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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RICHARD A. BLANE,

Petitioner,

v. Case No. 3:10cv350/LC/CJK

KENNETH S. TUCKER,1

Respondent.

___________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

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

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

state court record. (Doc. 20). 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 isrequired

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.

Kenneth S. Tucker succeeded Edwin G. Buss as Secretary of the Florida Department of 1

Corrections, and is automatically substituted as the respondent. Fed.R.Civ.P. 25(d).
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BACKGROUND AND PROCEDURAL HISTORY

Petitioner was charged in the Circuit Court for Walton County, Florida, with

Possession of a Controlled Substance (Methamphetamine) (Count I), Escape (Count

II), Battery on a Law Enforcement Officer (Count III) and Petit Theft (Count IV). 

(Doc. 20, Ex. A, pp. 23-24). Petitioner went to trial on Counts I and II, and was 2

found guilty of both counts(as charged) by jury verdict. (Id., p. 113). The State nolle

prossed Counts III and IV. (Id., p. 152). The facts adduced at trial, viewed in the

light most favorable to the prosecution, follow. (Ex. B, pp. 1-149). On September

3

28, 2004, Deputy Howell of the Walton County Sheriff’s Office received a “pick-up

order,” signed by Judge Kelvin Wells, to take petitioner into custody. (Id., pp. 27,

34). Howell went to petitioner’s residence to find him. (Id., p. 27). Deputy Howell

was accompanied by Cameron Johnson, a correctional officer at the Walton County

Jail. (Id.). Deputy Howell located petitioner inside petitioner’s residence. Petitioner

was in a bedroom, lying on the floor behind a table, with a camouflage jacket draped

over the table in an attempt to conceal himself. (Id., p. 35). Deputy Howell advised

petitioner that he was under arrest and placed petitioner under arrest. (Id., pp. 28, 35).

Petitioner complained of his arm hurting, so Deputy Howell handcuffed petitioner in

front. Deputy Howell patted petitioner down and discovered three vials of

All references to exhibits will be to those provided at Doc. 20, unless otherwise noted. 2

The facts stated herein are those presented at trial and viewed in the light most favorable to 3

the prosecution. Due process requires a state to prove each element of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). 

Where there are conflicting inferences and disputes exist, this Court must presume that the jury

resolved such conflicts in favor of the prosecution, and must defer to that resolution. Martin v. State

of Alabama, 730 F.2d 721,724 (11th Cir. 1984). Although this Court is not called on to address

directly the sufficiency of the evidence, the evidence presented to the jury plays a part in the Court’s

analysis.

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methamphetamine in petitioner’s pants pocket. (Id., pp. 28-29). As Correctional

Officer Johnson was escorting petitioner to the patrol car to take petitioner to jail,

petitioner shoved Johnson and took off running. (Id., pp. 32-33, 37, 53, 62). Officer

Johnson chased petitioner, but petitioner got away. (Id., pp. 37, 62-65). Petitioner

was found on January 14, 2005, in Bainbridge, Georgia, where he was arrested and

charged. (Id., pp. 96-97). 

On October 10, 2005, petitioner was adjudicated guilty and sentenced to

concurrent terms of five years imprisonment on Count I (Possession of

Methamphetamine) and fifteen yearsimprisonment on Count II (Escape). (Ex. A, pp.

114, 136-39). Petitioner’s judgment of conviction was affirmed on direct appeal on

October 20, 2008. Blane v. State, 992 So. 2d 252 (Fla. 1st DCA 2008) (Table) (copy

at Ex. F). 

On September 24, 2009, petitioner filed a motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850, raising six grounds for relief. (Ex.

G, pp. 1-20). Petitioner later amended his motion to add a seventh ground. (Id., pp.

161-64). The trial court denied relief without an evidentiary hearing. (Id., pp. 194-

98). The Florida First District Court of Appeal (“First DCA”) per curiam affirmed

without written opinion on June 18, 2010. Blane v. State, 38 So. 3d 134 (Fla. 1st

DCA 2010) (Table) (copy at Ex. H). The mandate issued July 14, 2010. (Id.). 

Petitioner filed his federal habeas petition in this Court on September 8, 2010. 

(Doc. 1, p. 1). The petition presents four grounds for relief, all grounded in

petitioner’s contention that trial counsel wasineffective for failing to move to dismiss

the charges and to suppress evidence seized from petitioner’s home and person, on

the grounds that they were the fruit of an illegal search of petitioner’s home. (Id., pp.

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3-5). Respondent concedes that petitioner exhausted his claims by presenting them

in his Rule 3.850 proceeding, but argues that petitioner is not entitled to federal

habeas relief because his claims are without merit. (Doc. 20).

LEGAL STANDARDS

Section 2254 Standard of Review

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

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

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

Section 2254(d) provides, in relevant part:

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

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

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

State court proceedings unless the adjudication of the claim–

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

an unreasonable application of, clearly established Federal law,

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

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

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d) (2011).

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

in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The 4

Unless otherwise noted, references toWilliams are to the majorityholding, written byJustice 4

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

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

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

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

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

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

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

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

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

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

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

fromthisCourt’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and Breyer. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

an unreasonable application of a Supreme Court holding nor an unreasonable

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

633 F.3d at 1292.

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

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

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

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

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

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

Richter, 131 S. Ct. at 786.

Clearly Established Federal Law Governing Claims of Ineffective Assistance of

Counsel

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

(1984) the Supreme Court set out a two-part inquiry for ineffective assistance claims. 

A petitioner must show that (1) his counsel’s performance was constitutionally

deficient, and (2) the deficient performance prejudiced him. 466 U.S. at 687, 104

S.Ct. 2052. “First, petitioner must show that ‘counsel’s representation fell below an

objective standard of reasonableness. Second, petitioner must show that ‘there is a

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

proceeding would have been different.’” Darden v. Wainwright, 477 U.S. 168, 106

S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (quoting Strickland, 466 U.S. at 668, 694).

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, 104 S. Ct. at 2070;

Collier v. Turpin, 177 F.3d 1184, 1197 (11 Cir. 1999). “Surmounting Strickland’s th

high bar is never an easy task.” Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473,

1485, 176 L. Ed. 2d 284 (2010). “Establishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131

S. Ct. at 788. As the Richter Court explained:

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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

applicationsissubstantial. 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). 

DISCUSSION

Ground One Counsel Was Ineffective For Failing To File A Motion To

Dismiss The Charges (Or A Motion For Judgment Of Acquittal)

Based On An Illegal Search Of Petitioner’s Home

Petitioner claims defense counsel was ineffective for failing to file a motion to

dismiss the charges or for a judgment of acquittal asserting that Deputy Howell’s and

Officer Johnson’s search of petitioner’s home was illegal. (Doc. 1, p. 3). Petitioner

alleges in support of this claim that Howell and Johnson came to his home based on

a pick-up order for bond revocation that did not include a search warrant. Petitioner

asserts that the individual (Douglas Tucker) who invited the officers to enter and

search petitioner’s home was merely a “visitor”, and that Tucker’s consent to the

officers’ entry into petitioner’s home was not valid because “[a]t no time did police

question the visitor to establish if said visitor had authority to allow police to enter

petitioners [sic] home or to give police permission to search petitioners [sic]

residence.” (Id., pp. 3-4). Petitioner argues that “[h]ad counsel moved for the

suppression of any evidence that was seized in this illegal search the court would

have been compelled to grant such a motion and but for counsel’s failure to object to

the introduction of this illegally obtained evidence and move for a suppression

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hearing the outcome of the proceedings would have been different.” (Id., p. 4). 

Petitioner presented this claim to the state courts in his Rule 3.850 motion as

“Issue One”. The state court denied relief for the reasons (including record

attachments) set forth in the State’s Response to petitioner’s motion. (Ex. G, p. 196

(adopting and incorporating asthe court’s findings of fact and conclusions of law the

“State’s Response to Defendant’s Motion for Postconviction Relief Pursuant to Fla.

R. Crim. P. 3.850” (copy at Ex. G, pp. 168-78))). The state court found that the trial

transcript conclusively showed defense counsel did move for a judgment of acquittal

and directed verdict arguing that the State failed to meet its burden of proving the

charges against petitioner. (Ex. G, p. 168 (citing Trial Tr. at 148)). The court further

found that to the extent petitioner faulted defense counsel for failing to make the

specific argument that petitioner was not under a valid arrest because his arrest was

the fruit of an illegal search (i.e., one that violated the Fourth Amendment), such an

argument would not have resulted in dismissal of the charges or a judgment of

acquittal. The court explained:

It has been held that voluntary consent of a third-party, who has

apparent authority over shared premises, is a valid exception to the

warrant requirement. See U.S. v. Matlock, 415 U.S. 164, 171 (1974);

see also U.S. v. Wright, 971 F.2d 176, 180 (Fla. 8th DCA 1992 [sic])

(valid consent may be given by a third party with common authority

over the premises.) Douglas Tucker testified at trial that he had been

living with the defendant for a few weeks and when law enforcement

arrived to arrest the defendant, he was sleeping on the couch. Trial

Transcript p. 125 ¶ 23-25 p. 126 ¶ 23-25. Testimony elicited at trial has

shown that Douglas Tucker did have “common authority over the

premises” on September 28, 2004 and gave his voluntary third-party

consent for law enforcement to enter and search the mobile home. 

However, as stated above, consent is an exception to the warrant

requirement. Law enforcement in this case had knowledge of a pick-up

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order (capias warrant) to take defendant into custody, issued by Judge

Kelvin Wells (discussed in Ground II) on September 28, 2004, and

arrested the defendant pursuant to that order. Trial Transcript p. 27 ¶

12-16. Consent by the homeowner (Defendant) or a third-party

(Douglas Tucker) was not required.

The record conclusively shows that trial counsel did move for a

directed verdict and a judgement [sic] of acquittal, thus defendant’s

analysis under Strickland and alleged factual evidence in his original

3.850 motion does not constitute a legally sufficient basis to support a

motion for postconviction relief. Defendant has failed to prove

prejudice stemming from trial counsel’s performance under Strickland. 

Defendant has failed to show that, had trial counsel filed a motion to

dismiss, the outcome of the proceedings would have been altered. There

was a valid pick-up order issued to take defendant into custody, and the

defendant was lawfully arrested in his home pursuant to this order. In

the alternative, the trial record refutes any claim by defendant that his

live-in guest, Douglas Tucker, did not have “common authority over the

premises” at the time he gave his consent.

(Ex. G, pp. 169-70). The First DCA summarily affirmed. 

The record amply supports the state court’s finding that, contrary to petitioner’s

allegation, defense counsel did move for a judgment of acquittal and directed verdict. 

(Ex. B, pp. 148-49). Petitioner’s suggestion that defense counsel failed to challenge

the sufficiency of the evidence is conclusively rebutted by the record. 

The state court also concluded, reasonably, that petitioner failed to show there

was a reasonable probability the result of his trial would have been different had

counsel sought dismissal of the charges on the “illegal search” ground petitioner

proposes. With regard to the drug charge, even a meritorious “illegal search”

argument would not have resulted in dismissal of the charge, because that is not the

proper remedy for a Fourth Amendment violation. The Supreme Court explained in

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United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980):

Insofar as [the defendant] challenges his own presence at trial, he

cannot claimimmunity fromprosecution simply because his appearance

in court was precipitated by an unlawful arrest. An illegal arrest,

without more, has never been viewed as a bar to subsequent prosecution,

nor as a defense to a valid conviction. The exclusionary principle . . .

delimits what proof the Government may offer against the accused at

trial, closing the courtroom door to evidence secured by official

lawlessness. [The defendant] is not himself a suppressible “fruit,” and

the illegality of his detention cannot deprive the Government of the

opportunity to prove his guilt through the introduction of evidence

wholly untainted by the police misconduct.

445 U.S. at 474, 100 S. Ct. at 1251 (citations omitted). Further, as explained below, 

even a motion to suppress the drug evidence would not have been successful. See

discussion infra pp. 15-16 and Ground Two.

As to the Escape charge, in Florida the crime of Escape has three elements: (1)

petitioner was under arrest and in the lawful custody of a law enforcement official,

(2) while a prisoner, petitioner was being transported to or from a place of

confinement and (3) petitioner escaped or attempted to escape by intending to avoid

lawful confinement. Herbert v. State, 962 So. 2d 1068, 1069-70 (Fla. 4th DCA 2007)

(“The crime of ‘escape’ is defined to include the circumstance when a ‘prisoner’

‘being transported to or from a place of confinement’ ‘escapes . . . from such

confinement.’ A ‘prisoner’ is defined for purposes of chapter 944 to include ‘any

person who is under . . . criminal arrest and in the lawful custody of any law

enforcement official.’”) (citations omitted); State v. Ramsey, 475 So. 2d 671, 672

(Fla. 1985) (holding that Florida’s Escape statute criminalizes an individual’s flight

following an arrest). An arrest, or “lawful custody” exists, such that an Escape

conviction can be sustained, when the following four factors are present:

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“(1) A purpose or intention to effect an arrest under a real or pretended

authority; (2) An actual or constructive seizure or detention of the

person to be arrested by a person having present power to control the

person arrested; (3) A communication by the arresting officer to the

person whose arrest is sought, of an intention or purpose then and there

to effect an arrest; and (4) An understanding by the person whose arrest

is sought that it is the intention of the arresting officer then and there to

arrest and detain him.”

Kyser v. State, 533 So. 2d 285, 287 (Fla. 1988) (quoting Melton v. State, 75 So. 2d

291, 294 (Fla. 1954)). “‘[T]ransportation to a place of confinement’ begins at the

time the suspect is placed under arrest.'” Ramsey, 475 So. 2d at 672 (quoting Judge

Orfinger’s special concurrence in State v. Iafornaro, 447 So. 2d 961, 962 (Fla. 5th

DCA 1984)). The unlawful nature of custody is an affirmative defense that can be

raised to a charge of Escape. State v. Williams, 444 So. 2d 13, 15 (Fla. 1984). 

Petitioner’s “illegal search” argument did not provide a viable basis for counsel

to move to dismiss the Escape charge, because the State’s evidence did not establish

the affirmative defense of unlawful custody. To the contrary, as the state court

determined, Deputy Howell’s and Officer’s Johnson’s testimony established

petitioner’s lawful custody. See discussion supraBackground and Procedural History

p. 2; see also, e.g., Moncrieffe v. State, 55 So. 3d 736, 740-41 (Fla. 4th DCA 2011)

(holding that trial court erred in denying defendant’s motion to dismiss Escape

charge, where evidence presented by the State demonstrated the unlawfulness of

defendant’s arrest and ensuing custody, and established the defendant’s affirmative

defense to the charge); B.D.K. v. State, 743 So. 2d 1155, 1157-58 (Fla. 2d DCA 1999)

(holding that trial court should have granted defendant’s motion for judgment of

acquittal on Escape charge where, although defendant presented no evidence, the

State’s evidence established defendant’s affirmative defense of unlawful custody). 

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Defense counsel could not have sought dismissal ofthe Escape charge on the grounds

that the officers’ search of petitioner’s home was illegal.

Even considering all of the evidence adduced at trial (including that presented

by the defense), the state court reasonably concluded that petitioner failed to establish

ineffective assistance, because a motion for judgment of acquittal on petitioner’s

“illegal search” theory would not have succeeded. “[F]or Fourth Amendment

purposes, an arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives when there is reason

to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S. Ct.

1383, 388, 63 L. Ed. 2d 1371 (1980). Deputy Howell had a pick-up order issued by

Judge Wells authorizing petitioner’s arrest. (Doc. 20, Ex. B, pp. 27, 34). The order

wasissued pursuant to Florida Rule of Criminal Procedure 3.131(g)(3), which allows

a court to revoke a defendant’s bond and direct his commitment. (Ex. G, pp. 185-

86). The defense presented evidence, through cross-examination of Officer Johnson

and testimony of defense witness DouglasTucker, that when DeputyHowell knocked

on the door of petitioner’s residence, Douglas Tucker answered. (Ex. B, pp. 57, 125). 

Douglas Tucker had been living with petitioner for one-to-two weeks, and was asleep

on the couch when the officers arrived. (Id., pp. 57, 125-29). Tucker told the officers

that petitioner was at his brother’s house. (Id., pp. 125-29). The officers went to Billy

Blane’s residence and no one was home. The officers returned to petitioner’s

residence and spoke to Tucker again. This time, as Howell spoke to Tucker, Officer

Johnson heard noises coming frominside the trailer. (Id., p. 59). Tucker “didn’t want

to hide nothing” from the officers and invited them to “go through the house and look

for [petitioner].” (Id., p. 129). The officers were authorized to enter and search

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petitioner’s trailer not only under the authority of Payton, but also because they had

valid third-party consent from Tucker. See Illinois v. Rodriguez, 497 U.S. 177, 181,

110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (holding that a warrantless entry and

search by law enforcement officers does not violate the Fourth Amendment’s

proscription of “unreasonable searches and seizures” if the officers have obtained the

consent of a third party who possesses common authority over the premises, or whom

the police, at the time of the entry, reasonably believe to possess common authority

over the premises). 

Petitioner’s proposed argument provided no arguable basisfor defense counsel

to challenge the State’s prosecution of petitioner or the sufficiency of the State’s

evidence. Counsel cannot be deemed ineffective for failing to preserve or argue a

meritless claim. Freeman v. Attorney Gen., Fla., 536 F.3d 1225, 1233 (11th Cir.

2008) (“A lawyer cannot be deficient for failing to raise a meritless claim. . . .”); see

also Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (concluding that

counsel was not ineffective for failing to raise issues clearly lacking in merit);

Chandler v. Moore, 240 F.3d 907 (11th Cir. 2001) (concluding that counsel was not

ineffective for failing to raise a non-meritorious objection); Bolender v. Singletary,

16 F.3d 1547, 1473 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise

nonmeritorious issues does not constitute ineffective assistance.”). 

Petitioner argues for the first time in his reply, after conceding in his habeas

petition that Judge Wells’ pick-up order existed at the time of his arrest (doc. 1, p. 3),

that the pick-up order did not exist at the time of his arrest. (Doc. 25). Petitioner

attempts to support this assertion by attaching a copy of an arrest warrant signed in

October of 2004. (Id., Ex. A). This warrant is part of the state court record (doc. 20,

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Ex. A, pp. 1-2), and wasidentified by respondent as the warrant under which Howell

arrested petitioner (doc. 20, pp. 16-17, 18, 20). The October 2004 warrant, however,

was not the pick-up order Deputy Howell and Officer Johnson were executing. The

October 2004 warrant was based on petitioner’s escape and drug charges, and was

issued after petitioner escaped. The October 2004 warrant was served on petitioner

on January 14, 2005, once petitioner was extradited from Georgia to Walton County. 

(Doc. 20, Ex. A, pp. 1-9). The pick-up order that served the basis for petitioner’s

arrest by Howell and Johnson on September 28, 2004, was issued on September 28,

2004 by Judge Wells in revoking petitioner’s bond in Walton County Case No. 04-

CF-25. (Ex. G, pp. 185-86 (State’s Response to Petitioner’s Rule 3.850 Motion,

Attachment A)). The October 2004 warrant does not rebut the state court’s finding

that Deputy Howell and Officer Johnson had a valid warrant/pick-up order

authorizing petitioner’s arrest when they went to petitioner’s home on September 28,

2004.

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

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

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

relief on Ground One.

Ground Two Counsel Was Ineffective For Failing To Challenge Third Party

Consent To Enter Petitioner’s Residence 

Petitioner claims defense counsel was ineffective for “failing to challenge the

warrentless [sic] search of petitioners [sic] home and by failing to suppress evidence

obtained through a warrantless search which made the obtained evidence fruit of the

poisonous tree.” (Doc. 1, p. 4). Petitioner alleges the same facts as above to support

this claim – that police did not have a search warrant for petitioner’s home and that

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Mr. Tucker did not have authority to consent to the search of petitioner’s home. 

Petitioner does not identify what evidence should have been suppressed. Petitioner

raised this claim in his Rule 3.850 proceeding as “Issue Two”. There, petitioner 

argued that counsel should have moved to suppress “the evidence of arrest.” (Ex. G,

p. 10 ¶ 32). The state court denied relief on Issue Two as follows:

As defendant’s second ground for postconviction relief, defendant

claims that trial counsel rendered ineffective assistance of counsel by

failing to demonstrate that law enforcement failed to obtain a search

warrant, and that trial counsel failed to file a motion to suppress on this

issue. Defendant’s second ground is without merit. Law enforcement

had knowledge of a pick-up order to take the defendant into custody at

the time they entered defendant’s mobile home and at the time of arrest. 

See Attachment “A” to State’s Order to Show Cause Response

(hereinafter “OSC Response”). Furthermore, Sergeant Travis Howell

testified at trial that it was “common practice” to receive pick-up order

information from dispatch, and that he did so in this case. Trial

Transcript p. 47 ¶ 9-12; See also MaCray v. State, 496 So.2d 919 (Fla.

2nd DCA 1986) (law enforcement access of capias warrants through incar computer).

On September 28, 2004 a pick-up order was issued by Judge

Kelvin Wells, after the State filed a motion to revoke bond in an

unrelated case (04-CF-25), based on the alleged fact that the defendant

forged a marriage license in an attempt to prevent his wife’s testimony

at trial. See Attachment “A” to State’s OSC Response. It has been held

that, absent exigent circumstances, an arrest inside a residence must be

conducted pursuant to a warrant or consensual entry. Graham v. State,

406 So. 2d 503, 505 (Fla App. 1981). Furthermore, pursuant to U.S.

Const Amend. IV, it is per se unreasonable to conduct an arrest without

a warrant. However, in the instant case, a pick-up order (order to take

defendant into custody) was issued by the court and properly executed

by law enforcement on the night of defendant’s arrest. Thus, the

defendant was lawfully arrested in his residence pursuant to the

aforementioned pick-up order and any allegations or claims by the

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defendant of law enforcement coercion, lies, or ineffective third-party

consent is immaterial. The Court in Sloan v. State, 429 So.2d 354, 359

(Fla. 1st DCA 1983), a case with similar facts to the instant case

(defendant in Sloan was arrested inside his mobile home after consent

by a co-tenant who was unaware of the capias warrant), held that “that

appellant was lawfully placed under arrest on the capias immediately

upon his removalfromthe mobile home, even if there were irregularities

in the officers’ entry and seizure of appellant inside.” In fact, defendant

states in his original motion for postconviction relief that “a pick-up

order was issued.” See Original 3.850 Motion, at p. 9. 

The defendant has failed to establish prejudice according to

Strickland. In order to establish prejudice, the defendant must show 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, 687 (1984); See also Johnson v. State, 921

So.2d 490 (2005) (“reasonable probability” that result of proceeding

would have been different, is a probability sufficient to undermine the

confidence of the outcome.”) Due to the legal sufficiency of the pick-up

order issued on September 28, 2004 and the validity of the defendant’s

arrest pursuant to said order, the defendant has failed to show that the

result of the proceeding would have been different or that counsels [sic]

alleged unprofessional errors have undermined the confidence in the

outcome of the case. It cannot be said that trial counsel’s choice not to

file a motion to suppress was so erroneous to establish that counsel was

lacking to violate the Sixth Amendment nor that counsel’s performance

prejudiced the Defendant of a fair trial required by Strickland.

(Ex. G, pp. 170-72). The First DCA summarily affirmed.

“To obtain relief where an ineffective assistance claim is based on trial

counsel’s failure to file a timely motion to suppress, a petitioner must prove (1) that

counsel’s representation fell below an objective standard of reasonableness, (2) that

the Fourth Amendment claim is meritorious, and (3) that there is a reasonable

probability that the verdict would have been different absent the excludable

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evidence.” Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006) (citing

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2582-83 (1986)).

As this Court explained in Ground One, and as the state postconviction court

explained in denying relief on this claim, petitioner’s Fourth Amendment claim is

without merit. The officers were not required to have a search warrant to enter

petitioner’s home because they had an order directing them to take petitioner into

custody and reason to believe petitioner was in his residence. Counsel was not

ineffective for failing to file a motion to suppress based on the lack of a search

warrant. The state court’s rejection of petitioner’s claim was not contrary to

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

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

relief on Ground Two.

Ground Three Counsel Was Ineffective For Failing To Challenge The Legality

Of Petitioner’s Confinement

Petitioner claims defense counsel was ineffective “in failing to challenge

petitioners [sic] escape charge based on unlawful conditions of confinement” (doc.

1, p. 4), and for failing “to seek the dismissal of th[e] charge” (id., p. 5). Petitioner

alleges the following in support of this claim: “Because the search conducted by

police of petitioners [sic] home was illegal, the search and subsequent discovery and

arrest of petitioner in the back bedroom of his home, constituted an illegal arrest. 

Because petitioner was not in lawful custody, there can be no charge of escape.” (Id.,

p. 4). Petitioner presented this claim as “Issue Three” in his Rule 3.850 motion.

The state court denied relief on “Issue Three” as follows:

The Florida Supreme Court has ruled that “when it is so obvious

from the face of the record that trial counsel’s strategy not to present a

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. . . defense is very clearly a tactical decision well within the discretion

of counsel, no evidentiary hearing is necessary.” Hannon v. State, 941

So.2d 1109, 1138 (Fla. 2006). The Defendant in the present motion was

represented by private counsel and subsequently convicted of escape

and now moves to set aside that conviction based partly on private

counsel’s choice not to present an escape defense of unlawful

confinement.

Defendant correctly asserts, in his original 3.850 motion, that

unlawful confinement is a defense to an escape charge, however, on

September 28, 2004, there was nothing unlawful about the defendant’s

arrest nor his confinement. Under State v. Ramsey, 475 So.2d 671 (Fla.

1985) the court held that for a conviction under the escape statute, the

state need show only (1) a right to legal custody, and (2) a conscious and

intentional act of the defendant in leaving the established area of such

custody. Id. at 672. Once Deputy Howell and C.O. Johnson found

defendant hiding inside his home (pursuant to the valid pick-up order)

they placed him under arrest and informed him that he was under arrest. 

Trial Transcript p. 28 ¶ 1-15. Furthermore, according to the testimony

of Deputy Howell, the defendant understood that he was under arrest,

and was placed in handcuffs. Id. Defendant complained about pain in

his arm and requested that he be handcuffed in front (showing that

Defendant understood he was under arrest). Id. The testimony elicited

at trial by the two arresting officers prove that there was a legal right to

custody pursuant to the pick-up order issued by Judge Kelvin Wells after

revocation of defendant’s bond. The trial testimony also provesthat the

defendant was in custody – he was told that he was “under arrest” and

was placed in handcuffs. Under Melton v. State, 75 So.2d 291 (Fla.

1954):

[A]n arrest involves the following elements: (1) A purpose or

intention to effect an arrest under a real or pretended authority;

(2) An actual or constructive seizure or detention ofthe person

to be arrested by a person having present power to control the

person arrested: (3) A communication by the arresting officer

to the person whose arrest issought, of an intention or purpose

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then and there to effect an arrest; and (4) An understanding by

the person whose arrest is sought that it si the intention of the

arresting officer then and there to arrest and detain him. Id. at

294.

The arrest of the defendant satisfies these elements. Deputy

Howell communicated his intention to place defendant under arrest.

Trial Transcript p. 28 ¶ 6-8. Defendant understood that he was under

arrest, and there was a actual seizure or detention of the defendant. Id.

at ¶ 9-15. Thus, there was no unlawful confinement of the defendant on

September 28, 2004. It cannot be said that trial counsel’s choice not to

pursue an unlawful confinement defense to escape was so erroneous to

establish that counsel was ineffective so as to violate the Sixth

Amendment nor that counsel’s performance prejudiced the Defendant

of a fair trial required by Strickland. The lawful arrest of, and custodial

situation involving the defendant eviscerates the ability of trial counsel

to present an unlawful confinement defense to the charge of escape.

(Ex. G, pp. 173-74). The First DCA summarily affirmed.

This claim is a mere re-phrasing of the issue petitioner raised in Ground One

above. Petitioner asserts that counsel should have moved to the dismiss the Escape

charge on the grounds that his arrest was unlawful because it derived from the

officers’ illegal search of his home. Petitioner is correct that the unlawfulness of the

custody is an affirmative defense to the charge of Escape. State v. Williams, 444 So.

2d at 15. Petitioner’s “illegal search” argument, however, would not have succeeded

on a motion to dismiss or a motion for judgment of acquittal. See discussion supra

Ground One. The state court’s rejection of petitioner’s claim was not contrary to

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

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

relief on Ground Three.

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 Ground Four Counsel Was Ineffective For Failing To File A Motion To

Suppress Illegally Obtained Evidence

Petitioner claims counsel wasineffective for failing to file a motion to suppress

based on the officers’ search of his home without a search warrant. Petitioner argues

that “[b]ecause the search of petitioners [sic] home amounted to a warrantless search

the subsequent arrest of petitioner was also illegal. Therefore, the search of

petitioners [sic] person by police after the unlawful arrest, which produced

methamphetamine was tainted evidence which should have, and would have been

suppressed had counsel filed a motion to suppress.” (Doc. 1, p. 5). Petitioner raised

this claim as “Issue Four” in his postconviction motion, where he argued that counsel

should have moved to suppress the methamphetamine found in his pants pocket. (Ex.

G, pp. 14-15). The state court denied relief as follows:

Defendant was placed under arrest on September 28, 2004,

pursuant to a pick-up order issued by Judge Kelvin Wells after

defendant’s bond was revoked on case (04-CF-25). See Ground II. 

The subsequent search of defendant was warranted as a search incident

to arrest. See United States v. Robinson, 414 U.S. 218, 235 (1973)

(holding that in the case of a lawful custodial arrest, a full search of the

defendant is not only an exception to the warrant requirement of the

Fourth Amendment, but is also a “reasonable” search under that

Amendment.) During that search (after defendant was placed under

arrest and handcuffed) law enforcement found three vials containing

methamphetamine on the defendant’s person. Trial Transcript p. 28 ¶

14-18.

Thus, the search of defendant incident to his arrest, was lawful

and the methamphetamine vials found by Deputy Howell were legally

seized. It cannot be said that trial counsel’s choice not to file a motion

to suppress on this issue was so erroneous to establish that counsel was

deficient so as to violate the Sixth Amendment nor that counsel’s

performance prejudiced the Defendant of a fair trial required by

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Strickland. The valid arrest and search of defendant incident to that

arrest prevented trial counsel from effectively moving to suppress the

evidence obtained form the defendant, and would not have rendered the

outcome of the case.

(Ex. G, pp. 174-75). The First DCA summarily affirmed.

The state court reasonably concluded that petitioner’s ineffective assistance

claim failed because petitioner’s proffered Fourth Amendment claim had no merit. 

The officers had a valid pick-up order authorizing petitioner’s arrest. The

warrant/pick-up order carried with it the limited authority to enter petitioner’s

dwelling where there was reason to believe petitioner was within that dwelling. 

Payton, supra. The officers also had Douglas Tucker’s third party consent to search

the dwelling. Rodriguez, supra. Once petitioner was located and arrested, Deputy

Howell was authorized to search petitioner’s person incident to petitioner’s arrest. 

United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)

(holding that an unwarranted search incident to a custodial arrest constituted an

exception to the warrant requirement of the Fourth Amendment where the search was

necessary to assure an officer’s safety or preserve evidence). Here, of course, the

contraband wasfound, not merely near petitioner, but on his person. The state court’s

rejection of petitioner’s claimwas not contrary to Strickland, was not an unreasonable

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

facts. Petitioner is not entitled to federal habeas relief on Ground 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

Case No: 3:10cv350/LC/CJK
Page 25 of 26

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

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

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

Section 2254 Cases.

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

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

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

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

appealability in its final order.

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

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

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

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

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

recommendation.

Accordingly, it is ORDERED:

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

substituted as respondent in this cause. 

And it is respectfully RECOMMENDED:

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

judgment of conviction and sentence in State of Florida v. Richard Alford Blane in

the Circuit Court for Walton County, Florida, Case No. 05-CF-57 be DENIED, and

the clerk directed to close the file.

Case No: 3:10cv350/LC/CJK
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2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 29th day of October, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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).

Case No: 3:10cv350/LC/CJK