IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

EDDIE DEAN FORD, 

Petitioner, 

vs. Case No. 4:10cv30-RH/CAS

KENNETH S. TUCKER, as Secretary of 

Florida Department of Corrections, 

Respondent. 

_________________________________/

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

Petitioner Eddie Dean Ford, proceeding pro se, filed a petition for writ of habeas

corpus under 28 U.S.C. § 2254 in January 2010 in the United States District Court for

the Middle District of Florida. Doc. 1. Because Petitioner challenged a judgment of

conviction entered by the Second Judicial Circuit, in and for Leon County, Florida, the

case was transferred to this Court. Doc. 3. The matter was referred to the undersigned

United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636 and

Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues

raised, the undersigned has determined that no evidentiary hearing is required for

disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For

the reasons stated herein, the § 2254 petition should be denied on the merits. 

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 1 of 19
Page 2 of 19

Procedural History

In this case, Petitioner’s challenge concerns only the revocation of his probation

and the resulting imposition of a fifteen-year prison sentence in case number 2004-

1215, by the Second Judicial Circuit, Leon County, Florida. Docs. 1 and 8. This Court

directed Petitioner to amend his petition (Doc. 7), and, on March 17, 2010, Petitioner

filed an amended § 2254 petition and supporting memorandum (Docs. 8 and 9). This

Court then directed service of the amended § 2254 petition on Respondent, and

required Respondent to file an answer, motion, or other response. Doc. 10. 

Thereafter, in September 2010, Respondent filed a motion to dismiss the

amended petition with prejudice for lack of jurisdiction (Doc. 19), attaching exhibits

containing portions of the record (Doc. 20). Petitioner filed a response to the motion in

November 2010. Doc. 23. In June 2011, this Court entered a Report and

Recommendation indicating the motion to dismiss should be denied. Doc. 26. By order

entered July 28, 2011, the District Court accepted that Report and Recommendation

and denied the motion to dismiss. Doc. 28. 

In September 2011, Respondent filed an Answer to Amended Petition for Writ of

Habeas Corpus. Doc. 30. Petitioner filed a Reply in October 2011. Doc. 33. 

Accordingly, the undersigned now considers Petitioner’s amended § 2254 petition and

supporting memorandum (Docs. 8 and 9), which raises three claims of ineffective

assistance of counsel, together with Respondent’s answer and Petitioner’s reply. As

explained below, because Petitioner’s claims lack merit, the amended § 2254 petition

should be denied.

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 2 of 19
Page 3 of 19

State Court Proceedings

In June 2004, Petitioner entered into a plea agreement in case number 2004-

1215 and several other cases. Doc. 20 Ex. C3.1

 Case number 2004-1215 involved a

charge of burglary of a dwelling with a person assaulted. Ex. C2. Pursuant to the plea

agreement, Petitioner was sentenced in case number 2004-1215 to a term of five years’

probation with a fifteen-year suspended prison sentence. Exs. C3 and C4. 

On January 31, 2005, Petitioner was charged with violating the terms of his

probation. Ex. C5. Specifically, he was charged with three violations: (1) violating

Condition 1 by failing to report as directed on January 13, 2005; (2) violating Condition

3 by changing his residence without prior permission of his probation officer; and (3)

violating Condition 15 by failing to successfully complete a batterer’s intervention

program. Id. By amended affidavit, Petitioner was also charged with violating Condition

5 because of his arrest for a new law violation for giving a false identification to a law

enforcement officer. Ex. C6. Counsel was appointed for Petitioner and an evidentiary

hearing took place on April 22, 2005. Ex. E. Several witnesses testified at the hearing,

including Petitioner; his probation officer, Mark McNally; his father, Franklin Ford; Jason

Lee, a sergeant with the Leon County Sheriff’s Office; Kevin Bradshaw, a patrol officer

with the Tallahassee Police Department; and Barry Jones, Director of the New Hope

Batterers Intervention Program. Ex. E. 

At the conclusion of the revocation hearing, the court resolved all credibility

issues in favor of the probation officer and found Petitioner in willful and substantial

1

All referenced Exhibits are to Document 20, unless otherwise indicated.

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 3 of 19
Page 4 of 19

violation of Conditions 1 and 15 of his probation. Ex. E at 47-50; see Ex. O. As to the

new arrest, the court resolved the credibility issues in favor of the police officer and

found Petitioner willfully and substantially violated Condition 5 of his probation by his

arrest for giving false identification to a law enforcement officer. Ex. E at 48-49; see Ex.

O. The court revoked Petitioner’s probation and imposed the previously-suspended

fifteen-year prison sentence. Ex. E at 53. 

Petitioner appealed his judgment and sentence to the First District Court of

Appeal (DCA), and the case proceeded as an Anders2

 appeal with Petitioner filing a pro

se brief. Ex. I; online docket for case number 1D05-2356 at www.1dca.org. On

January 19, 2007, the First DCA issued a per curiam affirmance without opinion; the

mandate issued February 7, 2007. Ex. J; Ford v. State, 947 So. 2d 1164 (Fla. 1st DCA

2007) (table).

On August 23, 2007, Petitioner filed a pro se motion for post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Ex. K. The state post-conviction

trial court summarily denied the motion on August 31, 2007, stating that Rule 3.850

does not apply to probation revocation proceedings. Ex. L. Petitioner appealed to the

First DCA and that court reversed and remanded the case for further proceedings. Ex.

N; online docket for case number 1D07-5022 at www.1dca.org; Ford v. State, 989 So.

2d 691 (Fla. 1st DCA 2008). 

On remand, the state post-conviction trial court again summarily denied

Petitioner’s Rule 3.850 motion. Ex. O. The court entered a written order denying each

2

Anders v. California, 386 U.S. 738 (1967).

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 4 of 19
Page 5 of 19

claim on the merits. Id. In addition, the court noted that “any one of the three VOP

allegations, standing alone, would have been sufficient to support a revocation of

probation and imposition of the suspended sentence” and “therefore, even if Defendant

were to prevail on one of his three claims, he would not be entitled to relief because the

outcome of the proceeding would have been the same.” Id. at 5. Petitioner again

appealed to the First DCA and that court per curiam affirmed the appeal on April 27,

2009; the mandate issued August 11, 2009. Ex. S; online docket for case number

1D08-5187 at www.1dca.org; Ford v. State, 13 So. 3d 59 (Fla. 1st DCA 2009) (table). 

In January 2010, Petitioner filed his petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254. Doc. 1. Respondent acknowledges that Petitioner has timely filed

his petition. See Doc. 30 at 7. 

Analysis

In the amended § 2254 petition, Petitioner asserts three grounds of ineffective

assistance of counsel concerning the probation revocation proceeding: (1) counsel

failed to investigate, failed to take depositions, and failed to interview and call defense

witnesses; (2) counsel failed to investigate, depose, and interview the State’s witnesses;

and (3) counsel failed to investigate a sworn affidavit by Petitioner’s probation officer

and interview and depose the State witness regarding the violation of Condition 1. Doc.

8 at 4, 7, 9. Respondent acknowledges that Petitioner raised these claims in the Rule

3.850 motion, which the state post-conviction court denied on the merits and which

denial was affirmed on appeal, without opinion, by the First DCA. See Doc. 30 at 18-

19, 24-25, 29-30. 

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 5 of 19
Page 6 of 19

Ground 1: Failure to Investigate, Interview, and Call Defense Witnesses

In Ground 1, Petitioner argues that he had requested his appointed counsel

investigate his case thoroughly prior to the revocation hearing and such investigation

would have revealed Petitioner had not violated his probation. Doc. 8 at 4. This ground

evidently concerns the violation of Condition 5 of his probation by giving false

identification to a law enforcement officer According to Petitioner, if counsel had done

a proper investigation, counsel would have learned that, on February 4, 2005, Petitioner

and several other males were approached by Officer Kevin Bradshaw regarding an

anonymous call of suspicious activity. Id. When Officer Bradshaw asked Petitioner for

identification, Petitioner gave his correct name as well as a phone number for

verification of his identity. Id. Petitioner gave counsel the names of material witnesses,

present during this incident on February 4, 2005, and requested counsel interview and

take depositions of Christopher Mitchell, Eddie Miller, and Angela Thompson. Id. at 5. 

Petitioner asserts these witnesses were available to testify and their testimony would

have changed the outcome of the proceeding. Id. Specifically, Petitioner asserts that

Mr. Mitchell’s testimony “would have directly discredited Officer Bradshaw’s testimony

and placed the state’s witness testimony in doubt.” Id. Ms. Thompson “was a witness

that Officer Bradshaw had called to verify his true identity.” Id. Petitioner asserts that

Ms. Thompson gave the officer Petitioner’s name and her testimony “would have further

eroded Officer Bradshaw’s credibility.” Id. at 6. Petitioner asserts that Officer Bradshaw

gave inconsistent and contradictory statements concerning the officer’s conversation

with Ms. Thompson. Id. Petitioner asserts that “[h]ad counsel called witnesses, each

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 6 of 19
Page 7 of 19

witness would have told counsel their version and facts pertaining to the issue at hand

which would and could have changed the outcome of the proceeding.” Id. at 5. 

Counsel failed to call these witnesses and then requested a continuance for that

purpose during the revocation hearing; however, the court denied the continuance

request. Id. Petitioner asserts that “[c]ounsel’s failure to call these three witnesses

deprived [him] of his chance to show the state lower tribunal that he was actually

innocent of not committing a crime, or in violation of his probation.” Id. at 6. Petitioner

asserts “counsel was not acting as counsel guaranteed by the Sixth Amendment of the

United States Constitution” and the state post-conviction court’s denial of his claim “was

based on an unreasonable view of the facts presented . . . in light of the evidence in this

case.” Id. at 7. 

As indicated above, the state post-conviction court addressed this claim on the

merits and denied it in a written order. Ex. O. In particular, that court made the

following findings: 

In Ground 1, Defendant claims his counsel was ineffective for

failing to adequately investigate witnesses related to the new law violation.

Specifically, he claims counsel failed to . . . investigate and depose

several witnesses present at the crime scene. . . . Defendant argues that

the witnesses would have testified that Officer Bradshaw knew that

Defendant’s name was Eddie Ford at the time the arrest was made. First,

this testimony would have been inadmissible, as those witnesses would

not have been competent to testify as to what Officer Bradshaw knew.

Second, Officer Bradshaw’s knowledge of Defendant’s name is irrelevant

to the factual determination of whether Defendant gave a false name.

Defendant also alleges that his counsel should have cross-examined

Officer Bradshaw by asking him why Defendant gave him (Officer

Bradshaw) Angela Thompson’s phone number. As above, Officer

Bradshaw could not testify as to why Defendant did something, and the

reason why Defendant gave the officer his girlfriend’s number is irrelevant

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 7 of 19
Page 8 of 19

to his providing a false name. As to any allegation that Officer Bradshaw

actually knew Defendant’s real name prior to his arrival at the jail, this

matter was addressed at the hearing (Attachment C at 25-26). As to any

claim that counsel should have impeached the officer regarding

discrepancies between his testimony and the probable cause affidavit, he

fails to identify any inconsistency.

Also in Ground 1, Defendant appears to allege that his counsel was

ineffective for failing to obtain a continuance so that she could further

investigate witnesses and present their testimony. Having found above

that the testimony would have been inadmissible and irrelevant, there is

not prejudice resulting from any alleged deficiency. The Court also notes

that a stipulated motion for a continuance was granted on March 16, 2005.

According to the motion and the record, counsel moved for an additional

continuance, but the motion was denied (Attachment C at 51). Counsel is

not ineffective simply because her motion was not granted, and because

the witnesses’ testimony would not have been allowed, no prejudice

resulted from any lack of investigation. Ground 1 is denied. 

Ex. O at 2-3. The First DCA affirmed this order on appeal. 

Because Petitioner contends he was denied his constitutionally guaranteed right

to the effective assistance of counsel, his claim is governed by the holding in Strickland

v. Washington, 466 U.S. 668 (1984). See Doc. 26. In Strickland, the U.S. Supreme

Court adopted a two-part test for claims of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

466 U.S. at 687. To demonstrate ineffectiveness, a “defendant must show that

counsel’s performance fell below an objective standard of reasonableness.” Id. at 688. 

To demonstrate prejudice, a defendant “must show that there is a reasonable probability

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 8 of 19
Page 9 of 19

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

been different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

If a state prisoner’s habeas petition “includes a claim that has been ‘adjudicated

on the merits in State court proceedings,’ § 2254(d), an additional restriction applies.” 

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The federal court may not grant

relief unless the state court’s 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(d). “This is a

‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the doubt.’” Cullen, 131

S.Ct. at 1398 (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011), and Woodford

v. Visciotti, 537 U.S. 19, 24 (2002)). This Court’s review “is limited to the record that

was before the state court that adjudicated the claim on the merits.” Cullen, 131 S.Ct.

at 1388. For this Court’s purposes, importantly, “[t]he question ‘is not whether a federal

court believes the state court’s determination’ under the Strickland standard ‘was

incorrect but whether that determination was unreasonable – a substantially higher

threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schiro v.

Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a

general standard, a state court has even more latitude to reasonably determine that a

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 9 of 19
Page 10 of 19

defendant has not satisfied that standard.” Id. It is a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

Here, the state post-conviction trial court applied the Strickland test and denied

Petitioner’s claim on the merits. Thus, that determination is entitled to deference and

review is limited to the record before the state court. See Cullen, 131 S.Ct. at 1388. 

The state court found the proposed testimony by the witnesses identified by Petitioner

would not have been admissible to show what Officer Bradshaw knew. Ex. O at 2. The

court also found the officer’s knowledge of Petitioner’s name irrelevant to the factual

determination of whether Petitioner gave a false name. Id. To the extent any conflict in

the testimony existed, the state court credited the officer’s version of the events. Ex. E.

At best, had counsel presented the witnesses urged by Petitioner, it appears they would

have provided additional testimony similar to Petitioner’s – which the state court

discredited. Notably, the post-conviction trial judge was the same judge who presided

over the revocation hearing. Compare Ex. E with Ex. O. Thus, there is no reasonable

probability that the additional testimony Petitioner cites would have changed the

outcome of the revocation hearing. See Cullen, 131 S.Ct. at 1409-10 (finding no

reasonable probability that additional evidence presented in state habeas proceedings

would have changed jury’s verdict); Marshall v. Lonberger, 459 U.S. 422, 434 (1983)

(“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility

of witnesses whose demeanor has been observed by the state trial court, but not by

them.”). See also, e.g., Aldrich v. Wainwright, 777 F.2d 630, 637 (11th Cir. 1985)

(explaining that speculation is not sufficient to carry burden of showing what evidence

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 10 of 19
Page 11 of 19

could have been revealed by further investigation); Parker v. Allen, 565 F.3d 1258,

1285-86 (11th Cir. 2009) (“To show prejudice, Parker must prove that there is a

reasonable probability that the sentencing judge would have arrived at a different

conclusion after being presented with the additional evidence and reweighing the

aggravating and mitigating circumstances. . . . In this case, the sentencing judge was

the same as the post-conviction judge and clearly stated that the sentence would not

have been different even with additional testimony. The district court did not err in

finding that the state courts reasonably applied Strickland in rejecting his ineffective

assistance of counsel claim.”). 

It was not unreasonable for the state court to conclude that Petitioner’s trial

counsel’s performance was not deficient. And, even assuming deficient performance, it

was not unreasonable for the state court to conclude that Petitioner did not demonstrate

any prejudice. Under the double deferential review this Court applies to a Strickland

claim evaluated pursuant to the § 2254(d) standard, Petitioner’s ineffective assistance

of counsel claim in Ground 1 fails. Accordingly, Ground 1 should be denied. 

Ground 2: Failure to Investigate, Depose, and Interview State Witnesses

In Ground 2, Petitioner asserts that his appointed counsel was ineffective

because she relied on the State’s version of the facts and not her own investigation. 

Doc. 8 at 7. Petitioner references testimony giving during the revocation hearing by his

probation officer, McNally. Id. According to Petitioner, McNally stated Petitioner never

contacted Mr. Jones, the person in charge of the Batterer Intervention Program. Id.

Petitioner states that “[o]n or about July 2nd, 2004, the petitioner’s probation officer Mr.

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 11 of 19
Page 12 of 19

McNally instructed that the petitioner with a time to start and successfully complete the

program when in fact, the law clearly states, that a probation officer can not give a

defendant a time limit to sign-up for any special condition of a program when it was

never orally pronounced, or court ordered, when to start the program at a specific time.” 

Id. Petitioner asserts that if counsel had “taken depositions and interviewed and done

an adequate job of investigation of this matter and of Mr. Jones, she could have used

the deposition as a defense to impeach any prior statement given by Mr. Jones.” Id.

According to Petitioner, Mr. Jones gave inconsistent and contradictory statements

regarding Petitioner having contacted Mr. Jones’ receptionist at the Batterer Intervention

Program. Id. at 8. Petitioner asserts “[t]he evidence is undisputed that the petitioner did

not contact the batterer intervention program.” Id. Petitioner quotes a portion of the

transcript from the revocation hearing and argues Mr. Jones admitted that he did not

know whether Petitioner called to sign up for the program. Id. Thus, according to

Petitioner, “the record clearly reveals that the petitioner did not willfully, and

substantially violate the condition of his probation.” Id. Petitioner argues that if counsel

had properly and thoroughly investigated the case, counsel would have learned that

Petitioner followed the instructions of Probation Officer McNally. Id. at 8-9. Petitioner

concludes that, if counsel had done an effective job, he would not have been found in

violation of his probation and would not have been sentenced to fifteen years in prison. 

Id. at 9. Petitioner argues the state court decision was based on an unreasonable view

of the facts in light of the evidence presented. Id. 

The state post-conviction trial court addressed this claim on the merits and

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 12 of 19
Page 13 of 19

denied it. Ex. O. In particular, that court made the following findings:

As Ground 2, Defendant alleges his counsel was deficient for failing

to investigate witnesses and evidence related to the violation of Condition

15 (failure to complete a Batterers’ Intervention Program). Specifically, he

claims his counsel should have investigated whether the trial judge gave

him a start date for the program, because the probation officer could not

impose a start date. The cases cited by Defendant refer to deadlines by

which to complete special conditions of probation. See, e.g., Creamer v.

State, 900 So. 2d 773 (Fla. 1st DCA 2005); Gamble v. State, 737 So. 2d

1160 (Fla. 1st DCA 1999); Melecio v. State, 662 So. 2d 408 (Fla. 1st DCA

1995). Contrary to Defendant’s assertion, the probation officer did not

mandate a start or completion date for the program. Rather, he instructed

Defendant to sign up for the course by a certain date (Attachment C at 8-

10; 16-17). Defendant failed to do so, and offered several excuses for why

he had not. Id. at 38-39. The Court heard testimony from the director of

the Program that indicated that Defendant’s excuses were not credible. 

Id. at 29-31. As to any claim that counsel failed to impeach Probation

Officer McNally regarding discrepancies between his testimony and the

VOP affidavit, nothing in the affidavit indicates that Program Director Barry

Jones ever spoke directly with Defendant about the program (Attachment

D). Counsel adequately cross-examined Mr. Jones on this point

(Attachment C at 30-31). No affidavit from Mr. Jones exists in the record. 

Ground 2 is denied.

Ex. O at 3-4. The First DCA affirmed this order on appeal.

As with Ground 1, the state post-conviction trial court applied the Strickland test

and denied this claim on the merits. Thus, that determination is entitled to deference

and review is limited to the record before the state court. See Cullen, 131 S.Ct. at 1388. 

The record supports the determination by the state court that Probation Officer McNally

instructed Petitioner to sign up for the Batterers’ Intervention Program and Petitioner

failed to do so. See Ex. E at 7-10, 17 (testimony of McNally that he instructed Petitioner

to sign up for Batterers Intervention Program within 30 days, pursuant to court’s order,

and Petitioner did not sign up even though Petitioner told McNally he had called Mr.

Jones and was put on waiting list for Program); 28-30 (testimony of Barry Jones,

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 13 of 19
Page 14 of 19

Director of New Hope Batterers Intervention Program, that he had no knowledge of

Petitioner having contacted the Program, the Program does not have a waiting list -

contrary to Petitioner’s statement – the Program is “never full” and people who contact

the Program are given “very simple instructions on how they enroll on any Wednesday

night at six o’clock”). Indeed, in his application, Petitioner states that “[t]he evidence is

undisputed that the petitioner did not contact the batterer intervention program.” Doc. 8

at 8. 

To the extent Petitioner is arguing the requirement of completing the Batterers’

Intervention Program was not ordered by the court, such argument lacks merit. The

written judgment and sentence specifically directs Petitioner to “complete Battery

Intervention – sign up within 30 days.” Ex. C4. Cf., e.g., Creamer v. State, 900 So. 2d

773 (Fla. 1st DCA 2005) (reversing order revoking probation where “order did not

provide a deadline for completing the treatment program, and there was sufficient time

remaining in Appellant’s probationary term to comply with the order” and explaining that

“[b]efore a trial court may revoke a defendant’s probation for failing to complete a

special condition of probation, the trial court must impose a time limit for completing the

condition”). 

To the extent Petitioner is arguing counsel failed to adequately challenge Jones’

statements, the record reflects that counsel did cross-examine Jones. Petitioner’s

argument that Jones gave conflicting statements is not supported by a review of the

record. As the court found, the record contains no affidavit from Jones. At the

revocation hearing, Jones testified that, to his knowledge, Petitioner had not contacted

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 14 of 19
Page 15 of 19

him by phone about the Program. Ex. E at 29. Jones testified the Program does not

have a waiting list and “[i]t’s never full.” Id. On cross, when asked whether his

secretary may have been contacted by Petitioner and told Petitioner that the Program

was full and he would be put on a waiting list, Jones stated, “I do not know if he called

or not. I know my secretary is instructed to give very simple instructions on how they

enroll on any Wednesday night at six o’clock.” Id. at 30. Thus, the record supports the

post-conviction court’s determination that counsel adequately cross-examined Jones. 

It was not unreasonable for the state court to conclude that Petitioner’s trial

counsel’s performance was not deficient or resulted in prejudice. Under the double

deferential review this Court applies to a Strickland claim evaluated pursuant to the

2254(d) standard, Petitioner’s ineffective assistance of counsel claim in Ground 2 fails. 

Accordingly, Ground 2 should be denied. 

Ground 3: Failure to Investigate and Depose Probation Officer McNally 

In Ground 3, Petitioner asserts that he was found guilty at the revocation hearing

based on the trial court finding Mr. McNally’s testimony more credible than that of

Petitioner. Doc. 8 at 9. Petitioner argues that McNally wrote a false report concerning

Petitioner’s failure to show at his office on January 13, 2005, as instructed. Id.

Petitioner states that he told Mr. McNally that he could not make that appointment

because he was out of town on a job assignment for the month of January. Id. 

Petitioner states that McNally told him to go ahead “as long as it was work and to call

him if petitioner needed him.” Id. at 9-10. Petitioner told Mr. McNally that he would

report as soon as he got back to town. Id. at 10. According to Petitioner, Mr. McNally

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 15 of 19
Page 16 of 19

gave him permission to be absent for the month of January 2005 because of Petitioner’s

job, but Mr. McNally must “have mistakenly or forgotten that he had authorized for

petitioner to be absent.” Id. Petitioner asserts he had witnesses, Angela Thompson

and Ruby Ford, who could verify Mr. McNally had authorized Petitioner to be away for

January to work out of town. Id. Petitioner argues that if counsel had investigated,

counsel would have realized that Mr. McNally gave inconsistent and contradictory

statements, which would have been discredited by the testimony of Ms. Thompson and

Ms. Ford. Id. If counsel had called these witnesses, the state post-conviction trial court

“would have not found that the petitioner willfully and substantially violated condition one

of his probation.” Id. at 11. Petitioner asserts the state court’s decision was based on

an unreasonable view of the facts in light of the evidence presented. Id.

The state post-conviction trial court addressed this claim on the merits and

denied it. Ex. O. In particular, that court made the following findings: 

Finally, as Ground 3, Defendant claims his attorney was deficient

for failing to investigate witnesses related to his violation of Condition 1

(failure to report). According to the record, PO McNally testified that

Defendant was instructed to report to him on January13, 2005

(Attachment C at 6). PO McNally further testified that the time and date

were set at Defendant’s convenience. Id. Defendant did not appear at the

scheduled time, and never contacted PO McNally to explain his absence. 

Id. at 6-7. Defendant admitted on direct and cross-examination that he

missed the appointment and never called to explain or reschedule. Id. at

33-34; 42. Defendant claims that Angela Thompson and Rudy Ford could

have testified that PO McNally knew that Defendant was out of town

working and could not make the appointment. As explained in Grounds 1

and 2 above, these witnesses could not testify as to what PO McNally

knew and their testimony on that point would not have been allowed.

There is no way that testimony from these witnesses would have proven

that PO McNally’s testimony or the VOP affidavit was false. The fact that

the State did not seek to violate Defendant on two of the original

conditions is not “proof” that the VOP affidavit was false. Defendant

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 16 of 19
Page 17 of 19

presents no argument as to how any investigation into the affidavit could

have helped his case.

Ex. O at 4. 

As with Grounds 1 and 2, the state post-conviction trial court applied the

Strickland test and denied this final claim on the merits. Thus, that determination is

entitled to deference and review is limited to the record before the state court. See

Cullen, 131 S.Ct. at 1388. The state court found the proposed testimony by the

witnesses identified by Petitioner would not have been admissible to show what

Probation Officer McNally knew. Ex. O at 4. The court also found Petitioner admitted in

his testimony at the revocation hearing that he missed the appointment with McNally

and did not call to explain or reschedule. Id. The record supports this finding. Ex. E at

34, 41-42. To the extent conflict in the testimony existed, the state court credited the

probation officer’s version of the events. Id. at 47-49. At best, had counsel presented

the witnesses urged by Petitioner, it appears they would have provided additional

testimony similar to Petitioner’s – which the state court discredited. As noted above, the

post-conviction trial judge was the same judge who presided over the revocation

hearing. Compare Ex. E with Ex. O. Thus, there is no reasonable probability that the

outcome would have been different. See Cullen, 131 S.Ct. at 1409-10; Marshall, 459

U.S. at 434. See also, e.g., Aldrich, 777 F.2d at 637; Parker, 565 F.3d at 1285-86. 

It was not unreasonable for the state court to conclude that Petitioner’s trial

counsel’s performance was not deficient. And, even assuming any deficient

performance, it was not unreasonable for the state court to conclude that Petitioner did

not demonstrate prejudice. Under the double deferential review this Court applies to a

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 17 of 19
Page 18 of 19

Strickland claim evaluated pursuant to the § 2254(d) standard, Petitioner’s ineffective

assistance of counsel claim in Ground 3 fails. Accordingly, Ground 3 should be denied.

Conclusion

 Based on the foregoing, Petitioner is not entitled to federal habeas relief. The

amended § 2254 petition (Doc. 8) should be denied on the merits. 

Certificate of Appealability

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

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

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

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

required by 28 U.S.C. § 2253(c)(2)." Rule 11(b) provides that a timely notice of appeal

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

Petitioner fails to make a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)

(explaining substantial showing) (citation omitted). Therefore, the Court should deny a

certificate of appealability in its final order.

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

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

issue." The parties shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P.

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 18 of 19
Page 19 of 19

24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).

Recommendation

It is therefore respectfully RECOMMENDED that the Court DENY Petitioner's

amended § 2254 petition on the merits (Doc. 8). It is further RECOMMENDED that a

certificate of appealability be DENIED and that leave to appeal in forma pauperis be

DENIED.

IN CHAMBERS at Tallahassee, Florida on July 9, 2012.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within fourteen (14) days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. A party may respond to another

party's objections within ten (10) days after being served with a copy thereof. 

Failure to file specific objections limits the scope of review of proposed factual

findings and recommendations.

Case No. 4:10cv30-RH/CAS

Case 4:10-cv-00030-RH-CAS Document 39 Filed 07/09/12 Page 19 of 19