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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DAVID MOULTRIE,

Petitioner,

vs. Case No.: 3:10cv257/RV/EMT

KENNETH S. TUCKER,1

Respondent.

___________________________________/

ORDER and REPORT AND RECOMMENDATION

This cause is before the court on Petitioner’s amended petition for writ of habeas corpus filed

under 28 U.S.C. § 2254 (doc. 8). Respondent filed an answer and relevant portions of the state court

record (docs. 18, 20). Petitioner filed a reply (doc. 23).

The matter is referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N. D. Fla. Loc. R. 72.2(b). After careful consideration of all issues

raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for

the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion

of the undersigned that the pleadings and attachments before the court show that Petitioner is not

entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state

court record (see doc. 20).2

 Petitioner was charged in the Circuit Court in and for Escambia County,

Florida, Case No. 2004-CF-001099, with one count of trafficking in 14 grams or more, but less than

1

 Kenneth S. Tucker succeeded Edwin G. Buss as Secretary for the Department of Corrections. Secretary

Tucker is automatically substituted as Respondent. See Fed. R. Civ. P. 25(d)(1).

2

 Hereinafter all citations to the state court record refer to the exhibits submitted with Respondent’s answer (doc.

20). If a cited page has more than one page number, the court cites to the “Bates stamp” page number. 

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28 grams, of illegal drugs, specifically, hydrocodone, in violation of Florida Statutes §§ 893.03(1)(b)

or (2)(a), or 14 grams or more, but less than 28 grams, of any mixture containing hydrocodone, in

violation of § 893.135(1)(c)1.b (Ex. B at 1). The offense conduct occurred on March 5, 2004 (id.). 

Following a jury trial on June 16, 2005, he was found guilty as charged (Ex. B at 6, Ex. C). On June

22, 2005, Petitioner was adjudicated guilty and sentenced to twenty (20) years of imprisonment, with

pre-sentence credit of 142 days (Ex. B at 28–33). On July 20, 2005, the sentence was modified to

run concurrently to Petitioner’s sentence in Case No. 2003-CF-004249 (id. at 36–48).

Petitioner, through counsel, appealed the judgment to the Florida First District Court of

Appeal (“First DCA”), Case No. 1D05-3604 (Ex. B at 49). Petitioner’s counsel filed a brief,

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

arguments to support the contention that reversible error occurred in the trial court (Ex. E). 

Petitioner filed a pro se initial brief (Ex. F). The First DCA affirmed the judgment per curiam

without written opinion on November 20, 2006, with the mandate issuing December 18, 2006 (Ex.

H). Moultrie v. State, 944 So. 2d 354 (Fla. 1st DCA 2006) (Table). Petitioner did not seek further

review.

On February 27, 2007, Petitioner filed a motion for post-conviction relief, pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure (Ex. I). He subsequently filed a notice of

voluntary dismissal, and the state circuit court dismissed the motion without prejudice on May 3,

2007 (Ex. J). 

On July 30, 2007, Petitioner filed another Rule 3.850 motion (Ex. K). On November 21,

2007, the state circuit court dismissed the motion on the ground that it did not contain a sufficient

oath (Ex. L). The dismissal was without prejudice to Petitioner’s filing an amended motion within

thirty (30) days (id.). Petitioner timely filed an amended motion (Ex. M at 91–128). The court

appointed counsel for Petitioner and held a limited evidentiary hearing on three of Petitioner’s

claims (id. at 155–58, 60–236). The state circuit court subsequently denied the Rule 3.850 motion

(id. at 237–46). Petitioner appealed the decision to the First DCA, Case No. 1D09-2307 (Ex. N). 

The First DCA affirmed the decision per curiam without written opinion on May 11, 2010, with the

mandate issuing May 27, 2010 (Exs. P, Q). Moultrie v. State, 35 So. 3d 34 (Fla. 1st DCA 2010)

(Table). 

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Petitioner filed the instant federal habeas action on July 19, 2010 (doc. 1). Respondent

concedes the habeas petition is timely (doc. 18 at 3).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides that “a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court”

upon a showing that his custody is in violation of the Constitution or laws of the United States. As

the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for

habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214, 1218–19. 

In relevant part, section 2254(d) now provides:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.

28 U.S.C.A. § 2254 (2002).

The United States Supreme Court explained the framework for § 2254 review in Williams

v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).3 The appropriate test was

described by Justice O’Connor as follows:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court

to grant a state prisoner’s application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may

issue only if one of the following two conditions is satisfied—the state court

adjudication resulted in a decision that (1) “was contrary to . . . clearly established

3

 Unless otherwise noted, references to Williams are to the majority holding, written by Justice Stevens for the

Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts I, III, and IV of the opinion (529

U.S. at 367–75, 390–99); and Justice O’Connor for the Court (joined by Justices Rehnquist, Kennedy, Thomas,

and—except as to the footnote—Scalia) in part II (529 U.S. at 403–13). The opinion of Justice Stevens in Part II was

joined by Justices Souter, Ginsburg, and Breyer. 

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Federal law, as determined by the Supreme Court of the United States,” or (2)

“involved an unreasonable application of . . . clearly established Federal law, as

determined by the Supreme Court of the United States.” Under the “contrary to”

clause, a federal habeas court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this court on a question of law or if the state

court decides a case differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable application” clause, a federal

habeas court may grant the writ if the state court identifies the correct governing

legal principle from this Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

Id., 529 U.S. at 412–13 (O’Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S. Ct.

2113, 2119–20, 147 L. Ed. 2d 125 (2000). In employing this test, the Supreme Court has instructed

that on any issue raised in a federal habeas petition upon which there has been an adjudication on

the merits in a formal State court proceeding, the federal court should first ascertain the “clearly

established Federal law,” namely, “the governing legal principle or principles set forth by the

Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S.

63, 71–72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is “clearly established” if Supreme

Court precedent at the time “would have compelled a particular result in the case.” Neelley v.

Nagle, 138 F.3d 917, 923 (11th Cir. 1998), overruled on other grounds by Parker v. Head, 244 F.3d

813, 835 (11th Cir. 2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly

established Supreme Court case law, either because “‘the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases’ or because ‘the state court confronts a

set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and

nevertheless arrives at a result different from [Supreme Court] precedent.’” Lockyer, 538 U.S. at

73 (quoting Williams, 529 U.S. at 405–06). The Supreme Court has clarified that “[a]voiding these

pitfalls does not require citation to our cases—indeed, it does not even require awareness of our

cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002) (quoting Williams, 529

U.S. at 405–06). If the State court decision is found in either respect to be contrary, the district court

must independently consider the merits of the petitioner’s claim.

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If on the other hand, the State court applied the correct Supreme Court precedent and the

facts of the Supreme Court cases and the petitioner’s case are not materially indistinguishable, the

court must go to the third step and determine whether the State court “unreasonably applied” the

governing legal principles set forth in the Supreme Court’s cases. The standard for an unreasonable

application inquiry is “whether the state court’s application of clearly established federal law was

objectively unreasonable.” Williams, 529 U.S. at 409. Whether a State court’s decision was an

unreasonable application of a legal principle must be assessed in light of the record the court had

before it. Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737–38, 159 L. Ed. 2d 683

(2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851 n.4, 152 L. Ed.

2d 914 (2002) (declining to consider evidence not presented to state court in determining whether

its decision was contrary to federal law). An objectively unreasonable application of federal law

occurs when the State court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case” or “unreasonably extends, or

unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” 

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). “In determining whether a state court’s

decision represents an unreasonable application of clearly established federal law, a federal court

conducting habeas review ‘may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.’” Gill v. Mecusker,

633 F.3d 1272, 1287 (11th Cir. 2011) (quoting Williams, 529 U.S. at 411) (citing Harrington v.

Richter, — U.S. —, 131 S. Ct. 770, 786–87 (Jan. 19, 2011)). The AEDPA’s “unreasonable

application” standard focuses on the state court’s ultimate conclusion, not the reasoning that led to

it. See Gill, supra at 1291 (citing Harrington, 131 S. Ct. at 786). Under § 2254(d), a habeas court

must determine what arguments or theories supported or could have supported the state court’s

decision, and then ask whether it is possible that fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court. 

See Harrington, 131 S. Ct. at 786; see also Gill, supra, at 1292 (the federal district court may rely

on grounds other than those articulated by the state court in determining that habeas relief was not

warranted, so long as the district court did not err in concluding that the state court’s rejection of the

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petitioner’s claims was neither an unreasonable application of a Supreme Court holding nor an

unreasonable determination of the facts). 

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in

State court where that adjudication “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2). The Supreme Court has clarified that: “a decision adjudicated on the merits

in a state court and based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El

v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). 

When performing its review under § 2254(d), the federal court must bear in mind that any

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

petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); see e.g. Miller-El, 537 U.S. at 340 (explaining that a federal

court can disagree with a state court’s factual finding and, when guided by AEDPA, “conclude the

decision was unreasonable or that the factual premise was incorrect by clear and convincing

evidence”); Jones v. Walker, 469 F.3d 1216, 1226–27 (11th Cir. 2007) (holding that § 2254(d)(2)’s

“unreasonable determination” standard “must be met by clear and convincing evidence,” and

concluding that that standard was satisfied where prisoner showed “clearly and convincingly” that

the state court’s decision “contain[ed] an ‘unreasonable determination’ of fact.”). The

“unreasonable determination of the facts” standard is only implicated to the extent that the validity

of the state court’s ultimate conclusion is premised on unreasonable fact finding. See Gill, 2010 WL

609844, at *18. A petitioner is not entitled to relief unless he demonstrates by clear and convincing

evidence that the record reflects an insufficient factual basis for affirming the state court’s decision. 

Id.

Only if the federal habeas court finds that the petitioner satisfied AEDPA, and § 2254(d),

does the court take the final step of conducting an independent review of the merits of the

petitioner’s claims. See Panetti v. Quarterman, 531 U.S. 930, 953, 127 S. Ct. 2842, 2858, 168 L.

Ed. 2d 662 (2007); Jones, 469 F.3d 1216 (same). The writ will not issue unless the petitioner shows

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that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28

U.S.C. § 2254(a).

III. EXHAUSTION AND PROCEDURAL DEFAULT

It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the

petitioner have exhausted available state court remedies, 28 U.S.C. § 2254(b)(1),4 thereby giving

the State the “‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865 (1995)

(quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation

omitted)). To satisfy the exhaustion requirement, the petitioner must “fairly present” his claim in

each appropriate state court, alerting that court to the federal nature of the claim. Duncan, 513 U.S.

at 365–66; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999);

Picard, 404 U.S. at 277–78.

The Supreme Court has provided lower court with guidance for determining whether a

habeas petitioner has met the “fair presentation” requirement. In Picard v. Connor, the Court held

that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include

reference to a specific federal constitutional guarantee, as well as a statement of the facts which

entitle the petitioner to relief. 404 U.S. at 277. In announcing that “the substance of a federal

habeas corpus claim must first be presented to the state courts,” id., 404 U.S. at 278, the Court

rejected the contention in that case that the petitioner satisfied the exhaustion requirement by

presenting the state courts only with the facts necessary to state a claim for relief.

4

Section 2254 provides, in pertinent part:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

 (ii) circumstances exist that render such process ineffective to protect the rights of the

applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the law of the State to raise, by any available procedure,

the question presented. 

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Additionally, the Court has indicated that it is not enough that a petitioner make a general

appeal to a constitutional guarantee as broad as due process to present the “substance” of such a

claim to a state court. Anderson v. Harless, 459 U.S. 4, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982). In

Anderson, the habeas petitioner was granted relief by the Sixth Circuit Court of Appeals on the

ground that a jury instruction violated due process because it obviated the requirement that the

prosecutor prove all the elements of the crime beyond a reasonable doubt. 459 U.S. at 7 (citing

Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)). The only manner in

which the habeas petitioner cited federal authority was by referring to a state court decision in which

“the defendant . . . asserted a broad federal due process right to jury instructions that properly

explain state law.” Anderson, 459 U.S. at 7 (internal quotation marks omitted). The Court

expressed doubt that a defendant’s citation to a state-court decision predicated solely on state law

was sufficient to fairly apprise a reviewing court of a potential federal claim merely because the

defendant in the cited case advanced a federal claim. Id., 459 U.S. at 7 and n.3. Furthermore, the

Court clarified that such a citation was obviously insufficient when the record satisfied the federal

habeas court that the federal claim asserted in the cited case was not the same as the federal claim

on which federal habeas relief was sought. Id.

Years later, the Supreme Court readdressed the “fair presentation” requirement in Duncan

v. Henry, 513 U.S. 364. The Duncan Court strictly construed the exhaustion requirement so as to

mandate that, if state and federal constitutional law overlap in their applicability to a petitioner’s

claim, the petitioner must raise his issue in terms of the applicable federal right in state court in order

to obtain federal review of the issue.5

 The Supreme Court explained,“[i]f a habeas petitioner wishes

to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed

by the Fourteenth Amendment, he must say so, not only in federal, but in state court.” Duncan, 513

U.S. at 365–66. More recently, the Supreme Court again focused upon the requirement of “fair

presentation,” holding that “ordinarily a state prisoner does not ‘fairly present’ a claim to a state

court if that court must read beyond a petition or a brief (or a similar document) that does not alert

5

 The petitioner in Duncan raised a federal due process claim in his habeas petition, but had raised only a state

constitutional claim in his state appeal. Presented with a state constitutional claim, the state court applied state law in

resolving the appeal. 513 U.S. at 366.

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it to the presence of a federal claim in order to find material, such as a lower court opinion in the

case, that does so.” Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64 (2004). 

In Baldwin, the Supreme Court recognized that “[a] litigant wishing to raise a federal issue can

easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by

citing in conjunction with the claim the federal source of law on which he relies or a case deciding

such a claim on federal grounds, or by simply labeling the claim ‘federal.’” Id., 541 U.S. at 32. This

language, while not part of the Court’s holding, provides helpful instruction. With regard to this

language, the Eleventh Circuit explained in McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005):

If read in a vacuum, this dicta might be thought to create a low floor indeed for

petitioners seeking to establish exhaustion. However, we agree with the district court

that this language must be “applied with common sense and in light of the purpose

underlying the exhaustion requirement[:] ‘to afford the state courts a meaningful

opportunity to consider allegations of legal error without interference from the

federal judiciary.’” McNair [v. Campbell], 315 F. Supp. 2d at 1184 (quoting

Vasquez v. Hillery, 474 U.S. 254, 257, 106 S. Ct. 617, 620, 88 L. Ed. 2d 598 (1986)). 

This is consistent with settled law established by the Supreme Court. . . . We

therefore hold that “‘[t]he exhaustion doctrine requires a habeas applicant to do more

than scatter some makeshift needles in the haystack of the state court record.’”

416 F.3d at 1302-03 (citations omitted).6

The Eleventh Circuit, prior to Duncan, had broadly interpreted the “fair presentation”

requirement. After Duncan, however, the Eleventh Circuit has taken a more narrow approach. For

example, in Zeigler v. Crosby, the court held that the habeas petitioner failed to “fairly present” his

juror misconduct claims to the state courts where his brief to the state appellate court did not refer

to the federal constitutional issues raised in his federal habeas petition, and none of the cases cited

in his direct appeal discussed the United States Constitution. 345 F.3d 1300, 1307 (11th Cir. 2003). 

The Eleventh Circuit specifically noted that the section of the petitioner’s appellate brief which dealt

with juror misconduct contained the words: “Appellant was denied due process and a fair trial. . .

6

 In his initial brief before the Court of Criminal Appeals, McNair cited one federal case in a string citation

containing other state cases, and in a closing paragraph in his argument that extraneous materials were considered by

the jury during deliberations, stated that there was a violation of his rights “protected by the Fifth, Sixth, Eighth[,] and

Fourteenth Amendments to the United States Constitution, the Alabama Constitution[,] and Alabama law.” McNair v.

Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). The court found that these references to federal law were not sufficient

to meet the fair presentment requirement and noted that it was important that the petitioner had never mentioned the

federal standards regarding extraneous materials in his brief, but relied on state law for his arguments. Id.

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.,” which could be interpreted as asserting a fair trial claim under the Due Process Clause of the

Florida Constitution. Id. at 1308 n.5. The only cases cited in the discussion of the issue in

petitioner’s state appellate brief were state supreme court cases that made no mention of the United

States Constitution and cited no federal cases. The court concluded that petitioner’s “[c]ursory and

conclusional sentence (unaccompanied by citations to federal law), . . . did not present to the Florida

courts the federal claim asserted to us.” Id.

An issue that was not properly presented to the state court and which can no longer be

litigated under state procedural rules is considered procedurally defaulted, that is, procedurally

barred from federal review. See O’Sullivan, 526 U.S. at 839–40, 848; Bailey v. Nagle, 172 F.3d

1299, 1302–03 (11th Cir. 1999). This court will also consider a claim procedurally defaulted if it

was presented in state court and rejected on the independent and adequate state ground of procedural

bar or default. See Coleman v. Thompson, 501 U.S. 722, 734–35 and n.1, 111 S. Ct. 2546, 2555 and

n.1, 115 L. Ed. 2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims

that have been held to be procedurally defaulted under state law cannot be addressed by federal

courts.”); Chambers v. Thompson, 150 F.3d 1324, 1326–27 (11th Cir. 1998) (applicable state

procedural bar should be enforced by federal court even as to a claim which has never been

presented to a state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v.

Dugger, 876 F.2d 1470 (11th Cir. 1990), rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112

L. Ed. 2d 812 (1991). In the first instance, the federal court must determine whether any future

attempt to exhaust state remedies would be futile under the state’s procedural default doctrine. 

Bailey, 172 F.3d at 1303. In the second instance, a federal court must determine whether the state’s

procedural default ruling rested on adequate state grounds independent of the federal question. See

Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989). The adequacy of

a state procedural bar to the assertion of a federal question is itself a federal question. Lee v.

Kemna, 534 U.S. 362, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820 (2002). The adequacy requirement

has been interpreted to mean that the rule must be “firmly established and regularly followed,”

Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006), that is, not applied in an “arbitrary or

unprecedented fashion,” Judd v. Haley, 250 F.3d 1308,1313 (11th Cir. 2001), or in a manifestly

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unfair manner. Ford v. Georgia, 498 U.S. 411, 424–25, 111 S. Ct. 850, 858, 112 L. Ed. 2d 935

(1991); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).

The Eleventh Circuit has set forth a three-part test to determine whether a state court’s

procedural ruling constitutes an independent and adequate state rule of decision. Judd v. Haley, 250

F.3d 1308, 1313 (11th Cir. 2001). First, the last state court rendering judgment must clearly and

expressly state it is relying on state procedural rules to resolve the federal claim.7 Second, the state

court’s decision on the procedural issue must rest entirely on state law grounds and not be

intertwined with an interpretation of federal law. Third, the state procedural rule must be adequate. 

Id. The adequacy requirement has been interpreted to mean the rule must be firmly established and

regularly followed, that is, not applied in an arbitrary or unprecedented fashion. Id.

To overcome a procedural default such that the federal habeas court may consider the merits

of a claim, the petitioner must show cause and prejudice or a fundamental miscarriage of justice. 

Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. “For cause to exist, an external impediment, whether

it be governmental interference or the reasonable unavailability of the factual basis for the claim,

must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111

S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.

Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986)). Lack of counsel or ignorance of available procedures is

not enough to establish cause. Tower, 7 F.3d at 210. To satisfy the miscarriage of justice exception,

the petitioner must show that “a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 85, 130 L. Ed. 2d 808

(1995). “To establish the requisite probability, the petitioner must show that it is more likely than

not that no reasonable juror would have convicted him.” Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent

person is extremely rare. To be credible, such a claim requires [a] petitioner to

support his allegations of constitutional error with new reliable evidence—whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.

7

 The federal court should honor the procedural bar even if the state court alternatively reviewed the claim on

the merits. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995); Alderman v. Zant, 22 F.3d 1541 (11th Cir. 1994). 

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Id.

Within this framework, the court will review Petitioner’s claim.

IV. PETITIONER’S CLAIM8

Ground Four: “Counsel was ineffective in her assistance when failing to obtain and present

exculpatory evidence probative value [sic].”

Petitioner asserts the drug trafficking charge arose from an incident during which he and

another person (later identified as Mr. Ducree) were standing together on a neighborhood street, and

two deputies approached them (doc. 8 at 8). He states the deputies “accosted” them and found an

envelope on the ground containing thirty-one (31) pills (id.). He states Deputy Berry claimed to

have seen Petitioner throw the pills on the ground (id.). Laboratory testing of the pills showed

twenty-nine (29) of them to contain hydrocodone (id. at 8, 11). Petitioner states prior to trial, Mr.

Ducree identified himself as the person with Petitioner that night (id. at 11). During a pre-trial

deposition, Mr. Ducree stated he had a prescription for the pills and told defense counsel he would

bring documentation of his prescription with him when he testified at trial (id.). Mr. Ducree testified

at trial that he had a prescription for the pills, but he failed to bring documentation corroborating his

testimony (id.). Petitioner contends trial counsel was ineffective for failing to obtain the

documentation (id.). 

Respondent asserts Petitioner failed to properly exhaust this claim (doc. 18 at 8–9). 

Respondent states Petitioner raised this claim in his Rule 3.850 motion, but he failed to argue it in

his initial brief on appeal of the denial of his Rule 3.850 motion. Therefore, he waived appellate

review of the claim and, by doing so, failed to properly present it to the state court (id.). Respondent

further contends Petitioner can no longer return to state court to litigate the claim; therefore, the

claim is procedurally barred from federal review (id. at 9–10). Respondent additionally argues

notwithstanding the exhaustion issue, Petitioner failed to demonstrate that the state court’s

adjudication of the claim was contrary to or an unreasonable application of clearly established

federal law (id. at 27–31).

8

 Petitioner abandoned all claims in his amended habeas petition except Ground Four (doc. 23 at 7).

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In Petitioner’s reply, he contends he fairly presented his claim in his post-conviction appeal

(doc. 23 at 10–17). He additionally contends the state court’s adjudication of the claim was an

unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984) (id. at 17–19).

Respondent’s procedural default argument is well founded. Petitioner raised the instant

claim as Ground One in his Rule 3.850 motion (Ex. M at 97–98). He claimed that defense counsel,

Ms. Cashwell, was ineffective for failing to obtain documentation of Mr. Ducree’s prescription to

corroborate his trial testimony (id.). The state circuit court appointed counsel for Petitioner and held

an evidentiary hearing on this claim (id. at 155–58, 160–236). At the hearing, Petitioner’s postconviction counsel, Mr. Pfeiffer, sought to admit into evidence documentation of medications

prescribed to Mr. Ducree (Petitioner had previously filed the documentation with the court prior to

the court’s appointing counsel for him) (see id. at 140–48, 175–80). Mr. Pfeiffer conceded that one

page was missing from Mr. Ducree’s ten-page medical record, which may have reflected Mr.

Ducree’s prescriptions at the time of the offense (id.).9

 Counsel for the State objected to admission

of the documents on authenticity grounds (id. at 175–80). The court reserved ruling on the

admissibility issue (id.). During closing arguments at the evidentiary hearing, Mr. Pfeiffer requested

a continuance to enable him to subpoena Mr. Ducree’s prescription records for the relevant period

(id. at 217–18, 222). The court denied the motion for continuance on the ground that Petitioner had

sufficient time to obtain the documents prior to the evidentiary hearing (id. at 229–33).

In the state circuit court’s written order denying the Rule 3.850 motion, the court disposed

of the instant claim as follows:

In his first claim, Defendant alleges that counsel was ineffective for failing

to obtain and present exculpatory evidence. At trial, the State asserted that

Defendant was in possession of 29 tablets of Lortab, contained in a “balled up”

envelope, which he threw to the ground as law enforcement approached. The

defense called Curtis Ducree as a witness at trial. Mr. Ducree testified that he had

actually been the individual who was with Defendant, and that he threw the envelope

to the ground. Mr. Ducree further testified that the Lortabs were his, and that he had

a prescription for the drugs. Mr Ducree did not produce his prescription in court.

9

 The offense occurred on March 5, 2004. Mr. Ducree’s records reflected his prescriptions from June of 1995 

to December of 2003, and from March of 2007 to January of 2008 (Ex. M at 140–48). 

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Defendant now asserts that counsel was ineffective for failing to produce Mr.

Ducree’s prescription. Defendant further argues that counsel knew that Mr. Ducree

claimed to have a prescription, and that he would be testifying at trial. Defendant

asserts in his memorandum that Mr. Ducree did not know he needed to bring the

prescription, but had counsel acted properly in verifying and producing the

prescription, Defendant argues, “the jury would have accepted Defendant’s ‘alibi’

defense.” 

First, Mr. Ducree was not revealed as a witness to the State until the day of

jury selection, which occurred June 13, 2005.[FN 3, reference to trial transcript]. 

Ms. Cashwell [defense counsel] said at the time of trial that she was provided his

name on the day before jury selection.[FN 4, reference to trial transcript and Ducree

deposition transcript]. Defendant’s trial commenced on June 16. Furthermore, at

deposition, taken June 15, Mr. Ducree was clearly informed that he needed to

provide his prescription, and he stated that he could and would.[FN 5, reference to

Ducree deposition transcript]. At trial, however, Mr. Ducree was only able to

produce a “refill document” for another medication, not hydrocodone, but he

maintained that he could get the prescription from the Veterans Administration

clinic.[FN 6, reference to trial transcript].

At evidentiary hearing [sic], defense counsel Patrece Cashwell testified that

she told Mr. Ducree at his deposition that she “would supply a taxi to take him to the

VA clinic to get his prescription and bring it back to trial.”[FN 7, reference to

evidentiary hearing transcript and Ducree deposition transcript]. She did not recall

specifically whether Mr. Ducree attempted to take advantage of her offer of

transportation. Having considered the totality of the record and the testimony, the

Court concludes that Defendant has failed to demonstrate either deficient

performance or prejudice. Defendant has failed to present a prescription from Mr.

Ducree which encompasses the relevant time period, and has failed to show that his

counsel’s performance was deficient. Defendant is not entitled to relief on the basis

of his first claim. 

(Ex. M at 239–40). 

In Petitioner’s brief on appeal of the state circuit court’s decision, Petitioner’s counsel argued

only that the lower court abused its discretion by denying a continuance to permit Petitioner an

opportunity to obtain Mr. Ducree’s prescription records (Ex. N). Counsel further argued the court’s

ruling on the motion for continuance deprived Petitioner of his state and federal due process right

to a full and fair hearing (id. at 11–12). Counsel argued the court’s denial of the continuance unduly

prejudiced Petitioner, because the lower court relied upon incomplete records in determining that

Petitioner failed to satisfy the prejudice prong of the Strickland standard with regard to his

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ineffective assistance of counsel claim (id. at 12–13). Counsel argued if the court had granted the

continuance, and if the prescription records established that Mr. Ducree had a prescription for

hydrocodone at the time of Petitioner’s arrest, Petitioner would have been able to establish

Strickland prejudice (id. at 13–14). As relief, counsel sought reversal of the order denying the Rule

3.850 motion and remand for an additional evidentiary hearing (id. at 14–15). 

The Florida Rules of Appellate procedure provide that in a case where a movant’s Rule 3.850

motion is denied after an evidentiary hearing, a movant wishing to appeal the denial of his motion

must file an initial brief. See Fla. R. App. P. 9.141(b)(3); see also Pennington v. State, 34 So. 3d

151, 152 n.1 (Fla. 1st DCA 2010) (briefing is required in appeal from non-summary denial of Rule

3.850 motion). It is well established in Florida courts that claims for which an appellant has not

presented any argument, or for which he provides only conclusory argument, are insufficiently

presented for appellate review and are waived. See Gamble v. State, 877 So. 2d 706 (Fla. 2004);

Reed v. State, 875 So. 2d 415 (Fla. 2004); Cooper v. State, 856 So. 2d 969, 977 n.7 (Fla. 2003);

Marshall v. State, 854 So. 2d 1235, 1252 (Fla. 2003) Sweet v. State, 810 So. 2d 854, 870 (Fla.

2002); Johnson v. State, 769 So. 2d 990, 1005–06 (Fla. 2000); Shere v. State, 742 So. 2d 215, 217

n.6 (Fla. 1999); Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) (“Merely making reference to

arguments below without further elucidation does not suffice to preserve issues, and these claims

are deemed to have been waived.”). Florida courts consistently apply this rule. Therefore, the

undersigned concludes that the Florida procedural rule deeming as waived or abandoned those

claims for which an appellant has not presented argument in his initial brief is a firmly established

and regularly followed procedural rule for purposes of federal habeas.

Petitioner did not properly present to the First DCA a claim of error with respect to the lower

court’s substantive denial of his ineffective assistance of counsel claim; rather, he presented only

a claim of procedural error with respect to the lower court’s denial of his motion for continuance. 

Although he referenced the court’s substantive ruling in his initial brief, he did so only to

demonstrate that the procedural ruling unduly prejudiced him, which is part of the showing he was

required to make to demonstrate that the court’s ruling constituted an abuse of discretion (see Ex.

N at 11–14). Further, the relief Petitioner sought from the appellate court was reversal and remand

for an additional evidentiary hearing. He did not request remand with directions to grant the Rule

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3.850 motion as to the ineffective assistance of counsel claim, which is the relief requested and

afforded when a Rule 3.850 movant challenges the lower court’s substantive denial of a claim. See

MacKinon v. State, 39 So. 3d 537, 538 (Fla. 3d DCA 2010) (reversing lower court’s order denying

ineffective assistance of counsel claim asserted in Rule 3.850 motion and remanding with directions

to grant the motion and set aside movant’s plea, conviction, and sentence); Labady v. State, 783 So.

2d 275 (Fla. 3d DCA 2001) (reversing lower court’s order denying Rule 3.850 motion and

remanding with instructions to grant motion). 

In light of the record and the state procedural rule deeming as waived or abandoned those

claims for which an appellant has not presented argument in his initial brief, the undersigned

concludes Petitioner failed to properly exhaust his ineffective assistance of counsel claim in the state

courts, because he waived post-conviction appellate review of the claim. Additionally, Petitioner

has no available avenue through which he may properly exhaust his claim in the state courts,

because the Florida procedural rules do not provide a second appeal of a state circuit court’s denial

of a Rule 3.850 motion. Therefore, the claim is considered procedurally defaulted for federal habeas

purposes. Moreover, Petitioner does not allege cause for his failure to properly exhaust his claim;10

and he has not shown he is entitled to review under any other recognized exception to the procedural

bar. Therefore, he is not entitled to federal review of Ground Four. 

Moreover, to the extent Petitioner’s federal habeas claim presents the same claim he

exhausted in the state courts, that is, a due process challenge to the post-conviction court’s denial

of his motion for continuance, federal relief is unavailable. The Eleventh Circuit has repeatedly held

that defects in state collateral proceedings do not provide a basis for habeas relief. See, e.g.,

Anderson v. Sec’y for Dep’t of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006) (per curiam); Quince

v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th

Cir. 1987) (per curiam). The reasoning behind this well-established principle is straightforward: 

10 Even if Petitioner asserted ineffective assistance of post-conviction appellate counsel as cause for the

procedural default, the Supreme Court held that ineffective assistance of counsel on appeal of a collateral proceeding

does not constitute cause to overcome a procedural bar. See Coleman v. Thompson, 501 U.S. 722, 752–53, 111 S. Ct.

2546, 115 L. Ed. 2d 640 (1991); see also Martinez v. Ryan, — S. Ct. —, 2012 WL 912950, at *10 (2012) (ineffective

assistance of counsel can constitute cause of a procedural default in an initial-review collateral proceeding, but not an

appeal from an initial-review collateral proceeding).

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a challenge to a state collateral proceeding does not undermine the legality of the detention or

imprisonment—that is, the conviction itself—and thus habeas relief is not an appropriate remedy. 

See Quince, 360 F.3d at 1261–62; Spradley, 825 F.2d at 1568. Furthermore, such challenges often

involve claims under state law, for example, Florida Rules of Criminal Procedure 3.050 and 3.850,

which govern the availability of, and procedures attendant to, post-conviction proceedings in

Florida. “A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus

relief, since no question of a constitutional nature is involved.” See McCullough v. Singletary, 967

F.2d 530, 535 (11th Cir. 1992). Therefore, to the extent Petitioner claims that the state court

violated his due process rights by denying a continuance of the post-conviction evidentiary hearing,

under Rule 3.050 of the Florida Rules of Criminal Procedure, he is not entitled to relief.

V. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 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, 120 S. Ct. 1595, 1603–04, 146 L.

Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) 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 ORDERED:

The clerk of court is directed to change the docket to reflect that Kenneth S. Tucker is

substituted for Edwin G. Buss as Respondent.

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And it is respectfully RECOMMENDED:

1. That the amended petition for writ of habeas corpus (doc. 8) be DENIED.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 3rd day of April 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon the magistrate judge and all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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