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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DANA L. JENKINS,

Petitioner,

v. Case No. 5:09cv292/RH/CJK

KENNETH S. TUCKER,1

Respondent.

___________________________________________________________________

ORDER, AMENDED REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C.

§ 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the

state court record. (Doc. 14). Petitioner replied. (Doc. 16). On April 4, 2012, the

undersigned issued a Report and Recommendation. (Doc. 18). This Amended Report

and Recommendation is submitted following the discovery of a clerical error in the

original Report and Recommendation.2

 For the sake of clarity, the original Report and

Recommendation shall be vacated and this Amended Report and Recommendation

shall replace the former in full. Although this Amended Report and Recommendation

does not change the substantive analysis in any way, the parties shall be given

1

Kenneth S. Tucker succeeded Walter McNeil and Edwin G. Buss as Secretary of the Florida

Department of Corrections, and is automatically substituted as the respondent. Fed. R. Civ. P. 25(d).

2

The original Report and Recommendation incorrectly identified the state court which

convicted and sentenced petitioner as the Circuit Court for Escambia County, Florida, instead of the

Circuit Court for Bay County, Florida.

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additional time, fourteen days from today’s date, to file objections to this Amended

Report and Recommendation pursuant to 28 U.S.C. § 636(b). It remains the opinion

of the undersigned that no evidentiary hearing is required for the disposition of this

matter, that the pleadings and attachments before the Court show that petitioner is not

entitled to federal habeas relief, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On January 3, 2006, petitioner was charged by complaint affidavit with one

count of Obtaining a Prescription by Fraud and one count of Trafficking in (by

Possessing) 28 grams or More of a Controlled Substance (Hydrocodone). (Doc. 14,

Exs. A, B).3

 On February 28, 2006, the State filed an Information in Bay County

Circuit Court Case Number 06-CF-35, charging petitioner with one count of

Trafficking in 28 Grams or More of a Controlled Substance (Methamphetamine). 

(Exs. A, C). The Information was later amended to correct the identity of the

controlled substance to Hydrocodone. (Ex. D). 

On October 4, 2006, petitioner changed his original plea of not guilty to a plea

of no contest. (Ex. E). After an extensive plea colloquy, the trial court found 

petitioner’s plea freely and voluntarily made and accepted the plea. (Id.). On March

26, 2007, petitioner filed a counseled Motion to Withdraw Plea under Florida Rule of

Criminal Procedure 3.171(g). (Ex. F). The trial court denied the motion after a

hearing. (Exs. G, H). On June 29, 2007, the State filed a Motion to Mitigate

Sentence, asking the court to mitigate the 25-year minimum mandatory sentence

petitioner faced to a sentence of 15 years imprisonment due to petitioner having

3

Hereafter, all references to exhibits will be to those provided at Doc. 14, unless otherwise

noted.

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provided substantial assistance to the State. (Ex. I). The court held a sentencing

hearing, adjudicated petitioner guilty and sentenced petitioner to 15 years

imprisonment (without a mandatory minimum), granting the State’s motion to

mitigate. (Ex. L). Judgment was rendered June 29, 2007. (Ex. K). Petitioner did not

directly appeal from the judgment. 

On November 7, 2007, petitioner filed a pro se motion to withdraw his plea. 

(Ex. M). The trial court denied the motion as untimely on November 14, 2007. (Ex.

N). Petitioner did not appeal. 

On July 15, 2008, petitioner filed a motion to correct illegal sentence under

Florida Rule of Criminal Procedure 3.800(a). (Ex. O). The trial court denied the

motion on July 31, 2008. (Ex. P). Petitioner did not appeal.

On August 27, 2008, petitioner filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850. (Ex. Q, pp. 1-17). The trial court denied

the motion without an evidentiary hearing. (Id., pp. 25-27). On May 22, 2009, the

Florida First District Court of Appeal (“First DCA”) per curiam affirmed without

written opinion. Jenkins v. State, 13 So.3d 60 (Fla. 1st DCA 2009) (Table) (copy at

Ex. U). The mandate issued August 11, 2009. (Ex. X).

Petitioner filed the instant federal habeas petition on August 18, 2009. (Doc.

1). The petition presents three grounds for relief: (1) that petitioner’s plea was not

knowing and intelligent because (a) petitioner was unaware that he had a viable due

process defense based on law enforcement’s misconduct and (b) trial counsel was

ineffective for failing to seek dismissal of the charge on that basis; (2) that petitioner’s

plea was not knowing and intelligent because (a) petitioner did not know that the facts

could not support a conviction for Trafficking and could only support a conviction for

Attempting to Obtain a Controlled Substance by Fraud and (b) trial counsel was

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ineffective for failing to advise petitioner accordingly; and (3) that trial counsel was

ineffective for failing to investigate a witness and for failing to advise petitioner of the

affirmative defense of lack of knowledge of the illicit nature of the substance. (Doc.

1, pp. 4-26). Petitioner presented these claims to the state court in his Rule 3.850

proceeding. Respondent concedes that the petition is timely, but argues that petitioner

is not entitled to federal habeas relief because his claims are without merit.

DISCUSSION

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. 

Section 2254(d) provides, in relevant part:

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

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

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

State court proceedings unless the adjudication of the claim–

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

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d) (2011).

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

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in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).4 The

appropriate test was described by Justice O’Connor as follows:

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). 

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

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

proceeding, the federal court must 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”

only when a Supreme Court holding at the time of the state court decision embodies

the legal principle at issue. 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, 1315 (11th

Cir. 2010).

After identifying the governing legal principle(s), the federal court determines

whether the state court adjudication is contrary to the clearly established Supreme

4

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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Court case law. The adjudication is not contrary to Supreme Court precedent merely

because it fails to cite to that precedent. Rather, the adjudication is “contrary” only

if either the reasoning or the result contradicts the relevant Supreme Court cases. 

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

(“Avoiding th[e] pitfalls [of § 2254(d)(1)] 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.”). 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. See Panetti v.

Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 2858, 168 L. Ed. 2d 662 (2007).

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

federal habeas court next determines whether the state court “unreasonably applied”

the governing legal principles set forth in the Supreme Court’s cases. The federal

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

legal principle(s) was “objectively unreasonable” in light of the record before the state

court. Williams, 529 U.S. at 409; see 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). A state court, however, may “decline to apply a specific legal rule

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that has not been squarely established by [the Supreme Court]” without running afoul

of the “unreasonable application” clause. Knowles v. Mirzayance, 556 U.S. 111, 129

S. Ct. 1411, 1419, 173 L. Ed. 2d 251 (2009). 

When faced with a state appellate court’s summary affirmance of a trial court’s

decision, the “unreasonable application” standard focuses on the state court’s ultimate

conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011) (citing Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786,

178 L. Ed. 2d 624 (2011)). The federal 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 Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that 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). In sum, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Richter, 131 S. Ct. at 786-87.

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

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application” clause, the federal court applies an objective test. Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (holding that a

state court decision 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.”). The “unreasonable determination of the facts” standard is

implicated only to the extent the validity of the state court’s ultimate conclusion is

premised on unreasonable fact finding. See Gill, 633 F.3d at 1292. 

When performing review under § 2254(d), the federal court presumes that all

factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). 

The petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; 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”). Neither the Supreme Court nor the

Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the

context of fact-based challenges to state court adjudications. Cave v. Sec’y for Dep’t

of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently 

declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate

court’s summary affirmance, where it found that the validity of the state court decision

was not premised on the trial court’s unreasonable fact finding, and that the petitioner

failed to demonstrate “by clear and convincing evidence that the record reflect[ed] an

insufficient factual basis for affirming the state court’s decision.” Gill, 633 F.3d at

1292.

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

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the merits of the petitioner’s claims. See Panetti, 551 U.S. 930, 127 S. Ct. 2842, 2858. 

Even then, 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). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

Within this framework, the Court will review petitioner’s claims.

Ground 1 Petitioner’s plea was not knowing and intelligent because petitioner was

unaware that he had a viable due process defense based on law

enforcement’s misconduct. Trial counsel was ineffective for failing to

seek dismissal of the charge on that basis.

The following facts are undisputed. On November 31, 2005, petitioner walked

into Mullin’s Pharmacy in Lynn Haven, Florida, and provided the pharmacy

technician with a fraudulent prescription for 60 Lortab tablets. The technician

forwarded the prescription to the pharmacist on duty. The pharmacist asked petitioner

where he obtained the prescription. After petitioner identified the name of the doctor,

the pharmacist called the doctor. The doctor’s office informed the pharmacist that the

prescription was a forgery and advised the pharmacist to call the police. The

pharmacist called the Lynn Haven Police Department (“LHPD”). Sergeant Smith with

the LHPD advised the pharmacist to obtain the 60 Lortabs from the pharmacy, fill the

fraudulent prescription and dispense the Lortabs to petitioner. Smith further advised

the pharmacist that a detective from the Bay County Sheriff’s Office would be there

to witness the transaction. The pharmacist obtained 60 Lortabs, filled the prescription

and allowed petitioner to purchase the Lortabs. Petitioner was arrested once he was

in possession of the Lortabs. (Doc. 1, pp. 7-9). Petitioner asserts that the

pharmacist’s act of knowingly filling an invalid prescription violated state and federal

law, and that the pharmacist and law enforcement “unlawfully and objectively

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manufactured the crime of Trafficking that would not have existed but for their

unlawful act of dispensing the Lortabs to Petitioner.” (Id., p. 10). Petitioner

maintains that law enforcement’s conduct (and that of their agent, the pharmacist) was

so egregious that it violated his substantive due process rights. (Id., pp. 10-11, 18-19)

(citing Rochin v. California, 342 U.S. 165, 173, 72 S. Ct. 205, 210, 96 L. Ed. 183

(1952), and Malinski v. New York, 324 U.S. 401, 416-17, 65 S. Ct. 781, 788-89, 89 L.

Ed. 1029 (1945)). Petitioner claims that had he known the pharmacist’s and law

enforcement’s conduct barred his prosecution for Trafficking in Hydrocodone, he

would not have entered his plea and would have insisted on going to trial. (Doc. 1,

p. 19). Petitioner further asserts that trial counsel was ineffective for failing to seek

dismissal of the charge on due process grounds. (Id.).

a. Clearly Established Federal Law

 A plea of no contest stands on equal footing with a guilty plea in determining

its validity. North Carolina v. Alford, 400 U.S. 25, 35-36, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970); Hudson v. United States, 272 U.S. 451, 47 S. Ct. 127, 129, 71 L. Ed. 347

(1926). “A guilty plea is an admission of criminal conduct as well as the waiver of

the right to trial.” Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (citing Brady

v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970)). 

“Waivers of constitutional rights not only must be voluntary but must be knowing,

intelligent acts done with sufficient awareness of the relevant circumstances and likely

consequences.” Brady at 748. The standard for determining the validity of a guilty

plea is “whether the plea represents a voluntary intelligent choice among the

alternative courses open to the defendant.” Alford, 400 U.S. at 31, 91 S. Ct. 160;

Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The

assistance of counsel received by a defendant is relevant to the question of whether

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a defendant’s guilty plea was knowing and intelligent insofar as it affects the

defendant’s knowledge and understanding. See McMann v. Richardson, 397 U.S.

759, 770-71, 90 S. Ct. 1441, 1448-49, 25 L. Ed. 2d 763 (1970).

When a petitioner challenges the validity of his plea on allegations of

ineffective assistance of counsel, the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies. Hill v.

Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); see also

Missouri v. Frye, No. 10-444, — S. Ct. —, 2012 WL 932020, at *5 (U.S. Mar. 21,

2012) (“[C]laims of ineffective assistance of counsel in the plea bargain context are

governed by the two-part test set forth in Strickland.”). To obtain relief under

Strickland, a petitioner must establish that: (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, 466 U.S. at 694.

The focus of inquiry under the performance prong of Strickland is “whether

counsel’s advice ‘was within the range of competence demanded of attorneys in

criminal cases.’” Hill, 474 U.S. at 56–57 (quoting McMann v. Richardson, 397 U.S.

at 771). “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.” Strickland at 689. Under this

standard, representation is ineffective only if counsel commits “serious derelictions”

of his duty when advising the accused. Stano v. Dugger, 921 F.2d 1125, 1150–51

(11th Cir. 1991). Absent such blatant errors, the court should “indulge a strong

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

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professional assistance.” Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990). 

To meet the prejudice prong of Strickland in a plea situation, petitioner must

establish that “counsel’s constitutionally ineffective performance affected the outcome

of the plea process.” Hill, 474 U.S. at 59. While counsel can be deemed ineffective

under Strickland for failing to provide proper advice during the plea process,

petitioner must also demonstrate a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial. Hill, 474

U.S. at 58-59. “It is not enough for [petitioner] to show that the errors had some

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

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,

— U.S. —, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010). “Establishing that a

state court’s application of Strickland was unreasonable under § 2254(d) is all the

more difficult.” Richter, 131 S. Ct. at 788. As the Court in Richter explained:

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. (citations omitted).

b. Federal Review of State Court Decision

Petitioner presented this claim to the state courts as Ground 1 of his Rule 3.850

motion. The Rule 3.850 court denied relief as follows:

In Ground 1, it appears that the Defendant is arguing that the

pharmacist who filled the prescription committed an illegal act in doing

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so. Defendant appears to argue that, once the pharmacist called the

doctor and confirmed that the prescription was fraudulent, it was illegal

for him to fill it, even at the request of police. The Defendant claims that

the pharmacist, acting as an agent of law enforcement, committed an

illegal act. It appears that the Defendant is attempting to raise an

objective entrapment defense, alleging that the conduct of the law

enforcement officials in this case and the pharmacist, acting as their

agent, was so egregious that it violated his due process rights. See

Munoz v. State, 629 So.2d 90 (Fla. 1993). Munoz cites to State v.

Williams, 623 So.2d 462 (Fla. 1993) as an example for evaluating

objective entrapment. This is also the Florida case that the Defendant

relies upon in his motion. However, in Williams, the police actually

manufactured crack cocaine for use in a reverse-sting operation against

the Defendant, by converting powder cocaine into crack cocaine. The

Williams court distinguished other cases where the police simply

delivered illegal substances, such as marijuana, to a defendant as part of

a reverse-sting operation, stating that delivery of a controlled substance

by government agents in a reverse-sting operation did not constitute

entrapment as a matter of law. It was the illegal manufacture of a

controlled substance by police officers that offended due process

considerations. In the instant case, the police and the pharmacist did not

manufacture an illgal substance. The pharmacist simply filled a

prescription for a substance which, with a doctor’s prescription, is legal

to obtain.

(Ex. Q, pp. 25-26). The state appellate court summarily affirmed the denial of relief.

Respondent argues that the state court properly denied relief and that

petitioner’s assertion that he had an entrapment defense is without merit, because

petitioner was predisposed to commit the offense. (Doc. 14). Petitioner replies that

the analysis of his claim should focus on law enforcement’s (and the pharmacist’s)

illegal and egregious conduct, not his predisposition. (Doc. 1, pp. 10-11 ¶¶ 16-20; see

also Doc. 16, p. 2 ¶ 2 (“Respondent’s response does not address the illegal acts of the

pharmacist, who had become a state agent by taking directions from the police to fill

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the fraudulent prescription. Instead, Respondent shifts the focus to Petitioner’s

predisposition to commit the crime, thereby excusing the pharmacist’s illegal acts.”). 

Petitioner’s reply goes on to allege: 

Petitioner states that he did not know the prescription was

fraudulent when he took it to the pharmacy. Upon his arrest, the police

induced him to say that he knew it was fraudulent with the promise, if he

state [sic] he knew, of immediate release. It was only then did Petitioner

state he knew it was fraudulent, and he was released form custody as a

result. 

Petitioner submits that because of his lack of knowledge that the

prescription was fraudulent, Respondent’s predisposition argument must

fail. . . . 

When Petitioner entered the pharmacy he was an “unwary

innocent,” believing the prescription was valid. As such, the actions of

the state agent pharmacist in creating the crime of trafficking violated

Petitioner’s Fourteenth Amendment right to Due Process and trial

counsel was ineffective in failing to raise the due process violation in the

trial court.

(Doc. 16, p. 2 ¶ 3).

Petitioner’s allegation that he did not know the prescription was fraudulent is

a new assertion made for the first time in his reply. To the extent the assertion is

relevant to any issue raised here, the Court will not consider it for two reasons. First,

petitioner previously acknowledged in state court and here that he knew the

prescription was fraudulent. (Doc. 1, p. 11 ¶ 19 and Doc. 14, Ex. Q, Rule 3.850

motion at p. 5 (“Petitioner clearly contends that he is in no way defending his conduct

of ‘attempting to obtain a controlled substance by fraud.’ In fact, he contends that it

is reprehensible. What he does defend i[s] hi[s] right to Due Process which prohibits

the government from obtaining convictions ‘brought about by methods that offend a

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sense of justice.’ See, Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210

(1952).”); see also Doc. 1, p. 25 ¶ 11 and Doc. 14, Ex. Q, Rule 3.850 motion at p. 15

(explaining that petitioner and “Pete” agreed that Pete would forge the prescription for

60 Lortabs, that petitioner would submit the forged prescription, and that the two

would then split the 60 Lortabs); Doc. 14, Ex. S, Rule 3.850 initial appeal brief at p.

9 (admitting to the state appellate court that “Mr. Jenkins was attempting to possess

legal drugs illegally by way of fraud.”)). Second, this Court must confine its review

under § 2254(d) to the record before the state court, and petitioner did not present this

allegation concerning lack of predisposition to the state court. See Cullen Pinholster,

563 U.S. —, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) (holding that “review under

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated

the claim on the merits.”); Borden v. Allen, 646 F.3d 785, 816-17 (11th Cir. 2011)

(holding that in reviewing a claim under § 2254(d)(1), the federal court is confined to

the allegations made in the prisoner’s state court pleading; “Logically, [the state]

court could only undertake an ‘adjudication of the claim’ that was presented to it; we

believe that a review of a state court adjudication on the merits in light of allegations

not presented to the state court – for example, by examining additional facts or claims

presented for the first time in a petitioner’s federal habeas petition – would

insufficiently respect the ‘historic and still vital relation of mutual respect and

common purpose existing between the States and the federal courts.’”) (citing Powell

v. Allen, 602 F.3d 1263 (11th Cir. 2010)). Reviewing petitioner’s claim in light of the

record before the state court, petitioner is not entitled to federal habeas relief.

The Supreme Court has declined to recognize the existence of a due process

defense grounded in the United States Constitution that focuses solely on the

government’s alleged misconduct without regard to the defendant’s predisposition. 

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In United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973),

a defendant was charged with unlawfully manufacturing methamphetamine and

unlawfully selling and delivering that drug. 411 U.S. at 424, 93 S. Ct. at 1639. The

defendant went to trial and asserted the statutory defense of entrapment. Id. On

appeal, the defendant conceded that the jury could have found him predisposed to

commit the offenses, but argued that on the facts presented, there was entrapment as

a matter of law. Id. at 427, 93 S. Ct. at 1640. The Ninth Circuit reversed the

conviction for the reason that the undercover agent investigating the defendant had

supplied an essential chemical (propanone) for manufacturing the methamphetamine. 

The Ninth Circuit concluded that as a matter of law “a defense to a criminal charge

may be founded upon an intolerable degree of governmental participation in the

criminal enterprise.” United States v. Russell, 459 F.2d 671 (9th Cir. 1972). The

Supreme Court reversed, holding that the Ninth Circuit “in effect expanded the

traditional notion of entrapment, which focuses on the predisposition of the defendant,

to mandate dismissal of a criminal prosecution whenever the court determines that

there has been ‘an intolerable degree of governmental participation in the criminal

enterprise.’” Russell, 411 U.S. at 427, 93 S. Ct. at 1640. The Supreme Court rejected

the defendant’s invitation to “reconsider the theory of the entrapment defense” by

making the defense “rest on constitutional grounds,” and rejected the defendant’s

argument that the same factors which led the Court to apply the exclusionary rule to

illegal searches and seizures (such as in Rochin, supra) and confessions (such as

Malinski, supra) should lead the Court to bar prosecutions “because of the police

involvement in criminal activity.” Id. at 430, 93 S. Ct. at 1642. The Court stated that

“[t]he analogy is imperfect,” because the “the principal reason behind the adoption of

the exclusionary rule was the Government’s ‘failure to observe its own laws,’”

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whereas the government’s conduct in Russell “violated no independent constitutional

right of the respondent. Nor did [the law enforcement officer] violate any federal

statute or rule or commit any crime in infiltrating the respondent’s drug enterprise.” 

Id. at 430, 93 S. Ct. at 1642. The Court noted:

While we may some day be presented with a situation in which the

conduct of law enforcement agents is so outrageous that due process

principles would absolutely bar the government from invoking judicial

processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165,

72 S.Ct. 205, 96 L.Ed. 183 (1952), the instant case is distinctly not of

that breed. [The law enforcement agent’s] contribution of propanone to

the criminal enterprise already in process was scarcely objectionable. 

The chemical is by itself a harmless substance and its possession is legal. 

While the Government may have been seeking to make it more difficult

for drug rings, such as that of which respondent was a member, to obtain

the chemical, the evidence . . . shows that it nonetheless was obtainable. 

The law enforcement conduct here stops far short of violating that

‘fundamental fairness, shocking to the universal sense of justice,’

mandated by the Due Process Clause of the Fifth Amendment. Kinsella

v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304,

4 L.Ed.2d 268 (1960).

Russell, 411 U.S. at 431-32, 93 S. Ct. at 1643.

Three years later, in Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646,

48 L. Ed. 2d 113 (1976), a defendant again argued to the Court that the government’s

allegedly egregious conduct (supplying a government informant with heroin which

the defendant then sold to an undercover government agent) violated the defendant’s

due process rights and provided an absolute bar to his prosecution, regardless of his

predisposition to commit the crime. Id., 425 U.S. at 488-89, 96 S. Ct. at 1649-50. 

The Supreme Court again rejected the defendant’s invitation to create a new,

constitutionally-based defense based on the government agent’s acts, and held that

“[t]he remedy of the criminal defendant with respect to the acts of Government agents,

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which, far from being resisted, are encouraged by him, lies solely in the defense of

entrapment.” Id., 425 U.S. at 490, 96 S. Ct. at 1650. The Court said: 

The limitations of the Due Process Clause of the Fifth Amendment

come into play only when the Government activity in question violates

some protected right of the Defendant. . . . If the result of the

governmental activity is to “implant in the mind of an innocent person

the disposition to commit the alleged offense and induce its commission

. . .,” Sorrells, supra, 287 U.S., at 442, 53 S. Ct., at 212, 77 L.Ed., at 417,

the defendant is protected by the defense of entrapment. If the police

engage in illegal activity in concert with a defendant beyond the scope

of their duties the remedy lies, not in freeing the equally culpable

defendant, but in prosecuting the police under the applicable provisions

of state or federal law. See O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.

Ct. 669, 679, 38 L. Ed.2d 674, 687 (1974); Imbler v. Pachtman, 424 U.S.

409, pp. 428-429, 96 S. Ct. 984, 994, 47 L. Ed. 2d 128, 142-143 (1976). 

But the police conduct here no more deprived defendant of any right

secured to him by the United States Constitution than did the police

conduct in Russell deprive Russell of any rights.

Hampton, 425 U.S. at 490-91, 96 S. Ct. at 1650 (citing Sorrells v. United States, 287

U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932)). 

The government’s conduct in petitioner’s case, like that in Russell and

Hampton, consisted of law enforcement enabling petitioner to commit the criminal

conduct he set out to commit prior to law enforcement’s involvement. The

pharmacist’s filling of the fraudulent prescription did not deprive petitioner of any

right secured to him by the United States Constitution. As petitioner had no

constitutionally-based due process defense (one focused solely on law enforcement’s

misconduct without regard to petitioner’s predisposition), petitioner’s lack of

awareness of such a defense could have no effect on the validity of his plea. 

Petitioner’s claim also fails to the extent petitioner claims his plea was

unknowing because he was not aware he could assert a due process defense based on

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state law. Although Florida law recognizes a government misconduct defense based

on the due process clause of the Florida Constitution, see State v. Williams, 623 So.2d

462 (Fla. 1993), the state courts in petitioner’s case concluded that petitioner’s claim

relied on an erroneous interpretation of Williams, and rejected the claim. Petitioner’s

argument that the state courts unreasonably applied Supreme Court law with regard

to the validity of a no contest plea obviously depends upon this Court determining that

petitioner’s plea was entered without a full awareness of this state-law defense, but

first this Court would have to conclude that the state courts misinterpreted state law,

i.e., misinterpreted State v. Williams, 623 So.2d 462 (Fla. 1993). This Court will not

second-guess the state courts on such matters. See Bradshaw v. Richey, 546 U.S. 74,

76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005) (“[A] state court’s interpretation of state

law . . . binds a federal court sitting in habeas corpus.”); 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); Herring v. Sec’y, Dep't of Corr.,

397 F.3d 1338, 1355 (11th Cir. 2005) (“It is a ‘fundamental principle that state courts

are the final arbiters of state law, and federal habeas courts should not second-guess

them on such matters.’”) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir.

1997)). 

The Florida state courts have already told this Court how the issue would have

been resolved under state law had petitioner asserted a state-law due process defense

based on government misconduct – the defense would have been rejected. The state

courts’ binding determination of Florida law means that petitioner’s lack of awareness

of that defense had no effect on the validity of petitioner’s plea. 

As to petitioner’s related claim of ineffective assistance, the fact that petitioner

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did not have a viable argument under federal or state law for dismissal of the

Trafficking charge on the basis of law enforcement’s alleged misconduct precludes

relief on petitioner’s claim that counsel was ineffective for failing to seek dismissal

of the charge on that basis. See Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 371

(“[W]here the alleged error of counsel is a failure to advise the defendant of a

potential affirmative defense to the crime charged, the resolution of the ‘prejudice’

inquiry will depend largely on whether the affirmative defense likely would have

succeeded at trial.”); Freeman v. Attorney Gen., Fla., 536 F.3d 1225, 1233 (11th Cir.

2008) (“A lawyer cannot be deficient for failing to raise a meritless claim. . . .”);

Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (concluding that counsel

was not ineffective for failing to raise issues clearly lacking in merit); Bolender v.

Singletary, 16 F.3d 1547, 1473 (11th Cir. 1994) (“[I]t is axiomatic that the failure to

raise nonmeritorious issues does not constitute ineffective assistance.”); see also

Callahan v. Campbell,427 F.3d 897, 932 (11th Cir. 2005) (“[T]he Alabama Court of

Criminal Appeals has already answered the question of what would have happened

had [defense counsel] objected to the introduction of [the petitioner’s] statements

based on [state law] – the objection would have been overruled. Therefore, [defense

counsel] was not ineffective for failing to make that objection.”) (citations omitted);

Herring, 397 F.3d at 1354-55 (same; rejecting ineffective assistance claim

complaining of counsel’s failure to make an objection, based on state law, to the

introduction of certain evidence, where the Florida Supreme Court had already

concluded that the objection would have been overruled). 

The state courts’ rejection of petitioner’s claim was not contrary to clearly

established Supreme Court precedent, did not involve an unreasonable application of

clearly established Supreme Court precedent, and was not based on an unreasonable

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determination of the facts in light of the record before the state court. Petitioner is not

entitled to federal habeas relief. 

Ground 2 Petitioner’s plea was not knowing and intelligent because petitioner was

unaware that the facts supported only a conviction for Attempting To

Obtain A Controlled Substance By Fraud (a third degree felony) and not

a conviction for Trafficking by Possession (a first degree felony). Trial

counsel was ineffective for failing to advise petitioner accordingly.

Petitioner relies on the same facts and argument presented in Ground 1 to argue

here that his plea was entered without a full understanding of the nature of the charge

and the consequences of the plea, because petitioner was unaware that law

enforcement’s misconduct barred his prosecution for Trafficking and that absent the 

misconduct, the only charge for which he could be convicted was Attempting to

Obtain a Controlled Substance by Fraud. Petitioner faults counsel for failing to advise

him accordingly. (Doc. 1, pp. 20-23). 

a. Clearly Established Federal Law

The clearly established Federal law governing the validity of a guilty or no

contest plea, including claims of ineffective assistance with regard to that plea, is set

forth above.

b. Federal Review of State Court Decision

Petitioner raised this claim in his Rule 3.850 proceeding. The Rule 3.850 court

denied relief as follows:

Next, in Ground 2, the Defendant claims that his plea was

involuntarily entered because he did not understand that the actions of

the police and the pharmacist were illegal. He claims that his counsel

was ineffective for failing to advise him of the possibility of an

affirmative defense. For the reasons set forth in Ground 1, the

Defendant’s argument is without merit, as entrapment would not have

been a viable defense.

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(Doc. 14, Ex. Q, p. 26). The state appellate court summarily affirmed.

Petitioner’s underlying premise for this claim is the same as Ground 1: that 

law enforcement’s misconduct barred petitioner’s prosecution for Trafficking in

Hydrocodone and that petitioner’s ignorance of this “fact,” rendered his plea invalid. 

Petitioner’s Ground 2 fails for the same reasons as Ground 1. The government’s

conduct did not invoke a viable due process defense or preclude petitioner’s

conviction for Trafficking in Hydrocodone. Thus, petitioner’s lack of unawareness

of such a defense is of no consequence to the validity of petitioner’s plea or the

effectiveness of counsel’s representation during the plea process. 

The state courts’ rejection of petitioner’s claim was not contrary to clearly

established Supreme Court precedent, did not involve an unreasonable application of

clearly established Supreme Court precedent, and was not based on an unreasonable

determination of the facts in light of the record before the state court. Petitioner is not

entitled to federal habeas relief. 

Ground 3 Trial counsel was ineffective for failing to investigate a witness and for

failing to advise petitioner of the affirmative defense of lack of

knowledge of the illicit nature of the substance. 

Florida law provides for an affirmative defense to the charge of Trafficking in

a Controlled Substance where the defendant did not know of the illicit nature of the

substance. Fla. Stat. § 893.101(2). Petitioner asserts that trial counsel did not inform

him of this affirmative defense and that had he done so petitioner would have insisted

on going to trial because: (1) there was no evidence that petitioner knew Lortab

contained Hydrocodone, and (2) “the prescription on Petitioner’s case was not even

filled out by the Petitioner but was filled out by an individual ‘know only as Pete.’” 

(Doc. 1, p. 24 ¶¶ 7-8). Petitioner alleges that he “apprised counsel of Pete, Pete’s

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address, an overall description of Pete, Pete’s automobile, and how Pete could be

located.” (Id., p. 24 ¶ 9). Petitioner complains that “[a]dequate pretrial investigation

of Pete and calling of hand writing experts . . . would have confirmed: that Pete was

the individual who filled out the phony prescription for 60 Lortabs as would be

evidenced by his handwriting and fingerprints reflected on the phony RX in the instant

case, ultimately resulting in formal charges being filed against him.” (Id., pp. 24-25

¶ 10). Petitioner argues that Pete could have testified not only that it was he who

forged the prescription, but also that “he befriended Petitioner into believing that

‘Lortab is like Valium’. . . . “ (Id., p. 25 ¶ 11).

a. Clearly Established Federal Law

The clearly established Federal law governing challenges to the validity of a

guilty or no contest plea based on a claim of ineffective assistance of counsel is set

forth above.

b. Federal Review of State Court Decision 

Petitioner raised this claim in his Rule 3.850 proceeding. The Rule 3.850 court

denied relief as follows:

Finally, in Ground 3, the Defendant claims that his counsel was

ineffective for failing to interview a witness, described only as “Pete,”

who the Defendant claims actually filled out the fraudulent prescription. 

He claims that he provided counsel with Pete’s address, description, a

description of his vehicle, and how he could be located. He asserts that

Pete was available for trial and would have testified that it was Pete who

filled out the prescription for the 60 Lortabs. However, the Defendant

also admits in his motion that he knew the prescription was fraudulent

and that he and Pete agreed that they would split the prescription if the

Defendant submitted it. Thus, Pete’s testimony would not have

exonerated the Defendant. At most, it would have also implicated Pete

in the crime.

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(Doc. 14, Ex. Q, p. 26). The state appellate court summarily affirmed the denial of

relief.

“The reasonableness of a trial counsel’s acts, including lack of investigation .

. ., depends critically upon what information the client communicated to counsel.” 

Chandler v. United States, 218 F.3d 1305, 1324 (11th Cir. 2000) (en banc) (internal

quotation marks omitted); see also Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318,

1325 (11th Cir. 2002) (“Information supplied by a petitioner is extremely important

in determining whether a lawyer’s performance is constitutionally adequate.”). 

According to petitioner’s allegations, the information petitioner relayed to counsel 

was that Pete was the one who forged the prescription. This information merely

implicated Pete -- it did not arguably suggest that petitioner did not know of the illicit

nature of the substance he obtained with the forged prescription. As petitioner’s

allegations fail to establish that counsel was aware of facts which would put a

reasonable attorney on notice of a possible defense under Fla. Stat. § 893.101, the

state court’s rejection of petitioner’s claim was neither contrary to, nor an

unreasonable application of Strickland. 

CERTIFICATE OF APPEALABILITY

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

District Courts provides: “[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).” 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 petitioner in this case fails to make a substantial showing of the denial of

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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 the meaning

of this term) (citation omitted). Therefore, the court should deny a certificate of

appealability in its final order.

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

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

issue.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such argument to the

attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is ORDERED:

1. The original Report and Recommendation (doc. 18) is vacated, and this

Amended Report and Recommendation replaces the former in full.

2. The clerk shall change the docket to reflect that Kenneth S. Tucker has been

substituted as respondent in this cause. 

And it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (doc. 1), challenging the

conviction and sentence in State of Florida v. Dana Lynn Jenkins in the Circuit Court

for Bay County, Florida, Case No. 06-CF-35 be DENIED, and the clerk be directed

to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 9th day of April, 2012.

/s/ Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE 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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