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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

CHRISTOPHER DOUGAN,

Petitioner,

v. CASE NO. 1:09-cv-173-MP-GRJ

SECRETARY, DEPT. OF

CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

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

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

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

Docs. 21, 23. Upon due consideration of the Petition, the Response, the Reply, and the

state-court record, the undersigned recommends that the Petition be denied.

1

Summary of State-Court Proceedings

The instant Petition stems from violation of probation (VOP) proceedings in

Alachua County. Petitioner was serving concurrent four-year sentences of probation for

three guilty-plea convictions of grand theft auto in Case Nos. 01-2006-CF-1366-A, 01-

2006-CF-1927-A, and 01-2006-CF-2056-A. The judgments were imposed on May 8, 2

2006. See App. Exh. A-4, B-4, C-4. On June 1, 2006, Petitioner was charged with

Because the Court may resolve the Petition on the basis of the record, the Court 1

has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.

Petitioner also pleaded guilty to misdemeanor reckless driving and driving 2

without a valid license in Case No. 01-2006-CF-1366-A.

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violating probation by committing a new criminal offense of grand theft auto on May 18,

2006. App. Exh. A-5, B-5, C-5. The violation report charged that Petitioner stole Gloria

Wessels’ car keys from the classroom where she was teacher, then stole Wessels’ car. 

Wessels’ cell phone was in the car. The report alleged that Petitioner’s fingerprints were

found inside the car. Id.

Petitioner was charged with new criminal offenses of burglary of a structure and

grand theft auto. He pleaded not guilty to the new charges and to the VOP and

proceeded to trial. The trial evidence may be summarized as follows. Ms. Wessels

testified that she was listening to a Phil Collins CD on her way to school the day of the

theft. When she arrived at school she locked the car and placed her keys in a closet in

her classroom. Before school was over, Wessels needed to get something from her car

but could not find her keys. She then discovered that her car was missing. Her car was

recovered later on the same day. Her son subsequently found the CD under the driver’s

seat; it was turned over to GPD Detective Ferrara. Petitioner’s fingerprints were

identified on the CD. No other fingerprints were identified from the vehicle. At the close

of the State’s case-in-chief, Petitioner’s counsel moved for a judgment of acquittal. The

trial court found that the evidence was insufficient for a reasonable jury to conclude that

Petitioner was guilty beyond a reasonable doubt of the charged offenses, granted the

motion, and released the jurors. App. Exh. D at 51.

The trial court then proceeded to consider additional evidence relative to the VOP

charge. Ms. Wessels took the stand again. She testified that following the theft she

obtained a new cell phone with the same number. There were voicemail messages from

two women wanting to know who Wessels was and what her relationship was with

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“Chris.” In another message, the caller wanted to know if the car that Chris was driving

was Wessels’ car, and the caller described the car. Id. at 54-55.

The following day Wessels received a call from someone who asked if she knew

“Chris.” Wessels responded “no,” and the caller said “[y]ou don’t know Christopher

Lamont Dougan,” and Wessels again responded “no.” The caller asked if Wessels

owned a gray silver Honda Accord with tinted windows. When Wessels responded

“yes,” the caller asked her if that was “your car that he was in when he came to my

home.” Wessels responded that she would have to get back to the caller later. Id.

Detective Ferrara testified that he made a recording of the voicemail messages. 

He attempted to contact the callers, but the first caller hung up on him and there was no

answer at the second number. Petitioner’s probation officer, Renardo Anthony

Cabreara, confirmed that Petitioner was on probation at the time the new charge arose. 

Id.

At the conclusion of the additional evidence, the trial court stated:

Needless to say, the standard of proof that is applied in a [VOP]

hearing is completely different than what has to be applied in a criminal

charge. The standard of proof in this case is the conscience of the Court,

and as is probably abundantly clear, the Court’s conscience is completely

clear in finding Mr. Dougan in violation of his probation.

Id. at 65. 

The court found that Petitioner violated his probation in each of the three

underlying cases, revoked probation, and sentenced Petitioner to consecutive five-year

prison terms in two cases and to a consecutive five-year term of probation in the third

case. Id. at 74-77. 

Petitioner pursued consolidated appeals arguing, inter alia, that the evidence was

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insufficient to find that he committed the violation. App. Exh. F. The First DCA affirmed

per curiam without opinion. App. Exh. I. Petitioner filed a motion for postconviction relief

pursuant to Fla. R. Crim. P. 3.850 asserting three claims of ineffective assistance of

counsel: (1) Counsel failed to object to the revocation of probation based solely on

hearsay evidence; (2) Counsel failed to argue that the State failed to prove a violation by

a preponderance of the evidence; and (3) Counsel conceded guilt by acknowledging

during sentencing that there was evidence Petitioner was in possession of Wessels’

vehicle. App. Exh. J. The postconviction court denied relief, and the First DCA affirmed

per curiam without written opinion. App. Exh. K, M. 

The instant Petition followed. Petitioner asserts two claims of ineffective

assistance of counsel. Doc. 1. Respondent concedes that the Petition is timely, but

opposes the Petition on the merits and on procedural grounds. Doc. 21. 

Section 2254 Standard of Review

Under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's

application for a writ of habeas corpus based on a claim already adjudicated on the

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

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

State court proceeding.” Under § 2254(e)(1), the petitioner must advance clear and

convincing evidence that the state court's factual determination was “objectively

unreasonable” to rebut the presumption that the determination was correct. Gill v.

Mecusker, 633 F.3d 1272, 1287 (11th Cir.2011); see § 2254(e) (1).

As to legal findings, a petitioner is entitled to federal habeas relief only if the state

court's adjudication of the merits of the federal claim “resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” § 2254(d)(1). “[C]learly

established Federal law, as determined by the Supreme Court of the United States,”

refers only to holdings (rather than dicta) of the Supreme Court, but decisions of lower

federal courts may be considered to the extent that they demonstrate how those courts

applied Supreme Court holdings. Hawkins v. Alabama, 318 F.3d 1302, 1309 (11th Cir.

2003) (citations omitted) (“The decisions of other federal circuit courts (and our decisions

for that matter) are helpful to the AEDPA inquiry only to the extent that the decisions

demonstrate that the Supreme Court's pre-existing, clearly established law compelled

the circuit courts (and by implication would compel a state court) to decide in a definite

way the case before them.”). See also Carey v. Musladin, 549 U.S. 70, 74-77 (2006) (§

2254 refers to holdings, rather than dicta, of the Supreme Court, collecting circuit cases

“[r]eflecting the lack of guidance from this Court,” on the issue).

The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have

independent meanings. Williams v. Taylor, 529 U.S. 362, 404-406 (2000); Bell v. Cone,

535 U.S. 685, 694 (2002) (citing Williams ). “Under the ‘contrary to’ clause, a federal

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

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

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

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

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

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

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

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

neither the reasoning nor the result of the state-court decision contradicts them.” Early v.

Packer, 537 U.S. 3, 8 (2002) (emphasis in original). Further, “whether a state court's

decision was unreasonable must be assessed in light of the record the court had before

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

In Gill v. Mecusker, 633 F.3d 1272 (11 Cir. 2011), the Eleventh Circuit clarified

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how the federal habeas court should address the “unreasonable application of law” and

the “unreasonable determination of facts” tests. The court acknowledged the

well-settled principle that summary affirmances, such as the Florida First District Court of

Appeal's in this case, are presumed adjudicated on the merits and warrant deference.

Id. at 1288 (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784–85 (2011),

and Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir.2002)). “A

judicial decision and a judicial opinion are not the same thing,” and the Supreme Court

has confirmed that determining whether the state court unreasonably applied the law or

unreasonably determined the facts requires only a decision, not an opinion. Id. at 1291

(citing Harrington, 131 S.Ct. at 784). Yet, the Supreme Court has never squarely

addressed whether under the “unreasonable application” test a federal habeas court

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

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

conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244–45 (5th Cir.2002)

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

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

raised in a claim based on the state court's ultimate legal conclusion, and should not

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“evaluate or rely upon the correctness of the state court's process of reasoning.” Id. at

1291. In short, the court stated, “the statutory language focuses on the result, not on the

reasoning that led to the result.” Id.

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

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

court's fact finding only to the extent that the state court's ultimate conclusion relied on it.

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

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

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

 Ineffective Assistance of Counsel

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

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

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

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

and reasonable professional norm, and (2) that he was prejudiced by this inadequacy. 

Strickland, 466 U.S. at 686. The court may dispose of the claim if a defendant fails to

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

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

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

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

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

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

rules” for determining whether counsel’s actions were indeed reasonable, as “[a]bsolute

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rules would interfere with counsel’s independence–which is also constitutionally

protected–and would restrict the wide latitude counsel have in making tactical decisions.” 

Putnam v. Head, 268 F.3d 1223, 1244 (11 Cir. 2001). “To uphold a lawyer’s strategy,

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[the Court] need not attempt to divine the lawyer’s mental processes underlying the

strategy.” Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11 Cir. 2000) (en th

banc). “No lawyer can be expected to have considered all of the ways [to provide

effective assistance].” Id. 

If a defense lawyer pursued course A, it is immaterial that some other

reasonable courses of defense (that the lawyer did not think of at all)

existed and that the lawyer’s pursuit of course A was not a deliberate

choice between course A, course B, and so on. The lawyer’s strategy was

course A. And [the Court’s] inquiry is limited to whether this strategy, that

is, course A, might have been a reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

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

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

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

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

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

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

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

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

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

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

law is different from an incorrect application of federal law.” Harrington, 131 S.Ct. at 785

(quotation marks omitted). And “even a strong case for relief does not mean the state

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

When faced with an ineffective assistance of counsel claim that was denied on

the merits by the state courts, a federal habeas court “must determine what arguments

or theories supported or, [if none were stated], could have supported, the state court’s

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

that those arguments or theories are inconsistent with the holding in a prior decision of

[the Supreme] Court.” Id. So long as fairminded jurists could disagree about whether

the state court’s denial of the claim was inconsistent with an earlier Supreme Court

decision, federal habeas relief must be denied. Id. Stated the other way, only if “there is

no possibility fairminded jurists could disagree that the state court’s decision conflicts

with [the Supreme] Court’s precedents” may relief be granted. Id.

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

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

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

the question becomes whether “there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. Double deference is doubly difficult for a

petitioner to overcome, and it will be a rare case in which an ineffective assistance of

counsel claim that was denied on the merits in state court is found to merit relief in a

federal habeas proceeding.

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Claim 1: Ineffective assistance regarding hearsay

Petitioner contends that the only evidence of his guilt presented at the VOP

hearing was Wessels’ and Ferrara’s hearsay testimony regarding the voicemail

messages. Petitioner contends that it was only this hearsay evidence that formed the

basis for the trial court’s decision that he violated probation. He argues that his trial

counsel should have objected to such hearsay testimony. Doc. 1 at 5-7.

In rejecting this claim on postconviction review, the state court noted that the

evidence included the direct evidence of Petitioner’s fingerprints on Wessels’ CD in

addition to the hearsay evidence regarding the voicemail messages. App. Exh. K. The

state court determined that to the extent Petitioner sought to relitigate the sufficiency of

the evidence, such claim was not cognizable on postconviction collateral review. Id. 

The undersigned agrees that Petitioner’s ineffective-assistance argument misconstrues

the record; it is obvious that the trial court relied on the direct physical fingerprint

evidence as well as the hearsay evidence.

Moreover, as the state court noted, hearsay is admissible in probation revocation

hearings, although it cannot be the sole basis upon which a revocation of probation may

be based. See Russell v. State, 982 So.2d 642, 646 (Fla. 2008) (citing Cuciak v. State,

410 So.2d 916, 918 (Fla.1982)), cert. denied, 129 S.Ct. 272 (2008). Because hearsay

was admissible, the state court concluded that counsel did not err by failing to object to

it. Petitioner has failed to show that the state court’s rejection of this claim was contrary

to, or an unreasonable application of, federal law.

Claim Two: Ineffective assistance regarding sufficiency of the evidence

Petitioner contends that no direct or circumstantial evidence tied him to the taking

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of Wessels’ car from the school parking lot. He argues that the State did not prove by a

preponderance of the evidence that Petitioner committed the new law violation. He

contends that his counsel performed deficiently by failing to argue that the evidence was

insufficient. Doc. 1 at 7-9.

In rejecting this claim on postconviction review, the state court concluded that it

was essentially an attack on the sufficiency of the evidence that was foreclosed from

collateral review, and did not address Petitioner’s ineffective-assistance claim. App.

Exh. K. Respondent contends that the state court rejected Petitioner’s ineffectiveassistance claim as procedurally barred on adequate and independent state grounds,

and therefore that the claim is foreclosed from federal review. Doc. 21. 

The undersigned disagrees that this ineffective-assistance claim is foreclosed

from federal review. The state court rejected the claim as one challenging the

sufficiency of the evidence that could not be raised on collateral review, but it is clear

that Petitioner also presented the claim as one of ineffective assistance, notwithstanding

the state court’s failure to address it. See App. Exh. J. The Court therefore finds that

the claim is exhausted.

Petitioner has failed to show, however, that this claim warrants federal habeas

relief. The trial record reflects that counsel vigorously challenged the sufficiency of the

evidence to find Petitioner guilty of a criminal offense, and indeed succeeded in winning

an acquittal. During the VOP phase of the hearing that immediately followed acquittal,

counsel did not renew an evidence-sufficiency objection, but it is apparent from the

record that such an objection at that stage would have been futile. The trial court

determined that it was “abundantly clear” that the evidence supported a finding of a

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probation violation, and “the [c]ourt’s conscience is completely clear in finding” a

violation. App. Exh. D. at 65. In Florida, a “trial court has the inherent power to revoke

probation for misconduct which demonstrates the probationer’s unfitness for probation.” 

Washington v. State, 579 So. 2d 400, 401 (Fla. 5 DCA 1991). The evidence presented

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need only be sufficient to satisfy the conscience of the court as to whether the condition

of probation was violated. Adams v. State, 559 So. 2d 436, 438 (Fla. 1 DCA 1990). st

The State must establish by a preponderance of the evidence that the probationer

wilfully violated the terms of probation. Smith v. State, 711 So. 2d 100 (Fla. 1 DCA st

1998). Thus, even if counsel arguably erred in failing to renew a sufficiency-of-theevidence objection, on this record it is clear that Petitioner suffered no prejudice from the

error because the trial court plainly would have overruled the objection. Petitioner has

failed to show that his counsel rendered ineffective assistance under Strickland.

Certificate of Appealability

Section 2254 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

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

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

Section 2254 Cases.

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

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

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

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

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

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

recommendation.

Accordingly, it is respectfully RECOMMENDED:

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

2. That a certificate of appealability be DENIED.

IN CHAMBERS this 15 day of August 2012. 

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s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 14 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with a copy thereof.

Failure to file specific objections limits the scope of review of proposed factual findings and

recommendations.

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