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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DONNIE L. WILLIAMS,

Petitioner,

vs. Case No.: 3:10cv238/LAC/EMT

KENNETH S. TUCKER,1

Respondent.

___________________________________/

ORDER and REPORT AND RECOMMENDATION

This cause is before the court on Petitioner’s petition for writ of habeas corpus filed under

28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant portions of the state court

record (docs. 26, 28). Petitioner filed a reply (doc. 30).

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

pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(b). After careful consideration of all issues

raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for

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

of the undersigned that the pleadings and attachments before the court show that Petitioner is not

entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

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

court record (see doc. 28).2

 Petitioner was indicted in the Circuit Court in and for Escambia County,

Florida, Case No. 2003-CF-001056, on one count of first degree premeditated or felony murder with

1

 Kenneth S. Tucker succeeded Edwin G. Buss as Secretary for the Department of Corrections. Secretary

Tucker is automatically substituted as Respondent. See Fed. R. Civ. P. 25(d)(1).

2

 Hereinafter all citations to the state court record refer to the exhibits submitted with Respondent’s answer (doc.

28). If a cited page has more than one page number, the court cites to the “Bates stamp” page number. 

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a firearm (Count 1), one count of burglary of an occupied dwelling with assault or battery and while

armed (Count 2), and one count of robbery with a firearm (Ex. A). The offense conduct occurred

on March 10, 2003 (id.). Following a jury trial on June 7 and 10, 2004, Petitioner was found guilty

of first degree felony murder with a firearm, burglary of an occupied dwelling with assault or battery

and while armed, and robbery with a firearm (Exs. B, C). On June 10, 2004, Petitioner was

adjudicated guilty and sentenced to life imprisonment without the possibility of parole on Count 1,

and concurrent terms of life imprisonment on Counts 2 and 3, to run concurrently with the life

sentence on Count 1, and with pre-sentence credit of 459 days (Ex. D). 

Petitioner, through counsel, appealed the judgment to the Florida First District Court of

Appeal (“First DCA”), Case No. 1D04-2995 (Ex. E). Petitioner’s counsel filed a brief, pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious arguments to

support the contention that reversible error occurred in the trial court (id.). The First DCA affirmed

the judgment per curiam without written opinion on May 4, 2006, with the mandate issuing May 31,

2006 (Ex. F). Williams v. State, 928 So. 2d 1225 (Fla. 1st DCA 2006) (Table). Petitioner did not

seek further review.

On May 17, 2006, Petitioner filed a motion to modify or reduce sentence, pursuant to Rule

3.800(c) of the Florida Rules of Criminal Procedure (Ex. G). The state circuit court denied the

motion in an order rendered July 6, 2006 (Ex. H). 

On July 14, 2006, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850

of the Florida Rules of Criminal Procedure (Ex. I). The state circuit court summarily denied the

motion (Ex. M). Petitioner appealed the decision to the First DCA, Case No. 1D07-2205 (Ex. P). 

The First DCA affirmed the decision per curiam without written opinion on October 24, 2007, with

the mandate issuing December 18, 2007 (Exs. U, X). Williams v. State, 969 So. 2d 377 (Fla. 1st

DCA 2007) (Table). Petitioner petitioned for review in the Florida Supreme Court, Case No. SC07-

2433 (Ex. Z). The Florida Supreme Court dismissed the petition for lack of jurisdiction on January

3, 2008 (Ex. AA). Williams v. State, 974 So. 2d 388 (Fla. 2008) (Table).

On May 14, 2008, Petitioner filed a petition for writ of habeas corpus in the First DCA, Case

No. 1D09-0505, alleging ineffective assistance of appellate counsel (Ex. BB). The First DCA

denied the petition on the merits on October 6, 2009, and denied Petitioner’s motion for rehearing

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on December 3, 2009 (Exs. EE, FF, GG). Williams v. State, 22 So. 2d 623 (Fla. 1st DCA 2009). 

Petitioner petitioned for review in the Florida Supreme Court, Case No. SC09-2081 (Ex. HH). The

Florida Supreme Court dismissed the petition for lack of jurisdiction on January 22, 2010 (Ex. II). 

Williams v. State, 28 So. 2d 46 (Fla. 2010) (Table).

On February 16, 2009, while the state habeas petition was pending, Petitioner filed a second

Rule 3.850 motion (Ex. JJ). The state circuit court summarily denied the motion (Ex. KK). 

Petitioner appealed the decision to the First DCA, Case No. 1D09-3624 (Ex. LL). The First DCA

affirmed the decision per curiam without written opinion on October 21, 2009, with the mandate

issuing December 18, 2009 (Exs. NN, QQ). Williams v. State, 22 So. 3d 545 (Fla. 1st DCA 2009)

(Table). Petitioner petitioned for review in the Florida Supreme Court, Case No. SC09-2079 (Ex.

RR). The Florida Supreme Court dismissed the petition for lack of jurisdiction on December 8, 2009

(Ex. SS). Williams v. State, 25 So. 3d 562 (Fla. 2009) (Table).

On February 22, 2010, Petitioner filed a motion to correct illegal sentence, pursuant to Rule

3.800(a) of the Florida Rules of Criminal Procedure (Ex. TT). The state circuit court summarily

denied the motion (Ex. UU). Petitioner appealed the decision to the First DCA, Case No. 1D10-

2118 (Ex. VV). The First DCA affirmed the decision per curiam without written opinion on June

11, 2010, with the mandate issuing July 7, 2010 (Exs. VV, WW). Williams v. State, 37 So. 3d 855

(Fla. 1st DCA 2010) (Table). 

Petitioner filed the instant federal habeas action on July 1, 2010 (doc. 1). Respondent

concedes the petition is timely (doc. 26 at 8).

II. STANDARD OF REVIEW

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

a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court”

upon a showing that his custody is in violation of the Constitution or laws of the United States. As

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

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

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

In relevant part, section 2254(d) now provides:

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(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.A. § 2254 (2002).

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 The appropriate test was

described by Justice O’Connor as follows:

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

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

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

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

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

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

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

determined by the Supreme Court of the United States.” Under the “contrary to”

clause, a federal habeas court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this court on a question of law or if the state

court decides a case differently than this Court has on a set of materially

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

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

legal principle from this Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

Id., 529 U.S. at 412–13 (O’Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S. Ct.

2113, 2119–20, 147 L. Ed. 2d 125 (2000). In employing this test, the Supreme Court has instructed

that on any issue raised in a federal habeas petition upon which there has been an adjudication on

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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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 render[ed] its decision.” Lockyer v. Andrade, 538 U.S.

63, 71–72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is “clearly established” if Supreme

Court precedent at the time “would have compelled a particular result in the case.” Neelley v.

Nagle, 138 F.3d 917, 923 (11th Cir. 1998), overruled on other grounds by Parker v. Head, 244 F.3d

813, 835 (11th Cir. 2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly

established Supreme Court case law, either because “‘the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases’ or because ‘the state court confronts a

set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and

nevertheless arrives at a result different from [Supreme Court] precedent.’” Lockyer, 538 U.S. at

73 (quoting Williams, 529 U.S. at 405–06). The Supreme Court has clarified that “[a]voiding these

pitfalls does not require citation to our cases—indeed, it does not even require awareness of our

cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002) (quoting Williams, 529

U.S. at 405–06). If the State court decision is found in either respect to be contrary, the district court

must independently consider the merits of the petitioner’s claim.

If on the other hand, the State court applied the correct Supreme Court precedent and the

facts of the Supreme Court cases and the petitioner’s case are not materially indistinguishable, the

court must go to the third step and determine whether the State court “unreasonably applied” the

governing legal principles set forth in the Supreme Court’s cases. The standard for an unreasonable

application inquiry is “whether the state court’s application of clearly established federal law was

objectively unreasonable.” Williams, 529 U.S. at 409. Whether a State court’s decision was an

unreasonable application of a legal principle must be assessed in light of the record the court had

before it. 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). An objectively unreasonable application of federal law

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occurs 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.” 

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). “In determining whether a state court’s

decision represents an unreasonable application of clearly established federal law, a federal court

conducting habeas review ‘may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.’” Gill v. Mecusker,

633 F.3d 1272, 1287 (11th Cir. 2011) (quoting Williams, 529 U.S. at 411) (citing Harrington v.

Richter, — U.S. —, 131 S. Ct. 770, 786–87 (Jan. 19, 2011)). The AEDPA’s “unreasonable

application” standard focuses on the state court’s ultimate conclusion, not the reasoning that led to

it. See Gill, supra at 1291 (citing Harrington, 131 S. Ct. at 786). Under § 2254(d), a habeas court

must determine what arguments or theories supported or could have supported the state court’s

decision, and then ask whether it is possible that fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court. 

See Harrington, 131 S. Ct. at 786; see also Gill, supra, at 1292 (the federal district court may rely

on grounds other than those articulated by the state court in determining that habeas relief was not

warranted, so long as the district court did not err in concluding that the state court’s rejection of the

petitioner’s claims was neither an unreasonable application of a Supreme Court holding nor an

unreasonable determination of the facts). 

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). The Supreme Court has clarified that: “a decision adjudicated on the merits

in a state court and based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El

v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). 

When performing its review under § 2254(d), the federal court must bear in mind that any

“determination of a factual issue made by a State court shall be presumed to be correct,” and the

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petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); see e.g. Miller-El, 537 U.S. at 340 (explaining that a federal

court can disagree with a state court’s factual finding and, when guided by AEDPA, “conclude the

decision was unreasonable or that the factual premise was incorrect by clear and convincing

evidence”); Jones v. Walker, 469 F.3d 1216, 1226–27 (11th Cir. 2007) (holding that § 2254(d)(2)’s

“unreasonable determination” standard “must be met by clear and convincing evidence,” and

concluding that that standard was satisfied where prisoner showed “clearly and convincingly” that

the state court’s decision “contain[ed] an ‘unreasonable determination’ of fact.”). The

“unreasonable determination of the facts” standard is only implicated to the extent that the validity

of the state court’s ultimate conclusion is premised on unreasonable fact finding. See Gill, 2010 WL

609844, at *18. A petitioner is not entitled to relief unless he demonstrates by clear and convincing

evidence that the record reflects an insufficient factual basis for affirming the state court’s decision. 

Id.

Only if the federal habeas court finds that the petitioner satisfied AEDPA, and § 2254(d),

does the court take the final step of conducting an independent review of the merits of the

petitioner’s claims. See Panetti v. Quarterman, 531 U.S. 930, 953, 127 S. Ct. 2842, 2858, 168 L.

Ed. 2d 662 (2007); Jones, 469 F.3d 1216 (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).

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

III. PETITIONER’S CLAIMS

A. Ground One: “Petitioner was denied his Sixth Amendment right under the U.S.

Constitution to the effective assistance of counsel based on counsel’s failure to object to the

State’s violation of the court’s suppression order.”

Petitioner asserts that prior to trial, defense counsel successfully pursued a motion to

suppress Petitioner’s statements to police in a taped interview (doc. 1 at 6). Petitioner states

Detective John Sanderson had consistently stated in depositions and other discovery material that

Petitioner did not make any statements other than the taped interview (id.). Petitioner contends

Detective Sanderson violated the court’s suppression order by testifying as follows:

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He [Petitioner] said they were there to get weed and they kicked the door. 

He admitted to entering the house . . . . He said he heard a girl screaming in the back

left side of the house . . . and he said the black male had conversations with the girl

and then the black male put the shotgun in the sink and turned the water on. He told

us that the black male had blood on him—on his face and hands—and he also went

on to tell us that he knew the girl was Jessica . . . . He said that the black male then

said, quote, she’s done, I fucked her up, end of quote. And he went on to tell us that

he and Billy did help put the safe in the car and then they went back to Ryan Holle’s

house . . . and at that location he told everyone there that quote, they fucked her up,

end of quote.

(id.). Petitioner contends defense counsel should have objected to this testimony on the ground that

it violated the court’s suppression order (id.). He argues he was prejudiced by counsel’s error,

because his defense was that the crimes were independent acts of co-defendants, which was

supported by eyewitness testimony that Petitioner was in a vehicle outside the house when the other

persons went into the house (id.). Petitioner contends had counsel objected to Sanderson’s

testimony, there is a reasonable probability the outcome of trial would have been different (id. at 7).

Respondent concedes Petitioner exhausted this claim (doc. 26 at 14). Respondent contends

Petitioner failed to demonstrate that the state court’s adjudication of the claim was based upon an

unreasonable determination of the facts, or was contrary to or an unreasonable application of clearly

established federal law (id. at 14–25).

1. Clearly Established Federal Law

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

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

show (1) deficient performance by counsel and (2) a reasonable probability that, but for counsel’s

deficient performance, the result of the proceeding would have been different. Id. at 687–88. If

Petitioner fails to make a showing as to either performance or prejudice, he is not entitled to relief. 

Id. at 697. 

“The petitioner’s burden to prove, by a preponderance of the evidence, that counsel’s

performance was unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.

2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)). The focus

of inquiry under the performance prong is “reasonableness under prevailing professional norms.” 

Strickland, 466 U.S. at 688–89. “Judicial scrutiny of counsel’s performance must be highly

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deferential,” and courts should make every effort to “eliminate the distorting effects of hindsight,

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

counsel’s perspective at the time.” Id. at 689. If the record is not complete regarding counsel’s

actions, “then the courts should presume ‘that what the particular defense lawyer did at trial—for

example, what witnesses he presented or did not present—were acts that some lawyer might do.” 

Jones, 436 F.3d at 1293 (citing Chandler, 218 F.3d at 1314–15 n.15). Furthermore, “[e]ven if many

reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on

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

have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Counsel’s performance is

deficient only if it is “outside the wide range of professional competence.” Jones, 436 F.3d at 1293

(citing Strickland, 466 U.S. at 690); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989)

(emphasizing that petitioner was “not entitled to error-free representation”). “[T]here are no

‘absolute rules’ dictating what reasonable performance is . . . .” Michael v. Crosby, 430 F.3d 1310,

1320 (11th Cir. 2005) (quoting Chandler, 218 F.3d at 1317). Indeed, “‘[a]bsolute rules would

interfere with counsel’s independence—which is also constitutionally protected—and would restrict

the wide latitude counsel have in making tactical decisions.’” Id. (quoting Putman v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001)).

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

prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). The Supreme

Court has cautioned that “‘[i]t is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding.’” Id. (quoting Strickland, 466 U.S. at 693). 

However, the Court has also clarified that a petitioner need not demonstrate it “more likely than not,

or prove by a preponderance of evidence,” that counsel’s errors affected the outcome. Strickland,

466 U.S. at 693–94. Instead, 

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

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.

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Id. at 694. Indeed, it would be “contrary to” the law clearly established in Strickland for a state

court to reject an ineffectiveness claim for failing to prove prejudice by a preponderance of the

evidence. Williams v. Taylor, 529 U.S. at 405–06.

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

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

Strickland, 466 U.S. at 694–95. “When a defendant challenges a conviction, the question is whether

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

doubt respecting guilt.” Id. at 695. Further, when the claimed error of counsel occurred at the guilt

stage of trial (instead of on appeal), Strickland prejudice is gauged against the outcome of the trial,

not on appeal. See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (citing Strickland, 466 U.S.

at 694–95). 

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

historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption

of correctness, while the performance and prejudice components are mixed questions of law and

fact. Strickland, 466 U.S. at 698; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). 

2. Federal Review of State Court Decision

Petitioner raised this claim as Ground IV(A) in his Rule 3.850 motion (Ex. I at 16–19). The

state circuit court identified the Strickland standard as the appropriate legal standard for reviewing

Petitioner’s claims (Ex. M at 59–60). The court denied the claim on the following grounds:

With regard to Defendant’s statements testified to by Sanderson and argued

by the State, Defendant acknowledges that the Court’s ruling on the motion to

suppress “was restricted to the video and not to what defendant told the investigator

before he was taped.”[FN 32]

Defendant has failed to demonstrate that the statements offered were in fact

offered from the suppressed videotape and not from what he told the investigators

before he was taped. Indeed, it is clear Defendant made statements prior to being

videotaped. Investigator Kilgore[FN 33] is heard on the tape in question saying,

“What I want to do is put everything that we just talked about on tape so there’s

no misunderstanding.”[FN 34] Kilgore states that the taped interview begins at

14:32 hours (2:32 p.m.)[FN 35] Later, Investigator Kilgore refers again to “you told

me something earlier before we turned the tape on . . .”[FN 36] Defendant refused

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to give the statement again, and subsequently said, “I told you pretty much what ya’ll

need to know to apprehend the person who did this, right?”[FN 37]

Sanderson’s trial testimony is brief, and refers specifically to an interview at

the Escambia County Sheriff’s Office which began at “approximately 11:50 in the

morning”[FN 38] after Defendant was given his Miranda warnings. As noted

previously, Defendant’s taped interview did not begin until approximately 2:30 p.m. 

Defendant has failed to demonstrate that the State or Sanderson exceeded the

limitations specified by the Court in its ruling on the motion to suppress, either

during testimony or closing argument, and therefore, counsel cannot be deemed

ineffective for failing to object.

FN 32: See Defendant’s motion, page 18. See also Attachment 5,

motion to suppress transcript, page 41. The Court ruled that

“assuming that the testimony is going to be that he was advised of his

Miranda warnings and he gave them a pre-video statement, I will

allow that testimony to come in.”

FN 33: Both Investigator Sanderson and Investigator Kilgore were

present during the Interview of Defendant. See Attachment 5, motion

to suppress transcript, page 10.

[FN 34–37: references to transcript of hearing on motion to suppress]

[FN 38: reference to trial transcript]

(Ex. M at 68–69).

Petitioner argued this issue on appeal of the circuit court’s decision (Ex. P). The First DCA

affirmed without written opinion (Ex. U).

The state court record demonstrates that prior to trial, defense counsel filed a motion to

suppress, alleging therein: “The statement made by the Defendant to Investigator Sanderson and

Investigator Kilgore on March 10, 2003, at the Escambia County Sheriff’s Office was not made after

a voluntary waiver of his constitutional rights. In addition, the Defendant was under the influence

of alcohol and/or drugs at the time of the statement and [the statement] should not be admissible in

court.” (Ex. XX). Defense counsel requested that the court suppress all statements Petitioner made

to law enforcement on March 10, 2003 (id.).

The trial court held an evidentiary hearing on the motion to suppress (Ex. YY). Prior to the

taking of testimony, counsel agreed to the trial court’s listening to a relevant portion of Petitioner’s

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videotaped statement (id. at 1–16). According to the transcript of the videotape, Petitioner told

Officer Kilgore and Investigator Sanderson he wished to have his lawyer present before he made a

recorded statement (id. at 4–15). However, it is also clear from the transcript that Petitioner had

already made an earlier, unrecorded statement to the investigators after waiving his Miranda rights

(id. at 7–14).

After viewing the videotape, the trial court heard testimony from Investigator Sanderson,

Officer Kilgore, and Petitioner (Ex. YY). Officer Kilgore testified that when he first came into

contact with Petitioner, he advised him of his Miranda warnings, and Petitioner stated he was willing

to talk to him without a lawyer present (id. at 18–19). On cross-examination, Officer Kilgore was

asked about a statement he made in a deposition when asked whether Petitioner had been

interviewed prior to the videotaped interview (id. at 20–21). Officer Kilgore answered, “No, sir. 

It would have been—the pre-interview would be on the videotape?” (id.). Officer Kilgore answered

that Investigator Sanderson may have notes regarding a pre-recorded interview (id.).

Investigator Sanderson testified he interviewed Petitioner prior to the videotaped interview

and prepared a report regarding the interview (Ex. YY at 25–29). Petitioner testified he had

consumed a considerable amount of alcohol and drugs prior to being questioned by the police, and

this affected his ability to understand what was going on (id. at 30–34).

At the conclusion of taking testimony, the court entertained argument from counsel (Ex. YY

at 35–38). The court then ruled that the statements on the videotape were subject to suppression (id.

at 38–39). The court asked defense counsel whether he was also attacking Petitioner’s pre-recorded

statement, and defense counsel responded:

Judge, the—whatever they called the—there’s some conflicting statements, Judge,

that were made by the officers. And I recognize that in Mr. Sanderson’s report that’s

there, and I don’t—that was not recorded. It is mentioned in his report. And I don’t

believe and have not seen any written waiver of Miranda rights on that statement. 

I don’t know if the State has any. I’m assuming they don’t. But I assume that

Investigator Sanderson would testify that he did do that, Judge. Although during the

course of his deposition he indicated there was no other statement other than what

was contained on the video.

(id. at 112–14).

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The prosecutor asked for clarification as to whether the court’s ruling was restricted to the

videotaped statement or included Petitioner’s statements to police before the videotape was turned

on (Ex. YY at 114). The trial court ruled: “Assuming—and I think I got that impression, assuming

that the testimony is going to be that he was advised of his Miranda warnings and he gave them a

pre-video statement, I will allow that testimony to come in.” (id.). The record reflects the prosecutor

then provided defense counsel a copy of a rights waiver form signed by Petitioner and the officers

(id.).

At trial, Investigator John Sanderson testified that four individuals were arrested and charged

with the murder of the victim, Jessica Snyder (Ex. B at 134–35). Investigator Sanderson testified

that he interviewed Petitioner as part of his investigation:

Q [by the prosecutor, Mr. Rimmer]. Now as part of your investigation, did you

interview the defendant Donnie Williams?

A. Yes, sir.

Q. Where did that take place?

A. At the Escambia County Sheriff’s Office.

Q. And was that on the morning of March the 10th?

A. Yes, it was.

Q. Approximately what time?

A. Approximately 11:50 in the morning.

Q. What, if anything, did Donnie Williams tell you?

A. We started talking to him. He said that there had been a get together the previous

evening, talking about Ryan Holle’s house.

MR. HILL [defense counsel]: May we approach the bench, please?

THE COURT: All right. Counsel approach with the court reporter.

(At the bench:

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MR. HILL: Judge, I’m not certain if I’m really going to object. I understand

it is going to come in but I don’t know that, there’s been no advisement of his

rights or anything else at this point in time.

MR. RIMMER: I’ll go through that if you want me to.

MR. HILL: I would just prefer that for the record.

THE COURT: Lay the predicate so it is clean.

MR. RIMMER: I’ll do that.

(Bench conference concluded.)

Q [by Mr. Rimmer]. Officer Sanderson, let me ask you this, let’s back up a little bit. 

Before you questioned Donnie Williams, did you advise him of what are known as

his Miranda warnings?

A. Yes, sir, we did.

Q. Did he agree to talk to you without an attorney present?

A. Yes, he did.

Q. And did he, in fact, talk to you?

A. Yes.

Q. All right. You started telling us about that conversation. I believed you indicated

there had been a get together the night before?

A. Yes. They said they—he had been at a get together the previous evening at Ryan

Holle’s house.

Q. Let me ask you this. Did you ask him if he had been anywhere on the morning

of March the 10th?

A. Yes, we did.

Q. What did he say?

A. He said he had not been anywhere the night before or that morning, he said he

had been asleep.

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Q. Did he at some point change his story?

A. Yes, he did.

Q. Then what did he say?

A. He started out by saying we went to get some weed. He said that they left the

house that morning at, with two black males and Billy Allen. It was him, two black

males and Billy Allen.

Q. Now is this house on Pelham Road?

A. Pelham Road and they went to the house on Wisteria. He said that the two black

males went up and kicked the front door of the house and he heard screaming and

then they came out saying she’s dead, they handled it. And he said they also had the

safe with them at that time when they were coming out.

Q. Did he say he went inside the house?

A. At that particular time he did not.

Q. Did he eventually say he went inside the house?

A. Yes, he did.

Q. Now did he indicate whether or not he heard the screaming while he was inside

the house?

A. Initially he didn’t but as we continued talking to him, he changed his statement

a little bit more.

Q. Okay. What did he say about that?

A. He said they were there to get some weed and they kicked the door. He admitted

to entering the house after the black males kicked the door. He said he heard a girl

screaming in the back left side of the house.

Q. This is while he’s inside the house?

A. Right.

Q. Okay.

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A. And had, and he said the black male had conversations with the girl and then the

black male put the shotgun in the sink and turned the water on. He told us that the

black male had blood on him and on his face and hands and he also went on to tell

us that he knew the girl as Jessica.

Q. Williams knew her?

A. Yes. He said the black male then said quote she’s done, I fucked her up, end of

quote. And he went on to tell us that he and Billy did help put the safe in the car and

then they went back to Ryan Holle’s house on Pelham Road and at that location he

told everybody there that quote, they fucked her up, end of quote.

(Ex. B at 137–41).

The record supports the state court’s determination that the trial court granted the motion to

suppress only as to Petitioner’s statements during the videotaped interview. The record also

supports the state court’s determination that Investigator Sanderson’s testimony regarding

Petitioner’s statements concerned Petitioner’s statements to investigators prior to the videotaped

interview, not his statements during the suppressed videotaped interview. Petitioner thus failed to

show that defense counsel had a meritorious basis to object to Investigator Sanderson’s testimony

on the ground that it violated the suppression order. Counsel’s performance may not be deemed

deficient for failing to make a nonmeritorious argument. See Bolender v. Singletary, 16 F.3d 1547,

1573 (11th Cir. 1994) (“It is axiomatic that the failure to raise non-meritorious issues does not

constitute ineffective assistance.”). Moreover, Petitioner failed to show a reasonable probability that

an objection by counsel on the ground that Sanderson’s testimony violated the suppression order

would have been properly sustained by the trial court. Therefore, Petitioner failed to satisfy either

prong of the Strickland standard.

Petitioner failed to demonstrate that the state court’s adjudication of his claim was based

upon an unreasonable determination of the facts, or contrary to or an unreasonable application of

Strickland. Therefore, he is not entitled to habeas relief on Ground One.

 B. Ground Two: “Petitioner was denied his Sixth Amendment right under the U.S.

Constitution to the effective assistance of counsel based on counsel conceding Petitioner’s

guilt in front of the jury during trial.”

Petitioner asserts that during opening statements, defense counsel told the jury, “[Petitioner]

and the others went over there to steal a safe. . . . He was committing a burglary . . . . If you feel

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based on the evidence he’s guilty of burglary, which I’ve already told you that, yes.” (doc. 1 at 7). 

Petitioner states the prosecutor requested a bench conference to inquire as to whether Petitioner

consented to defense counsel’s concession (id.). Petitioner states the trial court asked him whether

defense counsel had discussed this concession with him and whether he agreed to the concession

to the burglary offense (id.). Petitioner states he advised the trial court that counsel had discussed

this with him (id.). Petitioner contends although counsel discussed with him counsel’s desire to

concede to the burglary offense, counsel failed to advise him that doing so essentially constituted

a concession to felony murder (id.). Petitioner states it was undisputed at trial that the victim’s death

was caused by the actions of the co-defendants; therefore, when counsel conceded Petitioner’s

participation in the burglary, he also “de facto” conceded guilt to felony murder (id.). Petitioner

contends counsel’s failure to advise him of the effect of the concession rendered his consent to

concede guilt to burglary unknowing and involuntary (id.). He contends there is a reasonable

probability the result of his trial would have been different had counsel advised him that the

concession of guilt to burglary essentially constituted a concession to felony murder, because if

counsel had properly advised him, he would not have agreed to the concession of guilt to burglary

(id.).

Respondent concedes Petitioner exhausted this claim (doc. 26 at 27). Respondent contends

Petitioner failed to demonstrate that the state court’s adjudication of the claim was based upon an

unreasonable determination of the facts, or was contrary to or an unreasonable application of clearly

established federal law (id. at 27–30).

1. Clearly Established Federal Law

The Strickland standard, set forth supra, governs this claim.

2. Federal Review of State Court Decision

Petitioner raised this claim as Ground III in his Rule 3.850 motion (Ex. I at 12–16). The state

circuit court denied the claim on the following grounds:

In Defendant’s third claim, Defendant alleges that he was denied effective

assistance of counsel because counsel conceded he was guilty of burglary in opening

arguments. This claim is refuted by the record. Having heard counsel’s opening

argument, which included a concession that Defendant was guilty of burglary, the

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Court inquired personally of Defendant whether he agreed with the tactic. The

following exchange occurred:

State: I want to make sure that Donnie Williams agreed with

the strategy of conceding guilty as to burglary.

Counsel: I talked it over with him, Judge. He’s well aware

of that.

State: I think we should inquire of him.

. . . .

(Defendant sworn)

The Court: Your attorney in his opening statement

essentially admitted that you participated in the burglary, do you

understand that?

Defendant: Yes, ma’am.

The Court: Did he talk to you about that strategy?

Defendant: Yes, ma’am.

The Court: And is it with your consent that he went ahead

and admitted that particular charge?

Defendant: Yes, ma’am.[FN 30]

As noted previously, Defendant also acknowledged at the close of the

evidence that he was “satisfied with the defense that Mr. Hill has put on in this

case.”[FN 31]

Despite Defendant’s assertion to the contrary, defense counsel’s failure to

obtain a defendant’s express consent to a strategy of conceding guilt does not

automatically render counsel’s performance deficient. See Florida v. Nixon, 543

U.S. 175, 125 S. Ct. 551 (2004). Furthermore, although Defendant now attempts to

disavow his sworn statements as involuntary, arguing that he was “coerced and

misled” into admitting his guilt to burglary, the Court is not convinced. “An

appellant is not entitled to go behind sworn representations made to the court in a

postconviction proceeding [ ].” Davis v. State, 938 So. 2d 555, 557 (Fla. 1st DCA

2006). Defendant is not entitled to relief on the basis of his third claim.

[FN 30: reference to trial transcript]

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[FN 31: reference to trial transcript]

(Ex. M at 67–68).

Petitioner argued this issue on appeal of the circuit court’s decision (Ex. P). The First DCA

affirmed without written opinion (Ex. U).

Conceding a client’s guilt can be a reasonable trial strategy. See Florida v. Nixon, 543 U.S.

175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). When counsel’s strategy, given the evidence bearing

on the defendant’s guilt, is in his client’s best interest and when the Strickland standard is satisfied,

no tenable claim of ineffective assistance remains even where a defendant did not expressly consent

to the strategy. Id., 543 U.S. at 192.

The following evidence was adduced at Petitioner’s trial. The victim’s 13-year-old sister

testified that Petitioner (who is white) was one of the three men (two of whom were black and one

was white) who came to her house at 8:20 a.m. on March 10, 2003, and briefly spoke with her sister,

Jessica (Ex. B at 89–91). She testified she recognized Petitioner as “Donnie Williams” (id. at

89–90). She testified the men left on foot, and she left for school ten (10) minutes later (id. at 91). 

Mr. Russell Scarritt, a friend of the Snyders, testified he drove by the Snyders’s house that

morning and observed two black men standing at the front door talking to Jessica Snyder (Ex. B at

93–95). Mr. Scarritt testified he did not see a white man with the two black men (id.). 

Mr. John Shenberger, the Snyders’s neighbor, testified that at 8:30 a.m. that morning, he

observed two black men in the Snyders’s front yard (Ex. B at 111–17). He testified that

approximately ninety (90) seconds later, he observed the two black men carrying a large black object

out of the house (id.). He observed the two black men and two white men (one of whom he

recognized as co-defendant Billy Allen) place the object into a car driven by Billy Allen (id.). He

testified he telephoned Christine Snyder and told her about the men (id.). 

Christine Snyder testified she lived with her husband and two daughters, one of whom was

Jessica, in their home (Ex. B at 95–107). She testified she worked with Billy Allen and sometimes

gave him marijuana (id.). Ms. Snyder testified Billy Allen knew that she kept marijuana in a safe

in the home (id.). She testified the safe was in the same bedroom with a gun rack and three guns,

one of which was a shotgun (id.). Ms. Snyder testified that Petitioner worked with Jessica (id.). She

testified she went home after Mr. Shenberger called her (id.). She entered the kitchen and saw water

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running in the sink and the shotgun laying across the sink (id.). She walked towards Jessica’s room

and saw Jessica’s body on the floor (id.). Ms. Snyder testified she later discovered the safe was

missing from the bedroom (id.). 

As previously noted, Investigator Sanderson testified Petitioner told him he and the codefendants went to the Snyders’s home to “get some weed,” and after two co-defendants kicked the

door open, he and the two co-defendants entered the home and stole a safe (Ex. B at 140–41). 

 Under Florida law, the felony murder rule and the law of principals combine to make a felon

liable for the acts of a co-felon. Bryant v. State, 412 So.2d 347, 350 (Fla. 1982). Nevertheless,

under the independent act doctrine, a defendant whose co-felon exceeds the scope of, and acts

independently of, the original common plan is exonerated from any punishment imposed as a result

of the co-felon’s independent act. Ray v. State, 755 So. 2d 604, 609 (Fla. 2000); Beachy v. State,

837 So. 2d 1152, 1152–53 (Fla. 1st DCA 2003); Thomas v. State, 787 So. 2d 27, 29 (Fla. 2d DCA

2001). 

The theory of defense presented by defense counsel was that even though Petitioner and the

co-defendants went to the Snyders’s home with the intention of breaking in and stealing a safe, the

co-defendants exceeded the scope of the burglary plan and acted independently of that plan by

killing Jessica Snyder. Defense counsel presented a cogent defense during his opening statement,

vigorous cross-examination of witnesses, and closing argument. Additionally, counsel requested

a jury instruction on the independent act doctrine, and the trial court gave the instruction.4

 Having

4

 The court instructed the jury as follows, in relevant part:

If you find the crimes alleged were committed, an issue in this case is whether the crimes of

murder and/or robbery were the independent acts of a person other than the defendant. An

independent act occurs when a person other than the defendant commits or attempts to commit a crime

which the defendant did not intend to occur and in which the defendant did not participate and which

was outside of and not a reasonably foreseeable consequence of the common design or unlawful act

contemplated by the defendant.

If you find the defendant was not present when the crimes of murder and/or robbery occured,

that does not in and of itself establish that the murder and/or robbery was an independent act of

another. If you find that the murder and/or robbery was an independent act of Charles Miller, then

you should find Donnie Lee Williams not guilty of the crimes of murder and/or robbery.

(Ex. B at 198)

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presented an “independent act” defense to the robbery and murder charges, counsel’s conceding

Petitioner’s guilt to burglary (a strategy to which Petitioner admittedly consented) did not constitute

a concession to felony murder. Therefore, counsel did not misadvise Petitioner regarding the effect

of the concession of guilt to burglary. 

Further, admitting guilt to the burglary was a reasonable trial strategy in light of the evidence

presented at trial. The State was still required to present competent, admissible evidence

establishing the essential elements of felony murder and robbery beyond a reasonable doubt. By

conceding that Petitioner committed at most the crime of burglary, defense counsel was able to

achieve credibility with the jury, highlight weaknesses in the State’s evidence regarding the felony

murder and robbery offenses, and attempt to persuade the jury to find Petitioner not guilty as to the

most serious offense, which was a capital felony. In light of the vigorous defense mounted by

Petitioner’s counsel, it would be unreasonable to conclude that the statements complained of by

Petitioner or the defense strategy in general rose to the level of deficient performance by defense

counsel. See McNeal v. Wainwright, 722 F.2d 674, 675–76 (11th Cir. 1984) (holding that defense

counsel’s argument in first-degree murder prosecution without defendant’s consent, which suggested

that defendant was “at best” guilty of manslaughter, was made as a proper tactical decision, not

amounting to unconstitutional representation); see also, e.g., Vilme v. McNeil, No. 08-23138-CIV,

2010 WL 430762, at *21–23 (S.D. Fla. Feb. 5, 2010) (holding that counsel was not ineffective by

conceding guilt to underlying felony of felony murder charge (attempted robbery) in opening

statement and arguing petitioner should not be found guilty of murder because murder was

independent act of co-defendant, where undisputed evidence showed petitioner was present at scene

of armed robbery and participated in attempted armed robbery).

In the absence of a showing of deficient performance by counsel, Petitioner failed to satisfy

the Strickland standard. Therefore, the state court’s adjudication of this claim was not an

unreasonable application of Strickland.

C. Ground Three: “Petitioner was denied his Sixth Amendment right under the U.S.

Constitution to the effective assistance of counsel based on counsel’s misadvice, threats, and

coercion concerning Petitioner’s desire to testify at trial.”

Petitioner asserts he informed defense counsel he wished to testify at trial (doc. 1 at 8). He

states defense counsel told him his testimony was unnecessary, and if he testified, counsel would

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withdraw from representation (id.). Petitioner states he informed the trial court he was not going

to testify, but it was based upon his belief that counsel would be permitted to withdraw, and

Petitioner would be forced to represent himself throughout the rest of the trial, which he was not

capable of doing (id.). Petitioner states he was prejudiced by counsel’s threat, because he otherwise

would have testified, and the outcome of trial would have been different (id.).

Respondent concedes Petitioner exhausted this claim (doc. 26 at 31). Respondent contends

Petitioner failed to demonstrate that the state court’s adjudication of the claim was based upon an

unreasonable determination of the facts, or was contrary to or an unreasonable application of clearly

established federal law (id. at 31–34).

1. Clearly Established Federal Law

The Strickland standard, set forth supra, governs this claim.

2. Federal Review of State Court Decision

Petitioner raised this claim as Ground VI in his Rule 3.850 motion (Ex. I at 24–27). The

state circuit court denied the claim on the following grounds:

In Defendant’s sixth claim, Defendant alleges that counsel was ineffective

“due to counsel’s misadvice, threats and coercion as to him testifying in his own

behalf.” Specifically, Defendant alleges that counsel told him that if he testified, he

would withdraw and Defendant would have to represent himself. Defendant also

says that counsel never informed him as to the option of testifying.

Defendant’s claims are refuted by the record. The record reflects that both

counsel and the Court discussed with Defendant his right to testify on his own behalf. 

After the close of the State’s case, the following exchange occurred:

Mr. Hill: Your Honor, I just need a few moments to talk to

my client.

The Court: Okay.

Mr. Hill: Can I just do that here?

The Court: Yes, just don’t forget you want to hold that little

mike down.

(Off record discussion between Mr. Hill and Defendant)

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Mr. Hill: Your Honor, I’ve spoken with my client and he is

not going to testify.

The Court: Okay.

Mr. Hill: So we’re not going to be presenting any evidence.

The Court: Okay. Mr. Williams, you’re already under oath. 

Let me have you stand up. You’ve had an opportunity today and

probably on times before to talk with your attorney about the fact that

it is up to the State to prove the case against you beyond a reasonable

doubt, do you understand that?

Defendant: Yes, ma’am.

The Court: And you have an absolute right to remain silent,

do you understand that?

Defendant: Yes, ma’am.

The Court: You don’t have to put on any evidence.

Defendant: I understand that.

The Court: And essentially if the State doesn’t meet that

burden, they don’t meet the burden, you understand that?

Defendant: Yes, ma’am.

The Court: And there are pros and cons, good things and bad

things about testifying and not testifying and have you talked to him

about those things?

Defendant: Yes, ma’am.

The Court: And you understand that if you choose to testify

that the jury, you would be subject to cross-examination by Mr.

Rimmer?

Defendant: Yes, ma’am.

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The Court: And, of course, I’m going to instruct the jury that

they are not to consider the fact that you did not testify, do you

understand that?

Defendant: Yes, ma’am.

The Court: And after consulting with Mr. Hill, is it your

decision that you want to remain silent and not testify?

Defendant: Yes, ma’am.

The Court: Are you satisfied with the defense that Mr. Hill

has put on this case [sic]?

Defendant: Yes, ma’am.[FN 46]

As previously noted, “An appellate is not entitled to go behind sworn

representations made to the court in a postconviction proceeding [ ].” Davis, 938 So.

2d at 557. The record clearly demonstrates that Defendant made an informed choice

regarding his right to testify, and was given ample opportunity to address any

concerns that he had with the Court. Accordingly, he is not entitled to relief on the

basis of his sixth claim.

[FN 46, reference to trial transcript]

(Ex. M at 72–73).

Petitioner argued this issue on appeal of the circuit court’s decision (Ex. P). The First DCA

affirmed without written opinion (Ex. U).

“Solemn declarations in open court carry a strong presumption of verity.” Blackledge v.

Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977) (citations omitted). In the

instant case, Petitioner stated under oath that he decided, after consulting with counsel, that he

wanted to remain silent and not testify, and he was satisfied with the defense presented by defense

counsel (Ex. B at 151–53). This sworn statement undermines Petitioner’s after-the-fact assertion

that he wanted to testify in his own defense. Further, the fact that Petitioner expressed no concerns

about his decision not to testify or Mr. Hill’s presentation of his defense, when the trial court gave

him an opportunity to so, undermines his present allegations that Mr. Hill threatened to quit if he

testified. In light of the record, the state court reasonably concluded Petitioner failed to show that

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his decision not to testify was the product of ineffective assistance of counsel. Therefore, Petitioner

is not entitled to relief on Ground Three. 

D. Ground Four: “Petitioner was denied his Sixth Amendment right under the U.S.

Constitution to the effective assistance of counsel based on counsel’s inadequate pre-trial

investigation and preparation.”

Petitioner contends defense counsel failed to adequately prepare himself for crossexamination of two State witnesses, Mr. Hatten (a jailhouse informant) and Christine Snyder (the

victim’s mother) (doc. 1 at 8–10). With regard to Mr. Hatten, Petitioner states Hatten claimed that

Petitioner discussed the case with him when they were together on the recreation yard of the county

jail (id. at 9). Petitioner asserts Hatten testified Petitioner told him he (Petitioner) and the codefendants went to the Snyders’s home to get drugs and money, and the murder was not supposed

to happen (id.). Petitioner asserts he never spoke to Hatten about the case (id.). Further, he and

Hatten never had an opportunity to discuss the case, because they were housed on entirely separate

floors at the jail and never went to the recreation yard together (id.). Petitioner contends defense

counsel should have investigated the housing logs and recreation logs at the jail, which would have

shown (1) he and Hatten were not housed together and did not go to the recreation yard together,

and (2) Hatten was housed with and went to the recreation yard with Petitioner’s co-defendants,

which was the source of Hatten’s information (id.). Petitioner concedes Hatten’s testimony was

somewhat beneficial, because it corroborated Petitioner’s position that he did not intend the death

of the victim (id.). However, he contends the testimony was also damaging to the defense, because

it incorrectly informed the jury that Petitioner went to the victim’s house with the intent to get

money and drugs, which erroneously implied he intended to participate in a burglary and/or robbery

(id.).

With regard to Ms. Snyder, Petitioner asserts she testified that Petitioner and the victim

worked together at Food World (doc. 1 at 9). Petitioner asserts he never worked at Food World,

although he admits he knew the victim very briefly when they were twelve (12) years old (six years

prior to the offenses) (id.). Petitioner asserts the State used the testimony that he worked at Food

World to suggest he knew the vehicle that the victim drove (id.). The State then argued Petitioner

knew the victim was at home and knew there was a possibility she could be injured during the

burglary or robbery (id.). Petitioner contends defense counsel should have investigated the fact that

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he did not work with the victim or know the type of vehicle she drove at the time of the offense (id.). 

He contends had counsel investigated the jail logs and Food World employment records and used

the information to impeach the testimony of Mr. Hatten and Ms. Snyder, there is a reasonable

probability the result of trial would have been different (id. at 9–10).

Respondent concedes Petitioner exhausted this claim (doc. 26 at 34). Respondent contends

Petitioner failed to demonstrate that the state court’s adjudication of the claim was based upon an

unreasonable determination of the facts, or was contrary to or an unreasonable application of clearly

established federal law (id. at 34–39).

1. Clearly Established Federal Law

The Strickland standard, set forth supra, governs this claim.

2. Federal Review of State Court Decision

Petitioner raised this claim as Ground VII in his Rule 3.850 motion (Ex. I at 27–30). The

state circuit court denied the claim on the following grounds:

In his seventh claim, Defendant alleges that counsel was ineffective for

failing to properly and adequately investigate and prepare for trial in two significant

ways. First, Defendant alleges that he asked trial counsel to procure jail records to

prove that Defendant never had the opportunity to make a statement to witness

Hatten. Secondly, Defendant also states that he told counsel that he never worked

with Jessica Snyder, the murder victim, at Food World, as testified to by her mother,

Christine Snyder, and that he requested that counsel speak with the store manager

and personnel manager and call them to testify to that fact. In his related eighth

claim, Defendant alleges that counsel was ineffective for failing to properly

cross-examine Hatten and Christine Snyder in regard to these issues.[FN 47]

Although Defendant asserts that jail records were available which would

support his claim that he never made a statement to Hatten, Defendant has failed to

state with specificity what records he believes should have been produced, nor has

he produced them himself in support of his claims. Defendant has further failed to

demonstrate prejudice, in that he has failed to demonstrate that a different result

would have been obtained at his trial, even if the purported jail records had been

produced and Hatten cross-examined as to the truthfulness of his testimony. In

essence, Hatten testified that Defendant told him he went to the victim’s home to get

drugs and money, and that the murder was not supposed to happen.[FN 48] Such

testimony is largely consistent with Investigator Sanderson’s testimony that

Defendant admitted to him that he went to the victim’s home to get drugs and that

he entered the home after the co-defendants kicked in the door, but had nothing to

do with the actual murder.[FN 49] Additionally, counsel used Hatten’s testimony

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to bolster the defense of independent act, in that Hatten was able to testify to

Defendant’s statements about his lack of intent to harm the victim and his lack of

participation in her killing without subjecting Defendant to cross-examination.[FN

50] In response to counsel’s questioning, Hatten said that Defendant had nothing to

do with the victim’s death and that she was not supposed to be at the home at the

time of the incident.[FN 51] Defendant has failed to show a reasonable probability

that the outcome would have been different but for counsel’s alleged deficiency

regarding Hatten, and he is not entitled to relief.

A similar analysis applies to the allegedly deficient treatment at trial of

Christine Snyder’s testimony. Defendant alleges that counsel should have called

witnesses to contradict Ms. Snyder’s testimony and demonstrate that he never

worked with the victim at Food World. 

Defendant has failed to demonstrate that further cross-examination of Ms.

Snyder as to whether Defendant worked with her daughter would have rendered a

different result at trial. Defendant claims this is a crucial point because the testimony

was used to support the argument that Defendant recognized her car and knew she

was at home. However, Defendant does not deny in his motion that he knew Jessica,

[FN 52] only that he worked with her at Food World. In fact, in a previous claim in

the instant motion, Defendant states, “Defendant went to the house to get weed,

which could mean that he expected to buy marijuana or that Defendant expected

Jessica [victim] to give it to him. . . . The Defendant left and came back because

Jessica didn’t want to sell marijuana while her little sister was at home.”[FN 53] If

true, this statement suggests that Defendant did in fact expect Jessica to be there

when he returned.[FN 54]

Furthermore, the testimony of other witnesses also suggests that Defendant

and the victim were acquainted. The victim’s younger sister testified at trial that

Defendant came to the home earlier the day of the incident and that Jessica came to

the door and told him and the co-defendants that she had to go to work at 10 a.m.[FN

55] The younger sister also testified that she recognized one of the men at the door

as “Donnie.”[FN 56] Ms. Snyder also testified that she knew Defendant, an

allegation which Defendant does not deny.[FN 57]

In addition, Defendant has failed to demonstrate that counsel would have

been able to call additional witnesses to refute Ms. Snyder’s testimony about whether

the victim worked with Defendant.[FN 58] “A witness’s answer during

cross-examination to a nonmaterial collateral matter is conclusive and cannot be

impeached by normal means of impeachment, including contradictory testimony by

another witness.” Lawson v. State, 651 So. 2d 713, 715 (Fla. 2d DCA 1995), citing

Dupont v. State, 556 So. 2d 457 (Fla. 4th DCA 1990). “The test is whether the

proposed testimony can be admitted into evidence for any purpose independent of

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the contradictions.” Id. Defendant has failed to demonstrate that the testimony of

additional witnesses regarding whether he worked at Food World with the victim

would have been admissible for any alternative purpose other than contradicting Ms.

Snyder, and would not have demonstrated that Defendant did not know the victim. 

Defendant has failed to demonstrate that counsel’s performance was ineffective, or

that the results would have been any different had counsel proceeded differently with

regard to the testimony of Christine Snyder. Therefore, Defendant is not entitled to

relief on the basis of his seventh and eighth claims.

[FN 47: omitted]

[FN 48–51: references to trial transcript]

FN 52: In fact, Investigator Sanderson testified that

Defendant told him that he knew the victim as Jessica. See

Attachment 3, trial transcript, page 140.

[FN 53: reference to Petitioner’s Rule 3.850 motion]

FN 54: The Court also questions why Defendant would

expect someone he did not know to give him drugs.

[FN 55–57: references to trial transcript]

FN 58: See Attachment 3, trial transcript, page 106. Counsel

did, in fact, question Ms. Snyder about whether Defendant worked

with her daughter.

(Ex. M at 73–77).

Petitioner argued this issue on appeal of the circuit court’s decision (Ex. P). The First DCA

affirmed without written opinion (Ex. U).

The state court’s findings of fact with respect to testimony adduced at trial and defense

counsel’s cross-examination of Mr. Hatten and Ms. Snyder is supported by the trial transcript (Ex.

B). As to counsel’s failure to impeach Mr. Hatten, the state court correctly found that Mr. Hatten’s

testimony was largely consistent with Investigator Sanderson’s testimony that Petitioner admitted

he went to the victim’s home to get drugs and entered the home after the co-defendants kicked in

the door, but he had nothing to do with the actual murder. In response to defense counsel’s

questioning, Hatten testified Petitioner stated he had nothing to do with the victim’s death, and she

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was not supposed to be at the home at the time of the incident. This testimony strengthened the

independent act defense, because it suggested Petitioner’s lack of intent to harm the victim and lack

of participation in her killing, without Petitioner subjecting himself to cross-examination by the

prosecutor. In light of the beneficial nature of Mr. Hatten’s testimony, it was reasonable for defense

counsel to refrain from impeaching his testimony with evidence that he and Petitioner never actually

had contact at the jail. 

With regard to counsel’s failure to impeach Ms. Snyder’s testimony with evidence that

Petitioner did not work with the victim at Food World, the state court determined that employment

records or testimony from Food World personnel would not have been admissible impeachment

evidence under state law. A determination that certain evidence was not admissible under Florida’s

evidentiary rules is solely within the province of the Florida courts. “[A] state court’s interpretation

of state law . . . binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74,

76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S. Ct.

1881, 1886, 44 L. Ed. 2d 508 (1975) (“State courts are the ultimate expositors of state law,” and

federal courts must therefore abide by their rulings on matters of state law) (citations and footnote

omitted); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983). In light of the state

court’s determination that state evidentiary rules prohibited defense counsel from admitting

impeachment evidence on the collateral matter of whether Petitioner was in fact employed at Food

World, Petitioner failed to show deficient performance by counsel, or that there is a reasonable

probability that the trial court would have properly admitted the evidence if counsel had sought to

introduce it. Additionally, there is no reasonable probability the result of trial would have been

different had defense counsel introduced evidence that Petitioner did not work with the victim at

Food World. The jury heard, through the testimony of Investigator Sanderson and the victim’s 12-

year-old sister, evidence that Petitioner knew the victim and knew that she would be home when he

and the co-defendants returned to the house to get marijuana. Therefore, Petitioner failed to show

he was prejudiced by counsel’s failure to impeach Ms. Snyder with evidence that Petitioner did not

work at Food World.

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Petitioner failed to demonstrate that the state court’s adjudication of this claim was based

upon an unreasonable determination of the facts, or contrary to or an unreasonable application of

Strickland. Therefore, he is not entitled to habeas relief on Ground Four.

E. Ground Five: “Petitioner was denied his Sixth amendment right under the U.S.

Constitution to the effective assistance of counsel based upon the cumulative errors of trial

counsel.”

Petitioner contends each of the errors by counsel identified in Grounds One through Four

supra warrant federal habeas relief (doc. 1 at 10). He contends the cumulative effect of these errors

“increased the prejudice of the claims exponentially” (id.).

Respondent concedes Petitioner exhausted this claim (doc. 26 at 39–40). Respondent

contends no Supreme Court authority recognizes ineffective assistance of counsel “cumulative error”

as a freestanding constitutional violation (id. at 40). Respondent argues none of the alleged errors

of trial counsel, considered alone, satisfies the threshold standard of ineffective assistance of

counsel; therefore, there are no errors to accumulate (id. at 40–41). Thus, the state court’s

adjudication of the claim was not contrary to or an unreasonable application of clearly established

federal law (id. at 41).

In Ground XII of Petitioner’s Rule 3.850 motion, he argued that the cumulative effect of

defense counsel’s errors amounted to ineffective assistance of counsel in violation of his

constitutional rights (Ex. I at 43–44). The state circuit court denied the claim on the ground that

Petitioner’s individual claims had no basis for relief; therefore, his claim of cumulative error failed

(Ex. M at 79).

The Supreme Court has not recognized the cumulative error doctrine in the context of

ineffective assistance of counsel claims.5

 Although the Eleventh Circuit has noted, on direct appeal

of a federal conviction, that the cumulative effect of several errors that are harmless by themselves

5

 The Eleventh Circuit has noted “the absence of Supreme Court precedent applying cumulative error doctrine

to claims of ineffective assistance of counsel.” Forrest v. Fla. Dep’t of Corr., 2009 WL 2568185, at *4 (11th Cir. Aug.

21, 2009) (unpublished). The court cautioned that the Supreme Court has held that “there is generally no basis for

finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the

reliability of the finding of guilt.” Id. at 5 (quoting United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039,

80 L. Ed. 2d 657 (1984)).

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could so prejudice the defendant’s right to a fair trial that a new trial may be necessary,6 the Eleventh

Circuit has never expressly recognized a freestanding “cumulative effect” claim, based upon the

assertion that alleged errors of the trial court, defense counsel, or the State, or a combination thereof,

rendered the trial fundamentally unfair even though such errors were individually harmless or nonprejudicial, as cognizable under § 2254. See, e.g., Conklin v. Schofield, 366 F.3d 1191, 1210 (11th

Cir. 2004) (applying pre-AEDPA standard of review and denying claim that trial court errors and

conduct of trial counsel combined to rob petitioner of fair trial and sentencing, but not relying upon

Supreme Court precedent for its decision); Sims v. Singletary, 155 F.3d 1297 (11th Cir. 1998)

(applying pre-AEDPA standard of review and holding that district court erred in finding that

cumulative guilt stage errors prejudiced petitioner during penalty phase); Cargill v. Turpin, 120 F.3d

1366, 1386 (11th Cir. 1997) (applying pre-AEDPA standard of review and declining petitioner’s

invitation to entertain “cumulative error” claim because petitioner’s trial was not fundamentally

unfair); Dobbs v. Kemp, 790 F.2d 1400, 1505 (11th Cir. 1986) (applying pre-AEDPA standard of

review and denying petitioner’s claim that improper prosecutorial argument and evidentiary errors

rendered trial fundamentally unfair and citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct.

1868, 40 L. Ed. 2d 431 (1973)); Bronstein v. Wainwright, 646 F.2d 1048, 1056 (5th Cir. 1981)

(same).7

6 See United States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005) (“[T]he ‘cumulative effect’ of multiple

errors may so prejudice a defendant’s right to a fair trial that a new trial is required, even if the errors considered

individually are non-reversible.”) (quoting United States v. Thomas, 62 F.3d 1332, 1343 (11th Cir.1995)), United States

v. Adams, 74 F.3d 1093, 1099–1100 (11th Cir. 1996) (citing United States v. Preciado-Cordobas, 981 F.2d 1206, 1215

n.8 (11th Cir. 1993)).

7

 The law of the other circuit courts of appeals is mixed on the issue of whether a claim of “cumulative effect”

or “cumulative error” is cognizable on federal habeas. The Fourth, Sixth and Eighth Circuits do not recognize

cumulative error claims on federal habeas. See Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (claims of

cumulative error are not cognizable on federal habeas because the Supreme Court has not spoken on this issue); Fisher

v. Angelone, 163 F.3d 835, 852–53 (4th Cir. 1998) (ineffective assistance of counsel claims, like claims of trial court

error, must be reviewed individually, rather than collectively); Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.

1996) (“Neither cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for habeas relief.”). 

The Ninth Circuit recognizes cumulative error claims and expressly recognized Chambers v. Mississippi, 410 U.S. 284

(1973) as the clearly established federal law governing such claims. See Parle v. Runnels, 505 F.3d 922, 928–29 (9th

Cir. 2007). The Tenth Circuit recognizes cumulative error claims and recognized Brecht v. Abrahamson, 507 U.S. 619

(1993) as the clearly established federal law on this issue. See Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003). 

The Second and Seventh Circuits recognize cumulative effect analysis of individual claims of ineffective assistance of

counsel in applying the prejudice prong of Strickland. See Williams v. Washington, 59 F.3d 673, 682–84 (7th Cir.

1995); Rodriguez v. Hoke, 928 F.2d 534 (2d Cir. 1991).

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In any event, cumulative error analysis should evaluate only matters determined to be in

error, not the cumulative effect of non-errors. See United States v. Waldon, 363 F.3d 1103, 1110

(11th Cir. 2004) (where no individual errors have been demonstrated, no cumulative errors can

exist); United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984) (“Without harmful errors, there

can be no cumulative effect compelling reversal.”); Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th

Cir. 1987) (“Mullen cites no authority in support of his assertion, which, if adopted, would

encourage habeas petitioners to multiply claims endlessly in the hope that, by advancing a sufficient

number of claims, they could obtain relief even if none of these had any merit. We receive enough

meritless habeas claims as it is; we decline to adopt a rule that would have the effect of soliciting

more and has nothing else to recommend it. Twenty times zero equals zero.”); see also United

States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006); Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.

2002) (where there is no single constitutional error, nothing can accumulate to the level of a

constitutional violation); United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000); Angelone,

supra; Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998); United States v. Rivera, 900 F.2d

1462, 1471 (10th Cir. 1990) (“[A] cumulative-error analysis should evaluate only the effect of

matters determined to be error, not the cumulative effect of non-errors.”); United States v. Conteh,

234 Fed. Appx. 374, 2007 WL 1229043 (6th Cir. 2007). Thus, Petitioner must show error with

respect to at least two of his individual claims.

As previously discussed, none of the alleged errors of trial counsel, considered alone,

approaches the threshold standard of ineffective assistance of counsel. Taken together, their

cumulative effect also falls far short of depriving Petitioner of effective assistance of counsel or a

fundamentally fair trial. Therefore, Petitioner is not entitled to federal habeas relief on this

“cumulative error” claim. See Bronstein v. Wainwright, 646 F.2d 1048 (11th Cir. 1981) (“[A] state

trial must be so ‘fundamentally unfair’ as to amount to a denial of due process before federal habeas

relief can be appropriately applied.”) (internal quotation and citation omitted)); Ballard v. McNeil,

785 F. Supp. 2d 1299, 1335–37 (N.D. Fla. 2011); see also Files v. Tucker, No. 3:09cv490/RV/EMT,

2011 WL 6983135, at *28–30 (N.D. Fla. Dec. 9, 2011) (unpublished), Report and Recommendation

Adopted at 2012 WL 83369 (N.D. Fla. Jan. 11, 2012); Rasley v. Buss, No. 5:08cv368/RH/EMT,

2011 WL 2358650, at *32–32 (N.D. Fla. Apr. 11, 2011) (unpublished), Report and Recommendation

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Adopted at 2011 WL 2293383 (N.D. Fla. June 9, 2011); Whitfield v. McNeil, No.

5:07cv120/RS/EMT, 2010 WL 1930007, at *22–23 (N.D. Fla. Apr. 12, 2010) (unpublished), Report

and Recommendation Adopted at 2010 WL 1930012 (N.D. Fla. May 13, 2010); Walls v. McNeil,

No. 3:06cv237/MCR/EMT, 2009 WL 3187066, at **30–31 (N.D. Fla. Sept. 30, 2009)

(unpublished).

F. Ground Six: “Petitioner was denied his Sixth Amendment right under the U.S.

Constitution to the effective assistance of appellate counsel based on counsel’s failure to

raise a double jeopardy issue on appeal.”

Petitioner contends appellate counsel was ineffective for failing to argue that Petitioner’s

convictions and sentences for burglary of an occupied dwelling with assault or battery and while

armed (Count 2) and robbery with a firearm (Count 3) violated the prohibition against double

jeopardy (doc. 1 at 10–11). He contends the robbery element of the burglary and the independent

robbery charge both involved the same “taking,” that is, the taking of a safe and its contents;

therefore, his convictions for both crimes constituted double jeopardy (id. at 11). Petitioner

acknowledges the double jeopardy argument was not preserved in the trial court (id.). However, he

contends the error was fundamental and, therefore, could have been raised by appellate counsel

despite the lack of preservation (id.). He contends had appellate counsel raised the issue, there is

a reasonable probability the robbery conviction would have been vacated (id.). He further contends

the felony murder conviction would have been vacated if the robbery conviction was vacated,

because there was no jury finding as to whether the felony murder conviction was based upon the

underlying burglary or robbery felony (id.).

Respondent concedes Petitioner exhausted this claim (doc. 26 at 42). Respondent contends

Petitioner failed to demonstrate that the state court’s adjudication of the claim was based upon an

unreasonable determination of the facts, or was contrary to or an unreasonable application of clearly

established federal law (id. at 43–50).

1. Clearly Established Federal Law

The proper standard for evaluating a claim of ineffective assistance of appellate counsel is

the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528

U.S. 259, 285,120 S. Ct. 746, 764, 145 L. Ed. 2d 746 (2000) (citation omitted). As previously noted,

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

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

U.S. at 697. The focus of inquiry under the performance prong of the Strickland standard is whether

counsel’s assistance was “reasonable considering all the circumstances.” Id. at 691. Appellate

counsel who file a merits brief need not (and should not) raise every nonfrivolous claim but, rather,

may select from among them in order to maximize the likelihood of success of on appeal. Jones v.

Barnes, 463 U.S. 745, 753–54, 103 S. Ct. 3308, 3314, 77 L. Ed. 2d 987 (1983) (“Experienced

advocates since time beyond memory have emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”). 

To demonstrate prejudice, Petitioner must show a reasonable probability that, but for his counsel’s

unreasonable failure to brief a particular issue, Petitioner would have prevailed on appeal. See

Robbins, 528 U.S. at 285.

The Eleventh Circuit has issued several decisions interpreting the Strickland standard with

regard to claims of ineffective assistance of appellate counsel. Appellate counsel cannot be deemed

ineffective for failing to raise issues “reasonably considered to be without merit.” United States v.

Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291

(11th Cir. 1984)). Additionally, where an issue is not preserved for appellate review, appellate

counsel’s failure to raise the issue is not constitutionally deficient as it is based on the reasonable

conclusion that the appellate court will not hear the issue on its merits. Diaz v. Sec’y Dep’t of

Corrs., 402 F.3d 1136, 1142 (11th Cir. 2005); Atkins v. Singletary, 965 F.2d 952, 957 (11th Cir.

1992); Francois v. Wainwright, 741 F.2d 1275, 1285–86 (11th Cir. 1984). Moreover, the arguments

omitted from the appeal must have been significant enough to have affected the outcome of the

appeal. Nyhuis, 211 F.3d at 1344 (citing Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988)). 

2. Federal Review of State Court Decision

In Petitioner’s state habeas petition, he argued appellate counsel was ineffective for failing

to argue that fundamental error occurred at trial when he was convicted and sentenced for both

burglary of an occupied dwelling with assault or battery and while armed and robbery with a

firearm, because both offenses involved the same “taking” (Ex. BB at 2–5). The First DCA denied

the petition on the merits (Ex. EE). The state court did not cite Strickland; however, as previously

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noted, a state court need not cite to, nor even be aware of Supreme Court cases, “so long as neither

the reasoning nor the result of the state-court decision contradicts them.” Early, 537 U.S. at 8.

The First DCA’s decision could have been supported by the argument that no double

jeopardy violation occurred. Article I, Section 9 of the Florida Constitution provides, in relevant

part, “No person shall . . . be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. 

Additionally, the Fifth Amendment to the United States Constitution provides that no person shall

be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

“The scope of the Double Jeopardy Clause is the same in both the federal and Florida Constitutions.”

Trotter v. State, 825 So. 2d 362 (Fla. 2002).

The Double Jeopardy Clause embodies three separate guarantees: “It protects against a

second prosecution for the same offense after acquittal, against a second prosecution for the same

offense after conviction, and against multiple punishments for the same offense.” Justices of Boston

Mun. Court v. Lydon, 466 U.S. 294, 307–08 (1984) (citation and footnote omitted). “With respect

to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the legislature intended.”

Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983); Whalen v.

United States, 445 U.S. 684, 689, 100 S. Ct. 1432, 1436, 63 L. Ed. 2d 715 (1980) (“The Double

Jeopardy Clause at the very least precludes . . . courts from imposing consecutive sentences unless

authorized by [the legislature] to do so.”); Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct.

1137, 1145, 67 L. Ed. 2d 275 (1980) (stating, “the question of what punishments are constitutionally

permissible is not different from the question of what punishment the Legislative Branch intended

to be imposed. Where [the legislature] intended . . . to impose multiple punishments, imposition of

such sentence does not violate the Constitution.”); Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct.

2221, 2225, 53 L. Ed. 2d 187 (1977) (noting “[w]here consecutive sentences are imposed at a single

criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not

exceed its legislative authorization by imposing multiple punishments for the same offense.”). 

“Where the same conduct violates two statutory provisions, the first step in the double

jeopardy analysis is to determine whether the legislature . . . intended that each violation be a

separate offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d

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764 (1985)). Although the Double Jeopardy Clause does not flatly prohibit the legislature from

punishing the same conduct under two different statutes, federal courts assume that the legislature

ordinarily does not intend to do so “‘in the absence of a clear indication of contrary legislative

intent.’” Hunter, 459 U.S. at 366 (quoting Whalen, 445 U.S. at 691–92); see also Garrett, 471 U.S.

at 779 (holding that multiple punishments are permissible “when the legislative intent is clear from

the face of the statute or the legislative history”); Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct.

2536, 2541 n.8, 81 L. Ed. 2d 425 (1984) (“[I]f it is evident that a state legislature intended to

authorize cumulative punishments, a court’s inquiry is at an end.” (emphasis added)). If no clear

intention is evident, the provisions are analyzed under the “same elements” test announced in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), which “inquires

whether each offense contains an element not contained in the other; if not, they are the ‘same

offence’ and double jeopardy bars additional punishment and successive prosecution.” United States

v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556 (1993). Although the court

will decide under federal law whether a double jeopardy violation has occurred, it must accept the

Florida courts’ interpretation of the state’s own statutes. Hunter, 459 U.S. at 368.

The Eleventh Circuit summarized its interpretation of Supreme Court law regarding double

jeopardy as follows: 

To summarize, our review of a potential double jeopardy violation arising

from a single prosecution is a two-stage analysis. First, we ascertain whether there

exists a clear legislative intent to impose cumulative punishments, under separate

statutory provisions, for the same conduct. If a clear indication of such intent exists,

our inquiry is at an end and the double jeopardy bar does not apply. If there is no

clear indication of legislative intent to impose cumulative punishments, we examine

the relevant statutes under the same-elements test of Blockburger. Under that test,

if each statutory offense requires proof of an element not contained in the other, the

offenses are not the “same” and double jeopardy is no bar to cumulative punishment.

Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996).

The relevant Florida statutes specifying the separate offenses of burglary of an occupied

dwelling with assault or battery and while armed and robbery with a firearm are sections

810.02(1)(b), (2)(a), (b) and 812.13(2)(a), respectively. At the time of Petitioner’s offense conduct,

Florida Statutes § 810.02 provided, in relevant part:

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(1)(a). . . . .

(b) For offenses committed after July 1, 2001, “burglary” means:

1. Entering a dwelling, a structure, or a conveyance with the intent to commit an

offense therein, . . . .

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term

of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or

s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person; or

(b) Is or becomes armed within the dwelling, structure, or conveyance, with

explosives or a dangerous weapon; . . . 

Fla. Stat. § 810.02(1)(b), (2)(a), (b) (2001)

Florida Statutes § 812.13 provided, in relevant part:

(1) “Robbery” means the taking of money or other property which may be the

subject of larceny from the person or custody of another, with intent to either

permanently or temporarily deprive the person or the owner of the money or other

property, when in the course of the taking there is the use of force, violence, assault,

or putting in fear.

(2)(a) If in the course of committing the robbery the offender carried a firearm or

other deadly weapon, then the robbery is a felony of the first degree, punishable by

imprisonment for a term of years not exceeding life imprisonment or as provided in

s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 812.13(1), (2)(a) (2001).

Neither of those statutory provisions indicates whether the Florida legislature authorized

cumulative sentences where both statutes are offended in a single criminal episode. Therefore, rules

of statutory construction must be applied to help determine legislative intent.

The Florida legislature set forth rules of construction in Florida Statutes section 775.021. 

That provision provides, in relevant part:

(1) The provisions of this code and offenses defined by other statutes shall be strictly

construed; when the language is susceptible of differing constructions, it shall be

construed most favorably to the accused.

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(2) The provisions of this chapter are applicable to offenses defined by other statutes,

unless the code otherwise provides.

. . . .

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act

or acts which constitute one or more separate criminal offenses, upon conviction and

adjudication of guilt, shall be sentenced separately for each criminal offense; and the

sentencing judge may order the sentences to be served concurrently or consecutively.

For the purposes of this subsection, offenses are separate if each offense requires

proof of an element that the other does not, without regard to the accusatory pleading

or the proof adduced at trial.

(b) The intent of the Legislature is to convict and sentence for each criminal offense

committed in the course of one criminal episode or transaction and not to allow the

principle of lenity as set forth in subsection (1) to determine legislative intent.

Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed

by the greater offense.

Fla. Stat. § 775.021 (2003). Based upon this language, it is clear that the Florida Legislature

expressly intended to convict and sentence a defendant for each offense he commits during the

course of a single criminal episode, with three exceptions to that rule. Fla. Stat. § 775.021(4)(b). 

The exceptions adopt the Blockburger test. See State v. Weller, 590 So. 2d 923, 925 (1991).

Petitioner has failed to show that the offenses in the instant case satisfy the first exception. 

At the time of Petitioner’s offense conduct, March 10, 2003 (see Ex. A), the offense of burglary of

an occupied dwelling with assault or battery and while armed had the following six elements:

1. Defendant entered a structure owned by or in the possession of one of the

Snyders;

2. At the time of entering the structure, Defendant had the intent to commit

a theft or robbery in that structure;

3. In the course of committing the burglary, Defendant assaulted or battered

Jessica Snyder;

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4. In the course of committing the burglary, Defendant was armed or armed

himself within the structure with a dangerous weapon;

5. The structure was a dwelling; and

6. In the course of committing the burglary, there was another human being

in the dwelling at the time he entered the dwelling.

See The Florida Bar 2002 Florida Standard Jury Instructions in Criminal Cases, Fourth Edition, Part

Two: Instruction on Crimes, Chapter 13.1 Burglary (2002). 

The offense of robbery with a firearm had the following five elements:

1. Defendant took a safe and its contents from the person or custody of one

of the Snyders;

2. Force, violence, assault, or putting in fear was used in the course of the

taking;

3. The property taken was of some value;

4. The taking was with the intent to permanently or temporarily deprive one

of the Snyders of his or her right to the property or any benefit from it, or to

appropriate the property to Defendant’s own use or to the use of any person not

entitled to it; and

5. In the course of committing the robbery, Defendant carried a firearm.

See The Florida Bar 2002 Florida Standard Jury Instructions in Criminal Cases, Fourth Edition, Part

Two: Instruction on Crimes, Chapter 15.1 Robbery (2002).

The crime of burglary of a dwelling required the entering of a dwelling with the intent to

commit an offense therein, which was not an element of robbery. Further, the crime of robbery

required proof of a taking, which was not an element of burglary of a dwelling. Therefore, the first

Blockburger exception does not apply to Petitioner’s convictions of burglary and robbery. See

McAllister v. State, 718 So. 2d 917 (Fla. 5th DCA 1998) 1998) (holding that defendant’s conviction

for robbery was not subsumed in his conviction for burglary of a conveyance with assault or battery

for double jeopardy purposes); George v. State, 509 So. 2d 972 (Fla. 5th DCA 1987) (defendant’s

convictions and sentences for attempted first degree felony murder, burglary with assault, attempted

armed robbery, shooting within building, and use of firearm during commission of felony, arising

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out of single criminal episode, did not violate double jeopardy where none of offenses were included

offenses of the others); Madry v. State, 448 So. 2d 8 (Fla. 5th DCA 1984) (offenses of armed

burglary and armed robbery are substantively different and can never be “the same offense” within

the meaning of the constitutional double jeopardy prohibition).8

 

Furthermore, the second Blockburger exception is not satisfied because neither of the crimes

is a degree of the other. Moreover, according to the tables of lesser included offenses included with

each individual jury instruction, the third exception is not satisfied because robbery is not a lesser

included offense of burglary, and burglary is not a lesser included offense of robbery. 

Finally, because burglary of a dwelling with assault or battery and while armed and robbery

with a firearm were not the same crime, either of them could have served as the underlying offense

of felony murder without his convictions of both violating double jeopardy. See Davis v. State, 467

So. 2d 1094, 1095 (Fla. 1st DCA 1904) (underlying offense of attempted felony-murder charge,

simple robbery, was not same crime as separate charge of armed robbery, so that constitutional

prohibition against double jeopardy was not violated by convictions on both charges). Moreover,

Petitioner’s conviction of felony murder and the underlying felony does not violate double jeopardy. 

See State v. Enmund, 476 So. 2d 165, 167–68 (Fla. 1985) (holding a defendant can be convicted of

and sentenced for both felony murder and the underlying felony). 

Because Petitioner’s double jeopardy argument is reasonably considered to be without merit,

appellate counsel’s failure to brief the issue was not deficient, and Petitioner was not prejudiced by

counsel’s failure to raise it. Therefore, Petitioner failed to demonstrate that the First DCA’s

rejection of his claim of ineffective assistance of appellate counsel was contrary to or an

unreasonable application of clearly established federal law.

G. Ground Seven: “Petitioner was denied his Sixth Amendment right under the U.S.

Constitution to the effective assistance of appellate counsel based on counsel’s failure to

8

 Petitioner would have had a meritorious double jeopardy argument if he had been convicted of home-invasion

robbery, a violation of Florida Statutes § 812.135 and burglary of a dwelling, but he was not. See Davis v. State, 74 So.

3d 1096, 1097 (Fla. 1st DCA 2011); Bowers v. State, 679 So. 2d 340, 341 (Fla. 1st DCA 1996); Elmy v. State, 667 So.

2d 392, 392 (Fla. 1st DCA 1995); Perez v. State, 951 So. 2d 859, 859–60 (Fla. 2d DCA 2006); see also McAllister, 718

So. 2d at 918 (recognizing home-invasion robbery as a form of burglary).

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argue the trial court’s err [sic] in admitting photographs into evidence at trial over trial

counsel’s objection.”

Petitioner contends appellate counsel should have argued on appeal that the trial court erred

by admitting photographs of the deceased victim at the crime scene, over defense counsel’s

objection (doc. 1 at 12). Petitioner argues the photographs were irrelevant to any issue in the case;

he asserts premeditation was not an issue in the case, nor was the nature or extent of the victim’s

injuries, the location of her body, or the manner or cause of her death (id.). Further, he contends the

photographs were extremely prejudicial because they were gruesome (id.). Petitioner contends there

is a reasonable probability the outcome of his appeal would have been different if appellate counsel

had raised this issue of trial court error.

Respondent concedes Petitioner exhausted this claim (doc. 26 at 51). Respondent contends

Petitioner failed to demonstrate that the state court’s adjudication of the claim was based upon an

unreasonable determination of the facts, or was contrary to or an unreasonable application of clearly

established federal law (id. at 51–59).

1. Clearly Established Federal Law

The clearly established federal standard governing this claim is set forth supra in Ground

Six.

2. Federal Review of State Court Decision

In Petitioner’s state habeas petition, he argued the same issue he raises here (Ex. BB at

13–15). The First DCA denied the petition on the merits (Ex. EE). 

The trial record shows that the prosecutor sought to admit four photographs as Exhibit 2,

marked Exhibits 2A–2D (Ex. B at 52; Ex. ZZ). Exhibit 2A was an autopsy photograph showing the

extent and nature of the victim’s injuries (id.). Defense counsel objected to the admission of only

this photograph, on the grounds that it was highly prejudicial, and that other crime scene

photographs depicted the victim’s injuries (id. at 53). The trial court overruled the objection (id.). 

During the medical examiner’s testimony, she described the victim’s injuries as follows:

She had several injuries of the head and neck. We call the types of injuries

that she had blunt injuries. They include contusions which are bruises, abrasions,

which are scrapes and scratches of the skin, and lacerations, which are actual breaks

of the skin not done with a knife or a sharp object but done with a blunt object.

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. . . .

She had such severe injuries that her head was actually, the shape of her head

was actually distorted. She had inwardly displaced fractures of the face, severe

distortion of the features of the face. For example, the eyes were not even visible. 

There was basically a large laceration here which created a sort of a cavitation of her

face. She had lacerations of the brain. She had shattering of the skull and several

teeth were broken and missing and she also had some abrasions and contusions of

the skin of her extremities or the arms and legs.

. . . .

The cause of death was blunt impact of head and neck and manner of death

is homicide.

(Ex. B at 145–46). The medical examiner testified the victim’s injuries were consistent with being

beaten with the butt of the shotgun found in the kitchen sink (id. at 147). She also testified that an

injury to the back of the victim’s left hand was consistent with her putting her hand up in a defensive

manner (id.). The prosecutor showed Exhibits 2A–2D to the medical examiner, and she testified the

photographs accurately showed the injuries she described in her testimony (id. at 146–47). Defense

counsel stated, “Judge, I need to renew my objection to State’s Exhibit No. 2.” (id. at 148). The trial

court again overruled the objection and admitted Exhibits 2A–2D into evidence (id.).

Assuming arguendo that defense counsel preserved the issue of the admission of all four

photographs included in Exhibit 2, Petitioner failed to show appellate counsel had a reasonable basis

to argue the trial court abused its discretion by admitting the photographs. Under Florida law, a trial

court’s ruling on the admission of photographic evidence will not be disturbed absent a clear

showing of abuse of discretion. See Davis v. State, 859 So. 2d 465, 477 (Fla. 2003) (citing

Mansfield v. State, 758 So. 2d 636, 648 (Fla. 2000)). The test for admissibility of photographic

evidence is relevancy. Pope v. State, 679 So. 2d 710, 713 (Fla. 1996). “Photographs are admissible

if they are ‘relevant and not so shocking in nature as to defeat the value of their relevance.’” Id.

Admission of allegedly gruesome photographs is appropriate where they are independently relevant

or corroborative of other evidence. Grey v. State, 727 So. 2d 1063 (Fla. 4th DCA 1999). 

Photographs which bear on the issues of the nature and extent of the injuries, the nature and force

of the violence used, premeditation or intent are relevant. Id.; see also, Wilson v. State, 436 So. 2d

908 (Fla. 1983) (finding no abuse of discretion in admission of autopsy photographs of victim where

they were relevant to manner of death, nature of force and violence used, and premeditation); Lott

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v. State, 695 So. 2d 1239, 1243 (Fla. 1997) (affirming the trial court’s ruling admitting crime scene

photographs because they were relevant to support the charge of premeditated murder); King v.

State, 545 So. 2d 375, 378 (Fla. 4th DCA 1989) (finding no error in admission of close-up

photograph of victim as she appeared at scene of incident because photograph was relevant to issue

of whether victim’s death was intentionally or accidentally caused); Walker v. State, 665 So. 2d

1070 (Fla. 4th DCA 1995) (finding no error in admission of photographs where they assisted the

medical examiner in his explanation of the victim’s wounds and were relevant to the issue of

premeditation); Lewis v. State, 566 So. 2d 270 (Fla. 2d DCA 1990) (finding no abuse of discretion

in admission of photographs of victim where they were relevant as circumstantial evidence of

premeditation).

Contrary to Petitioner’s argument, premeditation was an issue at this trial—the State charged

him alternatively with premeditated murder or felony murder (Ex. A). As previously discussed,

under Florida law, the photographs were relevant to the issue of premeditation. 

Additionally, by overruling defense counsel’s objection, the trial court determined that the

prejudicial effect of the pictures did not outweigh their probative value. Where there is an element

of relevancy to support admissibility, then the trial judge in the first instance, and the court on

appeal, must determine whether the gruesomeness of the portrayal is so inflammatory as to create

an undue prejudice in the minds of the jury and detract them from a fair and unimpassioned

consideration of the evidence. See Leach v. State, 132 So. 2d 329, 331–32 (Fla. 1961). In the

instant case, although the medical examiner was able to describe the nature and extent of the

victim’s wounds and the manner and cause of her death, she did not provide an opinion as to

whether the death was premeditated. The prosecutor used the photographs to argue to the jury that

the nature and manner of the wounds inflicted were consistent with an angry attack by Petitioner’s

co-defendant, and Petitioner was a principal to that attack (Ex. B at 180–87). In such circumstances,

Florida courts have held that the trial court’s admission of such photographs, including autopsy

photographs, was not an abuse of discretion. See, e.g., Wilson, 436 So. 2d at 910 (finding no abuse

of discretion in admitting nine autopsy photographs); Grey v. State, 727 So. 2d 1063 (Fla. 4th DCA

1999) (upholding the trial court’s decision to admit photographs of the deceased victim showing

her frontal head injuries and extending down far enough to show her naked breasts and photographs

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depicting the victim’s scalp and hair placed on a styrofoam mannequin head); Vargas v. State, 751

So. 2d 665 (Fla. 3d DCA 2000) (finding no abuse of discretion to admit photographs of victims

where medical examiner used them during his testimony to illustrate the nature of the wounds and

the element of premeditation for the first degree murder charges); Lott, 695 So. 2d at 1239 (finding

no abuse of discretion where photographs were probative of premeditated murder charge). 

 The First DCA’s denial of Petitioner’s ineffective assistance of appellate counsel claim

could have been based upon the theory that Petitioner’s claim of trial court error was reasonably

considered to be without merit; therefore, counsel was not deficient for failing to raise it, and 

Petitioner suffered no prejudice from counsel’s failure to do so. The First DCA’s adjudication of

the claim was not contrary to or an unreasonable application of Strickland. Therefore, Petitioner is

not entitled to habeas relief on Ground Seven. 

IV. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,”

and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” 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, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

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

may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument to the

attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is ORDERED:

The clerk of court is directed to change the docket to reflect that Kenneth S. Tucker is

substituted for Edwin G. Buss as Respondent.

And it is respectfully RECOMMENDED:

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1. That the petition for writ of habeas corpus (doc. 1) be DENIED.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 30th day of April 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. 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

objections shall be served upon the magistrate judge and all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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