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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT ALLEN,

Petitioner,

vs. Case No.: 3:10cv226/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 (doc. 13). Petitioner filed a reply (doc. 16).

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. 13).2

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

Florida, Case No. 2006-CF-4462, with one count of aggravated battery upon a law enforcement

officer, firefighter, or emergency medical care provider (Count 1), one count of battery on a law

1

 Kenneth S. Tucker succeeded Edwin G. Buss, who succeeded Walter A. McNeil, 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.

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

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enforcement officer (Count 2), and one count of resisting an officer with violence (Count 3) (Ex. A

at 4–5). At the beginning of Petitioner’s jury trial, on April 9 and 12, 2007, the State announced a

nolle prosequi as to Count 2 (Ex. B at 49). Petitioner was subsequently acquitted on Count 1 and

found guilty of resisting an officer with violence on renumbered Count 2 (originally Count 3) (Ex.

A at 28–29, Ex. B). On May 30, 2007, Petitioner was adjudicated guilty and sentenced as a habitual

felony offender to ten (10) years of imprisonment with pre-sentence credit of 210 days (Ex. A at

57–71). 

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

Appeal (“First DCA”), Case No. 1D07-3201 (Ex. D). 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.). On July 28, 2008, the

First DCA affirmed the judgment per curiam without written opinion, with the mandate issuing

August 25, 2008 (Ex. F). Allen v. State, 987 So. 2d 1212 (Fla. 1st DCA 2008) (Table). Petitioner

did not seek further review. 

On February 2, 2009, Petitioner filed a petition for writ of habeas corpus in the First DCA,

Case No. 1D08-6198, alleging ineffective assistance of appellate counsel (Ex. G). The First DCA

denied the petition on the merits on January 13, 2009, and denied Petitioner’s motion for rehearing

on April 7, 2009 (Exs. H, I). Allen v. State, 6 So. 3d 54 (Fla. 1st DCA 2009) (Table). 

On December 16, 2008, Petitioner filed a motion for post-conviction relief, pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure (Ex. J at 1–10). The state circuit court summarily

denied the motion on October 28, 2009 (id. at 31–37). Petitioner appealed the decision to the First

DCA, Case No. 1D10-0107 (id. at 73). The First DCA affirmed the decision per curiam without

written opinion on February 25, 2010, with the mandate issuing March 23, 2010 (Exs. K, L). Allen

v. State, 29 So. 3d 1119 (Fla. 1st DCA 2010) (Table). 

Petitioner filed the instant federal habeas action on June 21, 2010 (doc. 1). 

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

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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:

(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

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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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

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

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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

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

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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

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 claim.

III. PETITIONER’S CLAIM

Ground One: “Mr. Allen was denied effective assistance of trial counsel in violation of the

Sixth and Fourteenth Amendments to the U.S. Constitution.”

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Petitioner contends defense counsel was ineffective for failing to object to the following

comments of the prosecutor during closing argument, on the ground that the comments violated a

pre-trial order and constituted improper vouching: 

[MS. SMITH, THE PROSECUTOR]: Now, this is the only time I have to

respond to what Mr. Rollo [defense counsel] said so I’m going to make some brief

responses. It is absolutely right that you have to weigh the facts of the case, what is

credible to you and what is not, what means more to you and what doesn’t and no

matter what Mr. Rollo and I tell you, it is what how [sic] you weigh it that is the most

important. As I said, we have a six time convicted felon versus five law enforcement

officers and I call the crime scene officers law enforcement.

MR. ROLLO: I’m going to object. That is not the purpose of the

impeachment of the prior convictions [sic]. It is not a weighing in that sense and that

is improper argument.

THE COURT: Noted, overruled.

MS. SMITH: We have three law enforcement officers including some crime

scene officers. All five of those officers take their job very seriously.

MR. ROLLO: I object to the bolstering.

THE COURT: Disregard the last comment about taking things seriously.

(doc. 1 at 3–4; doc. 16 at 1–2).4 Petitioner contends if counsel had objected to the comments and

made a motion for mistrial, the trial court would have immediately stopped the prosecutor’s

improper comments, or the issue would have been properly preserved for direct appeal (id.). 

Respondent contends Petitioner failed to show that the state court’s adjudication of the claim

was based upon an unreasonable determination of the facts, or contrary to or an unreasonable

application of clearly established federal law (doc. 13 at 3–9).

A. 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

4

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

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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

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). 

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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.

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). 

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). 

B. Federal Review of State Court Decision

Petitioner raised this claim as Ground III in his Rule 3.850 motion (Ex. J at 6–9). The state

circuit court adjudicated the claim as follows:

Defendant claims that the prosecutor violated a motion in limine precluding

any mention of Defendant’s “court history”[FN 8: reference to defense’s motion in

limine] when she said in closing arguments that Defendant was a “six time convicted

felon.”[FN 9: reference to trial transcript] Additionally, Defendant claims that the

State improperly bolstered the credibility of the police officer witnesses by

commenting “they take their job very seriously.” Defendant alleges that defense

counsel was deficient for not making a motion for mistrial at that time.

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“A party may attack the credibility of any witness, including an accused by

evidence that the witness has been convicted of a crime if the crime was punishable

by death or imprisonment in excess of one year.” See Section 90.610, Florida

Statutes. Defendant’s testimony opened the door for the State’s impeachment of

Defendant’s credibility based on his prior felonies because Defendant chose to

testify. Defendant actually testified himself that he had six prior felony convictions

by way of anticipatory rehabilitation.[FN 10: reference to trial transcript] 

Consequently, Defendant was not prejudiced by the comments made in the State’s

closing. Furthermore, counsel objected to the prosecutor’s statement that the police

witnesses “take their job very seriously,” and the Court instructed the jury to

disregard the comment.[FN 11: reference to trial transcript] The Court would not

have granted a mistrial on that basis. As counsel was not deficient for not making

a motion that was not likely to be successful, Defendant is not entitled to relief.

(Ex. J at 36–37). The First DCA affirmed the circuit court’s decision without a written decision (Ex.

K).

Initially, the state circuit court identified the two-pronged Strickland standard as the correct

legal standard applicable to Petitioner’s claim (Ex. J at 31–32). Additionally, Petitioner has failed

to rebut the state court’s factual findings with clear and convincing evidence. Therefore, the

following factual findings are presumed correct: (1) Petitioner raised the issue of his prior

convictions by testifying, on direct examination, that he had six prior felony convictions (see Ex.

B at 170); and (2) defense counsel objected to the prosecutor’s statement that the police witnesses

“take their job very seriously,” on the ground that is was improper bolstering, and the trial court

instructed the jury to disregard the comment (id. at 232). Petitioner thus is entitled to federal habeas

relief only if he demonstrates that the state court’s adjudication of the claim was an unreasonable

application of Strickland. 

To assess whether defense counsel performed unreasonably by failing to object to statements

by the prosecutor or move for a mistrial, the court must determine whether counsel had a meritorious

basis for doing so. Under Florida law, the standard for reviewing prosecutorial comments is the

following:

Wide latitude is permitted in arguing to a jury. Logical inferences may be drawn,

and counsel is allowed to advance all legitimate arguments. The control of

comments is within the trial court’s discretion, and an appellate court will not

interfere unless an abuse of such discretion is shown. A new trial should be granted

when it is “reasonably evident that the remarks might have influenced the jury to

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reach a more severe verdict of guilt than it would have otherwise done.” Each case

must be considered on its own merits, however, and within the circumstances

surrounding the complained-of remarks.

Breedlove v. State, 413 So. 2d 1, 8 (Fla. 1982) (quoting Darden v. State, 329 So. 2d 287, 289 (Fla.

1976)) (other citations omitted). This state rule is essentially the same as the federal due process

standard governing allegedly improper argument by the prosecution. A prosecutor may argue both

facts in evidence and reasonable inferences from those facts. Tucker v. Kemp, 762 F.2d 1496, 1506

(11th Cir. 1985) (citations omitted). But if the evidence is too insubstantial to support a reasonable

inference, the prosecutor’s comment will be deemed improper. Id. at 1507. Prosecutors must

observe the distinction between the permissible practice of arguing evidence and suggesting

inferences which the jury may reasonably draw from it and the impermissible practice of arguing

suggestions beyond the evidence. See United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992)

(citation omitted). 

Attempts to bolster a witness by vouching for his credibility are improper “if the jury could

reasonably believe that the prosecutor indicated a personal belief in the witness’ credibility.” United

States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991) (citing United States v. Sims, 719 F.2d 375,

377 (11th Cir. 1983)). A jury could believe that the prosecutor personally believed in the witness’

credibility “if the prosecutor either places the prestige of the government behind the witness, by

making explicit personal assurances of the witness’ veracity, or the prosecutor implicitly vouches

for the witness’ veracity by indicating that information not presented to the jury supports the

testimony.” Id. (citation omitted). Thus, the court must examine whether (1) the prosecutor

explicitly personally assured the witness’ credibility, or (2) the prosecutor implicitly vouched for

the witness’ credibility by implying that evidence not presented to the jury supports the witness’

testimony. United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996) (citing Sims, 719 F.2d at

377).

However, it should be noted that “[t]he prohibition against vouching does not forbid

prosecutors from arguing credibility . . . it forbids arguing credibility based on the reputation of the

government office or on evidence not before the jury.” United States v. Hernandez, 921 F.2d 1569,

1573 (11th Cir. 1991). Furthermore, when the prosecutor voices a personal opinion but indicates

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this belief is based on evidence in the record, the comment is not improper. United States v.

Granville, 716 F.2d 819, 822 (11th Cir. 1983) (finding no prosecutorial misconduct where

prosecutor, in effort to support testimony of two government witnesses, only pointed to matters in

evidence: the demeanor of one witness and testimony of support witnesses, as well as a tape

recording corroborating the testimony of another) (citations omitted).

Finally, “the limits of proper argument find their source in notions of fairness, the same

source from which flows the right to due process of law.” Houston v. Estelle, 569 F.2d 372, 380

(5th Cir. 1978). “The relevant question is whether the prosecutor’s comments ‘so infected the trial

with unfairness as to make the resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly

v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)). Thus, to establish

prosecutorial misconduct, a two-prong test must be satisfied: (1) the prosecutor’s comments must

have been improper; and (2) the comments must have rendered the trial fundamentally unfair. See

United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991) (citations omitted); Brooks v. Kemp,

762 F.2d 1383, 1400 (11th Cir. 1985) (en banc), vacated on other grounds, 478 U.S. 1016, 106 S.

Ct. 3325, 92 L. Ed. 2d 732 (1986), reinstated, 809 F.2d 700 (11th Cir. 1987); Dessaure v. State, 891

So. 2d 455, 464–65 (Fla. 2004) (an order granting mistrial is required only when the error upon

which it rests is so prejudicial as to vitiate the entire trial, making a mistrial necessary to ensure that

the defendant receives a fair trial). If a reviewing court is confident that, absent the improper

remarks, there is no reasonable probability that the outcome of the trial would have been different,

the trial cannot be said to have been fundamentally unfair. See Brooks, 762 F.2d at 1402; Tucker

v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986).

In the instant case, Petitioner failed to show defense counsel had a meritorious basis for

objecting to the prosecutor’s comment on Petitioner’s prior felony convictions on the ground that

it violated the court’s pre-trial order on a motion in limine. The day of trial, defense counsel filed

a motion in limine seeking to prevent the State from “eliciting and/or any witness for the State from

testifying about . . . any characterization or mention of the Defendant’s court history” (Ex. J at 67). 

The State did not object to the motion, and the trial court instructed the witnesses: “We have agreed

that certain things should not come out or be volunteered or mentioned in the course of your

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testimony. That is in characterization mention [sic] of the defendant’s court history . . .” (Ex. B at

50). None of the State’s witnesses mentioned Petitioner’s criminal history in their testimony. 

However, during Petitioner’s testimony, defense counsel asked him whether he had been previously

convicted of six felonies, and Petitioner responded, “Yes, sir.” (id. at 170). The trial court’s granting

the motion in limine did not preclude the prosecutor from commenting on Petitioner’s six prior

felony convictions after Petitioner placed that fact in evidence. Therefore, Petitioner failed to show

defense counsel had a meritorious basis to object to the comment or move for a mistrial, on the

ground that the comment violated the order on the motion in limine. 

With regard to the prosecutor’s comment, “those officers take their job very seriously,” the

record demonstrates defense counsel did object to the comment as improper bolstering (Ex. B at

232). The trial court sustained the objection and instructed the jury to disregard it (id.). The

Eleventh Circuit has stated in numerous cases that jurors are presumed to follow the court’s

instructions. See, e.g., Ingram v. Zant, 26 F.3d 1047, 1053 (11th Cir. 1994) (“Because we presume

that jurors follow such instructions, we must assume that the jury put aside any biases it may have

had, applied the legal standards as enunciated in the jury instructions, and based its sentencing

decision on the facts introduced at trial and sentencing.”); Raulerson v. Wainwright, 753 F.2d 869,

876 (11th Cir. 1985) (“Jurors are presumed to follow the law as they are instructed.”). In light of

the court’s instruction and Petitioner’s failure to rebut the presumption that the jury followed this

instruction, Petitioner failed to show defense counsel had a meritorious basis to move for mistrial

on the ground that the prosecutor’s comment rendered the trial fundamentally unfair. Therefore, the

state court’s denial of this claim, on the ground that defense counsel was not deficient because the

court would not have granted a mistrial, was reasonable. 

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 federal habeas relief.

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

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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 Walter A. McNeil as Respondent.

And it is respectfully RECOMMENDED:

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 17th day of May 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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