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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

STEVEN HALL,

Petitioner,

v. Case No. 3:10cv71/MCR/MD

KENNETH S. TUCKER,

Respondent.1

______________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is an amended petition for writ of habeas corpus filed

pursuant to Title 28 U.S.C. § 2254 (doc. 1). Respondent has filed a response (doc.

24) to which petitioner replied (doc. 29). 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 careful consideration of all issues raised by Mr. Hall,

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

disposition of this matter, Rule 8(a) of the Rules Governing Section 2254 Cases in

the United States District Courts. It is further the opinion of the undersigned that the

pleadings and attachments before the court show that Mr. Hall is not entitled to

relief, and the petition is without merit and should be denied.

1

 Kenneth S. Tucker became Secretary of the Florida Department of Corrections on August 24, 2011,

and is substituted as the respondent. 

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BACKGROUND AND PROCEDURAL HISTORY

The petitioner, Steven Hall, was indicted by grand jury in the Circuit Court of

Escambia County, Florida, for premeditated or felony murder in violation of Sections

782.04 and 775.087, Florida Statutes (2001) (doc. 24, ex. B).2 The indictment stated

Mr. Hall, while committing a robbery, killed Lena Blackwell by stabbing her with a

sharp object (ex. B). Mr. Hall was tried by jury and adjudicated guilty of first degree

murder on May 11, 2004. (Ex. L, p. 107) (case no. 2001 CF 4264). The court

sentenced him to a term of life imprisonment without parole with two years thirtytwo days of credit time (ex. L, p. 109).

Mr. Hall appealed the conviction and sentence to the First District Court of

Appeal (“1st DCA”) (ex. M). Through counsel, Mr. Hall raised two issues: 1) the trial

court erred by restricting cross-examination of witnesses, depriving him of his Fifth

Amendment right to confrontation; and 2) the trial court erred by allowing the

prosecutor to introduce irrelevant and highly prejudicial evidence of his drug use

(ex. N). On June 9, 2005, the First DCA per curium affirmed the conviction and

sentence without written opinion. Hall v. State of Florida, 903 So.2d 939 (Fla. 1st DCA

2005) (Table) (copy at ex. P). 

On February 15, 2006, Mr. Hall filed a pro se motion for post-conviction relief

pursuant to Rule 3.850, Florida Rules of Criminal Procedure, raising twelve grounds

for relief (ex. Q). He amended his motion on December 4, 2006, to include a

thirteenth ground for relief (ex. R). On June 29, 2007, the Rule 3.850 court held a

limited evidentiary hearing on Grounds One, Two, Three, Four, Seven, and Thirteen

(exs. S, T). Mr. Hall’s appointed counsel submitted a pre-hearing evidentiary

argument and post-hearing memorandum of law on the issues presented at the

hearing (exs. T, V). Mr. Hall filed pro se supplements to his motion for postconviction relief on September 26, 2007, and February 18, 2008 (exs. W, X). On April

11, 2008, the Rule 3.850 court considered the motion, amendments, and

2

 Hereafter all references to exhibits will be to doc. 24 unless otherwise noted.

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supplements, and denied relief by a written decision (ex. Y and attach.). Mr. Hall,

through counsel, appealed the decision to the First DCA (ex. Z). He raised four

issues, corresponding to Grounds One, Two, Five, and Fourteen of his postconviction motion (ex. AA). The State filed an answer brief, and Mr. Hall replied (exs.

BB, CC). On January 12, 2010, the First DCA per curiam affirmed the Rule 3.850

court’s decision without written opinion. Hall v. State of Florida, 25 So.3d 1226 (Fla.

1st DCA 2010) (Table) (copy at ex. DD).

Mr. Hall filed the instant petition for federal habeas corpus on March 3, 2010

(doc. 1). Respondent has not expressly waived the exhaustion requirement. See 28

U.S.C. § 2254(c).

STANDARD OF REVIEW 

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. In

relevant part, § 2254 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(d) (2006).

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The United States Supreme Court explained the framework for § 2254 review

in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).3

 Section

2254(d)(2) must be divided into two separate inquiries: 

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

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

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

differently than this Court has on a set of materially indistinguishable

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

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

governing legal principle from this Court’s decisions but unreasonably

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

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

“determining whether [it] should overturn the state courts’ [sic] rejection of the claim

at issue” should “review the highest state court decision disposing of the claim.” 

Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see 

Knowles v. Mirzayance, 556 U.S. 111, __, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251

(2009).

Following the Williams framework, on any issue raised in a federal habeas

petition upon which there has been an adjudication on the merits in a formal state

court proceeding, the federal court should first ascertain the “clearly established

Federal law,” namely, “the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003). The law is “clearly

established” only when the Supreme Court’s holding embodies the legal principle;

dicta in opinions is not controlling. Thaler v. Haynes, __ U.S. __, 130 S. Ct. 1171,

1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608 F.3d 1313,

3

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

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

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

Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at

403–13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg, and

Breyer.

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1315 (11th Cir. 2010). Furthermore, a federal court of appeals decision, “even a

holding directly on point,” cannot clearly establish federal law for § 2254 purposes. 

Bowles, 608 F.3d at 1316 (citing Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 1866

(2010)).

After identifying the governing legal principle, the court determines whether

the state court adjudication is “contrary to” clearly established Supreme Court case

law, either because the state court “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases,” or because it “confronts a set of facts that is

materially indistinguishable from a decision of [the] Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438, 161 L. Ed. 2d 334

(2005); see § 2254(d)(1). The state court does not need to cite to Supreme Court

cases or even be aware of them, “so long as neither the reasoning nor the result of

the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct.

362, 365, 154 L. Ed. 2d 263 (2002). If the state court decision is contrary to clearly

established federal law, the federal habeas court must independently consider the

merits of the petitioner’s claim.

If the state court decision is not contrary to clearly established federal law, the

federal habeas court must then determine whether the state court “unreasonably

applied” the governing legal principles set forth in the Supreme Court’s cases. §

2254(d)(1); Williams, 529 U.S. at 412–13, 120 S. Ct. at 1523. The federal court defers

to the state court’s reasoning unless the state court’s application of the legal

principle was “objectively unreasonable” in light of the record the court had before

it. Williams, 529 U.S. at 409, 120 S. Ct. at 1521; see Cullen v. Pinholster, __ U.S. __,

131 S. Ct. 1388, 1400, 179 L. Ed. 2d 557 (2011) (holding new evidence introduced in

federal habeas court has no bearing on § 2254(d)(1) review, rejecting dicta in Holland

v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737–38, 159 L. Ed. 2d 683 (2004) (per

curiam)); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851 n.4, 152 L. Ed.

2d 914 (2002) (declining to consider evidence not presented to state court in

determining whether its decision was contrary to federal law). A state court’s

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application of federal law is objectively unreasonable when the state court “identifies

the correct legal rule from Supreme Court case law but unreasonably applies that

rule to the facts of the petitioner’s case” or “unreasonably extends, or unreasonably

declines to extend, a legal principle from Supreme Court case law to a new context.”

Brown, 544 U.S. at 141, 125 S. Ct. at 1439. However, a state court may “decline to

apply a specific legal rule that has not been squarely established by [the Supreme

Court]” without running afoul of the “unreasonable application” clause. Knowles,

129 S. Ct. at 1419. Notably, even a state court’s incorrect application of law will not

warrant federal habeas relief unless it is also objectively unreasonable. See

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L. Ed. 2d 624 (2011).

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

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

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable

application” clause, the Supreme Court applies the “objectively unreasonable” test

to the state court’s factual determination. Miller-El v. Cockrell, 537 U.S. 322, 324, 123

S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). The petitioner must advance

clear and convincing evidence that the state court’s factual determination was

“objectively unreasonable” to rebut the presumption that the determination was

correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); see § 2254(e)(1).

The Eleventh Circuit Court of Appeals in Gill clarified how the federal habeas

court should address the “unreasonable application of law” and the “unreasonable

determination of facts” tests. Mr. Gill’s petition alleged he was denied his Sixth

Amendment right to counsel.4

 The Eleventh Circuit granted a limited Certificate of

4

 Mr. Gill twice moved the trial court in pretrial hearings to allow him to waive his Sixth Amendment

right to counsel. Gill, 633 F.3d at 1275-1284; see U.S. Const. amend. VI. The trial court denied the first

motion, concluding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill, 633 F.3d

at 1278; see Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, L. Ed. 2d 562 (1975) (accused

must “knowingly and intelligently” waive representation). It also denied the second motion, but it

allowed Mr. Gill to act as co-counsel for himself only for determining trial strategy. Gill, 633 F.3d at

1284. He was convicted, and the Florida Second District Court of Appeal (“Second DCA”) affirmed

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Appealability to determine the precise issue of the validity of “summary affirmance

by a state appellate court of a trial court’s decision based on potentially flawed

reasoning.” Id. at 1286.5

The court acknowledged the well-settled principle that summary affirmances,

such as the Florida Second District Court of Appeal’s, are presumed adjudicated on

the merits and warrant deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85

and Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)). “A

judicial decision and a judicial opinion are not the same thing,” and the Supreme

Court has confirmed that determining whether the state court unreasonably applied

the law or unreasonably determined the facts requires only a decision, not an

opinion. Id. at 1291 (citing Harrington, 131 S. Ct. at 784). Yet, the Supreme Court has

never squarely addressed whether under the “unreasonable application” test a

federal habeas court “looks exclusively to the objective reasonableness of the state

court’s ultimate conclusion or must also consider the method by which the state

court arrives at its conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230,

244-45 (5th Cir. 2002) (summarizing the emerging circuit split)). The Eleventh Circuit

court concluded that district courts must apply the plain language of § 2254(d) and

answer the “precise question” raised in a claim based on the state court’s ultimate

legal conclusion, and should not “evaluate or rely upon the correctness of the state

court’s process of reasoning.” Id at 1291 (agreeing with the Fifth Circuit court in

without opinion the trial court’s denial of post-conviction relief. Id. at 1284-85. Mr. Gill then filed a

petition in federal court, which petition the court denied with prejudice. Id. at 1284-85. 

5

 The court reviewed Gill’s claims that the federal habeas court erred in two respects. First, Gill

argued the habeas court erred by “failing to review on the merits the ‘legally and factually unsupported

rationale’ articulated by the state trial court.” 633 F.3d at 1288. Second, Gill argued the habeas court’s

decision was per se erroneous because it “relied on a finding that the state court did not make.” Id.

Gill averred the trial court denied relief by finding that Gill’s waiver was not knowing and intelligent,

while the federal district court denied relief by finding that Gill “never clearly and unequivocally”

waived his right to counsel. Id.

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Neal, supra). In short, the court stated, “the statutory language focuses on the

result, not on the reasoning that led to the result.” Id.6

In light of Gill, the “unreasonable determination of facts” standard plays a

limited role in habeas review because the district court considers the

reasonableness of the trial court’s fact finding only to the extent that the state

court’s ultimate conclusion relied on it. Id. at 1292. A federal habeas court can

consider the full record before it to answer “the only question that matters[:]”

whether the state court’s decision was objectively unreasonable. Lockyer, 538 U.S.

at 64, 123 S. Ct. at 1168; Gill, 133 F.3d at 1290.

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

Under §2254, a habeas court must determine what arguments or

theories supported or . . . could have supported [ ] the state court’s

decision; and then it must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

Harrington, 131 S. Ct. at 786. Federal habeas relief is precluded “so long as

fairminded jurists could disagree on the correctness of the state court’s

conclusion.” Id. at 786 (internal quotations omitted).

The federal habeas court will take the final step of conducting an independent

review of the merits of the petitioner’s claims only if it finds that the petitioner

satisfied AEDPA and § 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 953-54, 127

S. Ct. 2842, 2858-59, 168 L. Ed. 2d 662 (2007); Jones v. Walker, 496 F.3d 1216, 1228

(2007) (same). The writ will not issue unless the petitioner shows that he is in

custody “in violation of the Constitution or laws and treaties of the United States.” 

28 U.S.C. § 2254(a). When performing its review under § 2254(d), the federal court

must resolve all claims for relief regardless of whether habeas relief is granted or

6

 Applying this analysis, the court rejected Gill’s claim that the district court erred by relying on

different grounds than the trial court because Gill’s basic premise—the Second DCA’s summary

affirmance relied on the trial court’s statements from the bench—was not dispositive. Id. at 1288.

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denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc); see Puiatti v.

McNeil, 626 F.3d 1283, 1307 (11th Cir. 2010). The federal court must also bear in mind

that state court factual determinations are presumed to be correct, and the petitioner

bears the burden of rebutting that presumption by clear and convincing evidence. 

28 U.S.C. § 2254(e)(1); see also Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002)

(AEDPA provides for a “highly deferential standard of review” for factual

determinations made by a state court); Jackson, 112 F.3d at 824-25 (noting petitioner

has heavier burden to overcome the presumption of factual correctness). “If this

standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S.

Ct. at 786. 

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel.

Petitioner contends in some of his grounds for relief in this court that he was

denied his constitutional right to the effective assistance of counsel. The

Constitution provides “[i]n all criminal prosecutions, the accused shall enjoy the

right. . .to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

To prevail on a claim of ineffective assistance of counsel, the petitioner must prove: 

(1) “counsel’s representation fell below an objective standard of reasonableness;”

and (2) “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 677-678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see

also Berghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L. Ed. 2d 1098

(2010). Reasonableness of representation does not implicate what is possible,

prudent, or even appropriate, but only what is “constitutionally compelled.” 

Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing Burger v. Kemp,

483 U.S. 776, 794, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987)).

In evaluating counsel’s performance, reviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable,

professional assistance. Chandler, 218 F.3d at 1314. Courts must make “every

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effort. . .to eliminate the distorting effects of hindsight” and must evaluate the

reasonableness of counsel’s performance “from counsel’s perspective at the time.” 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at

1314 (the Strickland standard compels courts to “avoid second-guessing counsel’s

performance”). The Eleventh Circuit has summarized the standard and the burden:

Even if many reasonable lawyers would not have done as defense

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

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

would have done so. This burden, which is petitioner’s to bear, is and

is supposed to be a heavy one. And, “[w]e are not interested in grading

lawyers’ performances; we are interested in whether the adversarial

process at trial . . . worked adequately.” See White v. Singletary, 972

F.2d 1218, 1221 (11th Cir. 1992). Therefore, the cases in which habeas

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also, e.g., Waters v. Thomas, 46

F.3d 1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done

more); Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (“. . .the Constitution

requires a good deal less than maximum performance.”).

In order to meet the prejudice prong of the Strickland standard, petitioner

must allege more than that the unreasonable conduct might have had “some

conceivable effect on the outcome of the proceeding.” 466 U.S. at 693, 104 S. Ct. at

2067; see Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005). 

Petitioner must show a reasonable probability exists that the outcome would have

been different. Marquard, 429 F.3d at 1305 (petitioner’s burden under the prejudice

prong is high); Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In applying Strickland,

the court may dispose of an ineffective assistance claim if petitioner fails to carry his

burden on either of the two prongs. Strickland, 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. . .that course should be followed.”).

The Strickland standard exists to prevent petitioners from abusing the posttrial process by escaping rules of waiver or presenting new issues; it should be

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“applied with scrupulous care” to protect the integrity of the adversary process. 

Harrington, 131 S. Ct. at 788. As it relates to habeas corpus applications, the Court

emphasized:

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

deferential,” and when the two apply in tandem, review is “doubly” so.

The Strickland standard is a general one, so the range of reasonable

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

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

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

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. at 788 (citations omitted); Knowles,129 S. Ct. at 1420 (Strickland claims evaluated

under § 2254(d)(1) require “doubly deferential” judicial review).

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

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

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

components are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.

Ct. at 2070; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “The pivotal

question is whether the state court's application of the Strickland standard was

unreasonable. This [inquiry] is different from asking whether defense counsel's

performance fell below Strickland's standard.” Jones v. Sec’y, Dep’t of Corr., __ F.3d

__, 2011 WL 2540573 (11th Cir. Jun. 28, 2011) (quoting Harrington, 131 S. Ct. at 785

(2011)). Habeas claims of ineffective assistance of counsel require “doubly

deferential” judicial review under §2254(d) and Strickland, and petitioners only rarely

prevail on this ground. See Rogers, 13 F.3d at 386.

Exhaustion and Default

Respondent contends some of Mr. Hall’s ground fro relief are unexhausted

(doc. 24). A petitioner defaults on an issue unless the petitioner first exhausts

available state court remedies so the state has the “‘opportunity to pass upon and

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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) (per curiam); see 28 U.S.C. §

2254(b)(1)(A) (applicant must exhaust available state court remedies); § 2254(b)(3)

(state may rely on exhaustion requirement unless it expressly waives the right). But

see § 2254(b)(2) (application may be denied on the merits even when applicant fails

to exhaust state remedies). 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, 513 U.S. at 365-66, 115 S. Ct. at 888; see

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999)

(same). This affords the state courts “one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732.

“Fair presentation” requires that, in each claim for relief, the petitioner include

a reference to a specific federal constitutional guarantee and a statement of the facts

that entitle the petitioner to relief. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509,

513, 30 L. Ed. 2d 438 (1971). To satisfy the exhaustion requirement, the petitioner

must present the same facts and claims in state court about which he petitions the

federal court. Id. Appeals to a broad, general constitutional guarantee also fail to

present the “substance” of such a claim to the state court. See Anderson v. Harless,

459 U.S. 4, 7, 103 S. Ct. 276, 278, 74 L. Ed. 2d 3 (1982) (petitioner cited federal

authority only 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” (internal quotation marks omitted)). A state prisoner’s claim is not fairly

presented if the state 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. . ..” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d

64 (2004). However, when a petitioner squarely raises a federal constitutional claim

in state court, the “failure of a state court to mention a federal claim does not mean

the claim was not presented to it.” Dye v. Hofbauer, 546 U.S. 1, 3, 126 S. Ct. 5, 6-7,

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163 L. Ed. 2d 1 (2005). And, simply labeling the claim “federal” may be sufficient to

fairly present the claim. Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351 (dictum).

The Eleventh Circuit requires specific reference to the United States

Constitution and favors citations to federal cases. Zeigler v. Crosby, 345 F.3d 1300,

1307-08 and n.5 (11th Cir. 2003) (“Cursory and conclusional sentences

(unaccompanied by citations to federal law) . . . did not present to the Florida courts

the federal claim asserted to us.”). This stricter standard requires the petitioner to

differentiate a claim under the United States Constitution from one under a state

constitution. Id. at n.5; McNair v. Hall, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (“a

habeas applicant [must] do more than scatter some makeshift needles in the

haystack of the state court record” (internal citations omitted)). If state and federal

constitutional law overlap in their applicability to the petitioner’s claim, he must raise

his issue in terms of the federal right in state court to obtain federal review of the

issue. Duncan, 513 U.S. at 366, 115 S. Ct. at 888; see also Anderson, 459 U.S. at 7

and n.3, 103 S. Ct. at 278 and n.3 (petitioner’s citation to a state-court decision

predicated solely on state law is probably insufficient to fairly apprise a reviewing

court of a potential federal claim merely because the defendant in the cited state

case advanced a federal claim). 

A claim is procedurally defaulted and barred from federal review in two

instances: (1) if it was raised in state court and rejected on the independent and

adequate state ground of procedural bar or default; or (2) if it was not properly raised

in state court and can no longer be litigated under state procedural rules. Coleman

v. Thompson, 501 U.S. 722, 734-35 and n.1, 111 S. Ct. 2546, 2557 and n.1, 115 L. Ed.

2d 640 (1991); Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); see also Judd

v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (state court’s rejection of petitioner’s

constitutional claim on state procedural grounds generally precludes subsequent

federal habeas review of that claim). Unless the federal court determines the state

court “clearly and expressly” relied on independent and adequate state grounds, the

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federal court may address the petition.7 Coleman, 501 U.S. at 735, 111 S. Ct. at 2557. 

However, when any future attempt to exhaust state remedies would be futile under

the state’s procedural default doctrine, the default is per se adequate state grounds

independent of the federal question. Id. at 735 n.1, 2557 n.1; Harris v. Reed, 489 U.S.

255, 263 n.9, 109 S. Ct. 1038, 1043 n.9, 103 L. Ed. 2d 308 (1989) (federal habeas court

need not require a federal claim be presented to a state court if the state court would

hold the claim procedurally barred).

The adequacy of a state procedural bar to the assertion of a federal question

is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885, 151

L. Ed. 2d 820 (2002). To foreclose federal review, the state procedural bar must be

firmly established and regularly followed, that is, not applied in an arbitrary or

unprecedented fashion. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 857,

112 L. Ed. 2d 935 (1991). A state procedural bar is firmly established and regularly

followed when the state has put litigants on notice of the rule, and the state has a

legitimate interest in the rule’s enforcement. Maples v. Allen, 586 F.3d 879, 888 (11th

Cir. 2009) (citing Lee, 534 U.S. at 385-88, 122 S. Ct. at 890-92)).

To overcome a procedural default so that the federal habeas court may reach

the merits of a claim, the petitioner must show either “cause for the default and

actual prejudice resulting therefrom,” or a fundamental miscarriage of justice. 

Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004); High v.

Head, 209 F.3d 1257, 1261 (11th Cir. 2000). Cause exists when an external

impediment, such as governmental interference or the reasonable unavailability of

the factual basis for the claim, 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). 

To meet the miscarriage of justice exception, the petitioner must show that “a

constitutional violation has probably resulted in the conviction of one who is

7

 The “adequate and independent state grounds” rule applies equally to procedural and substantive

state-law grounds. Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820 (2002). 

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actually innocent” because “it is more likely than not that no reasonable juror would

have convicted him.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L.

Ed. 2d 808 (1995). 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. In short, actual innocence claims opening the gate for the miscarriage of justice

exception are summarily rejected in virtually every case. Id.

Deference to state court findings of fact

Federal habeas courts defer to the state court’s findings of fact, unless the

petitioner shows by clear and convincing evidence that it was unreasonable. See

28 U.S.C. § 2254(d)(2); § 2254(e)(1); Callahan v. Hall, 427 F.3d 897, 926 (11th Cir. 2005)

(“§ 2254(d)(2) allows for relief where the state court adjudication ‘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.’ § 2254(d)(2).”); see also

Rutherford v. Crosby, 385 F.3d 1300, 1308 (11th Cir. 2004) (concluding that

“[petitioner] has not shown by clear and convincing evidence that the Florida

Supreme Court’s factual finding . . . [wa]s unreasonable in light of the evidence in

the state court record”). Under the AEDPA, the state court does not have to

explicitly state its findings of fact. See Blankenship v. Hall, 542 F.3d 1253, 1271-72

(11th Cir. 2008). State court findings of fact can be implied from the opinion and the

record when they are necessary to the Rule 3.850 court’s rejection of a petitioner’s

claim. Id. These implicit findings are entitled to deference. Id. As explained in the

Standard of Review, supra, the state court is not required to cite or be aware of the

relevant Supreme Court precedent as long as its conclusion is not contradictory. 

Early, 537 U.S. at 8, 123 S. Ct. at 365. A summary adjudication with a brief, or total

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lack of, statement of reasons is still an adjudication on the merits. Harrington, 131

S. Ct. at 780, 784; see Childers v. Floyd, 642 F.3d 953, 968 (11th Cir. 2011) (“an

‘adjudication on the merits’ is best defined as any state court decision that does not

rest solely on a state procedural bar.”).

Under Eleventh Circuit precedent, the habeas court will “‘look through’ a

summary decision to the ‘last reasoned decision’ on the issue.” McGahee v.

Alabama Dep’t of Corr., 560 F.3d 1252, 1262 n.12 (11th Cir. 2009) (quoting Sweet v.

Sec’y, Dep’t of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006)); see also Ylst v.

Nunnenmaker, 501 U.S. 797, 802, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991) (“.

. .the Harris presumption only applies after habeas court determines ‘the relevant

state court decision. . .fairly appear[s] to rest primarily on federal law or [is]

interwoven with [federal] law.’”) (quoting Coleman v. Thompson, 501 U.S. 722, 740,

111 S. Ct. 2546, 2559, 115 L. Ed. 2d 640 (1991)). 

PETITIONER’S GROUNDS FOR RELIEF

UNEXHAUSTED GROUNDS

Respondent is correct that Mr. Hall’s Grounds Two, Four through Six and

Eight through Fourteen are unexhausted because Mr. Hall did not raise them in his

Rule 3.850 appeal (doc. 24).8 The claims to which respondent asserts exhaustion as

an affirmative defense are:

2. Trial court error in allowing the prosecutor to introduce evidence of Mr.

Hall’s drug use. (Direct Appeal Issue II)

4. Ineffective assistance of counsel for failing to call Robert Allen, Marcus

Wright, and Detective Chamberlain as witnesses at the suppression

hearing. (Rule 3.850 motion Ground II)

8

 Respondent does not contend Ground Four is unexhausted as to Mr. Hall’s private attorney, Robert

Allen. The court reviews that claim below.

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5. Ineffective assistance of counsel for failing to present an alibi defense.

(Rule 3.850 motion Ground III)

6. Ineffective assistance of counsel for failing to request an alibi jury

instruction. (Rule 3.850 motion Ground IV)

8. Ineffective assistance of counsel for failing to request a Franks9 hearing

to attack the validity of the affidavit for search warrant. (Rule 3.850

motion Ground VII)

9. Ineffective assistance of counsel for failing to present evidence of an

alternative suspect. (Rule 3.850 motion Ground VIII)

10. Prosecutorial misconduct by knowingly using perjured testimony to

secure an indictment and conviction. (Rule 3.850 motion Ground IX) 

11. Ineffective assistance of counsel for failing to move to dismiss the

indictment. (Rule 3.850 motion Ground X)

12. Ineffective assistance of counsel for failing to adequately impeach

witness Alan Coby with prior inconsistent statements. (Rule 3.850

motion Ground XI)

13. Ineffective assistance of counsel by cumulative error for failing to

investigate and prepare for trial. (Rule 3.850 motion Ground XII)

14. Newly discovered evidence. (Rule 3.850 motion Ground XIII)

Mr. Hall’s failure to exhaust his direct appeal claim will be discussed separately from

the post-conviction claims.

Ground Two

Mr. Hall’s second ground for relief alleges the trial court erred in allowing the

prosecutor to introduce evidence that Mr. Hall purchased and used crack cocaine

the night of the homicide (doc. 1, p. 4; doc. 2, p. 2). This was an error because it was

9

 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The purpose of a Franks

hearing is to determine whether a facially sufficient affidavit for a search warrant was based on a

police officer’s false statements.

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irrelevant, never linked to the homicide, and “highly prejudicial bad character

evidence.” (Doc. 2, p. 2). Mr. Hall concludes “[a]dmission of this evidence violated

Petitioner’s rights to due process and a fair trial. Amend. V, VI, XIX, U.S. Const.” (Id.)

Mr. Hall raised this argument as Issue II of his direct appeal (see ex. N, pp. 24-

29). The First DCA summarily denied relief on this issue (ex. P.).

Mr. Hall’s counsel, Mr. Sheehan, filed a motion in limine to exclude all

evidence of Mr. Hall’s drug use (ex. C). He supported the motion by stating the

evidence was not relevant to a material fact in issue, except to prove “bad character

or propensity” (ex. C, p.9). He also asserted the probative value of the evidence was

greatly outweighed by the unfair prejudice and it would “create a substantial danger

that the Defendant would be convicted because the jury would infer that he is a bad

man.” (Ex. C, p. 10). Mr. Sheehan relied on Florida Rules of Evidence:

Florida Rules of Evidence generally prohibits the introduction of

evidence of extrinsic acts that adversely reflect on the Defendant’s

character[.] This rule of evidence is one of exclusion unless the

evidence is relevant and probative of some issue in the case such as

motive, intent, or knowledge[.] The evidence is excludable if it is being

offered to show the propensity of the Defendant to commit crimes[.]

The evidence is also excludable if its prejudicial value outweighs its

probatrve [sic] value[.] The Defendant asserts that the government is

seeking to introduce this evidence to show that the Defendant is a

criminal and that he has a propensity to commit crimes[.]

(Ex. C, p. 10). Mr. Sheehan also filed a motion to suppress all statements and

evidence from May 1, 2001, to the date of Mr. Hall’s first appearance as the product

of an illegal search and seizure (ex. D). During a police interview on May 1, 2001, Mr.

Hall admitted to smoking marijuana (ex. D, p. 13; ex. E, p. 16).10

On October 20, 2003,the court denied Mr. Sheehan’s motion in limine as it

related to cocaine use (ex. EE, dkt. 177). On October 23, 2003, the court granted the

motion to suppress statements taken by Pensacola Police Department Detective

10 The docket shows Mr. Sheehan filed another motion to suppress statements and evidence on

October 21, 2003 (ex. EE).

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Goss on May 1, 2001, but denied the motion to the extent it sought to exclude

subsequent statements and evidence (ex E, pp. 122-125; ex. EE, dkt. 193-195).11

At trial, Alan Coby, who shared a dorm area with Hall, testified that Mr. Hall

talked to him about the murder while they were inmates (ex. E, p. 319). He stated Mr.

Hall told him he stole some money after he stabbed the victim and “[h]e was at the

Grand Hotel smoking, trying to sell whatever he bought, crack, marijuana to come

back up so he could get the jewelry [he pawned] back.” (Ex. E, p. 322). Mr. Sheehan

did not object to the testimony. On cross-examination, Mr. Sheehan asked, “But he

got money and went to the Grand Hotel and smoked it up?” (Ex. E, p. 345). Mr. Hall

also testified that he used marijuana at the Grand Hotel the night of the murder (ex.

E, p. 562). The State’s closing argument referred to Mr. Hall’s crack cocaine use

several times (Ex. E, 601, 607-07, 610). Mr. Sheehand did not object. In his closing

argument, Mr. Sheehan urged the jury not to be distracted by Mr. Hall’s use of crack

cocaine and marijuana because these acts do not create an inference of guilt (ex. E,

pp. 643-44). 

The record clearly shows that the trial court denied Mr. Sheehan’s motion to

suppress evidence of Mr. Hall’s cocaine use. An appellate court reviews a trial

court’s decision regarding admissibility of evidence for abuse of discretion. Ray v.

State of Florida, 755 So.2d 604, 610 (Fla. 2000). The First DCA adjudicated Mr. Hall’s

claim on the merits. This court can infer the First DCA ultimately concluded he did

not show a clear abuse of discretion. Its decision necessarily rested on independent

and adequate state procedural law grounds and is barred from review in habeas

court. Coleman, 501 U.S. at 735, 111 S. Ct. at 2557. Furthermore, Mr. Sheehan did

not object to evidence or testimony about Mr. Hall’s marijuana use. Therefore, the

issue was not preserved for appellate review. See Fla. Stat. § 924.051(3).

11 The court also ruled that the May 2, 2001, arrest was not illegal, but the issue was moot in light of

his other rulings (ex. E, p. 127).

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Mr. Hall’s claim would be unexhausted even if the grounds had been

preserved for appeal because he did not raise a federal constitutional claim on

appeal. His brief cites to and rests solely on state law (see Ex. N, pp. 24-29). Unlike

Issue I of the brief, which includes citation to federal law and at least one full

sentence regarding the Confrontation Clause, Issue II states: “Admission of this

evidence violated Hall’s rights to due process and a fair trial. Amend. V, VI, XIV U.S.

Const.; Art. I, Secs. 9, 16 Fla. Const.” (Ex. N, p. 24). This is the only reference to the

federal constitution and does not constitute a federal claim. As stated in McNair,

supra, “a habeas applicant [must] do more than scatter some makeshift needles in

the haystack of the state court record. ”416 F.3d at 1302-03. Appeals to a broad

constitutional guarantee such as “due process” fail to present the substance of a

claim to the state court. Anderson, 459 U.S. at 7, 103 S. Ct. at 278. 

Mr. Hall’s argument was based on Florida law and did not present a federal

claim to the state court for resolution. It is too late for Mr. Hall to return to the state

courts to cure the default and the claims are therefore defaulted in this court. Mr.

Hall is not entitled to federal habeas relief, and the writ should not issue.

Grounds Four through Six and Eight through Fourteen

Respondent contends Mr. Hall’s Ground Four through Six and Eight through

Fourteen are unexhausted because he did not raise them in his Rule 3.850 appeal

(doc. 24). Mr. Hall responds that the court should excuse the default because he

asked his attorney to preserve all 3.850 motion claims for federal review (doc. 29, p.

22). The majority of Mr. Hall’s response offers additional arguments to support

Grounds Four, Five, Six, Thirteen, and Fourteen.

Mr. Hall has not shown cause or prejudice for his failure to present these

issues to the First DCA, nor has he shown that he is probably actually innocent. His

response contains additional arguments and attachments to support of his claims,

but he does not contend an external impediment prevented him from raising these

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grounds on appeal or that he is actually innocent of the crime for which he was

convicted.

Response Attachment Six is a letter from Mr. Hall’s appellate attorney, Edgar

Elzie (doc. 29, attach. 6). In the letter, Mr. Elzie acknowledges Mr. Hall’s desire to

raise every post-conviction motion claim on appeal to preserve them for federal

review. However, Mr. Elzie states that he has an obligation to “raise only those issue

as to which [he] believe[s] [he] can make a good faith argument that is supported by

the record and the law.” Mr. Elzie suggests that Mr. Hall file a motion to discharge

him as counsel to allow Mr. Hall to proceed pro se. He explains that Mr. Hall could

then strike the initial brief (that raises only four issues) and submit a new brief

raising all fourteen issues. He also explains that the Florida Rules of Appellate

Procedure do not provide for filing supplemental briefs for Rule 3.850 appeals. As

He warns that, as a result, if the First DCA does not grant Mr. Hall’s motion to

proceed pro se, he cannot file a pro se brief. (Doc. 29, attach. 6).

In 2010, the Eleventh Circuit decided that the Florida “rule” precluding filing

pro se supplemental briefs was neither firmly established nor regularly followed. 

Hitchcock v. Sec’y Dep’t of Corr., 380 Fed. Appx. 82, 85-86 (2010) (unpublished

opinion). The court held that the First DCA’s refusal to permit Mr. Hitchcock to file

a pro se supplemental brief raising the Rule 3.850 motion claims not raised in the

initial brief filed by counsel was not an independent and adequate state ground to

deny review. Id. at 86. The court held that Hitchcock’s counsel’s brief and

Hitchcock’s supplemental brief satisfied the fair presentation requirement permitting

review in federal habeas court. Id.

The facts in Hitchcock are distinguishable from Mr. Hall’s case, and the

holding is not applicable here. Mr. Hall cannot be faulted for failing to file a

supplemental brief because his counsel explicitly advised him that the procedural

rules did not allow supplemental briefs. However, his counsel suggested an

alternative method for Mr. Hall to attempt to present his claims, and he chose not to

pursue that course of action. The record shows Mr. Hall never filed a motion to

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discharge his attorney or any other motion to allow him to present additional claims. 

See Steven Samuel Hall v. State of Florida, Florida First District Court of Appeal case

no. 1D08-2271 (available at http://www.1dca.org/).

Mr. Hall has not shown why this court should excuse his procedural default,

and he has not shown a fundamental miscarriage of justice. It is too late for Mr. Hall

to return to the state courts to cure the default and the claims are therefore defaulted

in this court. Mr. Hall is not entitled to federal habeas relief on these grounds, and

the writ should not issue.

EXHAUSTED CLAIMS

Ground One Trial court error in restricting cross-examination and

impeachment of the State’s key witness.

Mr. Hall alleges the trial court erred in restricting defense counsel’s ability to

inquire on cross examination whether the State’s key witness, Alan Coby, had

written letters to the prosecutor seeking favors (doc. 1, p. 4; doc. 2, p. 1). Mr. Coby

testified Mr. Hall made incriminating statements to him while they were in county jail

together (doc. 2, p. 1). The court allowed defense counsel to introduce Mr. Coby’s

letter asking to have another inmate moved to his dorm area. However, the court

“prohibited the defense from establishing that the inmate Coby wanted to move was

his homosexual lover.” (Doc. 2, p. 2). The court found the evidence was unfairly

prejudicial (id.). Mr. Hall contends the evidence of a homosexual relationship would

have impeached the credibility of the State’s key witness by showing he had a

motive to lie, and that the court’s restriction violated his Fifth, Sixth, and Fourteenth

Amendment rights to due process and to confront adverse witnesses (id.).

Exhaustion

Mr. Hall raised this argument as Issue I of his direct appeal (see ex. N, pp. 17-

23). The First DCA summarily denied relief (ex. P.). Respondent contends this issue

is unexhausted (doc. 24, p. 9). It states: “. . .for Petitioner’s present federal

constitutional claim to have been cognizable in the state appellate court, Petitioner

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was required to first assert it as the basis for his claim in the trial court.” (Id.). 

Respondent argues Mr. Hall only asserted a state evidentiary law basis for

introducing impeachment evidence at trial. (Id.) (citing ex. E, pp. 381-389, 402-403). 

The record indicates Mr. Sheehan argued that extrinsic evidence that Mr. Coby

wanted his homosexual lover to be moved to his dorm area should be admitted to

impeach Mr. Coby’s credibility regarding his motive for testifying favorably for the

State (ex. E, p. 374-77). 

The State objected to any evidence of Mr. Coby’s sexuality as highly

prejudicial and inadmissible as a collateral matter (ex. E, p. 381). The court clarified

that unless Mr. Sheehan had extrinsic evidence, he was limited to questioning Mr.

Coby about his general motive for having the prosecutor move a friend to his dorm

area because Mr. Coby denied being a homosexual (ex. E, pp. 381-82). See Caruso

v. State of Florida, 645 So.2d 389, 394 (Fla. 1994) (a cross-examiner must “take” the

answer of a witness regarding an irrelevant or collateral matter and cannot impeach

the witness with extrinsic evidence). Mr. Sheehan responded:

MR. SHEEHAN: Judge, I asked you to issue a writ, you did. 

There’s a witness named Ernest Archie, he’s a Jefferson Correctional

Institute inmate. This man has admitted he knows him and he knows

Zoe. Our evidence is now, first of all we have a letter where he’s

currying favor to the prosecution to show bias, motive, favorable

testimony. It’s not a collateral matter because he’s not lied about the

reason that he needs assistance. Ernest Archie will testify that he

knows that Zoe is gay and that they have a gay relationship.. . .And that

is very critical information if he would lie to the prosecutor about his

motive for currying favor - - I mean lie to this jury about motive for

currying favor, to try to get favorable treatment for somebody who he

is maybe in love with and has this relationship.

(Ex. F, pp. 382-83). Despite the court’s doubts about admissibility, it allowed Mr.

Sheehan to proffer testimony from Mr. Archie, which testimony was consistent with

Mr. Sheehan’s argument (ex. F, pp. 387, 394-401). 

The court disallowed the testimony based on a Florida rule of evidence:

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THE COURT: The Court after, you know, after hearing the

testimony I mean, it doesn’t change my feeling about it, that the - - that

the nature of the relationship is, I suppose, probative to the extent that

it may show a heightened desire on the part of Mr. Coby to try to get

some preferential treatment. But at the same time, that heightened

probative value is outweighed by the unfair prejudice that that would

cause to the State by virtue of the jury then being side tracked on that

whole issue. And so the Court finds that this entire proffer is not

admissible, and therefore, any questions to the witness, Mr. Coby,

about the relationship being one of homosexuality, which he has

denied, cannot be made in the presence of the jury.

The friendship, close friendship, best friends, you know,

however, you want to - - anything that he admits to is fine. [The jury]

can draw their own inference from that. But beyond that, the

homosexual aspect of it, as I said, it does have some relevance, does

have some probative value but it’s clearly outweighed under 403. 

That’s the Court’s ruling.. . .

(Ex. E, pp. 402-03). 

Section 924.051(3), Florida Statutes, states: “An appeal may not be taken from

a judgment or order of a trial court unless a prejudicial error is alleged and is

properly preserved or, if not properly preserved, would constitute fundamental

error.” (2003) (other sections invalidated by Allen v. Butterworth, 756 So.2d 52 (Fla.

2000). Mr. Hall’s brief on appeal does not argue fundamental error, although error

that amounts to a denial of due process is fundamental error. Ray v. State of Florida,

403 So.2d 956, 960 (1981) (fundamental error is applied only in rare cases with a

compelling demand). Therefore, Ground One is unexhausted and defaulted under

Florida law if it was not properly preserved at the trial court level.

The undersigned finds Mr. Sheehan properly preserved the argument for

appeal, the appeals court ruled on the issue on the merits, and thus, the issue is

cognizable for federal habeas purposes. A close reading of Steinhorst v. State of

Florida, 412 So.2d 332 (Fla. 1982), on which respondent relies for its statement of

law, reveals that the Florida Supreme Court did find the appellant’s Confrontation

Clause argument preserved when his line of inquiry was “relevant to the issue of the

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witness’s credibility” and “calculated to impeach the credibility of the witness.” 412

So.2d at 337, 338.12 

Furthermore, there is no requirement that “a defendant intone special ‘magical

words’ in order to preserve a constitutional claim.” Corona v. State of Florida, 64

So.3d 1232, 1242 (Fla. 2011) (citing, e.g., Murray v. State of Florida, 3 So.3d 1108,

1117 (Fla. 2009) (concern must be “sufficiently specific” to inform court of the error).

The purpose of the rule is to place the trial judge on notice and give him an

opportunity to correct a possible error. Harrell v. State of Florida, 894 So.2d 935, 940

(Fla. 2005).

The Sixth Amendment right to confront his accusers includes the right to

effective cross-examination. Childers, 642 F.3d at 970 (citing Delaware v. Van

Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). 

A limitation on cross-examination can violate the Sixth

Amendment right to confrontation if it prevents the defendant from

showing that a witness is biased:

[A] criminal defendant states a violation of the Confrontation Clause

by showing that he was prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical form

of bias on the part of the witness, and thereby “to expose to the jury

the facts from which jurors ... could appropriately draw inferences

relating to the reliability of the witness.”

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L.

Ed. 2d 674 (1986). The discretion of a trial judge to limit

cross-examination is more narrowly circumscribed when the witness

is vital to the case presented by the government: “where the witness

sought to be cross-examined is the government's ‘star’ witness,

providing an essential link in the prosecution's case, the importance of

full cross-examination to disclose possible bias is necessarily

12 The court in Steinhorst did apply the preservation rule to the appellant’s alternate argument that

the trial court’s ruling limiting cross-examination denied him the right to develop a “viable defense

theory[.]” 412 So.2d at 338. The court noted this argument was not presented to the trial court and

was therefore not preserved for appeal. Id.

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increased.” United States v. Lankford, 955 F.2d 1545, 1548 (11th

Cir.1992).

De Lisi v. Crosby, 402 F.3d 1294, 1300-01 (11th Cir. 2005). Here, as in Lankford, supra,

Mr. Sheehan was seeking to impeach the State’s “star witness” to show bias. Mr.

Sheehan’s argument is so closely related to a Confrontation Clause violation that the

trial court was on notice of the possible error.

State Court Decision

The First DCA per curiam affirmed the trial court’s judgment and sentence

without written opinion (ex. P).

Federal Review of State Court Decision

This court presumes the state court adjudicated Mr. Hall’s claims on the

merits because of “the absence of any indication or state-law procedural principles

to the contrary.” Harrington, 131 S. Ct. at 785. If the trial court erred, the error is

subject to harmless error analysis. The United States Supreme Court held in Brecht

v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) that the

standard for determining whether a petitioner is entitled to habeas relief is not the

“harmless beyond a reasonable doubt” standard set out in Chapman v. California,

386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). The court reasoned that

the strict Chapman analysis is appropriate for direct review, but the standard for

collateral review should be less onerous to “[promote] the considerations underlying

habeas jurisdiction.” 507 U.S. at 623, 113 S. Ct. at 1714. The Court held the

appropriate question is whether the error “had substantial and injurious effect or

influence in determining the jury’s verdict.”13 515 U.S. at 623, 113 S. Ct. at 1714

(citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed.

1557 (1946)). The Eleventh Circuit has also held that even claims alleging a

13 Florida prescribes that in criminal appeals, an error is harmless, and thus a judgment shall not be

reversed, “unless the appellate court is of the opinion, after an examination of all the appeal papers,

that error was committed that injuriously affected the substantial rights of the appellant.” Fla. Stat.

§ 924.33 (2003).

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Confrontation Clause violation because of “trial errors are subject, on habeas

review, to an even less exacting standard than that employed on direct review.” De

Lisi, 402 F.3d at 1301 (citing California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 338, 136

L. Ed. 2d 266 (1996) (where a judge in a habeas proceeding is in grave doubt as to

harmlessness of error, petitioner must win)).“[E]rrors or defects that have little, if

any, likelihood of having changed the result of the trial” should not be set aside. 

Chapman, 386 U.S. at 22, 87 S. Ct. at 827.

The Sixth Amendment guarantees the right to effective cross examination,

which includes addressing “biases, prejudices, or ulterior motives.” Childers, 642

F.3d at 972 (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed.

2d 347 (1974)); see United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842, 98

L. Ed. 2d 951 (1988). The Confrontation Clause “guarantees only an opportunity for

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Kentucky v. Stincer, 482 U.S. 730, 739,

107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987) (internal quotations omitted) (emphasis

in original). So long as the defendant has the opportunity for effective crossexamination, the trial court “retains broad discretion” to limit its scope. See, e.g.,

Childers, 64 F.3d at 973.

The facts in Van Arsdall, supra, are instructive in reviewing the instant issue. 

In Van Arsdall, defense counsel wanted to impeach a witness by questioning him

about his agreement with the prosecution to testify about the defendant’s murder

case in exchange for dismissing a criminal charge against him. 475 U.S. at 676, 106

S. Ct. at 1433. The trial court heard testimony outside the presence of the jury. The

witness admitted he had made the agreement but denied that it affected his

testimony. Id., 106 S. Ct. at 1434. The court barred all cross-examination about the

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agreement based on Delaware Rule of Evidence 403. Id.14 On review, the Supreme

Court held:

. . .[T]he trial court prohibited all inquiry into the possibility that

Fleetwood would be biased as a result of the State's dismissal of his

pending public drunkenness charge. By thus cutting off all questioning

about an event that the State conceded had taken place and that a jury

might reasonably have found furnished the witness a motive for

favoring the prosecution in his testimony, the court's ruling violated

respondent's rights secured by the Confrontation Clause.

475 U.S. at 679, 106 S. Ct. at 1435 (emphasis in original). However, the Court

reiterated that trial judges retain wide latitude to “impose reasonable limits on such

cross-examination” based on concerns about harassment, prejudice, and confusion

of the issues, among other things. Id.

The record here shows the trial judge determined that the probative value of

the impeachment testimony–Mr. Coby’s favorable testimony may be biased by his

desire to have his homosexual lover in his dorm area–was outweighed by the unfair

prejudice that the jury would be “side tracked on that whole issue.” (See ex. E, p.

403). The First DCA’s summary affirmance is not objectively unreasonable. Mr.

Sheehan’s proffered testimony discussed in depth how a homosexual man becomes

another homosexual man’s “baby” or “sissy” in prison in a way that could have

detracted from the core issues beyond its probative value as evidence of bias (see

ex. E, pp. 374-80, 394-402). More importantly, the trial court did not limit all inquiry

into Mr. Coby’s motive for testifying. Mr. Sheehan was allowed to inquire into why

he wrote the letter to the prosecution, including whether it was because of a “close

friendship, [or] best friend[ ]. . ..” (Ex. E, p. 403). As respondent states, “Petitioner

was free to examine Coby’s interest in currying favor with the State to obtain its

14 Delaware Rule of Evidence 403 is virtually identical to Florida Rule of Evidence 403:

Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues or misleading

the jury, or by considerations of undue delay, waste of time or needless presentation

of cumulative evidence.

Del. R. Evid. 403.

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assistance in having his “close friend/brother” transferred and Petitioner did so at

trial.” (Doc. 24 (citing ex. E, pp. 406-09, 627-28)). He had the opportunity to present

the jury with information from which it could conclude whether the State “furnished

the witness a motive for favoring the prosecution in his testimony.” Van Arsdall, 475

U.S. at 679, 106 S. Ct. at 1435. In short, he had the opportunity for effective crossexamination. Mr. Hall has not shown he was deprived of a constitutional right. To

the extent the trial court committed error, the error was harmless.

The state court’s opinion did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hall is not entitled to

federal habeas relief on this claim, and the writ should not issue.

Ground Three Ineffective assistance of counsel for failing to suppress Mr. Hall’s

statements to police on the basis of an Edwards15 violation.

Mr. Hall’s third ground for relief alleges his counsel was ineffective for moving

to suppress statements he made to the police on the grounds of a Fourth

Amendment search and seizure violation instead of a Fifth Amendment Edwards

violation (doc. 1, p. 4; doc. 2, p. 3).16 During a police interrogation on July 17, 2001,

Mr. Hall made statements about possessing a copy of the victim’s house keys and

several items of her jewelry, which evidence was used at trial to prove his guilt. He

concludes this evidence would have been suppressed had defense counsel raised

an Edwards violation claim (id.). Without the evidence, “there is a great probability

15 Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

16 Mr. Hall also contends if his counsel had called Mr. Hall’s former attorney, Robert Allen, to the

suppression hearing, he would have refuted Detective Goss’s testimony that Mr. Allen gave Detective

Goss permission to talk to Mr. Hall (doc. 2, p. 3). This claim will be addressed with Ground Four.

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that the outcome of [his] trial would have been different” (id.). Mr. Hall raised this

issue as Ground I of his Rule 3.850 motion for post-conviction relief (ex. Q, p. 1).17

State Court Decision

The Rule 3.850 court granted an evidentiary hearing on this ground (ex. U),

and subsequently denied relief (ex. Y). Detective Goss testified he called attorney

Robert Allen before interrogating Mr. Hall on July 17, 2001. (Ex. Y, p. 456; ex. U, pp.

325-26). Detective Goss was aware that Mr. Allen represented Mr. Hall during a

previous interrogation. He testified that Mr. Allen “said it was okay with him and to

go ahead and talk to him.” (Id.). Detective Goss also testified his partner, Detective

Chamberlain, informed him that he had talked to Mr. Allen (ex. U, p. 63). Mr. Allen

testified he did not recall whether the detectives called him, but based on his

practice, he did not think he would have advised Mr. Hall to make a statement (ex.

Y, p. 456; ex. U, p. 12).18 Furthermore, he testified Mr. Hall was anxious to give a

statement on May 2, 2001, because he thought it would “dissuade the detectives

from charging him with murder.” (Ex. Y, p. 456; ex. U, p. 9). Detective Goss agreed

that Mr. Hall wanted to give a statement. In the course of preparing trial, defense

counsel contacted Mr. Allen, but in his judgment Mr. Allen “was not going to be able

to assist Mr. Hall at his suppression hearing.” (Ex. Y, p. 457; ex U, p. 89).

The Rule 3.850 court found Detectives Goss and Chamberlain to be credible

witnesses (ex. Y, p. 457). It found defense counsel was not deficient in his

performance, and his decision not to call Mr. Allen at the suppression hearing was

based on strategy and reasonable professional judgment. (Id.) (citing Strickland,

supra). It further found Mr. Hall failed to meet the prejudice prong of the Strickland

17 The statement of the issue is framed differently, but the arguments in his petition and postconviction motion are identical.

18 From the chronology of Mr. Allen’s testimony, the undersigned believes this statement referred to

the May 1-2, 2001, interrogations in particular, but his testimony regarding the July 17 interrogation

is not inconsistent with how he describes his general practice.

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test because he did not show than an argument for suppression based on Edwards

violation would have been successful (Id. at 458).

Federal Review of State Court Decision

The Rule 3.850 court analyzed Mr. Hall’s claim under the Strickland standard

and concluded he did not show his counsel was deficient or that he was prejudiced

by his counsel’s failure to move for suppression based on an Edwards violation. 

When a petitioner claims his counsel was ineffective forfailing to file a timely motion

to suppress, the petitioner must prove to following:

(1) that counsel’s representation fell below an objective standard of

reasonableness, (2) that the Fourth [or Fifth] Amendment claim is

meritorious, and (3) that there is a reasonable probability that the

verdict would have been different absent the excludable evidence.

Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006) (citing Kimmelman v.

Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2582-83, 91 L. Ed. 2d 305 (1986)). The

state court’s findings of fact are entitled to deference under the AEDPA. This court

reviews the decision to determine whether the state’s ultimate conclusion is

objectively reasonable. The record reveals that the trial court, Rule 3.850 court,

witnesses, and even counsel in this case confused the facts of three separate

interrogations. The undersigned concludes the state court’s ultimate decision is

correct. However, because the Rule 3.850 court’s decision does not explain why an

Edwards violation argument would have failed, the undersigned finds it useful to set

out the facts of each interrogation to clarify why habeas relief is not warranted.

Mr. Sheehan sought to suppress evidence and statements, arguing that Mr.

Hall’s May 2, 2001, arrest was an illegal seizure under the Fourth Amendment and

that he was not properly administered the Miranda19 warnings in violation of the Fifth

Amendment. The pre-trial suppression hearing focused on the admissibility of

statements and evidence gained from three interrogations conducted on May 1, May

19 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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2, and July 17, 2001. Although Mr. Sheehan sought broadly to exclude all statements

and evidence from May 1 to arraignment, the parties narrowed the issues to Mr.

Hall’s admissions as to drugs and prostitution on May 1,20 photographs taken on May

2, and statements about the victim’s house keys and jewelry on July 17 (see Ex. E,

pp. 88-94). The trial court found that the May 1 statements about drugs and

prostitutes were inadmissible (ex. E, p. 122-23). It found that the State was not

seeking to introduce any statements or evidence obtained on May 2 (id. at 123), but

even if it was, and assuming the May 2 arrest was illegal, the investigators’ purpose

for having Mr. Hall arrested (on a violation of probation) was to secure his presence

for future investigation, not to procure a statement (id. at 124). “So the purpose and

flagrancy of the [sic] what’s alleged to be the misconduct is not adequate to warrant

the suppression of the July 17th statement.” (Ex. E, p. 124).

The trial court offered an alternate conclusion, which the Rule 3.850 court

adopted in its decision:

At the pre-trial suppression hearing, the Court ruled that

Defendant’s statements on July 17, 2001, were voluntarily made, saying,

“He [Defendant] mentioned that he had spoken to a couple of attorneys,

Robert Allen was one. He mentioned another attorney, the name

escapes me at the moment, and he had plenty of time for reflection on

what he would say and certainly he had the opportunity whether or not

to make a statement if he chose to do so . . . . As it also relates to the

July 17th statement, the court finds that the statements were freely,

knowingly and voluntarily made and any question as it relates to that

the Court finds not to be problematic as it relates to admissibility.” See

Attachment 2, trial transcript excerpts, pp. 125-126 (emphasis added).

(Ex. Y, p. 455 n. 9) (emphasis in original).

An individual who is subject to custodial interrogation must be given the

prophylactic warnings prescribed in Miranda. 382 U.S. at 478-79, 86 S. Ct. at 1630. 

Statements made, whether inculpatory or exculpatory, without the benefit of these

20 Mr. Sheehan acknowledged any statements made May 1, 2001, about Mr. Hall’s visit to the victim’s

home and activities there were not suppressible (ex. E, p. 20). The hearing as a whole shows Mr. Hall

was not in custody at the time and voluntarily gave the statements.

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warnings are generally inadmissible unless the individual validly waives the rights

and responds to interrogation. North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755,

1757-59, 60 L. Ed. 2d 286 (1979). Mr. Hall was not given a Miranda warning on May

1, 2001, because he was there voluntarily and was not in custody. Detective Goss

testified he verbally advised Mr. Hall of his Miranda rights on July 17, 2011 (ex. U, pp.

314-15). The Rule 3.850 court found his testimony credible (ex. Y, p. 457). The

record shows Mr. Allen was present on May 2 to confer with Mr. Hall, and he may

have been present for the interrogation as well (ex. U, pp. 253-55, 257-58). He

testified that after “going back and forth” about giving a statement about the murder,

Mr. Allen advised Mr. Hall not to give a statement, and “left it with, okay, you know

the ramifications, you know your legal rights; you need to make a decision on what

you’re going to do.” (Ex. U, p. 255). The Rule 3.850 court found Mr. Allen and

Detective Goss’ evidentiary hearing testimony that Mr. Hall wanted to give a

statement credible (ex. Y, p. 456). The Rule 3.850 court did not directly address the

legality of the May 2 interrogation, but the record shows Mr. Hall was sufficiently

apprised of his rights, had the benefit of counsel, and his Fifth Amendment rights

were not violated. The habeas court can infer that the Rule 3.850 court found the

same as a necessary step to its conclusion.

The Edwards rule expands the Fifth Amendment right to counsel as explained

in Miranda. Mr. Sheehan did not argue that Mr. Hall’s July 17, 2001, statements

violated his Edwards rights. The Supreme Court held in Edwards that an accused

in custody, who invokes his right to speak to police only through counsel, is not

subject to further interrogation until counsel has been made available to him unless

he initiates communication with the police. See Smith v. Illinois, 469 U.S. 91, 94-95,

105 S. Ct. 490, 492, 83 L. Ed. 2d 488 (1984) (per curiam). 

The First DCA affirmed the Rule 3.850 court’s denial of Mr. Hall’s motion on

January 12, 2010 (ex. DD). At the time, the clearly established federal law regarding

invocation of counsel in custodial interrogation was that “when counsel is

requested, interrogation must cease, and officials may not reinitiate interrogation

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without counsel present, whether or not the accused has consulted with his

attorney.” Minnick v. Mississippi, 498 U.S. 146, 153, 111. S. Ct. 486, 491, 122 L. Ed.

2d 489 (1990) (broadening the Edwards protection). The First DCA’s affirmation of

the Rule 3.850 court’s decision that the trial court’s ruling that Mr. Hall’s July 17,

2001, statements were admissible was not correct according to Minnick. Under

Minnick, the Edwards protection applied indefinitely, so the court’s reasoning that

Mr. Hall had contacted an attorney and had time reflect before July 17 was irrelevant

because he invoked his right to counsel on May 2, 2001.21

However, a federal habeas court cannot issue a writ because the state court

decision was erroneous or incorrect; its application of law must also be

unreasonable. Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003) (quoting

Williams, 534 U.S. at 407, 120 S. Ct. at 1520). The court’s application of Edwards was

not unreasonable. In fact, one month after the First DCA opinion, the United States

Supreme Court held that the goals of the Miranda and Edwards protections are

satisfied “when a suspect who initially requested counsel is reinterrogated after a

break in custody that is of sufficient duration to dissipate its coercive effects.” 

Maryland v. Shatzer, __ U.S. __, 130 S. Ct. 1213, 1222, 175 L. Ed. 2d 1045 (2010). In

that case, Mr. Shatzer was interviewed in 2003 at the correctional institution where

he was serving a sentence on an unrelated crime. The investigator reviewed his

Miranda rights and he requested counsel. Id. at 1217. He was returned to the general

prison population, and the investigator closed the investigation. In 2006, a different

investigator received new evidence that led him to interview Shatzer in a

maintenance room at the prison. Id. at 1218. The investigator obtained a written

21 The Rule 3.850 court found credible Detective Chamberlain’s testimony that Mr. Allen gave him

permission to talk to Mr. Hall (ex. Y, p. 456). It also found Mr. Allen’s testimony credible that he would

not have advised Mr. Hall to make a statement (id.). Contrary to Mr. Hall’s contention, the statements

are not inconsistent because Mr. Allen testified he likely told Detective Chamberlain he did not

represent Mr. Hall for the murder charge (ex. U, p. 256). Although Mr. Hall contends Mr. Allen was

attempting to waive Mr. Hall’s Fifth Amendment rights for him, Mr. Allen was merely stating that Mr.

Allen could not tell Detective Chamberlain they could not speak to Mr. Allen about the murder because

he did not represent Mr. Hall for that purpose.

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waiver of Shatzer’s Miranda rights, and Shatzer made a potentially incriminating

statement. He did not request an attorney or refer to his prior request for counsel. 

Id. Five days later, the investigator returned, read the Miranda warning again,

obtained another waiver, and Shatzer took a polygraph test. Id. When he learned he

had failed, Shatzer made an inculpatory statement and requested an attorney. Id.

Shatzer moved to suppress his 2006 statements pursuant to Edwards. Id. The trial

court denied the motion because there had been a break in custody, but the

appellate court reversed the decision stating “the passage of time alone is

insufficient to [end] the protections afforded by Edwards.” Id. (quoting the Court

of Appeals of Maryland opinion). The United States Supreme Court reversed,

holding that a break in custody lasting greater than fourteen days between

interrogations did not mandate suppression of the 2006 statements. Id. at 1227

(limiting the holding in Minnick, supra). As Justice Scalia pointed out in Minnick,

after a suspect has spoken with an attorney:

He almost certainly also has a heightened awareness. . .of his right to

remain silent–since at the earliest opportunity “any lawyer worth his

salt will tell the suspect in no uncertain terms to make no statement to

the police under any circumstances.”

Minnick, 498 U.S. at 162, 111 S. Ct. at 496 (Scalia, J., dissenting) (quoting Watts v.

Indiana, 338 U.S. 49, 59, 69 S. Ct. 1347, 1358, 93 L. Ed. 1801 (1949)).

The majority opinion also noted that many lower courts had already adopted

this limitation on the Edwards protection. In fact, the Eleventh Circuit held in 1988

that “[a] break in custody after the invocation of fifth amendment rights ends the

need for the Edwards rule” and dissolves the claim. Dunkins v. Thigpen, 854 F.2d

394, 397 (11th Cir. 1998). Therefore, the state court’s decision was in accord with the

well-settled Eleventh Circuit precedent that, while it does not establish federal law

for habeas purposes, is highly relevant in determining its reasonableness. The court

foreshadowed the limitation set by the Supreme Court one month later that the

Edwards protection cannot be “eternal”. See Shatzer, 130 S. Ct. at 1222.

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Mr. Hall’s claim fails to meet either the deficient performance or prejudice

prong of the Strickland standard. Counsel is not deficient for failing to pursue

constitutional claims he reasonably believes to be of questionable merit. Jackson

v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995)). Mr. Hall has not shown his July 17,

2001, statements would have been suppressed had defense counsel made an

Edwards violation argument, and even if the statements were suppressed, Mr. Hall

has not shown that there is a reasonable probability the outcome of the trial would

have been different.22 In fact, the trial court’s ruling at the suppression hearing

suggests an Edwards argument would have failed. The state court’s ruling did not

result in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law, or was based on an unreasonable determination of

the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1), (2); Williams,

supra. Mr. Hall is not entitled to federal habeas relief on this claim, and the writ

should not issue.

Ground Four Ineffective assistance of counsel for failing to call witnesses to

the suppression hearing to contradict the lead detective’s

testimony.

Mr. Hall’s fourth ground for relief alleges his counsel was ineffective for failing

to call Mr. Allen, Detective Chamberlain, and Marcus Wright (doc. 1, p. 4). Mr. Hall

raised this argument as Ground II of his Rule 3.850 motion (ex. Q, p. 13). Mr. Hall

claims Mr. Allen would have testified that he did not give Detective Goss permission

to speak to Mr. Hall on July 17, 2001 (doc. 2, p. 4). Detective Chamberlain would

have impeached Detective Goss’s testimony that Mr. Hall was given Miranda

warnings before the July 17 questioning. Mr. Hall also contends Detective

Chamberlain offered contradictory testimony concerning whether the interview was

22 The Rule 3.850 did not discuss the May 3, 2001, search warrant and subsequent investigation, nor

was it required to. The undersigned nevertheless notes that the valid warrant led to discovery of the

same evidence that was the subject of Mr. Hall’s July 17 statements. (See, e.g., pp. 60, 91, 213-221).

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recorded (id.). Marcus Wright testified at the grand jury proceedings (id.). He also

spoke to investigators in August 2001, and Mr. Hall alleges Mr. Wright told the

detectives Mr. Hall had keys to the victim’s house before the crime. Mr. Hall claims

this “confirms [his] testimony that the keys had nothing to do with the crime.” (Id.). 

He asserts that had defense counsel called these people as witnesses at the

suppression hearing, the court “could” have suppressed his statements and

evidence and the outcome of the proceedings would have been different (id.).

State Court Decision

Mr. Hall’s claim as to Mr. Allen is exhausted and subject to review in federal

habeas court. Mr. Hall’s claims as to other potential witnesses are unexhausted.

The Rule 3.850 court held an evidentiary hearing on this ground at which Mr.

Allen testified (ex. U, p. 251). The court found that defense counsel approached Mr.

Allen to determine whether he would be a valuable witness for the suppression

hearing (ex. Y, p. 457). Mr. Allen testified that he was left with the impression that

he would not be helpful (id.). Defense counsel testified he investigated whether Mr.

Allen would “. . .be able to assist Mr. Hall at his suppression hearing.” In his

judgment, Mr. Allen was not helpful, and he testified he explained his reasons to Mr.

Hall (id.). The court concluded defense counsel’s decision not to call Mr. Allen was

strategic and not outside the realm of “reasonable professional judgment”. (Id.).

Federal Review of State Court Decision

The Rule 3.850 court found that defense counsel investigated Mr. Allen in

preparation for trial and the suppression hearing (ex. Y, p. 457). The record supports

this finding. The court’s application of the deficient performance prong of the

Strickland test is reasonable. A court should not second-guess counsel’s trial

strategy. Chandler, 218 F.3d at 1314; Waters, 46 F.3d at 1519.

. . .By “strategy,” we mean no more than this concept: trial counsel's

course of conduct, that was neither directly prohibited by law nor

directly required by law, for obtaining a favorable result for his client.

For example, calling some witnesses and not others is “the epitome of

a strategic decision.” [Waters, supra] at 1512 (en banc); see also id. at

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1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.1995)

(whether to pursue residual doubt or another defense is strategy left to

counsel, which court must not second-guess); Stanley v. Zant, 697 F.2d

955, 964 (11th Cir.1983) (stating that reliance on line of defense to

exclusion of others is matter of strategy).

Chandler, 218 F.3d at 1314 n.14. Mr. Hall states that Mr. Allen would have “denied

giving permission to the detectives” to talk to him. Mr. Allen’s evidentiary hearing

testimony does not support this proposition. He testified that he did not remember

what he said, and in similar situations he usually tries to explain that he no longer

represents the person. (See ex. U, p. 11). His opinion that he would not tell a

detective he could talk to Mr. Hall is in no way an unequivocal “denial” as Mr. Hall

asserts. In fact, if anything, his testimony would tend to show he was not

representing Mr. Hall for purposes of the murder investigation.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hall is not entitled to

federal habeas relief on this claim, and the writ should not issue.

Ground Seven Ineffective assistance of counsel for failing to file a motion in

limine to suppress evidence of blood and a knife.

Mr. Hall’s seventh ground for relief alleges his counsel was ineffective for

failing to file a motion to suppress evidence of blood found in the car Mr. Hall drove

the night of the murder (doc. 1, p.; doc. 2, pp. 6-7). This ground is restated from

Ground V of Mr. Hall’s motion for postconviction relief (ex. Q, p. 36). He also claims

his counsel should have impeached Detective Goss’ testimony that not enough

blood was found to test for D.N.A. with evidence of a police report stating there was

a large amount of blood and later evidence that the blood was tested and could not

be typed (ex. Q, p. 36). Mr. Hall contends the fact that the blood produced no D.N.A.

match showed the blood was irrelevant and should not have been introduced at trial

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(id.). Mr. Hall also alleges his counsel was ineffective for failing to file a motion to

suppress a witness’ testimony that he saw Mr. Hall with a knife three days before the

murder (id.).

In sum, Mr. Hall claims this evidence and testimony was irrelevant and

prejudiced his credibility (id. at 37). “Defense counsel’s errors, omissions, and

negligence allowed the state to unfairly manufacture a murder weapon and DNA in

the form of the unidentified blood and a knife that the defendant was seen with days

before the crime.” (Id.). Had his counsel filed a motion to suppress this evidence

and testimony, the outcome of the trial would have been different.

State Court Decision

The Rule 3.850 court concluded that “evidence of blood in the vehicle that

Defendant was driving, and whether Defendant was in possession of a knife, is

relevant. . ..” (Ex. Y, p. 466) (emphasis in original). Mr. Coby testified that Mr. Hall

told him he stabbed the victim with a knife and threw it over a bridge (id.; ex. E, pp.

321-22). The medical examiner testified the victim died as a result of being stabbed

by a knife with a sharp point and cutting edge (ex. Y, p. 466; ex. E, pp. 434-440). The

court determined the evidence was relevant to lend credibility to Mr. Coby’s

testimony and as “substantive circumstantial evidence” of Mr. Hall’s guilt because

the knife was never found (ex. Y, p. 466). Moreover, defense counsel attached the

credibility of the witness who testified he saw Mr. Hall with a knife by questioning

him about his crack cocaine use and correlating memory loss (id. at 467). The court

concluded Mr. Hall was not prejudiced by his counsel’s failure to file a motion in

limine to suppress references to the knife (id.).

The Rule 3.850 court also found that the State did not emphasize the blood in

the car as inculpatory evidence, and defense counsel elicited testimony that the

source of the blood could not be determined (id. at 60 and nn. 50-51). The court

further determined that Detective Goss’ testimony about the amount of blood was

not so inconsistent with the police report so as to affect his credibility (ex. Y, pp.

466-67). In fact, defense counsel elicited testimony in which Detective Goss “agreed

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that it is not uncommon for someone ‘to maybe cut themselves and bleed inside

their own vehicle.’” (Ex. Y, p. 467). The court concluded Mr. Hall was not prejudiced

by his counsel’s failure to file a motion in limine relating to blood in the car (id.).

Federal Review of State Court Decision

The Rule 3.850 court applied the Strickland standard in denying Mr. Hall’s

claim because he did not show his counsel’s conduct prejudiced him. Mr. Hall’s

Sixth Amendment claim is premised on a state evidentiary law argument: the

testimony and evidence was irrelevant and prejudicial (see ex. Q, p. 36-41).23 The

state court concluded the evidence was relevant and proper to show Mr. Hall’s guilt. 

It also found the evidence was not prejudicial because: 1) the State did not rely on

blood in the car, and defense counsel discredited the evidence; and 2) testimony

about the knife was admissible circumstantial evidence, and defense counsel

impeached the testimony with evidence of memory loss from drug use. Therefore,

the state court necessarily interpreted its own statutory rules of evidence. It is well

established that a state court’s interpretation of state law binds a federal habeas

court. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 604, 163 L. Ed. 2d 407

(2005); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385

(1991) (conclusion that evidence was incorrectly admitted pursuant to state law is

not province of federal habeas court).

The state court determination that Mr. Hall was not prejudiced by his counsel’s

actions is not objectively unreasonable. Mr. Hall has not shown that the verdict

would have been different absent this testimony and evidence. See Zakrzewski v.

McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006) (citing Kimmelman v. Morrison, 477

U.S. 365, 375, 106 S. Ct. 2574, 2582-83 (1986)). In fact, Mr. Hall’s habeas petition and

post-conviction motion concede as much by stating that had his counsel filed a

motion to suppress, the court “would have suppressed them [the evidence] or at

23 The undersigned notes that Mr. Hall cites exclusively state law to support his argument that the

evidence and testimony should have been excluded.

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least preserved the issue for appellate review.” (Doc. 2, p. 7; doc. 24, ex. Q, p. 375)

(emphasis added). Mr. Hall’s counsel did not file a motion to suppress the evidence

and testimony and had no reason to because they were relevant and admissible. 

Counsel is not deficient for failing to file a meritless motion. See, e.g., Freeman v.

Attorney General, Florida, 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be

deficient for failing to raise a meritless claim. . ..”); Brownlee v. Haley, 306 F.3d 1043,

1066-67 (11th Cir. 2002) (same); Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995);

Bolender v. Singletary, 16 F.3d 1547, 1473 (11th Cir. 1994); United States v. Winfield,

960 F.2d 970, 974 (11th Cir. 1992).

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hall is not entitled to

federal habeas relief on this claim, and the writ should not issue.

Ground Fifteen Ineffective assistance of retained counsel for giving police

permission to question Mr. Hall without counsel present.

Mr. Hall’s final ground for relief alleges his retained counsel, Mr. Allen, was

ineffective for giving investigators permission to question him on July 17, 2001 (doc.

1, p. 5; doc. 2, p. 18). Mr. Hall raised this in his amended motion for postconviction

motion (ex. W). He states:

The Defendant contends that Mr. Allen should have told the

police not to question his client until he was present. The Defendant

also contends that knowing the detectives intended to question the

Defendant, he should have made himself available for the in-custody

interview in order to protect his client’s constitutional rights. Mr. Allen

did neither, [and] allowed his client to be questioned without counsel

present, and thus allowed highly prejudicial statements to be used

against the Defendant at trial.

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(Doc. 2, p. 18; doc. 24, ex. W, p. 385).24 Mr. Hall alleges that but for Mr. Allen’s

deficient performance, “there is a great probability” the outcome of the trial would

have been different.” (Doc. 2, p. 19).

State Court Decision

The court held an evidentiary hearing on this ground (ex. U, pp. 259-60). Mr.

Allen testified he did not recall giving permission to a detective, but he did not think

he would have “because he was not representing Defendant beyond a consultation

on the murder charges.” (Ex. Y, p. 486, see ex. U, p. 11).25 The court found that Mr.

Allen made it clear to Mr. Hall that he was not taking on the murder case. It 

reasoned that because Mr. Allen’s services were limited to a consultation, he had no

duty to represent Mr. Hall at a subsequent interrogation (ex. Y, p. 486). The court

reiterated that Mr. Allen advised Mr. Hall on May 2, 2001, not to give a statement, but

he seemed eager to do so (id.). The court denied the claim, finding that Mr. Hall

made the “ultimate decision to speak to police when he could have remained

silent[,]” so Mr. Allen’s performance did not prejudice him (id. at 487).

Federal Review of State Court Decision

The Rule 3.850 court weighed the credibility of the testimony and found Mr.

Allen’s testimony to be credible. At the evidentiary hearing, Mr. Allen stated at the

outset that he did not have an independent recollection of most of the facts at issue,

24 Mr. Hall states in his response that “Detectives and the Court at the suppression hearing both say

Allen represented the Defendant.” (Doc. 29, p. 22) (emphasis in original). Mr. Hall offers no record

support for this proposition, nor does he distinguish between testimony and conclusions regarding

the May 2 interrogation versus the July 17 interrogation.

25 Mr. Allen testified:

I saw the amended complaint. I just don’t have any independent recollection

did I talk to anybody as the complaint said and told them it’s okay to talk to Mr. Hall. 

I really don’t have an independent recollection of that. And I have done a lot of

criminal cases, a lot of criminal contract, and I know that has been pretty much my

standard procedure to say, you know, somebody calls if I’m not representing them,

you know. In that case, if he had called and asked me if they could have went out to

see him, I would have said, hey, you know, my representation was when I went out and

talked to him; I don’t represent him on the murder case, so I’m out of it. You know,

you need to find out who his attorney is.

(Ex. U, p. 11).

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and his records were limited because his files were destroyed during Hurricane Ivan

(ex. U, p. 252). However, he testified that he received a call about a “hurry up

proposition” when Mr. Hall was detained for violation of out-of-state probation (ex.

U, p. 253). He accepted a $1,500 fee to meet Mr. Hall in custody (id.). Mr. Allen

stated:

They were investigating for a murder investigation, and he wanted

someone to come out and talk to him about it, and my fee was to come

out and advise him of his rights as far as remaining silent or whether

he was going to cooperate with law enforcement.

(Id.). Mr. Allen also told Mr. Hall he would “look at the VOP” for him to try to get a

bond hearing, but he expressed concern because it was an out-of-state violation (id.

at 255). Mr. Allen summarized that Mr. Hall retained him to come to the police

department and speak with him: “That was the extent of my representation of him

that if law enforcement called me some time after that, I would have advised them

that, you know, I don’t represent him in the murder case.” (Ex. U, p. 261).

Mr. Hall also testified that Mr. Allen told him not to give a statement when he

met him on May 2, 2001 (ex. U, p. 269). He further testified that after the July 17,

2001, interrogation, he called Mr. Allen and Mr. Allen stated he did not tell the

detectives they could talk to Mr. Hall (id.). Mr. Hall confirmed that Mr. Allen “filed a

bond hearing” (id.).26

The petitioner has the burden of demonstrating his counsel’s performance

was constitutionally defective. Blankenship v. McNeil, 542 F.3d 1253, 1274 (11th Cir.

2008).

Because of this burden, when the evidence is unclear or counsel

cannot recall specifics about his actions due to the passage of time and

26 On June 15, 2001, a motion to establish bond was filed in Escambia County Circuit Court in case

no. 2001 CF 1870. The bond hearing was to occur on August 2, 2001, but Mr. Hall was extradited to

Georgia on August 1. The docket reflects Mr. Hall was appointed a public defender at least for

purposes of the initial appearance in this case . See Circuit Court of Escambia County, Florida, case

no. 01-1870.

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faded memory, we presume counsel performed reasonably and

exercised reasonable professional judgment. 

Blankenship, 542 F.3d at 1274. Mr. Allen testified that although he did not remember

details of specific conversations, it would not have been his normal practice to give

the detectives permission to speak with Mr. Hall because he did not represent him

(ex. U, pp. 256-57). He also believed the $1,500 fee was commensurate with what he

would have charged for such a consultation (id. at 253). The Rule 3.850 court found

that Mr. Allen’s services were limited to a consultation, and this court defers to the

state court’s finding. See Dasher v. Attorney General, Florida, 574 F.3d 1310, 1313-

14 (11th Cir. 2009). Therefore, Mr. Allen did not represent Mr. Hall for the murder

investigation, so Mr. Hall cannot show Mr. Allen rendered ineffective assistance of

counsel with respect to his July statements.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hall is not entitled to

federal habeas relief on this claim, and the writ should not issue.

CONCLUSION

The undersigned has carefully reviewed the trial transcript, record on direct

appeal, motion for post-conviction relief pursuant to Rule 3.850, orders, and all

submissions in this proceeding. Mr. Hall’s Grounds Two, Four through Six, and

Eight through Fourteen are unexhausted and defaulted from federal habeas review.

Grounds One, Three, Seven, and Fifteen are without merit, and he is not entitled to

federal habeas relief.

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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.” 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(a), Rules Governing Section 2254 Cases. 

A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no 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, 120 S. Ct. 1595,

1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

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

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

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

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

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

challenging the conviction and sentence in State of Florida v. Steven Samuel Hall in

the Circuit Court of Escambia County, Florida, case no. 01-4264, be DENIED and the

clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

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At Pensacola, Florida, this 5th day of October, 2011.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any 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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