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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVID W KELSO,

Petitioner,

v. Case No. 5:10cv181/RS/CJK

KENNETH S. TUCKER,1

Respondent.

___________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

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

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

state court record. (Doc. 16). Petitioner has not replied although given the

opportunity to do so. (See Doc. 18). 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, the undersigned concludes that no evidentiary hearing is required for the

disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in

the United States District Courts. The undersigned further concludes that the

pleadings and attachments before the Court show that petitioner is not entitled to

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

BACKGROUND AND PROCEDURAL HISTORY

On March 13, 2000, petitioner was convicted upon jury verdict of capital

Kenneth S. Tucker succeeded Walter McNeil and Edwin Buss as Secretary of the Florida 1

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

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sexual battery (Count I) and lewd or lascivious conduct (Count II) for acts he

committed on a ten-year-old girl in April of 1999. (Doc. 16, Ex. C, pp. 63-69).

2

Petitioner was sentenced on Count I to life imprisonment without parole and on

Count II, as an habitual felony offender, to a consecutive thirty-year term of

imprisonment. (Id.). Petitioner appealed, raising one issue: “The State Failed To

Prove Mr. Kelso Committed Capital Sexual Battery In Violation Of The Fourteenth

Amendment To The United States Constitution And Article I, Section 9 Of The

Florida Constitution.” (Ex. D). The Florida First District Court of Appeal (“First

DCA”) per curiam affirmed without written opinion on July 30, 2001. Kelso v. State,

792 So.2d 453 (Fla. 1st DCA 2001) (Table) (copy at Ex. G).

On February 18, 2002, petitioner filed a motion to correct illegal sentence

under Florida Rule of Criminal Procedure 3.800(a). (Ex. M, pp. 242-43). The state

court summarily denied the motion on March 7, 2002. (Id., pp. 244). Petitioner did

not appeal.

On April 12, 2002, petitioner filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850, raising one claim of newly discovered

evidence and two claims of ineffective assistance of trial counsel. (Ex. J, pp. 1-13). 

The trial court summarily denied the motion on May 9, 2002. (Id., pp. 14-137). By

opinion issued March 21, 2003, the First DCA affirmed in part, reversed in part and

remanded for an evidentiary hearing to determine whether the newly discovered

evidence was of such nature that it would probably produce an acquittal on retrial. 

Kelso v. State, 840 So.2d 1111 (Fla. 1st DCA 2003) (copy at Ex. K). The mandate

issued April 8, 2003. (Ex. I). On remand, the postconviction court held an

Hereafter, all references to exhibits are to those provided at Doc. 16, unless otherwise noted. 2

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evidentiary hearing on petitioner’s newly discovered evidence claim and denied

relief. (Ex. M, pp. 436-38). The First DCA per curiam affirmed without written

opinion. Kelso v. State, 25 So.3d 1227 (Fla. 1st DCA 2010) (copy at Ex. Q). The

mandate issued January 29, 2010. (Ex. R). Petitioner’s motion for rehearing was

denied on February 24, 2010. (Ex. T).

On March 30, 2010, Petitioner filed another motion to correct illegal sentence

under Fla. R. Crim. P. 3.800(a). (Ex. U). The trial court summarily denied the

motion as successive on April 12, 2010. (Ex. V). Petitioner did not appeal. 

Petitioner filed his federal habeas petition in this Court on July 1, 2010. (Doc.

1). The petition presentsfive grounds for relief: (1) that petitioner’s Habitual Felony

Offender sentence is illegal, (2) that the State failed to prove an essential element of

the capitalsexual battery offense (that petitioner was 18 years old or older at the time

of the offense), (3) that trial counsel was ineffective for failing to subpoena Bruce

Carter to testify at trial, (4) that trial counsel was ineffective for failing to object and

move for a mistrial when the prosecutor made improper statements during closing

argument and (5) that newly discovered evidence discredits the State’s evidence used

to convict petitioner. (Doc. 1). Respondent asserts that petitioner is not entitled to

relief on any of his claims, because they either do not raise a federal constitutional

issue, are procedurally defaulted, or are with merit. (Doc. 16).

LEGAL STANDARDS

Claims Cognizable on Federal Habeas Review

Federal habeas relief is available to correct only constitutional injury. 28

U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 479-80, 116

L. Ed. 2d 385 (1991) (errors that do not infringe upon a defendant’s constitutional

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rights provide no basis for federal habeas corpus relief); Wainwright v. Goode, 464

U.S. 78, 104 S. Ct. 378, 78 L. Ed. 2d 187 (1983); Barclay v. Florida, 463 U.S. 939,

958-59, 103 S. Ct. 3418, 3429, 77 L. Ed. 2d 1134 (1983) (“Mere errors of state law

are not the concern of this court . . . unless they rise for some other reason to the level

of a denial of rights protected by the United States Constitution.”) (citations omitted).

Questions of state law and procedure “rarely raise issues of federal constitutional

significance. [A] state’s interpretation of its own laws provides no basis for federal

habeas corpusrelief, since no question of a constitutional nature isinvolved.” Tejada

v. Dugger, 941 F.2d 1551 (11th Cir.1991) (quoting Carrizales v. Wainwright, 699

F.2d 1053 (11 Cir. 1983)). “This limitation on federal habeas review is of equal

th

force when a petition, which actually involves state law issues, is couched in terms

of equal protection and due process.” Branan v. Booth, 861 F.2d 1507, 1508 (11th 

Cir. 1988). 

Section 2254 Standard of Review

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

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

Section 2254(d) provides, in relevant part:

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

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

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

State court proceedings unless the adjudication of the claim–

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

an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

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

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d) (2011).

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

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

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

Under the “contrary to” clause, a federal habeas court may grant the writ

if the state court arrives at a conclusion opposite to that reached by this

court on a question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable facts. Under

the “unreasonable application” clause, a federal habeas court may grant

the writ if the state court identifies the correct governing legal principle

fromthisCourt’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

Id., 529 U.S. at 412-13 (O’Connor, J., concurring). 

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

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

proceeding, the federal court must first ascertain the “clearly established Federal

law,” namely, “the governing legal principle or principles set forth by the Supreme

Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538

U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is “clearly

established” only when a Supreme Court holding at the time of the state court

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 3

Stevens for the Court (joined byJustices O’Connor, Kennedy, Souter, Ginsburg, and Breyer)in parts

I, III, and IV of the opinion (529 U.S. at 367-75, 390-99); and Justice O’Connor for the Court (joined

by Justices Rehnquist, Kennedy, Thomas, and – except as to the footnote – Scalia) in part II (529

U.S. at 403-13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg,

and Breyer. 

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decision embodies the legal principle at issue. Thaler v. Haynes, — U.S. —, 130 S.

Ct. 1171, 1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608

F.3d 1313, 1315 (11th Cir. 2010).

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

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

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

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

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

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

th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases – indeed, it does

not even require awareness of our cases, so long as neither the reasoning nor the

result of the state-court decision contradicts them.”). If the state court decision is

contrary to clearly established federal law, the federal habeas court must

independently consider the merits of the petitioner’s claim. See Panetti v.

Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

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

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

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

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

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

state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,

124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S.

685, 697 n. 4, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (declining to consider

evidence not presented to state court in determining whether its decision was contrary

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to federal law). An objectively unreasonable application of federal law occurs when

the state court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case” or “unreasonably

extends, or unreasonably declines to extend, a legal principle from Supreme Court

case law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). 

A state court, however, may “decline to apply a specific legal rule that has not been

squarely established by [the Supreme Court]” without running afoul of the

“unreasonable application” clause. Knowles v. Mirzayance, 556 U.S. 111, 122, 129

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

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

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

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

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

178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or

theories supported or could have supported the state court’s decision, and then ask

whether it is possible that fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal

district court may rely on grounds other than those articulated by the state court in

determining that habeas relief was not warranted, so long as the district court did not

err in concluding that the state court’s rejection of the petitioner’s claims was neither

an unreasonable application of a Supreme Court holding nor an unreasonable

determination of the facts). In sum, “[a]s a condition for obtaining habeas corpus

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

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

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

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

Section 2254(d) also allows federal habeasrelief for a claimadjudicated on the

merits in state court where that adjudication “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable

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

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

court decision based on a factual determination “will not be overturned on factual

grounds unless objectively unreasonable in light ofthe evidence presented in the state

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

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

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

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

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

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

and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that

a federal court can disagree with a state court’s factual finding and, when guided by

AEDPA, “conclude the decision was unreasonable or that the factual premise was

incorrect by clear and convincing evidence”). Neither the Supreme Court nor the

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

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

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

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

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

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

petitioner failed to demonstrate “by clear and convincing evidence that the record

reflect[ed] an insufficient factual basis for affirming the state court’s decision.” Gill,

633 F.3d at 1292.

Only if the federal habeas court finds that the petitioner satisfied AEDPA and

§ 2254(d), does the court take the final step of conducting an independent review of

the merits of the petitioner’s claims. See Panetti, 551 U.S. 930, 954, 127 S. Ct. 2842. 

Even then, the writ will not issue unless the petitioner shows that he is in custody “in

violation of the Constitution or laws and treaties of the United States.” 28 U.S.C.

§ 2254(a). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must

exhaust all available state court remedies for challenging his conviction, 28 U.S.C.

§ 2254(b)(1), thereby giving the state the “‘opportunity to pass upon and correct’ 4

Section 2254 provides, in pertinent part: 4

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

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

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

State; or

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

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

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alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S.

270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner

“must give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round ofthe State’s established appellate review process.” 

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999);

Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and

which can no longer be litigated under state procedural rules is considered

procedurally defaulted, i.e., procedurally barred fromfederalreview. O’Sullivan, 526

U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th

Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)

(holding that federal habeas courts should enforce applicable state procedural bars

even as to claims that were never presented to the state courts). A claim is also

considered procedurally defaulted if it was presented in state court and rejected on the

independent and adequate state ground of procedural bar or default. Coleman v.

Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (holding

that the independent and adequate state ground doctrine “applies to bar federal habeas

when a state court declined to address a prisoner’s federal claims because the prisoner

had failed to meet a state procedural requirement.”); Caniff v. Moore, 269 F.3d 1245,

1247 (11th Cir. 2001) (“[C]laims that have been held to be procedurally defaulted

rights of the applicant.

. . . .

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

of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented. 

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under state law cannot be addressed by federal courts.”); accord Tower v. Phillips,

7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990),

rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L.Ed.2d 812 (1991). In

the first instance, the federal court must determine whether any future attempt to

exhaust state remedies would be futile under the state’s procedural default doctrine. 

Bailey, 172 F.3d at 1303. In the second instance, the federal court must determine

whether the state’s procedural default ruling rested on adequate state grounds

independent of the federal question. See Harris v. Reed, 489 U.S. 255, 109 S. Ct.

1038, 1043, 103 L. Ed. 2d 308 (1989). 

A petitioner seeking to overcome a procedural default must show cause and

prejudice, or a fundamental miscarriage of justice. Tower, 7 F.3d at 210. “For cause

to exist, an external impediment, whether it be governmental interference or the

reasonable unavailability of the factual basis for the claim, must have prevented

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

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

2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the

petitioner to show that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115

S. Ct. 85, 130 L. Ed. 2d 808 (1995). “To establish the requisite probability, the

petitioner must show that it is more likely than not that no reasonable juror would

have convicted him.” Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of

an innocent person is extremely rare. To be credible, such a claim

requires [a] petitioner to support his allegations of constitutional error

with new reliable evidence – whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence

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– that was not presented at trial.

Id.

DISCUSSION

Ground One Petitioner’s Habitual Felony Offender Sentence Is Illegal.

Petitioner challenges his sentence on the lewd or lascivious assault conviction,

arguing that: “[t]o enhance the lewd and lascivious assault sentence through habitual

offender sentencing and enhance it by making it consecutive violates the reason for

the rule.” (Doc. 1, p. 4). Respondent asserts that the Court is without jurisdiction to

address this claim, because it presents purely a state law issue – the propriety, under

Florida sentencing law, of consecutive sentencing when one sentence is the result of

an habitual offender designation – and does not even purport to raise an issue of

constitutional dimension. (Doc. 16, pp. 5-6). Respondent is correct. 

In Wilson v. Corcoran, — U.S. —, 131 S. Ct. 13, 16, 178 L. Ed. 2d 276 (2010),

the Supreme Court explained in a manner dispositive of this claim: 

[I]t is only noncompliance with federal law that renders a State’s

criminal judgment susceptible to collateral attack in the federal courts. 

The habeas statute unambiguously provides that a federal court may

issue the writ to a state prisoner “only on the ground that he isin custody

in violation of the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2254(a). And we have repeatedly held that “‘federal habeas

corpus relief does not lie for errors of state law.’” Estelle v. McGuire,

502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (quoting

Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606

(1990)). “[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions.” 502 U.S., at 67-68,

112 S. Ct. 475. 

Petitioner alleges that his sentence violates Florida law, but does not suggest

that this alleged state law error also entails the infringement of any federal right. 

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Petitioner’s Ground One does not raise a colorable claimfor federal habeasrelief, and

should be denied. 

Ground Two The State’s Failure To Prove An Essential Element Of Capital

Sexual Battery Constitutes Fundamental Error.

Petitioner claims that his sexual battery conviction violates due process

because the State failed to prove he was over the age of 18 at the time he sexually

battered the victim. (Doc. 1, p. 4). Petitioner raised this claim on direct appeal. (Id.,

p. 5). Petitioner’s Initial Brief on appeal acknowledged that trial counsel failed to

preserve the issue for appellate review because counsel made a boilerplate motion for

judgment of acquittal without arguing any specific grounds. Petitioner’s brief further

acknowledged that the First DCA does not consider unpreserved claims of

insufficient evidence to constitute fundamental error reviewable on direct appeal. 

Nonetheless, appellate counsel argued that the First DCA should review petitioner’s

claim because “the error of convicting a person of a crime based on insufficient

evidence constitutes fundamental error.” (Doc. 16, Ex. D, p. 10). The State argued

in its Answer Brief that the issue was procedurally barred because it was not

preserved and was not reviewable as fundamental error. (Ex. E). The State

alternatively argued that the issue was without merit. (Id.). The First DCA

summarily affirmed petitioner’s conviction without explanation. 

Respondent asserts a procedural default defense, arguing: “Petitioner never

presented this claim to the State trial court, nor did Petitioner ever alert the state trial

court that he was raising a federal constitutional claim, making any such claim

unpreserved for State appellate review on direct appeal. Accordingly, his claim is

unexhausted and, now because he cannot file another direct appeal, procedurally

defaulted.” (Doc. 16, p. 12). See also Doc. 16, p. 6 (“[T]his claim is procedurally

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defaulted because it was not properly preserved through a motion for judgment of

acquittal in the trial court and unexhausted because Petitioner did not establish that

he was raising a federal constitutional claim when he presented his motion for

judgment of acquittal to the trial court.”). 

Florida Rule of Criminal Procedure 3.380(b) requires that a motion for

judgment of acquittal “fully set forth the grounds on which it is based.” At trial,

defense counsel submitted a boilerplate motion for acquittal, stating: “The State has

failed to prove a prima facie case.” (Doc. 16, Ex. M, p. 166). Defense counsel did

not set forth the specific grounds upon which the motion was based, and did not bring

to the trial court’s attention the specific ground raised in petitioner’s appellate brief

and here – that there wasinsufficient evidence of his age. Accordingly, the issue was

not preserved for appeal and was procedurally barred. See Brooks v. State, 762 So.2d

879 (Fla. 2000) (holding that limited boilerplate motions for judgment of acquittal

which were of a technical and pro-forma nature were inadequate to preserve a

sufficiency of the evidence claim for appellate review); Woods v. State, 733 So.2d

980 (Fla. 1999) (same). Appellate counsel’s assertion that the error wasfundamental

did not open the gate to appellate review, because unpreserved claims of insufficient

evidence do not constitute fundamental error. State v. Barber, 301 So.2d 7 (Fla.

1974) (holding that where no appropriate motion was made in the trial court to test

the sufficiency of the evidence, the issue of the sufficiency of the evidence was not

open to appellate review on direct appeal from an adverse judgment); Woods v. State,

supra (same); James v. State, 745 So.2d 1143 (Fla. 1st DCA 1999) (same). 

Although the First DCA did not explain its decision, thisCourt should presume

that the First DCA rejected the claim based on the procedural bar. The Supreme

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Court and the Eleventh Circuit have instructed that where there is an unexplained

state decision, or no state ruling at all, on a federal claim that was clearly procedurally

barred in the state court, a federal habeas court should presume that the state court

relied upon the procedural bar in rejecting the claim. Coleman v. Thompson, 501 U.S.

at 740 (holding that state supreme court’s three-sentence dismissal order granting

State’s motion to dismiss (which was based solely on a state procedural ground) but

not expressly stating that the dismissal was based on the state procedural ground,

rested on independent and adequate state procedural ground precluding federal

habeasreview; petitioner’s state court appeal was clearly untimely, State’s motion to

dismiss was based solely on petitioner’s filing his appeal late, and state court’s

decision did not “fairly appear” to rest primarily on federal law or to be interwoven

with such law); Kight v. Singletary, 50 F.3d 1539 (11th Cir. 1995) (holding that

petitioner’s claim was procedurally defaulted, where petitioner filed state habeas

petition in Florida Supreme Court raising a claimthat was clearly procedurally barred

and Florida Supreme Court summarily denied the petition: “[A]lthough the state

court summarily denied Kight’s petition, there is nothing in its disposition of the case

which discusses the federal grounds at issue. We thus cannot assume that had the

Florida Supreme Court explained its reasoning, it would have reached the merits of

Kight’s claim.”) (internal quotation marks and citation omitted); Tower v. Phillips,

7 F. 3d 206, 211 (11th Cir. 1993) (holding that petitioner’s claims were procedurally

defaulted, where petitioner filed two postconviction motions in Florida state court

seeking to vacate his sentence on grounds which were procedurally barred and the

state court never ruled on the claims: “[W]e may not assume that had the state court

issued an opinion, it would have ignored its own procedural rules and reached the

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merits of this case. In fact, the most reasonable assumption is that had the state court

ruled, it would have enforced the procedural bar.”); see also, e.g., Creed v. Dep’t of

Corr., 330 F. App’x 771, 772 (11th Cir. 2009) (“We have held that, where the

existence of a procedural bar is clear and no state court has given any rationale for its

summary disposition of the defendant’s claim, we will not presume that’“had the

[state court] explained its reasoning, it would have reached the merits of [the

defendant’s] claim.’”) (quoting Kight, 50 F.3d at 1545); Sharpe v. McDonough, No.

4:05cv164/RH/WCS, 2006 WL 2038562, at *3 (N.D. Fla. 2006) (holding that

petitioner procedurally defaulted federal claim; petitioner presented claim on direct

appeal, State argued that the claim could not be heard on the merits because it was not

preserved for appellate review, and First DCA affirmed without an opinion: “Under

these circumstances, it must be presumed that the First District Court of Appeal relied

upon the procedural bar.”); Oberwise v. Sec’y, Dep’t of Corr., No. 8:11cv1124, 2012

WL 527173, at *8 (M.D. Fla. 2012) (finding federal claim procedurally defaulted

where there was no objection at trial, State argued on direct appeal that claim was

procedurally barred, and state appellate court per curiam affirmed without written

opinion; “The state appellate court’s per curiam affirmance on direct appeal operates

as an acceptance of the procedural bar. Where a claim is rejected without opinion,

and the existence of procedural bar is clear, federal courts on habeas review will not

assume that the state appellate court would have reached the merits of the claimrather

than rejecting it as being procedurally barred.”).

Petitioner does not show cause and prejudice to overcome his procedural

default, and does not meet the miscarriage of justice exception. With regard to the

latter, petitioner has not come forward with new reliable evidence of his actual

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innocence. The Court has reviewed the “newly discovered evidence” offered in

Ground Five, and concludes that the evidence does not make it “more likely than not”

that no reasonable juror would have found beyond a reasonable doubt that petitioner

sexually battered the victim. 

Petitioner was convicted ofsexually battering the 10-year old victimby putting

his hand in her vaginal area, putting his mouth on her vagina, and uniting his penis

with her vagina and anus. The victim’s father, Mr. Baxter, testified that he had been

friends with petitioner for approximately five years prior to trial. Mr. Baxter and

petitioner were “both down on our luck at the time” and they and their wives “pooled

our resources way back then and worked our way basically out of the gutter together

and sort of cohabitated.” (Ex. M, pp. 119-20). In April of 1999, Mr. Baxter moved

his family (consisting of then-girlfriend Jeannie Bissett (“Sissy”), and six children)

from one apartment to another within the same complex, but in a different building. 

(Id., pp. 120-21). Mr. Baxter testified that he believed petitioner was “about my age,

31.” (Id., p. 121). On the day of the move, Mr. Baxter’s 10-year old daughter, the

victim in this case, was sent to the new apartment to straighten things out, put away

clothing and the like. (Id., p. 119). Petitioner was at the new apartment to assist the

victim. At some point petitioner and the victim were alone together in the new

apartment. (Id., p. 121). Mr. Baxter testified that the victim had never lied about

being touched or anything of such nature before. (Id., pp. 126-27). 

The victim’s 9-year old brother testified that on the day of the move, he went

to the new apartment and petitioner would not let him in. Petitioner “got in the door

and shut the door and locked it.” (Id., p. 129). The brother thought that was weird,

so he left and told his stepmother “Sissy” (Jeannie Bissett) that petitioner would not

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let him into the apartment. (Id., p. 130). At Bissett’s direction, the victim’s brother

returned to the new apartment to try other doors and windows, but found they were

all locked. The victim’s brother testified that he could not see inside, because all the

windows and curtains were shut and pulled down. (Id., pp. 130-31).

The victim testified that on the day of the move, she and petitioner were alone

in the new apartment. (Id., p.1456). The victim had no worries about being alone

with petitioner, because petitioner was her father’s best friend and a friend of the

family. (Id., p. 146). The victim was putting clothes away when petitioner

approached her and started taking her clothes off, despite her repeatedly telling him

to stop. (Id., pp. 146-47). Petitioner told the victim “not to tell anyone or she would

be hurt.” (Id.). Petitioner took the victim’s shirt and shorts off, laid the victim on the

bed, then took his black shorts and black underwear off. (Id., pp. 147, 149-50). The

victim testified: “He would try to put his dog [penis] into my private [vagina] but it

wouldn’t go in so he put it in my butt.” (Id. p. 149). Petitioner also put his hands and

mouth on the victim’s “private.” (Id., pp. 150-51). As this was going on, the victim’s

brother knocked at the door. (Id., p. 151). The victim ran to the bathroom to put her

clothes on and yelled to her brother that she would be out in a minute. (Id., p. 152). 

The victim and petitioner then returned to the old apartment. (Id., p. 153). The victim

testified that her stepmother Sissy (Ms. Bissett) noticed that the victim’s shirt was on

backwards and inside out. The victim did not immediately tell anyone about the

incident because she “wasscared he would actually hunt me down and hurt me.” (Id.,

pp. 52-54). The first person the victim told about the incident was Bruce, another

family friend, who was 19. The victim said she was flirting with Bruce one day –

“scooted next to him on the couch” – and told him that “David would start taking off

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my clothes and that he has done bad things to me and that’s what I told Bruce.” The

victim then told her stepmother Sissy. (Id., pp. 153-54).

The victim testified about a prior incident where she lied to her parents. The

victim would babysit for another couple named “David [Lockheart] and Carrie,” and

sometimes sleep over. David Lockheart played in a band with the victim’s father. 

The victim thought David Lockheart and Carrie caught her spying on them as they

were having sex, so the victim lied to her parentsto avoid getting into trouble, saying

that they asked her to watch them. The victim later told her parentsthatshe lied. (Id.,

pp. 123-125, 137-40, 158-59). 

Petitioner took the stand and testified that he had known the Baxter family for

five years, and that he and his wife lived with Mr. Baxter and Baxter’s wife at one

point. (Id., p. 167). Petitioner acknowledged that he was alone in the new apartment

with the victimfor about 15 minutesin order to help with the move. Petitioner denied

doing anything improper with the victim. (Id., pp. 168-69). Petitioner testified to his

two prior felonies. (Id., p. 171).

The jury had to decide whether it believed the victim, who admitted that she

previously lied about adults inviting her to watch them have sexual intercourse, or

petitioner, who admitted being alone with the victim for 15 minutes on the day in

question but otherwise denied all of the allegations. The State argued that the jury

should believe the victim, because there was no way she could have known about the

things she described unless petitioner actually did them to her. The State further

argued that petitioner was less credible than the victim, because he had a reason to

lie while the victim had no incentive to lie. The jury believed the victim.

TheCourt has reviewed petitioner’s “newly discovered evidence” to determine

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whether it meets Schlup’s threshold to invoke the miscarriage of justice exception,

and finds that it does not. Petitioner’s newly discovered evidence is that just a few

weeks after he was sentenced, another man (Robert Carlos Carter) was arrested and

charged with committing “similar” (according to petitioner) acts on the same victim. 

This man allegedly confessed and admitted that he had had an ongoing “relationship”

(according to petitioner) with the victim, which included paying her money each

week for her silence. According to petitioner, this evidence severely discredits the

State’s arguments that: (1) the victim was an innocent child who used innocent

language and was an otherwise normal girl except for the fact that she had been

subject to petitioner’s attack; (2) the only way the victim could have known about the

things she described is if petitioner did them to her; and (3) the victim had no

incentive not to tell the truth. Petitioner contends that had he known of this ongoing

“relationship” between the victim and Robert Carter, he could have presented

evidence demonstrating that: (1) the victim’s portrayal at trial that she was an

innocent girl lacked credibility, (2) perhaps the events did happen but the victim

changed the name of the perpetrator, and (3) the victim was lying about the identity

of the perpetrator in order to protect Robert Carter or her source of income. 

Petitioner’s newly discovered evidence also includes an allegation that after trial,

petitioner learned that another man, David Lockheart, made a sexual advance on the

victim prior to petitioner’s attack. 

Petitioner presented this “newly discovered evidence” to the state court in his

Rule 3.850 motion. The state postconviction court held an evidentiary hearing on

April 18, 2008, to allow petitioner to factually develop his claim. (Doc. 16, Ex. M,

pp. 474-518). Petitioner testified and submitted the deposition testimony of the

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victim, which was taken prior to the evidentiary hearing. The state court concluded

that the newly discovered evidence about Robert Carter and David Lockheart was not

relevant or material to any issue in the case, was not inconsistent with any of the

issues raised by the State in support of the jury verdict, and did not go to the merits

of the case against petitioner. (Ex. M, pp. 461-63). 

The undersigned reaches the same conclusion upon independent review of

petitioner’s newly discovered evidence (petitioner’s allegations provided in Ground

Five as well as the evidence developed at the Rule 3.850 evidentiary hearing). The

unrefuted evidence at the postconviction evidentiary hearing establishes that the acts

of abuse committed on the victim by Robert Carter were committed after the incident

involving petitioner. (Doc. 16, Ex. N, Dep. of A.B. at 27, 28, 29, 34). The victim

testified to that fact, and her testimony was corroborated by the charging documents

in petitioner’s criminal case and Mr. Carter’s criminal case. Petitioner’s attack on the

victim occurred between April 2, 1999 and April 30, 1999. (Ex. C, pp. 19, 35-36; Ex.

J, p. 63). Petitioner’s trial was held on February 8, 2000. (Ex. M, p. 102). Robert

Carter’s sexual abuse occurred during the months of March or April of 2000. (Ex. N,

Evidentiary Hearing Defense Exhibit 3, Amended Information filed in State of

Florida v. Robert Carlos Carter, Bay County Circuit Court Case No. 00-1226G). 

In addition, the victim’s unrefuted postconviction deposition testimony

established that she did not have a “relationship” with Robert Carter. (Ex. N, Dep.

of A.B. at 15-16). Further, the sexual acts by Robert Carter bore no relation to the

sexual acts committed by petitioner. Robert Carter’s sexual abuse occurred when the

victim was with her friend Natasha, in an abandoned house, and involved Carter

touching and “messing around” with the victim and Natasha. (Id., pp. 18-20). Mr.

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Carter’s sexual abuse involved placing his mouth and tongue in the victim’s vaginal

area, trying to penetrate the victim’s vagina with his fingers and touching the victim’s

breasts. (Id., pp. 15, 17-20). The nature of Mr. Carter’s sexual abuse was unlike

petitioner’s in that Mr. Carter made no attempt to use his penis in intercourse with the

victim. (Id.). There are no inconsistencies in the victim’s description of the acts of

abuse committed by Robert Carter and those committed by petitioner. Nothing ties

the sexual abuse by Mr. Carter with the sexual battery committed by petitioner, nor

does the evidence about Carter’s sexual abuse establish an issue that the victim was

having a relationship with another man at the time petitioner attacked her. 

The victim’s unrefuted postconviction testimony concerning David Lockheart

was that Lockheart once tried to “mess with” the victim, but that Lockheart did not

make sexual contact. (Ex. N, Dep. of A. B. at 38). Specifically, on one occasion

prior to the incident involving petitioner, Mr. Lockheart put his arm around the

victim, placed his hand on her leg and started to move his hand up her leg. (Id., pp.

38-40). The victim immediately ran out of the room and told her father. The victim’s

father immediately kicked Mr. Lockheart out of the house. (Id., p. 41). This incident

was the only time Mr. Lockheart made a sexual advance on the victim. (Id., pp. 37,

39, 51). Nothing ties this sexual advance by Mr. Lockheart with the sexual battery

committed by petitioner, nor does the evidence about Lockheart’s sexual advance

establish an issue that the victim was having a relationship with another man at the

time petitioner attacked her. 

The Court is further mindful of the fact that other evidence presented at trial

corroborated the victim’s testimony: (1) the victim’s family noticed that her shirt was

on inside out and backwards following petitioner’s attack, and (2) the victim’s

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brother’s testified that petitioner denied him entry into the new apartment on the day

of the incident. 

Petitioner’s evidence is not relevant to any issue in petitioner’s case, is not

inconsistent with any of the issues raised by the State in support of the jury verdict,

and falls far short of showing that had the jury heard about Mr. Lockheart’s prior

sexual advance and Mr. Carter’s subsequent sexual abuse, it is more likely than not

that no reasonable juror would have convicted petitioner. Petitioner has not excused

his procedural default, and is not entitled to federal habeas review of his due process

claim raised in Ground Two.

Ground Three Ineffective Assistance Of Trial Counsel For Failing To Subpoena

Bruce Carter To Testify

Petitioner claims trial counsel was ineffective for failing to call Bruce Carter

to testify to the statements the victim made to him about petitioner’s sexual battery.

(Doc. 1, p. 5). Petitioner raised this claim in his Rule 3.850 motion. The state

postconviction court denied relief (ex. J, p. 14), and the First DCA affirmed,

explaining:

As for the ineffective assistance of counsel claims, we find them

both to be without merit. In the first claim, Appellant alleges that

defense counsel should have called the 19-year-old man to whom the

victim first reported her allegations against Appellant, because his

account of what the victim said differed from the victim’s trial

testimony. Not only did she use explicit terminology in her description,

but she also described familiarity with more acts than just those she

accused Appellant of committing at trial.

We find that Appellant has not demonstrated that he was

prejudiced by his counsel’s failure to call this witness to testify. It is

only in light of the newly discovered evidence that it appears that

counsel’s performance was deficient or that Appellant was prejudiced

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by the decision. At the time of the trial, defense counsel had no basis for

arguing that someone other than Appellant committed the acts, so there

was no reason to present even more evidence of the bad acts that

Appellant allegedly committed. It is clear from the record that counsel

investigated this other witness and specifically used the State’s failure

to call him in its case-in-chief against it. Thus, even if Appellant were

prejudiced by the failure to call this witness to testify, this is one of the

few cases in which counsel’s trial strategy is apparent from the face of

the record. Accordingly, we affirm the trial court’s denial of this claim.

Kelso v. State, 840 So.2d at 1113 (copy at Ex. K). 

The state court’s rejection of petitioner’s claim is consistent with Strickland. 

The record supports the state court’s finding that counsel knew the substance of

Bruce Carter’s proposed testimony and made a strategic decision not to call him. A

copy of Bruce Carter’s statement to police was provided to the defense during

discovery. (Ex. J, p. 19). Bruce Carter’s statement was consistent with the victim’s

testimony at trial, except that Mr. Carter described the victim as telling him not only

that petitioner tried to stick his penis “in the front first and it hurt too much, so he

took it out and stuck it in the back,” but also that petitioner taught the victim “how

to suck, fuck and a couple of new moves. . . . He taught me the 69 and how to suck

a man to get him off.” (Id.). The only benefit to be gained from Bruce Carter’s

testimony wasto attempt to impeach the victim’s credibility and to show thatshe was

not asinnocent as the State portrayed her (i.e., she wasfamiliar with more sexual acts

than those petitioner committed). Carter’s testimony was potentially highly

damaging, however, because it corroborated the victim’s testimony (with some detail)

that petitioner united his penis with her vagina and penetrated her anus. 

As evidenced by the trial transcript, defense counsel chose to rely on other

evidence of impeachment and sexual knowledge (the victim spying on the couple

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having sex and then lying about it) which enabled him to get the substantive benefit

of Bruce Carter’s testimony without the potential damage, and which also enabled

counsel to use the State’s failure to call Bruce Carter against the State. Counsel

argued in closing:

Why would I suggest to you that you should not believe this child. 

Because this child has admitted to you that she makes up stories about

sexual things that, no, I guess she would be 8 years old at the time, no

8 year old should know about. Remember the story that she came up

with. Why did she come up with a story. She was afraid she would get

in trouble for spying on the people having sex. She thought she got

caught and at first she says I watched them have sex, thought I got

caught. And the part about the hot dog or the dog spurting cream out. 

8 years olds shouldn’t know about that. Where did she get that

knowledge at the age of 8. She already had sexual knowledge years

before she accused Mr. Kelso of this. 

You may have wondered how could a 10 year old child come up

with details like this. This is a knowledgeable child to come up with

this. But she made up this story and she went and told Jeanie, I think

she told her dad, that was wrong, she told Jeanie, the stepmom who is

really the dad’s girlfriend that lives in the home with them about

watching this couple, the couple made her watch. That wasthe lie part. 

And talking about the hot dog. Then a month later of her own accord,

by the way, that’s a lie. . . . [S]he admitted that was a lie. And she

corrected and said, by the way, they didn’t make me watch, I didn’t see

anything. And then she got confused in here and I submit to you she got

caught in a lie in here, she lied in your presence. I didn’t watch them. 

Yes, I did watch them. She kept changing her story.

. . . .

Why did she make this story up. She’s at home flirting with

Bruce who is in and out of he house all the time who is 19 years old

flirting with him. She’s telling him thingslike I’ve done it with an older

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man, he showed me some moves. Why is she telling him things like

that. Apparently she desired Bruce. Although she wouldn’t admit to

that. Why else would she be telling Bruce though. Although she is not

really, why she was flirting with Bruce but she got caught, she’s come

up with this story that David did this stuff to her. Now she has to stick

with the story because she’s caught.

. . . .

What did she tell Bruce, where is Bruce. Bruce didn’t testify. How do

we know she told the same story to Bruce that she told to David. 

Because she told you so. Did she tell the same story to her father. She

told you so. Did she tell the same story to the Child Protection Team,

to the doctor. She told you so. Those people weren’t here to testify. So

it all boils down to A. B.’s testimony, 11 year old child. 

(Ex. J, pp. 99-101). 

Defense counsel’s strategy was reasonable. The strategy allowed petitioner to

receive the benefit of challenging the victim’s credibility and innocence without the

detrimental effect of the jury hearing Bruce Carter corroborate the victim’s testimony

about the sexual battery. Counsel’s strategy also enabled counsel to suggest to the

jury that the victim told Bruce Carter a different story (and that is why the State did

not call him to testify), whereby calling Carter would have revealed that the victim’s

testimony was consistent with regard to petitioner’s anal penetration and attempted

vaginal penetration. Petitioner has not shown that no reasonable attorney would have

adopted counsel’s strategy, or that counsel’s strategy prejudiced him. 

The state court’s rejection of petitioner’s claim was not contrary to Strickland,

was not an unreasonable application of Strickland, and was not based on an

unreasonable determination of the facts. Petitioner is not entitled to federal habeas

relief on Ground Three. 

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Ground Four Ineffective Assistance Of Trial Counsel For Failing To Object To

And Move For Mistrial On Prosecutor’s Improper Statements

During Closing Argument 

Petitioner claims trial counsel was ineffective for failing to object to the

prosecutor’s “improper statements” during closing argument. (Doc. 1, p. 5). 

Petitioner’s claim does not identify the allegedly improper statements. Petitioner

presented this claim to the state court in his Rule 3.850 proceeding, where he

identified the following three statements as improper:

1. The prosecutor’s statement that: “Reasonable doubt is not defined in the

statute other than to say what it is not. A reasonable doubt is not a

forced doubt, it is not a speculative doubt, it is not an imaginary doubt. 

Such a doubt should not convince you to find a person not guilty if you

have an abiding conviction of guilt.” Petitioner argued to the

postconviction court that this comment misstated the law and did not

conform with the trial court’s jury instructions defining reasonable

doubt. Petitioner argued that “[t]he prosecutor’s selective and partial

rendition of this instruction is also improper as it misleads the jury,

invades their exclusive factfinder province and puts a preconceived

misunderstanding into their minds as to this issue of law.” (Ex. J, pp. 8-

9).

2. The prosecutor’s comment on petitioner’s trial testimony that petitioner

“didn’t say anything about why she [the victim] would have made this

up, didn’t say anything about any anger, any problems between the

Defendant and the Baxters, any of them. He’s not required to tell you

anything, but he got up there and he didn’t give you any of that kind of

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information. Doesn’t have to tell you why, but, boy, there was a good

chance wasn’t there?” (Id., p. 9). Petitioner argues this comment was

improper, because he testified that he had punished the victimin the past

and that that could have been the reason for the victim blaming him. 

(Id., pp. 9-10).

3. The prosecutor’s comment: “I submit to you that there is only one

verdict in this case that is supported by the evidence and that is

demanded by the law as the judge will instruct you and that is guilty as

charged on both counts.” Petitioner argues that this comment

“impermissibly invaded the exclusive factfinding province of the jury,

made an improper demand to their civil duty by convicting and

misleading the jury into believing they had to convict as a matter of law

as given to them by the court.” (Id., p. 10). 

The state postconviction court denied relief, stating: “In ground three

Defendant alleges counsel was ineffective for failing to object or move for mistrial

based on what Defendant alleges are improper comments by the prosecutor. 

Defendant’s claims are withoutmerit. The prosecutor’s comments were not improper

and/or did not prejudice Defendant. See Trial Transcript pgs. 87-101.” (Ex. J, pp.

14-15). The First DCA affirmed without discussion. (Ex. K).

Petitioner has not shown that counsel’s failure to object was deficient or

prejudicial. The prosecutor’s statement concerning reasonable doubt is an accurate

statement of the law and is consistent with the trial judge’s instructions to the jury. 

The trial judge properly instructed the jury, in relevant part: “A reasonable doubt is

not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt

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must not influence you to return a verdict of not guilty if you have an abiding

conviction of guilt.” (Ex. J, pp. 123-24); see also Hernandez v. Fla. Dep’t of Corr.,

No. 11-13597, 2012 WL 661304, at *4 (11th Cir. Mar. 1, 2012) (unpublished

opinion) (holding that reasonable doubt instruction was proper, where it explained

that “mere possible doubt, a speculative, imaginary or forced doubt” must not

influence the jurors to return a not-guilty verdict if they have “an abiding conviction

of guilt.”).

The prosecutor’s argument in which he asked why petitioner’s trial testimony

failed to identify a motive for the victim to make up the story about petitioner abusing

her, (ex. J, p. 113), did not misstate the evidence. The argument was reasonably

inferred from the evidence and was a proper comment on petitioner’s defense at trial

that the incident never happened and was merely a story the victim made up. 

Petitioner’s brief extract of the prosecutor’s closing argument excludes that portion

where the prosecutor acknowledged the very evidence petitioner says he ignored or

missated – petitioner’s testimony that the victim was angry at him because petitioner

spanked her on one occasion:

MR. GRAMMAR [prosecutor]: “Was she angry at David Kelso. 

Well, the defendant said that he had spanked her some time long before

this incident that happened in April. So I guess it could be argued to

you that this had been a smoldering resentment from some spanking she

had long before and so finally in June she decided to make up this story

and tell. Not only would she have made up this story when she talked

to Sissy and then to the police and then about everybody else but she

also would have had to make up when this happened. She would have

had to make up, sit there and instantly when she came up with what he

did she must have come up with where it happened, when it happened,

was able to realize that in making up this story that I can connect it with

Johnny [the victim’s little brother] coming to the door and also connect

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it with my shirt being on inside out.

(Ex. J, pp. 108-09). The prosecutor did not manipulate or misstate the evidence – he

presented his reasonable impressions from the evidence and argued legitimate

inferences therefrom. There was no basis to object to the prosecutor’s statement.

The final comment at issue – the prosecutor’s comment on the proper verdict

– was also permissible. The prosecutor merely argued that the weight of the evidence

established petitioner’s guilt. See, e.g., United States v. Martinez, 412 F. App’x 189,

191 (11th Cir. 2012) (concluding that prosecutor’s remark – “I don’t think there’s any

question based on the evidence you’ve seen, I don’t think there’s any reasonable

doubt whatsoever” – could be characterized as an attempt to argue the weight of the

evidence and was not improper); United States v. Tisdale, 817 F.2d 1552, 1556 (11th

Cir. 1987) (concluding that prosecutor’s remark – “I believe the government has

proven its case beyond a reasonable doubt” – went to the weight of the evidence and

was not improper). 

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, was not based on an unreasonable application of Strickland,

and was not based on an unreasonable determination of the facts. Petitioner is not

entitled to federal habeas relief on Ground Four.

Ground Five Newly Discovered Evidence Or Facts That Could Not Have Been

Known At The Time Of Trial

Petitioner’s final claimis a substantive newly discovered evidence claimbased

on Robert Carter’s conviction of sexually abusing the victim. Petitioner asserts the

same facts and argument outlined in the Court’s miscarriage of justice analysis

discussed in Ground Two above. Petitioner alleges that just a few weeks after he was

sentenced, Robert Carter was arrested and charged with committing “similar acts” on

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the same victim, and Carter “confessed and admitted that he had an ongoing

‘relationship’ with the victim.” (Doc. 1, p. 8). Petitioner asserts that this “newly

discovered evidence” severely discredits the State’s arguments that: (1) the victim

was an innocent child except for the fact that she had been subject to petitioner’s

attack, (2) that the only way the victim could have known about the things she

described is if petitioner actually did them and (3) that the victim had no incentive to

lie. Petitioner argues that had he known “of this ongoing relationship” between

Robert Carter and the victim, he could have presented evidence demonstrating that

the victim’s portrayal of herself as an innocent girl lacked credibility, that perhaps the

events did happen but the victim changed the name of the perpetrator, and that the

victim waslying about the identity of the perpetrator to protect Robert Carter and her

source of income. (Id.). 

Claims of actual innocence based on newly discovered evidence have never

been held to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal proceeding. 

Herrera v. Collins, 506 U.S. 390, 400, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993); see

also, Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002) (“It is not our role to

make an independent determination of a petitioner’s guilt or innocence based on

evidence that has emerged since the trial.”). Federal habeas courts sit to ensure that

individuals are not imprisoned in violation of the Constitution, not to correct errors

of fact. See Herrera, 506 U .S. at 400. A claim of innocence is not itself a

constitutional claim, but instead a gateway through which a habeas petitioner must

pass to have his otherwise barred constitutional claim considered on the merits.

Schlup v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). 

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Petitioner has not demonstrated that an independent constitutional violation occurred

at his criminal trial. Petitioner’s freestanding claim of actual innocence/newly

discovered evidence provides no plausible basis for federal habeas relief. 

CERTIFICATE OF APPEALABILITY

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

District Courts provides: “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” If a certificate is

issued, “the court must state the specific issue or issues that satisfy the showing

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

even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

The petitioner in this case fails to make a substantial showing of the denial of

a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

483-84, 120 S. Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning

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

appealability in its final order.

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

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

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

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

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

recommendation.

Accordingly, it is ORDERED:

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

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substituted as respondent in this cause. 

And it is respectfully RECOMMENDED:

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

conviction and sentence in State of Florida v. David Wayne Kelso in the Circuit Court

for Bay County, Florida, Case No. 99-1563 be DENIED, and that the clerk be

directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 6th day of July, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

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

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

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

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

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

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