Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

LAMAR PLAYER,

Petitioner,

v. CASE NO. 1:10-cv-105-MP-GRJ

SECRETARY, DEPT. OF

CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

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

Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 11.) Respondent filed a response

and an appendix with relevant portions of the state-court record. (Doc. 21.) Upon due

consideration of the Petition, the Response, and the state-court record, the undersigned

recommends that the Petition be denied.

1

Summary of State-Court Proceedings

The instant Petition stems from violation of probation (VOP) proceedings in

Alachua County, Florida. Petitioner was charged in December 2004 with possession of

cocaine with intent to sell, within 1000 feet of a place of worship. (Resp. Ex. A.) The

state filed an amended information in March 2005 charging Petitioner with tampering

with evidence, possession of a controlled substance, and possession of cocaine with

intent to sell, within 1000 feet of a place of worship. (Resp. Ex. A.) Petitioner pled no

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.
Page 2 of 19

contest to the possession of cocaine with intent to sell charge, without the place of

worship enhancement, as well as possession of a controlled sentence. Petitioner was

sentenced to 9 months incarceration followed by two years of drug offender probation. 

(Resp. Ex. B.) Petitioner did not appeal his conviction or sentence.

Petitioner was charged with violating his probation in July 2005. (Resp. Ex. C.) 

The petition alleging violation of probation – which was subsequently amended several

times – alleged that Petitioner had failed to pay the costs of his supervision ($10.00 per

month), had committed a criminal offense of Possession of a Controlled Substance,

Possession of Drug Paraphernalia, and Trespass on Posted Property, had possessed

drugs as indicated by a positive result for cocaine on a urinalysis, and had failed to

successfully complete drug treatment. After a hearing on November 9 and December

15, 2005, Petitioner was found to have violated his probation and probation was

revoked. The state court sentenced petition to consecutive terms of 10 years and 5

years incarceration. (Resp. Ex. C-F.) On appeal, the First District Court of Appeal

(“DCA”) reversed and remanded the case on February 16, 2007. See Player v. State,

949 So. 2d 306 (Fla. 1 DCA 2007). The First DCA found that the state had failed to st

prove that Petitioner had violated probation by possessing cocaine. The First DCA also

found that the probation officer’s testimony alone regarding the urinalysis result – without

the actual test results – was insufficient to find a violation of probation for possession of

drugs. The First DCA remanded the case for further proceedings. 

On remand, the trial court held a second hearing on June 21, 2007, and again

found that Petitioner had violated his probation. (Resp. Ex. N.) The court imposed the

same sentence. (Resp. Ex. N.) The First DCA affirmed without opinion, with the

Case No: 1:10-cv-105-MP-GRJ
Page 3 of 19

mandate issuing on September 17, 2008. (Resp. Ex. N, S; Player v. State, 989 So. 2d

1188 (Fla. 1 DCA 2008)). st

Petitioner filed a motion for postconviction relief under Florida Rule of Criminal

Procedure 3.850 on December 23, 2008, but that motion was dismissed without

prejudice. (Resp. Ex. T.) Petitioner filed an amended motion on January 5, 2009, which

was summarily denied. (Resp. Ex. T.) The trial court also denied Petitioner’s motion for

rehearing. (Resp. Ex. T.) The First DCA affirmed the trial court’s denial of relief without

opinion, and the mandate issued on November 23, 2009. (Resp. Ex. X, Player v. State,

21 So. 3d 816 (Fla. 1 DCA 2009)). st

The instant Petition followed. Petitioner asserts two claims: 1) that the trial court

erred by denying his postconviction motion without an evidentiary hearing; and 2) that

the First DCA erred by summarily affirming the denial of postconviction relief. (Doc. 21.) 

Respondent concedes that the Petition is timely, but opposes the Petition on the merits

and on procedural grounds. (Doc. 21.) 

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). The

requirement that a federal habeas corpus petitioner exhaust available state court

remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents”

Case No: 1:10-cv-105-MP-GRJ
Page 4 of 19

his claim in each appropriate state court, alerting that court to the federal nature of the

claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A

petitioner must “do more than scatter some makeshift needles in the haystack of the

state court record”; a reasonable reader should be able to understand the factual and

legal bases for the claim. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.2005)

(quotations and citations omitted). 

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

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).

Case No: 1:10-cv-105-MP-GRJ
Page 5 of 19

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

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

Case No: 1:10-cv-105-MP-GRJ
Page 6 of 19

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).

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

Case No: 1:10-cv-105-MP-GRJ
Page 7 of 19

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

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.

Collateral Review of Constitutional Claims

Because Petitioner’s claims allege ineffective assistance, a review of Strickland is

appropriate. 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

Case No: 1:10-cv-105-MP-GRJ
Page 8 of 19

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

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

Case No: 1:10-cv-105-MP-GRJ
Page 9 of 19

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. 

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

Case No: 1:10-cv-105-MP-GRJ
Page 10 of 19

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

federal habeas proceeding.

Claim 1: State Trial Court’s Denial of Petitioner’s Postconviction Motion

Petitioner asserts that the state trial court erred by denying Petitioner’s motion for

post-conviction relief “without conducting an Evidentiary Hearing upon Petitioner’s

Ineffective Assistance of Counsel Allegations without attaching portions of records that

conclusively rebuttal the Allegations raised.” (Doc. 11, at 5.) Defendant raised a

number of claims of ineffective assistance of counsel in his post-conviction 3.850

motion, which were denied by the trial court. In the instant federal habeas petition,

Petitioner appears to argue that the state court should have granted him an evidentiary

hearing and did not point to sufficient record evidence in denying his ineffective

assistance of counsel claims.

Respondent argues that insofar as Petitioner’s first claim “relies on an alleged

defect in a collateral proceeding,” the claim is not cognizable on collateral review. See

Alston v. Dep’t of Corr., Fla., 610 F.3d 1318, 1326 (11 Cir. 2010) (finding that because th

state “collateral proceedings are a state created right,” the petitioner’s “challenge to the

state post-conviction proceedings does not provide a basis for federal habeas relief.”). 

To the extent that Petitioner asserts that the state court erred by not granting him an

evidentiary hearing and not attaching portions of the state-court record to its decision,

these are challenges to the post-conviction proceedings and are not cognizable on

federal habeas review.

Because Petitioner is proceeding pro se, however, the Court will liberally construe

his motion to assert the same claims of ineffective assistance of counsel that Petitioner

Case No: 1:10-cv-105-MP-GRJ
Page 11 of 19

raised in his state post-conviction motion under Rule 3.850. Petitioner claims that

counsel who represented him in the violation-of-probation proceedings was ineffective in

a number of different ways.

Ineffective Assistance of Counsel for Failure to Investigate Charge of Failing 

to Pay Costs of Supervision

First, Petitioner was charged with violating his probation because he had failed to

pay the costs of his supervision, $10.00 per month. Petitioner alleged in his 3.850

motion that his counsel had failed to properly investigate this charge, because counsel

should have questioned the probation officer as to whether Petitioner “had been granted

a limited release from all costs/fees associated with the probation” because Petitioner

had recently been released from prison. (Doc. 11, at 5.) Petitioner asserts that his

counsel should have requested a continuance in order to investigate these allegations

further. The state court denied this claim on the grounds that being recently released

from prison is not a “viable defense to the charge of failing to pay court costs.” (Resp.

Ex. T, at 20.) Accordingly, there was no reason for Petitioner’s counsel to question the

probation officer as to whether Petitioner had received a “release” from paying the costs

of supervision. In any case, Petitioner presents no evidence that such a release is

possible or that he had received any release. Petitioner has failed to show that his

counsel’s performance was deficient in this respect. 

Even if counsel’s performance was deficient in failing to question the probation

officer regarding the existence of a “release” from payment of the costs of supervision,

Petitioner has failed to show that he was prejudiced as a result of this alleged failing. At

the hearing on Petitioner’s violation of supervision, his probation officer testified that he

Case No: 1:10-cv-105-MP-GRJ
Page 12 of 19

had counseled Petitioner upon the commencement of supervision that he was required

to pay the costs of supervision. (Resp. Ex. D, at 8-10.) The probation officer stated that

he believed that Petitioner understood his payment obligations, but that he still failed to

make the required payments despite having an income of $900 per month. Id. at 9-10. 

The probation officer’s testimony made it clear that Petitioner was required to pay the

costs of supervision and that he understood that obligation. Even if Petitioner’s counsel

had questioned the probation officer as to the existence of the alleged “release,” then,

the outcome of the proceeding would have been the same.

Ineffective Assistance of Counsel for Failure to Investigate New-Law Violations

Petitioner next brings a number of claims related to his counsel’s alleged failure to

investigate the new-law violations charged in the petition – Possession of a Controlled

Substance, Possession of Drug Paraphernalia, and Trespass on Posted Property. 

Petitioner’s allegations related to his counsel’s performance are hardly a model of clarity,

but the Court will attempt to generously construe the allegations to raise the following

claims: counsel was ineffective for challenging the evidence supporting the violation of

probation charges; counsel was ineffective for failing to call witnesses to testify on

Petitioner’s behalf; counsel was ineffective for failing to object to hearsay evidence and

inappropriate comments on the part of the prosecutor; counsel was ineffective because

he had insufficient time to prepare for the hearing, failed to introduce himself to

Petitioner at the county jail prior to the hearing, and failed to request a continuance;

counsel was ineffective for failing to permit Petitioner to present information in his own

defense; and counsel was ineffective for failing to call supporting witnesses at

Petitioner’s re-sentencing.

Case No: 1:10-cv-105-MP-GRJ
Page 13 of 19

Petitioner alleges that his counsel was ineffective for not challenging the evidence

supporting the violation of probation charges. Specifically, Petitioner alleges that his

counsel “knew or should have known that evidence relied upon was not competent

enough to support revocation of probation the affidavit based upon the alleged drug and

trespassing charges, which the appellate court reversed the drug charges but never

entertained or adjudicated the trespassing charge that was jointed with the condition #5.” 

(Doc. 11, at 6.) The Court construes this statement as an argument that his counsel

should have challenged the sufficiency of the evidence supporting the drug and

trespassing charges when the violation of probation charges were heard on remand. 

As an initial matter, the trial court did not hear new evidence following remand

from the First DCA. The First DCA held that the state had failed to prove that Petitioner

had violated probation by possessing cocaine. Player v. State, 949 So. 2d 306 (Fla. 1st

DCA 2007). The First DCA also found that the probation officer’s testimony alone

regarding the urinalysis result – without the actual test results – was insufficient to find a

violation of probation for possession of drugs. Id. The First DCA explicitly stated that it

“affirm[ed] as to all other issues,” including the failure to pay costs of supervision and the

charge of trespass. Id. at 306. Accordingly , the December 21, 2007 hearing at the trial

court was merely a re-sentencing hearing, not a de novo hearing on the violation of

probation. The trial court judge stated that the First DCA 

remanded back for further proceedings, but didn’t have any other specific

instructions except to state that the charge of possession of cocaine and

the VOP charge of testing positive were not sufficient to find revocation of

probation. The other two charges, which they did not address, were the

cost of supervision and the trespass.

(Resp. Ex. N, at 81.) Accordingly, the trial court judge addressed only the question of

Case No: 1:10-cv-105-MP-GRJ
Page 14 of 19

whether he “would still revoke probation on the trespass. And the answer is yes, I

would.” (Resp. Ex. N, at 81.) 

In other words, at the re-sentencing hearing, there was no reason for Petitioner’s

counsel to challenge the sufficiency of the evidence supporting the drug-related

violations, because the First DCA had already found insufficient evidence to support

those violations. The trial court re-sentenced Petitioner based on the other violations –

the trespass and the failure to pay supervision costs – not the drug violations. Because

the drug violations were no longer at issue at re-sentencing, the failure of Petitioner’s

counsel to challenge evidence supporting those violations could not have been deficient

performance.

 Petitioner further alleges that his counsel was ineffective for failing to challenge

the sufficiency of the evidence supporting the charge of trespass, and alleges that his

counsel was ineffective for failing to call witnesses to testify on Petitioner’s behalf. As

previously noted, the state trial court heard no new evidence at Petitioner’s resentencing. (Resp. Ex. N.) Accordingly, Petitioner’s counsel had no opportunity to

challenge the sufficiency of the trespass charge at the re-sentencing. In denying

Petitioner’s 3.850 motion, the state trial court noted that 

[n]ew evidence or legal arguments are not addressed at a re-sentencing

hearing. At that point a defendant’s guilt has already been determined,

and the only issue to be addressed by the court is the defendant’s

sentence. Therefore it would not have been appropriate for Defendant’s

counsel at re-sentencing to present any new evidence or arguments

regarding the facts of Defendant’s case.

(Resp. Ex. T, at 20.)

At the re-sentencing hearing, the state trial court referred to the transcript of the

Case No: 1:10-cv-105-MP-GRJ
Page 15 of 19

original hearing and found that the transcript “establishes that the trespass, in fact, was

established, it was proven.” (Resp. Ex. N, at 85.) At that original hearing, Petitioner’s

counsel did argue at length that the evidence of trespass was insufficient for the court to

find that Petitioner violated his probation. (Resp. Ex. D, at 47.) Petitioner’s counsel

argued that Petitioner was visiting his cousin at the time that he was arrested, and that

he “certainly was not trespassing.” (Resp. Ex. D, at 47.) Petitioner has pointed to no

evidence to support his argument that his counsel’s performance was deficient.

Petitioner further asserts that his counsel was deficient for failing to call

supporting witnesses at the original hearing to rebut the charge of trespass. Petitioner

asserts that his counsel should have called a “Mr. and Mrs. Johnson” of the Gardena

Gardens Apartments, who would have testified that Petitioner was visiting them and was

not trespassing. Petitioner asserts that he “could have told” his counsel about these

witnesses “had counsel inquired of his client.” (Doc. 11, at 7.) Petitioner claims that his

counsel “never consulted” him or “allowed” him to provide this information. (Doc. 11, at

6.) Petitioner provides no reason, however, for his own failure to inform his counsel that

there were potential exculpatory witnesses available. Nor does Petitioner provide any

specific facts whatsoever to support his claim that his counsel somehow prevented him

from conveying this information. In denying Petitioner’s 3.850 motion, the trial court

found that the

public defender was appointed to represent Defendant in his violation of

probation case on September 9, 2005, and Defendant was not sentenced

until December. If Defendant had information valuable to his defense, he

should have contacted his attorney with such information. An attorney

cannot be found ineffective for being unaware of facts that a defendant

did not share with him. This claim is without merit.

Case No: 1:10-cv-105-MP-GRJ
Page 16 of 19

(Resp. Ex. T, at 20.) The trial court’s finding that the performance of Defendant’s

counsel was not deficient was a reasonable application of Strickland. It was reasonable

for the trial court to find that Petitioner had a minimum level of responsibility for bringing

potential exculpatory witnesses to his counsel’s attention. Petitioner cannot show that

his counsel’s performance was deficient, and he is not entitled to relief on this claim.

Petitioner also alleges that his counsel should have called these same supporting

witnesses to testify at his re-sentencing. Petitioner asserts that the trial court should

have examined the charges against him de novo at the re-sentencing hearing, and

should have heard new evidence related to his guilt or innocence of the underlying

charges. As noted above, however, the re-sentencing hearing was simply that: an

opportunity for re-sentencing, not a chance to re-litigate the underlying issue of

Petitioner’s guilt with respect to the violation of probation. As the trial court held, denying

Petitioner’s 3.850 motion, “it would not have been appropriate for Defendant’s counsel at

re-sentencing to present any new evidence or arguments regarding the facts of

Defendant’s case.” (Resp. Ex. T, at 20.) The performance of Petitioner’s counsel was

not deficient for failing to present additional evidence at a re-sentencing hearing. To the

extent that Petitioner argues that the trial court erred by failing to treat the re-sentencing

hearing as a de novo examination of his guilt, that argument implicates purely state-law

issues and is not cognizable on federal habeas review.

Petitioner next asserts that his counsel was ineffective for failing to object to

hearsay evidence and inappropriate comments on the part of the prosecutor. Nowhere

in his petition does Petitioner point to any facts whatsoever to support these claims. 

Petitioner fails, for example, to identify the alleged “hearsay evidence” or the allegedly

Case No: 1:10-cv-105-MP-GRJ
Page 17 of 19

inappropriate comments by the prosecutor. Accordingly, the undersigned recommends

that this claim be summarily denied, because Defendant has not met his burden of

alleging “reasonably specific, non-conclusory facts that, if true, would entitle him to

relief.” Aron v. United States, 291 F. 3d 708, 715 n.6 (11 Cir. 2002) th

Petitioner next alleges that his counsel was ineffective because he had

insufficient time to prepare for the hearing, failed to introduce himself to Petitioner at the

county jail prior to the hearing, and failed to request a continuance in order to become

more prepared. Petitioner complains that his counsel was appointed immediately prior

to the hearing and could not have properly prepared himself to represent Petitioner in

such a short amount of time. These claims appear to all refer to the re-sentencing

hearing in June 2007. Again, Petitioner has failed to point to any specific facts

whatsoever to support his conclusory allegation that his counsel was unprepared for the

hearing. Petitioner’s counsel was not required to introduce himself to Petitioner in the

manner preferred by Petitioner. Nor was he required to request a continuance if he had

had sufficient time to prepare for the hearing. The undersigned recommends that this

claim be summarily denied, because Defendant has not met his burden of alleging

“reasonably specific, non-conclusory facts that, if true, would entitle him to relief.” Aron

v. United States, 291 F. 3d 708, 715 n.6 (11 Cir. 2002) th

In sum, Petitioner has failed to show that his counsel rendered ineffective

assistance under Strickland and, therefore, Petitioner is not entitled to habeas relief on

these claims.

Case No: 1:10-cv-105-MP-GRJ
Page 18 of 19

Trial Court’s Failure to Hold a Preliminary Hearing

Petitioner alleges that the trial court erred by failing to hold a preliminary hearing

to determine his ability to pay the costs of his supervision. This is a purely state law

matter, and Petitioner does not make any allegations that this alleged failure of the trial

court implicated any federal constitutional right. Accordingly, Petitioner has presented

no ground for federal habeas relief on this claim.

Claim Two: State Appellate Court’s Affirmance of Denial of Postconviction Relief

Petitioner’s second claim alleges that the state appellate court erred by affirming

the trial court’s denial of post-conviction relief, where Petitioner’s “ineffective assistance

of counsel allegations [] were not conclusively rebutted by the records of the

proceedings that were attached for appellate review.” (Doc. 11, at 12.) It appears that

Petitioner is simply asserting, as he did in Claim One, that the state court should have

granted his post-conviction motion under Rule 3.850. The bulk of Petitioner’s argument

repeats, verbatim, his ineffective assistance of counsel allegations from Claim One.

Insofar as Petitioner asserts that the state appellate court should have relied on different

records or attached different portions of the state court record to its decision, the Court

notes that a summary affirmance from the First DCA is entitled to the same deference

on federal habeas review as a written opinion. The state court is presumed to have

adjudicated the case on the merits, and is not required to produce an opinion in the form

preferred by Petitioner. See Gill v. Mecusker, 633 F.3d 1272, 1288 (11 Cir. 2011).

th

This claim fails for the same reasons discussed in detail above.

Case No: 1:10-cv-105-MP-GRJ
Page 19 of 19

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.

Accordingly, it is respectfully RECOMMENDED:

1. That the amended petition for writ of habeas corpus (Doc. 11) should be

DENIED.

2. That a certificate of appealability should be DENIED.

IN CHAMBERS this 6 day of June 2013. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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.

Case No: 1:10-cv-105-MP-GRJ