Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLES TARVER,

Petitioner,

vs. Case No.: 5:10cv87/RS/EMT

KENNETH S. TUCKER,1

Respondent.

___________________________________/

ORDER and REPORT AND RECOMMENDATION

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

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

record (docs. 20, 21). Petitioner filed a reply (doc. 24).

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 docs. 20, 21).2

 Petitioner was charged in the Circuit Court in and for Jackson

1

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

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

2

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

(docs. 20, 21). If a cited page has more than one page number, the court cites to the “Bates stamp” page number. 

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 1 of 19
Page 2 of 19

County, Florida, Case No. 2005-CF-325, with one count of carjacking with a firearm (Count 1), one

count of fleeing or attempting to elude (high speed reckless) (Count 2), and one count of robbery

with a firearm (Count 3) (Ex. A at 1). The offense conduct occurred on June 7, 2005 (id.). 

Following a jury trial, Petitioner was found guilty of robbery without a firearm (a lesser included

offense of carjacking), fleeing or attempting to elude (high speed reckless), and grand theft without

a firearm (a lesser included offense of armed robbery) (see Ex. A at 23, Ex. B). On October 18,

2005, Petitioner was adjudicated guilty and sentenced to fifteen (15) years of imprisonment on

Count 1, a concurrent term of five (5) years of imprisonment Count 3, and a term of fifteen (15)

years of imprisonment on Count 2, to run consecutively to the sentences on Counts 1 and 3, with

pre-sentence credit of 312 days (Ex. A at 24–32, 42–48). 

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

Appeal (“First DCA”), Case No. 1D05-5226 (Ex. C). The First DCA affirmed the judgment per

curiam without written opinion on September 27, 2006, with the mandate issuing October 13, 2006

(Ex. E). Tarver v. State, 939 So. 2d 98 (Fla. 1st DCA 2006) (Table). Petitioner did not seek further

review.

On December 6, 2006, Petitioner filed a motion for post-conviction relief, pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure (Ex. F at 1–11). The state circuit court appointed

counsel for Petitioner and held an evidentiary hearing on Petitioner’s claims (id. at 27, 32–173). The

state circuit court denied the Rule 3.850 motion (id. at 174–79). Petitioner appealed the decision

to the First DCA, Case No. 1D08-5584 (Ex. I). The First DCA affirmed the decision per curiam

without written opinion on January 29, 2010, with the mandate issuing March 22, 2010 (Exs. J, K). 

Tarver v. State, 29 So. 3d 1124 (Fla. 1st DCA 2010) (Table). 

Petitioner filed the instant federal habeas action on April 20, 2010 (doc. 1). 

II. STANDARD OF REVIEW

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

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

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

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

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 2 of 19
Page 3 of 19

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

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

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

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

to any claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim–

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

unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or

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

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

proceeding.

28 U.S.C.A. § 2254 (2002).

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

v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).3 The appropriate test was

described by Justice O’Connor as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the facts of the prisoner’s case.

3

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

Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts I, III, and IV of the opinion (529

U.S. at 367–75, 390–99); and Justice O’Connor for the Court (joined by Justices Rehnquist, Kennedy, Thomas,

and—except as to the footnote—Scalia) in part II (529 U.S. at 403–13). The opinion of Justice Stevens in Part II was

joined by Justices Souter, Ginsburg, and Breyer. 

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 3 of 19
Page 4 of 19

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

before it. Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737–38, 159 L. Ed. 2d 683

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 4 of 19
Page 5 of 19

(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

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

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 5 of 19
Page 6 of 19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id.

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

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

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

Ed. 2d 662 (2007); Jones, 469 F.3d 1216 (same). The writ will not issue unless the petitioner shows

that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28

U.S.C. § 2254(a).

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

III. PETITIONER’S CLAIMS

A. Ground One: “Petitioner was denied his 6th and 14th Amendment rights under the

U.S. Constitution to due process and effective assistance of counsel when counsel failed to

properly move for judgment of acquittal.”

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 6 of 19
Page 7 of 19

Petitioner contends defense counsel performed ineffectively by making a “boilerplate”

motion for judgment of acquittal (“JOA”) on the carjacking count (doc. 1 at 3). He contends counsel

should have argued that the State failed to present a prima facie case of either carjacking or the

lesser included offense of robbery with regard to his stealing the victim’s car (id. at 3–4). Petitioner

states the State failed to present competent substantial evidence that Petitioner deprived the victim

of his car by “use of force, violence, assault, or putting in fear” as required by the carjacking and

robbery statutes (id. at 4). He asserts the victim abandoned the car by jumping out of it and running

away, and only then did he form an intent to steal the car (id.). Petitioner contends if counsel had

argued there was no evidence of use of force, violence, assault, or putting in fear, there is a

reasonable probability the jury would convicted him of only grand theft (id.). Petitioner states he

raised this claim on direct appeal of his conviction (id.). 

Respondent contends Petitioner presented the state courts with a claim that trial counsel was

ineffective for failing to properly move for a JOA, but he argued only that counsel should have

moved for a JOA on double jeopardy grounds, not on the ground that counsel should have presented

a better argument regarding the sufficiency of the evidence to support the carjacking charge (doc.

20 at 13). Therefore, Ground One was not exhausted and is procedurally barred (id.). Respondent

contends notwithstanding the procedural bar, the claim is without merit (id. at 13–14).

The state court record demonstrates that Petitioner exhausted his claim by raising it on direct

appeal of his conviction (Ex. C). In its answer brief, the State asserted a procedural defense and

alternatively addressed the merits (Ex. D). The First DCA affirmed the judgment of conviction

without a written explanation for its decision (Ex. E). Although the state court did not explain its

decision, its rejection of Petitioner’s claim constituted an adjudication “on the merits,” because the

court did not clearly state that its rejection of Petitioner’s claim was based solely on a state

procedural rule. See Harrington, 131 S. Ct. at 784–85. Therefore, the decision is entitled to

deference unless Petitioner establishes that the state court state court’s rejection of the claim was

contrary to or an unreasonable application of clearly established federal law.

1. Clearly Established Federal Law

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

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

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 7 of 19
Page 8 of 19

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

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

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

Id. at 697. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 8 of 19
Page 9 of 19

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

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

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

466 U.S. at 693–94. Instead, 

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

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.

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

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

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

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

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

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

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

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

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

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

at 694–95). 

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

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

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

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

2. Federal Review of State Court Decision

As previously discussed, Petitioner raised this claim on direct appeal of his conviction (Ex.

C). The First DCA affirmed the judgment of conviction and sentence without written opinion (Ex.

E). 

 A state court decision is “contrary to” federal law “if the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a

case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” 

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 9 of 19
Page 10 of 19

Williams, 529 U.S. 362, 412–13. Under this prong, the state court need not cite federal law “so long

as neither the reasoning nor the result of the state-court decision contradicts” the Supreme Court’s

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

curiam). Further, the difference between the state court’s decision and the Supreme Court precedent

must be more than slight; the state court decision must be “substantially different.” See Williams,

529 U.S. at 405.

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). 

In the instant case, Petitioner failed to demonstrate he is entitled to relief under § 2254(d). 

Both Petitioner and the State cited the Strickland standard as the applicable standard in their briefs

to the First DCA (Exs. C, D). The First DCA’s rejection of Petitioner’s claim could have been

supported by the argument that Petitioner failed to show that the trial court would have properly

granted the motion for JOA had counsel made the arguments Petitioner faults her for not making. 

At the close of the State’s case, Petitioner’s trial counsel moved for dismissal of all charges on the

ground that the State failed to present a prima facie case on each charge (Ex. B at 115). The trial

court denied the motion (id.).

Under Florida law, an appellate court will not reverse a conviction which is supported by

competent, substantial evidence. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (citations

omitted). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact

could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence

exists to sustain a conviction. See id. (citation omitted). However, if the State’s evidence is wholly

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 10 of 19
Page 11 of 19

circumstantial, not only must there be sufficient evidence establishing each element of the offense,

but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. See id.

(citation omitted). Because the evidence in this case was both direct and circumstantial, the

appellate court was not required to apply the special standard of review applicable to circumstantial

evidence cases. See id. (citation omitted).

To prove the crime of carjacking, the State was required to prove the following three

elements beyond a reasonable doubt: (1) Petitioner took the motor vehicle from the person or

custody of Mr. Godwin, the victim; (2) force, violence, assault, or putting in fear was used in the

course of the taking; and (3) the taking was with the intent to temporarily or permanently deprive

Mr. Godwin of his right to the motor vehicle or any benefit from it. See Fla. Stat. § 812.133; The

Florida Bar, Florida Standard Jury Instructions in Criminal Cases, Part Two: Instructions on Crimes,

Chp. 15, § 15.2, Carjacking (2002). To prove the lesser included offense of robbery, the State was

required to prove the following four elements beyond a reasonable doubt: (1) Petitioner took Mr.

Godwin’s vehicle; (2) force, violence, assault, or putting in fear was used in the course of the taking;

(3) the vehicle was of some value; and (4) the taking was with the intent to temporarily or

permanently deprive Mr. Godwin of his right to the vehicle or any benefit from it. See Fla. Stat. §

812.13; The Florida Bar, Florida Standard Jury Instructions in Criminal Cases, Part Two: 

Instructions on Crimes, Chp. 15, § 15.1, Robbery (2002). “In the course of the taking” means that

the act occurred before, during, or after the taking of the motor vehicle and that the act and the

taking of the motor vehicle constitute a continuous series of acts or events. See Florida Standard

Jury Instructions §§ 15.1, 15.2. The taking must be by the use of force or violence or by assault so

as to overcome the resistance of the victim, or by putting the victim in fear so that the victim does

not resist. Id. The law does not require that the victim of carjacking resist to any particular extent

or that the victim offer any actual physical resistance if the circumstances are such that the victim

is placed in fear of death or great bodily harm if he or she does resist. id. But unless prevented by

fear, there must be some resistance to make the taking one done by force or violence. Id.

Auburn Godwin testified that on June 7, 2005, he was sitting in his four-door car in the

parking lot of an apartment complex talking to Equilla Brown, when Petitioner asked him for a ride

to the gate of the complex (Ex. B at 23–24, 31). Mr. Godwin testified Petitioner had been to his

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 11 of 19
Page 12 of 19

(Godwin’s) house once with Darryl Powell, Petitioner’s uncle, but he (Godwin) did not know

Petitioner by name (id. at 25). Mr. Godwin testified Petitioner sat in the front seat of the car, and

Ms. Brown sat in the back (id.). Mr. Godwin drove to the gate of the apartment complex, and

Petitioner said he would get out of the car there (id. at 26). Ms. Brown exited the back seat and

waited for Petitioner to exit (id.). Petitioner then drew a pistol to Mr. Godwin’s head and said,

“Give me the f*** what you got” (id. at 26–28). Petitioner then reached into Mr. Godwin’s pockets

and said, “Now drive me the f*** out of these projects.” (id.). Mr. Godwin testified he accelerated,

and upon his car’s hitting a high speed bump, he (Godwin) jumped out of the car and “was running

for [his] life” (id. at 28–29). Mr. Godwin testified Petitioner took $500.00 from his wallet (id. at

28).

Equilla Brown testified Mr. Godwin agreed to drive her somewhere, and she overheard

Petitioner ask Godwin to take him somewhere as well (Ex. B at 37–38). Ms. Brown testified she

sat in the back seat of Mr. Godwin’s car, and Petitioner sat in the passenger’s seat (id. at 38). She

testified Petitioner asked her to step out of the car, so she did (id.). She testified she then saw Mr.

Godwin jump out of the car and run, and Petitioner exited the passenger’s side holding a gun and

walked around the car to get in the driver’s side (id. at 38–40).

Law enforcement officers testified they apprehended Petitioner after he led them on a high

speed chase in Mr. Godwin’s vehicle (Ex. B at 45–63, 78–88). Petitioner had $369.49 on his person

when he was arrested (id. at 90). Officers found an empty wallet on the floorboard of the car (id.). 

The next day, officers retraced the route of the chase, and recovered a small caliber silver handgun

laying in foliage near a curb (id. at 65–69, 91–93). Mr. Godwin identified the gun as the one that

Petitioner pointed in his face (id. at 26–27).

Mr. Godwin’s testimony that Petitioner pointed a gun at him, stated “Give me the f*** what

you got,” then reached into Mr. Godwin’s pockets and said “Now drive me the f*** out of these

projects” was competent, substantial evidence from which a rational trier of fact could find that

Petitioner’s taking of Mr. Godwin’s vehicle was by putting Mr. Godwin in fear so that he did not

physically resist and instead fled the vehicle. Further, the fact that Petitioner did not drive away in

Mr. Godwin’s car until after Mr. Godwin jumped out did not negate the evidence suggesting

Petitioner formed an intent to steal the car while Mr. Godwin was still in it. In light of the evidence,

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 12 of 19
Page 13 of 19

Petitioner failed to show a reasonable probability the trial court would have property granted a

motion for JOA on the carjacking count if counsel had argued there was no evidence of use of force,

violence, assault, or putting in fear. See Sweat v. State, 895 So. 2d 462 (Fla. 5th DCA 2005);

Williams v. State, 863 So. 2d 1257 (Fla. 4th DCA 2004); Ponds v. State, 693 So. 2d 685 (Fla. 5th

DCA 1997). Therefore, Petitioner failed to demonstrate that the state court’s denial of this claim

was contrary to or an unreasonable application of Strickland. 

 B. Ground Two: “Petitioner was denied his 6th and 14th Amendment rights under the

U.S. Constitution to due process and effective assistance of counsel when counsel failed to

call a witness to support Petitioner’s defense.”

In Ground Two, Petitioner states he testified at trial that Mr. Daryl Powell introduced him

to the victim, Mr. Godwin (doc. 1 at 4). Petitioner asserts he and Mr. Godwin became involved in

a sexual relationship while Petitioner was visiting from New Jersey, and Godwin became angry

when Petitioner told him he was returning to New Jersey on June 8, 2005 (id.). Petitioner alleges

Mr. Godwin stated, “If I can’t have you, no one else would” (id.). Petitioner asserts Mr. Godwin

falsely testified he barely knew Petitioner (id.). He contends if defense counsel had presented

testimony from Mr. Powell, Powell would have corroborated Petitioner’s testimony and refuted

Godwin’s testimony by testifying Petitioner and Mr. Godwin knew each other very well and

appeared to be close friends (id. at 5). Petitioner contends there is a reasonably probability he would

have been acquitted if counsel had presented Mr. Powell’s testimony (id.). Petitioner states he raised

this claim in his Rule 3.850 motion (id.).

Respondent asserts Petitioner failed to properly exhaust this claim (doc. 20 at 14). 

Respondent states Petitioner raised this claim in his rule 3.850 motion but abandoned it on appeal

(id.). Therefore, the claim is procedurally barred from federal review (id.). 

The record demonstrates Petitioner raised this claim as Ground Two in his Rule 3.850 motion

(Ex. F at 3–5). Additionally, he fully briefed this issue on appeal of the circuit court’s denial of the

motion; indeed it was the only issue Petitioner briefed (Ex. I). Therefore, Petitioner properly

exhausted the claim in the state courts.

1. Clearly Established Federal Law

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

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 13 of 19
Page 14 of 19

2. Federal Review of State Court Decision

The state circuit court adjudicated Petitioner’s claim as follows:

In claim two, Defendant alleges that his counsel was ineffective when she

failed to call Daryl [sic] Powell as a witness at trial. Defendant claims that this

witness would have bolstered his version that the victim, Auburn Godwin, knew the

Defendant. Furthermore, Defendant submits that the witness would have attacked

the credibility of the victim, who stated that he barely knew the Defendant let alone

had a relationship with him. Finally, Defendant asserts that this witness would have

cast doubt on the State’s closing argument that there was no evidence to support a

lover’s quarrel as alleged by the defense.

In order to state a facially sufficient claim on this ground, the movant must

allege the identity of the potential witness, the substance of the witness’s testimony,

an explanation of how the omission of the testimony prejudiced the outcome of the

case, and a representation that the witness was available for trial. See Leftwich v.

State, 954 So. 2d 714 (Fla. 1st DCA 2007). This Court finds that the Defendant has

failed to present a facially sufficient claim under Nelson v. State, 875 So. 2d 579

(Fla. 2004).

At the evidentiary hearing, Defendant’s trial counsel testified that she did

depose Daryl [sic] Powell on August 11, 2005. However, when she attempted to

serve a subpoena on Daryl [sic] Powell for trial, the Sheriff’s office was unable to

locate and serve him. Furthermore, Defendant’s trial counsel testified that she made

a strategic and/or tactical decision by not calling any other witnesses. According to

Mrs. Simpson, she felt that it was important to not lose last word during closing

arguments and rebut the State’s case to the jury. For clarification purposes, this trial

was commenced under the old rule that permitted the defense to have last say in

closing arguments if they did not present any witnesses other than the Defendant.

Absent extraordinary circumstances, strategic or tactical decisions by trial

counsel are not grounds for ineffective assistance of counsel claims. See Occhicone

v. State, 768 So. 2d 1037 (Fla. 2000). This Court finds that Defendant’s counsel did

depose this witness; however she was unable to serve him a subpoena for trial. 

Furthermore, counsel testified that she made a tactical decision not to call any

witness including Powell to preserve rebuttal closing argument. Beyond this Court’s

finding of a tactical legal strategy, Defendant cannot overcome either prong of

Strickland v. Washington, 466 U.S. 668, 687 (1984). Where an uncalled witness

could have been significantly impeached through contradictory evidence a court will

not label counsel ineffective for failing to call that witness. See Kenon v. State, 855

So. 2d 654 (Fla. 1st DCA 2003). The evidence against the Defendant was not

tentative, weak, or circumstantial. At trial, the victim, Auburn Godwin, and another

eyewitness, Equilla Brown, identified the Defendant as the individual who stole the

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 14 of 19
Page 15 of 19

victim’s car at gun point and obtained money via two separate and distinct criminal

acts. See Trial TR., pgs. 29–30, 40–41. Furthermore, two Marianna Police Officers,

Steven Stewart and Matthew Vickery, identified the Defendant as the individual they

pursued and captured in a high speed chase with the victim’s car in his possession

after the first two crimes were committed. See Trial TR., pgs. 69 and 94. Therefore,

Defendant’s claim is denied.

(Ex. F at 175–76).

As previously discussed, Petitioner appealed the circuit court’s decision to the First DCA

(Ex. I). The First DCA affirmed without a written decision (Ex. J).

 “The question of whether an attorney’s actions were actually the product of a tactical or

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

presumptively correct.” Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998). However,

“the question of whether the strategic or tactical decision is reasonable enough to fall within the

wide range of professional competence is an issue of law not one of fact.” Id. When considering

the legal question of the reasonableness of counsel’s decision, the court is mindful that the Supreme

Court has described strategic decisions of counsel as “virtually unchallengeable.” Strickland, 466

U.S. at 690. 

Petitioner has not proffered any evidence to rebut the state court’s factual finding that Ms.

Simpson’s failure to present Mr. Powell’s testimony was a tactical decision. Further, the finding is

well-supported by the record. At the post-conviction evidentiary hearing, Ms. Simpson testified she

deposed Mr. Powell and interviewed him privately (Ex. F at 112–29). Ms. Simpson testified she

subpoenaed Mr. Powell for trial, but the process server could not locate him at the address and

telephone number he provided Ms. Simpson (id. at 112, 123). She additionally testified she chose

not to present evidence other than Petitioner’s testimony, because she wanted to preserve the

advantage of first and last closing argument:

Q [by the State]. . . . And just for the record, just so the appellate courts

understand, prior to when they passed the statute where prosecution gets the first

closing and the rebuttal, the old rule used to be that if the defense introduced any

evidence other than the defendant’s testimony, then the defense would lose—they

normally would get first opening [sic] and rebuttal—but they would lose that

privilege and the State would get it. Is that correct?

A [by Ms. Simpson]. That’s correct.

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 15 of 19
Page 16 of 19

Q. So, a lot of times, did it play into your strategy to maybe not put in

evidence physical evidence or other witness testimony, that you could get in through

the defendant to keep from losing that first and second closing?

A. That’s true. That’s part of what the strategy was back before they

changed the rules.

Q. Any why would that be to your strategic advantage as a defense attorney

to have that first opening [sic] and that, and that last word there at the end?

A. A lot of times, when you’re doing the closing arguments and you get up

first and the person has to go in the middle, they’re sort of sandwiched in, and I get

the last word. I’m able to then rebut some of the things, as the case would be, the

state attorney brings up. And that’s, a lot of times, real helpful, I think, with a jury,

especially these type of cases where there was some wiggle room, you know, based

on what my client had testified to and based on the inconsistent statement of the

actual victim in this case. And I think I even had an officer help in this case. So, in

this case, we had a lot of wiggle room that I could bring stuff out at the very end.

Q. Right, without having to call extra witnesses or put in extra testimony?

A. That’s correct.

Q. I mean, we can—the old adage I always heard, you can talk about, talk

about [sic] the Titanic without having to introduce the Titanic. Is that basically your

theory?

A. Something like that, yes.

(Ex. F at 81–82).

Mr. Powell’s deposition was admitted into evidence at the post-conviction evidentiary

hearing (see Ex. F at 194–95). In his deposition, he testified Petitioner and Mr. Godwin were close

friends, and Petitioner told him he spent time at Mr. Godwin’s house (id. at 198–90). Powell

testified Petitioner and Mr. Godwin sniffed cocaine together, and Mr. Godwin bought Petitioner

gifts, for example, clothing (id. at 193). Mr. Powell testified Petitioner’s girlfriend in New Jersey

was pregnant, and she sent Petitioner a bus ticket to return to New Jersey (id. at 190–91). 

Petitioner’s defense to the carjacking and robbery charges was that he and Mr. Godwin were

having a homosexual relationship, Mr. Godwin gave Petitioner permission to take his car, and Mr.

Godwin was angry that Petitioner was returning to New Jersey (Ex. B at 19–20, 175–78, 182). 

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 16 of 19
Page 17 of 19

Petitioner testified he and Mr. Godwin were dating and had a sexual relationship (id. at 135). He

testified he had a bus ticket to return to New Jersey on June 8, 2005, the day after the crimes

occurred (id. at 136). He testified on the night of the crimes, he, Mr. Godwin, and another gay male

friend were drinking and “having a little sexual . . . party” at Mr. Godwin’s house and then decided

to go to Garden Apartments to “do some transactions” (id. at 136–37). Petitioner testified when they

arrived at the apartment complex in Mr. Godwin’s car, Mr. Godwin told Petitioner to take the car

for awhile so he could engage in a transaction (id.). Petitioner testified he left with Godwin’s car

(id. at 137). Petitioner testified that Equilla Brown was not present that evening (id. at 138). He

also testified that Mr. Godwin’s gun was in the car, and he (Petitioner) threw it out of the car while

the police were chasing him, because both he and Mr. Godwin were convicted felons (id. at 138–39). 

Petitioner testified he did not rob Mr. Godwin of money, and the money that police discovered on

his person was his own (id. at 140–42). Petitioner testified Mr. Godwin was upset that Petitioner

was leaving for New Jersey, and said that if he could not have Petitioner, nobody could (id. at 142). 

Petitioner testified he did not consider that “he [Godwin] was going to do this to me” (id.).

At the time of Petitioner’s trial, September 30, 2005, Florida law created a procedural

advantage for defendants who limited the presentation of evidence to only their own testimony. See

Fla. R. Crim. P. 3.250 (2004); see also In re Amend. to Fla. Rules of Crim. P., 957 So. 2d 1154,

1167 (Fla. 2007). If, and only if, the defense limited its case in that way, it was permitted to give

both the first and last closing argument. Id. The Florida Supreme Court recognized the “primacy

and recency effect” of giving the last closing argument, and has repeatedly held that it was

reasonable for defense counsel to consider that effect when formulating trial strategy. See, e.g.,

Bealey v. State, 18 So. 3d 473, 491–92 (Fla. 2009).

 In the instant case, there is no evidence suggesting Mr. Powell was available for trial. 

Furthermore, it would have been reasonable trial strategy to forgo presenting Mr. Powell’s testimony

in order to gain the advantage of last closing argument. Mr. Powell’s testimony was of minimal

value to the defense. Powell would not have provided any factual information to the jury beyond

what Petitioner provided or could have provided in his own testimony. Further, although Powell

would have corroborated Petitioner’s testimony that Petitioner and Mr. Godwin were close friends

and rebutted Mr. Godwin’s testimony that he hardly knew Petitioner, Powell could not have

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 17 of 19
Page 18 of 19

corroborated Petitioner’s description of the events that unfolded on June 7, nor could he have

impeached Mr. Godwin’s version of the events. Further, Mr. Powell would not have provided any

relevant testimony to corroborate Petitioner’s suggestion that Mr. Godwin was motivated by anger

to fabricate the carjacking and robbery charges. Considering these factors, Ms. Simpson’s decision

to forgo presentation of Mr. Powell’s testimony to preserve the right to first and last closing

argument was reasonable enough to fall within the wide range of professional competence. 

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

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

Strickland.

IV. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,”

and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court

issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S. Ct. 1595, 1603–04, 146 L.

Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

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

may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is

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

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

Accordingly, it is ORDERED:

The clerk of court is directed to change the docket to reflect that Kenneth S. Tucker is

substituted for Edwin G. Buss as Respondent.

And it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (doc. 1) be DENIED.

2. That a certificate of appealability be DENIED.

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 18 of 19
Page 19 of 19

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

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon the magistrate judge and all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

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

Case No. 5:10cv87/RS/EMT

Case 5:10-cv-00087-RS-EMT Document 30 Filed 05/09/12 Page 19 of 19