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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

T E JURKOWICH,

Petitioner,

v. Case No. 3:10cv189/MCR/CJK

EDWIN G. BUSS, 

Respondent.

___________________________________________________________________

REPORT AND RECOMMENDATION

This case filed under 28 U.S.C. § 2254 is before the Court upon respondent’s

Motion to Dismiss Mixed Petition for Writ of Habeas Corpus. (Doc. 19). Petitioner

has responded in opposition to dismissal. (Doc. 24). Based on the state court record

and relevant law, the undersigned concludes that the petition is a mixed petition, as

it includes unexhausted claims. The petition is potentially subject to dismissal. In

light of this conclusion, however, additional briefing should be allowed in order to

inform the decision whether dismissal, as opposed to a stay, is appropriate. 

BACKGROUND AND PROCEDURAL HISTORY

Petitioner commenced this proceeding on June 1, 2010, by filing a petition for

writ of habeas corpus raising seven claims:

1. “Trial counsel was ineffective for failing to properly investigate

petitioner’s requested defense of insanity”;

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2. “Trial counsel was ineffective for refusing to provide petitioner with a

viable defense, not guilty by reason ofinsanity requested by petitioner”;

3. “Judge Jan Shackleford (The Court) acted in error and/or with

misconduct/abuse of discretion when she ruled a inanity defense was

unavailable to petitioner”;

4. “It was error and/or misconduct by the Court to hold that petitioner

represent himself if he was no[t] satisfied with the representation of trial

counsel Peter Mitchell”;

5. “It was error of the Court to accept incorrect information in imposing

sentence upon petitioner”;

6. “It is unlawful to increase or ignore a sentence imposed by a Trial

Court”; and

7. “Petitioner’s classification upon his release as a career criminal violates

the V, VI, VIII, and/or XIV admend [sic] of the U.S. Constitution.”

(Doc. 1). With regard to exhaustion, petitioner asserts that Grounds 1-6 were raised

on direct appeal, but that Ground 7 “was just inadvertly [sic] discovered and raising

it in the lower court will deny the petitioner a meaningful challenge by a unbiased and

to the constitutionally [sic] of his detention.” (Id., p. 5). 

On May 9, 2011, respondent filed the now-pending motion to dismiss. 

Respondent seeks dismissal on the grounds that the petition is a mixed petition (a

petition containing both exhausted and unexhausted claims), arguing that petitioner’s

two ineffective assistance claims “have not been properly exhausted yet for the next

45 days are still exhaustable.” (Doc. 19, p. 3). Specifically, respondent maintains

that although petitioner presented his ineffective assistance claims on direct appeal,

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that did not constitute proper exhaustion, because the rule in Florida is that claims of

ineffective assistance of counsel are not reviewable on direct appeal unless there has

been the constructive denial of counsel, or the ineffectiveness is established on the

face of the record, neither of which applied in petitioner’s case. (Id., pp. 7-8). 

Because respondent’s motion to dismiss relates only to the two ineffective

assistance claims, the following background and procedural history of the state court

proceeding is confined to those issues. 

STATE COURT BACKGROUND AND PROCEDURAL HISTORY

On April 4, 2007, an amended information was filed in the Circuit Court for

Escambia County, Florida, Case No. 06-CF-6282, charging petitioner with escape,

resisting an officer with violence, and two counts of battery on a law enforcement

officer. (Doc. 19, Ex. B, pp. 2-3). Prior to trial, defense counsel (Peter Mitchell)

1

filed a motion to appoint a mental health expert to evaluate petitioner’s sanity at the

time of the alleged offenses. (Id., p. 8). The motion was granted. Defense counsel

later filed a motion for a competency evaluation, which was granted. (Ex. A, p. 4). 

After petitioner complained that defense counsel was not properly investigating

and pursuing an insanity defense, the trial court held a Nelson hearing. See Nelson

v. State, 274 So.2d 256 (Fla. 4th DCA 1973); Gamble v. State, 877 So.2d 706, 717

(Fla. 2004) (explaining the Nelson procedure: “When a defendant seeks to discharge

court-appointed counsel on the ground of incompetency, the court must determine

whether there is reasonable cause to believe appointed counsel is not rendering

effective assistance to the defendant. If there is reasonable cause to believe counsel

Hereafter, all references to exhibits will be to those provided at Doc. 19, unless otherwise 1

noted.

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is not rendering effective assistance, the court should discharge counsel and appoint

substitute counsel. If the trial court finds that there is not reasonable cause to

discharge counsel, the court should advise the defendant that if appointed counsel is

discharged without cause, the defendant may be required to proceed to trial without

court-appointed representation.”). 

The Nelson hearing was held on November 8, 2007. After questioning

petitioner and defense counsel, the court determined there was not reasonable cause

to believe Mr. Mitchell was rendering ineffective assistance. (Ex. B, pp. 14-20). 

During the hearing, Mr. Mitchell indicated he had reviewed the reports of the two

court-appointed examiners and determined that although he was fully aware of his

client’s desire to pursue an insanity defense, that was not something counsel could

do in this case. (Id., p. 17). In light of counsel’s definitive statement, no further

record was developed concerning the basis or viability of an insanity defense, save

for one comment by petitioner that he knew of “a lot of lay witnesses” who could

confirm petitioner’s mental state. (Id., p. 19). Petitioner was given the opportunity

to represent himself, but declined. (Id., p. 20). 

As the trial judge was discussing scheduling matters, petitioner asked to confer

with defense counsel. (Id., p. 24). After the two conferred, defense counsel advised

the court that the State had earlier tendered a plea offer of five years state prison, and

that petitioner wanted to accept that offer and tender a no contest plea. (Id., pp. 25-

26). The State indicated its willingness to extend the earlier offer, clarifying that

petitioner would be sentenced to concurrent five-year sentences as a prison releasee

reoffender (“PRR”). (Id., p. 26). Petitioner signed a written plea agreement to that

effect, reserving the right to appeal any “pretrial motions or hearings.” (Id., pp. 47-

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50). The trial court then conducted a plea colloquy during which petitioner indicated

he wished to enter the plea and was satisfied with the services of his lawyer. (Id., p.

29). The trial court accepted petitioner’s plea, adjudicated him guilty as charged on

all four counts, and sentenced petitioner to five years in prison on each count to run

concurrent with each other. (Id., pp. 27-34). Judgment was rendered November 8,

2007. (Id., pp. 55-62). Due to a change in Florida law as to PRR sentencing,

petitioner’s sentence was corrected on April 14, 2008, to remove the PRR designation

as to two of the counts. (Ex. A, p. 7). 

Defense counsel filed a notice of appeal and statement of judicial acts to be

reviewed, identifying as one issue the trial court’s ruling on petitioner’s Nelson

hearing. (Id., p. 67). The court appointed new counsel for the appeal. Appellate

counsel filed an “Anders Brief” delineating as a possible appellate issue the propriety

of the trial court’s ruling on petitioner’s motion to discharge counsel, but asserting

that the ruling appeared to be legal. (Ex. F). The Florida First District Court of

Appeal (“First DCA”) authorized petitioner to file a pro se brief. (Ex. G). The court

advised the State that it was not required to serve an answer brief, noting that “If the

panel of judges which considers the merits of this appeal finds that the record or

briefs support any arguable claims, additional briefing will be ordered in accordance

with In re Anders Briefs, 581 So. 2s 149 (Fla. 1991).” (Id.). Petitioner filed an

amended brief, in which he raised four issues with various sub-parts. (Ex. H). In the

first issue petitioner argued he was denied the right to effective assistance of counsel

when counsel failed to explore and pursue petitioner’s requested defense of insanity,

and that the trial court erred in refusing to appoint alternative trial counsel. (Id., pp.

ii, 6-12). On May 29, 2009, the First DCA per curiam affirmed without written

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opinion. Jurkowich v. State, 10 So.3d 635 (Fla. 1st DCA 2009) (Table). The

mandate issued June 24, 2009. (Ex. J). 

In the present habeas corpus matter, respondent asserts petitioner’s ineffective

assistance claims were not fairly presented to the state court, because the Nelson

hearing “is not a full evidentiary development from which an ineffective assistance

claim could be properly raised on direct appeal.” Respondent further explains:

[T]he Nelson hearing during which petitioner’s complaints were

presented did not amountto development sufficient to exhaust the claim. 

Defense counsel was not questioned under oath as to his decisions and

the necessary confidential matters of trial strategy were specifically not

enquired [sic] into. . . . Thus the ineffectiveness claims were not fairly

presented because under state law they had to be developed in a post

conviction motion filed in the trial court.

(Doc. 19, p. 10). According to respondent, petitioner had, at the time of respondent’s

filing, considerable time remaining to raise his ineffectiveness claims in a

postconviction motion under Florida Rule of Criminal Procedure 3.850. (Doc. 19, p.

11). Because a Rule 3.850 motion had not been filed at the time of respondent’s

submission, respondent submits that the ineffectiveness claims were both

unexhausted and not yet procedurally barred. Respondent set out in bold letters that

the two year time period for petitioner’s Rule 3.850 motion would not expire until

June 24, 2011, some 46 days after the date of the motion to dismiss. Without

addressing the appropriateness of a stay, respondent urges the court to require

petitioner to chose between deleting the unexhausted claims and proceeding with the

exhausted (or procedurally defaulted) ones, or having his entire petition dismissed

without prejudice. 

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Petitioner responds that his ineffective assistance claims were properly

presented to the trial court and preserved for direct appeal, that the claims are

apparent from the face of the record developed at the Nelson hearing, and that they

were properly presented to and ruled upon by the appellate court. (Doc. 24).

Therefore, concludes petitioner, they are exhausted.

My review of the state court online docket in petitioner’s criminal case reveals

that a Rule 3.850 motion was docketed in the state trial court on June 30, 2011. See

http://www.escambiaclerk.com/xml/xml.asp?ucase_id=35881912. Petitioner has not

mentioned this fact, much less disclosed here his postconviction claims. 

ANALYSIS

Relevant Federal Law

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), a federal habeas petitioner must first exhaust

state-court remedies. 28 U.S.C. § 2254(b)(1)(A). A petitioner exhausts a claimwhen

he affords the state court “a full and fair opportunity to address and resolve the claim

on the merits.” Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1343 (11 Cir. th

2004) (quotation omitted). A “mixed” habeas petition is one that includes both

exhausted and unexhausted claims. Pliler v. Ford, 542 U.S. 225, 227, 124 S. Ct.

2441, 159 L. Ed. 2d 338 (2004). In Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct.

1198, 71 L. Ed. 2d 379 (1982), the Supreme Court held that, when confronted with

a mixed petition, the district court must dismiss the petition in its entirety, “leaving

the prisoner with the choice of returning to state court to exhaust his claims or of

amending or resubmitting the habeas petition to present only exhausted claims to the

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district court.” In imposing this “total exhaustion rule,” the Supreme Court noted that

it would have the benefits of “encourag[ing] state prisoners to seek full relief first

from the state courts” and “reliev[ing] the district courts of the difficult if not

impossible task of deciding when claims are related.” Id. at 518-19, 102 S. Ct. 1198. 

In addition to codifying the total exhaustion requirement, AEDPA created a

one-year statute of limitations for federal habeas corpus petitions. 28 U.S.C. §

2244(d)(1). Although the limitations period is tolled while a “properly filed”

application for state postconviction or other collateral review is pending, it is not

tolled while a federal petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82,

121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001). The Supreme Court recognized that the

passage of AEDPA created a problem in that “petitioners who come to federal court

with ‘mixed’ petitions run the risk of forever losing their opportunity for any federal

review of their unexhausted claims” because petitioners cannot control when district

courts willresolve the exhaustion question, rendering numerous petitions time-barred

when re-filed in federal court. Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528,

161 L.Ed.2d 440 (2005). To address potential time-bar problems, the Supreme Court

held in Rhinesthat district courts have discretion to employ, in limited circumstances,

“stay and abeyance” procedures to hold a § 2254 petition in abeyance while the

petitioner exhausts his previously-unexhausted claims. Id. at 275-77, 125 S. Ct.

1528. “[S]tay and abeyance is only appropriate” if: (1) the petitioner had good cause

for his failure to exhaust his claims; (2) the unexhausted claims are not plainly

meritless; and (3) there is no indication that the petitioner engaged in abusive

litigation practices or intentional delay. Id. at 277-78, 125 S.Ct. 1528. The Supreme

Court further observed that if these conditions were met, “it likely would be an abuse

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of discretion for a district court to deny a stay and to dismiss a mixed petition.” Id.

at 278, 125 S. Ct. 1528. Conversely, if the district court determines that a stay is

inappropriate, it should allow the petitioner to delete the unexhausted claims and

proceed with the exhausted claims if dismissal would “impair the petitioner’s right

to obtain federal relief.” Id.

Thus, when a district court is confronted with a mixed petition, the district

court must (1) make findings as to whether a stay and abeyance is warranted; and (2)

if a stay is unwarranted, offer the petitioner a choice of either dismissing the petition

and returning to state court to exhaust his claims, or amending the habeas petition to

present only exhausted claims. See Thompson v. Sec’y for the Dep't of Corr., 425

F.3d 1364, 1366 (11 Cir. 2005) (vacating and remanding to consider whether a stay th

was warranted because the district court offered petitioner the choice to delete his

unexhausted claims before making this threshold finding); see also Rhines, supra.

Relevant State Law

In Smith v. State, 998 So.2d 516 (Fla. 2008), the Florida Supreme Court

explained the proper procedure for presenting ineffective assistance claims:

Claims of ineffective assistance of trial counsel are usually

presented in a postconviction motion under Florida Rule of Criminal

Procedure 3.850. Under that rule, the circuit court can be specifically

presented with the claim, and apply the Strickland standard with

reference to the full record and any evidence it may receive in an

evidentiary hearing, including trial counsel’s testimony. Thus,

ineffective assistance claims are not usually presented to the judge at

trial, and we have repeatedly stated such claims are not cognizable on

direct appeal. E.g., Martinez v. State, 761 So.2d 1074, 1078 n. 2 (Fla.

2000) (“With rare exception, ineffective assistance of counsel claims are

not cognizable on direct appeal.”); McKinney v. State, 579 So.2d 80, 82

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(Fla. 1991) (“Claims of ineffective assistance of counsel are generally

not reviewable on direct appeal but are more properly raised in a motion

for postconviction relief.”); Kelley v. State, 486 So.2d 578, 585 (Fla.

1986) (same); State v. Barber, 301 So.2d 7, 9 (Fla. 1974) (holding that

claims ofineffective assistance of counsel “cannot properly be raised for

the first time on direct appeal” because the trial court has not previously

ruled on the issue). We recognize that “[t]here are rare exceptions where

appellate counsel may successfully raise the issue on direct appeal

because the ineffectiveness is apparent on the face of the record and it

would be a waste of judicial resources to require the trial court to

address the issue.” Blanco v. State, 507 So.2d 1377, 1384 (Fla. 1987);

see also Gore v. State, 784 So.2d 418, 437–38 (Fla. 2001) (“A claim of

ineffective assistance of counsel may be raised on direct appeal only

where the ineffectiveness is apparent on the face of the record.”);

Mansfield v. State, 758 So.2d 636, 642 (Fla. 2000) (same). Thus, in the

rare case, where both prongs of Strickland – the error and the prejudice

– are manifest in the record, an appellate court may address an

ineffective assistance claim.

Smith at 522-23.

Petitioner’s ineffectiveness claims on direct appeal did not meet the exceptional

criteria described in Smith. The record developed at the Nelson hearing was a limited

colloquy to determine whether there was reasonable cause to believe counsel was

providing ineffective assistance with regard to investigating and pursuing an insanity

defense. (Ex. B, pp. 14-22). In that regard, the trial judge limited her questioning of

defense counsel to whether counsel considered an insanity defense and petitioner’s 

competence to stand trial, what counsel did to investigate these issues, whether

counsel’s failure to file a notice of intent to rely on an insanity defense was a

conscious decision on counsel’s part, and whether counsel’s decision was based on

the facts of petitioner’s case in relation to the Florida standard of insanity. The trial

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judge avoided eliciting specific evidence protected under the attorney-client privilege

about petitioner’s mental state (such asthe expert reports) and defense counsel’s trial

preparation, strategy and decision-making process (including counsel’s conversations

with petitioner, the experts and potential witnesses). See Ex. B, p. 17 (excerpt from

Nelson hearing transcript in which trial judge explained she was not trying to “pierce”

the attorney-client privilege, but rather attempting to create a record sufficient for

appellate review of her Nelson inquiry and ruling). Although the record was

sufficient to resolve the Nelson issue, it was insufficient to resolve an ineffective

assistance claimon the merits(for example, assessing the probability petitioner could

have met the Florida standard of insanity ). 2

Based on defense counsel’s answers and petitioner’s arguments, the trial court

made a limited finding of no reasonable cause to believe counsel was rendering

ineffective assistance. The issue noted for possible appellate review was likewise

limited to whether the trial court’s ruling on petitioner’s motion to discharge counsel

was proper (i.e., whether the trial court properly conducted the Nelson inquiry). 

In petitioner’s pro se brief on appeal, he raised numerous fact allegations that

were not presented to the trial court or developed at the Nelson hearing. Tellingly,

these allegations do not cite to the record of the state court proceedings. In order for

the appellate court to determine whether petitioner’s ineffective assistance claims had

“The legal test for insanityinFlorida in criminal cases has long been the ‘M’NaghtenRule.’” 2

Patton v. State, 878 So.2d 368, 374 (Fla. 2004) (citations omitted). “Under M’Naghten, an accused

is not criminally responsible if, at the time of the alleged crime, the defendant, by reason of a mental

disease or defect, (1) does not know of the nature or consequences of his or her act; or (2) is unable

to distinguish right from wrong.” Patton at 375 (citations omitted). 

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merit, far more detail (such as those “facts” presented in petitioner’s pro se direct

appeal brief and pled in the instant federal habeas petition) would have been required

in the state matter. 

As suggested by Smith, those rare instances where direct review of ineffective

assistance claims will be available, have been quite well delineated by case law. The

Florida cases demonstrate that the appropriate forumfor factual development ofsuch

claims is almost always the trial court, not the appellate court. Moreover, a review

ofthese cases demonstrates quite graphically the qualitative distinction between those

cases eligible for direct review, and those reserved for collateral attack. Compare

Kidd v. State, 978 So.2d 868, 869 (Fla. 4th DCA 2008) (holding that defendant’s

claims of ineffective assistance of counsel were not cognizable on direct appeal,

where such claims were not apparent on the face of the record; defendant claimed

counsel was ineffective for allowing the State to introduce inadmissible hearsay in

the form of prior testimony of an unavailable witness even though the State failed to

prove the unavailability of the witness; however, the record showed trial counsel did

not simply fail to object, but that defendant and his counsel discussed the matter and

decided for their own reasons to allow the State to admit the testimony uncontested),

and Criner v. State, 943 So.2d 224, 226 (Fla. 1st DCA 2006) (same, where

defendant’s ineffective assistance claims concerned strategic decisions made by

defense counsel), and Burgess v. State, 776 So.2d 1035, 1036 (Fla. 4th DCA 2001)

(same, where defendant argued his attorney should have moved to suppress the

victim’s identification of him at a live post-information, pre-trial lineup because he

did not have counsel present; however, the record did not clearly show that defendant

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was unrepresented by counsel at the lineup), with Foster v. State, 387 So.2d 344,

345-46 (Fla. 1980) (reversing conviction on direct appeal where record demonstrated

counsel’s representation was impaired by conflicting interests – court-appointed

attorney jointly represented defendant and a state witness who testified against

defendant), and Ross v. State, 726 So.2d 317, 319 (Fla. 2d DCA 1998) (addressing

ineffective assistance claim on direct appeal where record revealed counsel failed to

object to prosecutor’s inappropriate and prejudicial comments during closing

argument – prosecutor repeatedly bolstered arresting officer’s credibility, attacked

and ridiculed defendant (characterizing his testimony as “preposterous,” “nonsense,”

and “bologna”), and attacked and ridiculed defense witnesses (describing them as

“pathetic,” “ridiculous,” “inappropriate,” “insulting” to the jury’s intelligence, “totally

incredible,” and as having “just flat out” lied), and Gordon v. State, 469 So.2d 795,

797 (Fla. 4th DCA 1985) (addressing ineffective assistance claim on direct appeal

where the record revealed defense counsel failed to object to 104 instances of

improper questions and comments by the prosecutor). In the cases allowing direct

review, the appellate court suffered no inability to glean all necessary facts from the

trial court record. Simply put, the same may not be said here. 

In light of the foregoing, the undersigned agrees with respondent that the

instant federal habeas petition is a mixed petition. Nevertheless, before the Court

reaches the question whether the petition should be dismissed or petitioner allowed

to amend to remove the unexhausted claims, the Court must first determine whether

a stay is appropriate. Relevant to that inquiry is whether petitioner’s ineffective

assistance claims were raised in his recently filed Rule 3.850 motion, and whether

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that motion was timely. This is relevant, because “[if] it is obvious that the

unexhausted claims would be procedurally barred in state court due to a state-law

procedural default, [the district court] can forego the needless ‘judicial ping-pong’

and just treat those claims now barred by state law as no basis for federal habeas

relief.” Kelley, 377 F.3d at 1351 (internal quotation marks omitted). The

unexhausted claims would be treated as if procedurally defaulted. See Bailey v.

Nagle, 172 F.3d 1299, 1302 (11 Cir. 1999); see also Chambers v. Thompson, 150

th

F.3d 1324, 1326 (11 Cir. 1998) (a petition is “due to be denied with prejudice [if]

th

there are no state remedies left to exhaust and all of the claims are either meritless or

procedurally defaulted.”). Also relevant to the stay-and-abeyance inquiry is what

showing, if any, petitioner can make on the three Rhinesfactors. As neither party has

addressed these issues, the Court should require additional briefing. 

Accordingly, it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 19) be GRANTED to the limited

extent the petition is deemed a mixed petition, but DENIED WITHOUT PREJUDICE

in all other respects. The Court will re-consider respondent’s arguments concerning

dismissal or amendment if it determines a stay is unwarranted. 

2. That this case be remanded to the undersigned for briefing and

determination of whether a stay is appropriate. 

At Pensacola, Florida this 15th day of July, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

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

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