, that instructions on lesser included

offenses are not constitutionally required in noncapital cases. See Perry v. Smith, 810 F.2d 1078,

1080 (11th Cir. 1987); Redman v. Dugger, 866 F.2d 387, 389 (11th Cir. 1989); see also Rembert v.

Dugger, 842 F.2d 301, 303 (11th Cir.), cert. denied, 488 U.S. 969 (1988). In the instant case,

Petitioner does not allege that at the time the jury made its determination of guilt, he was subject to

the death penalty. Therefore, the state court’s rejection of his claim was not contrary to or an

unreasonable application of Supreme Court law.

C. Ground Three: “Trial Court Reversibly Erred By Denying Appellant’s

Motion For Judgement [sic] Of Acquittal On The Kidnapping Charge Because There

Was No Evidence The Victim Was Moved At All, And Her Confinement Was

Merely Incidental To The Sexual Battery.”

Petitioner contends the trial court’s alleged error in denying his motion for judgment of

acquittal on the kidnapping charge violated his federal due process rights. In support of his claim,

he states his alleged movement of the victim from a bed to the floor was inconsequential and

incidental to the sexual battery. Furthermore, he contends his alleged pulling the victim to the floor,

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getting on top of her, and using force to keep her in place did not constitute a level of confinement

sufficient to support the kidnapping conviction. 

As with Ground Two, Respondent argues Petitioner did not fairly present this issue as a

federal claim in the state courts. Furthermore, the state court’s denial of this claim was not contrary

to or an unreasonable application of Supreme Court law.

A review of Petitioner’s initial brief in the direct appeal of his conviction reveals that

Petitioner mentioned his right to due process under the Fifth, Sixth, and Fourteenth Amendments

in relation to this claim (see Doc. 7, Ex. H at 31). The appellate court affirmed the trial court’s

denial of Petitioner’s motion for acquittal on the kidnapping count without discussion of the issue.

See Edmondson v. State, 745 So.2d 543 (Fla. First DCA 1999). As with Petitioner’s prior claim,

even if his reference to the Fifth, Sixth, and Fourteenth Amendments was deemed sufficient to fairly

present a federal claim to the state courts, Petitioner has failed to show he is entitled to federal

habeas relief.

1. Clearly Established Supreme Court Law

As an issue of federal law, Petitioner’s claim derives from the Fourteenth Amendment due

process requirement that the evidence presented at trial be sufficient to convict. In determining

whether Petitioner’s conviction was obtained with constitutionally infirm evidence, reference must

be made to the evidence needed to convict under State law. Jackson v. Virginia, 443 U.S. 307, 324

& n.16, 99 S.Ct. 2781, 2792 n.16, 61 L.Ed.2d 560 (1979). To satisfy the constitutional requirement

of due process during trial, the State must prove beyond a reasonable doubt every fact that

constitutes an essential element of the crime charged against the defendant. In re Winship, 397 U.S.

358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). When reviewing a claim of insufficient

evidence, the proper inquiry is not whether the reviewing court itself believes that the evidence

established guilt beyond a reasonable doubt but “whether, after viewing the evidence in the light

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

of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (citation

omitted); see also Bishop v. Kelso, 914 F.2d 1468, 1470 (11th Cir. 1990). The court should not

reweigh the evidence but should view it in the light most favorable to the jury’s verdict. Jackson,

443 U.S. at 319, 99 S.Ct. at 2789; United States v. Veal, 153 F.3d 1233, 1253 (11th Cir. 1998);

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Cosby v. Jones, 682 F.2d 1373, 1382 (11th Cir. 1982). Because jurors are free to evaluate the

credibility of testimony and the weight of the evidence, the court should assume that all conflicting

inferences were resolved against the defendant. Wilcox v. Ford, 813 F.2d 1140, 1143 (11th Cir.),

cert. denied, 484 U.S. 925, 108 S.Ct. 287, 98 L.Ed.2d 247 (1987). The test under Jackson is a

limited one, and “[i]t is not required that the evidence rule out every hypothesis except that of guilt

beyond a reasonable doubt.” Wilcox v. Ford, 813 F.2d at 1143. “The simple fact that the evidence

gives some support to the defendant’s theory of innocence does not warrant the grant of habeas

relief.” Id.; Cosby, 682 F.2d at 1383 n. 21. 

2. Federal Review of State Court Decision

Under Florida law in effect in 1998, kidnapping was defined, in relevant part, as follows:

(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining,

abducting, or imprisoning another person against her or his will and without lawful

authority, with intent to:

. . . .

2. Commit or facilitate commission of any felony.

Fla. Stat. § 787.01 (1998 Supp.). Recognizing that a literal construction of the statute could convert

nearly every forcible felony into kidnapping, in Faison v. State, 426 So.2d 963 (Fla. 1983), the

Florida Supreme Court established a three-prong test to determine if the movement or confinement

that allegedly occurred during the commission of the felony justified an additional conviction for

kidnapping. See Nino v. State, 744 So.2d 528, 530 (Fla. 3d DCA 1999) (citing Faison, supra);

Brown v. State, 719 So.2d 955, 956 (Fla. 4th DCA 1998) (citing Faison). For a kidnapping

conviction to stand, 

[T]he resulting movement or confinement,

(a) Must not be slight, inconsequential and merely incidental to the other

crime;

(b) Must not be of the kind inherent in the nature of the other crime; and

(c) Must have some significance independent of the other crime in that

it makes the other crime substantially easier of commission or 

substantially lessens the risk of detection.

Faison, 426 So.2d at 965. 

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5

References to page numbers of Exhibit M are references to the page numbers of the original trial transcript.

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In the instant case, the State presented testimony from the victim that on the evening of the

attack, she was alone in her hotel room asleep on the bed (Doc. 22, Ex. M at 61-63).5 She testified

she did not lock the door to the room (id. at 63). She awoke when she felt someone kneel on the bed

beside her and “sensed that someone was in my face.” (id. at 64). She testified she “immediately

jumped up and started freaking out” (id.). At that point, Petitioner grabbed her by the hair and arm

and dragged her onto the floor at the foot of the bed (id. at 64-65). As he dragged her to the floor,

Petitioner placed his hand over her mouth and his arm over her face (id. at 65). The victim testified

Petitioner told her to cooperate and not resist; he mentioned a gun and told her he was going to kill

her (id.). She testified that she squirmed and “attempted to fight back as much as [she] could” (id.

at 77). Petitioner then hit her across the face and bit her on her face and left breast (id. at 66).

Petitioner used his legs to attempt to pry her legs open (id. at 67). The victim testified that at one

point she was able to free one of her hands and place it over her vagina to protect herself (id.).

Despite her effort, Petitioner penetrated her vagina with his penis, but did not ejaculate (id. at 67-

68). The victim described physical injuries she received during the episode, depicted in photographs

admitted into evidence, including a bloody and bruised nose, a bite mark on her face, several bruises

on her inner legs, cuts and bloody lips, injuries to the tops of her feet, bruises and bite marks on her

breast, a bruise on her stomach, and bruising around her eye (id. at 70-76).

Nelson Matos, a supervisor at the hotel where the crimes occurred, testified that he was

dispatched to Room 516 by a security guard who observed a person climb onto the balcony of the

room (id. at 86-87, 89). Mr. Matos summoned maintenance personnel to open the door to the room,

because the door had been bolted from the inside (id. at 90-95). When Mr. Matos gained access to

the room, he observed a man on top of a woman on the floor (id. at 95-96). The man appeared to

be engaged in a sexual act, and was forcing the woman’s head back with his hand under her chin (id.

at 96). Mr. Matos instructed Petitioner to stand up, but Petitioner paid no attention and “kept on

doing what he was doing” (id. at 96). Mr. Matos touched Petitioner, but he again paid no attention

(id. at 97). Matos noticed tears coming from the victim’s closed eyes, and then her eyes opened and

she started screaming, “he’s raping me” (id. at 97). Matos pushed Petitioner off the victim and held

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him down with his knee (id.). When Matos finally released Petitioner, Petitioner ran to the wall and

punched a hole in it (id. at 98). Matos testified that the victim began screaming at Petitioner, and

Petitioner responded, “if you keep talking I’m going to kill you” (id. at 99).

Dr. Christopher Geertz, an emergency physician at Bay Medical Center in Panama City,

Florida, testified that he examined the victim after a reported sexual assault (id. at 159, 162). Dr.

Geertz testified that he observed “significant” signs of trauma to the victim’s face, breasts, thighs,

and lower legs, including bruising and lacerations consistent with a bite mark on her breast, bruising

consistent with a bite mark on her cheek, bruising on the cheek and side of the nose consistent with

an impact to the face, abrasions and lacerations compatible with an impact to the mouth, dried blood

within the nose and bruising on the outside of the nose consistent with impact to the face, bruises

on her calf consistent with hitting the ground struggling, bruises on the inside of her thighs

consistent with being hit or impacted on the thighs, and abrasions to the tops of both feet consistent

with rug burns (id. at 163-67). Dr. Geertz testified that the fact that Petitioner’s semen was not

found at the scene or on the victim’s body was consistent with the victim’s version of events that

the actual penile penetration of her vagina was fairly brief (id. at 177). He further testified that in

medical literature concerning sexual assault, as well as his personal experience as a physician, semen

is found in only ten to thirty percent (10-30%) of sexual assault cases (id. at 174-75).

Ryann Whetstone was a guest in the same hotel room as the victim (id. at 32-33). She

testified that shortly before the attack, she left the victim alone in the room sleeping (id. at 36). Ms.

Whetstone stated she did not engage the dead bolt or the night latch on the door when she left,

because the locks could not be engaged from outside the room (id. at 37). Upon her return to the

room, hotel personnel were attempting to access the room (id. at 128). Upon entering the room, Ms.

Whetstone observed Petitioner on top of the victim engaged in what appeared to be sexual activity,

and Petitioner’s arm was over the victim’s mouth (id.). Ms. Whetstone testified that a telephone was

located on a table between the two beds in the room (id. at 39, 128-29). 

Jennifer Davis, also a guest in the same room as the victim, testified that approximately

forty-five minutes before the attack, she left the room to go to a grocery store (id. at 118). Upon her

return, she observed two hotel security guards attempting to gain access to the room (id. at 119).

When the door was opened and Ms. Davis entered the room, she observed Petitioner on top of the

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victim engaged in what appeared to be a sexual act, but she did not observe actual penetration (id.

at 120-21, 125-26).

David Humphreys, a police officer with the Panama City Beach Police Department, testified

he underwent training in arrest procedures and control of subjects who are resisting arrest (id. at 135,

144). He stated based on his training and experience, it is easier to control a person on the floor than

on a soft surface (id. at 146).

Petitioner testified that on the day of the attack, he believed the victim wanted him to come

to her hotel room, because earlier in the day she had invited him to the room for a party (id. at 198-

201). When he arrived at the room later that day, the door was closed, so he went to the room next

door and “did a balcony climbing” (id. at 201). When he got to the balcony of the victim’s room,

he observed the victim on the bed (id. at 202). He knocked on the window, but the victim did not

respond (id.). He knocked again, and “She turned around and I guess she saw me out there, I was

the only one out there, I guess she happened to see me, I was the only one out there, she nodded me

in.”(id.). He entered the room, sat on the bed, and “we just started kissing and things like that.” (id.).

He testified they both stood up and “got too intimate” and “ended up” on the floor (id. at 217).

Petitioner testified the victim “went along with” his behavior; she never told him to stop; he never

used force in touching her, and everything appeared to be consensual (id. at 203). He stated her

behavior changed when the security guard and the victim’s friends entered the room; at that point,

the victim indicated she was being raped (id.). Petitioner denied that his arm was over the victim’s

mouth, or that he in any way prevented her from talking or screaming (id. at 205-06). Additionally,

he stated he never locked the door to the room or engaged the night latch (id. at 205).

On cross-examination, Petitioner admitted he caused the mark on the victim’s breast, but

stated it was a “hickey” (id. at 207). He denied that he caused any of the other injuries or that he

touched or penetrated her vagina (id. at 207-08, 213-17).

The evidence, viewed in a light most favorable to the State, is sufficient to permit a rational

juror to conclude beyond a reasonable doubt that Petitioner forcibly and by threat moved and

confined the victim against her will with the intent of committing sexual battery. The victim’s

physical injuries, including bruises and rug burns, demonstrate the force and violence used by

Petitioner to overcome the victim’s resistance and move her onto the floor. Furthermore, dragging

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the victim to the floor moved her away from the telephone, thereby preventing her ability to call for

help, and it rendered commission of the sexual battery easier by removing her from a soft surface

to a hard one. Moreover, the evidence showed that Petitioner bolted the door and continued to use

force, including holding the victim down, hitting her across the face, and biting her, as well as

threatening to kill her, to prevent her escape. Additionally, Petitioner covered the victim’s mouth

to prevent screaming. A reasonable juror could conclude beyond a reasonable doubt that these

actions were not slight, inconsequential, or incidental; that taken as a whole, the movement and

confinement were not of the kind inherent in the nature of the underlying sexual battery; and that

the movement and confinement made the sexual battery substantially easier to commit and

significantly lessened the risk of detection. Because a rational trier of fact could have found guilt

beyond a reasonable doubt, this Court concludes that the State appellate court did not contrarily or

unreasonably apply clearly established Supreme Court law when it affirmed the trial court’s denial

of Petitioner’s motion for acquittal on the kidnapping count. The evidence did not have to exclude

every reasonable hypothesis of innocence to meet the federal standard.

D. Ground Four: “Trial Court Reversibly Erred By Denying Appellant’s Motion

For Judgement [sic] Of Acquittal On The Charge Of Sexual Battery With The Actual

Use Of Force Likely To Cause Serious Personal Injury Because The Evidence Failed

To Show That Level Of Force Was Actually Used.”

Petitioner contends the trial court’s alleged error in denying his motion for judgment of

acquittal on the sexual battery charge violated his federal due process rights. In support of his claim,

he states he neither used force likely to cause serious injury, nor actually caused serious injury to

the victim. Petitioner contends the bites and punch to the victim’s face were not the type of force

likely to cause “great bodily harm or pain, permanent disability, or permanent disfigurement.”

Petitioner suggests the victim’s lack of disfigurement or lasting disability shows that her injuries

were not the type that qualified as “serious personal injuries.” Furthermore, the fact that her nose

and lip completely healed within a few days, and that her breast was “a little tender,” but not sore

enough to prevent her from engaging in normal activities, demonstrates the injuries were less serious

than contemplated by the statute.

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As with Grounds Two and Three, Respondent argues Petitioner did not fairly present this

issue as a federal claim in the state courts. Furthermore, the state court’s denial of this claim was

not contrary to or an unreasonable application of Supreme Court law.

A review of Petitioner’s initial brief in the direct appeal of his conviction shows that

Petitioner mentioned his right to due process under the Fifth, Sixth, and Fourteenth Amendments

in relation to this claim (see Doc. 7, Ex. H at 36). The appellate court affirmed the conviction

without discussion of the issue. See Edmondson v. State, 745 So.2d 543 (Fla. First DCA 1999).

Even if Petitioner’s reference to the Constitutional amendments was sufficient to fairly present a

federal claim to the state courts, Petitioner has failed to show he is entitled to federal habeas relief

on this claim. 

1. Clearly Established Supreme Court Law

The clearly established Supreme Court law on claims of insufficiency of the evidence was

set forth above.

2. Federal Review of State Court Decision

Section 749.011(3) provides:

A person who commits sexual battery upon a person 12 years of age or older,

without that person’s consent, and in the process thereof uses or threatens to use a

deadly weapon or uses actual physical force likely to cause serious personal injury

commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084,

or s. 794.0115(1)(a).

Florida law defines “serious personal injury” as “great bodily harm or pain, permanent disability,

or permanent disfigurement.” Fla. Stat. § 794.011(1)(g).

In the instant case, the evidence shows Petitioner grabbed the victim by the hair and arm,

dragged her onto the floor, hit her across the face, bit her face and left breast, and used his legs to

pry her legs open. The victim, as well as the physician who treated her injuries, described her

injuries as a bloody and bruised nose, bite marks on her face and breast, several bruises on her inner

and lower legs, cuts and bloody lips, and rug burns on the tops of her feet. Photographs documented

these injuries. Dr. Geertz testified, “I saw significant signs of trauma to her face, her breasts, her

thighs, her lower legs. She was pretty extensively injured.” (Doc. 22, Ex. M at 163). He further

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testified her injuries were consistent with being bitten, struck, dragged, hitting the ground, and

struggling (id. at 163-66).

Describing the pain she suffered from the injury to her breast, the victim testified, “I had pain

for a long time afterwards. It was hard for me to wear a bra, it was hard for me when people hugged

me for up to two months and then it started to get better. . . . it still is a little tender though” (Doc.

22, Ex. M at 78-79). On a scale of one to ten, ten being the most severe, she testified that the level

of pain she suffered as a result of the bite to her breast was “10” (id. at 85). However, the victim

acknowledged she was able to perform regular activities, and she was not under continued doctor’s

care for the injury (id. at 86). The victim further testified that her lip healed within four or five days

after the attack, her nose healed within ten days, and some of the bruises healed within two weeks,

but some lasted longer (id. at 79). The victim stated she did not suffer a permanent, physical

disability from the attack, nor did she have surgery to correct any of her injuries (id. at 85).

In addition to her physical injuries, the victim testified to the emotional pain she suffered as

a result of the attack. She stated that after the security guards separated Petitioner from her, she

started screaming and crying, “I was laying on the bed crying and then I felt this incredible surge

of anger just come over me and I just went over and I started hitting him and screaming and kicking

and doing everything I possibly could.” (id. at 78). Ryann Whetstone, the victim’s roommate, also

described the victim’s emotional state, “Right when they got Edmondson off of her she stood up like

that and went to the other side of the room and she was going crazy, she was crying, her hair was

all in her face, she just kept yelling at him and saying ‘you raped me, you raped me’ . . .” (id. at

131).

The evidence, viewed in a light most favorable to the State, is sufficient to permit a rational

juror to conclude beyond a reasonable doubt that Petitioner used actual physical force likely to cause

great bodily harm or pain. Because a rational trier of fact could have found guilt beyond a

reasonable doubt, this Court concludes that the State appellate court did not contrarily or

unreasonably apply clearly established Supreme Court law when it affirmed the trial court’s denial

of Petitioner’s motion for acquittal on the sexual battery count. Again, the evidence did not have

to exclude every reasonable hypothesis of innocence to meet the federal standard.

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E. Ground Five: “The Trial Court Committed Reversible Error By Responding

To A Jury Question Without Notifying Appellant And Counsel That A Question Had

Been Asked, And Without Giving Counsel An Opportunity To Participate In The

Response To That Question.”

Respondent asserts that during jury deliberations, the jury notified the judge that they had

a question regarding the instruction on the kidnapping charge, but neither Petitioner nor his counsel

was notified of the question, thus, they were not given an opportunity to participate in formulating

a response. Petitioner contends this alleged error violated his federal due process rights.

Respondent argues Petitioner originally raised this issue in his direct appeal, but abandoned

it; thus it is unexhausted and procedurally barred (Doc. 7 at 8).

Respondent is correct. The record shows Petitioner raised this issue in his direct appeal (see

Doc. 7, Ex. H at 37). The State filed a motion to supplement the record with affidavits of the

prosecutor and Petitioner’s trial counsel stating that the parties, including Petitioner, were present

when the jury requested clarification on the kidnapping charge (see id., Exs. I, J). Additionally, the

prosecutor and Petitioner’s counsel stated the trial judge consulted with them, and the parties agreed

that the Florida standard jury instruction on kidnapping and false imprisonment would be read to

the jury in response to their question (id., Ex. I). Petitioner did not oppose the motion to supplement

the appellate record (id.). The appellate court treated the unopposed motion as a stipulation of the

parties to correct the record, as reflected in the affidavits, and granted the motion (id., Ex. J).

Petitioner’s counsel then filed a notice with the appellate court stating he wished to abandon this

issue in the direct appeal (id., Ex. L).

Because Petitioner abandoned this claim in the state courts, this Court concludes he failed

to fairly present the issue to the state courts. Furthermore, the issue is one that “could have or

should have been raised” in his direct appeal, therefore, he cannot now seek relief through a state

postconviction proceeding. Fla. R. Crim. P. 3.850(c)(6). Moreover, Petitioner does not assert cause

for his failure to pursue the issue in the state courts, or prejudice therefrom. Therefore, the claim

should be denied as unexhausted and procedurally barred.

F. Ground Six: “The Trial Court Reversibly Erred And Violated Appellant’s Right To

Due Process By Refusing To Redact A Nonresponsive Answer Given By Dr. Geertz During

A Deposition To Perpetuate Testimony In Which He Gave His Personal Opinion That

Appellant Was A Sadomasochist.”

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6

Dr. Geertz’s testimony was presented in the form of a videotaped deposition. Prior to playing the videotape

to the jury, the trial judge heard and ruled on counsel’s objections at a bench conference (see Doc. 22, Ex. M at 151-58).

Case No.: 5:03cv99/MCR/EMT

Petitioner contends the trial court denied his federal due process rights by denying his trial

counsel’s objection to the following testimony of Dr. Geertz during counsel’s cross-examination:

Q. And you don’t know if this was some type of consensual sexual

relationship?

A. Without having been there no one can say one hundred percent what

is consensual sex. Of course there are people that have sadomasochistic

relationships that --

MS. BELLER [Petitioner’s counsel]: I would object to that.

THE WITNESS: -- do things like this for pleasure, however

--.

MS. BELLER: And I would object that he keeps, you know --,

I would ask you that when I ask you a question that you answer just the question.

THE WITNESS: I’m answering the question. These injuries are

completely consistent with the events as they were described to me.

Q. (Ms. Beller continuing) It could also be consistent with some type of

rough sex in which she consented to, is that not correct?

A. That is entirely possible but that’s not the way it was portrayed to me.

(Doc. 22, Ex. M at 169-70) (emphasis added). Petitioner’s counsel objected to the testimony on the

ground that it was confusing and misleading (id. at 155-56).6

 Additionally, Petitioner contends the

testimony was irrelevant and constituted “devastating character assassination.”

Respondent argues Petitioner did not fairly present this issue as a federal claim in the state

courts. Furthermore, the evidentiary issue is a question of state law and therefore, not the proper

subject of federal habeas relief. Moreover, the state court’s denial of this claim was not contrary to

or an unreasonable application of Supreme Court law.

A review of Petitioner’s initial brief in the direct appeal of his conviction shows that

Petitioner mentioned his right to due process under the Fourth, Fifth, and Fourteenth Amendments

in relation to this claim (see Doc. 7, Ex. H at 44). The appellate court affirmed the conviction

without discussion of the issue. See Edmondson v. State, 745 So.2d 543 (Fla. First DCA 1999).

Assuming arguendo that Petitioner’s reference to the Constitutional amendments was sufficient to

fairly present a federal claim to the state courts, Petitioner has failed to show he is entitled to federal

habeas relief on this claim. 

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Federal habeas relief is available to correct only constitutional injury. 28 U.S.C. § 2254(a);

Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983); Engle v. Isaac, 456 U.S.

107, 102 S.Ct. 2976, 73 L.Ed.2d 1361 (1981); Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir.

1998), cert. denied, 119 S.Ct. 2373, 144 L.Ed.2d 777 (1999). Errors of state law which do not

infringe upon a defendant’s constitutional rights provide no basis for federal habeas corpus relief.

Questions regarding state evidentiary rulings may be reviewed only when the alleged errors at trial

“so infused the trial with unfairness as to deny due process of law.” Felker v. Turpin, 83 F.3d 1303,

1311 (11th Cir.) (quoting Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 286, 86 L.Ed. 166

(1941)), cert. denied, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); see also Estelle v.

McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). The erroneous ruling must

have “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). “A denial of

fundamental fairness occurs whenever the improper evidence is material in the sense of a crucial,

critical, highly significant factor.” Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir.) (quotation

omitted), cert. denied, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998).

In the instant case, Petitioner has failed to show the state court’s evidentiary ruling was

erroneous or that the testimony rendered his trial fundamentally unfair. Petitioner’s counsel

questioned Dr. Geertz as to whether injuries in the nature of those sustained by the victim could have

been incurred during consensual sex, including “rough” sex, and Dr. Geertz responded by describing

scenarios where it was possible for such injuries to be sustained during consensual sex. Dr. Geertz’s

testimony was responsive to counsel’s question and relevant to the issue of whether the injuries

could be consistent with consensual sex. Contrary to Petitioner’s assertion, Dr. Geertz did not in

any way suggest Petitioner was a sadomasochist or engaged in rough sex. In fact, it was Petitioner’s

counsel who suggested the rough sex scenario in an attempt to cast the attack as consensual.

Furthermore, Petitioner has failed to show Dr. Geertz’s testimony had a substantial and injurious

effect or influence in determining the jury’s verdict. Accordingly, he is not entitled to federal habeas

relief on this claim.

G. Ground Seven: “The Trial Court Reversibly Erred Because The Scoresheet Cannot

Assess 18 Points For Moderate Victim Injury And 80 Points For Sex PenetrationWithout A

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Finding By The Jury, Because To Do So Would Be To Violate The Due Process Clause Of

The U.S. Constitution.”

Petitioner contends he was entitled to have the jury, not the sentencing judge, determine

beyond a reasonable doubt the facts underlying the assessment of sentencing points for victim injury

and sexual penetration because such factors increased his sentence.

Respondent concedes Petitioner exhausted this claim in the direct appeal of his resentencing,

but contends the appellate court’s denial of his claim was not contrary to or an unreasonable

application of Supreme Court law.

1. Clearly Established Supreme Court Law 

In Apprendi v. New Jersey, the Supreme Court held, “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). 

2. Federal Review of State Court Decision

The state appellate court denied relief on Petitioner’s claim without discussion. See

Edmondson v. State, 816 So.2d 768, 769 (Fla. 1st DCA 2002).

The statutory maximum sentences for all three of Petitioner’s convictions was life

imprisonment. See Fla. Stat. §§ 810.02(2)(a), 794.011(3), 787.01(2), 775.082(3)(a)(3), and

775.082(3)(b). The trial court resentenced Petitioner to 336.25 months of imprisonment on each

offense (see Doc. 22, Ex. O). Because Petitioner’s sentences did not exceed the statutory maximum

prescribed by Florida law, Apprendi is inapplicable. Therefore, the state court’s decision denying

his claim was not contrary to or an unreasonable application of Supreme Court law.

H. Grounds Eight, Nine, Ten, and Twelve: Ineffective Assistance of Counsel

Respondent concedes Petitioner exhausted his ineffective assistance claims in his Rule 3.850

motion, but contends the state court’s denial of his claims was not contrary to or an unreasonable

application of Supreme Court law.

1. Clearly Established Supreme Court Law

The legal standard clearly established by the Supreme Court for ineffectiveness of counsel

claims is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

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Case No.: 5:03cv99/MCR/EMT

(1984). See Fugate v. Head, 261 F.3d 1206, 1216-17 (11th Cir. 2001); Wellington v. Moore, 314

F.3d 1256, 1260 (11th Cir. 2002) (both citing Williams v. Taylor and Strickland). The two

components of an ineffectiveness claim under Strickland are performance and prejudice, and if an

insufficient showing is made as to one, the court need not address the other. Strickland, 466 U.S.

at 697, 104 S.Ct. at 2069; Wellington, 314 F.3d at 1260. In assessing performance, the court

considers whether “counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 686, 104 S.Ct. at 2064. “The court

must . . . determine whether, in light of all the circumstances, the identified acts or omissions were

outside the wide range of professionally competent assistance.” 466 U.S. at 690, 104 S.Ct. at 2066.

Petitioner must show that “no competent counsel would have taken the action that his counsel did

take.” Fugate, 261 F.3d at 1217 (citation omitted).

Indeed, the Strickland court recognized that “[e]ven the best criminal defense attorneys

would not defend the same petitioner in the same way.” 466 U.S. at 689, 104 S.Ct. at 2065. Matters

of trial strategy and tactics, unless plainly not within the bounds of reasonableness, and even if

unsuccessful, do not constitute ineffective assistance. Bell v. Evatt, 72 F.2d 421 (4th Cir. 1995). 

Trying cases is not exact science. And as a result, we must never delude

ourselves that the fair review of a trial lawyer’s judgment and performance is an

activity that calls for great precision or for a categorical approach. When reviewing

whether an attorney is ineffective, courts “should always presume strongly that

counsel’s performance was reasonable and adequate.” Atkins v. Singletary, 965 F.

2d 952, 958 (11th Cir. 1992). And, “a court should be highly deferential to those

choices . . . that are arguably dictated by a reasonable trial strategy.” Devier v. Zant,

3 F. 3d 1445, 1450 (11th Cir. 1993). 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 can be shown that no reasonable lawyer, in the circumstances

would have done so.

Rogers v. Zant, 13 F. 3d 384, 386 (11th Cir. 1994); Grayson v. Thompson, 257 F.3d 1194, 1216 (11th

Cir. 2001) (to show counsel’s performance was unreasonable, defendant must establish no

competent counsel would have taken the action that his counsel did take).

Indeed, counsel’s strategic and tactical decisions on which defense to pursue are “virtually

unchallengeable.” Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) (quoting

Strickland). But not every strategic decision passes constitutional muster. Whether a particular

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decision by counsel was a tactical one is a question of fact, Hardwick v. Crosby, 320 F.3d 1127,

1163 (11th Cir. 2003), and the state court’s resolution of that issue enjoys a strong presumption of

correctness. See 28 U.S.C. § 2254(e)(1); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995);

Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991). Whether a particular tactical decision was a

reasonable one, however, is a question of law, Hardwick 320 F.3d at 1163; Jackson, 42 F.3d at 1367;

Horton, 941 F.2d at 1462. In determining whether counsel’s decision was reasonable, “every effort

[must] 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.”

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

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

prejudice is high. Wellington, 314 F.3d at 1260. The Supreme Court has cautioned that “‘[i]t is not

enough for the defendant to show that the errors had some conceivable effect on the outcome of the

proceeding.’” Id. (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067). However, the Court has

also clarified that a petitioner need not demonstrate it ‘more likely than not, or prove by a

preponderance of evidence,’ that counsel’s errors affected the outcome. Strickland, 466 U.S. at 693-

94, 104 S.Ct. at 2068. Instead, 

The defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.

Id. at 694, 104 S.Ct. at 2068. Indeed, it would be “contrary to” the law clearly established in

Strickland for a state court to reject an ineffectiveness claim for failing to prove prejudice by a

preponderance of the evidence. Williams, 529 U.S. at 405-406, 120 S.Ct. at 1519.

The prejudice assessment does “not depend on the idiosyncracies of the particular

decisionmaker,” as the court should presume that the judge or jury acted according to law.

Strickland, 466 U.S. at 694-95, 104 S.Ct. at 2068. “When a defendant challenges a conviction, the

question is whether there is a reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. at 2068-69. 

In making this determination, a court hearing an ineffectiveness claim must consider

the totality of the evidence before the judge or jury. Some of the factual findings will

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have been unaffected by the errors, and factual findings that were affected will have

been affected in different ways. Some errors will have had a pervasive effect on the

inferences to be drawn from the evidence, altering the entire evidentiary picture, and

some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support. Taking the unaffected findings as a given,

and taking due account of the effect of the errors on the remaining findings, a court

making the prejudice inquiry must ask if the defendant has met the burden of

showing that the decision reached would reasonably likely have been different absent

the errors. . . . [T]he ultimate focus of inquiry must be on the fundamental fairness

of the proceeding whose result is being challenged.

Id. at 695-96, 104 S.Ct. at 2069.

2. Federal Review of State Court Decision

The only claims raised by Petitioner in his Rule 3.850 motion were claims of ineffective

assistance of counsel. In the state court’s written decision denying Petitioner’s motion, the court

analyzed whether Petitioner’s allegations of deficiency in counsel’s performance were meritorious

and whether Petitioner demonstrated he was prejudiced by the alleged errors. Additionally, the court

cited Strickland in its analysis of one of Petitioner’s claims. Because the state court explicitly

identified and applied the two-prong Strickland standard, and the state court did not reach a decision

different from the Supreme Court in a case with indistinguishable facts, Petitioner cannot show the

state court decision was “contrary to” Strickland. Therefore, he is entitled to federal habeas relief

only if he establishes the state court’s denial of his claims was objectively unreasonable.

a. “Defense Counsel Rendered Ineffective Assistance Of Counsel

For Failure To Object To The Validity Of The State’s Witnesses Testimony When

The Testimonies From The Witnesses Are In Complete Discord Of Each Other’s

Testimony.”

Petitioner contends his counsel performed in a constitutionally deficient manner by failing

to object to the testimonies of Jennifer Davis and Ryann Whetstone on the ground that their

testimonies were inconsistent. Specifically, he alleges Jennifer Davis stated Petitioner confined

himself to the sink area of the hotel room shared by the victim and her roommates, but Ryann

Whetstone testified Petitioner walked around the room. Additionally, he alleges Jennifer Davis

contradicted herself by stating her roommate Angela Keaton was not in the room when Petitioner

was there, and then testified that Angela was present when she (Jennifer) left the room. Petitioner

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also alleges Ryann Whetstone testified inconsistently when she stated that when she first entered the

hotel room during the attack, she could not see whether or not the victim was able to scream, but

then testified the victim was prevented from screaming because Petitioner’s arm was over the

victim’s mouth. He contends he was prejudiced by his counsel’s failure to object because the jury

was not made aware of the conflict in the witnesses’ testimony, and the issue was not preserved for

appellate review.

Upon review of the record, the state court found that Petitioner’s counsel cross-examined

both witnesses, and that Petitioner failed to set forth any legal grounds upon which a valid objection

could or should have been made; thus, Petitioner’s allegation of error in counsel’s performance was

without merit (Doc. 7, Ex. G at 26). Additionally, the court concluded Petitioner failed to

demonstrate prejudice.

Initially, the fact that a witness’ testimony is inconsistent with another witness’ testimony

is not a cognizable basis for objection under Florida law. Furthermore, Petitioner has failed to show

that the testimony was actually inconsistent. Regarding the issue of Petitioner’s position in the

room, Jennifer Davis testified that Petitioner confined himself to the sink area when she (Jennifer)

was present in the room (Doc. 22, Ex. M at 26-27). Ryann Whetstone testified that Petitioner

walked around the room after Jennifer Davis and another roommate left the room and went to the

grocery store (id. at 34). Regarding Angela Keaton’s presence in the room, Jennifer Davis testified

that when Petitioner initially arrived at the room, all of the roommates were present except Angela

Keaton, and in the next sentence she states that Ms. Keaton subsequently returned to the room (id.

at 24). This testimony is not inconsistent with Jennifer Davis’ testimony that when she later left the

room to go to the store, Ms. Keaton was present (id. at 28). Finally, regarding Ryann Whetstone’s

testimony about her observation of Petitioner’s arm over the victim’s mouth, she testified that when

she first entered the room during the attack, she could not see whether or not the victim was able to

scream, but when she walked in further, she could (id. at 128). She then testified that the victim was

prevented from screaming by Petitioner’s arm over her mouth (id.). On cross-examination, Ms.

Whetstone testified that when she initially entered the room, she could see Petitioner’s backside, but

not his front, and she was not close enough to see what was “actually going on” between Petitioner

and the victim (id. at 135-36). Ms. Whetstone’s testimony that she was unable to observe the

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interaction of Petitioner and the victim upon her initial entry into the room is not inconsistent with

her testimony that she was subsequently able to observe Petitioner’s arm over the victim’s mouth.

Because Petitioner has failed to establish his counsel had a meritorious basis for objecting

to or conducting further cross-examination of the testimony of Ms. Davis and Ms. Whetstone, he

has failed to satisfy the performance prong of the Strickland standard. Additionally, he has failed

to demonstrate a reasonable probability that further cross-examination would have created

reasonable doubt as to his guilt. Therefore, the state court’s denial of this claim was not an

unreasonable application of Strickland.

b. “Defense Counsel Rendered Ineffective Assistance Of Counsel

For Failure To Impeach Witness On Prior Inconsistent Statements.”

Petitioner contends trial counsel erred in failing to impeach Nelson Matos regarding

Petitioner’s threatening to kill the victim. Petitioner alleges that in an interview with police shortly

after the incident (see Doc. 1, attachment), Matos stated Petitioner responded, “That’s not what

happened” when the victim accused him of rape; however, in Matos’ deposition and trial testimony,

Matos testified Petitioner threatened to kill the victim in response to her accusations. Additionally,

Petitioner contends Matos gave inconsistent statements regarding the victim’s consumption of

alcohol. During Matos’ interview with police, he stated the victim was very drunk at the pool area

that day; but in his deposition testimony he stated that upon entering the room at the time of the

attack, he observed the victim may have been drinking. Finally, Petitioner contends Matos was

inconsistent in his description of the time that elapsed before he discovered that a sexual battery

occurred. Apparently in his statement to the police, Matos said approximately two seconds after he

entered the hotel room, he pushed Petitioner off the victim and the victim started screaming that she

had been raped; however, in his deposition and trial testimony, Matos stated he was in the room 15-

20 seconds before he discovered the victim had been raped. Petitioner contends he was prejudiced

by his counsel’s failure to impeach Matos because if counsel had questioned Matos on the alleged

inconsistencies, the jury would have dismissed Matos’ testimony on the issue of whether Petitioner

threatened the victim with violence.

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Upon review of the record, the state court found that Mr. Matos’ trial testimony was

consistent with his deposition testimony. Furthermore, Petitioner failed to demonstrate prejudice

under Strickland (Doc. 7, Ex. G at 26).

Upon review of Mr. Matos’ statement to police, his deposition testimony, and his trial

testimony, this Court concludes Petitioner has failed to establish his counsel performed unreasonably

in failing to impeach Mr. Matos on the points raised by Petitioner. In light of the consistency of

Matos’ deposition and trial testimony regarding Petitioner’s threats to the victim, and considering

the victim’s testimony that Petitioner threatened to kill her, counsel’s failure to attempt to impeach

Matos on this point, thereby reducing the risk of highlighting the threats, was not unreasonable.

Furthermore, the difference in Matos’ estimation of the number of seconds it took him to realize that

a crime occurred upon entering the hotel room, a difference of 13-15 seconds, was of little

significance, thus counsel’s failure to attempt impeachment of Matos on this point was certainly

reasonable. Moreover, counsel’s failure to question Matos regarding the victim’s consumption of

alcohol earlier in the day was not unreasonable, especially in light of the testimony of Lieutenant

Humphreys and Dr. Geertz that shortly after the attack, the victim did not appear intoxicated at all

(see Doc. 22, Ex. M at 143-44, 172).

Additionally, Petitioner has failed to establish prejudice. Petitioner does not allege a

reasonable probability exists that but for counsel’s failure to impeach Matos, the result of the trial

would have been different; rather, he alleges only that the jury would have discredited Matos’

testimony on the issue of whether Petitioner threatened the victim. Furthermore, even if Petitioner

sufficiently alleged prejudice, the record does not support a conclusion that there is a reasonable

probability a juror would have had reasonable doubt about Petitioner’s guilt if Petitioner’s counsel

had attempted to impeach Matos as suggested by Petitioner. Accordingly, the state court’s denial

of Petitioner’s claim was not unreasonable.

c. “Defense Counsel Rendered Ineffective Assistance Of Counsel

For Failing To Challenge The Expertise Of Dr. Geertz.”

Petitioner contends trial counsel should have made a motion to strike Dr. Geertz’s testimony

on the ground that he was not a board certified emergency physician at the time of his examination

of the victim or when he testified at trial. Petitioner asserts Dr. Geertz was tendered by the State as

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an expert in the field of emergency medicine, even though he was not board certified in that area.

The state court found that the record showed Petitioner’s counsel objected to the State’s

tendering Dr. Geertz as an expert in the field of emergency medicine, and counsel elicited testimony

from Dr. Geertz that he was not board certified as an emergency physician (see Doc. 7, Ex. G at 26-

27). Thus, the court concluded Petitioner’s claim of attorney error was without merit (id. at 27).

Additionally, Petitioner failed to show he was prejudiced by counsel’s alleged error (id.).

A review of the trial transcript shows that during a bench conference prior to the presentation

of Dr. Geertz’s testimony, Petitioner’s counsel objected to the State’s tendering him as an expert in

the field of emergency medicine (see Doc. 22, Ex. M at 153-54). The trial court initially appeared

to sustain the objection, but after further discussion, overruled it, and ruled that Dr. Geertz would

be permitted to testify as an emergency room physician (id.). Petitioner’s counsel reiterated her

objection, and the trial judge stated, “You’ve made your objection” and proceeded to the next issue

(id. at 154). Thus, the record establishes Petitioner’s counsel made reasonable efforts to prevent Dr.

Geertz from testifying as an expert in the field of emergency medicine. Furthermore, upon the trial

court’s overruling counsel’s objection, counsel elicited testimony from Dr. Geertz that he was not

a board certified emergency physician (id. at 167).

Additionally, Petitioner has failed to establish a reasonable probability that the result of the

proceeding would have been different if counsel had pursued the issue further, either by further

arguing the objection or eliciting more testimony on cross-examination. Indeed, the trial transcript

shows that when counsel attempted to further argue her objection during the bench conference, the

trial judge clearly indicated that her ruling was final. Accordingly, the state court’s denial of

Petitioner’s ineffective assistance claim was not unreasonable.

d. “Defense Counsel Rendered Ineffective Assistance Of Counsel

For Failing To Object To The Testimony Given By Dr. Geertz.”

Petitioner contends his counsel should have objected to the testimony of Dr. Geertz on the

ground that the testimony was based upon hearsay statements of the victim as to the cause of her

injuries. Petitioner also appears to assert that counsel should have objected to Dr. Geertz’s

testimony regarding the pictures of the victim’s injuries on the ground that Dr. Geertz did not know

when the pictures were taken or the actual cause of the injuries depicted. Petitioner then reiterates

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his contention that Dr. Geertz should not have been permitted to testify as an expert in the field of

emergency medicine.

The state court considered Petitioner’s claim in conjunction with his previous claim

regarding counsel’s failure to challenge the expertise of Dr. Geertz and denied the claim as

nonmeritorious (see Doc. 7, Ex. G at 26-27). Additionally, the state court concluded Petitioner

failed to demonstrate prejudice (id.). 

Petitioner has failed to show counsel had a basis for objecting to Dr. Geertz’s testimony. Dr.

Geertz testified that the victim was brought to the emergency room by police for examination for

a reported sexual assault (Doc. 22, Ex. M at 162). Dr. Geertz described each injury depicted in the

photographs and stated the general character of the cause or external source consistent with each

injury (for example, circular or ring-shaped bruising and superficial jagged lacerations were

consistent with a bite mark, bruising to the legs was consistent with being struck or hitting the

ground struggling, abrasions to the tops of the feet were consistent with being dragged or rug burns)

(id. at 163-67). He testified that the injuries in the photographs fairly and accurately represented the

victim’s injuries as they appeared when he examined her or shortly thereafter (id. at 163-64). He

further testified that the injuries depicted in the photographs and the injuries he observed during his

examination were consistent with the incident described to him by the victim that night (id. at 167).

Florida law provides that the following statements are admissible as evidence:

(4) Statements for purposes of medical diagnosis or treatment.--

Statements made for purposes of medical diagnosis or treatment by a person

seeking the diagnosis or treatment . . . which statements describe medical

history, past or present symptoms, pain, or sensations, or the inceptions or

general character of the cause or external source thereof, insofar as reasonably

pertinent to diagnosis or treatment.

Fla. R. Evid. 90.803(4). Thus, Dr. Geertz’s references to the victim’s description of the inception

or general character of the cause or external source of her symptoms, pain, and sensations were

clearly admissible under the rule.

Furthermore, Petitioner has failed to assert a valid basis for an objection to Dr. Geertz’s

testimony that the photographs fairly and accurately represented the victim’s injuries as they

appeared on the night of his examination or shortly thereafter. Dr. Geertz personally observed the

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victim’s injuries, thus he was competent to testify whether the pictures accurately depicted them.

Having no basis to object to the doctor’s testimony, Petitioner’s counsel did the next best thing in

cross-examining him, including highlighting the fact that he was not present when the injuries were

incurred or when the photographs were taken (see Doc. 22, Ex. M at 168-74). Petitioner has failed

to establish his counsel performed in a deficient manner, therefore, the state court’s denial of his

claim was not an unreasonable application of Strickland.

For the foregoing reasons, it is, therefore, respectfully RECOMMENDED:

That the petition for writ of habeas corpus (Doc. 1) be DENIED with prejudice.

At Pensacola, Florida, this 11th day of March, 2005.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within ten

days after being served a copy thereof. A copy of objections shall be served upon the

magistrate judge and all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701

(11th Cir. 1988).

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