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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KEVIN LAMAR DAVIS,

Petitioner,

v. Case No. 3:09cv336/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. 19). Petitioner has not replied, although given the

opportunity to do so. (See Doc. 21). 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 May 17, 2007, petitioner was charged in Escambia County Circuit Court

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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Case Number 07-CF-2024 with Trafficking inCocaine (Count 1),AggravatedAssault

on a Law Enforcement Officer (Count 2), and Introducing Contraband into a County

Detention Facility (Count 3). (Doc. 19, Ex. A, p. 1). The offenses were alleged to

2

have occurred on April 26, 2007. (Id.). On October 19, 2007, petitioner was found

guilty by jury verdict of Trafficking in Cocaine (as charged in Count 1), Assault on

a Law Enforcement Officer (a lesser included offense ofthat charged in Count 2), and

Introduction of Contraband into a County Detention Facility (as charged in Count 3). 

(Id., p. 14). Petitioner was adjudicated guilty and sentenced on October 19, 2007, to

8 years imprisonment on Count 1 (with a 3-year mandatory minimum), and a

concurrent 5-year termof imprisonment on Count 3. Petitioner wassentenced to time

served on Count 2. (Id., pp. 20-27). Petitioner appealed, raising one issue: “The

Trial Court’s Denial Of [Petitioner’s] Motion For Judgment Of Acquittal On The

Charge of Trafficking In Cocaine Was Error; Trial Evidence Was Also Insufficient

To Convict [Petitioner] Of This Charge.” (Ex. C). The Florida First District Court

of Appeal (“First DCA”) per curiam affirmed on February 3, 2009, without written

opinion. Davis v. State, 1 So.3d 177 (Fla. 1st DCA 2009) (Table) (copy at Ex. F). 

Petitioner’s motion for rehearing was denied on April 23, 2009. (Ex. J).

Petitioner filed his federal habeas petition in this Court on August 6, 2009. 

(Doc. 1). The petition presents two grounds for relief, but raises a single issue: the

evidence adduced at petitioner’s trial was constitutionally insufficient to convict him

of trafficking in cocaine. (Id.). The parties agree that petitioner exhausted this issue

by raising it on direct appeal, and that the state court denied relief on the merits. 

(Doc. 1, pp. 4, 6-7; Doc. 19, p. 7). 

Hereafter, all references to exhibits are to those provided at Doc. 19, unless otherwise noted. 2

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DISCUSSION

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 3

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

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 3

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,

and Breyer. 

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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 (11 Cir. 2010). th

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. 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 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

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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, 127 S. Ct. 2842, 2858, 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, 2737-38, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone,

535 U.S. 685, 697 n. 4, 122 S. Ct. 1843, 1851 n.4, 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 fromSupreme

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

(11 Cir. 2001). A state court, however, may “decline to apply a specific legal rule

th

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, 129

S. Ct. 1411, 1419, 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,

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

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,

537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 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 of the evidence presented in

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

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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 (11 Cir. 2011). However, the Eleventh Circuit recently th

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

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

2858. 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 thisstandard is difficult to meet, that is because it was meant

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to be.” Richter, 131 S. Ct. at 786.

Within this framework, the Court will review petitioner’s claim(s).

Clearly Established Federal Law

In In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the

Supreme Court declared that the Due Process Clause “protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” Id., 397 U.S. at 364, 90 S. Ct. at

1072. In Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979),

the Court held that the standard applicable to a state prisoner’s claim that the

evidence was constitutionally insufficient to support his conviction is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id., 443 U.S. at 318-19, 99 S. Ct. at 2788-89, overruled on other grounds by

Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). The

Supreme Court instructed that this standard “must be applied with explicit reference

to the substantive elements of the criminal offense as defined by state law.” Id. at 324

n.16, 99 S. Ct. at 2792 n.16. A federal habeas court reviewing a state criminal

judgment for sufficiency of the evidence must presume the jury resolved any

conflicting inferences arising from the facts in favor of the State and against the

defendant. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793 (“[A] federal habeas corpus

court faced with a record of historical facts that supports conflicting inferences must

presume – even if it does not affirmatively appear in the record – that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.”). This standard “gives full play to the responsibility of the trier of fact

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fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; see Johnson v. Alabama, 256 F.3d 1156, 1172 (11 Cir. 2001)

th

(“Federal [habeas] courts must defer to the judgment of the jury in assigning

credibility to the witnesses and in weighing the evidence.”) (citing Jackson, 443 U.S.

at 326). The test under Jackson is a limited one, and it does not require that the

evidence rule out every hypothesis except that of guilt beyond a reasonable doubt.

Cosby v. Jones, 682 F.2d 1373, 1383 (11 Cir. 1982); Wilcox v. Ford, 813 F.2d 1140,

th

1143 (11 Cir. 1987) (“The simple fact that the evidence gives some support to the

th

defendant’s theory of innocence does not warrant the grant of habeas relief.”). 

Federal Review of State Court Decision

Petitioner claims here, as he did in state court, that his conviction for

trafficking in cocaine violates due process, because there was insufficient evidence

of possession. (Doc. 1, p. 4). The state appellate court summarily affirmed

petitioner’s conviction. 

Under Florida law, the elements of trafficking in cocaine are: (1) petitioner

knowingly sold, delivered, or possessed a certain substance; (2) the substance was

cocaine or a mixture containing cocaine; (3) the quantity of the substance was 28

grams or more; and (4) petitioner knew the substance was cocaine or a mixture

containing cocaine. Fla. Stat. § 893.135(1)(b)1. State law defines possession as

follows:

To possess means to have personal charge of or to exercise the

right of ownership, management, or control over the thing possessed.

Possession may be actual or constructive. Actual possession

means the thing is in the hand of or on the person, or the thing is in a

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container in the hand of or on the person, or the thing is so close as to

be[ ] within the ready reach and is under the control of the person.

Mere proximity to a thing is not sufficient to establish control

over that thing when the thing is not in a place over which the person

has control [ ].

Constructive possession means the thing is in a place over which

the person has control or in which the person has concealed it.

If a thing is in a place over which the person does not have

control, in order to establish constructive possession, the State must

prove the person’s control over the thing, knowledge that the thing was

within the person’s presence, and knowledge of the elicit nature of the

thing.

Possession may be joint, that is, 2 or more persons may jointly

have possession of an article exercising control over it. In that case each

of those persons is considered to be in possession of that article.

If a person has exclusive possession of a thing, knowledge of its

presence may be inferred or assumed. If a person does not have

exclusive possession of a thing, knowledge of its presence may not be

inferred or assumed.

(Ex. B, pp. 98-100; see also Fla. Std. Jury Instr. (Crim.) 25.10; Fla. Stat. § 893.135);

Brown v. State, 428 So.2d 250, 252 (Fla. 1983) (“Constructive possession exists

where the accused without physical possession of the controlled substance knows of

its presence on or about the premises and has the ability to maintain control over said

substance.”); id. at 252 (“To establish constructive possession, the state must show

that the accused had dominion and control over the contraband, knew the contraband

was within his presence, and knew of the illicit nature of the contraband. “). 

“[W]hen a motorist is in the exclusive possession of a vehicle, his knowledge

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of cocaine found therein may be inferred.” Parker v. State, 641 So.2d 483, 484 (Fla.

5th DCA 1994); see also State v. Odom, 862 So.2d 56, 59 (Fla. 2nd DCA 2003) (“As

the sole occupant and driver of the vehicle, Odom had exclusive possession of the

vehicle creating an inference of his dominion and control over the contraband

contained therein particularly since the contraband was found lodged between the

driver’s seat and the console of the car. Likewise, knowledge of the presence of the

contraband and its illicit nature could be inferred or presumed because Odom was in

exclusive possession of the automobile when it was stopped.”) (citations omitted);

Lee v. State, 835 So.2d 1177, 1180 (Fla. 4th DCA 2002) (“Lee’s presence, as driver

and sole occupant of the vehicle at the time of his arrest, is sufficient to show he

exclusively possessed the vehicle, creating an inference of his dominion and control

and guilty knowledge of the marijuana.”); State v. Paleveda, 745 So.2d 1026, 1038

(Fla. 2nd DCA 1999) (“[K]nowledge of contraband found within an automobile . . .

is generally inferred or presumed fromone’s exclusive possession [of the automobile]

unless and until proven otherwise.”) (citing cases). “While the presumption of guilty

knowledge may be overcome by evidence tending to show a lack of guilty

knowledge, merely demonstrating that others theoretically had access to the

automobile would not necessarily negate the presumption.” Odom, 862 So.2d at 59. 

The question of exclusive possession is properly left to the jury. See Parker, 641

So.2d at 484. “[T]he jury is free to believe or disbelieve the defendant.” Id.

The state court reasonably could have concluded that the evidence was

constitutionally sufficient to support petitioner’s conviction. Fla. Stat. §

893.135(1)(b)1. The State presented evidence that petitioner was the driver and sole

occupant of a vehicle in which more than 28 grams of cocaine wasfound. (Ex. B, pp.

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34-41, 46). Cocaine was found in petitioner’s shoe, in the driver’s seat (where

petitioner was sitting), and in the center console of the vehicle. (Id. pp. 38-41).

During a later search of the vehicle, officers removed a cup holder that slid into an

interior panel of the driver’s door. (Id., p. 51). Inside the cup holder was a large

quantity of crack cocaine in cookie form. (Id., pp. 51-53). The cocaine was in an

Enfamil can. (Id., pp. 46, 52). The State and defense stipulated that all the cocaine

seized on April 26, 2007 from petitioner and from the inside of the vehicle wastested

by FDLE and found to be cocaine with a total weight in excess of 28 grams. (Id., pp.

56-57). The vehicle was registered to petitioner’s mother, (id., p. 66), but petitioner

was driving it when it was stopped, and petitioner was twice seen driving the vehicle

in the 2-3 week period preceding the stop. (Id., p. 49). Petitioner was seen near the

vehicle on other occasions prior to the stop. (Id.). Petitioner was seen driving the

vehicle even after his arrest on the trafficking charge. (Id.). Police found $1,400.00

in cash on petitioner when he was searched at the scene. (Id., p. 44).

Based on the State’s evidence, a rational trier of fact could have found the

essential elements of trafficking in cocaine beyond a reasonable doubt. As to the

element of possession, a rational jury could have found beyond a reasonable doubt

that petitioner was in exclusive possession of the vehicle when it was stopped. From

thatfinding, a rational jury could reasonably have presumed orinferred that petitioner

knew of the cocaine found in his shoe and in the vehicle. Although petitioner could

have overcome that presumption, he presented no testimony and merely argued that

because his mother owned the vehicle, others theoretically had access to it. (Ex. B,

pp. 73-74, 89-92). The jury disbelieved the defense theory, and found the element of

possession (and all other elements of the trafficking charge) beyond a reasonable

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doubt. The state courts’ rejection of petitioner’s claim(s) was not contrary to, and did

not involve an unreasonable application of, clearly established federal law. Petitioner

is not entitled to federal habeas relief. 

CERTIFICATE OF APPEALABILITY

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

District Courts provides: “[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). Therefore, 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

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substituted as respondent in this cause. 

And it is respectfully RECOMMENDED:

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

conviction and sentence in State of Florida v. Kevin Lamar Davisin the Circuit Court

for Escambia County, Florida, Case No. 07-CF-2024 be DENIED, and the clerk be

directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 14th day of March, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATE JUDGE

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 (11 Cir. 1988). th

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