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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

TONY LEE SMOAKS,

Petitioner,

v. CASE NO. 1:10-cv-133-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. Counsel entered an appearance for Petitioner

and filed a memorandum in support of the Petition. Doc. 7. The Respondent filed a

response and an appendix with relevant portions of the state-court record. Doc. 16.

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

The proceedings giving rise to the Petition are summarized in Petitioner’s

memorandum, Doc. 7. Petitioner was charged by amended information with armed

burglary of an occupied dwelling (count one) and aggravated battery (count two). 

According to the trial transcript (Appendix Exhibit B to the Response), Petitioner and his

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.
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wife, Susan Smoaks, lived in an apartment complex near Joel Acevedo. On August 25,

2005, while in Acevedo’s apartment, Petitioner asked Acevedo to pay Petitioner some

money owed for a DVD. Acevedo responded by picking up a kitchen knife and pointing it

at Petitioner. Petitioner left the apartment and returned with a pipe. Acevedo still had

the knife in his hand. Petitioner struck Acevedo in the face and left him unconscious. 

Acevedo called 911 and a police officer responded, but Acevedo told the officer

he had run into a door. Petitioner called the police to report that he had been assaulted

with a knife by Acevedo. Police Officer Joey Devore responded to the call and Petitioner

stated that upon being threatened with the knife he struck Acevedo in the face with his 

fist. Petitioner admitted that he had a pipe but stated that he only used it to strike

Acevedo in the ribs. Petitioner gave the pipe to Officer Devore.

Officer Devore interviewed Acevedo in the hospital. Acevedo told police that

petitioner had struck him with the pipe. Acevedo suffered multiple bone fractures to the

left side of his face. The facial injuries observed by the emergency room doctor were

consistent with blunt force trauma, including from a pipe.

The State called four witnesses at trial: Acevedo, Devore, and Drs. Douglas

Coran and Mary Griffen. Petitioner did not present any witnesses. Petitioner was found

not guilty of burglary and guilty of aggravated assault. He was sentenced as a Prison

Releasee Reoffender to a mandatory term of fifteen years’ imprisonment. The First

DCA affirmed without opinion. App. Exh. I. 

Petitioner unsuccessfully sought sentencing relief under Fla. R. Crim. P. 3.800(a). 

App. Exh. K-P. He filed a Fla. R. Crim. P. 3.850 motion that was summarily denied

without prejudice. App. Exh. Q-V. He filed a second Rule 3.850 motion that was

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summarily denied. The First DCA affirmed without opinion. App. Exh. X-DD. 

The instant Petition, which Respondent concedes is timely, followed. Petitioner

asserted five grounds for relief in his pro se Petition. Doc. 1. In his counseled

memorandum in support of the Petition, Petitioner expressly abandons Grounds Four

and Five. Grounds One, Two, and Three assert claims of ineffective assistance of trial

counsel. Doc. 7.

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.

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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

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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

“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.

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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 Petitioner’s claims allege 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 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. 

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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

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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: Failure to call Petitioner’s wife as a witness 

Petitioner contends that his counsel rendered ineffective assistance by failing to

call his wife, Susan Smoaks, as a witness to testify that Petitioner acted in self-defense. 

He argues that had the state court conducted an evidentiary hearing on his claim, Ms.

Smoaks could have explained discrepancies in a statement she gave regarding the

incident and the testimony of other witnesses at trial. Doc. 7. 

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In rejecting this ineffective-assistance claim on postconviction review, the state

court determined that based on Susan Smoaks’ statement, the only issue on which her

testimony could have been used was her assertion that Petitioner acted in self-defense

when the victim threatened him with a knife. However, her statement also indicated that

the incident occurred in Petitioner’s apartment, when all other evidence was to the

contrary. See Doc. 7 Exh. 1. Given the manifest lack of credibility in the statement, the

court concluded that there was not a reasonable probability that her testimony would

have affected the outcome of the trial. 

Petitioner contends, without citation to anything in the record in support, that Ms.

Smoaks “honestly misstated where the encounter occurred,” and that she would have

testified that she returned to the victim’s apartment with Petitioner. Doc. 7. This

assertion also is inconsistent with the victim’s testimony.

“Complaints concerning uncalled witnesses impose a heavy showing since the

presentation of testimonial evidence is a matter of trial strategy and often allegations of

what a witness would have testified to are largely speculative.” United States v. Guerra,

628 F.2d 410, 413 (5 Cir. 1980). In this case, Petitioner’s assertions regarding what th

Ms. Smoaks would have testified to are wholly speculative. Such speculative assertions

are insufficient to overcome the deference afforded to counsel’s strategic decisions

regarding what evidence to present. On this record, Petitioner has failed to show that

the state court’s decision reflects an unreasonable application of Strickland.

Claim 2: Failure to call an officer to testify that no blood was found on the pipe

Petitioner contends that a key issue at trial was whether he struck the victim in the

face with his fist or with a pipe, and that trial counsel should have called GPD Officer

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Boyd as a witness because he would have testified that there was no blood on the pipe. 

Doc. 7. The state court rejected this ineffective-assistance claim on postconviction

review because there was no dispute at trial that no blood was found on the pipe, and

defense counsel argued to the jury that no blood was found on the pipe. The court

therefore concluded that Petitioner had failed to establish the prejudice prong of

Strickland on this claim. Doc. 7 Exh. 1.

Petitioner argues that testimony from a law enforcement officer would have

bolstered his self-defense claim. Given that the absence of blood on the pipe was not in

dispute, and that counsel argued as much to the jury, it is wholly speculative to suggest

that any further “bolstering” on this point might have had any effect on the outcome of

the trial. Such speculation falls far short of establishing a “reasonable probability” that

the result of the trial would have been different but for counsel’s failure to call a witness

to testify on a matter not in dispute. On this record, Petitioner has failed to show that

the state court’s decision reflects an unreasonable application of Strickland. 

Claim 3: Failing to call an expert witness to contradict State’s experts

Petitioner contends that trial counsel rendered ineffective assistance by failing to

call an expert to testify regarding the cause of the victim’s injuries. Doc. 7. At trial, the

State presented the testimony of two physicians. Dr. Coran, stipulated as an expert in

emergency medicine, testified the victim presented with facial trauma. The victim said he

had been struck by a pipe. A CAT scan revealed fractures. Dr. Coran opined the

fractures were moderately severe, and were consistent with a blunt trauma as could be

inflicted with a pipe. Counsel did not inquire on cross-examination whether a fist could

have caused the same injuries. Dr. Griffen, stipulated as an expert in neuroradiology,

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opined that the victim suffered multiple facial bone fractures, and described them in

detail. Dr. Griffen was not cross-examined. App. Exh. B.

In rejecting this ineffective-assistance claim on postconviction review, the state

court termed Petitioner’s claim “conclusory and speculative,” and without any factual

support. The court found that “[a]ccordingly, it is without merit.” Doc. 7 Exh. 2.

Petitioner points to nothing in the record that suggests there was any error in the

state court’s determination that the claim lacked any factual support. It is wholly

speculative to contend that an expert was available who would have testified that the

victim’s injuries might have been caused by a blow from a fist rather than a pipe. 

Further, Petitioner has not shown that there is a reasonable probability that but for

counsel’s failure to present such testimony he would not have been found guilty of

aggravated battery. On this record, Petitioner has failed to show that the state court’s

decision reflects an unreasonable application of 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

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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. 1) should be DENIED.

2. That a certificate of appealability should be DENIED.

IN CHAMBERS this 28 day of June 2013. 

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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.

Case No: 1:10-cv-133-MP-GRJ