IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

RUFUS MILLER,

Petitioner

v. CASE NO. 5:10-cv-276-RS-GRJ

SECRETARY, DEPT.

OF CORRECTIONS,

Respondent.

________________________/

REPORT AND RECOMMENDATION

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

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

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

(Doc. 18, 22). Upon due consideration of the petition, the response, the reply, and the

state-court records, the undersigned recommends that the petition be denied.

State-Court Proceedings

Petitioner was arrested on January 10, 2003 and charged with one count of firstdegree murder by premeditation or during the commission of a felony (Count I) and one

count of robbery with a firearm (Count II) for the robbery and murder of Jerry Brown. 

(Resp. Ex. B, C). Petitioner was tried by a jury in guilt phase proceedings, in which the

State sought the death penalty. (Resp. Ex. D). The jury returned verdicts of guilty on

each count. (Resp. Ex. E.) The relevant evidence presented at trial was as follows:

On or about December 26, 2002, Jerry Brown was shot and killed in Bayou
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George, Florida. On January 2, 2003, Brown’s body was found in a cemetery in

Washington County, just off of Highway 279. Brown lived in Bay County, Florida, and 

owned a wrecker service which he ran out of his home. Brown was known to keep a

large amount of cash on his person. (Resp. Ex. D, at 68, 77, 85, 102, 146.) Petitioner

was a longtime friend of Brown’s, and Brown provided Petitioner with a place to stay

and a job when Petitioner was released from prison in November 2002. Occasionally,

Brown would loan Petitioner money or a vehicle. (Resp. Ex. D, at 90, 146.) 

Around December 21, 2002, Petitioner smoked crack cocaine with two friends,

Tracy Hamm and Sonny Prescott. They went to Brown’s home to borrow some money,

where Hamm noticed that Brown had a stack of money in his pocket. Petitioner stated

that he would like to knock Brown in the head and take his money. 

On December 25, 2002, Brown had dinner with Margaret and James Redmond.

At dinner, Brown took out about $40,000 in cash and was counting it. The next day,

Brown cashed Petitioner’s income tax return check for him in the morning. (Resp. Ex.

D, at 313, 420.) Brown was alive at 7:00 or 8:00 pm on the evening of December 26,

2002, because James Redmond talked to him on the phone. A carpenter named

Douglas Peterson also talked to Brown that evening at his home. 

Meanwhile on the evening of December 26, 2002, Petitioner had been calling his

friend Prescott on the telephone. Petitioner eventually drove to Prescott’s house,

driving Brown’s red truck. There was some evidence that Brown generally did not lend

out his red truck. Petitioner and Prescott drove around and purchased crack cocaine. 

(Resp. Ex. D, at 441-44.) Prescott testified that they then drove to Brown’s house,

where they stayed for about 45 minutes to find the tag to a different truck that Brown
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had recently sold Petitioner.

The next morning, on December 27, 2002, Peterson was to meet Brown at 7:00

am. Brown did not arrive, and did not pick up the phone. (Resp. Ex. D, at 75-77.) 

Peterson drove to Brown’s house after lunch and noticed that the gate was “busted

open.” (Resp. Ex. D, at 80-81.) The next morning, the Redmonds met Peterson at

Brown’s house to help him search for Brown, but with no success. (Resp. Ex. D, at 95-

96.) Law enforcement was called that afternoon. (Resp. Ex. D, at 230, 277-81.) The

police found evidence, including bullet holes, that Brown had been beaten, robbed, and

shot. The $40,000 that Brown had been counting on December 25, 2002 was not

recovered.

In the early morning of December 30, 2002, Petitioner was at a hotel using crack

cocaine with Sonny Prescott. Law enforcement questioned him about Brown’s

disappearance and searched his truck. (Resp. Ex. D, at 653-56.) They did not arrest

him, however, and he left the hotel.

On January 2, 2003, Brown’s body was found in rural Washington County,

Florida near the Ebenezer Church cemetery. (Resp. Ex. D at 332-33.) The site of

Brown’s body was close to the location of the grave of Petitioner’s mother. From

discoloration on the body, it appeared that Brown had been dead for “at least a day or

so.” (Resp. Ex. D, at 363.) There was conflicting testimony, however, regarding the

date of death, with expert testimony suggesting that death could have occurred

between December 26, 2002 and December 31, 2002. (Resp. Ex. D, at 908, 909-10.) 

An autopsy confirmed that the cause of death was gunshot wound to the head. There

were three gunshot wounds, as well as indications of blunt trauma to the head and
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upper torso. (Resp. Ex. D, at 382.) On January 10, 2003, Petitioner was arrested and

questioned about Brown’s disappearance and death. (Resp. Ex. D, at 657.)

The State’s evidence included testimony regarding Petitioner’s increased

spending of money purchasing “crack” cocaine following the evening of December 26,

2002. In addition, the State presented evidence of admissions made by Petitioner

following Brown’s murder, including statements to Andy Sanford, with whom Petitioner

was incarcerated. Sanford testified that Petitioner was high on crack at the time of the

murder, and that he killed Brown after Brown refused to loan him money. Several other

individuals with whom Petitioner was incarcerated testified that Petitioner had admitted

the crime while in jail. (Resp. Ex. D, at 418-20.) 

Archie White, Petitioner’s nephew, was also interviewed by police in February

2003. He stated that Petitioner had told him, prior to the murder, that he knew Brown

kept a lot of money and pills in his house and that Petitioner and White could go to

Brown’s home and take it. White also stated that Petitioner indicated that if he ran into

a “problem” while robbing Brown’s home, he would “take care of it.” (Resp. Ex. D, at

696-97.) 

White was not able to testify as to his complete statement at trial because, he

claimed, he had been “knocked in the head” while incarcerated and could not

remember the conversation he allegedly had with Petitioner, or the previous statement

he had given to law enforcement. The Court allowed, over the objection of Petitioner,

the State to play White’s taped statement to law enforcement as an exception to

hearsay under past recorded recollection, §90.404, Fla. Stat. (2005). 

On February 17, 2004, the jury found Petitioner guilty of Murder in the First
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Degree and Robbery with a Firearm. (Resp. Ex. E.) On February 18, 2004, the jury

recommended that Petitioner be sentenced to life in prison without the possibility of

release. (Resp. Ex. F, G.) 

 Petitioner filed a motion for new trial on February 25, 2004, then an amended

motion for new trial on March 18, 2004. (Resp. Ex. H, I.) ON May 18, 2004, the trial

court granted Petitioner’s motion for a new trial on the grounds that admitting Archie

White’s previous statement had violated the Confrontation Clause. (Resp. Ex. N.) On

December 12, 2005, the First District Court of Appeals (“First DCA”) reversed the trial

court’s grant of a new trial and remanded for reinstatement of the jury verdict. State v.

Miller, 918 So. 2d 350 (Fla. 1 DCA 2005). The First DCA reasoned that there had st

been no Confrontation Clause violation because Archie White was present at trial and

could be questioned, despite his loss of memory. Id. 

On remand, Petitioner was sentenced to concurrent terms of life imprisonment

on both counts. (Resp. Ex. U.) Petitioner appealed to the First DCA, which affirmed

without written opinion on July 17, 2007. Miller v. State, 959 So. 2d 1993 (Fla. 1 DCA st

2007). Petitioner then filed a postconviction motion pursuant to Florida Rule of Criminal

Procedure 3.850 on September 17, 2008. (Resp. Ex. BB.) The state postconviction

court held an evidentiary hearing, then denied all claims on the merits. (Resp. Ex. CC,

FF.) The First DCA affirmed the denial of postconviction relief without written opinion

on September 8, 2010. Miller v. State, 44 So. 3d 583 (Fla. 1 DCA 2010). st

The instant Petition followed. (Doc. 1.) In his Petition, Petitioner asserts 6

claims for relief: two claims that the trial court erred in denying his motion for a new trial,

based on the weight of the evidence and the Confrontation Clause issue; and four
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claims that his trial counsel was constitutionally ineffective.

Section 2254 Exhaustion Requirement

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

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

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

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

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

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

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

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

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

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

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

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
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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 (11 Cir. 2011); see § 2254(e) (1). th

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 (11 Cir. th

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, 404-06 (2000); Bell v. Cone,
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535 U.S. 685, 694 (2002) (citing Williams). “Under the ‘contrary to’ clause, a federal

habeas court may grant the writ if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the state court decides a

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

the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529

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

require citation of our cases-indeed, it does not even require awareness of our cases,

so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in original). Further, “whether a

state court's decision was unreasonable must be assessed in light of the record the

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

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
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opinion. Id. at 1291 (citing Harrington, 131 S.Ct. at 784). Yet, the Supreme Court has

never squarely addressed whether under the “unreasonable application” test a federal

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

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

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

Cir.2002) (summarizing the emerging circuit split)). The Eleventh Circuit concluded that

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

question” raised in a claim based on the state court's ultimate legal conclusion, and

should not “evaluate or rely upon the correctness of the state court's process of

reasoning.” Id. at 1291. In short, the court stated, “the statutory language focuses on

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

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

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

trial court's fact finding only to the extent that the state court's ultimate conclusion relied

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

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

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

 Ineffective Assistance of Counsel

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

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

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

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

and reasonable professional norm, and (2) that he was prejudiced by this inadequacy. 
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Strickland, 466 U.S. at 686. The court may dispose of the claim if a defendant fails to

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

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

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

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

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

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

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

“[a]bsolute rules would interfere with counsel’s independence–which is also

constitutionally protected–and would restrict the wide latitude counsel have in making

tactical decisions.” Putnam v. Head, 268 F.3d 1223, 1244 (11 Cir. 2001). “To uphold th

a lawyer’s strategy, [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 banc). “No lawyer can be expected to have considered all of th

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

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

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

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

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

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

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

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

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

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

federal law is different from an incorrect application of federal law.” Harrington, 131

S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not

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

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

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

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

deference and the question becomes whether “there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id. Double deference is doubly

difficult for a petitioner to overcome, and it will be a rare case in which an ineffective

assistance of counsel claim that was denied on the merits in state court is found to

merit relief in a federal habeas proceeding.

Claim One: The State Court Erred by Denying Petitioner’s Motion for a New Trial

Because the Conviction was Against the Weight of the Evidence

Petitioner contends that the trial court erred in denying his motion for new trial,

on the ground that the conviction was against the weight of the evidence. As

Respondent points out, a Florida trial court’s authority to grant a new trial as against the

weight of the evidence is derived from state law. See Fla. R. Crim. P. 3.600(a)(2). 

Where the evidence is sufficient to support a conviction as a matter of federal due

process, a claim that the verdict was against the weight of the evidence presents an

issue of state law that is not cognizable on federal habeas review. See Young v.

Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (federal habeas court has no power to

grant relief because it finds that the state conviction is against the weight of the

evidence). 

Here, the Court concludes that the evidence was sufficient to support the

conviction as a matter of federal due process. The State presented testimony that

Petitioner discussed robbing the victim prior to the murder, and that Petitioner had
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admitted to other inmates that he had robbed and killed the victim. Petitioner was also

at the victim’s home around the time of the crime, and was seen driving the victim’s

truck. Accordingly, the Court concludes that the “weight of the evidence” issue is not

cognizable on federal habeas review. 

Claim Two: The State Court Erred by Denying Petitioner’s Motion for a New Trial

Because the Admission of Archie White’s Statements Violated Petitioner’s Right

of Confrontation

Petitioner argues that admitting his nephew Archie White’s past statements

under the “past recollection recorded” exception to the hearsay rule, after White

testified that he could not remember those statements, violated his Sixth Amendment

right to confront witnesses against him. Petitioner raised this issue in his first motion for

a new trial, which was granted by the state trial court but reversed by the First DCA. 

Petitioner alleges that the state court erred in denying his motion for a new trial based

upon the Confrontation Clause issue.

As discussed above, White gave a statement to the Assistant State Attorney and

a Sheriff’s Office investigator, that Petitioner wanted to get money and pills from the

victim and would “take care of” any problems. When the State called White to testify,

he stated that he had been “knocked in the head” with a metal bar while in prison, and

could not remember the specifics of his prior statement. (Resp. Ex. D, at 162-70.) The

State unsuccessfully attempted to refresh White’s recollection with the transcript of the

statement. The state trial judge allowed both sides to question White outside the

presence of the jury. Id. at 170-79. White testified that he was concerned that people

who testified against others had a bad reputation in prison, and that he was hit in the

head while being called a “snitch.” Id. at 171-72. White read his statement and
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testified that he did not remember all of it, but “I guess if it says I said it, I said it.” Id. at

178. The court also read a letter from White to the prosecutor stating that he felt that

his life was in danger if he testified. At this point, the court declared White to be a court

witness. Id. at 182. The court ruled, over Petitioner’s Confrontation Clause objection,

that White’s earlier statement was admissible as past recollection recorded. Id. at 498-

503.

Petitioner now argues that the trial court’s denial of a new trial based on the

admission of White’s prior statements violated his right to confront witnesses against

him, under Crawford v. Washington, 541 U.S. 36 (2004). Crawford held that where a

court admits “testimonial” statements under a hearsay exception, where the declarant is

unavailable, there must have been a prior opportunity for cross-examination. Id. at 68.

Petitioner argues that White’s previous statement to law enforcement was a testimonial

statement, and that he was unavailable at trial due to his alleged memory loss. 

Petitioner argues that because White was “unavailable” and he had no prior opportunity

to cross-examine him, it was error to admit White’s previous statements under a

hearsay exception.

The First DCA, reversing the trial court’s grant of a new trial, considered and

rejected this argument. State v. Miller, 918 So.2d 350 (Fla. 1 DCA 2005). st

Crawford made clear, that “when a declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all

on the use of his prior testimonial statements.” Crawford, 124 S. Ct. At

1369 n.9. “The Confrontation Clause guarantees only an opportunity for

effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” United

States v. Owens, 484 U.S. 554, 559 (1988) (emphasis in original). We

recognize that, under some circumstances, a witness’s physical presence

in the courtroom may not be sufficient to meet Confrontation Clause
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requirements. However, the mere fact that a witness has a faulty memory

does not result in a Confrontation Clause violation. See id. The

Confrontation Clause is satisfied if the defendant has the opportunity to

bring out such matters as a witness’s faulty memory. See id.

Here, the witness was present at trial. He testified his prior

statement was given under oath, he would have made an effort to

accurately tell the truth while giving the statement, and the information

contained in the statement would have been fresher in his memory. He

further testified that he could not remember the basis for his prior

statement, because he had subsequently been hit on the head with a

barbell. The defendant had an opportunity to cross-examine this witness

as to his prior statement and faulty memory. 

Since the witness was present at trial and available for crossexamination, the introduction of his prior testimonial statements was

permissible, and did not violate Crawford. 

Id. at 351-52. The state court’s order was not contrary to or an unreasonable

application of federal law. In United States v. Owens, the Supreme Court addressed

the precise situation presented here: a witness made a previous identification of the

defendant, appeared in court, and testified that he could not remember the details of his

prior statement. 484 U.S. 554 (1988). In Owens, the Court held that there was no

Confrontation Clause violation in admitting the prior statement, because the defendant

had an opportunity to cross-examine the witness; “effective” cross-examination was not

a right guaranteed under the Sixth Amendment. Id. at 558. Crawford did not overrule

Owens. 

Yanez v. Minnesota, 562 F.3d 958 (8 Cir. 2009) is also instructive. In Yanez,

th

the Eighth Circuit rejected the petitioner’s argument that the state court erred by

admitting a witness’s previous statements where the witness appeared at trial but

testified an inability to remember the previous statements. The court there noted that,
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as in this case, the witness “took the oath, took the stand, and was subject to

questioning.” Id. at 963. Relying on Owens, the court found that the witness’s “inability

to recall the details of her prior statements or the incidents that led to those statements

did not render the admission of the out-of-court testimonial statements constitutionally

defective.” Id. at 964. Similarly, the state court’s decision here was not contrary to or

an unreasonable application of clearly established federal law. Petitioner is not entitled

to relief on this claim. 

Claim Three: Ineffective Assistance of Counsel for Failing to Call Wanda Smebly

as an Alibi Witness

Petitioner argues that his counsel was ineffective for failing to call Wanda

Smebly as an alibi witness at trial. Petitioner asserts that Smebly was available to

testify and would have testified that Petitioner was with her on the date of the victim’s

murder. 

Petitioner has not shown that the state court’s ruling was contrary to or an

unreasonable application of federal law. “Complaints concerning uncalled witnesses

impose a heavy showing since the presentation of testimonial evidence is a matter of

trial strategy and often allegations of what a witness would have testified to are largely

speculative.” United States v. Guerra, 628 F.2d 410, 413 (5 Cir. 1980). In this case, th

the state postconviction court held an evidentiary hearing at which Petitioner’s trial

counsel testified:

We interviewed Miss Smebly probably one or two times. I made

the decision not to call her, and I can’t really remember why. I think it had

something to do with money and marijuana. That’s what, what I

remember about it. And I can’t, what I recall is you could’ve, you could’ve

taken a twist on her testimony to show that [Petitioner] either needed

money or had it, or had money he shouldn’t have had. And so there was,
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there was a negative connotation to her testimony, so I made a decision

not to call her and I can’t remember exactly what the reason is today. But

we did interview her and reflected upon whether we should or should not

call her, and I made the decision not to call her.

(Resp. Ex. CC, at 46.)

In this case, Petitioner’s counsel testified to the fact that he interviewed Smebly

and made a decision not to call her as a witness, because he felt that her testimony

would reflect negatively on his client. Smebly also testified at the hearing that she could

have provided an alibi for Petitioner’ but did not remember the exact times that she was

ostensibly with Petitioner on the night in question. (Resp. Ex. CC, at 38.) Petitioner’s

speculative assertions regarding what Smebly would have testified to are insufficient to

overcome the deference afforded to counsel’s strategic decisions regarding what

evidence to present. The state court’s finding – that under these circumstances,

Petitioner’s trial counsel’s decision to not call Smebly as a witness was a reasonable

professional decision – was not an unreasonable application of Strickland. Accordingly,

Petitioner is not entitled to relief on this claim.

Claim Four: Ineffective Assistance of Counsel for Failing to Call Exculpatory

Witnesses / Newly Discovered Evidence

Petitioner asserts that his counsel was ineffective for failing to call Robert

Laminack as a witness. Petitioner asserts that Laminack would have provided

exculpatory evidence that Petitioner had no motive to rob the victim. Petitioner asserts

that Laminack would have testified that he and the victim were “like brothers and were

always there for each other.” (Doc. 1, at 22.) Petitioner also asserts that Mr. Laminack

would have testified that the victim frequently loaned his truck and money to Petitioner,

thus undermining the state’s theory that Petitioner’s motive for the murder was stealing
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the victim’s money and truck. Petitioner also asserts as part of this claim that he has

“newly discovered evidence” that William Marshall would have testified that Petitioner

had permission to drive the victim’s truck, and therefore had no motive to kill the victim

in order to steal his truck.

Petitioner presented both of these claims to the state postconviction court, and

both Laminack and Marshall testified at the evidentiary hearing. Laminack testified that

he had grown up with the victim’s son, and had seen the victim lend Petitioner vehicles

and money upon request. (Resp. Ex. CC, at 33.) He also testified that he had not seen

Petitioner “mess[] with any guns.” Id. at 34. Laminack stated that he “didn’t want to

testify,” and that “if [the victim] had been murdered with a knife [rather than a gun], then

there’s a possibility that it would be [Petitioner].” Id. at 35, 36. Marshall testified that he

was willing to testify that on December 24, 2002 he was at the victim’s house, and saw

Petitioner drive up in the victim’s truck. Id. at 43, 44.

Petitioner’s trial counsel also testified at the evidentiary hearing. He stated that

he interviewed Laminack, and that Laminack told him that he “didn’t want to testify, and

the main reason he didn’t want to testify is because he was afraid of [the victim’s son].” 

Id. at 49. He further testified that he did not compel Laminack to testify because

Laminack “would’ve come in and he would’ve said, oh, I don’t know, you know, I don’t

remember.” Id. Counsel stated that “if I’ve got a witness telling me don’t call me, I don’t

want to come to court and testify, that’s a message to me he’s probably going to be

hostile.” Id. at 50. 

With respect to Marshall, trial counsel testified that his investigator talked to “a

clan of Marshalls up there in Brannonville,” but that he didn’t “remember meeting with
Page 19 of 27

him and I don’t remember that information being divulged” at the time of the trial.” Id. at

54. Counsel further stated that if Marshall had told him about seeing Petitioner in the

victim’s truck, “I think I would’ve called him.” Id. at 64.

In its order denying relief on this claim in Petitioner’s state postconviction motion,

the state court recounted the testimony from the evidentiary hearing, described above. 

The state court also noted that counsel testified at the hearing that 

there were other witnesses who could have presented testimony helpful to

[Petitioner], but because of there [sic] unwillingness to testify, he decided

not to depose or subpoena them for trial, purportedly as a strategic

decision similar to the one he made when considering whether to call Mr.

Laminack as a witness. In his testimony, counsel did not name these

individuals. . . . However, counsel summarized their testimony and

suggested that had they testified at trial about the things they had told

him, the Defendant would have been acquitted.

(Resp. Ex. FF, at 1715.) The court described counsel’s testimony about an individual

who told him that the victim and his son had a dispute over a tank of anhydrous

ammonia, which the son wanted for making methamphetamine. Another individual told

counsel that he had sold the victim a bag of Valium, which was in the possession of the

victim’s son after the murder. Id. The court concluded:

Given the testimony at this hearing, it seems clear to this court that

counsel’s failure to depose and subpoena for trial Mr. Laminack, Mr.

Marshall and the two “phantom” witnesses to which he alluded to at this

hearing constitutes a departure from a reasonably competent

performance under prevailing professional standards. This court concurs

with the Defendant’s counsel in these proceedings that had counsel either

obtained sworn statements from the witnesses or deposed them, he could

have established what they would have said and had available the means

to impeach those individuals if they changed their testimony at trial. This

omission must, however, be viewed against the balance of counsel’s

performance in defending his client, which in this case, was nothing short

of stellar. See Hartley v. State, 990 So. 2d 1008 (Fla. 2008).

It is the second prong of the Strickland test where Defendant’s
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motion falls short. In order to prevail in these proceedings, the Defendant

must establish that, but for the unprofessional errors, there is a

reasonable probability that the result of the proceeding would have been

different. After having reviewed the transcript in this matter, it is clear to

this court that counsel presented other absence of motive evidence that

the Defendant had a good relationship with the victim and that the victim

made available to the Defendant most anything he needed. Counsel also

offered witness testimony that the victim’s son had an ongoing dispute

with his father over the anhydrous ammonia tank and also expected to

receive his father’s business when he died. The jury had ample evidence

to consider Keith Brown [the victim’s son]’s motive an opportunity to rob

and kill his father. Adding additional witnesses to testify on these subjects

would not have changed the outcome of this trial, given the State’s

circumstantial evidence and the compelling testimony from numerous

State witnesses, including the Defendant’s nephew, who testified that the

Defendant told them that he planned and executed the robbery and

murder of Jerry Brown. See Strickland v. Washington, 466 U.S. 668

(1984).

Id. at 1715-16. 

Petitioner has not shown that the state court’s denial of postconviction relief on

ths claim was contrary to or an unreasonable application of Strickland. The state court

found that trial counsel’s performance did fall below a reasonable professional

standard, because counsel should have at least deposed the favorable witnesses prior

to trial so that he could have potentially impeached them if they testified differently at

trial. The court found, however, that counsel’s performance in general was otherwise 1

“stellar,” and, critically, that there was no evidence that the outcome of the trial would

have been different if Laminack and Marshall had testified. Petitioner asserts that

Laminack would have testified that Petitioner and the victim were close friends, and that

 Respondent correctly notes that the state postconviction court addressed

1

counsel’s failure to depose, subpoena or call as witnesses Laminack and Marshall, as

well as two “phantom” witnesses, but only the failure to call Laminack and Marshall is at

issue here.
Page 21 of 27

the victim would lend Petitioner money and his vehicle on occasion. As the state court

noted, there was other testimony at trial that the Defendant and the victim had a good

relationship. (Resp. Ex. D, at 706, 854, 889.) There was also testimony that the victim

had loaned Petitioner money. Id. at 868. Petitioner similarly asserts that Marshall’s

testimony – that Petitioner had permission to use the victim’s truck, and therefore no

motive to rob him – would have undermined the state’s theory of motive. But as the

state court found, defense counsel presented other evidence that Petitioner was close

friends with the victim, presumably undermining motive. Defense counsel also

presented evidence that the victim’s son did have motive to kill his father based on their

conflict over the victim’s possession of a tank of anhydrous ammonia. Id. at 984. In

light of this evidence presented at trial, as well as the other circumstantial evidence of

guilt and the multiple witnesses who testified that Petitioner had confessed to the crime,

Petitioner has failed to show that he was prejudiced as a result of his counsel’s failure

to call Laminack and Marshall as witnesses. Accordingly, Petitioner is not entitled to

relief on this claim.

Claim Five: Ineffective Assistance of Counsel for Failing to Move for a Statement

of Particulars

Petitioner asserts that his counsel was ineffective for failing to move for a

statement of particulars to narrow down the date of death of the victim, Jerry Brown. 

While the State’s theory was that the victim had been killed on December 26, 2002, the

exact date of the victim’s death was a disputed issue at trial. The victim’s body was not

found until January 2, 2003. Both the State and the defense offered expert testimony

regarding the date of death, and there was testimony that the victim could have died
Page 22 of 27

between December 26, 2002 and December 31, 2002. Petitioner asserts that if his

counsel had moved for a statement of particulars, the State would have had to prove

that the victim died on December 26, 2002. Petitioner asserts that he had an alibi

witness for that date, Wanda Smebly, and that he had other alibi witnesses for the

following week.

Petitioner raised this claim in his state postconviction motion, and the state court

denied the claim. (Resp. Ex. FF.) At the evidentiary hearing on the postconviction

motion, Petitioner’s trial counsel testified that he thought that the State’s theory of the

case – that the victim was shot in his recliner at home on December 26, 2002 – was not

plausible because blood patterns suggested that the victim had walked out of his home

after being shot. (Resp. Ex. CC, at 50.) Counsel further testified that the issue of filing

a statement of particulars did not come up, because “it was so obvious that Jerry Brown

wasn’t killed on December – what was it, 26 or maybe early morning the 27 . . . I mean,

th

that just didn’t happen.” Id. at 60. 

The state postconviction court’s denial of this motion was not contrary to or an

unreasonable application of federal law. The exact date of the victim’s death was

unknown, and the subject of disputed testimony at trial. Under Florida law, “[a]

defendant is not entitled to a bill of particulars specifying the exact day upon which a

crime occurred if the exact date is not known.” Jenkins v. State, 444 So.2d 1108, 1108

(Fla. 1 DCA 1984) (citing State v. McGregor, 409 So.2d 504 (Fla. 4 DCA 1982)). If

st th

Petitioner’s trial counsel had moved for a statement of particulars as to the day of

victim’s death, the request likely would have been denied. Petitioner’s counsel cannot

be found ineffective for failing to make a motion that would have been meritless. 
Page 23 of 27

 Even if Petitioner’s counsel had moved for a statement of particulars, the State

likely could not have provided the exact date of December 26, 2002 when trial

testimony indicated that the exact date was not known – rather, the State likely would

have reiterated the allegations of the indictment, that the victim died “on or about”

December 26, 2002. Accordingly, Petitioner is unable to show that he was prejudiced

as a result of his counsel’s alleged failure. Petitioner is not entitled to relief on this

claim.

Claim Six: Ineffective Assistance of Counsel for Failing to Properly Object to

Improper Prosecutorial Statements

Petitioner asserts that his trial counsel was ineffective for failing to properly

object to the prosecutor’s statement, in closing argument, that the defense had failed to

move for a bill of particulars to narrow down the date of death. Petitioner asserts that

this remark improperly shifted the burden of proof to the defense on the issue of when

the victim died. Petitioner contends that his trial counsel was constitutionally ineffective

for failing to object to this remark and for failing to request a mistrial.

Petitioner raised this issue in his state postconviction motion, and the state court

denied relief on the merits. The First DCA affirmed without opinion. (Resp. Ex. FF, 

It is well-settled that improper jury argument by the prosecution violates a

defendant’s constitutional right to a fair trial in some circumstances. See, e.g., Cronnon

v. State, 587 F.2nd 246, 251 (5 Cir. 1978). “[T]he appropriate standard of review for

th

such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the

broad exercise of supervisory power.’” Davis v. Kemp, 829 F.2d 1522, 1527 (11 Cir. th

1987). The Court applies a two-step process in reviewing such a claim: (1) the Court
Page 24 of 27

considers whether the argument was improper; and (2) whether any improper argument

was so prejudicial as to render the trial fundamentally unfair. Id. at 1526. Thus, “‘[t]he

relevant question is whether the prosecutors’ comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Id. at 1526-27

(quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). A trial is fundamentally unfair

if there is a reasonable probability that but for the prosecutor’s improper remarks, the

outcome of the trial would have been different. Williams v. Kemp, 846 F2d 1276, 1283

(11 Cir. 1988). th

As discussed above, the date of the victim’s death was a disputed issue at trial. 

During the prosecutor’s rebuttal closing argument, he said:

Now, Mr. Smith talks about the day of the 26 . Is that the right th

day? The state has alleged that. Well, let me read you the information

out of the, out of the wording out of the indictment. On or about the 26 of th

December. It is not a specific thing. It is not a specific date, it is on or

about. And there is a pleading known in the law as – 

(Resp. Ex. D, at 1100.) At this point Petitioner’s counsel objected that this argument

was “outside the scope of any evidence.” Id. The state trial judge overruled the

objection and told the prosecutor to continue. Id. The prosecutor went on, “There is a

pleading known as a Bill of Particulars in which you can narrow down the date. There

has been no evidence that there has been a request for a Bill of Particulars or a

Statement of Particulars.” Id. At the evidentiary hearing, Petitioner’s trial counsel

testified that he “could’ve made that specific objection, that the State was attempting to

shift the burden” but at the time of the trial, he “didn’t perceive it as that. I saw it more

as the State trying to interject irrelevant stuff into the, into their argument.” (Resp. Ex.

CC, at 63.) Counsel further testified that he felt that the “appellate courts kind of gloss
Page 25 of 27

over” shifting-of-the-burden arguments on appeal. Id. 

Petitioner has failed to show that the state court’s denial of this claim was

contrary to or an unreasonable application of federal law. While Petitioner argues that

his counsel should have objected to the prosecutor’s comment on the grounds that the

comment improperly shifted the burden of proof – rather than objecting, as he did, that

the comment was outside the scope of the evidence – that objection would have been

meritless. Read in the context of defense counsel’s closing statement, the prosecutor’s

remark was not improper. In his closing argument, defense counsel asserted that “the

state has alleged that . . . this murder occurred on December 26 .” (Resp. Ex. D, at th

1056.) He went on to discuss expert testimony that indicated that the murder could

have occurred between December 26 and December 30, 2002, as well as physical

evidence that suggested that the time of death was around December 29, 2002. Id. at

1057, 1059-61. Defense counsel also discussed testimony that suggested that the

death occurred on December 31, 2002. Id. at 1062-63. He went on to suggest that the

prosecution’s theory of the case was implausible, and that Petitioner had no motive to

kill the victim. 

Because the closing argument by Petitioner’s counsel stressed that the State’s

theory of the case was that the victim was killed on December 26, 2002, and went on to

discuss conflicting testimony regarding the date of death, it was proper for the

prosecutor to note that the indictment actually stated “on or about December 26, 2002.” 

Id. at 1100. As the prosecutor stated, the indictment did not list “a specific date, it is on

or about.” Id. The State’s comment that the defense had not filed for a statement of

particulars was clearly directed at emphasizing that the State only had to prove that the
Page 26 of 27

crime occurred “on or about” December 26, 2002, rather than improperly shifting the

burden of proof to the defense to prove the date. Because the prosecutorial remarks

were not improper burden-shifting, Petitioner’s counsel could not be found ineffective

for failing to make a meritless objection.

Even if the prosecutor’s remarks were improper, they were not so prejudicial as

to affect the outcome of the trial. As discussed previously, the State presented

circumstantial evidence that the Petitioner had a motive to rob the victim and was

present at the victim’s home during the period in question. The State also presented

testimony from multiple individuals who stated that Petitioner had confessed to robbing

and murdering the victim. With respect to the date that the victim was killed, expert

testimony was presented by both the State and the defense on this issue. Petitioner

has presented no evidence that he was prejudiced by his counsel’s purported failure. 

Accordingly, he is not entitled to relief on this claim.

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
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appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument

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

recommendation.

Accordingly, it is respectfully RECOMMENDED:

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

2. That a certificate of appealability should be DENIED.

IN CHAMBERS this 6 day of August 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.