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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GERALD M. MCKIRE

Petitioner,

vs. CASE NO.: 3:10cv352/LAC/MD

KENNETH S. TUCKER,

Respondent.1

______________________________________________________________________

REPORT AND RECOMMENDATION

This case is before the court on Gerald M. McKire’s (“Mr. McKire”) August 27,

2010 petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 (doc. 1), later

amended (docs. 11 and 12). Respondent filed an answer (doc. 25) and relevant

portions of the state court record (doc. 27). Mr. McKire then filed a response (doc.

30). The matter was referred to the undersigned magistrate judge for a report and

recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After

careful consideration of all issues raised by petitioner, it is the opinion of the

undersigned that no evidentiaryhearing is required for the disposition of this matter,

Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District

Courts. It is further the opinion of the undersigned that the pleadings and

attachments before the court show that Mr. McKire is not entitled to relief, and the

petition should be denied.

Kenneth S. Tucker became Secretary of the Florida Department of Corrections on August 24, 2011,

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and is substituted as respondent.

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BACKGROUND AND PROCEDURAL HISTORY

Mr. McKire, who was incarcerated at the time of the incident, was charged with

battery on a correctional officer in case number 2006-0052CF in the Circuit Court of

Santa Rosa County, Florida, in violation of Sections 784.03 and 784.07(2)(b), Florida

Statutes (doc. 27, ex. B, p. 3). Mr. McKire was tried by a jury and found guilty of the 2

charge on March 2, 2007 (ex. B, p. 18). On the same day, the court adjudicated him

guilty under Florida law and sentenced him to a term of 5 years imprisonment with

257 days of credit time to run consecutive to the sentences then being served (ex.

B, pp. 20-25).

Mr. McKire appealed the conviction and sentence to the First District Court of

Appeal (“First DCA”) (ex. E). On October 3, 2008, the First DCA per curiam affirmed

the conviction and sentence without a written opinion. McKire v. State of Florida, 993

So.2d 520 (Fla. 1 DCA 2008) (Table) (ex. G). st

On July 28, 2009, Mr. McKire filed a motion for post-conviction relief pursuant

to Rule 3.850, Florida Rules of Criminal Procedure (ex. H, pp. 1-19). He presented

eight grounds for relief based on ineffective assistance of counsel. Id. On

November 6, 2009, the Rule 3.850 court issued an order striking insufficient claims

for post-conviction relief (seven out of the eight claims), but granted leave to amend

the motion (ex. H, pp. 20-26). Mr. McKire did not file an amended motion, and on

January 13, 2010, the Rule 3.850 court denied all of Mr. McKire’s grounds for relief

and entered a written order (ex. H, pp. 27-32). Mr. McKire then filed a motion for

rehearing before the Rule 3.850 court, which was denied (ex. H, pp. 41-54).

On March 8, 2010, Mr. McKire filed a notice of appeal to the First DCA (ex. H,

pp. 55-56). On May 25, 2010, the First DCA per curiam affirmed the Rule 3.850 court’s

decision without a written opinion (ex. J). The mandate issued on June 22, 2010 (ex.

K). Respondent concedes that the petition is timely (doc. 25, p. 3).

Hereinafter all references to exhibits will be to doc. 27.

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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

(1996). In relevant part, Section 2254 provides:

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

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

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

court proceedings unless the adjudication of the claim -- 

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d) (2006).

The Supreme Court explained the framework for Section 2254 review in

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

2254(d)(2) must be divided into two separate inquiries: 

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

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

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

differently than this Court has on a set of materially indistinguishable

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

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

governing legal principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

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

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

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

Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at

403–13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg, and

Breyer.

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Id. at 412–13 (O’Connor, J., concurring). The federal habeas court “determining

whether [it] should overturn the state courts’ [sic] rejection of the claim at issue”

should “review the highest state court decision disposing of the claim.” Harvey v.

Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see also Knowles v.

Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 173 L. Ed. 2d 251(2009).

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

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

court proceeding, the federal court should first ascertain the “clearly established

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

Supreme Court at the time the state court renders 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 the Supreme Court’s holding embodies the legal principle;

dicta in opinions is not controlling. 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). Furthermore, a federal court of appeals decision, “even a

holding directly on point,” cannot clearly establish federal law for Section 2254

purposes. Bowles, 608 F.3d at 1316 (citing Renico v. Lett, __ U.S. __, 130 S. Ct. 1855,

1866, 176 L. Ed. 2d 678 (2010)).

After identifying the governing legal principle, the court determines whether

the state court adjudication is “contrary to” clearly established Supreme Court case

law, either because the state court “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases,” or because it “confronts a set of facts that is

materially indistinguishable from a decision of [the] Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005);

see 28 U.S.C. § 2254(d)(1). The state court does not need to cite to Supreme Court

cases or even be aware of them, “so long as neither the reasoning nor the result of

the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct.

362, 154 L. Ed. 2d 263 (2002). If the state court decision is contrary to clearly

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established federal law, the federal habeas court must independently consider the

merits of petitioner’s claim.

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

federal habeas court must then determine whether the state court “unreasonably

applied” the governing legal principles set forth in the Supreme Court’s cases. 28

U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412–13. The federal court defers to the

state court’s reasoning unless the state court’s application of the legal principle was

“objectively unreasonable” in light of the record the court had before it. Williams,

529 U.S. at 409; see Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1400, 179 L. Ed.

2d 557 (2011) (holding new evidence introduced in federal habeas court has no

bearing on Section 2254(d)(1) review, rejecting dicta in Holland v. Jackson, 542 U.S.

649, 652, 124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam)). A state court’s

application of federal law is objectively unreasonable 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.” Brown, 544 U.S. at 141. However, a state court 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,

556 U.S. at 261. Notably, even a state court’s incorrect application of law will not

warrant federal habeas relief unless it is also objectively unreasonable. See

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L. Ed. 2d 624 (2011).

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the

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

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

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

application” clause, the Supreme Court applies the “objectively unreasonable” test

to the state court’s factual determination. Miller-El v. Cockrell, 537 U.S. 322, 324, 123

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S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (dictum). 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); 28 U.S.C. § 2254(e)(1).

The Eleventh Circuit in Gill clarified how the federal habeas court should

address the “unreasonable application of law” and the “unreasonable determination

of facts” tests. Id. at 1288-89. Mr. Gill’s petition alleged he was denied his Sixth

Amendment right to counsel. Id. at 1288. The Eleventh Circuit granted a limited 4

Certificate of Appealabilityto determine the precise issue of the validityof “summary

affirmance by a state appellate court of a trial court’s decision based on potentially

flawed reasoning.” Id. at 1286.

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The Gill court acknowledged the well-settled principle that summary

affirmances, such as the Second DCA’s, are presumed adjudicated on the merits and

warrant deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85 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

 Mr. Gill twice moved the trial court in pretrial hearings to allow him to waive his Sixth Amendment

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right to counsel. Gill, 633 F.3d at 1275-84; U.S. Const. amend. VI. The trial court denied the first

motion concluding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill, 633 F.3d

at 1278; see Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (accused

must “knowingly and intelligently” waive representation). The trial court also denied the second

motion, but allowed Mr. Gill to act as co-counsel for himself only for determining trial strategy. Gill,

633 F.3d at 1284. After Mr. Gill was convicted and timely requested post-conviction relief, the Florida

Second District Court of Appeal (“Second DCA”) affirmed without opinion the trial court’s denial of

said relief. Id. at 1284-85. Mr. Gill then filed a petition in federal court, which the district court denied

with prejudice. Id.

The Eleventh Circuit reviewed Mr. Gill’s claims that the district court erred in its habeas corpus

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analysis as to two issues. First, Mr. Gill argued that the habeas court erred by “failing to review on

the merits the ‘legally and factually unsupported rationale’ articulated by the state trial court.” Gill,

633 F.3d at 1288. Second, Mr. Gill argued the habeas court’s decision was per se erroneous because

it “relied on a finding that the state court did not make.” Id. Specifically, Mr. Gill averred that the trial

court denied relief by finding that his Sixth Amendment waiver was not knowing and intelligent, while

the federal district court denied relief by finding that he “never clearly and unequivocally” waived his

right to counsel. Id.

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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 in Gill

concluded that district courts must apply the plain language of Section 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 (agreeing with the Fifth Circuit court in

Neal, 286 F.3d at 244-45). In short, the Eleventh Circuit held that “the statutory

language focuses on the result, not on the reasoning that led to the result.” Id.6

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 in order to answer “the only question that

matters[:]” whether the state court’s decision was objectively unreasonable.

Lockyer, 538 U.S. at 64; Gill, 133 F.3d at 1290.

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

Under §2254, a habeas court must determine what arguments or

theories supported or . . . could have supported [ ] the state court’s

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

 Applying this analysis, the Eleventh Circuit rejected Mr. Gill’s claim that the district court erred by

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relying on different grounds than the trial court because Mr. Gill’s basic premise—the Second DCA’s

summary affirmance relied on the trial court’s statements from the bench—was not dispositive. Id.

at 1288.

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could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

Harrington, 131 S. Ct. at 786. Federal habeas relief is precluded “so long as

fairminded jurists could disagree on the correctness of the state court’s

conclusion.” Id. (internal quotations omitted)

The federal habeas court will take the final step of conducting an independent

review of the merits of petitioner’s claims only if it finds that petitioner satisfied

AEDPA and Section 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 953-54, 127

S. Ct. 2842, 168 L. Ed. 2d 662 (2007). The writ will not issue unless 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). When performing its review under Section

2254(d), the federal court must resolve all claims for relief regardless of whether

habeas relief is granted or denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992)

(en banc); see also Puiatti v. McNeil, 626 F.3d 1283, 1307 (11th Cir. 2010). The

federal court must also bear in mind that state court factual determinations are

presumed to be correct, and petitioner bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also

Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002) (AEDPA provides for a “highly

deferential standard of review” for factual determinations made by a state court);

Jackson v. Anderson, 112 F.3d 823, 824-25 (noting petitioner has heavier burden to

overcome the presumption of factual correctness). “If this standard is difficult to

meet, that is because it was meant to be.” Harrington, 131 S. Ct. at 786.

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel

Petitioner contends in his grounds for relief before this court that he was

denied his constitutional right to the effective assistance of counsel. The

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Constitution provides that: “[i]n all criminal prosecutions, the accused shall enjoy

the right. . .to have the Assistance of Counsel for his defence.” U.S. Const. amend.

VI. To prevail on a claim of ineffective assistance of counsel, petitioner must prove

that: (1) “counsel’s representation fell below an objective standard of

reasonableness;” and (2) “there is a reasonable probability that, but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 677-78, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); see also Berghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L.

Ed. 2d 1098 (2010). Reasonableness of representation does not implicate what is

possible, prudent, or even appropriate, but only what is “constitutionally

compelled.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing

Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987)).

In evaluating counsel’s performance, reviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable,

professional assistance. Chandler, 218 F.3d at 1314. Courts must make “every

effort. . .to eliminate the distorting effects of hindsight” and must evaluate the

reasonableness of counsel’s performance “from counsel’s perspective at the time.” 

Strickland, 466 U.S. at 689; see also Chandler, 218 F.3d at 1314 (the Strickland

standard compels courts to “avoid second-guessing counsel’s performance”). The

Eleventh Circuit has summarized the standard and the burden:

Even if many reasonable lawyers would not have done as defense

counsel did at trial, no relief can be granted on ineffectiveness grounds

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

would have done so. This burden, which is petitioner’s to bear, is and

is supposed to be a heavy one. And, “[w]e are not interested in grading

lawyers’ performances; we are interested in whether the adversarial

process at trial . . . worked adequately.” See White v. Singletary, 972

F.2d 1218, 1221 (11th Cir. 1992). Therefore, the cases in which habeas

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

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Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also Waters v. Thomas, 46 F.3d

1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done more);

Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (“. . .the Constitution requires

a good deal less than maximum performance.”)

In order to meet the prejudice prong of the Strickland standard, petitioner

must allege more than that the unreasonable conduct might have had “some

conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693;

see also Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005). 

Petitioner must show a reasonable probability exists that the outcome would have

been different. Frazier v. Bouchard, 661 F.3d 519, 532 (11th Cir. 2011); Marquard, 429

F.3d at 1305 (petitioner’s burden under the prejudice prong is high); Strickland, 466

U.S. at 694. In applying Strickland, the court may dispose of an ineffective

assistance claim if petitioner fails to carry his burden on either of the two prongs. 

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice. . .that course should be followed.”).

The Strickland standard exists to prevent petitioners from abusing the posttrial process by escaping rules of waiver or presenting new issues; it should be

“applied with scrupulous care” to protect the integrity of the adversary process. 

Harrington, 131 S. Ct. at 788. As it relates to habeas corpus applications, the

Supreme Court emphasized:

The standards created by Strickland and § 2254(d) are both “highly

deferential,” and when the two apply in tandem, review is “doubly” so.

The Strickland standard is a general one, so the range of reasonable

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. (citations omitted); Knowles, 556 U.S. at 262 (Strickland claims evaluated under

§ 2254(d)(1) require “doubly deferential” judicial review).

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

findings of historical facts in the course of evaluating an ineffectiveness claim are

subject to the presumption of correctness, while the performance and prejudice

components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier

v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “‘The pivotal question is whether the

state court's application of the Strickland standard was unreasonable, [which] is

different from asking whether defense counsel's performance fell below Strickland's

standard.’” Jones v. Sec’y, Dep’t of Corr., 644 F.3d 1206, 1209 (11th Cir. 2011)

(quoting Harrington, 131 S. Ct. at 785). Habeas claims of ineffective assistance of

counsel require “doubly deferential” judicial review under Section 2254(d) and

Strickland, and petitioners only rarely prevail on this ground. See Rogers, 13 F.3d

at 386.

Exhaustion of state remedies and procedural default

A petitioner defaults on an issue unless the petitioner first exhausts available

state court remedies so the state has the “‘opportunity to pass upon and correct’

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) (per curiam); see 28 U.S.C. §

2254(b)(1)(A) (applicant must exhaust available state court remedies); 28 U.S.C. §

2254(b)(3) (state may rely on exhaustion requirement unless it expressly waives the

right). But see 28 U.S.C. § 2254(b)(2) (application may be denied on the merits even

when applicant fails to exhaust state remedies). To satisfy the exhaustion

requirement, petitioner must “fairly present” his claim in each appropriate state

court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365-

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

(1999) (same). This affords the state courts “one full opportunity to resolve any

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constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan, 526 U.S. at 845.

“Fair presentation” requires that, in each claim for relief, petitioner include a

reference to a specific federal constitutional guarantee and a statement of the facts

that entitle petitioner to relief. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509, 30

L. Ed. 2d 438 (1971). To satisfy the exhaustion requirement, petitioner must present

the same facts and claims in state court about which he petitions the federal court. 

Id. Appeals to a broad, general constitutional guarantee also fail to present the

“substance” of such a claim to the state court. See Anderson v. Harless, 459 U.S.

4, 7, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982) (petitioner cited federal authority only by

referring to a state court decision in which “the defendant. . . asserted a broad

federal due process right to jury instructions that properly explain state law”

(internal quotation marks omitted)). A state prisoner’s claim is not fairly presented

if the state court “must read beyond a petition or a brief (or a similar document) that

does not alert it to the presence of a federal claim in order to find material. . ..”

Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004). However,

when a petitioner squarely raises a federal constitutional claim in state court, the

“failure of a state court to mention a federal claim does not mean the claim was not

presented to it.” Dye v. Hofbauer, 546 U.S. 1, 3, 126 S. Ct. 5, 163 L. Ed. 2d 1 (2005). 

And, simply labeling the claim “federal” may be sufficient to fairly present the claim. 

Baldwin, 541 U.S. at 32 (dictum).

The Eleventh Circuit requires specific reference to the United States

Constitution and favors citations to federal cases. Zeigler v. Crosby, 345 F.3d 1300,

1307-08 and n.5 (11th Cir. 2003) (“Cursory and conclusional sentences

(unaccompanied by citations to federal law) . . . did not present to the Florida courts

the federal claim asserted to us.”). This stricter standard requires petitioner to

differentiate a claim under the United States Constitution from one under a state

constitution. Id. at n.5; McNair v. Hall, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (“a

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habeas applicant [must] do more than scatter some makeshift needles in the

haystack of the state court record” (internal citations omitted)). If state and federal

constitutional law overlap in their applicability to petitioner’s claim, he must raise

his issue in terms of the federal right in state court to obtain federal review of the

issue. Duncan, 513 U.S. at 366; see also Anderson, 459 U.S. at 7 and n.3 (petitioner’s

citation to a state-court decision predicated solely on state law is probably

insufficient to fairly apprise a reviewing court of a potential federal claim merely

because the defendant in the cited state case advanced a federal claim). 

A claim is procedurally defaulted and barred from federal review in two

instances: (1) if it was raised in state court and rejected on the independent and

adequate state ground of procedural bar or default; or (2) if it was not properly

raised in state court and can no longer be litigated under state procedural rules. 

Coleman v. Thompson, 501 U.S. 722, 734-35 and n.1, 111 S. Ct. 2546, 115 L. Ed. 2d

640 (1991); Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); see also Judd v.

Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (state court’s rejection of petitioner’s

constitutional claim on state procedural grounds generally precludes subsequent

federal habeas review of that claim). Unless the federal court determines the state

court “clearly and expressly” relied on independent and adequate state grounds, the

federal court may address the petition. Coleman, 501 U.S. at 735. However, when 7

any future attempt to exhaust state remedies would be futile under the state’s

procedural default doctrine, the default is per se adequate state grounds

independent of the federal question. Id. at 735 n.1; Harris v. Reed, 489 U.S. 255, 263

n.9, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) (federal habeas court need not require

a federal claim be presented to a state court if the state court would hold the claim

procedurally barred).

The “adequate and independent state grounds” rule applies equally to procedural and substantive

7

state-law grounds. Lee v. Kemna, 534 U.S. 362, 375 (2002).

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The adequacy of a state procedural bar to the assertion of a federal question

is itself a federal question. Lee, 534 U.S. at 375. To foreclose federal review, the

state procedural bar must be firmly established and regularly followed, that is, not

applied in an arbitrary or unprecedented fashion. Ford v. Georgia, 498 U.S. 411,

423-24, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991). A state procedural bar is firmly

established and regularly followed when the state has put litigants on notice of the

rule, and the state has a legitimate interest in the rule’s enforcement. Siebert v.

Allen, 455 F.3d 1269, 1271 (11th Cir. 2006).

To overcome a procedural default so that the federal habeas court may reach

the merits of a claim, petitioner must show either “cause for the default and actual

prejudice resulting therefrom,” or a fundamental miscarriage of justice. Kelley v.

Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004); High v. Head, 209

F.3d 1257, 1261 (11th Cir. 2000). Cause exists when an external impediment, such

as governmental interference or the reasonable unavailabilityof the factual basis for

the claim prevented petitioner from raising the claim. McCleskey v. Zant, 499 U.S.

467, 497 (1991) (superseded by AEDPA statute, but holding is still good law as cited

and followed by the Eleventh Circuit in High, 209 F.3d at 1262-63). Recently the

Supreme Court found cause due to petitioner's out-of-state counsel, who were on

record as representing him in post-conviction proceedings, abandoned him without

leave of court, without informing him they could no longer represent him, and

without securing any recorded substitution of counsel. Maples v. Thomas, --- S.

Ct.---, 2012 WL 125438, *14 (January 18, 2012). Therefore, petitioner had no

knowledge that his time to appeal had lapsed, and showed ample cause to excuse

the procedural default. Id. 

To meet the miscarriage of justice exception, petitioner must show that “a

constitutional violation has probablyresulted in the conviction of one whois actually

innocent” because “it is more likely than not that no reasonable juror would have

convicted him.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d 808

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(1995) (superseded by AEDPA statute, but holding is still good law as cited and

followed by the Eleventh Circuit in High, 209 F.3d at 1270). 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 -- that was not presented at trial.

Id. In short, actual innocence claims opening the gate for the miscarriage of justice

exception are summarily rejected in virtually every case. Id.

Deference to state court findings of fact

Federal habeas courts defer to the state court’s findings of fact, unless

petitioner shows by clear and convincing evidence that it was unreasonable. See

28 U.S.C. § 2254(d)(2); 28 U.S.C. § 2254(e)(1); Callahan v. Hall, 427 F.3d 897, 926 (11th

Cir. 2005) (quoting the statute’s language) (“[Section] 2254(d)(2) allows for relief

where the state court 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 the AEDPA, the state court does not have to

explicitly state its findings of fact. See Blankenship v. Hall, 542 F.3d 1253, 1271-72

(11th Cir. 2008). State court findings of fact can be implied from the opinion and the

record when they are necessary to the Rule 3.850 court’s rejection of a petitioner’s

claim. Id. These implicit findings are entitled to deference. Id. As explained in the

Standard of Review, supra, the state court is not required to cite or be aware of the

relevant Supreme Court precedent as long as its conclusion is not contradictory. 

Early, 537 U.S. at 8. A summary adjudication with a brief, or total lack of, statement

of reasons is still an adjudication on the merits. Harrington, 131 S. Ct. at 780, 784;

see Childers v. Floyd, 642 F.3d 953, 968 (11th Cir. 2011) (“an ‘adjudication on the

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merits’ is best defined as any state court decision that does not rest solely on a state

procedural bar.”)

Under Eleventh Circuit precedent, the habeas court will “‘look through’ a

summary decision to the ‘last reasoned decision’ on the issue.” McGahee v. Ala.

Dep’t of Corr., 560 F.3d 1252, 1262 n.12 (11th Cir. 2009) (quoting Sweet v. Sec’y,

Dep’t of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006)); see also Ylst v. Nunnemaker, 501

U.S. 797, 802, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) (quoting Coleman, 501 U.S.

at 740) (the Harris presumption only applies after the habeas court determines that

“‘the relevant state court decision. . .fairly appear[s] to rest primarily on federal law

or [is] interwoven with [federal] law.’”) 

PETITIONER’S GROUNDS FOR RELIEF

Ground 1 Denial of Effective Assistance by Counsel due to Failure to Interview

Fellow Inmates

Mr. McKire alleges that his defense counsel failed to interview fellow inmates

who witnessed the incident in order to have them testify at trial (doc. 12, pp. 14-16). 

He asserts that despite not knowing their names, his counsel could have obtained

that information from the jail. Id. Mr. McKire contends that these fellow inmates

would have corroborated his version of the events, thus disputing the state’s

account of what transpired. Id. Mr. McKire was convicted of hitting a correctional

officer in the head and face with his handcuffs, but he denies doing so. Id. Mr.

McKire alleges that the correctional officer became injured when he slipped on the

floor. Id. 

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State Court Decision

The Rule 3.850 court did not hold a hearing, and issued an opinion deciding

that this claim was facially insufficient because Mr. McKire failed to provide the

names of the witnesses. (ex. H, p. 28).

Federal Review of State Court Decision

As discussed in detail above, this court owes deference to the state courts’

rulings, and cannot disturb them so long as there was a “satisfactory conclusion.” 

Williams, 529 U.S. at 410-12; see also Crawford, 311 F.3d at 1295 (explaining that

AEDPA provides for a “highly deferential standard of review” for factual

determinations made by a state court).

Respondent argues that this claim was not properly exhausted before the

state court because of Mr. McKire’s lack of specificity in his allegations as

determined by the Rule 3.850 court. Respondent thus concludes that it is

procedurally defaulted, and should not be reviewed by the undersigned. The court

disagrees. The Rule 3.850 court did not state this claim was procedurally barred,

and instead decided the claim on its merits. See Borden v. Allen, 646 F.3d 785, 812-

13 (11th Cir. 2011) (holding that state court’s considering the sufficiency of

ineffective assistance of counsel claims was a ruling on the merits) .

8

The Rule 3.850 court followed Swain v. State of Florida, 502 So. 2d 494 (Fla.

1st DCA 1987) when it decided that Mr. McKire had failed to sufficiently detail his

claim by omitting the names of the alleged fellow inmates. The Swain court

established that in order to invoke this type of claim, the petitioner must allege in

sufficient detail “the names of the witnesses, substance of their testimony, and how

Respondent asserts this same argument for the seven out of eight claims that the state court granted

8

leave to amend (ex. H, pp. 20-26). The court hereby rules likewise as to those claims for the same

reasons cited here, and will not repeat itself infra.

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the omission prejudiced the outcome of the trial.” Swain, 502 So. 2d at 495. Mr.

McKire failed to do so at the state court level, and in his writ petition. 

Under Strickland, without detailed information and corroboration, defense

counsel’s strategic decision not to use certain witnesses cannot support an

ineffective assistance of counsel claim. See Chandler v. United States, 218 F.3d

1305, 1314 n. 14 (11th Cir. 2000) (en banc) (quoting Waters v. Thomas, 46 F.3d 1506,

1512 (11th Cir. 1995) (en banc)) ("calling some witnesses and not others is ‘the

epitome of a strategic decision.'"); see also Waters at 1518-19. Even assuming that

these fellow inmates would have been helpful witnesses and that counsel's

performance fell below an objective standard of reasonableness bynot calling them,

Mr. McKire still cannot show that their testimony would have likely changed the

result of the trial. Mr. McKire speculates that these unnamed fellow inmates

witnessed the incident and would have testified on his behalf corroborating his

story. Pure speculation cannot support post-conviction relief. 

The state court's ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not

entitled to federal habeas relief, and the writ should not issue.

Ground 2 Denial of Effective Assistance by Counsel due to Failure to Depose 

Listed State Witnesses

Mr. McKire avers that his defense counsel’s performance was defective

because he failed to depose the state witnesses prior to trial (doc. 12, pp. 17-20). He

alleges that if his counsel had done this, then he would have known not to ask a

specific question on cross-examination of the correction officers who testified that

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they were present during the incident. Id. Mr. McKire’s counsel questioned the

officers as to what Mr. McKire said after they testified that Mr. McKire had become

argumentative prior to and during the incident. Id. The state later introduced a

witness that testified that Mr. McKire had said, while restrained, that if they let him

up he would whoop their behinds (ex. C, p. 132). 

State Court Decision

The Rule 3.850 court determined that this claim was facially insufficient

because the extent and scope of cross-examination are strategic considerations (ex.

H, p. 28). It added that “not every question that happens to draw a damaging

response constitutes ineffective assistance of counsel.” Id. The Rule 3.850 court

also noted that Mr. McKire did not explain how this prejudicial statement would not

have been otherwise introduced into evidence without his counsel’s question, or

how the outcome of the trial would have been any different without this prejudicial

statement. Id. at 29. 

Federal Review of State Court Decision

"The decision as to whether to cross-examine a witness [and the extent of the

cross-examination] is ‘a tactical one well within the discretion of the defense

attorney.'" Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001). The prosecutor

asked all of the correctional officers the same questions as to what they saw or

heard during the incident. The fact that Mr. McKire’s counsel asked specifically

during cross-examination what these witnesses heard on the date of the incident in

no way can be interpreted as deficient performance because of a subsequent

witness’ detailed answer. Even if the defense counsel had deposed each state

witness, he could not have prevented their testimony during trial as to what they

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remembered as elicited by the prosecutor. Therefore, Mr. McKire cannot establish

any prejudice under Strickland for his counsel’s failure to depose these witnesses.

The Eleventh Circuit in Waters, 46 F.3d at 1514, addressed these type of

arguments against defense counsels:

The widespread use of the tactic of attacking trial counsel by showing

what "might have been" proves that nothing is clearer than

hindsight-except perhaps the rule that we will not judge trial counsel's

performance through hindsight. See, e.g., Strickland v. Washington,

466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984) ("A fair

assessment of attorney performance requires that every effort be made

to eliminate the distorting effects of hindsight."); Atkins v. Singletary,

965 F.2d 952, 958 (11th Cir.1992) ("Most important, we must avoid

second-guessing counsel's performance. As is often said, ‘Nothing is

so easy as to be wise after the event.'" (Citation omitted)); White v.

Singletary, 972 F.2d 1218, 1220 (11th Cir.1992) ("Courts also should at

the start presume effectiveness and should always avoid second

guessing with the benefit of hindsight."); Thompson v. Wainwright, 784

F.2d 1103, 1106 (11th Cir.1986) ("Hindsight, however, is not the

appropriate perspective for a court to examine counsel's

effectiveness.")

The state court's ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not

entitled to federal habeas relief, and the writ should not issue.

Ground 3 Denial of Effective Assistance by Counsel due to Failure to Impeach a 

Witness with a Prior Inconsistent Statement

Mr. McKire contends that his counsel failed to impeach the victim, Officer

James Richards (“Officer Richards”), with the prison disciplinary report written by

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him on the date of the incident (doc. 12, pp. 21-24). Mr. Mckire avers that the

statement contained in the report varies from the victim’s testimony during trial. Id. 

State Court Decision

The Rule 3.850 court concluded that this claim was legally insufficient

because in order for a prior inconsistent statement to be admitted, it must truly be

inconsistent with the witness’ trial testimony (ex. H, p. 29). It reasoned that the

omission must be significant and that nit-picking is not allowed. Id.

Federal Review of State Court Decision

Mr. McKire’s argument fails because his counsel cannotbe deemedineffective

for failing to raise issues "reasonably considered to be without merit." United States

v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (quoting Alvord v. Wainwright, 725

F.2d 1282, 1291 (11th Cir. 1984)), cert. denied, 531 U.S. 1131 (2001). Officer Richards’

testimony at trial was consistent with the report drafted on the date of the incident. 

His omission in the report that Mr. McKire became argumentative is not significant

enough to be considered as a prior inconsistent statement as decided strategically

by Mr. McKire’s counsel and held by the Rule 3.850 court. The undersigned agrees

with their assessment, and failure to raise such a meritless argument is not

ineffective assistance of counsel under Strickland. 

The state court's ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not

entitled to federal habeas relief, and the writ should not issue.

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Ground 4 Denial of Effective Assistance by Counsel due to Failure to Object 

to State’s Use of Perjured Testimony

Mr. McKire alleges that Officer Patrick Moss’ (“Officer Moss”) testimony was

perjury because he was not a witness during the incident (doc. 12, pp. 25-28). He

argues that the full video tape of the incident would show Officer Moss’ absence

from the premises at the time. Id. Mr. McKire contends that his counsel’s failure to

obtain the full video and object to Officer Moss’ testimony constituted a substantial

and serious deficiency in his performance. Id. 

State Court Decision

The Rule 3.850 court determined that this claim was facially insufficient

because in order to establish a Giglio violation, Mr. McKire had to prove that: (1) the 9

testimony given was false, (2) the prosecutor knew that, and (3) the statement was

material (ex. H, p. 29). It concluded that Mr. McKire had failed to establish these

elements, and that the outcome of the trial would not have been different with or

without Officer Moss’ testimony. Id. at 29-30.

Federal Review of State Court Decision

To establish a Giglio violation, a petitioner must establish that the prosecutor

knowinglyused perjuredtestimonyor failed to correct what he subsequentlylearned

was false testimony and that the falsehood was material. Tompkins v. Moore, 193

F.3d 1327, 1339 (11th Cir. 1999). The materiality inquiryunder Giglio is whether there

is a reasonable likelihood that the falsehood could have affected the jury's verdict. 

Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).

9

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United States v. Alzate, 47 F.3d 1103, 1110-11 (11th Cir. 1995); Occhicone v. Crosby,

455 F.3d 1306, 1308-09 (11th Cir. 2006). The Eleventh Circuit recently defined the

Giglio standard of “materiality” as “harmless beyond a reasonable doubt.” Ford v.

Hall, 546 F.3d 1326, 1332 (11th 2008) (quoting Chapman v. California, 386 U.S. 18, 24,

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). 

Officer Moss testified that he assisted during Mr. McKire’s cell move on the

date of the incident and Mr. McKire seemed angry (ex. C, pp. 84-86). He saw out of

the corner of his eye Mr. McKire make a quick jerking movement away from the

victim, then the victim slipped, and Mr. McKire moved his hands up and down real

quick. Id. at 91-92, 100-101, 103, 109-110. Officer Moss explained that afterwards the

victim pulled Mr. McKire down to the floor and rolled him over in order to subdue

him. Id. at 92-93. Officer Moss then grabbed Mr. McKire’s legs, called his sargeant,

and applied leg irons. Id. at 93. During cross-examination, Mr. McKire’s counsel

showed Officer Moss the incident report he wrote regarding what transpired that

day. Id. at 98-99. Officer Moss admitted not seeing Mr. McKire strike the victim, but

from seeing the up and down movement and then the cut on the victim’s face he

deduced that is what happened. Id. at 102.

Assuming that Mr. McKire’s allegations are true and Officer Moss was not

present during the incident, from his testimony it is clear that the prosecutor could

not have known this to be the case. This is especially so because of the incident

report drafted by Officer Moss attesting to his presence and involvement during the

incident. Mr. McKire has not proffered any evidence to substantiate his Giglio claim. 

It is not unreasonable for his defense counsel to have not raised such an argument

due to the documentary evidence supporting Officer Moss’ involvement. The

cumulative evidence of several witnesses in addition to the video of the incident as

presented by the prosecution also supports the version of the events as testified by

the victim. Therefore, Officer Moss’ testimony alone did not affect the jury verdict

so as to render it constitutionally void. 

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The state court's ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not

entitled to federal habeas relief, and the writ should not issue

Ground 5 Denial of Effective Assistance by Counsel due to Failure to Call Expert 

Witness on Injuries

Mr. McKire argues that his defense counsel was ineffective because he did not

hire an expert witness regarding the victim’s injuries (doc. 12, pp. 28-32). He

contends that if one was hired then the outcome of the trial would have been

different. Id.

State Court Decision

The Rule 3.850 court decided that this claim is facially insufficient because

“there are no sufficient allegations to support a conclusion that such expert

testimony, which would allegedly contradict the victim’s testimony as to the cause

of the cuts he sustained, could or does exist” (ex. H, p. 30). It also explained that in

cases such as this one, determining the cause of cuts is not an area that requires

expert testimony because the victim can testify. Id.

Federal Review of State Court Decision

As discussed in detail above, this court owes deference to the state courts’

rulings, and cannot disturb them so long as there was a “satisfactory conclusion.” 

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Williams, 529 U.S. at 410-12; see also Crawford, 311 F.3d at 1295 (explaining that

AEDPA provides for a “highly deferential standard of review” for factual

determinations made by a state court).

Mr. McKire speculates that an expert testifying as to the victim’s injuries

would have meant his acquittal, but he offers no evidence to support this, or that the

expert would have supported his claim. This court will not “‘blindly accept

speculative and inconcrete claims . . . .’” Raulerson v. Wainwright, 753 F.2d 869, 876

(11th Cir. 1985) (quoting Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir. 1981)).

Absent evidence in the record, a court cannot consider a habeas petitioners’ bald

assertions on a critical issue in his petition (in state and federal court), unsupported

and unsupportable by anything else contained in the record, to be of probative

evidentiary value. Woodard v. Beto, 447 F.2d 103, 104-05 (5th Cir. 1971). Thus, 10

mere conclusory allegations do not raise a constitutional issue in a habeas

proceeding. United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980).

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not

entitled to federal habeas relief, and the writ should not issue.

Ground 6 Denial of Effective Assistance by Counsel due to Failure to Object 

to Introduction of Photographs

Mr. McKire contends that his counsel should have objected to the introduction

of photographs depicting the victim’s injuries because the chain of custody was not

Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to September 30,

10

1981 are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th

Cir.1981) (en banc).

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established (doc. 12, pp. 32-34). He alleges that without these photos the

prosecution would not have been able to establish his culpability. Id.

State Court Decision

The Rule 3.850 court concluded that this claim is facially insufficient because 

in the absence of probable tampering with the evidence, the photographs would

have been admissible despite the alleged failure to establish continuous possession

(ex. H, p. 31).

Federal Review of State Court Decision

Officer Richards identified the photographs of his injuries during his

testimony (ex. C, pp. 44-45). He explained they were taken “when [he] went to

Medical to get treated for [his] injuries.” Id. at 45. Officer Richards testified how he

received the injuries as shown in the photographs. Id. at 47. He showed the jury the

scarring in his face immediately after describing his injuries in the photographs. Id. 

at 47-48. Due to this testimony, Mr. McKire’s counsel’s failure to object as to the

chain in custody of the photographs does not constitute ineffective assistance of

counsel under Strickland. Mr. Mckire fails to allege any tampering as to the

photographs. The prosecution established the foundation, and for defense counsel

to object on that basis would have been meritless because there was no evidence

of tampering. See Reed v. State, 875 So.2d 415, 432 (Fla.2004) (citing Strickland, 466

U.S. at 691). Therefore, Mr. McKire suffered no prejudice due to his counsel’s failure

to object.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

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presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not

entitled to federal habeas relief, and the writ should not issue.

Ground 7 Denial of Effective Assistance by Counsel due to Failure to Object 

to this Charge Despite Conviction of Assault for Same Incident

Mr. McKire alleges that he was subjected to double jeopardy because he was

convicted of assault in a prison disciplinary hearing, and then charged with battery

in state court for the same incident (doc. 12, pp. 35-37). Mr. McKire explains that he

received a “written disciplinary report charging him with the offense of assault on

a corrections officer.” Id. at 35. Then, he was “found guilty of this infraction

following a prison disciplinary hearing.” Id.

 State Court Decision

The Rule 3.850 court held that this claim was legally insufficient and entirely

without merit pursuant to United States v. Mayes, 158 F.3d 1215 (11th Cir. 1998) (ex.

H, p. 31) .

11

Federal Review of State Court Decision

The Double Jeopardy Clause states that: “[N]or shall any person be subject

for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend.

V. It serves the function of preventing both “successive punishments and. . .

successive prosecutions.” United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849,

This is the only claim the Rule 3.850 court did not grant leave to amend because it could not be

11

cured by amendment. Id.

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2855, 125 L. Ed. 2d 556 (1993), citing North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct.

2072, 23 L. Ed. 2d 656 (1969). The protection against multiple punishments prohibits

the Government from “punishing twice, or attempting a second time to punish

criminally for the same offense.” United States v. Ursery, 518 U.S. 267, 273, 116 S.

Ct. 2135, 2139-40, 135 L. Ed. 2d 549 (1996) (internal quotations omitted); see also

Witte v. United States, 515 U.S. 389, 396, 115 S. Ct. 2199, 2204, 132 L. Ed. 2d 351

(1995); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917.

The Eleventh Circuit has concluded that prison disciplinary sanctions do not

preclude criminal prosecution on grounds of double jeopardy. Mayes, 158 F.3d at

1224-1225. The Mayes court analogized the situation to that decided by the Supreme

Court in Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450

(1997). In Hudson, the High Court held that the double jeopardy clause did not bar

a criminal prosecution because of prior administrative proceedings that were civil,

not criminal. Hudson, 522 U.S. at 94. 

Mr. McKire was not subjected to criminal proceedings at the jail, but merely

administrative sanctions. See Sadler v. State, 333 So. 2d 69 (Fla. 1976)

(Administrative confinement of state prisoner for possession of a weapon did not

raise bar of double jeopardy to a subsequent prosecution for possessing the

weapon), Larkin v. State, 558 So. 2d 486 (Fla. 5th DCA 1990) (Revocation of inmate's

gain time by Department of Corrections for his attempted escape was an

administrative proceeding, not a judicial proceeding and, thus, subsequent criminal

prosecution of inmate for same escape attempt did not violate double jeopardy).

Therefore,there was no double jeopardy violation, and the state court’s ruling

did not result in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, or was based on an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. §

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2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not entitled to federal habeas

relief, and the writ should not issue.

Ground 8 Denial of Effective Assistance by Counsel Due to Use of Deception to 

Obtain Mr. McKire to Withdraw his Motion for Speedy Trial

Mr. McKire alleges that his counsel used deception by telling him that he

would be unable to obtain the video of the incident unless Mr. McKire withdrew his

motion for a speedy trial (doc. 12, pp. 37-40). Then, Mr. McKire contends that his

counsel refused to play the videotape during his testimony. Id. at 38. He claims

without this deception, the outcome of the trial would have been different because

he would have been able to explain his version of the events while the videotape

played for the jury. Id. 

State Court Decision

The Rule 3.850 court decided that this claim was insufficient because the

videotape was in evidence and reviewed by the jury (ex. H, p. 31). It also reasoned

that Mr. McKire failed to allege how his commentary on the videotape would have

affected the outcome of the trial. Id.

Federal Review of State Court Decision

Mr. McKire’s defense counsel’s decision not to play the videotape again while

Mr. McKire testified is clearly a strategic decision. The videotape had been played

twice already (ex. C, pp. 34-43, 113-117), and Mr. McKire had the opportunity to

testify in order to refute all prior testimony presented by the prosecution (ex. C, pp.

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148-166). An important facet of most ineffective assistance claims is trial strategy. 

"By ‘strategy,' [courts] mean no more than this concept: trial counsel's course of

conduct, that was neither directly prohibited by law nor directly required by law, for

obtaining a favorable result for his client." Chandler, 218 F.3d at 1314 n.14. 

Matters of trial strategy and tactics, unless plainly not within the bounds of

reasonableness, and even if unsuccessful, do not constitute ineffective assistance. 

Id. at 1316 n.16. But not every strategic decision passes constitutional muster. 

Whether a particular decision by counsel was a tactical one is a question of fact,

Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003), and the state court's

resolution of that issue enjoys a strong presumption of correctness. See 28 U.S.C.

§ 2254(e)(1); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995); Horton v. Zant,

941 F.2d 1449, 1462 (11th Cir. 1991). Whether a particular tactical decision was a

reasonable one, however, is a question of law, Hardwick, 320 F.3d at 1163; Jackson,

42 F.3d at 1367; Horton, 941 F.2d at 1462, and habeas relief is mandated only where

the trial court's decision was either contrary to, or an objectively unreasonable

application of, clearly established Supreme Court precedent, 28 U.S.C. § 2254(d)(1).

The undersigned cannot agree with Mr. McKire that his counsel’s decision not

to play the videotape of the incident a third time while he testified was ineffective

assistance of counsel, or that the state court’s decision was contrary to, or involved

an unreasonable application of, clearly established federal law, or was based on an

unreasonable determination of the facts in light of the evidence presented. 28 U.S.C.

§ 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. McKire is not entitled to federal habeas

relief, and the writ should not issue.

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CONCLUSION

The undersigned has carefully reviewed the information, trial transcript, postconviction motions, orders, records on appeal, and all submissions in this

proceeding. Mr. McKire’s claim is without merit, and he is not entitled to federal

habeas relief.

CERTIFICATE OF APPEALABILITY

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

District Courts provides that “[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 by28 U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Cases. 

A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595,

146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). 

Therefore, it is recommended that the court 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.” If there is an objection to this recommendation by either party, that party

may bring this argument to the attention of the district judge in the objections

permitted to this report and recommendation.

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Accordingly, it is respectfully RECOMMENDED:

1. That the 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

later amended (docs. 11 and 12), challenging the conviction and sentence in State

of Florida v. McKire in the Circuit Court of Santa Rosa County, Florida, case no.

2006-0052CF, be DENIED and the clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 15th day of February, 2012.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO 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).

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