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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SCOTT KYLE PETTY,

Petitioner,

v. CASE NO. 1:09-cv-171-MMP-GRJ

SECRETARY, DEPT. OF

CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a pro se Petition for a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254. Doc. 1. The Respondent filed a response and an

appendix with relevant portions of the state-court record, and Petitioner filed a reply. 

Docs. 12, 16. Upon due consideration of the Petition, the Response, the Reply, and the

state-court record, the undersigned recommends that the Petition be denied.

1

Summary of State-Court Proceedings

An Alachua County jury convicted Petitioner of aggravated stalking, false

imprisonment, criminal mischief, and tampering with a witness; he was sentenced to

consecutive five-year terms on each count. The State’s trial evidence included the

testimony of the victim, Jacqueline Veigh, as well as audiotapes of voicemail messages

and jail conversations recorded while Petitioner was in pretrial detention, and more than

50 letters that he sent to the victim. The First DCA affirmed per curiam without opinion.

Because the Court may resolve the Petition on the basis of the record, the Court 1

has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.

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Petty v. State, 965 So 2d 128 (Fla. 1 DCA 9/26/07). Petitioner sought relief pursuant to st

Fla. R. Crim. P. 3.850; the postconviction court summarily denied relief and the First

DCA affirmed per curiam without opinion. App. Exh. N at 65-72; Petty v. State, 3 So. 3d

322 (Fla. 1 DCA 2/12/09). Petitioner filed a habeas corpus petition alleging ineffective st

assistance of appellate counsel; the First DCA denied the petition per curiam without

opinion. Petty v. State, 10 So. 3d 1178 (Fla. 1 DCA 6/2/09). st

The instant Petition followed. Respondent concedes that the Petition is timely. 

Petitioner enumerates 10 claims for relief, most of which involve allegations of ineffective

assistance of counsel. Doc. 1. Respondent contends that some of Petitioner’s claims

are unexhausted and procedurally defaulted. Doc. 16. Such procedural arguments will

be addressed in turn as to each claim.

Section 2254 Exhaustion Requirement

Before bringing a habeas action in federal court, a petitioner must exhaust all

state court remedies that are available for challenging his conviction, either on direct

appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion

requires that prisoners give the state courts a “full and fair opportunity” to resolve all

federal constitutional claims by “invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To

properly exhaust a federal claim, a petitioner must “fairly present” the claim in each

appropriate state court, thereby affording the state courts a meaningful opportunity to

“pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (quotation omitted). 

When a petitioner fails to properly exhaust a federal claim in state court, and it is

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obvious that the unexhausted claim would now be procedurally barred under state law,

the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11 Cir. th

1999). Federal habeas courts are precluded from reviewing the merits of procedurally

defaulted claims unless the petitioner can show either (1) cause for the failure to

properly present the claim and actual prejudice from the default, or (2) that a

fundamental miscarriage of justice would result if the claim were not considered. Id. at

1302, 1306. 

Section 2254 Standard of Review

Under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's

application for a writ of habeas corpus based on a claim already adjudicated on the

merits in state court unless 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.” Under § 2254(e)(1), the petitioner must advance clear and

convincing evidence that the state court's factual determination was “objectively

unreasonable” to rebut the presumption that the determination was correct. Gill v.

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

As to legal findings, a petitioner is entitled to federal habeas relief only if the state

court's adjudication of the merits of the federal claim “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.” § 2254(d)(1). “[C]learly

established Federal law, as determined by the Supreme Court of the United States,”

refers only to holdings (rather than dicta) of the Supreme Court, but decisions of lower

federal courts may be considered to the extent that they demonstrate how those courts

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applied Supreme Court holdings. Hawkins v. Alabama, 318 F.3d 1302, 1309 (11th Cir.

2003) (citations omitted) (“The decisions of other federal circuit courts (and our decisions

for that matter) are helpful to the AEDPA inquiry only to the extent that the decisions

demonstrate that the Supreme Court's pre-existing, clearly established law compelled

the circuit courts (and by implication would compel a state court) to decide in a definite

way the case before them.”). See also Carey v. Musladin, 549 U.S. 70, 74-77 (2006) (§

2254 refers to holdings, rather than dicta, of the Supreme Court, collecting circuit cases

“[r]eflecting the lack of guidance from this Court,” on the issue).

The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have

independent meanings. Williams v. Taylor, 529 U.S. 362, 404-406 (2000); Bell v. Cone,

535 U.S. 685, 694 (2002) (citing Williams ). “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 [the Supreme] 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.” Williams, 529

U.S. at 412-13. “Avoiding these pitfalls [described in Williams v. Taylor ] does not require

citation of 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 (2002) (emphasis in original). Further, “whether a state court's

decision was unreasonable must be assessed in light of the record the court had before

it.” Holland v. Jackson, 542 U.S. 649, 652 (2004).

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In Gill v. Mecusker, 633 F.3d 1272 (11 Cir. 2011), the Eleventh Circuit clarified

th

how the federal habeas court should address the “unreasonable application of law” and

the “unreasonable determination of facts” tests. The court acknowledged the

well-settled principle that summary affirmances, such as the Florida First District Court of

Appeal's in this case, are presumed adjudicated on the merits and warrant deference.

Id. at 1288 (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784–85 (2011),

and Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir.2002)). “A

judicial decision and a judicial opinion are not the same thing,” and the Supreme Court

has confirmed that determining whether the state court unreasonably applied the law or

unreasonably determined the facts requires only a decision, not an opinion. Id. at 1291

(citing Harrington, 131 S.Ct. at 784). Yet, the Supreme Court has never squarely

addressed whether under the “unreasonable application” test a federal habeas court

“looks exclusively to the objective reasonableness of the state court's ultimate

conclusion or must also consider the method by which the state court arrives at its

conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244–45 (5th Cir.2002)

(summarizing the emerging circuit split)). The Eleventh Circuit concluded that district

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

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

“evaluate or rely upon the correctness of the state court's process of reasoning.” Id. at

1291. In short, the court stated, “the statutory language focuses on the result, not on the

reasoning that led to the result.” Id.

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

role in habeas review because the district court considers the reasonableness of the trial

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court's fact finding only to the extent that the state court's ultimate conclusion relied on it.

Id. at 1292. A federal habeas court can consider the full record before it to answer “the

only question that matters[:]” whether the state court's decision was objectively

unreasonable. Gill, 133 F.3d at 1290.

 Ineffective Assistance of Counsel

Because most of Petitioner’s claims allege ineffective assistance, a review of the

applicable law is necessary. Under Strickland v. Washington, 466 U.S. 668, 677-78

(1984), to prevail on a constitutional claim of ineffective assistance of counsel, a

defendant must demonstrate (1) that his counsel’s performance was below an objective

and reasonable professional norm, and (2) that he was prejudiced by this inadequacy. 

Strickland, 466 U.S. at 686. The court may dispose of the claim if a defendant fails to

carry his burden of proof on either the performance or the prejudice prong. Id. at 697. 

To show counsel’s performance was unreasonable, a defendant must establish

that “no competent counsel would have taken the action that his counsel did take.” 

Grayson v. Thompson, 257 F.3d 1194, 1216 (11 Cir. 2001) (emphasis omitted). “The th

relevant question is not whether counsel’s choices were strategic, but whether they were

reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute

rules” for determining whether counsel’s actions were indeed reasonable, as “[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.” 

Putnam v. Head, 268 F.3d 1223, 1244 (11 Cir. 2001). “To uphold a lawyer’s strategy,

th

[the Court] need not attempt to divine the lawyer’s mental processes underlying the

strategy.” Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11 Cir. 2000) (en th

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banc). “No lawyer can be expected to have considered all of the ways [to provide

effective assistance].” Id. 

If a defense lawyer pursued course A, it is immaterial that some other

reasonable courses of defense (that the lawyer did not think of at all)

existed and that the lawyer’s pursuit of course A was not a deliberate

choice between course A, course B, and so on. The lawyer’s strategy was

course A. And [the Court’s] inquiry is limited to whether this strategy, that

is, course A, might have been a reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

“reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability is defined

as a probability sufficient to undermine confidence in the outcome.” Id. 

When, as here, the state courts have denied an ineffective assistance of counsel

claim on the merits, the standard a petitioner must meet to obtain federal habeas relief is

a difficult one. Harrington 131 S.Ct. at 786. The standard is not whether an error was

committed, but whether the state court decision is contrary to or an unreasonable

application of federal law that has been clearly established by decisions of the Supreme

Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not

enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal

law is different from an incorrect application of federal law.” Harrington, 131 S.Ct. at 785

(quotation marks omitted). And “even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. at 786. 

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When faced with an ineffective assistance of counsel claim that was denied on

the merits by the state courts, a federal habeas court “must determine what arguments

or theories supported or, [if none were stated], could have supported, the state court’s

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

that those arguments or theories are inconsistent with the holding in a prior decision of

[the Supreme] Court.” Id. So long as fairminded jurists could disagree about whether

the state court’s denial of the claim was inconsistent with an earlier Supreme Court

decision, federal habeas relief must be denied. Id. Stated the other way, only if “there is

no possibility fairminded jurists could disagree that the state court’s decision conflicts

with [the Supreme] Court’s precedents” may relief be granted. Id.

Even without the deference due under § 2254, the Strickland standard for judging

the performance of counsel “is a most deferential one.” Id. at 788. When combined

with the extra layer of deference that § 2254 provides, the result is double deference and

the question becomes whether “there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. Double deference is doubly difficult for a

petitioner to overcome, and it will be a rare case in which an ineffective assistance of

counsel claim that was denied on the merits in state court is found to merit relief in a

federal habeas proceeding.

Claim 1: Denial of motion for judgment of acquittal on aggravated stalking

At the close of the State’s case in chief, Petitioner’s counsel moved for a

judgment of acquittal on all four charges. With respect to the aggravated stalking

charge, counsel conceded that Petitioner had violated the terms of a domestic injunction

by contacting the victim, but asserted that the evidence did not show that the victim was

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under emotional distress at the time, the contact was not harassing, and the contact was

initiated by the victim. The court denied the motion. App. Exh. E. at 373-75. Petitioner

contends that the state court violated his right to a fair and impartial trial in violation of

the Fourth, Fifth, and Fourteenth Amendments. Doc. 1 at 4(a)-(b). 

Respondent contends that this claim is unexhausted and procedurally defaulted

because Petitioner did not present the issue as a federal claim in his direct appeal. Doc.

12. A review of Petitioner’s brief on direct appeal reflects that it is devoid of any

suggestion that Petitioner intended to raise federal constitutional claims as to the denial

of his motion for JOA. See App. Exh. F. Petitioner has not asserted any cause or

prejudice for the default, nor does the record suggest that a fundamental miscarriage of

justice would result if the claim is not considered. 

Even if Petitioner had properly exhausted this claim as a federal claim in state

court, he has not shown that he is entitled to federal habeas relief. When reviewing a 2

claim of the sufficiency of the evidence on federal habeas review, this Court is required

to view the evidence in the light most favorable to the prosecution and determine

whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). On the

aggravated stalking charge, the trial court instructed the jury as follows:

To prove the crime of aggravated stalking, the state must prove the

following two elements beyond a reasonable doubt:

Number one, the defendant willfully, maliciously, and repeatedly harassed

Jacqueline Veigh.

Because it is clear that Petitioner is not entitled to relief on the merits, the Court 2

may deny relief notwithstanding any failure to exhaust. See 28 U.S.C § 2254(b)(2). 

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Number two, the defendant did so in violation of an injunction for

protection against domestic violence, or any other court imposed prohibition of

conduct toward the victim or the victim’s property.

Harass, that word means to engage in a course of conduct directed at a

specific person that causes substantial emotional distress in such person and

serves no legitimate purpose.

App. Exh. E. at 421-22. This instruction tracks Florida’s aggravated-stalking statute, Fla.

Stat. § 784.048(4).

Jacqueline Veigh testified that she was in an eight-year relationship with

Petitioner, during which he verbally and physically abused her. She left Petitioner

shortly after becoming pregnant with their third child. In August 2004, she obtained a

permanent domestic violence injunction against Petitioner. Petitioner continued to call

the home where Veigh was staying several times a day. She testified that he

approached her in violation of the order when she was leaving the children at a pick-up

location for visitation, and he also sent her notes with the children when they returned to

her. 

Veigh testified that she attempted to reconcile with Petitioner after the birth of

their youngest child, and sought unsuccessfully to have the injunction vacated. She

continued to see Petitioner, but they usually argued. Petitioner visited Veigh’s workplace

and moved her car without telling her, and she contacted the police. On another

occasion, Petitioner asked Veigh to bring the children to his home so they could spend

time together. Petitioner became angry with Veigh and held a gun to her head, an act

that was witnessed by their four-year-old son. Veigh tried to leave with the baby, but

after she entered her car Petitioner took her phone and keys and told her she could not

leave. Veigh returned to Petitioner’s house because she was afraid for the children.

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Veigh testified that although she did not report the gun incident to police, she

stopped calling Petitioner on the phone. Petitioner called her and left messages on her

phone, and she testified that the messages “scared” her.

In July 2005, Veigh and Petitioner attended a court hearing regarding child

support. Veigh testified that Petitioner attempted to speak to her, accusing her of going

out with another man. When Veigh went to her car following the hearing she found that

Petitioner had carved obscenities into the car, including “bitch,” “slut,” and “white trash.” 

As Veigh was inspecting the damage, Petitioner drove up and told Veigh he would repair

the car. He asked Veigh to get in his car so they could talk, and she did so. Petitioner

became angry about whether Veigh was seeing another man. He drove Veigh towards

the Gainesville racetrack, and began yelling and hitting Veigh, and roughly groping her. 

Veigh testified that he threatened to shoot, kill, and rape her in a field, causing Veigh to

become frightened. She told Petitioner to let her out and to stop the car, and she

grabbed the door handle, but Petitioner said if she opened the door he would push her

out of the moving car. 

Petitioner then became apologetic and drove Veigh back to her car. He got in the

car with her, and began going through her purse while Veigh around. They returned to

the courthouse where Petitioner retrieved his own car, and he then began following

Veigh until she pulled over. He re-entered the car and broke a cell phone holder and

several compact discs. Petitioner got back in his car and then drove alongside Veigh in

an erratic manner. When she again stopped, Petitioner parked and entered Veigh’s car

and began destroying various documents. He cracked the windshield by striking it with

his hand. Veigh screamed at him to get out, and then drove home. As she was

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inspecting the damage to her car, Petitioner appeared and another altercation ensued,

during which Petitioner broke the passenger-side window of Veigh’s car.

Petitioner subsequently was arrested. While he was in jail pending trial, he wrote

letters to Veigh and made telephone calls to her. Believing Petitioner’s representation

that he had changed, Veigh answered his letters and brought the children to visit

Petitioner. Petitioner sought to pressure Veigh to change her story. App. Exh. E at 141-

341.

The State introduced 53 letters and 68 phone calls from Petitioner to Veigh. The

letters and calls contained extensive profanity and abusive language aimed at Veigh. 

Petitioner threatened Veigh’s life and her family if Veigh did not act to withdraw the

charges against Petitioner, making statements such as: “If you want me to start a f-----g

graveyard the minute they let me the f--k out of here, I will;” “When they let me out of

here I’ll show you how f-----g bad problems can be;” “I will never, ever, as long as I

breathe air in my f-----g body, let you be happy on God’s green earth;” “If they give me

life I’m going to pump iron day in, day out, and when I motherf-----g come out I’m gonna

settle the motherf-----g score with you and your motherf-----g family;” and “And when

they motherf-----g let me go from ths facility, I’m gonna show you even worse. I’m going

to show you for the next twenty motherf-----g years, because if I ever, ever get the

goddamn opportunity, ever, you understand, I’ll show you.” App. Exh. E at 276-80.

Petitioner’s claim that the trial court should have granted his motion for judgment

of acquittal depends upon his assertion that the State did not establish that Veigh was

“in reasonable fear for her life, as required by the statute,” because Veigh admitted

having ongoing and consensual contact with Petitioner. Doc. 1 at 4(a)(-(b). But the

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statute under which Petitioner was convicted does not require that the victim be in fear

for her life or bodily injury. Petitioner was convicted of aggravated stalking by harassing

Veigh after imposition of a domestic violence injunction. See Fla. Stat. § 784.048(4). 

On this record, it is apparent that a rational trier of fact could have found the essential

elements of aggravated stalking beyond a reasonable doubt, based on the

overwhelming evidence that Petitioner repeatedly harassed Veigh, causing substantial

emotional distress. See id. Petitioner has failed to show that he is entitled to habeas

corpus relief on this evidence-sufficiency claim. 

Claim Two: Failure to instruct jury on attempted false imprisonment

Petitioner contends that the trial court erred by failing to instruct the jury that it

could find Petitioner guilty of attempted false imprisonment as a lesser-included offense

of false imprisonment. He contends that the evidence showed that Veigh voluntarily

entered his car during the July 2005 incident and “was essentially free to leave at any

time,” and that the evidence therefore would have supported a conviction of the lesserincluded offense of attempt. Doc. 1 at 4(c).

Respondent contends that this claim is unexhausted and procedurally defaulted

because Petitioner did not present the issue as a federal claim in his direct appeal. Doc.

12. A review of Petitioner’s brief on direct appeal reflects that Petitioner did not assert

this claim as an issue of Federal constitutional law. See App. Exh. F. Petitioner has

not asserted any cause or prejudice for the default, nor does the record suggest that a

fundamental miscarriage of justice would result if the claim is not considered.

Even if this claim were properly exhausted, on this record Petitioner has not

shown that he is entitled to relief. “State court jury instructions ordinarily comprise

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issues of state law and are not subject to federal habeas corpus review absent

fundamental unfairness.” Jones v. Kemp, 794 F.2d 1536, 1540 (11 Cir. 1986) (citing th

Henderson v. Kibbe, 431 U.S. 145, 154(1977); Pleas v. Wainwright, 441 F.2d 56, 57

(5th Cir.1971) (per curiam)). “An error in instructing the jury cannot constitute a basis for

habeas relief unless the error so infected the entire trial that the resulting conviction

violates due process.” Jacobs v. Singletary, 952 F.2d 1282, 1290 (11 Cir.1992)

(quotation omitted).

The trial court instructed the jury that:

Count two is false imprisonment, and to prove the crime of false

imprisonment the State must prove the following two elements beyond a

reasonable doubt:

Number one, the defendant forcibly or by threat confined or

restrained Jacqueline Veigh against her will.

And, number two, the defendant had no lawful authority.

[Y]ou should consider the possibility that although the evidence may

not convince you that the defendant committed the main crime of which he

is accused, there may be evidence that he committed other acts that would

constitute a lesser included crime . . . . [t]he lesser included crime indicated

in the definition of false imprisonment is battery.

The court went on to instruct the jury on the elements of battery. App. Exh. E. at 422-23.

Petitioner has shown no federal constitutional error in the state court’s

determination, under state law, that the jury should be instructed on battery as the

lesser-include offense of false imprisonment. Moreover, the evidence was more than

sufficient for the jury to find that Petitioner was guilty of a completed false imprisonment

offense, and not an attempted offense, by restraining Veigh in his car against her will. 

On this record, Petitioner fails to demonstrate that the jury instructions given in this case

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rendered his trial fundamentally unfair because the trial court did not instruct the jury on

“attempt.” He therefore is not entitled to habeas relief.

Claim Three: Failure to admit recordings of victim’s calls to Petitioner

Petitioner contends that the trial court erred by refusing to admit recordings of

voicemail messages that the victim left for Petitioner. Petitioner argues that the

admission of such evidence was required by Florida’s “rule of completeness,” codified at

Fla. Stat. § 90.180(1), which provides that when part of a writing or statement is

introduced an adverse party may require introduction of other parts that in fairness ought

to be considered.

Again, Respondent contends that this claim is unexhausted and procedurally

defaulted because Petitioner did not present the issue as a federal claim in his direct

appeal. Doc. 12. A review of Petitioner’s brief on direct appeal reflects that Petitioner

did not assert this claim as an issue of Federal constitutional law. See App. Exh. F. 

Petitioner has not asserted any cause or prejudice for the default, nor does the record

suggest that a fundamental miscarriage of justice would result if the claim is not

considered.

Even if Petitioner had properly exhausted this claim, he would not be entitled to

relief. A state trial court’s evidentiary rulings do not provide a basis for federal habeas

relief absent a showing that the ruling affected the fundamental fairness of the trial. See

Sims v. Singletary, 155 F.3d 1297, 1312 (11 Cir. 1998). Even if erroneous, a Petitioner th

must show that the ruling “‘had [a] substantial and injurious effect or influence in

determining the jury’s verdict.’” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 623

(1993)). 

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The trial court refused to allow defense counsel to play a tape recording for the

jury containing voicemail messages left for Petitioner by Veigh. The court listened to the

tapes in a proffer by defense counsel. The court determined that the recordings did not

fall within the rule of completeness because they were not part of the phone calls made

by Petitioner that had been played for the jury, which were complete in their own right. 

The court also noted that the calls did not fall within any hearsay exception, because

Veigh was available to testify regarding her contacts with Petitioner and there was no

dispute that she had consensual contacts with Petitioner. App. Exh. E. at 321-30.

Given that Veigh was available to testify regarding her consensual contacts with

Petitioner, and did so testify, the record does not support a conclusion that Petitioner’s

trial was rendered unfair by the exclusion of Veigh’s voicemail messages to Petitioner. 

Based on the undersigned’s review of the record, there is no possibility that the

exclusion of Veigh’s voicemail messages had a substantial and injurious effect or

influence in determining the jury’s verdict. Accordingly, Petitioner is not entitled to

habeas relief on his claim.

Claim Four: Ineffective assistance regarding audiotape excerpts

Petitioner contends that his trial counsel rendered ineffective assistance by failing

to object to the State playing only excerpts of the audiotapes of his conversations with

Veigh for the jury, and that counsel also should have moved for a new trial on that

ground. Petitioner argues that the audiotapes in their entirety would have cast doubt on

the State’s assertion that Veigh suffered emotional distress as a result of Petitioner’s

conduct. 

In rejecting this claim on postconviction review, the state court noted that

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Petitioner’s voicemail messages to Veigh were played in their entirety, but the jail

conversations were redacted. Although the jail calls were redacted, the portions that

were played included Veigh’s end of the conversation. See App. Exh. E. at 270-82. The

court noted that it was not the unredacted jail calls that Petitioner sought to have

introduced at trial; rather, Petitioner’s counsel sought to introduce the four voicemail

messages left by Veigh on Petitioner’s phone. App. Exh. N at 67. The state court

denied counsel’s effort to have Veigh’s voicemail messages admitted because, as noted

above, there was no legal basis for admitting them, Veigh admitted making the calls,

there was nothing significant in the substance of the messages themselves, and the jury

had ample evidence to determine Veigh’s level of emotional distress based upon the jail

calls that were played at trial as well as her live testimony. The court concluded that

Petitioner had failed to show either error by counsel or prejudice in this regard. Id. 

The record is clear that counsel endeavored to have Veigh’s voicemail messages

admitted at trial. Given the trial court’s reasons for excluding the messages, it is

apparent that any effort to seek a new trial on this ground would have been

unsuccessful. Counsel cannot be deemed to have performed deficiently by failing to

make an unmeritorious motion.

To the extent that Petitioner asserts in this Court that counsel performed

deficiently by failing to seek admission of the unredacted jail calls – a different claim

than the claim construed by the state postconviction court – Petitioner provides no

explanation as to the contents of the unredacted jail calls or how such contents might

have altered the jury’s verdict. Petitioner has made no showing whatsoever that but for

counsel’s failure to seek admission of the contents of the unredacted jail calls, there is a

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reasonable probability that the outcome of the proceeding would have been different. 

On this record, Petitioner has failed to show that the state court’s rejection of this

ineffective-assistance claim was contrary to, or an unreasonable application of,

Strickland.

Claim Five: Ineffective Assistance regarding racially inflammatory remarks

Petitioner contends that his trial counsel rendered ineffective assistance by failing

to notice before trial that Petitioner used the word “nigger” in a voicemail message left

for Veigh, and for failing to timely move for exclusion of the offense remarks. Petitioner

contends that he was prejudiced by counsel’s performance because one of the jurors

was an African American who was predisposed to find the word offensive. Doc. 1 at

4(i)-(l).

In rejecting this claim on postconviction review, the state court reasoned as

follows:

In his voice-mail messages to the victim (not the jail phone calls as

Defendant alleges), Defendant used the word “nigger” three times. These 3

calls were heard by the jury. After the first instance of the word on the

audio tape, defense counsel moved for mistrial, which was ultimately

denied by the court. During his closing argument, defense counsel

addressed, indirectly, Defendant’s use of the word. No mention of

Defendant’s use of the word was made by the State.

The record reflects that defense counsel did not object or move for

a curative instruction so as not to draw unnecessary attention to

Defendant’s use of the word. Considering the fact that the entirety of

Defendant’s calls [were] offensive, this seems reasonable. Besides using

the word at issue, Defendant repeatedly referred to his victim as: “f-----g

maggot,” “f-----g scum,” “f-----g whore,” “f-----g sleaze ball,” “f-----g bitch,” “fPetitioner used the word generally once in one message, and then in another

3

message referred to Veigh as a “ghetto nigger” and a “white trash piece of f-----g dirt

nigger.” App. Exh. E at 226, 243.

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----g damaged f-----g goods,” “stupid motherf----r,” “f-----g lowlife piece of s-

-t,” “dirt bag,” “goddamn leach,” “f-----g idiot,” “f-----g whacked,”“inbred,” and

“f-----g retard.” Furthermore, Defendant carved some of these words into

the victim’s truck. Defendant also threatened the victim’s life and the life of

her family . . . .Thus, even if counsel did err by failing to catch the word on

the audio tape prior to the trial, he certainly did not err by failing to draw

attention to it at trial given the plethora of inflammatory language being

presented to the jury. Defendant’s lack of prejudice follows from this as

well. It is inconceivable that, given all the evidence that was presented to

them, the jury convicted Defendant solely on his use of this word three

times. This claim is without merit.

App. Exh. N at 68-69.

Counsel moved for a mistrial after the messages were admitted, and explained

that he did not object during the playing of the messages because he did not want to

draw any more attention than necessary to the offense language. App. Exh. E at 256-

57. In his closing remarks, counsel did indirectly address the offensive language by

arguing to the jury that whether Petitioner was profane or racist was irrelevant to the

elements of the crimes that the State had to prove. On this record, the Court cannot say

that this strategy by counsel was unreasonable. Moreover, in the context of the other

extensive profane and abusive comments by Petitioner, there is no reasonable

probability that but for counsel’s failure to object to the three uses of an offensive racial

term the outcome of the trial would have been different. 

On this record, Petitioner has failed to show that the state court’s rejection of this

ineffective-assistance claim was contrary to, or an unreasonable application of,

Strickland.

Claim Six: Ineffective assistance regarding severance of charge

Petitioner contends that his trial counsel rendered ineffective assistance by failing

to discuss severing the tampering-with-a-witness with Petitioner prior to trial. The record

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reflects that before trial commenced, counsel asked Petitioner on the record whether he

wanted to sever the tampering charge and Petitioner responded that he did not. App.

Exh. E at 21.

In rejecting this claim on postconviction review, the state court concluded that

Petitioner had demonstrated no prejudice stemming from counsel’s performance,

because “[t]he evidence supporting the tampering charge was the same evidence

supporting the aggravated stalking charge. Whether the tampering charge had been

severed or not the jury would still have heard the jail phone calls in which Defendant

threatens to harm the victim if she proceeds to trial. Defendant’s guilt as to each of the

charged offenses is overwhelming. Even if the tampering charge had been severed,

there is not a reasonable probability that this would have affected the outcome of this

trial. This claim is without merit.” App. Exh. N. at 69-70.

The trial record reflects that counsel placed several matters on the record that he

had previously discussed with Petitioner, including asking Petitioner to confirm “[y]ou do

not wish me to ask the Court to sever the tampering from the trial, is that correct?” To

which Petitioner responded “correct.” App. Exh. E at 21. On this record, Petitioner has

not clearly shown that counsel failed to discuss this matter with him before trial, or that

his decision to not have the charge severed was the product of any deficient

performance by counsel.

Further, as the state court observed, Petitioner’s recorded threats to Veigh were

offered as evidence in support of the aggravated stalking charge as well as the

tampering charge. Although Petitioner contends that “the charge of tampering with a

witness inherently carries a stigma of guilt,” there was no evidence admitted in

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connection with the tampering charge that would not have been admitted on the

aggravated stalking charge. Petitioner has not shown that there is a reasonable

probability that separate trials upon the charges against him would have provided him

with a better chance of acquittal. Petitioner has failed to show that the state court’s

rejection of this ineffective-assistance claim was contrary to, or an unreasonable

application of, Strickland.

Claim Seven: Ineffective assistance regarding criminal mischief charge

Petitioner contends that his trial counsel rendered ineffective assistance by failing

to object to the evidence offered to show that his damage to Veigh’s vehicle met the

$1000 threshhold necessary to support a charge of criminal mischief under Florida law. 

Doc. 1 at 4(o)-(q). Veigh produced a repair bill showing that it cost $575 to repair the

windshield. She later testified that Petitioner stated that the repair cost was $4400.

Petitioner argues that counsel should have objected and required the State to

substantiate the amount. 

In rejecting this claim on postconviction review, the state court noted that defense

counsel did in fact move for a judgment of acquittal on the basis that the State had not

proven that damages were over $1000. App. Exh. N at 70-71. The evidence on the

amount of damage included the victim’s testimony that Petitioner told her the insurance

company paid $4400 to repair the damages, and her testimony that Petitioner also

referenced that amount in a letter to Veigh. App. Exh. E. at 214-15. Photographs of the

damage to the vehicle were presented at trial, and the officer who responded to the

criminal mischief call described the extensive damage that he observed. App. Exh. E. at

349-50. The state court concluded that any objection to Veigh’s testimony on the

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amount of damage would have been overruled, and that under state law Petitioner’s

admission of the amount of repair, coupled with the self-evident cost of repair to the

vehicle, were sufficient evidence for the jury to find that the statutory threshhold was

met. App. Exh. N at 70-71 (citing Clark v. State, 746 So. 2d 1237, 1241 (Fla. 1st DCA

1999); see also A.D. v. State, 866 So. 2d 752, 753–54 (Fla. 2d DCA 2004)). 

On this record, Petitioner has failed to show either that counsel performed

deficiently regarding the State’s evidence on damages, or that he was prejudiced by

counsel’s performance. The state court’s rejection of this ineffective-assistance claim

was neither contrary to, nor an unreasonable application of, Strickland.

Claim Eight: Trial court error in excluding testimony of Faye Guinn

Petitioner contends that the trial court committed fundamental error by granting

the State’s motion in limine regarding proposed testimony by Petitioner’s mother, Faye

Guinn. Defense counsel sought to call Guinn to testify regarding a protective injunction

that Guinn obtained against Veigh. Doc. 1 at 4(r).

Respondent contends that this claim is unexhausted because Petitioner did not

raise it on direct appeal, and the state court on postconviction review found that it was

procedurally barred. Doc. 12; see App. Exh. N at 72. The Court agrees. Petitioner

has made no showing of cause of prejudice to excuse the procedural default, and this

claim is foreclosed from Federal review.

Even if the claim were not foreclosed, the Court would conclude that it has no

merit. The trial court granted the motion in limine on the basis that Guinn’s testimony

was not relevant to the charges against Petitioner, but permitted counsel to reassert the

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issue later in the trial. See App. Exh. E at 8-10, 148-49, 262, 266-69, 320-21, 375-76. 

The trial court’s rulings finding that Guinn’s testimony was not relevant to any trial issue

do not present an issue for federal habeas review, absent a showing that such rulings

rendered the trial fundamentally unfair. In view of the overwhelming evidence of

Petitioner’s guilt, and the collateral nature of Guinn’s proposed testimony, Petitioner has

failed to show that the evidentiary rulings rendered his trial fundamentally unfair.

Claim Nine: Ineffective assistance relating to Guinn’s testimony

Petitioner contends that his trial counsel rendered ineffective assistance by failing

to file a motion for new trial based on the trial court’s rulings excluding Ms. Guinn’s

testimony. Doc. 1 at 4(s)-(u). The state court rejected this claim on postconviction

review, noting that counsel had preserved the issue for appeal, and that even if counsel

had filed a motion for new trial asserting the issue again there was no reasonable

probability that the court would have granted a new trial on that ground. App. Exh. N at

71. Apart from his conclusional assertions to the contrary, Petitioner has failed to show

that the state court’s rejection of this ineffective-assistance claim was contrary to, or an

unreasonable application of, Strickland.

Claim Ten: Ineffective assistance of appellate counsel

Petitioner contends that his appellate counsel rendered ineffective assistance by

failing to raise as an appellate issue that the trial court erred in not granting his motion

for judgment of acquittal on the criminal mischief charge, due to the allegedly insufficient

evidence regarding the amount of damage to the vehicle. Doc. 1 at 5(a)-(b).

In assessing appellate counsel’s performance, “the Sixth Amendment does not

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require appellate advocates to raise every non-frivolous issue.” Heath v. Jones, 941

F.2d 1126, 1130 (11 Cir. 1991). Rather, “effective advocates ‘winnow out’ weaker

th

arguments even though the weaker arguments may be meritorious.” Id. at 1131. When

appellate counsel reviews the entire record, thinks about various claims, and then

chooses to pursue only certain issues on appeal, counsel has not rendered ineffective

assistance. Id. Although a non-appealed issue might have been successful if it had

been raised, appellate advocacy must be “judged in its entirety.” Id. To determine

prejudice in the context of appellate counsel’s effectiveness, the Court must review the

merits of the neglected claim or claims. Heath, 941 F.2d at 1132. Failure to raise a

claim will not be found prejudicial unless the claim would have a reasonable probability

of success on appeal. Id.

As explained above, the trial court determined that there was competent evidence

on the issue of damages, and trial counsel preserved his objections for possible

appellate review. Given that the evidence presented on damages was competent under

state law, and more than sufficient for the jury to find that the $1000 threshhold was met,

appellate counsel did not perform deficiently by pursuing other, stronger, arguments on

appeal. Further, on this record there is no reasonable probability that the outcome of

the appeal would have been different but for appellate counsel’s failure to raise this

issue. Petitioner has failed to show that the state court’s rejection of this claim was

contrary to, or an unreasonable application of, Federal law.

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Certificate of Appealability

Section 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 (2000).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

Rule 11(a) also 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 respectfully RECOMMENDED:

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

2. That a certificate of appealability be DENIED.

IN CHAMBERS this 14 day of August 2012. 

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s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 14 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with a copy thereof.

Failure to file specific objections limits the scope of review of proposed factual findings and

recommendations.

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