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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

PAUL JONATHAN ENDSLEY,

Petitioner,

vs.

CASE NO. 5:04cv16-LAC/WCS

JAMES CROSBY,

Respondent.

 /

REPORT AND RECOMMENDATION

This is a petition for writ of habeas corpus filed by Paul Jonathan Endsley

pursuant to 28 U.S.C. § 2254. Doc. 1. Petitioner challenges his conviction for driving

while under the influence (DUI) manslaughter and DUI with serious bodily injury, both in

violation of FLA. STAT. § 316.193. The convictions were in the Circuit Court of the

Fourteenth Judicial Circuit, in and for Bay County, Florida, case number 98-2383H.

Respondent filed an answer, doc. 12, and the state record, doc. 13, and

Petitioner filed a traverse, doc. 15. Respondent acknowledges that the petition was

timely filed. Doc. 12, p. 5. Respondent also concedes that state court remedies have

been exhausted as to each claim.

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Case No. 5:04cv16-LAC/WCS

Section 2254 Standard of Review

Petitioner is entitled to federal habeas relief only if the state court's adjudication

of the merits of the federal claim "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." § 2254(d)(1). 

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have

independent meanings. Williams v. Taylor, 529 U.S. 362, 404-406, 120 S.Ct. 1495,

1519-1520, 146 L.Ed.2d 389 (2000); Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843,

1850, 152 L.Ed.2d 914 (2002) (citing Williams). "[C]learly established Federal law, as

determined by the Supreme Court of the United States," refers only to holdings of the

Supreme Court, but decisions of lower federal courts may be considered to the extent

that they demonstrate how those courts applied Supreme Court precedent. Hawkins v.

Alabama, 318 F.3d 1302, 1309 (11th Cir. 2003) (citations omitted). 

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 [the

Supreme] 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.

529 U.S. at 412-413, 120 S.Ct. at 1523; 535 U.S. at 694, 122 S.Ct. at 1850. 

The law governing ineffective assistance of counsel claims was clearly

established in Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 2066,

2068, 80 L.Ed.2d 674 (1984). Williams, 529 U.S. at 405-406, 120 S.Ct. at 1519-1520;

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Case No. 5:04cv16-LAC/WCS

Bell, 535 U.S. at 694-695, 122 S.Ct. at 1850. Under the two part test of Strickland,

Petitioner must demonstrate both deficient performance and prejudice to the outcome. 

To establish deficient performance, a petitioner "must identify the acts or

omissions of counsel that are alleged not to have been the result of reasonable

professional judgment." 466 U.S. at 690, 104 S.Ct. at 2066. In reviewing the claim,

"counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment." 466 U.S. at

690, 104 S.Ct. at 2066. Petitioner has a heavy burden to establish the deficient

performance prong of Strickland, by showing that "no competent counsel would have

taken the action that his counsel did take." Fugate v. Head, 261 F.3d 1206, 1217 (11th

Cir. 2001) (citation omitted). There are no rigid requirements, or absolute duty to

investigate a particular line of defense. Id. 

Indeed, "[c]onsidering the realities of the courtroom, more is not always

better. Stacking defenses can hurt a case. Good advocacy requires

'winnowing out' some arguments, witnesses, evidence, and so on, to

stress others."

261 F.3d at 121 (citations omitted). 

 For prejudice, Petitioner must show "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." 466 U.S. at 694, 104 S.Ct. at 2068.

Although Strickland explained the performance and prejudice prongs of analysis,

"there is no reason . . . to approach the inquiry in the same order or even to address

both components of the inquiry if the defendant makes an insufficient showing on one." 

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466 U.S. at 697, 104 S.Ct. at 2069. "If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed." Id. 

If the state court identifies and applies the framework of Strickland in assessing

an ineffective assistance claim, its adjudication does not satisfy the "contrary to"

language of § 2254(d)(1) even if this court might have applied Strickland differently. 

Williams, 529 U.S. at 406, 120 S.Ct. at 1520; Bell, 535 U.S. at 698, 122 S.Ct. at 1852. 

To determine whether the state court's adjudication was an "unreasonable application"

of Strickland, Petitioner "must do more than show that he would have satisfied

Strickland's test if his claim were being analyzed in the first instance . . . . Rather, he

must show that the [state court] applied Strickland to the facts of his case in an

objectively unreasonable manner." Bell, 535 U.S. at 698-699, 122 S.Ct. at 1852 (citing

Williams). "[T]he most important point is that an unreasonable application of federal law

is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. at

410, 120 S.Ct. at 1522.

Ground One

Petitioner contends that the trial court erred when it denied his motion to

suppress the results of the blood alcohol test. The blood was withdrawn from him

pursuant to Florida's implied consent law, FLA. STAT. § 316.1933, et seq. (1997). 

Section 316.1934(2)(c) provides that a blood alcohol level of 0.08 or higher is "prima

facie evidence that the person was under the influence of alcoholic beverages to the

extent that his or her normal faculties were impaired." Section 316.1933(1) provides

that a law enforcement officer may use reasonable force to require a person to submit

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1

 A violation of a state rule of procedure or of a state law is not itself a violation of

the federal constitution. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71

L.Ed.2d 783 (1982); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1983) (procedural

rule); Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989) (sentencing guidelines);

Carrizales v. Wainwright, 699 F.2d 1053, 1054-1055 (11th Cir. 1987) (jury instruction).

Case No. 5:04cv16-LAC/WCS

to a blood test if the officer "has probable cause to believe that a motor vehicle driven by

or in the actual physical control of a person under the influence of alcoholic beverages,

any chemical substances, or any controlled substances has caused the death or serious

bodily injury of a human being . . . ." See, Robertson v. State, 604 So. 2d 783, 790 n. 7

(Fla. 1992) ("the implied consent statute and its exclusionary rule apply only when blood

is being taken from a person based on probable cause that the person has caused

death or serious bodily injury as a result of a DUI offense specified in the statutes."). 

While this claim is founded upon state law,1

 the claim can be also construed as arising

under the Fourth Amendment because the central issue is the existence of probable

cause.

"[W]hen 'the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an unconstitutional search and seizure

was introduced at his trial.' " Peoples v. Campbell, 377 F.3d 1208, 1224 (11th Cir.

2004), cert. denied, 125 S.Ct. 2963 (2005), quoting, Stone v. Powell, 428 U.S. 465, 494,

96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). "For a claim to be fully and fairly

considered by the state courts, where there are facts in dispute, full and fair

consideration requires consideration by the fact-finding court, and at least the

availability of meaningful appellate review by a higher state court." Id., quoting, Tukes

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v. Dugger, 911 F.2d 508, 513-14 (11th Cir.1990). The trial court held an evidentiary

hearing and Petitioner was represented by counsel. Doc. 13, Ex. B (transcript of

hearing). Petitioner has not shown that this did not provide a full and fair opportunity to

litigate his Fourth Amendment claim. Therefore, the court should not reach the merits of

Ground One.

Ground Two

Petitioner contends that his attorney was ineffective for failing to object to

improper comments by the trial court during jury voir dire. During the voir dire, as the

parties explored whether any prospective juror knew anything about the facts of the

case, one of the jurors asked "was it a teacher," apparently referring to the deceased

victim. Doc. 13, Ex. C, R. 197-198. The attorney for the State said it was not, that it

was a one-car crash, and the trial court added that "the two people were both

passengers." Id., R. 198. Petitioner contends this was error because the State had to

prove, as an element of the offenses, that he was the driver.

In denying this claim, the trial court reasoned:

Defense counsel moved for a mistrial based on the comment made by the

trial judge during voir[] dire (Jury Selection R 24-26) (R 5-10). The Court

ruled that Defendant was not prejudiced by the comment and denied the

motion. (R 9). A cautionary instruction was given prior to trial at the

Defendant's request. (R 23). Counsel renewed the motion for mistrial at

the conclusion of the evidence (R 280). Defendant's defense at trial was

that it was an accident caused by a dropped cigarette, not that Defendant

was not driving (R 38-40). Further, the Court's comment was to clarify

that only people who were in the vehicle were injured, not any

pedestrians. (Jury Selection R 24-26). Defense counsel's failure to object

during jury selection did not prejudice Defendant to the extent that the

outcome of the trial would have been different.

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Doc. 13, Ex. F, R. 79. Respondent suggests, without explanation, that this is a correct

ruling.

Though counsel did not object to the jury panel at the time the comment was

made, he moved for a mistrial before trial started. Doc. 13, Ex. C (trial transcript), p. 5. 

Counsel pointed out that the State had to prove that Defendant was driving, and argued

that it was "just hard to unring that bell." Id., p. 6. Counsel speculated that the trial

court's comment occurred because a few minutes before jury selection began,

Petitioner had entered a plea to an additional charge of driving on a suspended license. 

Id. The trial court asked counsel for Petitioner to explain what prejudice would flow from

the comment, other than the fact that this was an element that the State had to prove. 

Id., p. 7. Counsel argued that if the State was right about this one element, perhaps the

jury would infer that the State was right about other elements. Id., p. 8. The court

pointed out that counsel could have made a contemporaneous objection at the bench. 

Id. The court said that had such an objection been made, "we could have gotten the

other jury panel that was next door." Id. Counsel for Petitioner admitted that he was

not certain that there would be a "real fight" about whether Petitioner was the driver. Id.,

pp. 8-9. The court denied the motion, finding no prejudice because "that does not

appear to be your defense or your primary issue here . . . ." Id., p. 9.

The prejudice that might have been caused by the court's comment is directly

proportional to the extent to which Petitioner planned, prior to the comment, to assert

that there was insufficient evidence that he was the driver. As the State pointed out

when the mistrial motion was made, the State had an eye witness (Carl David Horton,

the surviving passenger) that Petitioner was the driver. Id., p. 6. The State said it had

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2

 Trooper Donnie Chapman, the investigating officer, testified at the suppression

hearing that Quick was dead when he arrived. Doc. 13, Ex. B, R. 153. He said: "From

the impact of the crash and where the car had been crushed, her feet were trapped

under the dash on the passenger side and her body had been thrown across and was

hanging out the window, on the driver's side." Id.

Case No. 5:04cv16-LAC/WCS

DNA evidence that Petitioner was the driver. Id., p. 7. The State also noted that the

eye witness was also expected to testify that Petitioner dropped a cigarette as he was

driving, leaned down to pick it up, and that was how the accident occurred. Id.

In opening statement, the State asserted that it had taken samples of blood on

the driver's seat and DNA from Petitioner, and the DNA matched. Id., p. 34. At trial, the

State presented DNA evidence that the blood on the driver's seat was Petitioner's

blood. Id., p. 149. Horton testified that Petitioner was driving from the time he (Horton)

was picked up until the time when the accident occurred. Id., pp. 53-57. Finally, the

feet of the deceased passenger, Judy Quick, were "trapped under the dash board on

the passenger side of the car," evidence that she was not driving when the crash

occurred.2

 Doc. 13, Ex. F (Rule 3.850 order), R. 80. 

In summary, there was no evidence to support a defense that Petitioner was not

driving the car. All of the evidence supported the conclusion that he was the driver. 

Petitioner has not shown either attorney error or prejudice to the outcome for failing to

object. Consequently, he has not shown that the state court's adjudication of the merits

of this federal claim has "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." § 2254(d)(1).

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Ground Three

Petitioner contends his attorney was ineffective because he conceded his guilt

without his knowledge or consent. In opening statement, counsel argued:

Judy Quick [the deceased passenger], she lit the cigarette and handed it

to Paul [Petitioner] and Paul dropped it. That's when he jerked the wheel

a little bit. . . .

I think when you hear all the evidence in this case you will have to

conclude that this crash was not caused by Paul Endsley's operation of a

motor vehicle under the influence of an alcoholic beverage or with an

unlawful blood content, it was caused by a dropped cigarette. . . .

I expect when you hear all of the evidence you will decide that probably

Mr. Endsley is guilty of D.U.I. for driving this vehicle while under the

influence. That's what the evidence will show . . . . [B]ut I don't think you

will be able to find that he caused this death or contributed to the cause of

this death of his girlfriend he was trying to get back together with or he

caused or contributed to the cause of or serious bodily injury to his friend. 

So, we expect to you [sic] come back if you find him guilty of anything it

will probably be for D.U.I.

Doc. 13, Ex. C, pp. 38-39 (emphasis added to statements at issue). Counsel argued

that when Petitioner tried to pick up the cigarette, the car went off the road and the

accident occurred when he tried to get it back onto the road. He argued that this kind of

accident could happen to anyone, drunk or sober. Id., p. 229. 

In closing argument, counsel for Petitioner told the jury "I pretty much give up on

did the defendant drive." Id., p. 226. Counsel also argued:

When Endsley was asked, Paul Endsley was asked by anybody at the

scene or the hospital if he had anything to drink, I drank half a case of

beer. When did he drink that half a case nobody bothered to ask that. 

The evidence would show that he probably did before he even picked up

Horton.

Id., p. 230. Counsel further argued that Petitioner drank these 12 beers before he

picked up Horton, between 6:00 p.m. and 8:00 p.m., and then drove around without

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accident or incident until about midnight, drinking only about one-third of a quart of beer

after picking up Horton. Id., pp. 227-231.

In denying this claim, the trial court found that counsel was not ineffective for

conceding that Petitioner was driving the car. Doc. 13, Ex. F, R. 80. The court

reasoned that there was overwhelming evidence that Petitioner was the driver, and the

defense was that Petitioner was not negligent because the accident occurred due to a

dropped cigarette and not as a result of Petitioner's driving. Id. 

These were sound reasons to deny the Rule 3.850 claim. The third element of

the offense of DUI manslaughter was a causal element, "that as a result [of impairment]

the defendant caused or contributed to the cause of the death of Judy Quick." Doc. 13,

Ex. C, p. 266. Counsel made a tactical decision to establish a defense with respect to

the causal element rather than the first element, that Petitioner was the driver. He

argued that the accident was not caused by the effects of alcohol, but due to a mishap

(the dropped cigarette), an accident that could happen to anyone, impaired or sober. 

The causal connection defense presupposed that Petitioner was the driver. Had

counsel attempted to persuade the jury that Petitioner was not the driver, given the

evidence, he would have lost credibility with the jury.

Further, it was not attorney error for Petitioner's lawyer to concede that Petitioner

had said (at the time of the accident) that he had had about 12 beers. Counsel's

argument was that the beer had been consumed before 6:00 p.m. or, at the latest, 8:00

p.m., and the accident did not occur until four hours later. 

Thus, the claim of ineffective assistance of counsel is without merit. As a

consequence, Petitioner has not shown that the state court's adjudication of the merits

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of this federal claim has "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." § 2254(d)(1).

Ground Four

Petitioner contends that his attorney was ineffective for failing to impeach a

witness for the State at the suppression hearing. He argues that in the Traffic Crash

Report of September 17, 1998, the investigating officer, Trooper Chapman, listed Judy

Quick as the driver and Petitioner as a passenger. He also points out that Sergeant

Hart and Corporal Sorrells advised the Medical Examiner's office that the initial report

indicated that Ms. Quick was driving. He argues that Chapman, who testified at the

hearing that Petitioner was the driver, could have been impeached by this evidence. He

notes that the law enforcement officers took statements from Petitioner at the hospital

and did not arrest him, indicating a lack of probable cause at that time.

Petitioner acknowledges that Trooper Chapman relied upon a statement from

Horton that Petitioner was the driver. He argues that Horton's statement was plainly

unreliable as he had suffered a significant loss of blood because his legs were nearly

amputated. Dr. Tracy, the attending emergency room physician, testified at the hearing

that Horton was in grade III hemorrhagic shock. He notes that in a statement to

Corporal Sorrells, Horton said he did not remember talking to anyone that night.

Finally, Petitioner faults counsel for not calling paramedic Donnie Brock to testify

that Petitioner was sitting in a ditch, rather than walking around and leaning on an

ambulance. He notes that while Chapman testified at the hearing that Petitioner was

"leaning on the ambulance," he also said he did not believe the paramedics were there.

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The trial court rejected this claim, reasoning:

[H]aving reviewed the FHP Crash Report and Updated Crash Report, the

depositions of Paramedic Donnie Brock and Carl Horton, Defendant's

claims in points one through three do not amount to ineffective assistance

of counsel. At the scene of the accident, Defendant told Trooper

Chapman that he was not the driver but instead that Judy Quick

(deceased) was the driver. However, evidence and witnesses indicated

otherwise. For instance, Judy Quick's feet were trapped under the dash

board of the passenger side of the car. At the suppression hearing, when

Defendant was asked who was driving, he stated that he did not know. 

(Suppression Hearing R 21). As for Defendant's claims regarding Carl

Horton's testimony, Carl Horton still gave the same testimony several

months after the accident in a deposition on April 5, 1999. See Deposition

Carl Horton, Jr. Paramedic Donnie Brock's deposition testimony did not

contradict Trooper Donnie Chapman's testimony at the suppression

hearing. See Deposition Donnie Brock and Suppression Hearing (R 2-24). 

It is clear that the paramedic did not arrive until some time after Trooper

Chapman was on the scene and had a chance to observe Defendant

walking around. Defendant also misconstrues Trooper Chapman's

testimony at the suppression hearing. . . .

Doc. 13, Ex. F, R. 80. 

Petitioner has not pointed to evidence that undercuts the trial court's reasoning. 

That Trooper Chapman's initial report listed Quick as the driver is an unimportant

inconsistency as it was Petitioner who told Chapman that she was driving. Petitioner

testified at the suppression hearing that he told Chapman that Quick was driving, but

said he "wasn't sure at the time." Doc. 13, Ex. B, R. 164. On cross examination,

Petitioner said that at the time of the accident, he did not know who was driving. Id., R.

168. That Chapman had listed Quick on the initial report as the driver did not impeach

Chapman's credibility. Instead, given the fact that Quick's legs were trapped under the

dash in the front passenger seat, it served to prove that Petitioner was the driver, knew

he was the driver, and tried to cover that up by telling Chapman that Quick was the

driver, all of which was evidence that Petitioner was the driver.

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The trial court's reasoning about Horton's testimony likewise is sound. Though

Horton was gravely injured, Chapman said that Horton told him that Petitioner had been

driving. Doc. 13, Ex. B, R. 153. Horton was conscious enough to crawl out of the car. 

Doc. 13, Ex. B, R. 152. While it is possible that Horton was so injured that he could not

have told Chapman who was driving when asked at the accident scene, Horton gave

the same testimony in a deposition months later. The deposition is not before the court,

but Petitioner has not shown that Horton's deposition testimony could not logically

support a conclusion that Horton remembered, months later, what he told Chapman on

the night of the accident.

The trial court's reasoning concerning the failure to call paramedic Donnie Brock

has also not been shown by Petitioner to be incorrect. It would not be unusual for a law

enforcement officer to arrive at a motor vehicle accident scene before the ambulance

and paramedics arrive, and Trooper Chapman would have had a chance to observe

Petitioner's movements, or lack thereof, before Paramedic Brock arrived. For all of

these reasons, Petitioner has not shown that the state court's adjudication of the merits

of this federal claim has "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." § 2254(d)(1).

Ground Five

Petitioner argues that his attorney was ineffective for failing to properly object to

hearsay testimony and to effectively cross examine the State's witness. The witness in

question was Dr. George Tracy, the emergency room attending physician. Dr. Tracy

testified that Petitioner told him he had consumed half a case of beer, and he believed

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Petitioner was intoxicated based upon Petitioner's blood alcohol level. He also testified

to observations favorable to Petitioner, that Petitioner was alert, coherent, and had no

slurred speech. Petitioner contends that his attorney should have been able to exclude

the testimony as to his admission that he drank half a case of beer because the time of

consumption was not established. He reasons that if the time of consumption was

unknown, the statements would not be admissible under FLA. STAT. § 90.803(4)

because not relevant to medical diagnosis or treatment. He reasons that this default

improperly opened the door to allow Dr. Tracy to testify to Petitioner's blood alcohol

level.

The trial court rejected this claim, finding that Petitioner had not set forth a legal

basis for asserting that the testimony was hearsay and inadmissible. Doc. 13, Ex. F, R.

80. The court also noted that Petitioner's attorney did object to this testimony, but was

unsuccessful. Id.

Section 90.803(4) provides that even though the declarant is available to testify,

statements made for the purpose of medical diagnosis or treatment are admissible:

Statements made for purposes of medical diagnosis or treatment by a

person seeking the diagnosis or treatment, or made by an individual who

has knowledge of the facts and is legally responsible for the person who is

unable to communicate the facts, 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. STAT. § 90.803(4). The amount of alcohol consumed by Petitioner was relevant to

diagnosis and treatment of his injuries. Petitioner had a closed head injury, with

lacerations to his ear and scalp. Doc. 1, attached deposition of Dr. George Tracy, p. 2. 

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The amount of alcohol in Petitioner's system would be relevant to diagnosis and

treatment issues such as shock, concussion, internal bleeding, and anesthesia.

But even if the statement was not needed for medical diagnosis or treatment, the

statement was admissible because it was a "party's own statement" and offered against

the party. FLA. STAT. § 90.803(18)(a). Bryant v. State, 810 So.2d 1003, 1003-1004

(Fla. 4th DCA 2002); Dias v. State, 890 So.2d 1254 (Fla. 4th DCA 2005). For these

reasons, attorney error and prejudice to the outcome has not been shown, and the trial

court's ruling is not an unreasonable application of clearly established Federal law as

determined by the Supreme Court of the United States. § 2254(d)(1).

Ground Six

Petitioner asserts that his attorney was ineffective for failing to object to a jury

instruction that allowed the jury to rely upon the statutory presumption of impairment. 

Petitioner's trial began on August 30, 1999. Doc. 13, Ex. C. He contends that on

January 22, 1999, the First District Court of Appeal had held that the State could not

rely upon the statutory presumption of impairment because the implementing

regulations were defective. State v. Miles, 732 So. 2d 350 (Fla. 1st DCA 1999),

approved in part, quash in part, 775 So. 2d 950 (2000).

The trial court rejected this claim, ruling that State v. Miles, 732 So. 2d 350 (Fla.

1st DCA 1999) allowed 

legislatively created presumptions of impairment in prosecutions for DUI

after the admissibility of the blood alcohol evidence had been determined

in accordance with common law principles, which requires the prosecution

to show that the test was reliable, the test was performed by a qualified

operator with proper equipment, and that the expert testimony was

presented concerning the meaning of the test.

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Doc. 13, Ex. F, R. 80-81. The court found that these requisites had been met at trial. 

The court also held that Florida Supreme Court's ruling in the same case was not

available to Petitioner because it was decided until after his trial, and later, by force of

Curtis v. State, 805 So. 2d 995 (Fla. 1st DCA 2001), could not be applied retroactively

to Petitioner in his post-conviction proceedings. Id., R. 81. 

As noted previously, FLA. STAT. § 316.1934(2)(c) creates a presumption of

impairment if the blood alcohol level is 0.08 or higher. At the time of Petitioner's trial,

State v. Miles, 732 So. 2d 350 (Fla. 1st DCA 1999) affirmed the trial court's ruling that

the State was not entitled to rely upon the presumptions of intoxication provided by FLA.

STAT. § 316.1934 due to deficiencies in the Florida Department of Law Enforcement

regulations, FLA. ADMIN. CODE § 11D-8.012. Those regulations had failed to specify

standards for the collection, storage, and transportation of blood samples. The court

modified the trial court's results, however, finding that the State is entitled to the

presumptions of intoxication provided by FLA. STAT. § 316.1934 if it establishes the

predicate for the admissibility of the blood alcohol test using the common law standards

set forth in Robertson v. State, 604 So. 2d 783 (Fla. 1992). Those standards are that:

(1) the test was reliable, (2) the test was performed by a qualified operator

with the proper equipment and (3) expert testimony was presented

concerning the meaning of the test.

732 So. 2d at 353, quoting, Robertson, 604 So. 2d at 789. The court also noted that

having established these predicates, the State also had to "withstand[] any and all

defense rebuttal" so that the evidence is found to be scientifically reliable and

admissible. 732 So. 2d at 353. This was the law at the time of Petitioner's trial, and

was the law as noted in the trial court's order denying Petitioner's Rule 3.850 motion.

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3 See, Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004), cert. denied,

125 S.Ct. 942 (2005) ("If the legal principle is unsettled, however, counsel will not have

rendered deficient performance for an error in judgment.").

Case No. 5:04cv16-LAC/WCS

Some months after Petitioner's trial, the Florida Supreme Court disagreed and

reversed in part. The court held that the absence of regulations governing the

collection, storage, and transportation of blood samples meant that the State could not

rely upon the statutory presumptions. 775 So. 2d at 956-957. The court also said that if

the procedure outlined in Robertson was satisfied, the results of blood testing would be

admissible, but the presumptions still would not be available. Id., at 957.

When the First District Court of Appeal decided State v. Miles on January 27,

1999, it certified the central question to the Florida Supreme Court. The Florida

Supreme Court granted review on August 24, 1999, just six days before Petitioner's trial

commenced. 740 So. 2d 529 (Table). The Supreme Court decided State v. Miles on

November 30, 2000. Petitioner's direct appeal was not determined until December 4,

2000. Doc. 13, Ex. E. The Supreme Court's decision in State v. Miles would have been

applied to Petitioner's pending appeal had the issue been preserved and argued at the

appellate level. Leveritt v. State, 896 So. 2d 704, 705 n. 2 (Fla. 2005) (citing Smith v.

State, 598 So. 2d 1063, 1066 (Fla. 1992), holding that a decision announcing a new rule

or applying old law to new facts applies to a pending appeal). Thus, while normally

counsel cannot be faulted for failing to anticipate evolutions in the law,3

 this case is

arguably different, assuming that Petitioner could only have been convicted based upon

the presumption of impairment in FLA. STAT. § 316.1934(2)(c).

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Case No. 5:04cv16-LAC/WCS

It is this latter assumption, however, that is unavailable to Petitioner. As

Robertson noted some years before Petitioner's trial,

Florida law authorizes two alternative theories for DUI offenses: actual

impairment, or a blood alcohol level of 0.10 or higher. § 316.193, Fla.Stat.

(1987). The second of these is a strict-liability theory, since the fact of

operating a motor vehicle with a blood-alcohol level of 0.10 or higher is an

offense even if impairment cannot be proven. There is some redundancy

in the statute, however, since impairment is presumed if the blood-alcohol

content is 0.10 or higher. § 316.1934(2), Fla.Stat. (1987). In any event,

the presumption of impairment created by this last statute is a moot

concern if the state proves beyond a reasonable doubt that the defendant

operated a motor vehicle with an unlawful blood-alcohol level. Here, the

state met this burden.

Robertson v. State, 604 So.2d 783, 792, n. 14 (Fla. 1992).

The statute has since been amended to lower the blood alcohol threshold to

0.08, but the alternative routes to conviction for DUI manslaughter still exist. In the case

at bar, Petitioner's jury was charged as to both theories. As the second element of the

offense, the court instructed: 

Number two, while driving or while in actual physical control of the vehicle

the defendant was under the influence of alcoholic beverages to the extent

that his normal faculties were impaired or had a blood alcohol level of .08

or higher.

Doc. 13, Ex. C, p. 266 (emphasis added). 

The court also instructed as to the presumption of impairment:

Now, if you find from the evidence that the defendant had a blood alcohol

level of .08 or more that evidence would be sufficient by itself to establish

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

normal faculties were impaired. However, such evidence may be

contradicted or rebutted by other evidence. This presumption may be

considered along with any other evidence presented in deciding whether

the defendant was under the influence of alcoholic beverages to the extent

that his normal faculty was impaired. 

Id., p. 267. 

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Case No. 5:04cv16-LAC/WCS

This presumption was relevant to the first alternative method of proving the

offense. It was irrelevant to proof of the second element. As explained in Cardenas v.

State, 867 So. 2d 384 (Fla. 2004):

The statute criminalizing DUI currently provides that a defendant can be

charged and convicted under three alternative theories:

(1) A person is guilty of the offense of driving under the

influence and is subject to punishment as provided in

subsection (2) if the person is driving or in actual physical

control of a vehicle within this state and:

 (a) The person is under the influence of

alcoholic beverages, any chemical substance

set forth in s. 877.111, or any substance

controlled under chapter 893, when affected to

the extent that the person's normal faculties

are impaired;

(b) The person has a blood-alcohol level of

0.08 or more grams of alcohol per 100

milliliters of blood; or

(c) The person has a breath-alcohol level of .08

or more grams of alcohol per 210 liters of

breath. 

 

§ 316.193(1), Fla. Stat. (2003). Section 327.35, Florida Statutes, (1995),

the BUI [Boating Under the Influence] statute under which Cardenas was

convicted, is identical to the DUI statute in regard to the alternative

elements of impairment and unlawful blood-or breath-alcohol level. Thus,

subsection (1)(a) requires proof of impairment, while the strict liability

approach of subsections (1)(b) and (1)(c) requires proof of driving with an

unlawful blood-or breath-alcohol level, otherwise known as DUBAL.

867 So.2d at 389-390 (footnote omitted, emphasis added).

Cardenas further explained:

We recognized in Robertson that the availability of the DUBAL alternative

makes the presumption of impairment "a moot concern if the state proves

beyond a reasonable doubt that the defendant operated a motor vehicle

with an unlawful blood-alcohol level." 604 So.2d at 792 n. 14.

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4

 State v. Bender, 382 So. 2d 697 (Fla. 1980).

Case No. 5:04cv16-LAC/WCS

 * * *

When the jury is instructed on DUBAL after the State has introduced

blood-alcohol evidence under the three-prong test of Bender,[4] as

occurred in each of these cases, the jury may find the defendant guilty

based on the same evidence that supports the presumption of impairment

without considering whether the defendant was under the influence of

alcohol to the extent that his or her normal faculties were impaired.

* * *

As we observed in State v. Rolle, 560 So.2d 1154, 1156 (Fla.1990), in

which we upheld the presumption of impairment instruction against a

constitutional challenge,

[t]o the extent the challenged instruction allowed the jury to

substitute proof of a blood-alcohol level of 0.10 percent or

higher for proof of impairment it correctly stated the law.

Essentially, section 316.193 allows proof of a blood-alcohol

level of 0.10 percent or higher to be substituted for proof of

impairment--not as an unconstitutional presumption, but as

an alternate element of the offense. Id. at 1156.

This statement applies equally to the current .08 percent threshold for

DUBAL and the presumption of impairment.

867 So.2d at 391 (emphasis added).

The three pronged test of Bender is the common law test noted in Robertson and

by the trial court when it ruled on Petitioner's Rule 3.850 motion. This permits the

results of a blood alcohol test into evidence if there is a showing that the test is reliable,

that the operator was qualified, and that the meaning of the test results have been

explained by expert testimony. Robertson, 604 So. 2d at 790.

In summary, even if the results of the blood alcohol test were not properly

admitted so as to give rise to the presumption of impairment pursuant to FLA. STAT. §

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5

 He used hypocleanse and betadine to prepare Petitioner's arm for the insertion

of the I.V. Id., p. 89. If hypocleanse and betadine contained alcohol, this would have

failed to comply with FLA. ADMIN. CODE § 11D-8.012(2). State v. Miles, 732 So. 2d at

352. However, compliance with the regulation was unnecessary as the results were

admissible by common law standards.

Case No. 5:04cv16-LAC/WCS

316.1934(2)(c), if the results were properly admitted pursuant to common law principles,

the jury was permitted to convict using the alternative element of the offense (DUBAL),

that Petitioner's blood alcohol level was 0.08 or higher.

The results of the blood alcohol test in this case were properly admitted pursuant

to the principles established in Bender. At trial, the State called John Keeton as a

witness. Doc. 13, Ex. C, p. 86. Keeton testified that he is a registered nurse and

trained to withdraw blood. Id. Keeton said that he had already started an I.V. for

Petitioner as standard trauma protocol in the emergency room, and he used that I.V.

insertion to draw the blood. Id., pp. 88, 92. He drew blood into two vials with gray tops. 

Id., p. 88. He then placed his initials on the vials and Petitioner's name. Id., p. 89. The

tubes or vials were self-sealing.5

 Id.

The two vials were then collected by Lieutenant Joe Tucker of the Highway patrol

(on September 17, 1998) and placed in a refrigerated evidence locker and logged in. 

Id., pp. 96-98. The containers were delivered to the Florida Department of Law

Enforcement on September 22, 1998. Id., p. 98.

The State also called Dale Livingston, a toxicologist with the Florida Department

of Law Enforcement, as a witness. Id., p. 100. Livingston was assigned to the section

dealing with blood alcohol analysis, and had done "thousands of blood alcohol

determinations." Id. Livingston testified that blood samples come in, are marked, and

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Case No. 5:04cv16-LAC/WCS

are stored in a refrigerated vault. Id., p. 104. The blood samples in this case were

dated September 22, 1998, from Pensacola, and Livingston first began work on them on

October 7, 1998. Id., p. 105. He said that the samples were sealed when he opened

them in the laboratory, and there was no evidence that the seal had been tampered

with. Id., p. 111. The vials that were in the "kit" submitted to Livingston for analysis had

gray tops. Id., p. 112. Livingston said that gray top tubes indicate that the tubes contain

sodium fluoride as a preservative, an anticoagulant to prevent clotting. Id., pp. 112-113. 

The blood samples were not clotted. Id., p. 113. He described the methods of analysis

that he used, gas chromatography. Id., pp. 105-109.

For these reasons, neither attorney error nor prejudice to the outcome has been

shown. Ground Six is without merit.

Recommendation

Accordingly, it is RECOMMENDED that petition for writ of habeas corpus filed by

Paul Jonathan Endsley pursuant to 28 U.S.C. § 2254, challenging his convictions for

driving while under the influence (DUI) manslaughter and DUI with serious bodily injury

in the Circuit Court of the Fourteenth Judicial Circuit, in and for Bay County, Florida,

case number 98-2383H, be DENIED WITH PREJUDICE.

IN CHAMBERS at Tallahassee, Florida, on October 3, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

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Case No. 5:04cv16-LAC/WCS

NOTICE TO THE PARTIES

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

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

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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