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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

EDWARD W. GRANBERRY, JR.,

Petitioner,

vs. Case No.: 5:10cv129/RH/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. 22). Petitioner filed a reply (doc. 26).

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. 22). Petitioner was charged in the Circuit Court in and for Jackson County,

2

Florida, Case No. 2003-CF-561, with one count of trafficking in cannabis (Count I), one count of

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

1

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

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

2

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

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conspiracy to traffic in cannabis (Count II), and one count of possession of drug paraphernalia

(Count III) (Ex. C at 331–32). Petitioner entered a written plea agreement, pursuant to which he

agreed to plead guilty as charged in exchange for concurrent sentences of ten (10) years in prison,

with a 3-year mandatory minimum, to be followed by ten (10) years of probation on Counts I and

II, and time served on Count III (id. at 357–58). At a plea and sentencing hearing on September 26,

2005, the trial court accepted the plea and sentenced Petitioner in accordance with the plea

agreement (id. at 359–75). Petitioner did not directly appeal the judgment of conviction and

sentence.

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

3.850 of the Florida Rules of Criminal Procedure (Ex. D at 1–26). He subsequently filed several

amendments (id. at 321–33, Ex. C at 1–8). The state circuit court held an evidentiary hearing, at

which Petitioner was represented by counsel (Ex. C at 210–323). The state circuit court

subsequently denied the Rule 3.850 motion (id. at 325–30). Petitioner appealed the decision to the

Florida First District Court of Appeal (“First DCA”), Case No. 1D09-781 (Ex. E). The First DCA

affirmed the decision per curiam without written opinion on April 30, 2010, with the mandate

issuing July 27, 2010 (Exs. G, K). Granberry v. State, 39 So. 3d 322 (Fla. 1st DCA 2010) (Table). 

On May 17, 2010, Petitioner filed a petition for writ of habeas corpus in the First DCA, Case

No. 1D10-2528, alleging ineffective assistance of appellate counsel during the Rule 3.850

proceeding (Ex. M). The First DCA denied the petition on the merits on June 21, 2010 (Ex. O). 

Granberry v. State, 38 So. 3d 839 (Fla. 1st DCA 2010).

Petitioner filed the instant federal habeas action on May 19, 2010 (doc. 1 at 24). 

II. STANDARD OF REVIEW

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

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

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

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

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

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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). The appropriate test was 3

described by Justice O’Connor as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

facts of the prisoner’s case.

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

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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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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

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

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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).

III. EXHAUSTION AND PROCEDURAL DEFAULT

It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the

petitioner have exhausted available state court remedies, 28 U.S.C. § 2254(b)(1), thereby giving the 4

Section 2254 provides, in pertinent part:

4

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the

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State the “‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” 

Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865 (1995) (quoting Picard

v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). To satisfy

the exhaustion requirement, the petitioner must “fairly present” his claim in each appropriate state

court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365–66; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277–78.

The Supreme Court has provided lower court with guidance for determining whether a

habeas petitioner has met the “fair presentation” requirement. In Picard v. Connor, the Court held

that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include

reference to a specific federal constitutional guarantee, as well as a statement of the facts which

entitle the petitioner to relief. 404 U.S. at 277. In announcing that “the substance of a federal habeas

corpus claim must first be presented to the state courts,” id., 404 U.S. at 278, the Court rejected the

contention in that case that the petitioner satisfied the exhaustion requirement by presenting the state

courts only with the facts necessary to state a claim for relief.

Additionally, the Court has indicated that it is not enough that a petitioner make a general

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

claim to a state court. Anderson v. Harless, 459 U.S. 4, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982). In

Anderson, the habeas petitioner was granted relief by the Sixth Circuit Court of Appeals on the

ground that a jury instruction violated due process because it obviated the requirement that the

prosecutor prove all the elements of the crime beyond a reasonable doubt. 459 U.S. at 7 (citing

Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)). The only manner in

which the habeas petitioner cited federal authoritywas by referring to a state court decision in which

judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the

applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the law of the State to raise, by any available procedure,

the question presented.

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“the defendant . . . asserted a broad federal due process right to juryinstructions that properly explain

state law.” Anderson, 459 U.S. at 7 (internal quotation marks omitted). The Court expressed doubt

that a defendant’s citation to a state-court decision predicated solely on state law was sufficient to

fairly apprise a reviewing court of a potential federal claim merely because the defendant in the cited

case advanced a federal claim. Id., 459 U.S. at 7 and n.3. Furthermore, the Court clarified that such

a citation was obviously insufficient when the record satisfied the federal habeas court that the

federal claim asserted in the cited case was not the same as the federal claim on which federal habeas

relief was sought. Id.

Years later, the Supreme Court readdressed the “fair presentation” requirement in Duncan

v. Henry, 513 U.S. 364. The Duncan Court strictly construed the exhaustion requirement so as to

mandate that, if state and federal constitutional law overlap in their applicability to a petitioner’s

claim, the petitioner must raise his issue in terms of the applicable federal right in state court in order

to obtain federal review of the issue. The Supreme Court explained,“[i]f a habeas petitioner wishes 5

to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed

by the Fourteenth Amendment, he must say so, not only in federal, but in state court.” Duncan, 513

U.S. at 365–66. More recently, the Supreme Court again focused upon the requirement of “fair

presentation,” holding that “ordinarily a state prisoner does not ‘fairly present’ a claim to a state

court if that court must read beyond a petition or a brief (or a similar document) that does not alert

it to the presence of a federal claim in order to find material, such as a lower court opinion in the

case, that does so.” Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64 (2004). 

In Baldwin, the Supreme Court recognized that “[a] litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing

in conjunction with the claim the federal source of law on which he relies or a case deciding such

a claim on federal grounds, or by simply labeling the claim ‘federal.’” Id., 541 U.S. at 32. This

language, while not part of the Court’s holding, provides helpful instruction. With regard to this

language, the Eleventh Circuit explained in McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005):

 The petitioner in Duncan raised a federal due process claim in his habeas petition, but had raised only a state

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constitutional claim in his state appeal. Presented with a state constitutional claim, the state court applied state law in

resolving the appeal. 513 U.S. at 366.

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If read in a vacuum, this dicta might be thought to create a low floor indeed for

petitioners seeking to establish exhaustion. However, we agreewith the district court

that this language must be “applied with common sense and in light of the purpose

underlying the exhaustion requirement[:] ‘to afford the state courts a meaningful

opportunity to consider allegations of legal error without interference from the

federal judiciary.’” McNair [v. Campbell], 315 F. Supp. 2d at 1184 (quoting

Vasquez v. Hillery, 474 U.S. 254, 257, 106 S. Ct. 617, 620, 88 L. Ed. 2d 598 (1986)). 

This is consistent with settled law established by the Supreme Court. . . . We

therefore hold that “‘[t]he exhaustion doctrine requires a habeas applicant to do more

than scatter some makeshift needles in the haystack of the state court record.’”

416 F.3d at 1302-03 (citations omitted).6

The Eleventh Circuit, prior to Duncan, had broadly interpreted the “fair presentation”

requirement. After Duncan, however, the Eleventh Circuit has taken a more narrow approach. For

example, in Zeigler v. Crosby, the court held that the habeas petitioner failed to “fairly present” his

juror misconduct claims to the state courts where his brief to the state appellate court did not refer

to the federal constitutional issues raised in his federal habeas petition, and none of the cases cited

in his direct appeal discussed the United States Constitution. 345 F.3d 1300, 1307 (11th Cir. 2003). 

The Eleventh Circuit specifically noted that the section of the petitioner’s appellate brief which dealt

with juror misconduct contained the words: “Appellant was denied due process and a fair trial. . .

.,” which could be interpreted as asserting a fair trial claim under the Due Process Clause of the

Florida Constitution. Id. at 1308 n.5. The only cases cited in the discussion of the issue in

petitioner’s state appellate brief were state supreme court cases that made no mention of the United

States Constitution and cited no federal cases. The court concluded that petitioner’s “[c]ursory and

conclusional sentence (unaccompanied by citations to federal law), . . . did not present to the Florida

courts the federal claim asserted to us.” Id.

In his initial brief before the Court of Criminal Appeals, McNair cited one federal case in a string citation

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containing other state cases, and in a closing paragraph in his argument that extraneous materials were considered by the

jury during deliberations, stated that there was a violation of his rights “protected by the Fifth, Sixth, Eighth[,] and

Fourteenth Amendments to the United States Constitution, the Alabama Constitution[,] and Alabama law.” McNair v.

Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). The court found that these references to federal law were not sufficient

to meet the fair presentment requirement and noted that it was important that the petitioner had never mentioned the

federal standards regarding extraneous materials in his brief, but relied on state law for his arguments. Id.

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An issue that was not properly presented to the state court and which can no longer be

litigated under state procedural rules is considered procedurallydefaulted, that is, procedurallybarred

from federal review. See O’Sullivan, 526 U.S. at 839–40, 848; Bailey v. Nagle, 172 F.3d 1299,

1302–03 (11th Cir. 1999). This court will also consider a claim procedurally defaulted if it was

presented in state court and rejected on the independent and adequate state ground of procedural bar

or default. See Coleman v. Thompson, 501 U.S. 722, 734–35 and n.1, 111 S. Ct. 2546, 2555 and

n.1, 115 L. Ed. 2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims

that have been held to be procedurally defaulted under state law cannot be addressed by federal

courts.”); Chambers v. Thompson, 150 F.3d 1324, 1326–27 (11th Cir. 1998) (applicable state

procedural bar should be enforced by federal court even as to a claim which has never been presented

to a state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876

F.2d 1470 (11th Cir. 1990), rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812

(1991). In the first instance, the federal court must determine whether any future attempt to exhaust

state remedies would be futile under the state’s procedural default doctrine. Bailey, 172 F.3d at

1303. In the second instance, a federal court must determine whether the state’s procedural default

ruling rested on adequate state grounds independent of the federal question. See Harris v. Reed, 489

U.S. 255, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989). The adequacy of a state procedural bar

to the assertion of a federal question is itself a federal question. Lee v. Kemna, 534 U.S. 362, 122

S. Ct. 877, 885, 151 L. Ed. 2d 820 (2002). The adequacy requirement has been interpreted to mean

that the rule must be “firmly established and regularly followed,” Siebert v. Allen, 455 F.3d 1269,

1271 (11th Cir. 2006), that is, not applied in an “arbitrary or unprecedented fashion,” Judd v. Haley,

250 F.3d 1308,1313 (11th Cir. 2001), or in a manifestly unfair manner. Ford v. Georgia, 498 U.S.

411, 424–25, 111 S. Ct. 850, 858, 112 L. Ed. 2d 935 (1991); Upshaw v. Singletary, 70 F.3d 576, 579

(11th Cir. 1995).

The Eleventh Circuit has set forth a three-part test to determine whether a state court’s

procedural ruling constitutes an independent and adequate state rule of decision. Judd v. Haley, 250

F.3d 1308, 1313 (11th Cir. 2001). First, the last state court rendering judgment must clearly and

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expressly state it is relying on state procedural rules to resolve the federal claim. Second, the state 7

court’s decision on the procedural issue must rest entirely on state law grounds and not be

intertwined with an interpretation of federal law. Third, the state procedural rule must be adequate. 

Id. The adequacy requirement has been interpreted to mean the rule must be firmly established and

regularly followed, that is, not applied in an arbitrary or unprecedented fashion. Id.

To overcome a procedural default such that the federal habeas court may consider the merits

of a claim, the petitioner must show cause and prejudice or a fundamental miscarriage of justice. 

Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. “For cause to exist, an external impediment, whether

it be governmental interference or the reasonable unavailability of the factual basis for the claim,

must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111

S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.

Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986)). Lack of counsel or ignorance of available procedures is

not enough to establish cause. Tower, 7 F.3d at 210. To satisfy the miscarriage of justice exception,

the petitioner must show that “a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 85, 130 L. Ed. 2d 808

(1995). “To establish the requisite probability, the petitioner must show that it is more likely than

not that no reasonable juror would have convicted him.” Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent

person is extremely rare. To be credible, such a claim requires [a] petitioner to

support his allegations of constitutional error with new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.

Id.

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

IV. PETITIONER’S CLAIMS

A. Ground One, sub-claim 1-A: “Petitioner’s plea was not voluntarily and intelligently

made due to . . . defense counsel’s misadvice about sentencing law, discretion of trial court

in sentencing Petitioner concurrently as opposed to consecutively.”

 The federal court should honor the procedural bar even if the state court alternatively reviewed the claim on

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the merits. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995); Alderman v. Zant, 22 F.3d 1541 (11th Cir. 1994).

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Ground One, sub-claim 1-B(a): “Petitioner’s plea was not voluntarily and intelligentlymade

due to . . . defense counsel’s misadvice about how prior convictions could be used to

lengthen the prison term imposed.”

Ground One, sub-claim 1-B(c): “Petitioner’s plea was not voluntarily and intelligentlymade

due to . . . defense counsel’s misadvice that the Petitioner would receive more prison time

than his co-defendant because of his prior record.” 

In Ground One, sub-claim 1-A, Petitioner asserts defense counsel misadvised him that he

could receive consecutive sentences on the trafficking and conspiracy counts, for a total of sixty (60)

years, and thus “die in prison” (doc. 1 at 5, 6). He states the law at the time of his offense conduct,

September–October of 2003, provided that sentences for such offenses must be run concurrently,

because they arose from the same criminal episode (id. at 6, citing Vickery v. State, 515 So. 2d 396

(Fla. 1st DCA 1987)). Petitioner states counsel’s erroneous advice caused him to enter a guilty plea,

and had he known the sentences could not be run consecutively, he would have insisted on going to

trial (id.). 

In Ground One, sub-claim 1-B(a), Petitioner asserts defense counsel misadvised him that his

prior convictions could be used to add 6.6 points to the computation of his lowest permissible

sentence on his sentencing scoresheet (doc. 1 at 5, 7). Petitioner states his prior convictions of two

(2) third degree felonies and one (1) second degree felony were over ten years old and thus could not

have been used to increase his minimum sentence (id. at 7). He states had he known that his prior

record could not have been used to increase his minimum sentence, he would not have entered a plea

and would have insisted on going to trial (id.).

In Ground One, sub-claim 1-B(c), Petitioner asserts defense counsel misadvised him that if

he went to trial, he would receive more prison time than his co-defendant, who was convicted at trial

and sentenced to ten (10) years of imprisonment and ten (10) years of probation (doc. 1 at 6, 8). 

Petitioner states counsel failed to advise him that if a defendant is as culpable or less culpable than

a co-defendant, he should not be subjected to a sentence different than the co-defendant (id. at 8). 

He states he would not have pled guilty if he had been correctly informed that his sentence could not

be longer than his co-defendant’s sentence (id. at 8–9). 

Petitioner states he raised each of these claims in his Rule 3.850 motion (doc. 1 at 13).

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Respondent asserts Petitioner failed to properly exhaust sub-claim 1-A, because he did not

raise it in his Rule 3.850 motion or the amendments thereto (doc. 22 at 6–8). Similarly, as to subclaim 1-B(a), Respondent contends Petitioner did not fairly present the claim, because he made only

a passing reference to it in his Rule 3.850 motion (id. at 13–15). Respondent contends Petitioner

may no longer return to state court to litigate either of these claims; therefore, the claims are

procedurally barred from federal review (id. at 6–8, 14). Respondent additionally argues

notwithstanding the exhaustion issue, Petitioner failed to demonstrate that the state court’s

adjudication of any of these three claims was contrary to or an unreasonable application of clearly

established federal law (id. at 8–20).

In Petitioner’s reply, he contends he presented all of his claims in his Rule 3.850 motion, at

the evidentiary hearing on the motion, and on appeal from the circuit court’s denial of relief (doc.

26 at 2–3, 6, 9). He additionally contends the state court’s adjudication of each claim was an

unreasonable application of clearly established federal law (id. at 3–10, 13–14).

Upon review of the state post-conviction record, the undersigned concludes Petitioner fairly

presented each of his claims to the state courts in the Rule 3.850 motion and on appeal of the state

circuit court’s denial of the motion (see Ex. D at 3–16, Ex. C at 210–321, Ex. E at 16–24).

1. Clearly Established Federal Law

When a defendant challenges his plea based upon allegations of ineffective assistance of

counsel, the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984) applies. 

See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). To obtain relief

under Strickland, Petitioner must establish: (1) that his counsel’s representation “fell below an

objective standard of reasonableness,” and (2) that there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceeding would have been different. 466 U.S.

at 688. If Petitioner fails to make a showing as to either performance or prejudice, he is not entitled

to relief. Id. at 697; Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts

of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not

address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.”)

(citation omitted).

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

counsel’s assistance was “reasonable considering all the circumstances.” See Strickland, 466 U.S.

at 691. “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. Indeed, the Supreme Court warned about second-guessing professional judgments made

by counsel:

[T]he decision to plead guilty before the evidence is in frequently involves the

making of difficult judgments. All the pertinent facts normally cannot be known

unless witnesses are examined and cross-examined in court. Even then the truth will

often be in dispute. In the face of unavoidable uncertainty, the defendant and his

counsel must make their best judgment as to the weight of the State’s case. Counsel

must predict how the facts, as he understands them, would be viewed by a court. . .

. Questions like these cannot be answered with certitude; yet a decision to plead

guilty must necessarily rest upon counsel’s answers, uncertain as they may be. 

Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably

competent attorney will turn out to be mistaken either as to the facts or as to what a

court’s judgment might be on given facts. That a guilty plea must be intelligently

made is not a requirement that all advice offered by the defendant’s lawyer withstand

retrospective examination in a post-conviction hearing.

McMann v. Richardson, 397 U.S. 759, 769–70, 90 S. Ct. 1441, 1448, 25 L. Ed. 2d 763 (1970).

In a plea situation, counsel must provide advice “within the range of competence demanded

of attorneys in criminal cases.” Hill, 474 U.S. at 56–57 (quoting McMann, 397 U.S. at 771). 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, however, the court should “indulge a strong presumption that counsel’s conduct

fell within the wide range of reasonably professional assistance.” Yordan v. Dugger, 909 F.2d 474,

477 (11th Cir. 1990). The Eleventh Circuit has commented that “[t]he right to competent plea

bargain advice is at best a privilege that confers no certain benefit,” because a defendant “maymake

a wise decision” without assistance of counsel or a “bad one despite superior advice from his

lawyer.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (per curiam). “[C]ounsel

owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the

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former case counsel need only provide his client with an understanding of the law in relation to the

facts, so that the accused maymake an informed and conscious choice between [entering a plea] and

going to trial.” Id. This requires counsel to “offer his informed opinion as to the best course to be

followed” and impart “a general knowledge of the possible legal consequences of facing trial” to the

defendant. Id. Therefore, a defendant’s failure to “correctly assess every relevant factor entering

into his decision” does not undermine a validly entered guilty plea. Id. at 1509.

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

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

of the plea process.” Hill, 474 U.S. at 59. Often this analysis hinges upon whether eradication of

the error would have led counsel to change his recommendation as to the plea, which in turn

generally depends on whether the outcome of a trial would have been substantively different. Id. at

59–60. While counsel can be deemed ineffective under Strickland for failing to provide proper

advice during the plea process, Petitioner must demonstrate a reasonable probability that, but for

counsel’s errors, he would not have pled guilty and would have insisted on going to trial. See Diaz

v. United States, 930 F.2d 832, 835 (11th Cir. 1991); Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.

1991). A conclusory, after-the-fact statement that Petitioner would not have pled guilty, without

more, is insufficient to establish prejudice under Strickland. See Diaz, 930 F.2d at 835; see also

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (though Coulter evidenced, through his

counteroffer to the state, a willingness to enter into a plea agreement, he offered no further proof to

show that he would have accepted the state’s plea offer of life without parole absent his lawyers’

alleged errors; therefore, Coulter failed to establish any prejudice stemming from counsel’s alleged

deficient performance); Johnson v. Duckworth, 793 F.2d 898, 902 n.3 (7th Cir. 1986).

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 aremixed questions of law and fact. 

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

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2. Federal Review of State Court Decision

Petitioner raised his claims in Grounds One in his Rule 3.850 motion. In the state circuit

court’s written decision, the court correctly cited the two-prong Strickland standard as the applicable

legal standard (Ex. C at 327). The state circuit court adjudicated the claims as follows:

In claim one, Defendant alleges that his plea was not voluntarilyentered when

he waived his right to appeal. In support, Defendant submits that counsel was

ineffective by misadvising him as to the probable sentence he would receive if

convicted by a jury at trial. In addition, Defendant asserts that his defense counsel

was incorrect in advising him that due to his prior criminal record that he would

receive a longer prison sentence than his co-defendant, who did not have the same

lengthy and extensive criminal history. Defendant’s claim is refuted by the record. 

See Transcript of Plea and Sentencing Colloquy held September 26, 2005, pgs. 5–8.

Despite the foregoing, Defendant ignores the discretionary nature of the

sentencing Court’s authority as well as the simple fact that the sentencing judge may

consider anything relevant to the sentencing decision, including but not limited to

letters from interested parties, witness testimony during the proceeding, and at the

very least, the Defendant’s prior criminal history.

During the evidentiary hearing, Defendant’s trial counsel stated that

Defendant knew the plea deal he was about to enter into on September 26, 2005. 

Counsel went into great detail based upon his notes that showed a back and forth

communication and negotiation the weekend before the plea of conversations

between the prosecutor, Defendant and trial counsel. In fact, counsel’s training and

experience indicated that this was a good deal for Defendant because he could get a

lot more time than his co-defendant. According to counsel’s notes from his file, he

testified that he had informed Defendant about the possible maximum sentence he

could receive if he was convicted at trial, which was a total of sixty-one years in

prison. Moreover, counsel stated that he sent a copy of a score sheet to Defendant

that showed he could receive a maximum of sixty years in prison. Based upon the

foregoing, Defendant’s claim is denied.

(Ex. C at 325–26). 

Petitioner appealed the state circuit court’s decision to the First DCA. The appellate court

affirmed per curiam without written opinion. As previously discussed, 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, 

633 F.3d at 1287 (citing Harrington, 131 S. Ct. at 786). The federal court must determine what

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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, 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 the instant case, the state court’s factual findings as to the information defense counsel

provided to Petitioner regarding the possible sentence he could receive if he was convicted at trial,

including a possible maximum sentence of sixty-one (61) years in prison and the effect of his prior

criminal record, are supported by the record. At the evidentiary hearing, Petitioner’s trial counsel,

Mr. Komarek, testified he had been a member of The Florida Bar since 1975 (Ex. C at 288). He

testified that approximately sixty (60) percent of his caseload was criminal, and he was a boardcertified criminal trial attorney (id. at 288–89). He testified Petitioner had a reasonable chance of

success at trial, until his co-defendant, Mr. Richter, was convicted of the same charges and agreed

to testify against Petitioner (id. at 289–91). He testified he sent a copy of Petitioner’s sentencing

scoresheet to Petitioner on August 23, 2005, over one month prior to the plea hearing (id. at 289). 

The scoresheet included five prior convictions for possession of marijuana, sale or manufacture of

marijuana, and transmitting contraband (id. at 376–78). Those prior convictions contributed 6.6

points to the computation of Petitioner’s lowest permissible prison sentence of 47.1 months (id.). 

The scoresheet indicated the statutory maximum sentence Petitioner could receive was sixty (60)

years in prison (id.). Komarek testified that on September 23, three days prior to jury selection in

Petitioner’s case, a series of conversations occurred between him, Petitioner, and the prosecutor (id.

at 291–93). Komarek testified the prosecutor notified him that Mr. Richter would testify at

Petitioner’s trial and described the content of his testimony (id. at 293). Additionally, the prosecutor

informed Komarek that Mr. Richter received a sentence of ten (10) years of imprisonment and ten

(10) years of probation, and he had no prior criminal history (id. at 293–94). The prosecutor offered

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Petitioner fifteen (15) years of imprisonment, with a three-yearmandatoryminimum (id.). Komarek

testified he immediately called Petitioner and conveyed the prosecutor’s offer (id. at 293). Mr.

Komarek testified he explained to Petitioner that he had thirty (30) years of exposure on the

trafficking charge, thirty (30) years on the conspiracy charge, and one year on the paraphernalia

charge, for a total of sixty-one (61) years (id. at 294). Komarek testified he told Petitioner he would

actually serve 85% of whatever sentence he received (id.). Komarek testified he did not recall

whether he actually told Petitioner he could die in prison, but because Petitioner was fifty (50) years

old, and he could be sentenced anywhere between three (3) and sixty (60) years, Petitioner needed

to know what his risk was, and if he made a mistake he could get substantially more than his codefendant (id. at 292, 311–12). Komarek testified, “And since he’s telling me . . . he’s got posttraumatic stress disorder and all the medications he’s taking, I think it needed to be crystal clear in

real life terms what his decision involved.” (id. at 312). Mr. Komarek further testified he may have

told Petitioner he was “looking at” a harsher sentence than Mr. Richter, and he may have done so

because he believed Petitioner would receive a harsher sentence based upon his prior criminal record

(id. at 295–96). Komarek testified that Petitioner responded on September 24, and stated he would

plead to ten (10) years of imprisonment, the same probation that Mr. Richter received, and fines (id.

at 295). Komarek spoke again with the prosecutor and relayed the counter-offer (id. at 294). The

prosecutor eventually agreed to the ten-year sentence with ten years of probation, and fines (id.). 

Komarek contacted Petitioner, and Petitioner confirmed he would accept the plea on those terms (id.

at 295).

Petitioner admitted at the evidentiary hearing that he knew, prior to entering his plea, that the

maximum sentence he could receive was sixty (60) years of imprisonment, thirty (30) years on each

charge (Ex. C at 267). He also admitted he had five (5) prior felonies: a conviction for possession

of marijuana in 1981, for which he received a three-year sentence; a conviction for possession of

marijuana with intent to sell in 1981, for which he received a three-year sentence; a conviction for

possession of marijuana and a conviction for promoting prison contraband in 1984, for which he

received two (2) years of imprisonment and eight (8) years of probation; and a conviction for

possession of marijuana in 1992, for which he received fifteen (15) years in prison, but was required

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to serve only three (id. at 244–46). Petitioner also admitted he knew, pre-plea, that his co-defendant,

Mr. Richter, had been convicted at trial and sentenced to ten (10) years in prison (id. at 246).

Under Florida law, the maximum sentence Petitioner could receive on the possession of

paraphernalia charge, a first degree misdemeanor, was one (1) year. See Fla. Stat. §§ 893.147(1)(a),

775.082(4)(a). The maximum sentence Petitioner could receive for the trafficking charge, a first

degree felony, was a term of imprisonment not exceeding 30 years, with a three-year mandatory

minimum term of imprisonment. See Fla. Stat. §§ 893.135(1)(a)1., 775.082(3)(b). The maximum

sentence he could receive for the conspiracy to traffic charge, also a first degree felony, was a term 

of imprisonment not exceeding 30 years, with a three-year mandatory minimum term of

imprisonment. See Fla. Stat. §§ 893.135(5), 775.082(3)(b). The conspiracy section of the drug

trafficking statutes expressly authorizes separate convictions and sentences for trafficking and

conspiracy to traffic. See Fla. Stat. § 893.135(5). Moreover, Florida law expressly provides that a

court may impose consecutive sentences for acts committed in the course of one criminal transaction

or episode but which constitute one or more separate criminal offenses. See Fla. Stat.

§ 775.021(4)(a). Based upon Florida law, defense counsel correctly advised Petitioner that if he was

convicted at trial, he could receive consecutive 30-yearsentences for the trafficking and conspiracy

counts. 

Petitioner’s reliance upon Vickery v. State, to demonstrate error with respect to counsel’s

advice that the sentences for trafficking and conspiracy could be run consecutively, is misplaced. 

In Vickery, the court held that consecutive mandatory minimum sentences for multiple offenses

which occurred during a single criminal episode is impermissible. 515 So. 2d 396 (Fla. 1st DCA

1987) (emphasis added). Vickery did not hold that consecutive sentences for multiple offenses

which occurred during a single criminal episode is impermissible. Therefore, Petitioner failed to

show that defense counsel’s advice as to his maximum sentence exposure if he went to trial was

erroneous.

Additionally, defense counsel correctly advised Petitioner that if he went to trial and was

convicted, the trial court could consider his five prior felonies in imposing sentence. Florida’s

Criminal Punishment Code provides, in relevant part:

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(14) “Prior record” refers to any conviction for an offense committed by the offender

prior to the commission of the primary offense. Prior record includes convictions for

offenses committed by the offender as an adult or as a juvenile, convictions by

federal, out of state, military, or foreign courts and convictions for violations of

county or municipal ordinances that incorporate by reference a penalty under state

law. Federal, out of state, military or foreign convictions are scored at the severity

level at which the analogous or parallel Florida crime is located.

(A) Convictions for offenses committed more than 10 years before the date

of the commission of the primary offense must not be scored as prior record

if the offender has not been convicted of any other crime for a period of 10

consecutive years from the most recent date of release from confinement,

supervision, or other sanction, whichever is later, to the date of the

commission of the primary offense.

Fla. R. Crim P. 3.704(14) (emphasis added). In the instant case, Petitioner’s offense conduct

occurred on October 2, 2003, at the latest (Ex. C at 331–32). He admitted at the evidentiary hearing

that he was convicted of a felony in 1992 and served three (3) years in prison, which would have

brought his release date within ten (10) years of the date of commission of his instant offense (id.

at 245). Therefore, all of his prior convictions were properly scored on his sentencing scoresheet. 

Further, as the post-conviction court noted, in imposing sentence, the sentencing court had discretion

to consider anything relevant to the sentencing decision, including Petitioner’s prior felonies. 

Petitioner thus failed to show that defense counsel gave him incorrect advice on the issue of the

sentencing court’s ability to consider his prior criminal history. 

Finally, counsel reasonably advised Petitioner that if he went to trial and was convicted, he

would receive a harsher sentence than his co-defendant. A defendant’s criminal history is used to

compute a defendant’s lowest permissible prison sentence under Florida’s Criminal Punishment

Code, and it is a factor that may be considered by the court in determining the sentence. In this case,

Petitioner’s co-defendant went to trial first, was convicted of the same charges with which Petitioner

was charged, and was sentenced to ten (10) years in prison, without a prior criminal history. It was

therefore reasonable for defense counsel to advise Petitioner that he would receive a longer sentence

than his co-defendant, based upon Petitioner’s criminal history.

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

demonstrate his plea was unknowing and involuntary due to misadvice by defense counsel regarding

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his sentence exposure. Therefore, Petitioner failed to demonstrate that the state court’s adjudication

of Ground One, sub-claims 1A, 1B(a) and 1B(c) was based upon an unreasonable determination of

the facts, or contrary to or an unreasonable application of Strickland. Accordingly, he is not entitled

to habeas relief on any of these claims.

B. Ground One, sub-claim 1-B(b): “Petitioner’s plea was not voluntarily and

intelligently made due to: . . . defense counsel’s misadvice that if Petitioner testified, the

prosecutor could cross-examine him about the nature of his prior convictions.”

Petitioner asserts defense counsel advised him that if he went to trial and testified, the

prosecutor would be able to “expound on” Petitioner’s prior marijuana convictions, and the jury

would learn the nature of those convictions (doc. 1 at 6, 7–8). Petitioner states had counsel not

misadvised him, there is a reasonable probability he would have insisted on going to trial (id. at 8). 

Petitioner states he raised this claim as Issue 4 in his Rule 3.850 motion and in his brief on appeal

(doc. 1 at 13; doc. 26 at 10).

Respondent contends Petitioner neverraised this claim in the state courts; therefore, the claim

is unexhausted and procedurally barred (doc. 22 at 16).

Review of the record demonstrates Petitioner raised this claim as Issue 4 in his Rule 3.850

motion (Ex. D at 327–31). The state circuit court denied the claim (Ex. C at 327–38), and Petitioner

raised the issue on appeal of the circuit court’s decision (Ex. E at 35–40). Therefore, the claim was

properly exhausted.

1. Clearly Established Federal Law

The clearly established law governing this claim is set forth supra.

2. Federal Review of State Court Decision

The state circuit court adjudicated the claim as follows, in relevant part:

In claim four, Defendant alleges that counsel’s advice to him not to testify

because of the damaging effects Defendant’s prior convictions would have on the

credibility of the testimony [sic]. In support of this claim, Defendant submits that the

possibility of him testifying at trial was discussed with counsel. In these discussions,

Defendant states that he was told by counsel to the effect that, should he testify, the

prosecutor would be allowed to tell the jury all about his prior convictions and that

there would be nothing he could do to stop it. Since the Defendant had numerous

marijuana related prior convictions, he was concerned about the adverse effect such

information would have on the jury in this marijuana related prosecution. 

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Specifically, it was not the number of prior convictions, but their nature, that the

Defendant feared would prejudice the jury against him. Based upon this information,

the Defendant waived his right to jury trial and entered the plea. See Defendant’s

Motion filed March 19, 2007, pg. 2.

. . . .

At the evidentiary hearing, trial counsel stated that any decision to testify or

not at trial was for the Defendant to make based upon counsel’s advice. However,

counsel stated that he never made a recommendation about Defendant testifying

because it would be a last minute decision as the trial progressed. In fact, counsel

stated that he never had a discussion about how the State could use the prior felony

convictions against him because it was not time yet. However, counsel stated that

it would be his common practice to inform a client about how prior convictions could

be used when a client takes the stand.

(Ex. C at 327–28). The court denied the claim on the ground that Petitioner failed to demonstrate

prejudice under Strickland. As previously noted, the appellate court affirmed per curiam without

written opinion.

The First DCA’s affirmance could have been based upon the argument that Petitioner failed

to demonstrate deficient performance by counsel. At the evidentiary hearing, Mr. Komarek testified

as follows on this issue:

. . . we did have a conference, before we were notified that Mr. Richter was going to

be a witness, going over just things in general, including changes in venue and things

like that. I can’t say I ever thought that, or told him that we would probably win,

because that doesn’t sound like something I would say. However, we probably had

a defensible case, which is better than some. The problem was he had so much

exposure and he had so many prior convictions. I don’t know that I went into all the

details with regard to the technique of impeachment or not when I was speaking. I

had never sat down and asked him, nor had he told me exactly what his trial

testimony was going to consist of, because I usually leave that door open until the

very last minute to make my recommendation. In his case, even the week before the

trial we didn’t go over that, because that’s when I got the notice that Mr. Richter was

going to testify.

. . . .

And then that’s when a series of conversations back and forth between me

and you [the prosecutor], and you and me, and Mr. Granberry and back and forth

began all through that weekend. You contacted me on the 23rd, the same day that the

notice of the additional witness came, indicating that . . . probably my client did not

qualify for habitual offender because of the distance in the past, over five years, of

his last conviction. However, those really weren’t convictions. That last, those last

charges, as Irecall, adjudication of guilt was withheld, but he had some older charges

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than that, which would have caused a problem at trial. And they all would’ve caused

a trial [sic] if he would’ve, would’ve [sic] caused a problem if he would have been

convicted because Judge McClellan would’ve known about his prior criminal record,

regardless of whether adjudication was withheld or anything. And he would’ve

known what the nature of the charges were. So, the judge would’ve been fully

informed as to what he, his previous convictions or withholds would’ve been if there

would’ve been a conviction.

. . . .

Q [by the prosecutor]. . . . Now let’s move down to the fourth issue, sir. Did

you advise the defendant not to testify because of his prior convictions?

A. No, because Ileft the door open for my recommendation. It’s his right not

to testify or not [sic], over my recommendation. But Ileft the door open to get to that

until the last minute because I always leave it to the last minute, usually, unless

there’s something that forces it earlier. And then when I get the individual in my

office or somewhere else one on one, I’ll ask him, if you’re under oath in this case

and you’re going to testify on your defense, what’s your testimony going to be, so

that I can evaluate whether I should say, well, you’ve got a problem or if it’s, if I

know that it’s going to be perjury, then there’s certain things that I have to do and I

advise them about it. Hypothetically, I might have been discussing with him in

advance the, what the lawyer’s obligation is if there’s a possibility of perjury, but that

was hypothetical.

. . . .

But I didn’t really sit down and quiz him about what his actual testimony was

going to be because he wouldn’t have had the benefit of what Richter was going to

say yet. So that door was still open, as far as I was concerned, until after I got a

deposition of Mr. Richter and then told him, here’s what everybody’s saying, here’s

what everybody’s doing, here’s what they have. If you’re a witness, what are you

going to testify to?

. . . .

I don’t think I ever did discuss with him, as he indicated, the manner in which

the State could use criminal convictions on an individual. I never got to that specific

point, because, again, his actual testimony, we hadn’t got to that last minute decision

making and recommendation yet. I would have talked to him about it at that time,

because you’d have, he would have to be very cautious. He had some convictions

where there was a withhold and then he had those older convictions, which

apparently you knew about, but I didn’t know that you knew, from Alabama. And

if he made a mistake on the number of the convictions, because of pressure or stress

or something like that, then you would be able to get into the details to some extent. 

That’s my understanding of the law. If I’m wrong, then I’m wrong. But my

understanding is, to refresh his recollection, you could get into the details if he

misstated the number. And he had some older ones where he was adjudicated—I

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think three—and then he had some newer ones. Two, I think two felonies, maybe,

were adjudication withheld. If he got confused on the stand, it could be bad.

. . . .

But we, but he and I never had that discussion. I just knew that.

Q [by Petitioner’s counsel]. . . . you never did say specifically, this is how

they can ask the question procedurally, you know: how many pri–, have you ever

been convicted of a felony and how many times? You never talked about that?

A. No, we didn’t. Because if you go into that too much in advance, you’ve

got to do it all over again anyway, because they don’t remember.

. . . .

Q. And do you, in your experience, your trial experience, what I would do

is I would go to the State prior to that and say, how may convictions does he actually

have . . . . Did you ever, did you do that practice where you make sure that you know

what the State is looking at as far as the number of convictions he had?

A. Yes.

Q. Okay. And you could have done that in that —

A. Could have.

. . . .

Didn’t get to the point where it was, had done it.

Q. I’m just addressing the concern, you know, when he said, well, if you

got nervous on the stand, then he could, the numbers could go wrong. But you could

actually go to Mr. Basford [the prosecutor] and say, how many has he got? Five. Mr.

Granberry, you’ve got five convictions, that’s what the State’s saying, do you agree

or disagree with that, prior to him getting on the stand?

A. That’s correct.

Q. Okay. And you do that?

A. Yes.

(Ex. C at 290–92, 299–301, 308–09).

At the evidentiary hearing, Petitioner did not testify that Mr. Komarek affirmatively advised

him that the jury would learn the nature of his prior convictions if he testified at trial. He testified 

as follows:

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Q [by Petitioner’s counsel]. . . . was there ever any discussion regarding the

things that the State could bring out if you in fact did testify?

A. Well, it—well, just the letter he sent me.

Q. Okay.

A. There’s a letter that he said they could, they would use my priors against

me.

. . . .

And that was really all I got there. I didn’t know, I thought they could go in

depth, in detail, you know, and drag up, you know.

Q. During the trial?

A. Yes, sir.

Q. And when you say they could go in depth, in detail, what, what, tell—just

tell the Court, you had a prior criminal history, right?

A. Yes, sir.

Q. And you had drug charges before?

A. Yes, sir, it was, yes, the marijuana charges.

Q. Okay. What did you think, when he said that, what that meant?

A. Well, Ithought they would just, well, tear up my credibility or any kind of,

you know, he would use that to impeach me.

Q. Okay, all right. Did he give you any specifics of how they would impeach

you with your criminal history that you can recall? Any specifics?

A. No, sir.

Q. Okay. So, again, you just thought they’s just bring up all the facts?

A. Yes, sir, just, just really the basic thing was that letter saying that they

could, you know, because of my priors, I’d get a harsher sentence.

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Q. Okay, all right. Now, when he said that you could get a harsher sentence

because of your priors, was there any other explanation, other than—did he say

anything else?

A. No, sir, like I say, that was in that letter and I really didn’t, we didn’t

discuss anything more.

Q. How did you, how did you take that?

A. Well, I would get more than, more than Richter got. I mean, they could

use my priors against me and give me more time. I really didn’t know how, but, you

know, I was looking at more time.

. . . .

Q. Were you concerned that those could come up and, too, enhance your

sentence?

A. Yes, sir. Yes, sir.

Q. Okay.

A. I didn’t know how they would be used, but I knew they could be used.

. . . .

Q. And I believe you already testified that it would actually be the facts you

thought might even come out in the trial?

A. Yes, sir.

. . . .

Q [by the prosecutor]. . . . when you found out that Richter . . . was in fact

going to testify against you, all right, was there any discussion then about whether or

not your [sic] would testify at your trial?

A. Yes, sir.

. . . .

He still didn’t want me to testify.

Q. All right. And the reason was?

A. I don’t know.

Q. You don’t know? Because your prior record could come up—

A. Yes, sir. Yes, sir.

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Q. —about your five felony convictions?

A. Yes, sir.

Q. Didn’t he tell you that?

A. Yes, sir, he did.

Q. Do you know now that that is true, that the State could have impeached

your testimony and brought up evidence that you were convicted of a felon [sic], of

a felony five time [sic] before?

A. Yes, sir.

Q. Okay. So that was true, right?

A. Yes, sir.

. . . .

Q. . . . When he [Mr. Komarek] told you that they could use your prior record

against you, you say he didn’t give you any specifics?

A. No, sir.

(Ex. C at 224–27, 249, 253). The letter referenced by Petitioner was admitted into evidence at the

evidentiary hearing (see id. at 265–66, Ex. D at 95). The letter, dated August 9, 2005, stated:

Mr. Basford is pressing for trial now that Mr. Richter has been convicted and

received ten years at the Department of Corrections. He rejected my attempts to get

probation and/or preserve our Motion for Dismissal for appeal. He suggests that due

to your prior convictions, you stand to receive a longer sentence than Richter. He

will let you plead to ten years.

I pass this information along to you since I am obliged to pass on all plea

negotiations.

(Ex. D at 95).

There is no evidence that counsel provided incorrect advice as to the manner in which the

State could use Petitioner’s prior convictions to impeach his credibility if he testified. While

8

Florida Statutes section 90.610 provides that a party may attack the credibility of any witness, including the

8

accused, by evidence of a prior felony conviction. Fla. Stat. § 90.610 (2003). Unless the witness answers untruthfully,

this inquiry is generally restricted to the existence of prior convictions and the number of convictions. Fotopoulos v.

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Petitioner may have believed that the State could have revealed the nature of his prior convictions

to the jury, there was absolutely no evidence adduced at the evidentiary hearing suggesting that

Petitioner’s erroneous belief was based upon affirmative misadvice from counsel. Moreover,

counsel’s practice of reserving in-depth discussions of the details involved in a client’s decision

whether to testify, including advice concerning the State’s use of prior convictions as impeachment,

until nearer the time when the decision must be made and all of the trial witnesses’s testimony is

known, falls within the wide range of reasonablyprofessional assistance. Therefore, Petitioner failed

to demonstrate defense counsel performed unreasonably with regard to advising him about the

State’s ability to use prior convictions as impeachment.

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

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

Strickland. Therefore, he is not entitled to relief on Ground One, sub-claim 1-B(b).

C. Ground One, sub-claim 1-C: “Petitioner’s plea was not voluntarily and intelligently

made due to: . . . defense counsel’s coercion, threat to withdraw if Petitioner did not accept

plea.”

Petitioner asserts defense counsel threatened to withdraw from the case if Petitioner chose

to testify and rejected the State’s plea offer (doc. 1 at 9). He states he raised this claim in his Rule

3.850 motion (id. at 13).

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

the claim was contrary to or an unreasonable application of Strickland (doc. 22 at 20–21).

1. Clearly Established Federal Law

The clearly established law governing this claim is set forth supra.

2. Federal Review of State Court Decision

Petitioner raised this claim as Issue 5 in his Rule 3.850 motion (Ex. D at 331–32). The state

circuit court adjudicated the claim as follows:

In claim five, Defendant alleges that counsel lead [sic] him to believe that he

would withdraw from the case if Defendant testified at trial. Specifically, Defendant

alleges that defense counsel told him “to the effect, should the defendant testify, he

State, 608 So. 2d 784, 791 (Fla. 1992) (citations omitted)

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no longer would be able to defend him.” See Defendant’s Motion filed March 19,

2007, pg. 7. As a result, Defendant submits that counsel’s statements interfered with

his right to testify by a threat to withdraw, which constitutes ineffective assistance of

counsel.

During the evidentiary hearing, Defendant’s counsel stated that he never told

his client that he would withdraw from the case if he elected to testify. Rather,

counsel believed that his client was confused and/or mixed up about a hypothetical

situation dealing with Defendant testifying truthfully and not committing perjury, if

he took the stand. However, counsel also stated that it was too early in the

proceedings for counsel to make any recommendation about Defendant testifying

because the trial had not yet commenced. As previously explained in claim four

above, counsel stated that he never made a recommendation about Defendant

testifying because it would be a last minute decision as the trial progressed.

In comparison, when Defendant was questioned bythe assistant state attorney

concerning the hypothetical situation, he denied any knowledge about counsel

informing him that he would have to withdraw if the Defendant committed perjury

while on the stand. Instead, Defendant stated that he wanted to testify when he

learned that his co-defendant Jeffery Scott Richter, who was convicted earlier by a

jury, would be called on behalf of the State as a witness. However, the substance of

the Defendant’s testimony presented at the hearing would not have created a

reasonable probability that the testimony would have created reasonable doubt. 

Rather, Defendant’s testimony would do no more than rebut the testimony of the

State’s witnesses, which is not enough to fulfill the prejudice prong of Strickland. 

See also, Jackson [v. State, 711 So. 2d 1371, 1373 n.1 (Fla. 4th DCA 1998)].

In essence, Defendant’s allegation is that his plea was not voluntarily entered

and he was coerced by threats of trial counsel, that if he did not accept the State’s

plea offer, counsel would abandon him. However, Defendant has failed to establish

prejudice based on his decision not to testify, as required by the Strickland test. See

also Knauff v. State, 941 So. 2d 1242, 1243 (fn. #1) (Fla. 5th DCA 2006). According

to the plea transcript, the Defendant’s plea was voluntarily entered into with the

advice of counsel. See TR Plea and Sentencing Colloquy, pgs. 5–8. Moreover,

Defendant acknowledged that nobody promised or threatened him in any way to get

him to enter this plea. See TR pg. 6, lines 19–21. In addition, Defendant affirmed

that he was satisfied with the services of his attorney. See TR pg. 6, lines 11–12. 

Finally, trial counsel’s testimony at the evidentiary hearing is consistent with the plea

transcript that Defendant’s plea was freely and voluntarily entered into on September

26, 2005. Based upon the foregoing, defendant’s claim is denied.

(Ex. C at 328–29).

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“Determining the credibility of witnesses is the province and function of the state courts, not

a federal court engaging in habeas review.” Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845

(11th Cir. 2011); see also Gore v. Sec’y for Dep’t of Corr., 492 F.3d 1273, 1300 (11th Cir. 2007)

(noting that while reviewing court also gives a certain amount of deference to credibility

determinations, that deference is heightened on habeas review) (citingRice v. Collins, 546 U.S. 333,

341–42, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (stating that “[r]easonable minds reviewing the

record might disagree about the [witness’] credibility, but on habeas review that does not suffice to

supersede the trial court’s credibility determination”)). Federal habeas courts have “no license to

redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but

not by them.” Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843,74 L. Ed. 2d 646 (1983);

see also Baldwin v. Johnson, 152 F.3d 1304, 1317 (11th Cir. 1998); Smith v. Kemp, 715 F.2d 1459,

1465 (11th Cir. 1983) (“Resolution of conflicts in evidence and credibility issues rests within the

province of the state habeas court, provided petitioner has been afforded the opportunity to a full and

fair hearing.”). Questions of the credibility and demeanor of a witness are questions of fact. See

Consalvo, supra (citing Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999) (en banc)). The

AEDPA affords a presumption of correctness to a factual determination made by a state court; the

habeas petitioner has the burden of overcoming the presumption of correctness by clear and

convincing evidence. See 28 U.S.C. § 2254(e).

At the state post-conviction evidentiary hearing, the state court credited the testimony of

defense counsel, Mr. Komarek. As previously noted, Mr. Komarek testified that beginning Friday,

September 23, 2005, and continuing over the weekend, he had several plea discussions with the

prosecutor and Petitioner (Ex. C at 291–96). He testified as follows:

A. . . . I’m going back to your [the prosecutor’s] call to me on the 23rd of

September, 2005. After you got done talking about that you didn’t think he’d qualify

for habitual offender, my notes indicate that you offered fifteen years imprisonment.

Q [by the prosecutor]. Now, this was for a plea?

A. Yes, for plea purposes. . . . I think I’d indicated either truthfully or as part

of my position at that time that he might not want to take that. There was a

[mandatory] minimum of three [years]. . . . Right after that I called Mr. Granberry

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about the plea offer. I conveyed it to him, fifteen years with a three-year minimum

mandatory. I think he was thinking about it. . . .

. . . .

. . . I explain [sic] to him that he’s got thirty, thirty years on the trafficking

charge, thirty on the conspiracy to traffic and the paraphernalia, so basically, sixtyone years if you add them all together, that eight-five percent of the time is what he

would be doing. He’s only got one ground to appeal right now and that would be the

search warrant. There must have been some discussion about how to preserve that

issue because you wouldn’t take a plea where he could preserve it. And we

discussed, or I told him about pleading straight up, just pleading to the charges and

say that we wanted to preserve the appeal and, if we were allowed to do that by the

judge, then that might work.

Q. That would be pleading straight up to the Court with no plea agreement

with the State?

A. Right, and if the—yeah, right. And, of course, announcing to the Court

that that was based upon or conditioned upon him being able to preserve his right to

appeal. And it might work and it might not. And I explained to him, after

conversations with you . . . [i]f we could get ten years and do the deal, he’ll do it. 

That’s when he told me about being shot bothered him on his left side, post-traumatic

stress, medications. He’s taking medications: Xanex and Lexapro and his blood

pressure medication and so forth. But he didn’t give any indication that it affected

him.

Now, I’m jumping from the 23rd back to the 24th again on my notes. That’s

where I talked to him and he indicates that he’ll plead ten years, same probation

Richter got, the fines and so forth. And he says okay, or at least my notes indicate

that he confirmed that he would do that. It was all rather non-specific in detail

because we’re going back and forth and everything is not mentioned every time,

because we’re assuming at that point that it’s going to be basically the same thing

that Richter got and that you wouldn’t, you wouldn’t allow him to preserve his right

to appeal.

. . . .

So, to the best of my knowledge, when we went in Mondaymorning, he knew

what the deal was.

. . . .

Q. And to your knowledge, sir, did he understand what the deal was going

to be before he came into the courtroom that morning?

A. Yes.

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Q. And was his plea freely and voluntarily entered to your knowledge, sir?

A. To my knowledge, it was.

. . . .

. . . I left the door open for my recommendation [as to whether Petitioner

should testify]. It’s his right not to testify or not [sic], over my recommendation. But

I left the door open to get to that until the last minute because I always leave it to the

last minute, usually, unless there’s something that forces it earlier. And when I get

the individual in my office or somewhere else one on one, I’ll ask him, if you’re

under oath in this case and you’re going to testify on your defense, what’s your

testimony going to be, so that I can evaluate whether I should say, well, you’ve got

a problem or if it’s, if I know that it’s going to be perjury, then there’s certain things

that I have to do and I advise them about it. Hypothetically, I might have been

discussing with him in advance the, what the lawyer’s obligation is if there’s a

possibility of perjury, but that was hypothetical.

. . . .

But I didn’t really sit down and quiz him about what his actual testimony was

going to be because he wouldn’t have had the benefit of what Richter was going to

say yet. So that door was still open, as far as I was concerned, until after I got a

deposition of Mr. Richter and then told him, here’s what everybody’s saying . . . if

you’re a witness, what are you going to testify to?

Q. All right. And finally, sir, as to Ground 5, the allegation that counsel

indicated he would withdraw if the defendant testified. Again, did you ever tell him,

I will withdraw or I will not represent you if you testify in this manner?

A. No, I think he’s got, probably, the hypothetical mixed up with something

else. Because we weren’t at the point where Iwould recommend that he testify or not

and I was just giving him the hypothetical about what a lawyer’s obligation is. And,

even then, the Judge says, you know, they’re not going to let us withdraw. You have

to make the motion and go back in chambers and you’re not there and then we go out

and we have to go do what the Florida Bar says we have to do, but I’m not going to

be able to withdraw. But we never got to that point and I wouldn’t have told a client

that if he testifies, I’m going to withdraw. Not in those terms, not that way.

. . . .

Q [by Petitioner’s counsel]. Did you ever, after you’d gotten the ten-year

deal, did he ever come back and say, no, I do not want to take that deal?

A. No, sir.

. . . .

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Q. Okay. And you also said and your testimony, I believe, is that you never

got to the point of actually discussing whether or not he should testify; you wait till

the last minute in trial prep to do that?

A. We never got to the point where I would recommend that he testify or that

he not testify.

Q. Okay. Do you recall ever . . . it coming up that he says, you know,

Richter’s not telling the truth or whatever he’s going to say or if he says I’m the head

of this or I’m the instigator, . . . Did he ever say, no, I can get up there and I can

testify and he’s not being honest about this? . . .

A. I never heard that comment, that I recall.

. . . .

. . . he never told me that.

Q. . . . And I’m just wondering does your notes [sic] reflect, at any point in

time, that they [Petitioner and his wife] changed their mind even for a ten-year

sentence and now we’re going to go to trial, they want to go to trial on this?

A. No.

. . . .

My last note here on the matter is talking with him, Mr. Granberry, and at

nine a.m. to plead guilty, ten years in prison plus Richter’s package . . . . then I have

a dash . . . in parentheses, “defendant.”

. . . .

So, that’s my last note, is that he okays what we’re going to do, and I

understand that he understands.

. . . .

Q. . . . did you ever say the words that I couldn’t represent you or I can’t

defend you, at any, during this weekend, out of any context or conversation that y’all

would have been having?

A. That doesn’t sound to me like something I would ever say. I don’t ever

remember saying it to anybody.

Q. Even in the sense of if, you know, if you get on the stand or if you do

something, I’m not going to be able to represent you effectively? Not that you want

to withdraw, but just not going to be able to represent you, do as good a job as I

could?

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A. Ijust don’t recall that and it doesn’t sound like something I would say and

I don’t know why I would say that.

. . . .

Except that gets, that got confused with some hypothetical I was giving him

about what would happen if there was perjurious testimony, but we hadn’t even got

to that, what his testimony’s going to be, yet.

Q. And, again, so you hadn’t, that wouldn’t have been said because y’all

never even got there at all?

A. Never got to the point where I recommended that he would testify or not. 

Certainly, we had some problems.

Q. And you heard both of them [Petitioner and his wife] has [sic] testified

that that conver—not in the sense of because of perj—, you know, them perjuring,

him perjuring himself on the stand, but they did basically say that you couldn’t

represent him anymore. I mean, kind of words that you’re saying, but for different

reasons. And you don’t have, and your notes don’t reflect where that would have

come from?

A. No.

(Ex. C at 293–315).

At the evidentiary hearing, Petitioner admitted he told Mr. Komarek he would take the tenyear plea offer (id. at 221). However, he testified he subsequently changed his mind and decided he

wanted to testify (id.). He stated:

A [by Petitioner]. Sunday I called him back. I decided I’m not going to take

this plea. I’ve thought about it Saturday night and I decided I don’t want to do this.

. . . .

So I called him back up and I told him. And he kind of got mad, you know,

kind of went off and got angry with me about saying, you know, this would be, you

know, it’s for my best interest. And then he—I told him I wanted to testify, and then

he said, well, I don’t know if I can defend you. And then he told me that he was

trying to save my life and keep me from dying in prison.

. . . .

And, and that kind of, I kind of thought after that he’d kind of give up [sic]. 

I mean, I didn’t know if he was going to withdraw on me or, you know. The can’t

[sic], can’t defend me, I didn’t know if that meant I didn’t have a defense, he was, he

was pulling out on me. I felt like he wasn’t my advocate anymore.

Q. Okay. Did he ever explain what he meant by “I can’t defend you?”

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A. No, sir.

. . . .

Q. All right. So what happens then?

A. Well, it depends on, you know—I mean, I’d been shot and I’d already

been through the experience of almost dying, you know, so it was like this was

happening again. So versus dying in prison or taking ten years, I decided to go with

the plea.

(Ex. C at 222–24). 

Petitioner has not identified clear and convincing evidence that rebuts the state court’s

finding that Mr. Komarek crediblytestified he nevertold Petitioner he would withdraw from the case

if Petitioner elected to testify, and that Komarek believed that Petitioner was confused about a

hypothetical situation regarding Petitioner testifying truthfully and not committing perjury. 

Therefore, Petitioner failed to demonstrate his plea was the result of counsel’s threat to withdraw or

otherwise abandon the case. 

Moreover, Petitioner’s statements during the plea colloquy contradict his allegations of

threats or coercion by counsel:

THE COURT: Mr. Granberry, you understand you don’t have to enter a plea

to either, any of the 3 of these charges. As to all of these charges you have the right

to go to a trial. That trial would be before a jury, be here [sic] in Jackson County. 

You would be represented by your attorney at that trial who would call any witnesses

you wanted him to call. You would cross-examine the State’s witnesses. You

understand you have a right to remain silent and unless the State could prove these

charges to the jury beyond a reasonable doubt the charges would be dismissed. Do

you understand all of those rights?

THE DEFENDANT: Yes, sir, Judge McClellan, I understand.

THE COURT: Do you understand you give up all those rights by entering a

plea?

THE DEFENDANT: Yes, sir.

THE COURT: Is that what you want to do?

THE DEFENDANT: Yes, sir.

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THE COURT: You also understand, Mr. Granberry, by entering a plea you

give up the right to appeal any issues regarding these charges even the issue regarding

guilt and innocence?

THE DEFENDANT: Yes, sir.

THE COURT: Is that what you want to do?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had enough time to discuss your case with Mr.

Komarek?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with his services?

THE DEFENDANT: Yes, sir, I am.

THE COURT: Mr. Granberry, are you under the influence of any drugs or

alcohol?

THE DEFENDANT: No, sir.

THECOURT: Are you having anydifficult[y] hearing or understandingwhat

is going on?

THE DEFENDANT: No, sir.

THE COURT: Has anybody promised you or threatened you in any way to

get you to enter this plea?

THE DEFENDANT: No, sir.

THE COURT: Has anybody, including your attorney, Mr. Komarek,

promised you that with respect to the prison sentence you would do anything less

than the full ten years?

THE DEFENDANT: No, sir.

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THE COURT: And is there anything about the agreement you made with the

State, the proposed sentence or anything else concerning these proceedings, that you

do not understand?

THE DEFENDANT: No, sir, I understand.

THE COURT: Do you have any questions at all?

THE DEFENDANT: No, sir, I don’t have any questions.

(Ex. C at 363–65) (emphasis added). Additionally, by signing the written plea agreement, Petitioner

acknowledged that his plea was entered of his own free will, and no one forced, threatened,

persuaded, promised, induced or otherwise influenced him to enter his plea, except as set forth in

the agreement (id. at 358).

In light of the court’s determination that Mr. Komarek did not tell Petitioner he would

withdraw from the case if Petitioner elected to testify, and considering Petitioner’s on-the-record

statements during the plea colloquy that no one threatened him in any way to cause him to accept

the plea, Petitioner failed to demonstrate deficient performance by counsel. Therefore, the state

court’s adjudication of Ground One, sub-claim 1-C is entitled to deference.

D. Ground One, sub-claim 1-D: “Petitioner’s plea was not voluntarily and intelligently

made due to: . . . defense counsel’s failure to bring to the court’s attention Petitioner’s

serious mental health disorders: post-traumatic stress disorder(s) and manic depressive

disorders.”

Petitioner contends defense counsel was ineffective for failing to advise the trial court that

there was a reasonable probability Petitioner was incompetent to proceed due to his serious mental

health disorders, including post-traumatic stress disorder and manic depression, and the effects of

medications Petitioner was taking for these disorders, including Lexapro and Xanax (doc. 1 at 6,

10–12). Petitioner states counsel knew he had been diagnosed with these mental disorders and that

he was taking medication prior to and during the plea hearing, but counsel failed to investigate how

the disorders and medication could affect Petitioner’s judgment and reasoning (id. at 11). He states

if counsel had made such investigation, he would have discovered there was a presumption that

Petitioner was not competent to assist in his defense or proceed to trial (id. at 11–12). Petitioner

further contends if counsel had brought this information to the court’s attention, the court would not

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have accepted the plea and would have been required to appoint an expert to evaluate Petitioner’s

competency (id. at 12). 

Respondent asserts Petitionerfailed to properlyexhaust this claim, because he did not present

it in his brief to the state appellate court on appeal of the lower court’s denial of his Rule 3.850

motion (doc. 22 at 21). Respondent contends Petitioner may no longer return to state court to litigate

this claim; therefore, the claim is procedurally barred from federal review (id.). Respondent

additionally argues notwithstanding the exhaustion issue, Petitioner’s claim is without merit (id. at

21–22). 

In response to the exhaustion argument, Petitioner states he raised this claim in Issue 1 of his

Rule 3.850 motion (doc. 25 at 16).

The record supports Respondent’s argument. The Florida Rules of Appellate procedure

provide that in a case where a movant’s Rule 3.850 motion is denied after an evidentiary hearing,

a movant wishing to appeal the denial of his motion must file an initial brief. See Fla. R. App. P.

9.141(b)(3); see also Pennington v. State, 34 So. 3d 151, 153 at n.1 (Fla. 1st DCA 2010) (briefing

is required in appeal from non-summary denial of Rule 3.850 motion). It is well established in

Florida courts that claims for which an appellant has not presented any argument, or for which he

provides only conclusory argument, are insufficiently presented for review and are waived. See

Gamble v. State, 877 So. 2d 706 (Fla. 2004); Reed v. State, 875 So. 2d 415 (Fla. 2004) (same);

Cooper v. State, 856 So. 2d 969, 977 n.7 (Fla. 2003); Marshall v. State, 854 So. 2d 1235, 1252 (Fla.

2003) Sweet v. State, 810 So. 2d 854, 870 (Fla. 2002); Johnson v. State, 769 So. 2d 990, 1005–06

(Fla. 2000); Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999). The undersigned thus concludes

that the Florida procedural rule deeming as waived or abandoned those claims for which an appellant

has not presented any argument in his appellate brief (or for which he provides only conclusory

argument), is a firmly established and regularly followed procedural rule for purposes of federal

habeas.

In Petitioner’s brief on appeal of the circuit court’s denial of his Rule 3.850 motion,

Petitioner argued in Issue 1 that his plea was involuntary due to defense counsel’s misadvice as to

the probable sentence he would receive if he was convicted at trial (Ex. E at 16–24). Petitioner

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argued that based upon counsel’s misadvice and Petitioner’s “mental state,” Petitioner felt it was in

his best interest to accept the plea and waive his right to appeal the issue raised in defense counsel’s

motion to suppress (id. at 17–18). This was the onlymention of Petitioner’s alleged mental disorder

in the entirety of his appellate argument on Issue 1. Nowhere in Petitioner’s appellate brief did he

argue that defense counsel was ineffective for failing to raise a mental competency issue with the

trial court, based upon Petitioner’s alleged mental heath disorders and the influence of his

medications. Therefore, Petitioner did not properly exhaust this claim in the state courts.9

Thisrule applies notwithstanding Petitioner’s argument that the state circuit court essentially summarily denied

9

this claim. When a defendant receives an evidentiary hearing on any post-conviction claim, he must present argument

on all issues for which he seeks appellate review in his initial brief, regardless of whether the claim was summarily denied

or litigated at the evidentiary. See Prince v. State, 40 So. 3d 11 (Fla. 4th DCA 2010); Hammond v. State, 34 So. 3d 58

(Fla. 4th DCA 2010) (claim for which appellant did not present argument, or for which he provided only conclusory

argument, was insufficiently presented for appellate review, regardless of whether claim was among those claims litigated

at evidentiary hearing or among those claims summarily denied by trial court); Williams v. State, 24 So. 3d 1252 (Fla.

1st DCA 2009) (where appellant received evidentiary hearing on some of his post-conviction claims and others were

summarily denied, appellate court would review only those summarily denied claims which movant argued in appellate

brief); see also Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (en banc) (where all of appellant’s postconviction claims were summarily denied, but appellant chose to file initial brief on appeal (even though not required

to do so under Fla R. App. P. 9.141(b)(2)), appellant abandoned any issues not addressed in initial brief); Watson v.

State, 975 So. 2d 572 (Fla. 1st DCA 2008) (same); Austin v. State, 968 So. 2d 1049 (Fla. 5th DCA 2007) (same); but

see Norwood v. State, 30 So. 3d 336 (Fla. 2d DCA 2010) (not applying rule in pro se cases and recognizing conflict with

Hammond, Williams, Ward, Watson, and Austin, supra); Walton v. State, — So. 3d —, 2010 WL 1507628 (Fla. 2d

DCA 2010) (same). While there has not been absolute consistency by Florida district courts of appeal in applying this

rule, such is not required to permit a federal court to conclude that a state procedural rule is adequate for federal habeas

purposes. See Maples v. Allen, 586 F.3d 879, 888 (11th Cir. 2009) (while “regularly followed” means “closely hewn

to,” it does not mean complete unanimity or absolute consistency of state decisions applying the rule) (citations omitted).

Therefore, the Florida procedural rule deeming as waived or abandoned those claims for which an appellant

has not presented any argument in his initial brief, even when the post-conviction evidentiary hearing was limited in

scope to some but not all post-conviction claims and the appellant’s insufficiently presented claims were summarily

denied by the trial court, is a firmly established and regularly followed procedural rule for purposes of federal habeas.

See, e.g., Daniels v. Tucker, No. 5:09cv328/RS/EMT, 2011 WL 7153921, at *18 (N.D. Fla. Nov. 22, 2011)

(unpublished), Report and Recommendation adopted, 2012 WL 379590 (N.D. Fla. Feb. 3, 2012) (unpublished);

Stoudmire v. Tucker, No. 3:09cv48/MCR/EMT, 2011 WL 5426239, at *9–11 (N.D. Fla. Aug. 30, 2011), Report and

Recommendation adopted, 2011 WL 5442091 (N.D. Fla. Nov. 9, 2011) (unpublished); Green v. McNeil, No.

1:09cv204/MMP/GRJ, 2011 WL 2790167, at *7 (N.D. Fla. June 22, 2011) (unpublished), Report and Recommendation

adopted, 2011 WL 2790180 (N.D. Fla. July 15, 2011); Curry v. Buss, No. 3:08cv539/LAC/EMT, 2011 WL 2174038

(N.D. Fla. Apr. 26, 2011) (unpublished), Report and Recommendation adopted, 2011 WL 2149544 (N.D. Fla. June 1,

2011); Rasley v. Buss, No. 5:08cv368/RH/EMT, 2011 WL 2358650 (N.D. Fla. Apr. 11, 2011) (unpublished), Report

and Recommendation adopted, 2011 WL 2293383 (N.D. Fla. June 9, 2011); Corn v. McNeil, No.

3:08cv199/MCR/EMT, 2010 WL 5811343 (N.D. Fla. Nov. 24, 2010) (unpublished), Report and Recommendation

adopted, 2011 WL 88713 (N.D. Fla. Feb. 10, 2011); Ross v. McNeil, 5:07cv219/RS/EMT, 2010 WL 2179039 (N.D.

Fla. Apr. 14, 2010) (unpublished), Report and Recommendation adopted, 2010 WL 2179037 (N.D. Fla. May 28, 2010)

(unpublished), cert. of appealability denied, No. 10-13013-A (11th Cir. Oct. 4, 2010) (certificate of appealability sought

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Moreover, Petitioner cannot now take a second appeal from the denial of his Rule 3.850 motion to

attempt to successfully exhaust the claim presented in sub-claim 1-D; therefore, the claim is

considered procedurally defaulted. 

Petitioner appears to allege ineffective assistance of post-conviction appellate counsel as

cause for his failure to raise this claim in his brief on appeal in the Rule 3.850 proceeding (see doc.

26 at 19). He alleges he raised a claim of ineffective assistance of post-conviction appellate counsel

in a state habeas petition (id.). The state court record confirms that Petitioner raised several claims

of ineffective assistance of post-conviction appellate counsel, including appellate counsel’s failure

to raise this issue in the post-conviction appeal, in his state habeas petition (Ex. M at 1, 3, 16–18,

21–22). However, ineffective assistance of counsel on appeal of a collateral proceeding does not

constitute cause to overcome a procedural bar. See Coleman v. Thompson, 501 U.S. 722, 752–53,

111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); see also Martinez v. Ryan, — S. Ct. —, 2012 WL

912950, at *10 (2012) (ineffective assistance of counsel can constitute cause of a procedural default

in an initial-review collateral proceeding, but not an appeal from an initial-review collateral

proceeding). Therefore, Petitioner failed to demonstrate cause for the procedural default. Further,

he has failed to demonstrate he is entitled to federal review of this claim through any other

recognized exception to the procedural bar. Therefore, Ground One, sub-claim 1-D is procedurally

barred from federal review.

E. Ground One, sub-claim 1-E: “Defense counsel was ineffective for allowing the

Petitioner to waive his appeal rights and by not making a timely objection to the waiver. 

Trial court renditions of Petitioner’s waiver of right to appeal, not specifically made.”

Petitioner contends the trial court committed reversible error byacceptingPetitioner’s waiver

of his right to appeal, and defense counsel was ineffective for failing to object to Petitioner’s wavier

(doc. 1 at 6, 12–13). Petitioner specifically argues the trial court failed to verify on the record that

Petitioner understood he was waiving his right to appeal the trial court’s denial of defense counsel’s

motion to suppress (id.). Petitioner further argues the trial court made contradictory statements

on issue of whether Florida’s procedural rule, that defendant waived or abandoned appellate review of post-conviction

claims that were summarily denied and not addressed in defendant’s appellate brief, where trial court held evidentiary

hearing on other claims, was firmly established and regularly followed).

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regarding Petitioner’s appellate rights, which confused him as to what his appellate rights were (id.

at 13). Petitioner contends the waiver of his appellate rights was thus not knowing and voluntary

(id. at 12–13). He asserts if defense counsel or the court had properly informed him of the appellate

rights he was waiving, he would not have entered a plea and instead would have insisted on going

to trial (id. at 13). Petitioner asserts he raised this claim in his Rule 3.850 motion (doc. 1 at 13).

Respondent contends this claim, whether construed as a claim of trial court error or

ineffective assistance of counsel or both, is unexhausted and procedurally defaulted (doc. 22 at

22–24). Respondent argues to the extent Petitioner raises a claim of trial court error, he failed to

preserve the issue by presenting it in a motion to withdraw his plea, as required by Rule

9.140(b)(2)(A)(ii)c. of the Florida Rules of Appellate Procedure (id. at 22–23). Further, Petitioner

did not even file a direct appeal, which was the proper vehicle for raising a claim of trial court error

(id. at 23). Moreover, in Petitioner’s Rule 3.850 proceeding, he did not raise a claim of trial court

error with respect to the court’s acceptance of his waiver of his appellate rights; nor did Petitioner

raise a claim of ineffective assistance of counsel based upon counsel’s failure to object to the waiver

of Petitioner’s right to appeal the suppression issue or otherwise attempt to preserve his right to

appeal this issue (id. at 22–23). Therefore, the claims are procedurally barred from federal review

(id.).

In Petitioner’s reply, he clarifies his claim as one of trial court error, that is, the trial court’s

failure to specifically inform him he was waiving his right to appeal the suppression issue by

entering his plea. Petitioner contends the trial court’s failure to clarify his appellate rights rendered

his plea unknowing and involuntary (doc. 26 at 20–22). 

Review of the state court record demonstrates that as part of Petitioner’s claim of ineffective

assistance of counsel asserted in Issue 1 of his Rule 3.850 motion, Petitioner argued his appeal

waiver was involuntary (Ex. D at 5–16). But he did not argue it was involuntary due to trial court

error; rather, he argued defense counsel misadvised him as to the sentence he could receive if he did

not accept the State’s plea offer, which included waiver of his appellate rights (id.). He additionally

argued the trial court failed to conduct a sufficient inquiry to determine the voluntariness of his

appeal waiver (id. at 10–12). However, even if this constituted fair presentation of an independent

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claim of trial court error, Petitioner did not fairly present an independent claim of trial court error

on appeal of the state circuit court’s denial of the motion. On appeal of the state circuit court’s

denial of Issue 1, Petitioner’s post-conviction appellate counsel argued the unknowing and

involuntary nature of the appeal waiver only in the context of the argument that Petitioner was

prejudiced by trial counsel’s misadvice regarding the possible length of his sentence if he rejected

the plea offer (Ex. E at 17–18, 23–24). He did not argue error with respect to the sufficiency of the

trial court’s colloquy. Therefore, Petitioner did not give the post-conviction appellate court an

opportunity to pass upon and correct any constitutional error with respect to the trial court’s

acceptance of the plea. Therefore, Petitioner procedurally defaulted his claim of trial court error. 

To the extent Petitioner argues ineffective assistance of post-conviction appellate counsel as

cause for his failure to exhaust the claim of trial court error in his post-conviction appeal (Petitioner

raised this claim of ineffective assistance of post-conviction appellate counsel in his state habeas

petition (see Ex. M at 1, 3, 18–22)), as discussed supra, ineffective assistance of counsel in an appeal

from an initial-review collateral proceeding does not constitute cause to overcome a procedural bar. 

Therefore, Petitioner is not entitled to federal review of Ground One, sub-claim 1-E.

Moreover, Petitioner’s argument that defense counsel performed ineffectively by failing to

object to the trial court’s acceptance of Petitioner’s appeal waiver without reserving the right to

appeal the suppression issue is without merit. Defense counsel testified at the evidentiary hearing

regarding his conversations with Petitioner regarding whether the plea agreement included

preservation of the right to appeal the suppression issue: 

A [byMr. Komarek]. . . . Right after that [Mr. Komarek’s initial conversation

with the prosecutor during which the prosecutor offered fifteen (15) years of

imprisonment] I called Mr. Granberry about the plea offer. I conveyed it to him,

fifteen years with a three-year minimum mandatory. I think he was thinking about

it. . . .

. . . .

. . . I explain [sic] to him that he’s got thirty, thirty years on the trafficking

charge, thirty on the conspiracy to traffic and the paraphernalia, so basically, sixtyone years if you add them all together, that eight-five percent of the time is what he

would be doing. He’s only got one ground to appeal right now and that would be the

search warrant. There must have been some discussion about how to preserve that

issue because you [the prosecutor] wouldn’t take a plea where he could preserve it. 

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And we discussed, or I told him about pleading straight up, just pleading to the

charges and say that we wanted to preserve the appeal and, if we were allowed to do

that by the judge, then that might work.

Q. That would be pleading straight up to the Court with no plea agreement

with the State?

A. Right, and if the—yeah, right. And, of course, announcing to the Court

that that was based upon or conditioned upon him being able to preserve his right to

appeal. And it might work and it might not. And I explained to him, after

conversations with you . . . [i]f we could get ten years and do the deal, he’ll do it. 

That’s when he told me about being shot bothered him on his left side, post-traumatic

stress, medications. He’s taking medications: Xanex and Lexapro and his blood

pressure medication and so forth. But he didn’t give any indication that it affected

him.

Now, I’m jumping from the 23rd back to the 24th again on my notes. That’s

where I talked to him and he indicates that he’ll plead ten years, same probation

Richter got, the fines and so forth. And he says okay, or at least my notes indicate

that he confirmed that he would do that. It was all rather non-specific in detail

because we’re going back and forth and everything is not mentioned every time,

because we’re assuming at that point that it’s going to be basically the same thing

that Richter got and that you wouldn’t, you wouldn’t allow him to preserve his right

to appeal.

. . . .

So, to the best of my knowledge, when we went in Mondaymorning, he knew

what the deal was.

(Ex. C at 293–95).

At the evidentiaryhearing, Petitioner testified, consistentlywith Mr. Komarek, that the Friday

before trial, Mr. Komarek called him and communicated the prosecutor’s offer of fifteen (15) years

in prison and waiver of his right to appeal the suppression issue (Ex. C at 219). Petitioner testified

he rejected that offer, and told Mr. Komarek to ask the prosecutor if he would agree to ten (10) years

of imprisonment (id. at 220). Petitioner testified Mr. Komarek called him back on Saturday, and

stated the prosecutor agreed to ten years of imprisonment, but only if Petitioner agreed to waive his

right to appeal the suppression issue (id.). Petitioner testified he told Mr. Komarek he would accept

that offer, and asked that Komarek confirm it with the prosecutor (id. at 220–21). Petitioner testified

Mr. Komarek called him and confirmed the plea agreement (id. at 221). He testified he understood

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that waiving his right to appeal the suppression issue was part of the ten-year plea agreement (id. at

239–40). 

The written plea agreement, signed by Petitioner and Mr. Komarek, expressly provided that

the plea was being made “without reservation of the right to appeal the judgment of the Court,

including guilt or innocence” and that Petitioner would not be entitled to the services of a public

defender for any appeal “other than an appeal based upon an illegal sentence” (Ex. C at 358). At the

plea and sentencing hearing, the trial court asked Petitioner whether he understood he was giving up

the right to appeal “anyissues regarding these charges, even the issue regarding guilt and innocence,”

and Petitioner responded he understood (id. at 364). There is nothing in the record to suggest

Petitioner’s counsel misadvised Petitioner that the plea deal preserved his right to appeal the

suppression issue; nor has Petitioner shown that counsel had reasonable grounds to object to the

waiver of Petitioner’s right to appeal the suppression issue or otherwise attempt to preserve

Petitioner’s right to appeal the suppression issue at the plea hearing. Therefore, Petitioner failed to

show counsel performed ineffectively in this regard.

F. Ground Two: “Petitioner’s constitutional rights under the Fourth (4th), Fifth (5th),

Sixth (6th), and Fourteenth (14th) Amendments were violated by the lower state courts and: 

(1) resulted in a decision that was contrary to Franks v. Delaware, 438 U.S. 154 (1978); (2)

resulted in a decision based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.”

Ground Three: “Petitioner’s constitutional rights under the Fourth (4th), Fifth (5th),

Sixth (6th), and Fourteenth (14th) Amendments were violated by the state lower court’s/trial

court’s ruling that denied Petitioner’s ineffective assistance of counsel claim was based on

an unreasonable determination of facts in light of the evidence presented at the petitioner’s

evidentiary hearing, and is contrary to clearly established federal law.”

Petitioner asserts prior to entering his guilty plea, the trial court held a hearing on defense

counsel’s motion to suppress evidence obtained as a result of Petitioner’s arrest, on the ground that

the arrest was unlawful, because it was not supported by probable cause (doc. 1 at 14–18). In

Ground Two, Petitioner alleges it became evident at the suppression hearing that Sergeant

Edmondson, the officer who submitted the probable cause affidavit, knowingly included a false

statement in the affidavit, that is, that he actually saw Petitioner harvesting marijuana (id. at 16). 

Petitioner contends defense counsel was ineffective for failing to argue that Sergeant Edmondson’s

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false statement in the affidavit constituted a basis for suppressing evidence obtained during the

course of his arrest, pursuant to Franks v. Delaware, 438 U.S. 154 (1978) (id. at 16–18). In Ground

Three, Petitioner contends trial counsel was ineffective for failing to question Lieutenant Watson as

to how he was able to see Petitioner and his co-defendant standing near a marijuana plant, when

Watson and Sergeant Edwards were crawling or kneeling in dense underbrush (id. at 20–22). 

Petitioner states Sergeant Edwards, who was with Lieutenant Watson in the underbrush, testified he

could not see Petitioner until Petitioner was within 2–3 feet of him (id.). Petitioner argues defense

counsel should have impeached Lieutenant Watson with this inconsistency and argued to the court

that Watson was not able to observe or hear anything while he was in the underbrush (id.). 

Petitioner states he raised both of these claims in Issue 2 of his Rule 3.850 motion (see doc.

1 at 19, 23; doc. 26 at 22, 25).

Respondent construes Petitioner’s argument in Ground Two as asserting trial court error with

respect to the denial of the motion to suppress and contends the claim is not cognizable, pursuant

to Stone v. Powell, 428 U.S. 465 (1976), because Petitioner had a full and fair opportunity to litigate

the Fourth Amendment issue in the state courts (doc. 22 at 24–25). Respondent additionally

contends the claim is unexhausted and procedurally defaulted, because Petitioner failed to seek

review of the Fourth Amendment claim on direct appeal (id. at 25). As to Ground Three,

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

was contrary to or an unreasonable application of Strickland (id. at 25–29).

In Petitioner’s reply, he argues Stone v. Powell, supra, does not extend to his claim of

ineffective assistance of counsel based upon counsel’s failure to argue the seizure of evidence was

void under Franks v. Delaware, 438 U.S. 154 (1978) (doc. 26 at 23–24). Petitioner asserts he has

included argument on the merits of the Fourth Amendment issue only to establish Strickland

prejudice (id.). 

With regard to Ground Two, in light of Petitioner’s clarification that he is raising only a

claim of ineffective assistance of counsel with respect to counsel’s performance at the suppression

hearing, not an independent Fourth Amendment claim, the undersigned concludes the claim is not

barred by Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976). 

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Further, it is evident from the record that the state court adjudicated both claims of ineffective

assistance of counsel asserted in Grounds Two and Three. Therefore, the court will assess whether

Petitioner has demonstrated he is entitled to relief on these claims of ineffective assistance of

counsel. 

1. Clearly Established Federal Law

The clearly established law governing this claim is set forth supra.

2. Federal Review of State Court Decision

Petitioner raised these claims as Issues 2 and 3 in his Rule 3.850 motion (Ex. D at 17–24,

322–24). The state circuit court adjudicated the claims as follows:

In claim two, Defendant alleges that counsel was ineffective when he failed

to challenge the sufficiency of the probable cause that resulted in his arrest, in the

face of conflicting statements by the witnesses who were used to establish probable

cause. Defendant’s claim is without merit. Counsel did challenge the sufficiency of

the probable cause based on this precise issue through a Motion to Suppress

Evidence filed April 26, 2004. See TR Motion Hearing held October 20, 204, pgs.

10–16. However, the issues raised by Defendant’s counsel were overruled by the

Court by an order filed October 21, 2004. Therefore, Defendant has failed to

establish prejudice pursuant to Strickland.

In claim three, Defendant alleges that counsel failed to advise the Court that

fraudulent representations had been used in order to procure the warrant for

Defendant’s arrest. Simply put, Defendant submits that the probable cause affidavit,

written byDavid W. Edmondson, reflects that investigators observed two individuals

as they began to collect marijuana buds from several of the plants. See Defendant’s

Motion filed February 13, 2007, pg. 2. However, Defendant claims that the

officers[’] testimony during depositions conflicted with their earlier statements that

they observed and/or saw the Defendant collect marijuana buds. Based upon the

foregoing, Defendant asserts that his trial counsel should have argued to the Court

during the suppression hearing that the officers perpetrated a fraud through the

probable cause affidavit.

During the suppression hearing held October 20, 2004, Defendant’s trial

counsel challenged the sufficiency of the probable cause that resulted in Defendant’s

arrest as submitted in claim two above. In his argument, counsel brought to the

attention of the court the inconsistent statements made by officers during their

depositions about observing the defendants prior to being arrested. In fact, counsel

brought to the Court’s attention some of the officer’s testimony during depositions

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to demonstrate the inconsistent statements made by the witnesses, which conflicted

with their earlier ones. See TR Motion Hearing held October 20, 2004, pgs. 10–16.

At the evidentiary hearing, Defendant’s counsel stated that he vigorously

argued the motion to suppress; however, the Court ruled against his client. In regards

to the falsity of the probable cause affidavit, counsel does not remember and the

record does not show otherwise. Despite the foregoing, a defendant’s right to

reasonable competent counsel does not entitle him to have every conceivable

challenge pressed upon the Court. See Magill v. State, 457 So. 2d 1367 (Fla. 1984).

The standard for evaluating counsel’s performance is that of “reasonable

effective counsel.” See Strickland, 104 S. Ct. at 2052; Miller v. State, 921 So. 2d

816, 819 (Fla. 5th DCA 2006). Reasonable effective counsel does not mean perfect

counsel, but rather is an objective standard. See id. Further, a defendant must show

beyond mere speculation that there is a reasonable probability that but for counsel’s

errors the outcome of the proceeding would have been different. See Peterka v.

State, 890 So. 2d 219, 228 (Fla. 2004). The convicted defendant bears the burden of

proof for each element of the Strickland test, and if he is unable to satisfy either

prong of the test, then relief should be denied. See Strickland, supra.

Applying these standards to the present case, the Court finds that the

Defendant has failed to establish that counsel’s performance was deficient, nor [sic]

that Defendant was prejudiced by counsel’s performance. Moreover, Defendant has

failed to show a deficiency so substantial as to probably have affected the outcome

of the proceedings. Finally, Defendant has failed to affirmatively prove prejudice.

(Ex. C at 326–27).

Petitioner argued both issues on appeal of the denial of his Rule 3.850 motion (Ex. E at

25–34). The First DCA affirmed without written opinion.

The state court record demonstrates that Petitioner’s counsel, Mr. Komarek, filed a motion

to suppress evidence obtained as a result of Petitioner’s arrest, on the ground that Petitioner was

arrested without any prior information linking him to the plots of marijuana and without the officers

first observing Petitioner engaging in any criminal activity (Ex. C at 352–53). The four officers who

conducted surveillance of the area where Petitioner was arrested, Investigators Arnold, Edmondson,

Watson, and Edwards, testified at the evidentiary hearing on the motion to suppress (id. at

379–530). 

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Investigator Arnold testified that on September 8, 2003, he and a pilot conducted a cannabis

aerial detection mission (Ex. C at 405–06). He testified he spotted what he believed to be marijuana

plants in an area off Richter Road (id. at 406–07). Investigator Arnold testified that on October 2,

2003, he and Investigator Edmondson were conducting surveillance at the site, when he heard a

vehicle enter the area and pass their location (id. at 409–10). He heard the vehicle doors open and

close, and then open and close again (id. at 409). He heard the vehicle start up, come closer to their

location, shut off, and then the doors open and close again (id.). He testified he heard brush moving

and conversation (id.). After a few minutes, he heard the vehicle doors open and close, and the

vehicle start up and come closer to his location (id. at 410). He again heard the vehicle shut off and

the doors open (id.). He also heard a man ask about bags, and another person respond that they were

on the front seat of the truck (id.). Investigator Arnold testified that after a while, the two individuals

moved by him in the brush, but “as far as making anything out I could not” (id. at 410, 412). Arnold

testified he heard brush moving and conversation between the two individuals (id.). He testified he

was able to tell that the voices were male voices, and it appeared theywere white males, but he could

not decipher what they said (id.). Investigator Arnold testified he then heard “snipping noises” (id.). 

Investigator Arnold testified he never actually saw the individuals touch the marijuana plants, he just

heard snipping noises (id. at 412, 414, 417–18).

Investigator Edmondson testified that beginning September 10, 2003, Investigators Arnold,

Edwards, and Watson went to an area designated as Plot 1 with a surveillance camera system, and

set up the camera system near marijuana plants (Ex. C at 420). He stated that sample plant material

was also collected for testing (id.). Edmondson stated that after the camera was installed, he and the

other investigators viewed the surveillance video and observed two white males cultivating two

marijuana plants, and one man appeared to have a cloth or mask over his head (id. at 423–24, 432). 

He testified both men were wearing short-sleeved shirts (id. at 431). He stated that while he and the

other officers were conducting surveillance of the site a few days prior to October 2, 2003, they

observed what appeared to be pieces or buds cut off some of the plants, which they knew a couple

of days earlier were intact; and they observed yellow leaves pulled off some of the plants and

discarded (id. at 428–29). Edmondson testified that on October 2, he and Investigator Arnold were

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positioned to the east of a particular trail, and Investigator Edwards and Watson were to the west of

the trail (id. at 433). He testified he heard a vehicle stop just to his right, and then heard men’s

voices (id. at 435). He testified he continued to hear the men’s voices as they got closer and then

passed him and Investigator Arnold (id.). Edmondson testified he called Investigator Edwards on

the radio and told him the men were heading towards Edwards and Watson (id. at 435–36). 

Edmondson continued to hear brush breaking, voices, and “clipping noises” (id. at 436, 446). He

testified as he was talking with Edwards on the radio, Edwards said, “They’re coming up on our

position” (id. at 436–37). Edmondson testified he responded, “Okay. Well, you know, need to get

ready to apprehend them if they come to the plants near you.” (id. at 437). 

On cross-examination, Mr. Komarek questioned Investigator Edmondson regardingwhether

Investigator Edwards told him he actually saw two white males (Ex. C at 446). Edmondson

answered:

At one point, yes, sir, I believe he told me that he could see two white males

or either he was trying to tell me it’s two white males. I don’t recall exactly the word

he used. I want to say he told me, “It’s two white males” or “Isee two white males.”

(id.). Edmondson admitted he did not actually see Petitioner or his co-defendant do anything illegal,

but he “could hear what was going on” (id. at 448). Mr. Komarek’s questioning continued:

Q. In your complaint you say the evidence [sic] “As they began to harvest

buds from several marijuana plants,” is that a statement that you made under oath

based upon what you testified here today to?

A. Is what I testified to back in my deposition [sic]. I don’t remember the

exactly [sic] language Investigator Edwards told me on the radio. I don’t recall if he

told me he saw them or not, I want to say he did but I can’t swear to it a hundred

percent or he was telling me, “They’re two white male [sic].” “Go ahead and

apprehend them, we heard the clipping noises” and knew they were walking around

in Plot 2 and the truck was driving around the area between Plot 3 and 4. . . . We had

surveillance camera tape from past dates, we knew at least on one occasion two

people had been out there before.

(id. at 448).

Investigator Watson testified he was positioned with Investigator Edwards (Ex. C at 467). 

He testified he heard a vehicle come close to their position, and then heard a door closing and

someone entering the wooded area to the left of him and Edwards (id.). Watson testified he heard

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voices and people moving to the left, but he and Edwards were not able to see at that time (id.). He

testified they heard “snips or clicking” (id. at 467–68). Watson testified the sounds were significant,

because when investigators arrived at the plots on earlier occasions, marijuana bushes had been

snipped or picked, so when he heard snipping, he believed the individuals were snipping buds off

the marijuana plants (id. at 468). He testified he and Investigator Edwards were twenty (20) feet

from a marijuana plant, and he heard the individuals approach the plant (id. at 469–70). He testified

there was a pine tree and a marijuana plant between the individuals and him and Edwards, but “you

could sort of see through the branches and the marijuana plant on the other side,” and he saw

clothing (id. at 469, 473). Watson testified he heard one of the individuals say, “They sure are

pretty,” and at that time Investigator Edwards moved in front of him and approached Petitioner,

shouting, “Sheriff’s Office, get down” (id. at 470–71, 476). Watson testified he initially began to

follow Edwards, but saw the co-defendant move to his (Watson’s) left, so he shifted to the left and

monitored the co-defendant (id.).

On cross-examination byMr. Komarek, Investigator Watson testified he neversaw Petitioner

or his co-defendant touch a marijuana plant, he just saw them near a plant and heard the clipping

sounds (Ex. C at 475, 481).

Investigator Edwards testified that based upon their previous surveillance activities of the

plots, including a video, the investigators believed that the persons cultivating the marijuana plants

were two white males (Ex. C at 486–87). He testified on the day in question, he heard a vehicle

approach the area where he and Investigator Watson were positioned, and he heard two doors slam

and people talking (id. at 487–88). He testified as the two people walked near his position, he

determined they were white males, because he heard two white male voices (id. at 488, 490). He

testified he heard the persons walking through the brush, and he heard clipping noises (id. at 489,

505). 

On cross-examination by Mr. Komarek, Investigator Edwards testified he and Investigator

Watson were in kneeling or crawling positions when the individuals were approaching their position

(Ex. C at 494). He testified Petitioner was two or three feet from him when he (Edwards) jumped

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up and pointed his weapon at Petitioner (id. at 495). Edwards admitted he did not see Petitioner

touch a marijuana plant (id. at 497, 501). 

Mr. Komarek argued there were no facts developed by the investigators prior to Petitioner’s

arrest that would indicate that Petitioner had committed a crime (Ex. C at 387–97, 527–28). Mr.

Komarek argued none of the investigators observed Petitioner do anything (id.). He argued the

depositions of the four investigators, which were filed with the court, were inconsistent in several

respects, but were consistent on the fact that none of the investigators actually saw Petitioner commit

an illegal act (id. at 391–92, 531–721). Mr. Komarek argued Investigator Edmondson’s probable

cause affidavit stated investigators observed two individuals begin to harvest buds from marijuana

plants, but the investigators stated in their depositions that none of them actually saw this (id. at

392–93).

The trial court adjudicated the suppression issue as follows:

This case began when officers of the Jackson County Drug Task Force

spotted marijuana plants growing in or near planted pines in northwest Jackson

County. The officers entered the area on foot, located the plants, took samples of

them, and set up a video camera where it could record activity around some plants

in what was designated Plot 1. After retrieving the video, the officers could see that

on September 15, 2003 at approximately 6:25 P.M. and again on September 18, 2003

at about 6:14 P.M., the plants were visited by two white males wearing short sleeve

shirts and at least one wearing a mask or mosquito netting over his face. No further

identity was possible from the video, but it was clear from the video that the two

males were tending and harvesting marijuana. The officers set up on the plants for

a number of days without incident. From their inspection of the plants the officers

could tell buds were being harvested by being clipped off the plants.

On Oct. 2, 2004, four officers (Edwards, Watson, Arnold and Edmonson

[sic]) set up in two locations on Plot 1. At approximately 5:00 P.M. they heard a

vehicle come off Richter Road and go past their location to a site near an area of

plants called Plot 2, where it stopped and the engine was turned off. After a time,

they heard the vehicle start up, move closer to them, stop and shut down. They heard

doors open, and close. After a few minutes they again heard doors open and close,

the vehicle start up and move closer to their location. Again they heard the vehicle

doors open and then heard communications between the individuals. One of the

deputies heard an individual ask about bags and being told by another that they were

on the left front seat of the truck. The individuals were talking as they walked near

the officers and entered into the woods. The officers could tell there were two

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individuals, and believed them to be white males from the sound of their voices. The

officers knew there were marijuana plants in the area where the defendants were, and

the officers heard noises they believed to be clipping noises consistent with cutting

buds off the plants. As the defendants came to the plants near officers Edwards and

Watson, Watson heard one of them saying, “They sure are pretty.”

When immediately afterwards the defendants happened up on [sic] officers

Edwards and Watson, those officers jumped up and shouted “sheriffs office, get on

the ground” or words to that effect. Officers Edmonson [sic] and Arnold then joined

Watson and Edwards. At that time, the officers could observe the defendants were

two white males in short sleeve shirts, each wearing a mosquito netting mask over

his face. Defendant Richter was observed to have in his possession a plastic bag

(later determined to contain harvested marijuana) and a pair of scissors. Defendant

Granberry had a pair of wire snips. Defendant Richter complied almost immediately

with the direction to get on the ground and was cuffed and arrested. Defendant

Granberry did not comply immediately and was shot by Edwards prior to being

cuffed and arrested. 

The issue presented by the Motion to Suppress is whether, on the above facts,

the officers had probable cause to arrest these defendants. Probable cause is defined

as “a reasonable ground of suspicion, supported by circumstances sufficiently strong

in themselves to warrant a cautious person in believing the accused to be guilty.” 

Trivette v. State, 244 So. 2d 173 (Fla. 4th DCA 1971). Probable cause to arrest

exists where a reasonable person, having the specializd training of a police officer in

reviewing facts known to the arresting officer prior to the actual time of arrest, would

come to the conclusion that a crime is being or has been committed by the person to

be arrested. Skelton v. State, 349 So. 2d 193 (Fla. 3d DCA 1977). 

Defendants argue that the officers in this case acted prematurely in effecting

the arrest since the officers had not actually observed the defendants harvesting or

tending to the plants. This argument ignores the myriad [of] circumstances leading

up to the arrest that were known to the officers. This is not a case where the

defendants were merely in proximity to the plants. The officers knew that a crime

had been and was being committed because they knew the plants were being actively

tended and harvested. Given the similarities between these defendants (race, gender,

number, and mode of dress) and the persons viewed previously on the video, together

with the behavior of the defendants, their statements, and the implements in their

possession, these officers had more than a mere suspicion that these defendants were

committing a crime. The officers had probable cause to arrest the defendants.

(Ex. C 355–56.)

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In Ground Two, Petitioner faults Mr. Komarek for not arguing Franks v. Delaware, 438 U.S.

154 (1978) in support of the motion to suppress. In Franks, the Supreme Court held:

. . . where the defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the allegedly false statement is

necessary to the finding of probable cause, the Fourth Amendment requires that a

hearing be held at the defendant’s request. In the event that at that hearing the

allegation of perjury or reckless disregard is established by the defendant by a

preponderance of the evidence, and, with the affidavit’s false material set to one side,

the affidavit’s remainingcontent is insufficient to establish probable cause, the search

warrant must be voided and the fruits of the search excluded to the same extent as if

probable cause was lacking on the face of the affidavit.

438 U.S. at 155–56. The Supreme Court noted that probable cause may be founded on hearsay and

information supplied by informants, “[b]ut surely [the affidavit] is to be ‘truthful’ in the sense that

the information put forth is believed or appropriately accepted by the affiant as true.” Id. at 165

(citations omitted). Allegations of either negligence or innocent mistake are insufficient to warrant

relief. Id. at 171. 

Petitioner argues Investigator Edmondson’s probable cause affidavit contained the false

statement that while officers were conducting surveillance of the marijuana plants, 

investigators observed two masked individuals come into the immediate area of the

plants. The investigators observed the two individuals as they began to collect

Marijuana buds from several of the plants. The defendant Edward W. Granberry Jr.

was one of those two masked individuals engaged in the collection of the plant

material. During the time the defendant and co-defendant were engaged in this

activity investigators moved in to apprehend the defendants.

(Ex. C at 334) (emphasis added). Petitioner contends defense counsel should have argued that

Franks required that the probable cause affidavit be voided and the fruits of the search excluded, due

to Edmondson’s statement that investigators actually observed the individuals collect plant matter.

Petitioner failed to establish a reasonable probability that the trial court would have properly

granted the motion to suppress if Mr. Komarek had argued Franks. Reading Investigator

Edmondson’s affidavit as a whole (Ex. C at 334), it is clear that the information detailed therein was

derived from all the investigators’ surveillance and observations. Although the investigators did not

visually perceive the two individuals collecting plant material, they all audibly observed such

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activity. Therefore, Investigator Edmondson’s statements were “truthful” in the sense that he

believed or appropriately accepted them as true. See United States v. Kirk, 781 F.3d 1498, 1505

(11th Cir. 1986) (citing Franks, 438 U.S. at 164–65). Moreover, the trial court determined that the

evidence was sufficient to establish probable cause notwithstanding the fact that investigators did

not visually observe the individuals collecting plant material. Therefore, there was no basis to

properly conclude that the arrest was void and evidence obtained as a result thereof subject to 

exclusion. Accordingly, Petitioner failed to demonstrate Strickland prejudice as to Ground Two. 

In Ground Three, Petitioner contends Mr. Komarek was ineffective for failing to impeach

Investigator Watson as to how he was able to see Petitioner and his co-defendant standing near a

marijuana plant, when Watson and Investigator Edwards were crawling or kneeling in dense

underbrush, and Edwards testified he could not see Petitioner until Petitioner was within 2–3 feet

of him. Petitioner also faults counsel for failing to argue to the court that Investigator Watson was

not able to observe or hear anything while he was in the underbrush. However, all the investigators

consistently testified they were audibly aware of the individuals’ presence, because they heard

movement in the underbrush and voices. Petitioner failed to demonstrate that counsel’s failure to

impeach Watson with questions regarding his ability to visually observe the individuals was

unreasonable. He also failed to demonstrate a reasonable probability that the trial court would have

granted the motion to suppress had defense counsel pursued such impeachment and argued to the

court that Watson was not able to see or hearing anything in the underbrush.

The state court’s adjudication of Grounds Two and Three was not based upon an

unreasonable determination of the facts; nor was it contrary to or an unreasonable application of

Strickland. Therefore, Petitioner is not entitled to federal habeas relief on either ground.

V. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,”

and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court

issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.

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The undersigned finds no substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S. Ct. 1595, 1603–04, 146 L.

Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

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

may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is

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

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

Accordingly, it is ORDERED:

The clerk of court is directed to change the docket to reflect that Kenneth S. Tucker is

substituted for Edwin G. Buss as Respondent.

And it is respectfully RECOMMENDED:

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 4 day of May 2012. th

/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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