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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

TAVARES EUGENE WILLIAMS,

Petitioner,

v. CASE NO. 1:11-cv-22-MP-GRJ

SECRETARY, DEPT. OF

CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing, through counsel, a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Petition stems from

Petitioner’s Alachua County conviction of first degree premeditated murder, for which

he received a life sentence. Respondent filed a response and an appendix with

relevant portions of the state-court record, and Petitioner filed memoranda, a reply, and

supplemental authority. Docs. 8, 21, 22, 31, 37, 38, 39. Upon due consideration of the

Petition, the state-court record, and the parties’ arguments, the undersigned

recommends that the Petition be denied.

1

State-Court Proceedings

The state court procedural history of Petitioner’s case may be summarized as

follows. Petitioner was charged with the first degree premeditated murder of his

guardian, Barbara Roth, by striking her in the head with a baseball bat on January 24,

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

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

Governing Habeas Corpus Petitions Under Section 2254.

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2002. Petitioner was almost 19 years of age and a high school senior at the time of the

murder.

Assistant Public Defender Elinor Wilkov was appointed to represent Petitioner. 

Between the time of his arrest and the commencement of trial in January 2005,

Petitioner underwent competency examinations and hearings and was ultimately

deemed competent to go to trial. Other pretrial proceedings included the substitution of

Ed Tilton as counsel, the reappointment of Ms. Wilkov several months later, Petitioner’s

waiver of counsel and invocation of right of self-representation shortly before trial, and

the reappointment of Ms. Wilkov after the commencement of voir dire. Immediately

prior to trial, Petitioner entered a waiver under Nixon v. Singletary, 758 So. 2d 618 (Fla.

2000), agreeing to concede to the jury that he had killed Ms. Roth, and to present the

defense that he was guilty of second degree murder or manslaughter, but not first

degree murder. Petitioner stated under oath “I do admit it.” See App. Exh. CC at 157. 2

The State’s witnesses included Sam Roth, the victim’s father; Gayle Fondren,

the manager of the apartment complex where Petitioner lived with the victim; a crime

scene investigator; Petitioner’s girlfriend, Michelle Waller; the officers who took

Petitioner’s videotaped confession; and the medical examiner. At the conclusion of the

first day of testimony, the State pointed out that a motion to suppress Petitioner’s

confession had been filed during Tilton’s appointment as counsel, contending that

Petitioner’s confession was not freely and voluntarily made. Ms. Wilkov adopted the

motion. Exh. C at 192, 195. The videotape of Petitioner’s interview with the detectives

The Nixon waiver is erroneously referred to as “Dixon” in the trial transcript. 2

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was played for the jury on the second day of trial. In the interview, Petitioner initially

stated that he was in a rage because of an earlier argument with Waller and was

swinging a baseball bat in the living room of the apartment with his eyes closed when

the victim came home. He did not stop swinging and hit the victim, but did not mean to.

Later during the interview, following a break, the detectives told Petitioner that Waller

had provided a “different version” of the incident. Petitioner then stated that when the

victim entered the apartment he told her he had a surprise for her, and told her to stand

in the living room and close her eyes. Petitioner retrieved the bat from his bedroom and

hit the victim on the side of her face. He hit her twice more on the back of the head

after she fell to the floor. App. Exh. DD at 279-80. Additional evidence included an

undated poem in Petitioner’s handwriting that was found in this bedroom which the

State argued showed premeditation to murder Roth. Id. at 349.

At the close of the State’s case, Wilkov argued that Petitioner’s confession was

due to be suppressed because Petitioner was not re-read his Miranda rights after the

detectives took a break in the questioning. The court found that the interview was

continuous, and denied the motion. Wilkov moved for a judgment of acquittal, which

was denied. Id. at 322-35.

The jury found Petitioner guilty of first degree murder, and the court sentenced

him to life imprisonment. Exh. B at 104-09; Exh. DD at 389. The First DCA affirmed

per curiam without written opinion. Williams v. State, 930 So.2d 626 (Fla. 1 DCA st

2006).

Petitioner filed postconviction motions and amended motions pursuant to Fla. R.

Crim. P. 3.850. The court summarily denied some claims and held an evidentiary

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hearing on the following claims pertaining to Wilkov’s performance: (1) Failure to seek

suppression of Defendant’s taped confession; (2) Failure to obtain a ruling on

suppression of the confession prior to obtaining Defendant’s Nixon waiver; (3) Failure

to investigate, obtain, and present evidence that the victim had verbally and sexually

abused the Defendant; (4) Failure to object to the admissibility of the “irrelevant and

inflammatory poem;” and (5) Failure to preserve defense counsel’s file.3

The evidence presented by Petitioner at the evidentiary hearing included

testimony by the chief assistant public defender for the Eighth Judicial Circuit, John

Kearns; Ms. Wilkov; the Petitioner; Petitioner’s father, Virgil Williams; two psychiatrists; 

Petitioner’s friend, Cleveland Jones; Jones’ mother, Angela Hutchison; and the

detectives who interviewed Petitioner following the murder. App. Exh. LL, MM.

Following the hearing and post-hearing briefing, the trial court denied the motion

on the merits of the five claims. App. Exh. R. at 2140-45. Petitioner appealed, and

filed a brief arguing the merits of each of the five claims considered at the evidentiary

hearing. Petitioner also asserted that the trial court erred in not conducting an

evidentiary hearing on his remaining claims that were summarily denied, contending

that the court erred in finding that the claims were facially inadequate to require a

hearing. Petitioner did not brief the merits of the summarily-denied claims. App. Exh.

PP at 95-100. The First DCA affirmed per curiam without written opinion. App. Exh.

SS.

The fifth ground was asserted as a due process claim. A sixth ground, 3

counsel’s failure to present evidence that Petitioner’s medications could have affected

the voluntariness of the crime, was withdrawn. App. Exh. R. at 2140; Exh. PP at 4-5.

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

asserts 11 claims for relief. The first five claims were the subject of the state court’s

postconviction evidentiary hearing. The remaining six claims were summarily denied. 

Doc. 1. Respondent contends that because Petitioner failed to argue the six

summarily-denied claims in his postconviction appellate brief to the First DCA, the

claims are unexhausted and procedurally defaulted and therefore foreclosed from

federal review. Doc. 21. Petitioner’s counsel concedes that she did not brief the merits

of the summarily-denied claims to the First DCA, but did so in reliance on Webb v.

State, 757 So. 2d 608, 609 (Fla. 5th DCA 2000) (holding that summarily-denied claims

need not be briefed on appeal in order to be considered exhausted at the state level). 

Doc. 3.

4

Section 2254 Exhaustion Requirement

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

The summarily-denied claims asserted in the Petition are: (6) Counsel’s failure 4

to pursue a self-defense strategy; (7) Counsel’s failure to impeach Waller’s testimony

that Williams told her before the crime that he wanted to kill Roth and described how

the murder occurred afterward; (8) Counsel’s failure to argue the motion for acquittal

with specificity; (9) Cumulative errors of trial counsel; (10) Brady violation regarding law

enforcement interviews; and (11) Violation of 8 Amendment regarding the life th

sentence. Doc. 1.

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properly exhaust a federal claim, a petitioner must “fairly present” the 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). 

When a petitioner fails to properly exhaust a federal claim in state court, and it is

obvious that the unexhausted claim would now be procedurally barred under state law,

the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11 Cir. th

1999). Federal habeas courts are precluded from reviewing the merits of procedurally

defaulted claims unless the petitioner can show either (1) cause for the failure to

properly present the claim and actual prejudice from the default, or (2) that a

fundamental miscarriage of justice would result if the claim were not considered. Id. at

1302, 1306. A fundamental miscarriage of justice exists “where a constitutional

violation has probably resulted in the conviction of one who is actually innocent.” Ward

v. Hall, 592 F.3d 1144, 1157 (11 Cir. 2010). To state a credible claim of actual th

innocence, a petitioner must present new reliable evidence that was not presented at

trial showing that “it is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

 Pursuant to Florida law, where a movant’s Rule 3.850 motion is denied after an

evidentiary hearing, he must file an initial brief if he wishes to appeal the denial. Fla. R.

App. P. 9.141(b)(3). Florida law also establishes that claims for which an appellant

does not present any argument–or presents only conclusory argument–are waived. 

See, e.g., Gamble v. State, 877 So. 2d 706 (Fla. 2004). The majority of Florida

courts–including the First DCA, where Petitioner was convicted and pursued

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postconviction relief–hold that this rule applies even where the evidentiary hearing in

the Rule 3.850 proceeding is limited to only some of the post-conviction claims. 

Accordingly, a movant must present all claims–whether summarily denied or denied

after an evidentiary hearing–in the initial brief to the appellate court. Prince v. State, 40

So. 3d 11 (Fla. 4 DCA 2010); Williams v. State, 24 So.3d 1252 (Fla. 1 DCA 2009) th st

(where appellant received evidentiary hearing on some of his post-conviction claims

and others were summarily denied, appellate court would review only those summarily

denied claims which movant argued in the appellate brief). 

Federal district courts in Florida – including this Court – that have considered this

issue have determined that a petitioner’s failure to raise a ground in his brief before the

Florida District Court of Appeals waives federal habeas review of such claims. Corn v.

McNeil, No. 3:08-cv-199-MCR-EMT, 2010 WL 5811434, at *17 (N.D. Fla. Nov. 24,

2010) (“The undersigned concludes that the Florida procedural rule deeming as waived

or abandoned those claims for which an appellant has not presented any argument in

his appellate brief (or for which he provides only conclusory argument), even when the .

. . claims were summarily denied by the trial court, is a firmly established and regularly

followed procedural rule for purposes of federal habeas.”). See also Mays v. Secretary, 

1:10-cv-198-MP-GRJ (N.D. Fla. Jan. 28, 2014); Ross v. McNeil, 5:07-cv-219-RS-EMT,

2010 WL 2179039 (N.D. Fla. Apr. 14, 2010); Sharp v. McNeil, No. 4:07-cv-17-MP-MD,

2009 WL 981594, at *13-14 (N.D. Fla. Apr. 10, 2009); Durain v. McNeil, No.

2:08-cv-24-FTM-29DNF, 2008 WL 4888989, at *9 (M.D. Fla. Nov. 12, 2008); Williams v.

McDonough, No. 8:02-CV-965-T-30MAP, 2007 WL 2330794, at *1-2 (M.D.Fla. Aug.14,

2007); Walker v. Sec'y, Dep't of Corr., No. 8:05-cv-1539-T-17MAP, 2007 WL 1747181,

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at *4 (M.D. Fla. June 18, 2007). 

Petitioner’s initial brief to the First DCA argued generally that the trial court erred

by not conducting an evidentiary hearing as to some of Petitioner’s claims, but did not

brief any underlying federal constitutional issues asserted in the summarily-denied

claims. See App. Exh. PP at 95-100. The postconviction appeal record thus

establishes that the claims in Grounds 6-11 were not “fairly presented” to the First DCA,

and therefore Petitioner did not exhaust his available state remedies with respect to

each of those claims. See 28 U.S.C. § 2254(b)(1), (c). Because Petitioner did not 5

brief the federal constitutional claims asserted in Grounds 6-11 in the instant Petition to

the First DCA, Petitioner cannot now take a second appeal from the denial of his 3.850

motion in order to successfully exhaust these claims; therefore, they are procedurally

defaulted.

Petitioner argues that asserted ambiguity in the state appellate briefing rules and

the “lack of explicit case law” regarding the need for appellate briefing suggest that the

Court should neverthless review these claims pursuant to the rule of lenity. Doc. 31 at

38 (citing Rewis v. United States, 401 U.S. 808, 812 (1971) (“ambiguity concerning the

ambit of criminal statutes should be resolved in favor of lenity”); State v. Winters, 346

So. 2d 991, 993 (Fla. 1977) (“Penal statutes must be strictly construed in favor of the

The state court's failure to hold an evidentiary hearing on a petitioner's 3.850 5

motion is not a basis for federal habeas relief, even if this claim was properly exhausted

in the state courts. Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.1987). 

Therefore, insofar as Petitioner's claim is based on the state court's failure to hold an

evidentiary hearing, such failure is not contrary to, or an unreasonable application of

federal law. Anderson v. Secretary for Dept. of Corrections 462 F.3d 1319, 1330 (11th

Cir. 2006).

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accused where there is doubt as to their meaning and must be sufficiently explicit so

that men of common intelligence may ascertain whether a contemplated act is within or

without the law, and so that the ordinary man may determine what conduct is

proscribed by the statute.”)). Petitioner’s argument does not establish the cause-andprejudice necessary for this Court to review a procedurally defaulted federal habeas

corpus claim. As the foregoing authority establishes, the rule of lenity applies to the

interpretation of criminal statutes and not to state procedural briefing rules.

Petitioner’s remaining five claims (Grounds 1-5) were exhausted in the state

court and rejected on the merits, and are properly considered on federal habeas review.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes limitations

on the scope of this Court's 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), “a

determination of a factual issue made by a State court shall be presumed to be correct,”

and the petitioner “shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” “‘[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a different

conclusion in the first instance.’” Burt v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4

(2013)(quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841(2010)).

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

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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); see Burt,

2013 WL 5904117, *4 (standard for reviewing claims of legal error by state courts is

“highly deferential”). This standard “recognizes a foundational principle of our federal

system: State courts are adequate forums for the vindication of federal rights.” Id. 

This highly deferential standard carries special force in habeas cases asserting

ineffective assistance claims: “Especially where a case involves such a common claim

as ineffective assistance of counsel under Strickland —a claim state courts have now 6

adjudicated in countless criminal cases for nearly 30 years—‘there is no intrinsic reason

why the fact that a man is a federal judge should make him more competent, or

conscientious, or learned . . . than his neighbor in the state courthouse.’” Id. (quoting

Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037 (1976). 

In view of the deference afforded to the state courts’ adjudication of

constitutional claims, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court. AEDPA requires ‘a state

prisoner [to] show that the state court's ruling on the claim being presented in federal

court was so lacking in justification that there was an error . . . beyond any possibility for

fairminded disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. ___, 131 S.Ct.

Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that to prevail on a 6

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. A court may dispose of the

claim if a defendant fails to carry his burden of proof on either the performance or the

prejudice prong).

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770, 786–787 (2011). “‘If this standard is difficult to meet’—and it is—‘that is because it

was meant to be.’” Id. (quoting Harrington, 131 S.Ct. at 786). “We will not lightly

conclude that a State's criminal justice system has experienced the ‘extreme

malfunction’ for which federal habeas relief is the remedy.” Id. (quoting Harrington, 131

S.Ct. at 786). 

In Harrington, the Supreme Court held that “[w]hen a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any indication

or state-law procedural principles to the contrary.” “Under Harrington's general rule,

then, a state court's simple one-word affirmance is presumed to be an adjudication on

the merits of the petitioner's claim.” Shelton v. Secretary, Dept. of Corrections 691

F.3d 1348, 1353 -1354 (11 Cir. 2012). th

Claims 1-2: Ineffective assistance concerning confession and Nixon waiver

Petitioner contends in his first ground for relief that Wilkov was ineffective for

failing to investigate and file a meritorious pretrial motion to suppress his confession

and request a pre-trial hearing on the motion. Doc. 1 at 3. As support for this claim,

Petitioner argues that there was “ample evidence in support” of a pre-trial motion to

suppress based on his assertion that his confession was not knowing and intelligent. 

Petitioner contends that “witnesses and records could have established” that he

suffered from brain damage, post-traumatic stress disorder (PTSD), suicidal ideation,

lack of prescribed medication for depression, exhaustion, and a propensity to be

influenced by the style and appearance of one of the interrogating detectives. Id. at 4. 

In his second ground for relief, Petitioner contends that counsel was ineffective for

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entering the Nixon waiver prior to moving to suppress the confession. Success on this

second ground depends on the success of the first ground regarding counsel’s failure to

file a motion to suppress.

In rejecting this claim following the evidentiary hearing, the state court assessed

the claim under the Strickland standard and found as follows:

Defendant testified at the [evidentiary] hearing that, at the time of the

confession, he hadn’t slept in approximately 36 hours, and that he was

“exhausted.” He testified that law enforcement suggested to him that

Michelle Waller (Defendant’s girlfriend at the time) wouldn’t be charged as

an accessory, and that he would be allowed to talk with his friends, if he

cooperated. He said that he was “extremely” stressed. He testified that

law enforcement said they would give him food, and that they would put in

a “good word” with the judge. He also testified that he told his trial

attorney, E. Wilkov, and her supervisor, J. Kearns, of the foregoing

promises which induced his confession. He said that he wanted the

questioning to stop, and “felt” like questioning would stop if he continued

to answer questions. He did not say that the lack of sleep had any

negative affect on the voluntariness of his statements, and he

acknowledged that he was advised of his Miranda rights and read and

signed the waiver.

Gainesville Police Department detectives Johnson and Senn obtained

Defendant’s confession. Johnson said that Defendant never said or did

anything to indicate that the interview was not voluntary. He testified that

Defendant did not tell him that he hadn’t slept or eaten in the 36 hours

before the confession. He said that neither he nor Detective Senn, who

was with Johnson during the interview, made any of the promises or

suggestions testified to by Defendant[.] 

Detective Senn testified that he and Johnson were together during

Defendant’s confession. He specifically denied that anyone made any of

the promises or suggestions testified to by Defendant . . . .He said that

Defendant never said or did anything to indicate that his statements to

police were not voluntary.

Defendant’s trial attorney, E. Wilkov, testified that she met with Defendant

at the jail weekly. She recalled discussing several specific topics with

Defendant, including his relationship with the victim, his confession, a

taped phone call Defendant made from the jail, and possible defenses.

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She testified that she and her supervisor, J. Kearns, met with Defendant

and viewed with him the video of his confession. She testified that she

and Kearns decided that there was no good-faith basis to seek

suppression of the confession. Kearns, who was the Chief Assistant

Public Defender for the Eighth Judicial Circuit, testified that there were no

concerns regarding the voluntariness of Defendant’s confession.

The Court finds that the testimony of Wilkov and Kearns, as corroborated

by Johnson and Senn, to be credible. Therefore, the court finds that

Defendant’s capacity to waive his Miranda rights and make voluntary

statements was not impaired at the time of the confession. Even if the

foregoing is not supported by the evidence, the Court finds that Defendant

did not tell his attorneys anything about his mental state or police conduct

during the confession that would have provided a good-faith basis to seek

suppression or investigate further.

 App. Exh. R. at 2140-42.

The state court’s rejection of this claim was premised on crediting Wilkov’s,

Kearns’, and the detectives’ testimony at the evidentiary hearing over Petitioner’s

regarding whether there was any factual basis for concluding that Petitioner’s

confession was the product of coercion or was other than knowing and voluntary. 

“Determining the credibility of witnesses is the province and function of state courts, not

a federal court engaging in habeas review. Federal habeas courts have ‘no license to

redetermine credibility of witnesses whose demeanor was observed by the state court,

but not by them.’” Consalvo v. Secretary for Dept. of Corrections, 664 F3d 842, 845

(11 Cir. 2011) (quoting Marshall v. Lonberger, 459 U.S. 422 (1983)). Questions about

th

the credibility of witnesses are questions of fact, and “the AEDPA affords a presumption

of correctness to a factual determination made by a state court.” Id. It is Petitioner’s

burden to rebut the presumption of correctness by clear and convincing evidence. Burt

v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4.

At the evidentiary hearing, Wilkov’s supervisor, Kearns, testified that if he had

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thought there was a basis for suppressing the confession he would have discussed it

with Wilkov. Wilkov testified that she met with Petitioner many times over the course of

the three years during which Petitioner’s case was pending. She viewed the videotaped

confession with Kearns, discussed it with Petitioner, and decided “there was no viable

motion to suppress” and the best strategy would be to admit the crime and mount a

defense on the issue of premeditation, and try to minimize the damage that the

evidence against Petitioner would do. Petitioner repeatedly told her that he had never

been abused by the victim. She specifically recalled conferring with her supervisor and

both concluding that there was no good-faith basis for a motion to suppress the

confession. App. Exh. LL at 587-94.

Petitioner attempted to establish through his own and expert testimony at the

evidentiary hearing that he suffered from brain damage due to childhood injuries, was

not taking Paxil that had been prescribed for depression at the time of the crime and

confession, and was suffering from PTSD and suicidal thoughts at the time of the

interrogation due to physical abuse by his father (who admitted abusing Petitioner as a

child) and the victim. Id. at 609-28. He admitted on cross-examination, however, that

he told his mental health counselor prior to the murder that the victim had not physically

abused him. Id. at 627. The two psychiatrists who testified at the evidentiary hearing –

many years following the murder and Petitioner’s confession – testified that based on

postconviction interviews with Petitioner and his reports to them, he was intimidated by

the interrogators and suffering from exhaustion, stress, and PTSD during the

interrogation. Id. at 656–47.

A court must “judge the reasonableness of counsel's conduct on the facts of the

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particular case, viewed as of the time of counsel's conduct.” Roe v. Flores-Ortega, 528

U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). “[H]indsight is discounted by

pegging adequacy to ‘counsel's perspective at the time’ ... and by giving a ‘heavy

measure of deference to counsel's judgments.’ “ Rompilla v. Beard, 125 S.Ct. 2456,

2462 (2005) (citations omitted). 

In this case, Petitioner’s argument that “witnesses and records” could have

provided evidence that Petitioner suffered from conditions that rendered his waiver of

Miranda rights and confession unknowing and involuntary relies heavily on hindsight

and post hoc speculation by witnesses many years after the relevant events. Viewing

the evidence of counsel’s conduct at the time that it occurred, as established by her

testimony, which the state court expressly found more credible than Petitioner’s

contrary evidence, Petitioner has failed to show that counsel’s performance fell below

an objective standard of reasonableness. On this record, Petitioner has failed to show

that the state court's rejection of this ineffective-assistance claim was “so lacking in

justification that there was an error . . . beyond any possibility for fairminded

disagreement.’” Burt, ___ U.S. ___, 2013 WL 5904117, *4 (quoting Harrington v.

Richter, 562 U.S. ___, 131 S.Ct. 770, 786–787 (2011).

After finding that Wilkov was not ineffective for not filing a motion to suppress,

the state court concluded that Wilkov also was not ineffective for failing to seek a ruling

on a suppression motion prior to the Nixon waiver. App. Exh. R. at 2142. Because the

Court concludes that Petitioner has not established a basis for habeas relief under his

first claim, it is clear that his second claim must fail for the same reasons.

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Claim 3: Ineffective Assistance regarding evidence of abuse by victim

Petitioner contends that Wilkov was ineffective for failing to investigate and

present evidence that the victim had verbally and sexually abused Petitioner. Doc. 1 at

6. Petitioner contends that the state opened the door to character evidence about the

victim by eliciting testimony that the victim cared for Petitioner’s needs as a mother

would, and that there were no problems in their relationship. Id. 

In rejecting this claim on postconviction review, the state court determined:

Defendant testified that the victim had verbally and sexually abused him

for several years. Several other witnesses testified as to verbal abuse,

and Defendant’s friend Cleveland Jones testified that Defendant on one

occasion told him that he had had sex with the victim.

On this issue, Wilkov was clear that Defendant had told her none of the

foregoing - in fact, Defendant had told her that he had never been abused

by the victim. The Court accepts Wilkov’s testimony as truthful and

accurate. Even if the Court’s finding as to Wilkov’s testimony on this issue

is not supported by the evidence, the Court finds that evidence of abuse

of Defendant by the victim would not have been admissible in evidence

[under state law]. 

App. Exh. R. at 2142-43. 

Again, the state court’s credibility finding regarding Wilkov’s testimony that

Petitioner specifically denied abuse by the victim during the case preparation is not

subject to redetermination on federal habeas review. Consalvo, 664 F.3d at 845. 

Petitioner has not shown that any of his pretrial competency proceedings revealed any

sexual abuse of him by the victim, nor has he shown that the absence of evidence of

abuse at trial had any prejudicial effect on the defense theory that he lacked

premeditation. In the face of specific denials of abuse by her client, it cannot be said

that counsel’s failure to investigate and present evidence of sexual abuse of Petitioner

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by the victim was objectively unreasonable. On this record, Petitioner has failed to

show that the state court's rejection of this ineffective-assistance claim was “so lacking

in justification that there was an error . . . beyond any possibility for fairminded

disagreement.’” Burt, ___ U.S. ___, 2013 WL 5904117, *4.

Claim 4: Ineffective assistance for failing to file motion in limine

Petitioner contends that counsel was ineffective for failing to file a motion in

limine to exclude a poem he wrote. Petitioner argues that the poem was “highly

inflammatory” and possessed “no probative value,” and that it was inadmissible under

Florida law. Doc. 1 at 7-8.

The handwritten poem that was found in Petitioner’s bedroom during the crime

scene investigation read as follows:

Forgive me, father, for I am about to sin. I’m not worthy of your love

because I love to sin. I have tried and tried, but I have failed. What I am

about to do will have me put in jail. So much anger, so much hate, it is

time for me to let it out, with no time to waste. I was born by myself, I will

die by myself.

App. Exh. DD at 349.

In rejecting this claim on postconviction review, the state court determined:

The admissibility of evidence rests within the sound discretion of a trial

court, and such rulings will not be disturbed absent an abuse of discretion.

Naylor v. State, 748 So.2d 385 (Fla. 3d DCA 2000). The court finds that

the poem is relevant to the issue of premeditation, and that it is not

unfairly prejudicial. Fla. Stat. §90.403. Therefore, Defendant has failed to

show a reasonable probability that the outcome of the trial would have

been different but for counsel’s alleged ineffectiveness. In other words,

this court finds that there is no reasonable probability that a trial judge

would exclude admissibility of the poem. 

App. Exh. R at 2143.

Federal habeas courts do not sit to review State evidentiary rulings unless the

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alleged error is of such a magnitude as to render the state defendant's trial

fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 71 (1991); Knight v.

Singletary, 50 F.3d 1539, 1546 (11th Cir.1995). In this case, Petitioner has not shown

that the state court’s determination that a motion in limine would not have succeeded

under state law was contrary to, or an unreasonable application of, federal law.

At the postconviction evidentiary hearing, Wilkov testified that she did not believe

there was a valid basis for objecting to admission of the poem. App. Exh. LL at 598-99. 

In view of the state court’s conclusion regarding the likely success of a motion in limine,

counsel’s decision not to seek exclusion of the poem is not objectively unreasonable. 

Further, Petitioner has failed to show that the state court's rejection of this ineffectiveassistance claim on the prejudice prong of Strickland was “so lacking in justification that

there was an error . . . beyond any possibility for fairminded disagreement.’” Burt, ___

U.S. ___, 2013 WL 5904117, *4 

Claim 5: Counsel’s failure to preserve the trial file

Petitioner contends that he was denied the right to due process in the

postconviction proceeding because the trial file could not be located. Petitioner asserts

that counsel failed in her professional and ethical duties to preserve her trial file, and

“sandbagged” the defense by refusing to answer questions in her deposition due to the

lack of a trial file. She was able to answer questions at the evidentiary hearing after

reviewing the trial file at the State Attorney’s office prior to the hearing. Doc. 1 at 8.

In rejecting this claim on postconviction review, the state court determined: 

Kearns testified that, when contacted by the office of defense attorney

[Petitioner’s counsel] Rudenstine . . . for copies of the defense file, he

could not locate it. He testified that much of the file could be reconstructed

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from the court file, except for attorneys’ and investigators’ notes. Wilkov

testified it was not her practice to prepare “attorney memos.”

There is no evidence that the defense file became missing during Wilkov’s

representation of Defendant (which ended upon filing a notice of appeal).

The file was discovered missing sometime after 26 November 2007. This

Court is reluctant to find that misplacing a defense file after representation

has ended is grounds for relief under Rule 3.850. Additionally, Defendant

has presented no evidence that the defense file contains anything that

would support his post-conviction motion. Prejudice is not presumed, but

must be shown by Defendant, pursuant to [Strickland].

 App. Exh. R at 2144.

As the state court determined, Kearns testified that he conducted a search for

Petitioner’s trial file after the postconviction motion was filed. He testified that he knew

of other cases in which files were lost while the cases were pending and the files were

reconstructed. He testified that the general paperwork and discovery could be

reconstructed from the clerk’s file, the state attorney’s office and, if there was a codefendant, from that counsel. The file would be missing attorney memos and

interviews. App. Exh. LL at 574-76.

Wilkov testified at the evidentiary hearing that after the trial was over, she

handed the file over to a secretary. She did not see the file again. Wilkov did not

maintain a separate trial file. She testified that Kearns came to her during the

postconviction proceedings and asked if she knew where Petitioner’s file was located.

Wilkov searched for the file, but was unable to locate it. App. Exh. LL at 582-584.

States have no obligation to provide postconviction review, and such

proceedings do not encompass the full panoply of federal due process rights. See

Quince v. Crosby, 360 F.3d 1259, 1261–62 (11th Cir. 2004) (explaining that “while

habeas relief is available to address defects in a criminal defendant's conviction and

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sentence, an alleged defect in a collateral proceeding does not state a basis for habeas

relief.”); Barbour v. Haley, 471 F.3d 1222, 1228 (11 Cir. 2006). In this case, Petitioner

th

has made no showing that any due process rights implicated by the unavailability of

Wilkov’s file were not satisfied. Petitioner had access, through counsel, to the

extensive trial materials, including the court records of the pretrial competency

proceedings, law enforcement materials, and the state court trial and appellate records.

Petitioner, through counsel, engaged in postconviction discovery and presented

numerous witnesses during the postconviction evidentiary hearing. In sum, Petitioner

has failed to show that the state court’s rejection of this due process claim reflects an

unreasonable determination of the facts, or was contrary to, or an unreasonable

application of, federal law.

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

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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.

It is respectfully RECOMMENDED that the petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, Doc. 1, should be DENIED and a COA should be

DENIED.

IN CHAMBERS this 4 day of March 2014. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after

being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with

a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.

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