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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JAMES LONNIE BAKER, JR.,

Petitioner,

v. Case No. 3:10cv260/WS/CJK

KENNETH S. TUCKER,

Respondent.

___________________________________________________________________

REPORT AND RECOMMENDATION

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

§ 2254. (Doc. 1). Respondent filed an answer (doc. 21), submitting relevant portions

of the state court record (doc. 22). Petitioner replied. (Doc. 25). The matter is

referred to the undersigned magistrate judge for report and recommendation pursuant

to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all

issues raised by petitioner, the undersigned concludes that no evidentiary hearing is

required for the disposition of this matter. Rule 8(a) of the Rules Governing Section

2254 Cases in the United States District Courts. The undersigned further concludes

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

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

BACKGROUND AND PROCEDURAL HISTORY

On July 5, 2007, petitioner was charged with two counts of unlawful sexual

activity with a minor (Counts 1 and 2) and one count of contributing to the

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delinquency of a child (Count 3), in Santa Rosa County Circuit Court Case Number

07-CF-829. (Doc. 22, Ex. A). Petitioner, represented by counsel, entered into a plea 1

agreement whereby petitioner agreed to plead no contest to felony battery on Counts

1 and 2 (a lesser included offense of unlawful sexual activity with a minor), and to

Count 3 as charged. (Ex. B). The plea agreement provided that the State would make

the following recommendation as to sentence: that the court withhold the imposition

of sentence and place petitioner on probation (with enumerated conditions) for 120

months on Counts 1 and 2 (two consecutive 60-month terms), and a concurrent 12-

month term of probation on Count 3. On December 18, 2008, the trial judge accepted

petitioner’s pleas, adjudicated petitioner guilty of the two felony batteries and of

contributing to the delinquency of a child, and sentenced petitioner consistent with

the plea agreement. (Ex. C). Petitioner did not appeal. 

Less than one month later, on January 6, 2009, an affidavit of violation of

probation was filed alleging that petitioner violated Condition 5 of his probation

order. (Ex. D). Condition 5 of the probation order provided: “You will live without

violating the law. A conviction in a court of law shall not be necessary for such a

violation to constitute a violation of your probation/community control.” (Ex. C). 

The affidavit of violation alleged that petitioner violated Condition 5 by committing

aggravated battery and felony battery by strangulation against Brenda OdomLowery. 

(Ex. D). A violation of probation hearing was held on April 16, 2009. (Ex. E). The

court found petitioner guilty of violating his probation by committing the batteries

alleged in the affidavit, revoked petitioner’s probation and sentenced petitioner to 60

months imprisonment on Count 1, a consecutive 12-month term of imprisonment on

Hereafter, all references to exhibits are to those provided at Doc. 22, unless otherwise noted. 1

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Count 2, and a concurrent term of 364 days county jail on Count 3. (Ex. E, p. 204;

see also Ex. F). Petitioner appealed, raising one issue: “Appellant Did Not Willfully

And Substantially Violate His Probation.” (Ex. G). The Florida First District Court

of Appeal (“First DCA”) per curiam affirmed without written opinion on April 30,

2010. Baker v. State, 34 So. 3d 3 (Fla. 1st DCA 2010) (Table) (copy at Ex. N). The

mandate issued May 26, 2010. Id.

Petitioner filed this federal habeas petition on July 20, 2010. (Doc. 1). The

petition presents four grounds for relief: (1) “Petitioner Alleging (DOC) for

‘Negligence’ False Imprisonment and in Violation of Petitioner Due Process Clause

of the 14th and 15th Amendment to the U.S. Constitution”; (2) “The Petitioner Did

Not Willfully and Substantially Violate His Probation”; (3) “The Judge Abused his

Discretion in Allowing the Prosectorial [sic] Misconduct by Disclosing a

Fundamental Error that caused the ‘Negligence’ to False Imprisonment”; and (4)

“Negligence False Imprisonment and Violation of the 5th, 6th, 13th, 14th, 15th and

Due Process to the U.S. Constitution.” (Doc. 1, pp. 4-5). Respondent asserts that

petitioner is not entitled to relief on any of his claims, because they are either

procedurally defaulted and without merit, or insufficiently pled. (Doc. 21).

EXHAUSTION AND PROCEDURAL DEFAULT

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

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

§ 2254(b)(1), thereby giving the state the “‘opportunity to pass upon and correct’ 2

Section 2254 provides, in pertinent part: 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State; or

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

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

rights of the applicant.

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

DISCUSSION

Ground One “Petitioner Alleging (DOC) for ‘Negligence’ False Imprisonment

and in Violation of Petitioner Due Process Clause of the 14th and

15th Amendment to the U.S. Constitution” (doc. 1, p. 4).

Petitioner alleges the following facts in support of this claim: “The State of

Florida argued that the issue was not preserved because defendant didn’t object to

introduction of ‘hearsay testimony’ even though hearsay testimony is often

inadmissible evidence that cannot be legally introduced at trial. The (DOC) had no

probable cause to revoke Petitioner’s probation.” (Doc. 1, p. 4). The Court construes

this claim as one that petitioner’s probation revocation violated the Due Process

Clause of the Fourteenth Amendment because the finding that petitioner violated his

probation was based on hearsay. Respondent asserts a procedural default defense,

arguing that although petitioner presented a similar state law claim on direct appeal,

petitioner never presented a federal due process claim to the state courts and is now

procedurally barred from doing so. (Doc. 21, pp. 12-15). Respondent alternatively

argues that the claim is without merit. 

Petitioner directly appealed the revocation of his probation, arguing that he did

not willfully and substantially violate his probation because the only evidence of the

violation (committing the batteries) was the hearsay statement of the victim, and

Florida law requires more than hearsay to establish a violation of probation. (Ex. G). 

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Petitioner’s substantive argument relied exclusively on state law, citing Cuciak v.

State, 410 So.2d 916 (Fla. 1982), for the proposition that: “While hearsay may be

admissible in a probation revocation hearing, it cannot be the sole evidence used to

revoke probation.” (Ex. G, p. 12). Petitioner distinguished two other state court

cases on their facts. (Id., pp. 12-13). Petitioner did not assert his direct appeal claim

as a matter of federal constitutional law, did not cite to any federal cases, and did not

so much as mention the federal right to due process or the United States Constitution. 

Petitioner did not “fairly present” to the state court his present claim that the

revocation of his probation violated the Due Process Clause of the Fourteenth

Amendment. See, e.g., Duncan v. Henry, 513 U.S. at 365-66 115 S. Ct. at 888

(holding that federal habeas petitioner failed to exhaust his claim that the state trial

court’s evidentiary ruling violated the Due Process Clause of the Fourteenth

Amendment; petitioner’s state law claim that the prejudicial effect of the evidence

outweighed its probative value was only somewhat similar to, not the same as, 

petitioner’s federal habeas claim that the evidence wasso inflammatory asto prevent

a fair trial); Zeigler v. Crosby, 345 F. 3d 1300, 1307 (11th Cir. 2003) (holding that

federal habeas petitioner failed to “fairly present” his juror misconduct claims to the

state courts where his brief to the state appellate court did not refer to the federal

constitutional issues raised in his federal habeas petition, and none of the cases cited

in his direct appeal discussed the Federal Constitution); see also Baldwin v. Reese,

541 U.S. 27, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64 (2004) (“[A] litigant wishing

to raise a federal issue can easily indicate the federal law basis for his claim in a state

court petition or brief, for example, by citing in conjunction with the claim the federal

source of law on which he relies or a case deciding such a claim on federal grounds,

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or by simply labeling the claim ‘federal.’”). 

It appears that any further attempt at exhaustion in the state courts would be

futile, because petitioner’s claim would be procedurally barred under Florida law.

See Freeman v. Attorney General, Fla., 536 F.3d 1225, 1231 (11th Cir. 2008)

(recognizing that “[u]nder Florida law, proceedings under Rule 3.850 may not be

used as a second appeal, and issues that ‘could have been, should have been, or were

raised on direct appeal’ may not be raised in a later post-conviction motion, absent

special circumstances not present in this case.”) (quoting Medina v. State, 573 So. 2d

293, 295 (Fla. 1990)); Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla. 1995) (holding

that claims of trial court error which should have been raised on direct appeal are

procedurally barred form review in a postconviction proceeding); Johnson v. State,

593 So. 2d 206, 208 (Fla. 1992) (“Issues which either were or could have been

litigated at trial and upon direct appeal are not cognizable through collateral attack.”). 

Petitioner makes none of the requisite showing to excuse his default. Petitioner’s

procedural default bars federal habeas review of Ground One. 

Petitioner’s Ground One may also be denied on the merits. See 28 U.S.C. §

2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”). Petitioner claims his probation revocation violates due process,

because the probation revocation court admitted and relied upon hearsay evidence to

find that petitioner violated his probation. In Gagnon v. Scarpelli, 411 U.S. 778, 93

S. Ct. 1756, 36 L. Ed. 2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.

Ct. 2593, 33 L. Ed. 2d 484 (1972), the United States Supreme Court held that a

probationer in a probation revocation proceeding is not entitled to the full panoply of

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constitutional rights guaranteed a defendant in a criminal proceeding. A probationer

is entitled only to minimal due process rights, including: “(a) written notice of the

claimed violations of [probation]; (b) disclosure to the [probationer] of evidence

against him; (c) opportunity to be heard in person and to present witnesses and

documentary evidence;(d) the right to confront and cross-examine adverse witnesses

(unless the hearing officer specifically finds good cause for not allowing

confrontation); (e) a ‘neutral and detached’ hearing body. . .; and (f) a written

statement by the factfinder[ ] as to the evidence relied on and reasons for revoking

[probation].” Morrisey v. Brewer, 408 U.S. at 489, 92 S. Ct. at 2604. 

In Florida, a violation of probation need only be proven by the preponderance,

or greater weight, of the evidence. Griffin v. State, 603 So.2d 48, 50 (Fla. 1st DCA

1992) (holding that if a probation revocation hearing involves an alleged violation of

Condition 5 of the standard Order of CommunityControl or Probation, the State need

only show by a preponderance of the evidence that the probationer “committed the

offense charged.”) (citing Rock v. State, 584 So.2d 1110, 1112 (Fla. 1st DCA 1991)

(“[P]roof sufficient to support a criminal conviction is not required to support a

judge’s discretionary order revoking probation. . . .Further, the state . . . need only

show by a preponderance of the evidence that the defendant committed the offense

charged.”)). The State may rely on hearsay evidence that would prove inadmissible

at trial, so long as the State presents supporting non-hearsay evidence. Boyd v. State,

1 So. 3d 1186, 1187 (Fla. 2d 2009); Kalmbach v. State, 988 So.2d 1279 (Fla. 5th

DCA 2008) (“Hearsay evidence in the form of a victim’s statement, combined with

non-hearsay evidence corroborating the statement, is often sufficient to support a

violation of probation.”). The non-hearsay evidence need only corroborate the

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hearsay testimony; it need not independently establish the commission of a violation. 

See Kalmbach at 1280 (citing Russell v. State, 982 So.2d 642 646 (Fla. 2008) (“[T]he

non-hearsay evidence does not have to independently establish the probation

violation; it need only support the hearsay evidence.”)).

At petitioner’s probation revocation hearing the court admitted, without

objection, hearsay in the form of the victim’s sworn written statement to police made

a few hours after petitioner battered her. (Ex. E). The victim’s written statement

described how petitioner struck the victim in the face and choked her. (Id., pp. 181-

82). The victim’s written statement was corroborated by non-hearsay evidence

(testimony from the two police officers who responded to the scene). Petitioner was

allowed to cross-examine the officers and to call his own witnesses – himself and the

victim. On the State’s cross-examination of the victim, the victim acknowledged that

it was her signature on the written statement. The victim described significant

injuries arising from the battery, including that her “right orbit was broken,” her nose

was broken, and she had bruising to the back of her eye caused by petitioner’s blows. 

(Id., pp. 182-83). The nature of the victim’s injuries caused her to have only a vague

recollection of what occurred the night of petitioner’s attack. (Id., p. 183). The trial

court found that the victim’s prior written statement was reliable, credible, and

corroborated by the officers’ testimony. (Id., pp. 203-04). It was only after making

these findings that the court relied upon the victim’s written statement, as well asthe

3

officers’ testimony, to find that petitioner willfully and substantially violated his 

probation by committing aggravated battery and felony battery, and that petitioner’s

The probation revocation court’s findings of fact, including its reliability and credibility

3

determinations, are presumed correct. 28 U.S.C. § 2254(e)(1). 

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violations justified revoking his probation. (Ex. E, pp. 203-04; Ex. F). The court

explained its reasoning in a detailed oralstatement that wasrecorded and transcribed. 

(Ex. E, pp. 203-04). 

The probation revocation court did not violate petitioner’s federal

constitutional right to due process when it admitted (without objection) the victim’s

hearsay statement and relied upon that statement in part (along with corroborating

non-hearsay evidence) to find petitioner guilty of violating his probation. Petitioner

has not shown that his probation revocation violated due process. Petitioner is not

entitled to federal habeas relief on Ground One. 

Ground Two “The Petitioner Did Not Willfully and Substantially Violate His

Probation” (doc. 1, p. 4).

Petitioner alleges the following facts in support of this claim: “The petitioner

through his undersigned (PD) attorney of the State of Fla. was a conflict of interest. 

Petitioner has a right to counsel and also was privileged against self-incrimination as

guaranteed by the 5th, 6th and the Due Process Clause of the 14th Amendment U.S.

Constitution.” (Doc. 1, p. 4). Respondent assertsthis claim comprisesthree separate

claims, all of which are procedurally defaulted and/or insufficiently pled. (Doc. 21,

pp. 19-20). 

Petitioner’s first assertion – that his probation revocation violated due process

because he did not willfully and substantially violate his probation – is a reiteration

of Ground One above, and should be denied for the same reasons discussed in

Ground One – the claim is procedurally defaulted and without merit. See discussion

supra Ground One. 

Petitioner’s second assertion – that his probation revocation counsel was

ineffective because he labored under a conflict of interest – is subject to dismissal

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because it was not presented to the state courts and because it is conclusory and

unsupported by any allegations of fact. See Borden v. Allen, 646 F.3d 785, 829 (11th

Cir. 2011) (Wilson, C.J., concurring in part and dissenting in part) (noting that

“[h]abeas claims may be dismissed at the pleading stage, for example, because, as

pled, they are so ‘vague (or) conclusory as to warrant dismissal for that reason

alone.’” (quoting Blackledge v. Allison, 431 U.S. 63, 75, 97 S. Ct. 1621, 52 L. Ed. 2d

136 (1977)) (internal quotation marks and citation omitted)); Lindsey v. Smith, 820

F.2d 1137, 1153 (11th Cir. 1987) (holding that petitioner’s “conclusoryassertion [that

Alabama’s ‘heinous, atrocious or cruel’ aggravating factor is unconstitutionally

vague] is unsupported by any allegation of fact beyond the circumstances of this

particular case, and thus fails to state a claim for which habeas relief can be

granted.”); United States v. Jones, 614 F.2d 80, 82 (11th Cir. 1980) (holding that §

2255 petitioner’s conclusory statement that the Government engaged in a conspiracy

to violate his constitutional rights was insufficient to state a constitutional claim in

habeas corpus). The fact that the Office of the Public Defender is financially

supported by the State of Florida does not remotely suggest that petitioner’s counsel

labored under a conflict of interest. 

Petitioner’s third assertion – that his probation revocation violated his right

against self-incrimination – is subject to dismissal for the same reasons (it was not

presented to the state courts, and is conclusory and unsupported by any allegations

of fact explaining how or why petitioner’s decision to testify at the probation

revocation proceeding violated the Constitution). Petitioner is not entitled to federal

habeas relief on any of the issues raised in Ground Two.

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Ground Three “The Judge Abused his Discretion in Allowing the Prosecutorial

[sic] Misconduct by disclosing a fundamental error that caused

the ‘Negligence' to False Imprisonment” (doc. 1, p. 5).

Petitioner alleges the following facts in support of this claim: “The court had

no probable cause to revoke petitioner’s probation on a ‘hearsay testimony’ which

was inadmissible evidence that cannot legally be introduced at a trial or hearing in

violation that established the right to due process of law and equal protection of the

law of U.S. Constitution.” (Doc. 1, p. 5). Respondent asserts a procedural default

defense identical to that presented in Ground One. (Doc. 21, p. 21). 

This claim is another reiteration of Ground One. Ground Three should be

denied for the same reasons as Ground One – it is procedurally defaulted and without

merit. See discussion supra Ground One. Petitioner is not entitled to federal habeas

relief on Ground Three. 

Ground Four “Negligence False Imprisonment and Violation of the 5th, 6th,

13th, 14th, 15th and Due Process to the U.S. Constitution” (doc.

1, p. 5). 

Petitioner alleges the following facts in support of this claim: “Evidence that

cannot be legally introduced at a trial that (subjects) any citizen of the U.S. or other

persons within the jurisdiction thereof the deprivation of any rights or immunities

secured by the constitution and laws shall be liable to the petitioner injured in action

at law and other proper proceedings for redress.” (Doc. 1, p. 5). Petitioner goes on

to state: “‘Hearsay testimony’ cannot constitute the only evidentiary support for a

fact without an independ[e]nt investigation or other misconduct of petitioner.” (Id.). 

Respondent asserts a procedural default defense identical to that presented in Ground

One. (Doc. 21, p. 22-23). 

This claim is another reiteration of Ground One. Ground Four should be

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denied for the same reasons Ground One was denied – it is procedurally defaulted and

without merit. See discussion supra Ground One. Petitioner is not entitled to federal

habeas relief on Ground Four. 

CERTIFICATE OF APPEALABILITY

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

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

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

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

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

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

Section 2254 Cases.

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

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

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

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

appealability in its final order.

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

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

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

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

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

recommendation.

Accordingly, it is respectfully RECOMMENDED:

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

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convictions and sentencesin State of Florida v. James Lonnie Baker, Jr. in the Circuit

Court for Santa Rosa County, Florida, Case No. 07-CF-829 be DENIED, and that the

clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 16th day of July, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

NOTICE TO THE PARTIES

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

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

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

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

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

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

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