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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

TIMOTHY LOUIS PARKER,

Petitioner,

v. Case No. 3:10cv15/MCR/MD

KEN TUCKER,

Respondent.1

______________________________________________________________________

REPORT AND RECOMMENDATION

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

pursuant to Title 28 U.S.C. § 2254 (doc. 18). Respondent has filed a response (docs.

34, 36 (exhibits)) to which petitioner has replied (doc. 42). 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, Rule 8(a) of the Rules Governing

Section 2254 Cases. It is further the opinion of the undersigned that the pleadings

and attachments before the court show that petitioner is not entitled to relief, and

that the petition is without merit and should be denied.

1

 Ken Tucker became Secretary of the Florida Department of Corrections on August 24, 2011, and is

substituted as the respondent. 

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BACKGROUND AND PROCEDURAL HISTORY

Petitioner, Timothy Louis Griggs, was charged in the Circuit Court of

Escambia County, Florida with one count of aggravated battery on a pregnant

person. A jury found him guilty and he was sentenced to fifteen years imprisonment

as an habitual offender. His direct appeal was unsuccessful. He filed a motion for

post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure,

which was summarily denied (doc. 36, ex. H, pp. 181-86).2

 The appellate court

reversed in part and ordered an evidentiary hearing on two of Mr. Parker’s claims. 

The two claims were denied after an evidentiary hearing (ex. H, 314-18). Mr. Parker

filed at least two more motions for post-conviction relief which were denied as

successive. On January 14, 2010, Mr. Parker filed his original petition in the instant

case, which respondent concedes is timely (doc. 34, p. 5). 

STANDARD OF REVIEW 

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

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

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

relevant part, § 2254 provides:

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

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

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

2

Hereafter all references to exhibits will be to doc. 36 unless otherwise noted.

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28 U.S.C. § 2254(d) (2006).

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

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

 Section

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

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

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

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

differently than this Court has on a set of materially indistinguishable

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

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

governing legal principle from this Court’s decisions but unreasonably

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

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

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

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

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

Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009).

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

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

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

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

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

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

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

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

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

3

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

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

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

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

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

Breyer.

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

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

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

(2010)).

After identifying the governing legal principle, the court determines whether

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

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

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

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

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

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

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

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

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

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

merits of the petitioner’s claim.

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

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

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

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

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

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

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

131 S. Ct. 1388, 1400, 179 L. Ed. 2d 557 (April. 4, 2011) (holding new evidence

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

dicta in Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737–38, 159 L. Ed. 2d

683 (2004) (per curiam)); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851

n.4, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state

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

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court’s application of federal law is objectively unreasonable when the state court

“identifies the correct legal rule from Supreme Court case law but unreasonably

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

unreasonably declines to extend, a legal principle from Supreme Court case law to

a new context.” Brown, 544 U.S. at 141, 125 S. Ct. at 1439. However, a state court

may “decline to apply a specific legal rule that has not been squarely established by

[the Supreme Court]” without running afoul of the “unreasonable application”

clause. Knowles, 129 S. Ct. at 1419. Notably, even a state court’s incorrect

application of law will not warrant federal habeas relief unless it is also objectively

unreasonable. See Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L.

Ed. 2d 624 (2011).

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

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

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

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

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

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

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

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

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

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

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

court’s role in reviewing a state court’s decision by squarely addressing the

“unreasonable application of law” and the “unreasonable determination of facts”

tests. Mr. Gill’s petition alleged he was denied his Sixth Amendment right to

counsel.4

 The Eleventh Circuit granted a limited Certificate of Appealability to

4

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

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

motion, finding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill, 633 F.3d at 1278;

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determine the precise issue of the validity of “summary affirmance by a state

appellate court of a trial court’s decision based on potentially flawed reasoning.” Id.

at 1286.5

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

such as the Second DCA’s, are presumed adjudicated on the merits and warrant

deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85 and Wright v. Moore,

278 F.3d 1245, 1254 (11th Cir. 2002)). “A judicial decision and a judicial opinion are

not the same thing,” and the Supreme Court has confirmed that determining whether

the state court unreasonably applied the law or unreasonably determined the facts

requires only a decision, not an opinion. Id. at 1291 (citing Harrington, 131 S. Ct. at

784). Yet, the Supreme Court has never squarely addressed whether under the

“unreasonable application” test a federal habeas court “looks exclusively to the

objective reasonableness of the state court’s ultimate conclusion or must also

consider the method by which the state court arrives at its conclusion.” Id. at 1289

(quoting Neal v. Puckett, 286 F.3d 230, 244-45 (5th Cir. 2002) (summarizing the

emerging circuit split)). The Eleventh Circuit court concluded that district courts

must apply the plain language of § 2254(d) and answer the “precise question” raised

in a claim based on the state court’s ultimate legal conclusion, and should not

“evaluate or rely upon the correctness of the state court’s process of reasoning.” 

Id at 1291 (agreeing with the Fifth Circuit court in Neal, supra). In short, the court

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

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

Mr. Gill to act as co-counsel for himself only for determining trial strategy. Gill, 633 F.3d at 1284. He

was convicted, and the Florida Second District Court of Appeals (“Second DCA”) affirmed without

opinion the trial court’s denial of post-conviction relief. Id. at 1284-85. Mr. Gill then filed a petition in

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

5

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

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

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

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

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

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

waived his right to counsel. Id.

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stated, “the statutory language focuses on the result, not on the reasoning that led

to the result.” Id.6

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

limited role in habeas review because the district court considers the

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

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

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

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

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

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

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

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

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

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

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

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

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

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

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

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

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

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

violation of the Constitution or laws and treaties of the United States.” 28 U.S.C.

§ 2254(a). When performing its review under § 2254(d), the federal court must

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

6

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

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

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

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Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc); see Puiatti v. McNeil, 626

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

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

burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C.

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

provides for a “highly deferential standard of review” for factual determinations

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

burden to overcome the presumption of factual correctness). “If this standard is

difficult to meet, that is because it was meant to be.” Harrington, 131 S. Ct. at 786. 

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel

Petitioner contends in his claims for relief in this court that he was denied his

constitutional right to the effective assistance of counsel. The Constitution provides

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. To prevail on a claim

of ineffective assistance of counsel, the petitioner must prove: (1) “counsel’s

representation fell below an objective standard of reasonableness;” and (2) “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 677-678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Berghuis v.

Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L. Ed. 2d 1098 (2010). 

Reasonableness of representation does not implicate what is possible, prudent, or

even appropriate, but only what is “constitutionally compelled.” Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing Burger v. Kemp, 483 U.S. 776, 794,

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

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

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

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

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

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

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

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

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

Even if many reasonable lawyers would not have done as defense

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

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

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

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

lawyers’ performances; we are interested in whether the adversarial

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

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

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

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

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

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

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

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

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

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

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

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

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

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

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

burden on either of the two prongs. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“If 

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.”).

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

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

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

emphasized:

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

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

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

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

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

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

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. at 788 (citations omitted); Knowles,129 S. Ct. at 1420 (2009) (Strickland claims

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

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

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

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

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

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

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

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

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

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

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

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

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

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Deference to state court findings of fact

Under the AEDPA, the state court does not have to explicitly state its findings

of fact. See Blankenship v. Hall, 542 F.3d 1253, 1271-72 (11th Cir. 2008). State court

findings of fact can be implied from the opinion and the record when they are

necessary to the Rule 3.850 court’s rejection of a petitioner’s claim. Id. These

implicit findings are entitled to deference. Id. As explained in the Standard of

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

Supreme Court precedent as long as its conclusion is not contradictory. Early, 537

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

statement of reasons is still an adjudication on the merits. Harrington, 131 S. Ct. at

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

on the merits’ is best defined as any state court decision that does not rest solely

on a state procedural bar.”).

PETITIONER’S GROUNDS FOR RELIEF

All grounds for relief presented here are based on Mr. Parker’s claims that

he was denied the effective assistance of counsel.

Grounds 1 and 2 Failure to notify the court that the jury instruction concerning

the elements of the crime included proof that the victim was

pregnant and failure to request an instruction on the omitted

element.

Mr. Parker’s first two grounds are interrelated and are founded on his claim

that (1) the applicable standard jury instruction was incomplete, and (2) the jury was

not properly instructed on that element of the crime because defense counsel’s

performance was deficient in not raising the issue. (Doc. 18, pp. 3-5).

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State Court Decision

In his original motion for post-conviction relief pursuant to Rule 3.850, Florida

Rules of Criminal Procedure, Mr. Parker contended, as his first claim, that his

counsel was ineffective (A) in failing to notice that the court improperly instructed

the jury by not including a specific instruction that the victim’s pregnancy was an

element of the offense, and (B) in failing to request a proper jury instruction (ex. H,

p. 151). These grounds are the same, with slightly different wording, as Grounds 1

and 2 herein (doc. 18, pp. 3-5).

The Rule 3.850 court rejected these two claims, and cited to the trial record,

finding that “the Court properly instructed the jury regarding the elements of the

offense charged.” (Ex. C, p. 183). The appellate court affirmed as to these grounds

(ex. L, p. 1). Not satisfied, Mr. Parker filed two additional 3.850 motions (exs. R, T)

in which he raised new grounds not relevant here. Both motions were denied. Mr.

Parker then filed a habeas petition in the state trial court, again raising his claims

relevant to the jury instructions (ex. V).

Federal Review of State Court Decision

The Respondent argues that the Rule 3.850 court made a factual finding that

Mr. Parker’s claims were factually false and that this court owes deference to that

finding (doc. 34, p. 15). The undersigned is not convinced that the Rule 3.850 court’s

ruling was a finding of fact. The issue was whether the instruction was complete,

and the Rule 3.850 court found that it “properly” instructed the jury. This is a

conclusion of law, not a finding of fact. However, whether it was one or the other

makes no difference. If the Rule 3.850 court’s ruling was a conclusion of law, review

by this court will not help Mr. Parker

The transcript of the trial contains the following, which immediately followed

the victim identifying Mr. Parker without objection:

Q Now before this incident on April 7th, 2003 had you been living

together?

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A I’m sorry, let me correct that. I’m sorry, it was 2003 that I met him

in February, sorry.

Q Okay.

A Yes, we were living together at the Lyons motel.

Q And where is that located?

A Over on Martin Luther King and off Texar.

Q And how long had you been living together at that time?

A Probably for two-and-a-half months, three months.

Q And were you pregnant on April 7th of 2003?

A Yes, I was.

Q And how far along were you?

A I was six months.

Q And when was your child born?

A July 11th.

Q And is Mr. Parker the father of your child?

A No, he’s not.

Q Did he know you were pregnant?

A Yes, he did.

Q How did he know?

A Because we talked about being together when the baby came.

(Ex. C, pp. 16-17).

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After both the prosecution and defense had rested, the court instructed the

jury as follows:

To prove the crime of aggravated battery the State must prove

the following two elements beyond a reasonable doubt.

The first element is the definition of battery. No. 1, the defendant

intentionally touched or struck Ms. Lewis against her will. No. 2, the

defendant in committing the battery knew or should have known that

Ms. Lewis was pregnant.

(Ex. C, p. 49). The crime charged was Section 784.045, Florida Statutes (2003), which

read as follows: 

Aggravated battery.— (1)(a) A person commits aggravated battery who,

in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent

disability, or permanent disfigurement; or

2. Uses a deadly weapon.

(b) A person commits aggravated battery if the person who was the

victim of the battery was pregnant at the time of the offense and the

offender knew or should have known that the victim was pregnant.

(2) Whoever commits aggravated battery shall be guilty of a felony of

the second degree, punishable as provided in s. 775.082, s. 775.083, or

s. 775.084. 

Mr. Parker was tried during the week of September 2, 2003. The court

instructed the jury from the Florida Standard Jury Instructions used in criminal trials. 

After Mr. Parker was convicted, the Florida First District Court of Appeal issued its

decision in Small v. State, 889 So.2d 862 (Fla. 1st DCA 2004), in which it held that the

then standard jury instruction was erroneous because it did not instruct the jury that

an element of the offense was that the victim was in fact pregnant. Therefore, Mr.

Parker says, he was denied his fundamental right to have the jury instructed on all

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elements of the crime because his attorney failed to object and request a proper

instruction.

The First DCA’s decision in Small was issued after Mr. Parker’s trial, and no

other appellate court had held that the standard instruction was improper. 

Consequently, at the time of trial the standard instruction was presumptively correct,

and defense counsel would not know otherwise. It is well settled that counsel’s

failure to predict changes in the law is not objectively unreasonable. See Spaziano

v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“[W]e have held many times that

reasonably effective representation cannot and does not include a requirement to

make arguments based on predictions of how the law may develop.”) (quotations

and alterations omitted); Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995) (“[t]o

be effective within the bounds set by Strickland, an attorney need not anticipate

changes in the law.”); see also Reutter v. Secretary for Dep’t of Corrections, 232 Fed.

Appx. 914, 916-17 (11th Cir. 2007) (unpublished opinion) (holding that petitioner failed

to establish deficient performance where petitioner faulted appellate counsel for

failing to raise issue based on cases which purportedly foreshadowed a subsequent

appellate court ruling supporting petitioner’s argument). Because no court had held,

prior to Mr. Parker’s trial, that the standard instruction was incomplete, defense

counsel was not on notice that one might.

Another question goes to whether federal habeas relief can be granted merely

because an improper instruction was given. That issue was addressed recently by

the U.S. Supreme Court in Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 172

L.Ed.2d 532 (2009):

Our habeas precedent places an “especially heavy” burden on a

defendant who, like Sarausad, seeks to show constitutional error from

a jury instruction that quotes a state statute. Henderson v. Kibbe, 431

U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977). Even if there is

some “ambiguity, inconsistency, or deficiency” in the instruction, such

an error does not necessarily constitute a due process violation. 

Middleton [v. McNeil, 541 U.S. 433], 437, 124 S. Ct. 1830, [158 L. Ed. 2d

701 (2004)]. Rather, the defendant must show both that the instruction

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was ambiguous and that there was “ ‘a reasonable likelihood’ ” that the

jury applied the instruction in a way that relieved the State of its burden

of proving every element of the crime beyond a reasonable doubt. 

Estelle [v. McGuire, 502 U.S. 62], 72, 112 S. Ct. 475, [116 L. Ed. 2d 385

(1991)] (quoting Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190,

108 L. Ed. 2d 316 (1990)). In making this determination, the jury

instruction “ ‘may not be judged in artificial isolation,’ but must be

considered in the context of the instructions as a whole and the trial

record.” Estelle, supra, at 72, 112 S. Ct. 475 (quoting Cupp v. Naughten,

414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). Because it is

not enough that there is some “slight possibility” that the jury

misapplied the instruction, Weeks v. Angelone, 528 U.S. 225, 236, 120

S. Ct. 727, 145 L. Ed. 2d 727 (2000), the pertinent question “is ‘whether

the ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process,’ ” Estelle, supra, at 72, 112

S. Ct. 475 (quoting Cupp, supra, at 147, 94 S. Ct. 396).

Id., 555 U.S. 190-91, 129 S. Ct. 831-32. And in an unpublished opinion, the Eleventh

Circuit recently summarized its prior holdings on this issue:

In general, questions of state law rarely raise issues of federal

constitutional significance and, therefore, “[a] state's interpretation of

its own laws or rules provides no basis for federal habeas corpus relief,

since no question of a constitutional nature is involved.” Carrizales v.

Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983); see also Cabberiza v.

Moore, 217 F.3d 1329, 1333 (11th Cir. 2000) (stating that the writ of

habeas corpus was not enacted to enforce state-created rights). Where

the claim is merely that a jury instruction was incorrect under state law,

federal habeas relief is not available. Estelle v. McGuire, 502 U.S. 62,

71-72, 112 S.Ct. 475, 481-82, 116 L.Ed.2d 385 (1991). Accordingly, we

review errors in state jury instructions in the § 2254 context solely to

determine whether the alleged errors were so critical or important to the

outcome of the trial that they rendered “the entire trial fundamentally

unfair.” Carrizales, 699 F.2d at 1055.

Applewhite v. Secretary, 373 Fed. Appx. 969, 971-72 (11th Cir. 2010).

Mr. Parker’s case is easily distinguishable from Small, where the victim did not

testify and much of the evidence came in under exceptions to the hearsay rule. Mr.

Parker’s victim testified that she was six months pregnant at the time of the assault

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and that Mr. Parker knew it because they had discussed what they would do when

the baby was born. The child was born almost exactly three months after the

assault. None of this evidence was disputed. Therefore, Mr. Parker cannot show

that there was “‘a reasonable likelihood’” that the jury applied the instruction in a

way that relieved the State of its burden of proving every element of the crime

beyond a reasonable doubt, Estelle, supra, or that the alleged error was so critical

as to make the entire trial fundamentally unfair, Applewhite, supra.

Based on the record before this court, the state court’s ruling did not result

in a decision that was contrary to, or involved an unreasonable application of, clearly

established federal law, or was based on an unreasonable determination of the facts

in light of the evidence presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr.

Parker is not entitled to federal habeas relief on this claim, and the writ should not

issue.

Grounds 3 and 4 Failure to investigate and prepare a defense.

Mr. Parker next contends that his attorney failed to interview him to get

important information and otherwise failed to prepare a defense for trial. (Doc. 18,

pp. 6-9).

State Court Decision

These issues were addressed at the evidentiary hearing. Defense counsel

testified that at the time of trial she had been a criminal defense attorney for more

than 22 years; reviewed the arrest report and other discovery provided by the state;

went to the jail to interview Mr. Parker, went over the discovery with him and

discussed how he wanted to proceed; took the deposition of the victim and was told

among other things that the victim wanted Mr. Parker to get help, not punishment;

discussed the victim’s testimony with Mr. Parker and with him developed a theory

of defense that this particular altercation was part of an ongoing loving but

sometimes argumentative relationship and that the victim gave as well as she took

(ex. H, pp. 284-89). After the state rested at trial, defense counsel discussed the

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advisability of Mr. Parker testifying and he decided that he would not (ex. H, pp. 282-

92). He so stated at trial under oath, acknowledging that he knew if he testified the

state would prove that he had twenty prior felony convictions. He further stated that

he did not have any witnesses he wanted to call (ex. C, pp. 32-33).

The Rule 3.850 court found that counsel’s decisions on how to try the case

were strategic and that her performance was not deficient. 

Federal Review of State Court Decision

The Rule 3.850 court found, as fact, that counsel’s performance was not

deficient. “Inquiries into strategic or tactical decisions challenged as ineffective

assistance of counsel involve both a factual and a legal component. The question

of whether an attorney’s actions were actually the product of a tactical or strategic

decision is an issue of fact, and a state court’s decision concerning that issue is

presumptively correct. By contrast, the question of whether the strategic or tactical

decision is reasonable enough to fall within the wide range of professional

competence is an issue of law not one of fact . . ..” Provenzano v. Singletary, 148

F.3d 1327, 1330 (11th Cir. 1998); Jackson v. Herring, 42 F.3d 1350, 1357 (11th Cir.

1995). Moreover, counsel’s tactical decisions on which defense to pursue are

“virtually unchallengeable.” Provenzano, 148 F.3d at 1332 (quoting Strickland); 

Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir. 1995). Cf. Miller v. Anderson, 255 F.3d

455, 458 (7th Cir. 2001) (the fact that something was a tactical decision does not

immunize it from review under Strickland). “[A] court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (quotation marks and citation

omitted); see also Waters, 46 F.3d 1506, 1518-19 (11th Cir. 1995) (en banc) (observing

that “[w]e cannot, and will not, second guess” the “strategic decisions trial counsel

are called upon to make”). “[C]ounsel cannot be adjudged incompetent for

performing in a particular way in a case, as long as the approach taken might be

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considered sound trial strategy.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.

2001). 

After all, “[t]here are countless ways to provide effective assistance in any

given case,” and “[e]ven the best criminal defense attorneys would not defend a

particular client in the same way.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;

accord, e.g., Waters, 46 F.3d at 1522 (“Three different defense attorneys might have

defended Waters three different ways, and all of them might have defended him

differently from the way the members of this Court would have, but it does not follow

that any counsel who takes an approach we would not have chosen is guilty of

rendering ineffective assistance.”).

In fact, “a lawyer can make a reasonable decision that no matter what an

investigation might produce, he wants to steer clear of a certain course.” Rogers v.

Zant, 13 F.3d 384, 387 (11th Cir. 1994). Accordingly, counsel’s decision to curtail

investigative efforts is also presumed reasonable, and the exclusion of other viable

defenses does not establish ineffective assistance unless it is demonstrated that the

course counsel actually chose was itself unreasonable. Chandler, 218 F.3d at 1318. 

“Counsel also is not required to have a tactical reason–above and beyond a

reasonable appraisal of a claim’s dismal prospects for success–for recommending

that a weak claim be dropped altogether.” Knowles, 556 U.S. at __, 129 S. Ct. at

1422.

Likewise, counsel’s decision whether to call a particular witness is also a

matter of trial strategy entitled to great deference. Chandler, 218 F.3d at 1314 n. 14

(citing Waters, 46 F.3d at 1518-19). “The mere fact that other witnesses might have

been available or that other testimony might have been elicited from those who

testified is not a sufficient ground to prove ineffectiveness of counsel.” Waters, 46

F.3d at 1514. “Complaints of uncalled witnesses are not favored, because the

presentation of testimonial evidence is a matter of trial strategy and because

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allegations of what a witness would have testified are largely speculative.” 

Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978).7

Applying that guidance here, it is clear that counsel’s strategy was reasonable. 

She wanted to show the jury that this incident was part of a contentious but loving

relationship, hoping for a lesser included offense or even a jury pardon. The assault

was not witnessed by any third party; the victim was obviously pregnant; the victim

had a large red area on her face; and the victim testified. Mr. Parker now says a Mr.

Washington should have been called to testify and would have confirmed that the

victim had bruises on her arm before the assault, but there is no indication that Mr.

Washington could have denied the injury to the victim’s face. The victim testified

that she was hit in the face by Mr. Parker’s closed fist, the police took pictures of her

face, and one of the pictures was introduced in evidence (ex. C, pp. 19-23). Clearly

defense counsel had little to work with. She fully investigated the facts, consulted

with her client and with him developed a strategy for defense. Counsel’s strategy

was not unreasonable under the circumstances.

 Based on the record, the state court’s ruling did not result in a decision that

was contrary to, or involved an unreasonable application of, clearly established

federal law, or was based on an unreasonable determination of the facts in light of

the evidence presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Parker is

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

Ground 5 Failure to move for judgment of acquittal.

Mr. Parker alleges his trial counsel did not move for judgment of acquittal at

the conclusion of the prosecution’s case. He his counsel failed to challenge the

sufficiency of the evidence, specifically: that the victim was in fact pregnant; that Mr.

7

 Former Fifth Circuit decisions issued before October 1, 1981, are binding precedent on the Eleventh

Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

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Parker causes the bruises on the victim; that the victim’s claim was based on anger

and retribution. (Doc. 18, pp. 9-10).

State Court Decision

The Rule 3.850 court reviewed the transcript of trial and found that “any

motion for judgment of acquittal would have had no possibility of success.” (Ex. H,

p. 184).

Federal Review of State Court Decision

The undersigned has also reviewed the trial transcript. Nothing more need

be said. A motion for judgment of acquittal was not indicated and would not have

been granted. The Rule 3.850 court’s ruling did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal

law, or was based on an unreasonable determination of the facts in light of the

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

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

Grounds 6 and 8. Allowing victim to testify to prior bad acts.

In these two grounds Mr. Parker contends that counsel was ineffective in not

objecting to uninvited statements by the victim concerning Mr. Parker’s prior bad

behavior and in not moving in limine to prevent the statements. (Doc. 18, 10-12, 13-

14).

State Court Decision

These claims were handled at the evidentiary hearing on Mr. Parker’s motion

for post-conviction relief . Appointed defense counsel obtained the right to question

jurors on whether the testimony had any effect on their deliberations, but none could

remember enough to provide any help (ex. H, pp. 276-78). Trial defense counsel

testified at the hearing that she did not object as part of her defense strategy. At trial

she obtained admissions from the victim that she used crack cocaine and alcohol

while pregnant, that she had been the aggressor in at least one instance, and that

she did not require medical attention after the incident (ex. C, pp. 23-26). The Rule

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3.850 court found that this approach was in keeping with counsel’s defense strategy

and was not unreasonable (ex. H, p. 311).

Federal Review of State Court Decision

Although Mr. Parker contends that counsel’s failure to prevent, or at least

object to, the unfavorable testimony was unprofessional, the Rule 3.850 court found

as fact that it was part of counsel’s defense strategy, and this court agrees that

counsel’s conduct was not deficient in dealing with the parties’ ongoing relationship. 

Therefore, the state court’s ruling did not result in a decision that was contrary to,

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

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

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

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

Ground 7. Conceding guilt.

Mr. Parker contends that counsel conceded his guilt during closing

arguments. (Doc. 18, pp. 12-13).

State Court Decision

The Rule 3.850 court addressed this issue based on the written record. It

found: “This claim is conclusively refuted by the record, as no concession of guilt

occurred during closing arguments.” (Ex. H, p. 185). 

Federal Review of State Court Decision

During closing arguments defense counsel first outlined the parties’ ongoing

loving relationship which, although not without problems, was nevertheless present. 

She then seriously challenged the victim’s veracity by pointing to her admitted use

of drugs and alcohol during pregnancy and her lack of desire to quit, her refusal of

medical assistance, and a detective’s testimony that she was obviously using drugs

and/or alcohol when he came to the scene. Counsel then suggested that “if you

believe her version of what happened, they are both guilty and so should Mr. Parker

be the only one to be punished, that’s for you to decide.” (Ex. C, p. 40). On rebuttal

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counsel said “There’s a lesser included offense here, Judge Shackelford is going to

instruct you about that and this is battery. Perhaps if you believe her version of what

happened, you may find that Mr. Parker is guilty of battery.” (Id. at 46).

While these statements may sound like concessions, they were not. Both

statements required the jury first to believe the victim before finding guilt, and

counsel had ably challenged the victim’s veracity. Moreover, admitting to the

possibility of a lesser offense in many circumstances is often a good idea, and this

was one of those circumstances. This line or reasoning also goes to prejudice. 

Counsel had little to work with. The victim testified to her version of events. There

was no testimony to refute even the smallest part of her testimony. Mr. Parker was

going to be found guilty based on the evidence because the evidence was

overwhelming and unrebutted. Therefore, even if counsel’s statements in closing

were professionally deficient, which the court does not find, Mr. Parker was not

prejudiced by them because short of a lesser included offense he was going to be

found guilty.

 Based on the record, the state court’s ruling did not result in a decision that

was contrary to, or involved an unreasonable application of, clearly established

federal law, or was based on an unreasonable determination of the facts in light of

the evidence presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Parker is

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

CONCLUSION

The court has carefully reviewed the trial transcript, the records of

proceedings on Mr. Parker’s motion for post-conviction relief pursuant to Rule 3.850,

Florida Rules of Criminal Procedure, and all submissions in this proceeding. Mr.

Parker’s grounds alleging ineffective assistance of counsel are without merit.

For his last ground Mr. Parker claims cumulative error. There was no error,

so there was no cumulative error.

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CERTIFICATE OF APPEALABILITY

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

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

appealability when it enters a final order adverse to the applicant.” If a certificate is

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

required by 28 U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Cases. 

A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595,

1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

The second sentence of 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.” 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.

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Accordingly, it is respectfully RECOMMENDED:

1. That the 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

challenging the conviction and sentence in State of Florida v. Timothy Louis Parker,

in the Circuit Court of Escambia County, Florida, case no.03-1693, be DENIED and

the clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 1st day of September, 2011.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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