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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DANIEL L. HODGES,

Petitioner,

v. Case No. 3:10cv359/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) and supporting memorandum (doc. 2). Respondent filed an answer,

submitting relevant portions of the state court record. (Doc. 28). Petitioner replied. 

(Doc. 30). 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 issuesraised 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 habeasrelief, and that the petition should

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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be denied.

BACKGROUND AND PROCEDURAL HISTORY

On January 7, 2008, petitioner was indicted for first degree murder (Count 1)

and child neglect (Count 2) in Santa Rosa County Circuit Court Case Number 07-

1734. (Doc. 28, Ex. A). A charge of sexual battery (Count 3) was added pursuant

2

to consolidation of another case (Case Number 08-1569) with this main case. On

April 15, 2009, petitioner, represented by counsel, entered a counseled no contest

plea, with the State’s agreement, which provided as follows: (1) petitioner would

plead no contest to the lesser included offense ofsecond degree murder with a firearm

on Count 1 and to child neglect as charged in Count 2; (2) petitioner would be

sentenced on Count 1 to life in prison without parole and with a special provision of

a 25-year mandatory minimum; (3) petitioner would be sentenced on Count 2 to a

concurrent term of five years imprisonment; and (4) the State would dismiss the

sexual battery charge (Count 3). (Ex. B). The trial court accepted petitioner’s plea

after an extensive and detailed plea colloquy, and sentenced petitioner consistent with

the terms of the agreement. (Id.; see also Ex. E, pp. 65-71). Petitioner filed a notice

of appeal to the Florida First District Court of Appeal (“First DCA”), but later

voluntarily dismissed the appeal. (Ex. C). Petitioner’s appeal was dismissed on

January 21, 2010. (Id.). 

On February 18, 2010, petitioner filed a counseled motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850. (Ex. D). Petitioner’s motion

presented one issue: that his plea wasinvoluntary because defense counsel Mr. Allred

“led [petitioner] to believe that [he] would be eligible for executive clemency within

Hereafter, all references to exhibits are to those provided at Doc. 28, unless otherwise noted. 2

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10 to 15 years of incarceration following sentencing.” (Id., p. 3). Petitioner stated

that he and his family members “were all under the false impression, notwithstanding

the plea colloquy in this case, that I would be released from prison following service

of 10-15 years incarcerative time.” (Id.). The trial court denied relief without an

evidentiary hearing. (Ex. E). The First DCA per curiam affirmed without written

opinion on June 18, 2010. Hodges v. State, 37 So. 3d 852 (Fla. 1st DCA 2010)

(Table) (copy at Ex. F). The mandate issued July 7, 2010. (Ex. F).

Petitioner filed his federal habeas petition in thisCourt on September 13, 2010. 

(Doc. 1, p. 14). Petitioner raises one ground for relief: that his plea was involuntary

because defense counsel misadvised him that he “would be eligible for executive

clemency within 10-15 years of incarceration following sentencing” and that “a life

sentence for the offense of Second Degree murder was only twenty-five years.” (Doc.

1, p. 6). Respondent asserts that petitioner is not entitled to federal habeas relief

because his claim is without merit, and that to the extent petitioner includes new

factual allegations in support of his claimthe Court should not consider thembecause

they were not presented to the state courts. (Doc. 28, pp. 11, 20-25). 

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

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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

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

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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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. 

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

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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

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

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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, 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

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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

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 Challenges To Guilty Pleas On Grounds

Of Ineffective Assistance Of Counsel

A plea of no contest stands on equal footing with a guilty plea in determining

its validity. North Carolina v. Alford, 400 U.S. 25, 35-36, 91 S. Ct. 160, 27 L. Ed.

2d 162 (1970); Hudson v. United States, 272 U.S. 451, 47 S. Ct. 127, 129, 71 L. Ed.

347 (1926). “A guilty plea is an admission of criminal conduct as well as the waiver

of the right to trial.” Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (citing

Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747

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(1970)). “Waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the relevant circumstances

and likely consequences.” Brady at 748. The standard for determining the validity

of a guilty plea is “whether the plea represents a voluntary intelligent choice among

the alternative courses open to the defendant.” Alford, 400 U.S. at 31, 91 S. Ct. 160;

Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The

assistance of counsel received by a defendant is relevant to the question of whether

a defendant’s guilty plea was knowing and intelligent insofar as it affects the

defendant’s knowledge and understanding. See McMann v. Richardson, 397 U.S.

759, 770-71, 90 S. Ct. 1441, 1448-49, 25 L. Ed. 2d 763 (1970).

When a petitioner challenges the validity of his plea on allegations of

ineffective assistance of counsel, the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies. Hill

v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); see

also Missouri v. Frye, — U.S. —, 132 S. Ct. 1399, 1404, — L. Ed. 2d — (2012)

(“[C]laims of ineffective assistance of counsel in the plea bargain context are

governed by the two-part testset forth in Strickland.”). Petitioner must establish that:

(1) “counsel’s representation fell below an objective standard ofreasonableness,” and

(2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In

the plea context, “[t]he . . . ‘prejudice’ requirement . . . focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.” 

Hill, 474 U.S. at 59, 106 S. Ct. 366. 

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

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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:

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.

DISCUSSION

Petitioner presented his claim concerning counsel’s advice as to clemency in

his Rule 3.850 motion. The Rule 3.850 court identified Strickland, supra and Hill,

supra, as the controlling legal standards. (Doc. 28, Ex. E, p. 60). The Rule 3.850

court denied relief as follows:

Defendantraises one ground for postconviction relief alleging his

plea was involuntary as it was entered based on the misadvice of

counsel. Defendant avers, “notwithstanding the plea colloquy in this

case,” counsel led him to believe he would be eligible for executive

clemency after serving ten to fifteen years of incarceration. Defendant

claims counsel repeatedly informed him and family members he would

receive clemency, and Defendant attaches, in support of his motion, a

letter from counsel indicating his hope Defendant would receive

clemency one day. Defendant claims this representation was an

inaccurate statement of the law as the plea colloquy reflects a minimum

mandatory life sentence with no parole. Defendant avers counsel’s

“actions were thus outside the reasonable performance of counsel in a

similar situation.” Defendant avers “counsel’s errors were the direct and

proximate cause” of his sentence of life without parole, and he would

not have entered a plea and would have insisted on going to trial if he

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had known there was no promise of parole after serving ten to fifteen

years of incarceration.

Defendant’s claim isrefuted by the record. First, at the beginning

of the proceedings held on April 15, 2009, and prior to the Court

accepting Defendant’s plea, a discussion was held between the Court

and Defendant’s counsel indicating Defendant was entering a plea of no

contest to life under the two counts of the indictment with a concurrent

sentence under Count 2 and the State would be dismissing the sexual

battery case in the consolidated information. The State further clarified

and Defendant’s counsel agreed, the understanding Defendant was

entering a plea “under Count 1 of the Indictment to a stipulated lesser

included offense of Second [D]egree Murder with a Firearm” and would

plea as charged to Count 2, child neglect, with the State entering a nolle

pros to Count 3, sexual battery, based on the pleas; and pursuant to the

agreement, the court would enter the agreed upon life sentence with a

twenty-five year minimum mandatory term and a concurrent five-year

state prison sentence on the charge of child neglect. Second, during the

plea colloquy, the Court indicated its understanding that the Defendant

was pleading no contest in Count 1 to the lesser included offense of

second-degree murder with a firearm, and toCount 2, child neglect, with

a nolle pros by the State of Count 3, sexual battery, if Defendant’s plea

was accepted by the Court and Defendant concurred with the Court’s

statement. Third, the Court specifically inquired of Defendant if any

promises or expectations had been made to him by anyone and if he

understood the sentence of life without parole meant Defendant would

spend the rest of his life in prison unless there was an executive action

taken either by the current governor or some future governor to which

Defendant indicated he understood. Moreover, Defendant’s counsel

addressed the issue of clemency during the proceedings indicating he

had previously discussed with his client “certain steps” which could be

helpful in seeking clemency, but reiterated he had “not put any odds or

likeliness or any of that to it” to which Defendant agreed. Lastly,

following defense counsel’s discussion with Defendant regarding the

issue of clemency, the court inquired if Defendant understood he would

“quite likely” spend the remainder of his life in prison to which

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Defendant answered in the affirmative. Bond v. State, 695 So. 2d 778

(Fla. 1st DCA 1997) (where any misunderstanding the defendant may

have had regarding his plea after a discussion with his attorney was

corrected at the plea hearing by the information provided by the court).

The Court accepted Defendant’s plea of no contest to Count 1, to the

lesser included offense of second-degree murder with a firearm, and to

Count 2, child neglect, as freely and voluntarily entered into with the

State announcing a nolle pros of Count 3, sexual battery.

(Ex. E, pp. 61-63) (citations to record attachments omitted).

The record amply supports the state court’s findings. During the pleasentencing hearing, the prosecutor stated the following with regard to petitioner’s

sentence: “And then the defendant, pursuant to the agreement, the court would

impose an agreed sentence oflife in prison with a 25-year minimummandatory term.” 

(Ex. B, p. 4). The following exchange occurred shortly thereafter:

THE COURT: Let me just understand this now.

He is entering a plea of no contest.

If I accept it, the agreed upon sentence is life with a 25 year minimum

mandatory in Count 1.

What does that mean so he – 

MR. ELMORE [prosecutor]: Judge, that means life without parole.

THE COURT: Life without parole. He is pleading no contest, and

that’s what I thought it meant, I just wanted to make sure. When you

plead no contest the question I’m going to ask is: Is this in your best

interest or are you in fact guilty?

So I just want to make sure how is it in his best interest? If he

were convicted and – if he went to trial and was convicted, he still

would be facing the same. Is that correct?

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MR. ALLRED [defense counsel]: I’ll explain that when – when Mr.

Hodges wants me to summarize what he has told us during our meetings

with him in the last couple of months about how this actually occurred. 

And I think when I conclude with my summary of how this happened,

the Court will understand why he feels it is in his best interests to plea

to Second.

THE COURT: Okay. And this will be when I ask you, “Is there a

factual basis” that you want to provide it to me then.

MR. ALLRED: Yes, If I may.

THE COURT: You may.

And, Mr. Elmore, do you have any – 

MR. ELMORE: Judge, normally I would state a factual basis for the

offense, but if counsel states a factual basis that the State is satisfied

with, that won’t be necessary, I suppose.

THE COURT: Okay. My only caution. Mr. Elmore is correct. It’s

typically that either you stipulate to it or he would state the factual basis.

MR. ALLRED: I’ll stipulate to a factual basis, except the court wanted

to know why it was in his best interests. And I was going to – 

MR. ELMORE: In cases of this serious nature, Judge, I normally state

a factual basis to avoid any claims concerning that later.

THE COURT: And I think that is appropriate. Whatever you are going

to explain you don’t think will contravene his plea though?

MR. ALLRED: No, sir. I think it will make an understanding on

everybody’s part as to why we negotiated this particular plea. 

(Ex. B, pp. 7-9). Petitioner was placed under oath, and the trial court conducted an

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extensive plea colloquy. Petitioner stated that he was satisfied with his defense

attorneys’ representation (Mr. Allred, Mr. Polk and Mr. Johnson). (Id., p. 13). The

court asked petitioner if he was entering a plea of no contest “because you are in fact

guilty or because it isin your best interest”, to which petitioner responded, “Yes, sir.” 

(Id., p. 14). The court read petitioner the constitutional rights he was waiving by

entering his plea, and asked petitioner if he understood those rights and that he would

be waiving them. (Id., pp. 14-15). Petitioner responded: “Yes, sir” and further

affirmed that he had spoken to his attorneys about entering the plea. (Id., p. 15). 

Petitioner affirmed that no one had “threatened, forced, or coerced” him to enter a

plea of no contest, and that he was entering the plea of his own free will. (Id., p. 16). 

After defense counsel interjected that petitioner had spoken with his parents about the

plea as well, the court asked: “And you’ve spoken to your parents and you’ve

discussed this with them. You’ve considered all of your options.” (Id., p. 17). 

Petitioner responded: “Yes, sir. This is clearing my conscience.” (Id.). The Court

clarified: “And you have thought about it, several days or several weeks you have

thought this through?” (Id.). Petitioner responded in the affirmative. (Id.). The

prosecutor placed the following factual basis on the record: 

Your Honor, the State would be prepared to prove at trial that on

December 3, of 2007, the defendant was in Milton, Florida.

That telephone records reflect that he made approximately 33 phone

calls around 1 a.m. in the morning to the victim’s cell phone, [victim’s

name redacted] cell phone. The evidence would show that she was at

her residence [redacted] Street in Milton, Florida when those calls were

placed.

The evidence would show at that period in their life story they were at

odds in an up and down relationship, according to numerous witnesses.

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The State would be prepared to prove that at approximately 3:00 a.m.

the defendantshot [redacted] with a .357 caliber or .38 caliber handgun,

once in the head, resulting in her death.

The defendant’s vehicle was seen leaving her home at [redacted] Street

by eye witnesses, who recognized his distinctive vehicle.

The defendant left his and the victim’s 3-year old child, [redacted] alone

and unattended in the mobile home with the body of the deceased

victim, [redacted].

At approximately 8:30 a.m. the child and the victim’s body were

discovered by a relative, [redacted]. The child immediately stated to her

that her daddy had killed her mother.

(Id., pp. 19-20). The prosecutor went on to detail additional evidence supporting the

charges: the child’s numerous and consistent statements to various people that

petitioner was present when the child heard the gunshot and that petitioner told the

child that he killed her mother; petitioner’s denial to law enforcement that he had

been at the scene; petitioner’s denial to law enforcement of having a sexual

relationship with the victim for over a month; petitioner’s denial to law enforcement

of owning or possessing a .38 caliber or .357 caliber handgun; the presence of

petitioner’s semen in the victim’s vagina; the presence of petitioner’s skin underneath

at least one of the victim’s fingernails; testimony of numerous witnesses that

petitioner did in fact own and possess a .357 caliber handgun and was in possession

of it the night of the murder; and testimony of numerous witnesses that petitioner

exhibited prior violent conduct toward the victim and threatened to kill or harm the

victim. (Id. pp. 20-21). Defense counsel Mr. Allred stipulated to the State’s factual

basis, adding that he “need[ed] to supplement it.” (Id., p. 21). Mr. Allred noted:

“[W]hen the Court posed the question to Mr. Hodges you said, ‘Are you pleading no

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contest because either you are guilty or it’s in your best interests?’ And [petitioner]

said, ‘Yes.’ So he needs to specify that he believes it is in his best interests.” (Id., p.

22). Petitioner confirmed to the trial judge that he believed the plea to be in his best

interests. (Id.). 

Defense counsel Allred explained why petitioner believed the plea to be in his

best interests, starting with petitioner’s version of the story: that after an evening out,

petitioner returned to his home and placed phone calls to the victim; that after the

calls kept getting dropped (disconnected), petitioner went to the victim’s trailer and

the victim let him in; that when petitioner entered the victim’s residence he had his

firearm tucked in the front of his pants but had a shirttail over the gun; that petitioner

and the victimtalked about reconciling and, after deciding to move forward with their

relationship, retired to the bedroom to make love; that petitioner removed the firearm

and placed it on top of the dresser; that after having consensual sex, the victim

dressed and she and petitioner laid in bed, watched TV and smoked cigarettes; that

when petitioner got up to leave, he retrieved his firearm from the dresser and took the

victim’s cell phone and opened it up; that petitioner determined that the victim had

been talking during the couple’s period of separation to other men; that petitioner

commented to the victim about what he saw on her cell phone and they had a brief

argument; that petitioner turned and started to leave with the victim’s cell phone; that

the victimgot out of bed, approached the doorway where petitioner wasstanding, and

pushed petitioner; that petitioner spun around and held the gun to the victim’s head

and cocked it; that about the time petitioner realized the gun was cocked and was

going to uncock it, the victim knocked petitioner’s armand the gun went off. (Id., pp.

23-25). Mr. Allred explained that petitioner believed the plea to be in his best

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interests because, while petitioner could make a plausible case that the killing was no

worse thanmanslaughter, the State not only had strong evidence of premeditation, but 

also had a strong argument for first degree felony murder, the killing having taken

place in the course of a robbery (petitioner had the victim’s cell phone in his

possession and ultimately took it to dispose of it). Petitioner and his counsel felt it

was better for petitioner “that the case be settled as a second degree instead of risking

all with a jury to try to promote a manslaughter theory.” (Id., p. 27). Mr. Allred

elaborated:

So overall, that is the reason that we had offered the plea to a lesser

degree of homicide for the same sentence that he would otherwise get,

but under much more favorable circumstances for Mr. Hodges.

As he would tell the court and those present, he is ready to try to put this

thing, take responsibility, and put it to rest, hoping to promote closure

eventually, and some peace in the minds of the families, his and [the

victim’s] family, and the friends that have, you know, emotional stakes

in this as well. 

He has reached a peace that is noticeable when I talk to him. . . .

(Id., pp. 27-28). The prosecutor and defense counsel both agreed that there was a

factual basis for petitioner’s plea. (Id., p. 28). The prosecutor requested that

petitioner be questioned specifically about the voluntary nature of his plea and

stipulated sentence, especially on the issue of coercion or promises. The prosecutor

stated: 

I want the defendant questioned specifically by the court that he

understands this sentence under Florida law is life without parole. And

there is no release other than the only possible relief is executive action

by the Governor in the form of Clemency. And I would like the court

to determine if the defendant has received any promises or statements

Case No: 3:10cv359/LC/CJK
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that suggest to him that he will receive Clemency. Clemency is the

Governor’s power only. It would be, if granted, it would be granted by

a governor that we don’t even know his name yet, who hasn’t been

elected yet. And so I want to make certain that the defendant hasn’t

been influenced by any promise that he likely would receive Clemency

on these charges.” 

(Id., pp. 30-31). The Court inquired of petitioner as follows:

THE COURT: And, Mr. Hodges, I’ll ask you that. Have any promises

been made to you whatsoever?

THE DEFENDANT: No, sir.

THE COURT: By anyone?

MR. ALLRED: No.

THE COURT: And you understand that life without parole, which is

what you are pleading to today, means life without parole.

And Mr. Elmore is correct, unless there was some sort of executive

action taken either by the current governor or some future governor.

THE DEFENDANT: Yes, sir.

THE COURT: And you have no expectation, or no promises, or no help

that it would happen?

THE DEFENDANT: No, sir.

THE COURT: And so you understand, if I accept your plea, when I

sentence you that you will spend the rest of your life in prison. Do you

understand that?

THE DEFENDANT: Yes, sir.

(Id., pp. 31-32). The prosecutor requested that the issue of petitioner’s waiver of a

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Presentence Investigation (“PSI”) be clarified: “[H]e would have to make a knowing

and voluntary waiver of that right to a Presentence Investigation with the

understanding that the Court would impose the agreed sentence of life with five years

concurrent, and a 25-year minimum mandatory pursuant to the firearm, 10-20-Life

Law, immediately following the conclusion of the plea, and the acceptance of the

plea.” (Id., pp. 32-33). Mr. Allred affirmed that he discussed with petitioner his right

to a PSI, and that petitioner agreed to waive it. (Id., p. 33). Mr. Allred explained:

“Since there is a plea agreement that involves a fixed sentence . . . it is a meaningless

administration procedure to get a PSI.” (Id.). The court asked petitioner if he agreed

with Mr. Allred’s statement, and petitioner responded, “Yes, sir.” (Id.). The court

asked petitioner if he “agree[d] to be sentenced today with no Presentence

Investigation”? (Id.). Petitioner responded, “Yes, sir.” (Id.). 

Defense counsel Allred went even further than the trial court in ensuring that

petitioner’s plea was not based on any promise or misunderstanding concerning

clemency:

MR. ALLRED: Let me address a little bit further with him about the

Executive Clemency because – We have discussed with you certain

steps that you may find helpful in one day seeking it, correct?

THE DEFENDANT: Yes, sir.

MR. ALLRED: But we have not put any odds or likeliness or any of

that to it, is that correct?

THE DEFENDANT: Correct.

(Id., pp. 33-34). The trial court found that petitioner’s plea wasfreely and voluntarily

entered, and accepted petitioner’s plea. (Id., p. 34). Petitioner then addressed the

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court, the victim’s family and his own family stating, in relevant part:

I am talking [sic] responsibility for a mistake that I made

(CRYING) – that caused the tragic accident that has changed the lives

of so many people, especially my daughter, [redacted] (CRYING).

Because of an accident caused by a reckless lifestyle focused on

no one but myself, I have taken both of her parents out of her life. . . .

I have been trying to make sense of my life since this happened,

and the only way that I have to look is up. In studying the Bible I’ve

learned that I can’t change myself unless I seek help from God.

I have must, I have also learned that I could not live the righteous

life with lies, and I must abide in the truth. And to do this I must accept

responsibility for my mistakes.

. . . .

And I am doing this because the Lord has put it within my heart

that I must be real with him to abide in his grace and mercy.

The last step is to abide by every word that is in the Bible, and I’ll

have the rest of my life putting God first in everything I do.

(Id., pp. 38-40). Less than a year passed between petitioner’s sworn statements in

open court and his challenge to his plea.

The Supreme Court has held that a petitioner’s sworn representations to the

trial court during his plea colloquy constitute “a formidable barrier in any subsequent

collateral proceedings. Solemn declarationsin open court carry a strong presumption

of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d

136 (1977). Although a defendant’s attestation of voluntariness at the time of his plea

is not an absolute bar to later contrary contentions, it places a heavy burden upon him. 

Blackledge, 431 U.S. at 74-75. Petitioner must show such a strong degree of

Case No: 3:10cv359/LC/CJK
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misunderstanding, duress, or misrepresentation by the court, prosecutor, or his own

counsel that his plea would become a constitutionally inadequate basis for

imprisonment. Id. Petitioner does not meet this heavy burden. The state court’s

findings – that no one made petitioner any promises concerning clemency and that

petitioner knew he would spend the rest of his life in prison – are amply supported

by the record. Petitioner was told, unequivocally and on several occasions by the

prosecutor, the trial judge and Mr. Allred that he would spend the rest of his life in

prison without the possibility of parole. Petitioner made no indication that that was

not his understanding. Petitioner was asked separately, by the trial judge and by Mr.

Allred, whether he understood he would spend the rest of his life in prison. Petitioner

affirmed his understanding. Petitioner was present when the prosecutor and Mr.

Allred stated to the court that there was no need for a PSI because petitioner was

agreeing to a fixed sentence – life in prison without the possibility of parole. 

Petitioner made no indication to the contrary and affirmatively waived his right to a

PSI. Petitioner was asked separately, by the trial judge and by Mr. Allred, whether

he was given any promises with regard to clemency and whether he had any

expectations that he would receive clemency. Petitioner affirmed that no one had

made him any promises concerning clemency, that he understood that a sentence of

life without parole meant he would serve life in prison without parole, and that he

entertained no expectations concerning clemency or the likelinessthereof. Petitioner

has not rebutted the state court’s findings with clear and convincing evidence that Mr.

Allred promised him he would receive executive clemency within 10 to 15 years of

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

clearly established federal law, and did not involve an unreasonable application of

Case No: 3:10cv359/LC/CJK
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clearly established federal law. 

Petitioner argues in his reply that the state court record does not rebut his claim

– indeed, “the plea colloquy is of no moment” – because petitioner’s claim “is based

solely on the advice and discussions that took place outside the record” during his

meetings with Mr. Allred. (Doc. 30, p. 2). Petitioner details some of those

discussions in his unsworn supporting memorandum (doc. 2): 

Petitioner asserts that his affirmative response to the State trial

Court during sentencing was premised solely on Counsel’s advice. 

Petitioner assertsthat counsel Allred informed him that the Court would

inquire as to his understanding of the possibility of life in prison,

however, attorney Allred informed Petitioner that this was standard

practice of the Court because it is the Court’s ministerial duty to inform

a Defendant of the possible maximum sentence for each offense.

Petitioner, however, was unaware due to his ignorance and

inability to understand the law, coupled with advice fromcounsel[,] that

the sentence that the Court was explaining was the actual sentence he

would serve. Through discussion with attorney Allred, with Petitioner

and Petitioner’s family, Petitioner was led to believe that the most he

would serve in prison would be twenty five years for the offense of

Second Degree Murder if he was not released by a clemency award after

serving ten to fifteen years.

There is a difference between a “promise” as commonly

understood, and an attorney’s expert advice to this client based upon

the attorney’s computation and estimate of the actual amount of time a

defendant may serve on a sentence. Petitioner cannot infer to this Court

that counsel made a “promise,” but Petitioner asserts that Counsel

erroneously advised him as to possible sentence, consequences of plea,

and interpretation of Court proceedings in regards to record inquiry by

the State trial court in regards to possible maximum sentence.

(Doc. 2, pp. 4-5). Petitioner’s new factual assertions – that Mr. Allred told petitioner

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that any discussions during the plea colloquy concerning petitioner’s sentence would

relate to petitioner’s possible sentence and not his actual sentence, and that Mr. Allred

told petitioner he would not be required to serve more than twenty-five years in

prison – were never presented to the state court (even though they could have been)

and cannot be considered here. See Cullen v. Pinholster, — U.S. —, 131 S. Ct. 1388,

1398, 179 L. Ed. 2d 557 (2011) (“[R]eview under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on the merits.”); id.

at 1400 (“If a claim has been adjudicated on the merits by a state court, a federal

habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was

before that state court.”); Borden v. Allen, 646 F.3d 785, 816-17 (11th Cir. 2011)

(holding that in reviewing a claim under § 2254(d)(1), the federal court is confined

to the allegations made in the prisoner’s state court pleading; “Logically, [the state]

court could only undertake an ‘adjudication of the claim’ that was presented to it; we

believe that a review of a state court adjudication on the merits in light of allegations

not presented to the state court – for example, by examining additional facts or claims

presented for the first time in a petitioner’s federal habeas petition – would

insufficiently respect the ‘historic and still vital relation of mutual respect and

common purpose existing between the States and the federal courts.’”) (citing Powell

v. Allen, 602 F.3d 1263 (11th Cir. 2010)). 

Because petitioner does not overcome §2254(d)(1)’s limitations, federal habeas

relief should be denied and, correspondingly, petitioner is not entitled to an

evidentiary hearing. Schriro v. Landrigan, 550 U.S. 474, 127 S.Ct. 1933, 1940, 167

L.Ed.2d 836 (2007)(noting that when the state-court record “precludes habeasrelief”

under the limitations of § 2254(d)(1), a district court is “not required to hold an

Case No: 3:10cv359/LC/CJK
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evidentiary hearing.”). 

CERTIFICATE OF APPEALABILITY

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

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

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

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

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

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

Section 2254 Cases.

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

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

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

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

appealability in its final order.

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

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

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

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

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

recommendation.

Accordingly, it is ORDERED:

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

substituted as respondent in this cause. 

Case No: 3:10cv359/LC/CJK
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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. Daniel Lee Hodges, Jr. in the Circuit

Court for Santa Rosa County, Florida, Case No. 07-1734 be DENIED, and that the

clerk be directed to close the file.

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: 3:10cv359/LC/CJK