Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

J P OWENS, JR,

Petitioner,

v. CASE NO. 5:10-cv-183-RS-GRJ

WALTER A MCNEIL,

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, and is proceeding pursuant to a second

amended petition (“Petition”). Doc. 8. The Respondent filed a response and an

appendix with relevant portions of the state-court record (hereafter “App.”). Docs. 19,

21. Petitioner was afforded an opportunity to file a reply, but did not do so. Upon due

consideration of the Petition, the Response, and the state-court record, the undersigned

recommends that the Petition be denied.

1

Summary of State Court Proceedings

Petitioner was charged in Calhoun County with one count of sale or delivery of a

controlled substance, a second-degree felony, and one count of possession of a

controlled substance with intent to sell or deliver. App. Ex. C 5. The charges stemmed

from a controlled drug buy during which Petitioner sold crack cocaine to a confidential

informant. Petitioner and his nephew, Henry Fain, were in Petitioner’s car during the

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.
Page 2 of 18

transaction, and they were stopped and arrested following the sale. Fain entered a no

contest plea and cooperated with the prosecution in exchange for a sentence of

probation, and testified against Petitioner at trial. Petitioner was convicted following a

jury trial and sentenced as a habitual felony offender to fifteen years incarceration. 

App. Ex. C 120–24.

On direct appeal, Petitioner’s appellate counsel filed a motion to withdraw and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there were no

meritorious grounds for appeal. App. Ex. E. The First DCA granted the motion and per

curiam affirmed Petitioner’s conviction, without opinion. App. Ex. G, H; Owens v. State,

949 So. 2d 203 (Fla. 1st DCA Feb. 7, 2007) (Table). While Petitioner’s direct appeal

was pending, Petitioner filed a Motion for Post-Conviction Relief pursuant to Rule 3.850

of the Florida Rules of Criminal Procedure. App. Ex. I. Petitioner also filed a Motion to

Correct Illegal Sentence. App. Ex. K, L.

The trial court held an evidentiary hearing on the Rule 3.850 motion, at which

Petitioner and his trial counsel testified, and then denied relief. App. Ex. N, O. The

First DCA per curiam affirmed without opinion. App. Ex. Q; Owens v. State, 34 So. 3d 6

(Fla. 1st DCA Feb. 25, 2010) (Table).

The instant Petition, which Respondent concedes is timely, followed. Doc. 8. 

Petitioner asserts six grounds for relief: (1) his appellate counsel rendered ineffective

assistance by failing to identify trial court errors that would support reversal of his

conviction or sentence; (2) The state violated Giglio by presenting perjured testimony 2

Giglio v. United States, 405 U.S. 150 (1972). 2

Case No: 5:10-cv-183-RS -GRJ
Page 3 of 18

to establish his guilt; (3) trial counsel rendered ineffective assistance by failing to object

to perjured testimony; (4) trial counsel rendered ineffective assistance by failing to

object to the absence of blacks in the jury venire; (5) trial counsel rendered ineffective

assistance by failing to object to the validity of the probable cause or search warrant

affidavit; and (6) trial counsel rendered ineffective assistance by failing to make

Petitioner aware that he could be sentenced as a habitual felony offender. 

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 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.

Case No: 5:10-cv-183-RS -GRJ
Page 4 of 18

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 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

th

Case No: 5:10-cv-183-RS -GRJ
Page 5 of 18

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 “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

Case No: 5:10-cv-183-RS -GRJ
Page 6 of 18

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.

Because the Petition alleges ineffective assistance of counsel, 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 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 th

a lawyer’s strategy, [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 banc). “No lawyer can be expected to have considered all of th

the ways [to provide effective assistance].” Id. 

Case No: 5:10-cv-183-RS -GRJ
Page 7 of 18

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

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

Case No: 5:10-cv-183-RS -GRJ
Page 8 of 18

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.

Discussion

Claim 1: Counsel’s failure to identify meritorious issues for appeal 

Petitioner contends that appellate counsel rendered ineffective assistance on

direct appeal by moving to withdraw and filing an Anders brief, and that he was thereby 3

In Anders, the Supreme Court held that where counsel appointed to represent 3

an indigent criminal defendant determines an appeal to be “wholly frivolous,” counsel

should so advise the court and request permission to withdraw. A request to withdraw

must be accompanied by a brief referring to anything in the record that might arguably

Case No: 5:10-cv-183-RS -GRJ
Page 9 of 18

deprived of a fair trial. Doc. 8. Respondent contends that Petitioner failed to exhaust

this claim in state court, that the claim is now procedurally defaulted, and that the claim

is patently frivolous. Doc. 19. 

Before bringing a habeas action in federal court, a petitioner must exhaust all

state court remedies that are available for challenging his conviction, either on direct

appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion

requires that prisoners give the state courts a “full and fair opportunity” to resolve all

federal constitutional claims by “invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To

properly exhaust a federal claim, a petitioner must “fairly present” his federal claim in

each appropriate state court, thereby affording the state courts a meaningful

opportunity to “pass upon and correct alleged violations of its prisoners’ federal rights.” 

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation omitted).

In this case, the record does not reflect that Petitioner raised this issue in his

state postconviction filings. Petitioner presents no argument that he can show any

cause or prejudice sufficient to overcome the procedural default.

Even if the claim were not procedurally defaulted, Petitioner has failed to show

support the appeal. A copy of counsel's brief should be furnished the indigent, who may

then file a responsive brief. The appellate court then undertakes an examination of the

record to determine if the appeal is frivolous. If it so finds, the court may grant

counsel's request to withdraw and dismiss the appeal or proceed to a decision on the

merits, if state law so requires. If the court finds any of the legal points arguable on their

merits (and therefore not frivolous) it must, prior to decision, afford the indigent the

assistance of counsel to argue the appeal. Anders, 386 U.S. at 744 (emphasis

supplied).

Case No: 5:10-cv-183-RS -GRJ
Page 10 of 18

that the claim has any merit. Petitioner does not explain how appellate counsel failed 4

to comply with Anders. To the extent Petitioner argues that appellate counsel should

have raised matters that are addressed in his remaining federal habeas claims, such

claims will be addressed in the context presented in the instant Petition.

Claims 2 & 3: Prosecutorial Misconduct and Ineffective Assistance

Petitioner contends that the state knowingly presented the perjured testimony of

his nephew, Henry Fain. According to Petitioner, Fain testified at trial that he handed

Investigator Bryant $80 of drug “buy money” that Petitioner had given him after the sale. 

Petitioner alleges that Detective Mallory testified in a pretrial deposition that the money

was recovered from Fain’s left front pants pocket. Petitioner contends that Fain’s

allegedly “perjured” trial testimony violated Giglio. Petitioner also contends that

counsel’s failure to object to such perjured testimony amounts to ineffective assistance. 

In order for perjury to constitute grounds for the granting of habeas relief,

petitioner must show that certain testimony (1) was used by the state, (2) was false, (3)

was known by the state to be false, and (4) was material to the guilty or innocence of

the defendant. Giglio, 405 U.S. at 150; see also, United States v. Agurs, 427 U.S. 97,

103–04 (1976); United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980) (“[F]or perjury by

a witness to constitute grounds for relief appellant would have to show that the

Government knowingly used the perjured testimony.”).

In rejecting this claim on postconviction review following an evidentiary hearing,

the state court reasoned as follows:

Pursuant to 28 U.S.C § 2254(b)(2), a habeas petition may be denied on the

4

merits, notwithstanding Petitioner’s failure to exhaust state court remedies.

Case No: 5:10-cv-183-RS -GRJ
Page 11 of 18

Defendant also asserts that trial counsel was ineffective when he

failed to file a motion in limine to prevent the Defendant’s nephew, Henry

Fain, from testifying at trial due to his conflicting testimony prior to trial. In

addition, Defendant states that counsel was negligent because he allowed

Henry Fain to testify at trial with immunity in exchange for his fraudulent

and unintelligent testimony by the State. Defendant’s claim is without

merit.

 According to Defendant’s trial counsel, the testimony presented at

trial was unfavorable to the Defendant. Furthermore, counsel stated that

there was no evidence of perjury that he knew about through his

investigation. But, counsel was aware of the inconsistencies in the State’s

witnesses stories. However, trial counsel testified that he properly

impeached each of the State’s witnesses upon cross examination to cast

doubt on the evidence presented at trial. Despite the foregoing, trial

counsel stated that the evidence and/or testimony Defendant complained

about in his motion is within the province of the jury to decide who they

believed.

 In reviewing the trial transcript, the record clearly refutes

Defendant’s allegations. During Henry Fain’s cross examination,

Defendant’s trial counsel repeatedly impeached the credibility of this

witness via the inconsistent statements made at a deposition. See Trial

TR, pgs. 78–83. Defendant’s claim that counsel was negligent in allowing

Henry Fain to testify at trial fraudulently with immunity is also refuted by

the record. Counsel went into great depth during cross examination to test

the truthfulness of Henry Fain’s testimony due to the terms of a plea

agreement rather than immunity as the Defendant submits. See Trial TR,

pgs. 83–87; 91. In addition, the State inquired into Henry Fain’s

acceptance of a plea deal which required him to testify truthfully at the

Defendant’s trial. See Trial TR, pgs. 76; 90-91. Finally, Defendant’s

counsel reiterated during closing argument the inconsistencies as well as

the truthfulness of Henry Fain’s testimony at trial. See Trial TR, pgs.

110–112; 114–116; 119–120.

Based on the foregoing, this Court finds that trial counsel was not

ineffective when he failed to file a motion in limine to prevent Henry Fain

from testifying at trial. Instead, Henry Fain’s testimony was a jury decision

to weigh and consider which evidence was reliable in rendering their

verdict. See Jury Instructions 3.9; Trial TR, pgs. 140–141. As a result,

counsel is not ineffective for failing to file motions that have no merit. See

Magill v. State, 457 So. 2d 1367 (Fla. 1984). Therefore, Defendant’s

allegations fail to satisfy either prong of Strickland.

. . . Defendant alleges that the State’s use of perjured testimony at trial

Case No: 5:10-cv-183-RS -GRJ
Page 12 of 18

violated his right to due process and caused fundamental error.

Defendant’s claim is without merit.

According to defendant’s trial counsel, the testimony present at trial

was unfavorable to the defendant, but he was unaware of any perjured

testimony through his investigation. But, counsel was aware of the

inconsistencies in the State’s witnesses stories. However, trial counsel

testified that he properly impeached each of the State’s witnesses upon

cross examination to case doubt on the evidence presented a trial. See

Trial TR, pgs. 25–34; 45–50; 78–88; 91. In closing, trial counsel stated

that the evidence and/or testimony Defendant complained about in his

motion is within the province of the jury to decide who they believed.

This Court finds that the testimony presented at trial was effectively

cross examined by Defendant’s trial counsel to cast doubt due to the

inconsistent stories throughout the State’s case. Based upon the trial

counsel’s own investigation, he saw no perjury to act upon that would

require him to file a motion. Rather, the evidence presented at trial was for

a jury to deliberate and decide its reliability. Therefore, Defendant’s

allegations fail to satisfy either prong of Strickland.

App. Ex. N.

Petitioner points to nothing in the record that contradicts the trial court’s

conclusion that Fain’s testimony was not “perjured,” but rather reflected inconsistencies

in testimony that was thoroughly explored by Petitioner’s counsel. Petitioner has not

established that Fain’s testimony was “perjured” within the meaning of Giglio. 

Moreover, the state court reasonably concluded that counsel did not render ineffective

assistance under Strickland because counsel effectively explored the inconsistent

testimony in order to cast doubt on the State’s case. On this record, Petitioner is not

entitled to federal habeas relief on his second and third claims.

Claim Four: Ineffective assistance regarding composition of venire

Petitioner contends that his trial counsel rendered ineffective assistance by

failing to object to the absence of black jurors in the venire. In rejecting this claim on

Case No: 5:10-cv-183-RS -GRJ
Page 13 of 18

postconviction review, the state court reasoned:

Defendant alleges counsel was ineffective when he failed to object to [a]

Neil error. Defendant’s claim is without merit. See Jury Selection TR.

Defendant’s counsel stated that he was never given an opportunity to

present this claim before the Court. According to the trial counsel, the

State never challenged a black juror during voir dire. As a direct

consequence, counsel stated that he had no good faith basis to argue the

point during jury selection. Moreover, trial counsel noted that he could not

get the Defendant to participate in jury selection. Therefore, Defendant

fails to establish either prong of Strickland.

App. Ex. N.

The venire from which a jury is selected must represent a “fair cross-section” of

the community in which the court sits. Taylor v. Louisiana, 419 U.S. 522, 528–29

(1975). In Duren v. Missouri, 439 U.S. 357 (1979), the Supreme Court established the

framework for analyzing fair cross-section claims. To establish a prima facie violation,

the defendant must show that: 1) the group alleged to be excluded is a distinctive group

in the community; 2) the representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of such persons in the

community; and 3) this under-representation is due to systematic exclusion of the group

in the jury-selection process. Id. at 364. 

Pursuant to Rule 7, Rules Governing Section 2254 Cases, the Court permitted

Respondent to supplement the record with an affidavit from Ruth W. Attaway, the Clerk

of Court for Calhoun County, attesting that Petitioner’ venire was selected through a

random process from all of the citizens of the Calhoun county with a driver’s license. 

App. Ex. U. This is the same system utilized currently. Petitioner has made no

showing that this system amounts to systematic exclusion of blacks on Calhoun County

jury venires, or that such system provided any grounds for counsel to object to the

Case No: 5:10-cv-183-RS -GRJ
Page 14 of 18

venire.

Further, although Petitioner alleges that he asked his counsel about the absence

of blacks in the venire, the state court found, following an evidentiary hearing, that

counsel attempted to gain Petitioner’s participation in jury selection but he would not

participate. App. Ex. N. On this record, Petitioner has failed to show that the state

court’s rejection of this claim on both the performance and prejudice prongs of

Strickland was unreasonable. 

Claim Five: Ineffective assistance regarding validity of affidavits

Petitioner contends that his trial counsel was ineffective for failing to challenge

the validity of the probable cause or search warrant affidavits, which were based solely

on the confidential informant’s statements. Doc. 8. In rejecting this claim on

postconviction review, the state court explained:

Defendant alleges counsel was ineffective when he failed to challenge the

validity of the probable cause affidavit prior to trial. Defendant’s claim is

without merit. According to trial counsel, he questioned the officers who

created the probable cause affidavit through discovery and cross

examination on the stand. See Trial TR, pgs. 25–35; 45–50. Counsel also

questioned the confidential informant about his knowledge. See Trial TR,

pgs. 59–65. Counsel is not ineffective for failing to file motions that have

no merit. See Magill. Therefore, Defendant has failed to establish either

prong of Strickland.

App. Ex. N.

The state court found, after an evidentiary hearing, that counsel did in fact

investigate the basis for the probable cause affidavit and cross-examined witnesses

regarding the reliability of the confidential informant. It is clear that the state court

would have rejected a motion challenging the affidavits as meritless. On this record,

Petitioner has failed to show that the state court’s rejection of this claim on both the

Case No: 5:10-cv-183-RS -GRJ
Page 15 of 18

performance and prejudice prongs of Strickland was unreasonable. 

Claim Six: Ineffective assistance regarding sentencing exposure

Petitioner contends that prior to trial neither counsel nor the State informed him

that he could be sentenced as a habitual offender. He asserts that he was not aware

until after the trial that the state had filed a notice to seek habitualization. Doc. 8.

The state court made explicit factual findings on this issue following the

evidentiary hearing:

Defendant alleges counsel was ineffective during the penalty phase

thus making it unreliable. Specifically, Defendant claims that counsel did

not challenge the habitual offender sentence imposed upon him.

However, Defendant’s claim is refuted by the record. See Sentencing TR,

pgs. 10–13; 18–23; 29–32. According to Court records, the State filed

their Notice of Habitual Offender Status on February 16, 2006. On March

15, 2006, the Court heard all testimony and evidence and concluded that

[the] State met its burden of proving that Defendant qualified for habitual

offender status. See Sentencing TR, pgs. 33–35. In addition, the Court

filed an Order of Habitual Felony Offender Status on March 17, 2006.

Therefore, Defendant has failed to establish either prong of Strickland.

 According to the Defendant’s testimony, he had no discussions

with trial counsel about the implications of a habitual offender

enhancement at sentencing either before or during trial. However,

Defendant admitted that he did have discussions with counsel prior to

sentencing. In addition, Defendant submits that counsel did not discuss

with him the maximum penalty he could receive before the State filed its

notice for habitual offender classification. In fact, Defendant stated that if

he was told about a habitual offender sentence prior to trial, he would

have opted for a five year DOC plea deal offered by the State, which he

refused to accept.

 On the other hand, trial counsel stated that he had [an]

independent recollection of the habitual offender enhancement. According

to counsel, Defendant was well aware from the very beginning that he

could receive [an] habitual offender enhancement if he proceeded to trial.

There were discussions between counsel and Defendant about the plea

deal of five years compared to thirty years as a sentencing enhancement.

In fact, trial counsel stated that the assistant state attorney never backed

down about his five year plea offer or Defendant going to prison for a long

Case No: 5:10-cv-183-RS -GRJ
Page 16 of 18

time. However, trial counsel stated that Defendant informed him that he

would never voluntarily go back to prison, hence Defendant’s decision to

pick six and proceed to trial and reject the plea deal.

 Based on the foregoing, the Court finds that the counsel was not

ineffective as his client submits. Rather, Defendant did receive a legal

sentence, and he is not entitled to any relief on this claim. Therefore,

Defendant’s claim is denied.

In Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399 (2012), and Lafler v. Cooper,

566 U.S. ___, 132 S.Ct. 1376 (2012), the Supreme Court held that the Sixth

Amendment right to effective assistance of counsel extends to plea negotiations. Frye,

566 U.S. ___, 132 S.Ct. at 1404–08; Lafler, 566 U.S. at ___, 132 S.Ct. at 1384. Thus,

criminal defendants are “entitled to the effective assistance of competent counsel”

during plea negotiations. Lafler, 566 U.S. at ––––, 132 S.Ct. at 1384 (internal quotation

marks omitted). The Court also considered how to apply the prejudice prong of the

ineffective-assistance-of-counsel test set forth in Strickland and concluded that, in order

to show prejudice, a defendant must demonstrate a reasonable probability that: (1) he

would have accepted a plea offer but for counsel's ineffective assistance; (2) the plea

would have been entered without the prosecution canceling it or the trial court refusing

to accept it; and (3) the plea would have resulted in a lesser charge or a lower

sentence. Frye, 566 U.S. at ___, 132 S.Ct. at 1409; Lafler, 566 U.S. at ___, 132 S.Ct.

at 1384–85.

In this case, it is clear that the state court credited counsel’s testimony over

Petitioner’s on the issue whether counsel discussed Petitioner’s sentencing exposure

with him prior to trial. See App. Ex. N. The state court also credited counsel’s

testimony that Petitioner refused to accept a plea offer, even in the face of an enhanced

Case No: 5:10-cv-183-RS -GRJ
Page 17 of 18

sentence, because Petitioner would not voluntarily return to prison. Id. The state

court’s findings as to witness credibility are presumptively correct. See Brown v. Head,

272 F.3d 1308, 1314 (11 Cir. 2001). On this record, Petitioner has failed to show that th

the state court’s rejection of this claim on either the performance and prejudice prongs

of Strickland was unreasonable. 

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.

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. 8) should be DENIED.

Case No: 5:10-cv-183-RS -GRJ
Page 18 of 18

2. That a certificate of appealability should be DENIED.

IN CHAMBERS this 12 day of July 2013. 

th

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.

Case No: 5:10-cv-183-RS -GRJ