Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

OMAR F. BARNES,

Petitioner,

vs. Case No.: 3:09cv360/MCR/EMT

SECRETARY, FLA. DEP’T OF CORR.,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

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

28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant portions of the state court

record (doc. 22). Petitioner filed a reply (doc. 28).

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. 22).1

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

Florida, on one count of premeditated first degree murder with a firearm (Ex. A). Following a jury

trial on April 4–6, 2005, he was found guilty as charged (Exs. D, E). He was sentenced on April

1

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

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

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 1 of 36
Page 2 of 36

6, 2005, to a mandatory minimum term of life imprisonment, with presentence credit of one year and

143 days (Ex. F). 

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

Appeal (“First DCA”), Case No. 1D05-2318 (Ex. K). The First DCA affirmed the judgment per

curiam without written opinion on April 19, 2006, with the mandate issuing July 6, 2006 (Ex. N.). 

Barnes v. State, 931 So. 2d 903 (Fla. 1st DCA 2006) (Table). Petitioner did not seek further review.

On July 20, 2006, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850

of the Florida Rules of Criminal Procedure (Ex. O). On August 14, 2006, he filed a motion to

voluntarily dismiss his Rule 3.850 motion without prejudice (Ex. P). On September 5, 2006, the

state circuit court granted Petitioner’s motion to voluntarily dismiss the Rule 3.850 motion (Ex. Q).

On August 30, 2006, Petitioner filed a petition alleging ineffective assistance of appellate

counsel in the First DCA, Case No. 1D06-4592 (Ex. II). The First DCA denied the petition on the

merits on September 29, 2006 (Ex. JJ). The court denied Petitioner’s motion for rehearing on

November 15, 2006 (Ex. KK). Barnes v. State, 943 So. 2d 814 (Fla. 1st DCA 2006).

Also on August 30, 2006, Petitioner filed another Rule 3.850 motion in the state circuit court

(Ex. S). He subsequently filed an “amended/second” motion adding new claims (Ex. T). On April

24, 2007, the state circuit court issued an order determining that the “amended/second” motion failed

to contain a sufficient oath, as required by Florida law; therefore, the court held his first motion in

abeyance and granted Petitioner thirty (30) days within which to file a legally sufficient amended

motion (Ex. V). On April 28, 2007, Petitioner filed an “amended/second” Rule 3.850 motion (Ex.

W). On June 13, 2007, the state circuit court dismissed the “amended/second” Rule 3.850 motion

with prejudice, because it did not contain a legally sufficient oath (Ex. Z). The same day, the court

rendered an order summarily denying Petitioner’s August 30, 2006 motion, which had been held in

abeyance until expiration of the 30-day period for Petitioner’s filing a legally sufficient amended

motion (Ex. Y). Petitioner appealed both decisions to the First DCA, Case No. 1D07-4283 (Exs.

CC, DD). The First DCA affirmed both decisions per curiam without written opinion on December

7, 2007, with the mandate issuing February 20, 2008 (Ex. FF). Barnes v. State, 973 So. 2d 1126

(Fla. 1st DCA 2007) (Table). While the appeal was pending, Petitioner filed a motion to correct the

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 2 of 36
Page 3 of 36

appellate record in the lower court (Ex. HH). On April 3, 2008, after the appeal had concluded, the

lower court denied the motion as moot (id.).

On September 8, 2007, Petitioner filed a third Rule 3.850 motion (Ex. LL). On April 3,

2008, the state circuit court dismissed the motion as impermissibly successive (Ex. RR). Petitioner

appealed the decision to the First DCA, Case No. 1D08-3356 (Exs. TT, UU). The First DCA

affirmed the decision per curiam without written opinion on December 10, 2008, with the mandate

issuing January 20, 2009 (Ex. WW). Barnes v. State, 998 So. 2d 608 (Fla. 1st DCA 2008) (Table). 

On July 3, 2008, Petitioner filed a fourth Rule 3.850 motion alleging newly discovered

evidence (Ex. KK). On January 2, 2009, the state circuit court dismissed the motion as

impermissibly successive, finding that the information presented by Petitioner did not qualify as

newly discovered evidence (Ex. ZZ). Petitioner appealed the decision to the First DCA, Case No.

1D09-536 (Ex. BBB). The First DCA affirmed the decision per curiam without written opinion on

May 22, 2009, with the mandate issuing August 10, 2009 (Ex. CCC). Barnes v. State, 13 So. 3d 58

(Fla. 1st DCA 2009) (Table). 

Petitioner filed the instant federal habeas action on August 18, 2009 (doc. 1). Respondent

concedes the habeas petition is timely (doc. 22 at 8).

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

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 3 of 36
Page 4 of 36

(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).2 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

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.

2

 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. 

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 4 of 36
Page 5 of 36

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.

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

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 5 of 36
Page 6 of 36

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

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

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 6 of 36
Page 7 of 36

“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

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),3 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

3

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. 

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 7 of 36
Page 8 of 36

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.

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

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 8 of 36
Page 9 of 36

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.4 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

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).5

4

 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.

5

 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

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 9 of 36
Page 10 of 36

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. . .

.,” 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.

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.

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 10 of 36
Page 11 of 36

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

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.6 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

6

 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). 

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 11 of 36
Page 12 of 36

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.

Id.

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

IV. PETITIONER’S CLAIMS7

A. Ground Two: “Violation of Petitioner’s Sixth Amendment right to the effective

assistance of counsel where counsel failed to conduct adequate pretrial investigation and

move the trial court for a suppression of Petitioner’s alleged confession made in violation

of Miranda.”

Petitioner contends defense counsel performed ineffectively by failing to investigate whether

grounds existed to seek suppression of Petitioner’s statements to Detective Goss on November 7,

2003, and failing to file a motion to suppress the statements (doc. 1 at 7).8

 Petitioner states that on

November 7, 2003, he signed a written waiver of his Miranda9 rights and was interrogated by

Sergeant Trotter with the Cumberland Sheriff’s Office in North Carolina (see id. at 6–7). He states

Detective Goss, from the Pensacola Police Department, observed him waive his rights via closed

circuit television (id. at 6). Petitioner states after he was interrogated by Sergeant Trotter, Trotter

“took a break” to take a telephone call regarding Petitioner’s extradition (id.). Trotter then returned

7

 The court is addressing Petitioner’s claims out of sequence for organizational purposes.

8

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

9

 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, L. Ed. 2d 694 (1966). 

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 12 of 36
Page 13 of 36

to the interrogation room with Detective Goss and Investigator Sanderson, introduced Petitioner to

them, and left the room (id.). Petitioner states Goss “took over” the interrogation without readvising him of his Miranda rights (id.). Petitioner contends if counsel had investigated this issue,

counsel would have discovered that Petitioner’s statements to Detective Goss were obtained in

violation of Miranda, due to Goss’s failure to re-advise him of his rights (id. at 7). 

Petitioner argues the state post-conviction court’s denial of his claim was contrary to

Strickland v. Washington, 466 U.S. 668 (1984), because the court applied a higher prejudice

standard than Strickland requires, as evidenced by the court’s statement that he “cannot demonstrate

that the motion to suppress would have been granted” (id.). Petitioner additionally argues the state

court’s denial of the claim was based upon an unreasonable determination of the facts, namely, its

finding the November 7, 2003 interrogation was “a single continuing session . . . without a break.”

Petitioner argues this finding is refuted by Sergeant Trotter’s Case Supplemental Report, which

states Detective Goss was not present during Trotter’s interrogation of Petitioner, and there was a

“significant break” between Trotter’s interrogation and Goss’s interrogation (id.).

Respondent concedes this ineffective assistance of counsel claim was fairly presented and

adjudicated in Petitioner’s Rule 3.850 motion filed August 30, 2006 (doc. 22 at 22–25). However,

Respondent contends Petitioner did not argue on post-conviction appeal that the lower court applied

the wrong prejudice standard; therefore, that aspect of his present argument was not exhausted (doc.

22 at 27–28). Respondent additionally argues that notwithstanding the exhaustion issue, Petitioner

failed to demonstrate he is entitled to federal habeas relief on his claim (id. at 29–35). 

Upon review of the state court record, the undersigned concludes Petitioner satisfied the

exhaustion requirement with regard to this claim. Therefore, the court will proceed to determine

whether Petitioner demonstrated he is entitled to relief under the AEDPA.

1. Clearly Established Federal Law

The standard for evaluating claims of ineffective assistance of counsel is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To obtain relief

under Strickland, Petitioner must show (1) deficient performance by counsel and (2) a reasonable

probability that, but for counsel’s deficient performance, the result of the proceeding would have

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 13 of 36
Page 14 of 36

been different. 466 U.S. at 687–88. If Petitioner fails to make a showing as to either performance

or prejudice, he is not entitled to relief. Id. at 697. 

“The petitioner’s burden to prove, by a preponderance of the evidence, that counsel’s

performance was unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.

2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)). The focus

of inquiry under the performance prong is “reasonableness under prevailing professional norms.” 

Strickland, 466 U.S. at 688–89. “Judicial scrutiny of counsel’s performance must be highly

deferential,” and courts should make every effort to “eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. at 689. If the record is not complete regarding counsel’s

actions, “then the courts should presume ‘that what the particular defense lawyer did at trial—for

example, what witnesses he presented or did not present—were acts that some lawyer might do.” 

Jones, 436 F.3d at 1293 (citing Chandler, 218 F.3d at 1314–15 n.15). Furthermore, “[e]ven if many

reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on

ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would

have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Counsel’s performance is

deficient only if it is “outside the wide range of professional competence.” Jones, 436 F.3d at 1293

(citing Strickland, 466 U.S. at 690); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989)

(emphasizing that petitioner was “not entitled to error-free representation”). “[T]here are no

‘absolute rules’ dictating what reasonable performance is . . . .” Michael v. Crosby, 430 F.3d 1310,

1320 (11th Cir. 2005) (quoting Chandler, 218 F.3d at 1317). Indeed, “‘[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.’” Id. (quoting Putman v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001)). “Complaints of uncalled witnesses are not favored, because the

presentation of testimonial evidence is a matter of trial strategy and because allegations of what a

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 14 of 36
Page 15 of 36

witness would have testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521

(5th Cir. 1978).10

As to the prejudice prong of the Strickland standard, Petitioner’s burden of demonstrating

prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). The Supreme

Court has cautioned that “‘[i]t is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding.’” Id. (quoting Strickland, 466 U.S. at 693). 

However, the Court has also clarified that a petitioner need not demonstrate it “more likely than not,

or prove by a preponderance of evidence,” that counsel’s errors affected the outcome. Strickland,

466 U.S. at 693–94. Instead, 

The defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.

Id. at 694. Indeed, it would be “contrary to” the law clearly established in Strickland for a state

court to reject an ineffectiveness claim for failing to prove prejudice by a preponderance of the

evidence. Williams v. Taylor, 529 U.S. at 405–06.

The prejudice assessment does “not depend on the idiosyncracies of the particular

decisionmaker,” as the court should presume that the judge or jury acted according to law. 

Strickland, 466 U.S. at 694–95. “When a defendant challenges a conviction, the question is whether

there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695. Further, when the claimed error of counsel occurred at the guilt

stage of trial (instead of on appeal), Strickland prejudice is gauged against the outcome of the trial,

not on appeal. See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (citing Strickland, 466 U.S.

at 694–95). 

2. Federal Review of State Court Decision

10 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as

binding precedent all former Fifth Circuit decisions rendered before October 1, 1981.

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 15 of 36
Page 16 of 36

Petitioner raised this claim as Ground 1 in his Rule 3.850 motion filed August 30, 2006 (Ex.

S at 64, 69–75). The state circuit court correctly articulated the two-pronged Strickland standard

as the applicable legal standard (Ex. Y). The court adjudicated Petitioner’s claim as follows:

In his first claim, Defendant alleges his counsel performed deficiently by

failing to file a motion to suppress the statements he made to police. Defendant

claims that the officer who first spoke to him after his arrest in North Carolina,

Sergeant Trotter, ignored his original request to speak to counsel. Defendant also

claims that when he again agreed to speak to Sergeant Trotter a few days later that

he was only agreeing to speaking with Sergeant Trotter and not to the Pensacola

Police Department (PPD) officers, and that anything said to the PPD officers violated

Defendant’s Miranda rights. Defendant claims that the introduction of his statements

at trial was prejudicial because “without [his] statements there was only a suspicion

of guilt.”

Defendant has failed to show prejudice in several respects. First, Defendant

cannot demonstrate that the motion would have been granted, even had counsel filed

a motion to suppress his statements. At the trial, the State did not offer any of the

statements Defendant made the day of his original arrest in North Carolina on

November 5.[FN3] Even had Defendant’s counsel been able to prove that Defendant

asked for counsel when he was originally apprehended, it would not have changed

the evidence introduced at trial because none of Defendant’s statements from

November 5 were used.

[FN3] See Attachment 3, Trial Transcript, p. 173; see also

Attachment 4, Deposition of Larry Trotter, pp. 10–14.

Further, substantial evidence exists to support the fact that Defendant

knowingly and voluntarily spoke with law enforcement. First, Defendant attaches

to his motion copies of two separate rights forms that he signed and initialed.[FN4] 

These two rights forms were signed on November 5th and 7th, two separate

occasions. Additionally, Sergeant Trotter testified under oath at trial that Defendant

was aware of his rights and waived those rights.[FN5] Further, the Court assumes

that Sergeant Trotter would have testified at trial in a manner consistent with his

sworn deposition testimony, in which he states that Defendant never asked for an

attorney because “if [defendant] did that, I would have stopped the interview.”[FN6] 

Further, it can also be assumed that had Detective Goss been asked on the stand

about whether Defendant waived his rights, he would have testified consistently with

his sworn deposition, in which he states that he observed Defendant waiving his

rights.[FN7] Defendant cannot therefore show that a motion to suppress the

November 7 statements he made to police would have been granted, and therefore,

he cannot prove prejudice from his attorney’s failure to file a motion to suppress.

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 16 of 36
Page 17 of 36

[FN4] See Defendant’s Motion.

[FN5] See Attachment 4, Trial Transcript, pp. 167–68.

[FN6] See Attachment 5, Deposition of Sergeant Trotter, p.12.

[FN7] See Attachment 6, Deposition of Detective Erik Goss, pp.

16–18. It also appears from reading Detective Goss’s deposition that

there is a videotape showing Defendant waiving his rights.

Furthermore, Defendant’s argument that he only agreed to speak with

Sergeant Trotter and not to the PPD officers would not have caused Defendant’s

November 7 statements to be suppressed. “Miranda merely requires that the

defendant be apprised of his rights and there must be a valid waiver of those rights

before an interrogation can take place. Nowhere is there a requirement that after

effective waiver, each individual questioning the defendant during a single

continuing session of interrogation must, prior to asking any questions, readvise the

defendant of his Miranda rights.” Enriquez v. State, 449 So. 2d 845, 848 (Fla. 3d

DCA 1984). The trial testimony reveals that the PPD began to question Defendant

immediately after he was questioned by Sergeant Trotter, without a break in

interrogation.[FN8] Therefore, there was no Miranda violation because Defendant

had already been advised of his rights, and consequently, no basis to grant a

suppression motion. Because Defendant has failed to show either deficient

performance on the part of counsel or prejudice, his first claim for relief must fail.

[FN8] See Attachment 7, Trial Transcript, pp.171–172. 

(Ex. Y). 

Initially, the undersigned rejects Petitioner’s claim that the state court applied a higher

prejudice standard than Strickland. The state court expressly described the prejudice prong as “a

reasonable probability that the outcome of the proceeding would have been different,” and “a

reasonable probability that, but for [counsel’s] deficiency, the result of the proceeding would have

been different.” (id. (citing Strickland)). The state court defined “reasonable probability” as “a

probability sufficient to undermine confidence in the outcome” (id. (citing Spencer v. State, 842 So.

2d 52, 61 (Fla. 2003)). This is the correct definition of Strickland prejudice. See Strickland, 466

U.S. at 694.

Additionally, Petitioner failed to demonstrate by clear and convincing evidence that the state

court’s factual finding, that Detective Goss began to question Petitioner immediately after he was

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 17 of 36
Page 18 of 36

questioned by Sergeant Trotter without a break in the interrogation, was unreasonable. The state

circuit court’s finding was based upon the trial testimony. At trial, Sergeant Trotter testified that

as he was interviewing Petitioner, Detective Goss and Investigator Sanderson arrived and entered

the room (Ex. D at 171–72). He testified he introduced them to Petitioner, they “took over” the

interview, and he departed (id. at 172). Detective Goss testified that when he and Investigator

Sanderson arrived at the sheriff’s department in North Carolina, Petitioner was being interviewed

by Trotter (id. at 186). He testified he and Sanderson entered the room, and Trotter introduced the

two of them to Petitioner (id.). He stated they took over the interview, and Trotter left the room

(id.). Even though Sergeant Trotter’s testimony was somewhat inconsistent with the statements in

his Case Supplemental Report,11 the state court’s reliance upon his sworn trial testimony, instead of

the unsworn statements in his report, was not unreasonable. Further, even if a break occurred as

described in Trotter’s report, the description of the break does not clearly and convincingly rebut

the state court’s finding that Detective Goss began to question Petitioner immediately after he was

questioned by Trotter.

Moreover, even if there was a break in the interrogation, Petitioner’s statements to Goss were

not obtained in violation of Miranda. The Eleventh Circuit has held that where a defendant was

fully advised of his Miranda rights and waived them, he does not need to be given Miranda warnings

prior to a subsequent interrogation conducted the same day if, given the totality of the circumstances,

the waiver was knowing, intelligent, and voluntary. See Ballard v. Johnson, 821 F.2d 568, 571–72

(11th Cir. 1987) (where defendant properly executed waiver of Miranda rights during first

11 In his report, Trotter states the following with regard to the interrogation on November 7, 2003:

I went to the detention center and asked BARNES if I could re-interview him, and explained that there

was audio problems with the interview I taped [on November 5, 2003]. At 1020 hrs. I informed Omar

BARNES of his rights. BARNES waived his rights, a second time and agreed to talk to me with out

[sic] a lawyer present. GOSS and SANDERSON observed the interview until we took a break. 

During the break I was notified that BARNES was needed at the courthouse for his extradition

hearing. Within one minute of that phone call I was called back and informed that the hearing was

postponed until Monday, November 10, 2003. I took Det. GOSS and Inv. SANDERSON into the

interview room and introduced them to BARNES. I exited the room, GOSS and SANDERSON

continued the interview. 

(Ex. S at 81). 

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 18 of 36
Page 19 of 36

interrogation, and subsequent interrogation occurred later on the same day, with the only break in

questioning occurring when defendant was transported approximately twenty miles from one

location to another, no violation of Miranda occurred by officer’s failure to re-advise defendant of

Miranda rights prior to subsequent interrogation); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir.

1984) (no violation of defendant’s rights by failure to re-issue Miranda warnings at time of

defendant’s arrest, where Investigator Bishop gave defendant Miranda warnings at city hall prior

to arrest; defendant indicated he understood Miranda warnings; defendant was transported from city

hall to police headquarters, where he was interviewed by Sergeant Blannott; prior to Blannott’s

interview, Blannott asked Bishop in defendant’s presence whether defendant had received Miranda

warnings; defendant was driven from police headquarters to prosecutor’s office for polygraph

examination; defendant was then driven back to police headquarters and arrested by Sergeant

Blannott; and defendant was interrogated for 30–45 minutes by Blannott before confessing); see also

Martin v. Wainwright, 770 F.2d 918, 930–31 (11th Cir. 1985), modified in unrelated part, 781 F.2d

185 (11th Cir. 1986) (suspect who was fully advised of Miranda rights and intelligently waived

them, did not need to be given the complete Miranda warnings prior to a subsequent interrogation

conducted seven days later). 

In the instant case, Petitioner does not dispute that Sergeant Trotter advised him of his rights

prior to interviewing him on November 7, 2003; nor does he dispute he knowingly and voluntarily

waived his rights and executed a written waiver. Petitioner also does not dispute that Detective

Goss’s interview was conducted the same day as Trotter’s; indeed, it appears it was within minutes. 

In such circumstances, Goss was not required to re-advise Petitioner of his rights. Further, there is

no allegation, or evidence suggesting, that Petitioner requested a lawyer at any time that day, or

asked that either interview be terminated. Therefore, Petitioner failed to show that defense counsel’s

failure to investigate or seek suppression of Petitioner’s statements to Detective Goss was

unreasonable. He likewise failed to show a reasonable probability that the trial court would have

properly granted a motion to suppress had counsel made one. The state court’s adjudication of

Petitioner’s claim was therefore not contrary to or an unreasonable application of Strickland.

B. Ground One: “Violation of Petitioner’s Fifth Amendment right to the protection

against self-incrimination when Petitioner’s alleged confession, made in violation of

Miranda, was used as evidence against Petitioner.”

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 19 of 36
Page 20 of 36

Petitioner contends constitutional error occurred by the admission of his statements to

Detective Goss (doc. 1 at 6). He argues the statements were obtained in violation of Miranda,

because Goss failed to re-advise him of his Miranda rights when Goss commenced his interrogation

(id.). Petitioner asserts the same facts underlying Ground Two, supra.

Respondent asserts Petitioner raised this claim as Ground 2 of his Rule 3.850 motion filed

August 30, 2006, in conjunction with the related claim of ineffective assistance of counsel based

upon counsel’s failure to seek suppression of Petitioner’s statements on the same grounds (doc. 22

at 12). Respondent asserts the state circuit court addressed the separate but related claims by first

analyzing the merits of Petitioner’s ineffective assistance of counsel claim, and then stating that to

the extent Petitioner raised a claim of trial court error in admitting the statements, the claim was

procedurally barred (id. at 12–15). Respondent argues Petitioner acknowledged on appeal that the

lower court applied a procedural bar (id. at 15–16). Respondent argues the First DCA affirmed the

procedural bar; therefore, the claim is procedurally defaulted for purposes of federal habeas (id. at

15–18).

In Petitioner’s reply, he contends the claim is not procedurally barred because the state

circuit court denied it on the merits as well as on procedural grounds (doc. 28 at 6–9). He also

argues he could not have raised this claim on direct appeal of his conviction, because he was

represented by counsel, and counsel failed to raise issues that Petitioner requested he raise (id. at

12).

2. Federal Review of State Court Decision

The state court record demonstrates that Petitioner raised this claim as Ground 2 in his Rule

3.850 motion filed August 30, 2006 (Ex. S at 64, 69–75). The state circuit court disposed of the

claim as follows:

Defendant next claims that his conviction is fundamentally unfair because it

was based in large part on his confession. The Court has found no merit in

Defendant’s first claim that his counsel was ineffective for failing to file a motion to

suppress his statements; therefore, his second claim must also fail. Additionally, to

the extent that Defendant is raising a claim of trial court error or sufficiency of the

evidence, such claims are appropriately raised on direct appeal. See Boehm v. State,

776 So. 2d 332 (Fla. 4th DCA 2001); see also Fla. R. Crim. P. 3.850(c). Whether the

statements were improperly admitted or the facts were sufficient to support

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 20 of 36
Page 21 of 36

Defendant’s conviction are issues appropriately raised on direct appeal. Therefore,

Defendant is not entitled to relief as to his second claim.

(Ex. Y). 

As previously noted, “[w]hen a state court addresses both the independent state procedural

ground and the merits of the federal constitutional claim, the federal court should apply the state

procedural bar and decline to reach the merits of the claim.” Marek, 62 F.3d at 1301; Alderman, 22

F.3d at 1549 (“However, as here, where a state court has ruled in the alternative, addressing both

the independent state procedural ground and the merits of the federal claim, the federal court should

apply the state procedural bar and decline to reach the merits of the claim.”). In this case, the state

circuit applied the firmly established and regularly followed state procedural rule that a claim of trial

court error in admitting a defendant’s confession to law enforcement is properly raised on direct

appeal. See Boehm, 776 So. 2d 332; Fla. R. Crim. P. 3.850(c). Further, Petitioner cannot now return

to state court to properly exhaust this claim, because a second direct appeal in not available. 

Therefore, the claim is procedurally barred from federal review.

Moreover, Petitioner failed to show that his statements to Detective Goss were obtained in

violation of Miranda, as discussed supra. Therefore, he failed to demonstrate he is entitled to federal

habeas relief on his claim that admission of his statements to Goss violated his Fifth Amendment

rights. 

C. Ground Three: “Violation of Petitioner’s Sixth Amendment right to the effective

assistance of counsel where counsel failed to object to the prosecutor’s improper and

unsupported accusations during closing argument.”

Ground Four: “Violation of Petitioner’s Sixth Amendment right to the effective

assistance of counsel where counsel failed to move to have evidence suppressed that was

obtained in violation of Petitioner’s Fourth Amendment protection against unreasonable

searches and seizures.”

Ground Five: “Violation of Petitioner’s Fourth Amendment protection against

unreasonable searches and seizures.”

Ground Six: “Violation of Petitioner’s Sixth and Fourteenth Amendment right to a

fair trial where Petitioner was forced to stand trial on perjured, material testimony.”

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 21 of 36
Page 22 of 36

Petitioner contends he raised each of these claims in a Rule 3.850 motion (doc. 1 at 8–11). 

Respondent contends that although Petitioner raised all of these claims in his “Amended/Second

Motion for Post-conviction Relief Under Fla. R. Crim. Proc. Rule 3.850” (Ex. W) and/or his “Third

Motion for Postconviction Relief Pursuant to Fla. R. Crim. P. Rule 3.850(a)(1)(6)” (Ex. LL), all of

the claims asserted in those motions were rejected on an independent and adequate state ground of

procedural bar or default (doc. 22 at 35–53). Respondent contends the “Amended/Second” Rule

3.850 motion (Ex. W) was dismissed by the state circuit court on the ground that it failed to contain

a legally sufficient oath, as required by Rule 3.850(c), even though the court had previously

provided Petitioner an opportunity to correct the deficiency (Ex. Z). Respondent contends the

“Third” Rule 3.850 motion was dismissed by the state circuit court on the ground that it was

impermissibly successive, pursuant to Rule 3.850(f) (Ex. RR). Additionally, on Petitioner’s appeal

of the state circuit court’s decisions, the First DCA affirmed the lower court’s application of the

respective procedural bars (Exs. FF, WW). Therefore, the claims are procedurally barred from

review on federal habeas.

The rule requiring Rule 3.850 motions to be filed under oath is firmly established and

regularly followed by the Florida court. See Rule 3.800(c); Smith v. State, 445 So. 2d 323, 326 (Fla.

1983) (trial court was procedurally precluded from addressing issue presented in an unsworn 3.850

motion); Sugar v. State, 655 So. 2d 1271 (Fla. 1st DCA 1995) (Rule 3.850 motion that is not

properly verified under oath is legally insufficient); Widmer v. State, 641 So. 2d 174 (Fla. 1st DCA

1994) (unsworn 3.850 postconviction motion is facially insufficient). Moreover, the state court

applied a firmly established and regularly followed prohibition against successive Rule 3.850

motions in dismissing Petitioner’s “Third” Rule 3.850 motion. See Rule 3.800(f); Christopher v.

State, 489 So .2d 22, 24 (Fla. 1986); Scott v. State, 656 So. 2d 204 (Fla. 5th DCA 1995). Therefore,

Petitioner is not entitled to federal review of Grounds Three, Four, Five, and Six unless he satisfies

the “cause and prejudice” exception to the procedural bar or demonstrates that another exception

applies.

In Petitioner’s reply, he concedes Grounds Three, Four, Five, and Six were procedurally

defaulted in the state courts (doc. 28 at 17–23). As cause for his failure to comply with the oath

requirement of Rule 3.850(c), which was the basis of the state court’s dismissal of his

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 22 of 36
Page 23 of 36

“Amended/Second” Rule 3.850 motion, Petitioner states he did not know that the page containing

his oath was missing from the motion (doc. 28 at 19). He states that upon his discovery that the page

was missing, he filed a motion to correct the appellate record in the state circuit court, pursuant to

Rule 9.200(f) of the Florida Rules of Appellate Procedure (id. at 19–20). He asserts the state circuit

court ignored the motion for months, and then denied it as moot after his appeal concluded (id. at

19–20). Petitioner contends this denied him due process, because Rule 9.200(f)(2) provides, “If the

court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. 

No proceeding shall be determined because the record is incomplete until an opportunity to

supplement the record has been given.” With regard to Petitioner’s “Third” Rule 3.850 motion,

Petitioner contends it was not successive because his “Amended/Second” motion did not adjudicate

the merits of his claims (id. at 20).

The state court record shows that on August 30, 2006, Petitioner filed an “Amended” motion

for post-conviction relief, asserting the two claims discussed supra in Grounds One and Two (Ex.

S). On March 29, 2007, Petitioner filed an “Amended/Second” Rule 3.850 motion, raising four

additional claims for relief (Ex. T). On April 24, 2007, the state circuit court issued an order finding

that Petitioner’s “Amended/Second” motion did not contain a legally sufficient oath; therefore, the

court could not consider the merits of the claims asserted in the amendment (Ex. V). The court

found that Petitioner’s August 30 motion contained a legally sufficient oath, but because all postconviction claims needed to be considered together, the court held that motion in abeyance while

Petitioner was granted thirty days to correct the defective oath in his “Amended/Second” motion by

filing an amended “Amended/Second” motion (id.). The court advised Petitioner that if he failed

to file a legally sufficient “Amended/Second” motion by the deadline, the court may deny his motion

with prejudice (id.).

On April 28, 2007, Petitioner filed an “Amended/Second” Rule 3.850 motion (Ex. W). The

same day, he filed a two-page “Motion to Accept Oath” in which he stated, in relevant part:

WHEREFORE defendant/petitioner submits oath in support of

“Amended/Second Motion for Post-conviction Relief” to be attached and considered

with the filed motion for post-conviction relief, filed April 2, 2007 [the date the clerk

of court received the March 29, 2007 “Amended/Second” motion].

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 23 of 36
Page 24 of 36

(Ex. X). Both of these documents are included in the state court record, and neither contains an oath

(id.). On June 13, 2007, the state circuit court dismissed Petitioner’s amendment with prejudice on

the ground that Petitioner failed to re-file the amendment with a legally sufficient oath (Ex. Z). In

a separate order issued the same day, the state circuit court denied Petitioner’s “Amended” motion,

asserting Grounds One and Two supra, on the merits (Ex. Y). Petitioner filed a motion for rehearing

on June 27, 2007, asserting he had attached an oath on page 10 of his “Amended/Second” motion

filed April 28, 2007 (Ex. BB at 352). The state circuit court denied the motion for rehearing (id. at

357). 

Petitioner appealed the orders denying his Rule 3.850 motions (Ex. CC). The record on

appeal was transmitted August 16, 2007 (see Ex. GG). On August 22, 2007, Petitioner filed a

Motion to Correct Record, pursuant to Rule 9.200(e)(f) of the Florida Rules of Appellate Procedure,

in the state circuit court (Ex. DD). Although Petitioner’s certificate of service states the motion was

filed in the First DCA as well as the state circuit court (see Ex. HH), the First DCA’s docket does

not reflect filing of the motion in that court (see Ex. GG). In the motion, Petitioner alleged he

mailed page 10 of his “Amended/Second” motion on April 28, 2007, but the clerk of court did not

file it until May 7, 2007, which “[left] room for such an error as misplacing/losing/destroying a vital

page” (Ex. HH). In support of his allegation that the clerk of court lost page 10, Petitioner submitted

a Copying Service Request and Withdrawal from his correctional institution, showing he requested

copies of a ten-page “Amended/Second 3.850” on April 27, 2007, and his request was approved on

April 28, 2007 (id.). The state circuit court denied the Rule 9.200 motion on two grounds (id. at

193–95). First, the motion was moot because Petitioner’s appeal concluded by the time the state

circuit court ruled on the motion (id. at 194). Second, Petitioner’s documentation did not establish

that the “Amended/Second” motion was ten pages in length when mailed from the institution (id.).

Rule 9.200(f) provides:

(f) Correcting and Supplementing Record.

(1) If there is an error or omission in the record, the parties by stipulation, the lower

tribunal before the record is transmitted, or the court may correct the record.

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 24 of 36
Page 25 of 36

(2) If the court finds the record is incomplete, it shall direct a party to supply the

omitted parts of the record. No proceeding shall be determined, because of an

incomplete record, until an opportunity to supplement the record has been given.

Fla. R. App. P. 9.200(f) (emphasis added). 

In the instant case, Petitioner filed the motion to correct the record in the lower court after

the record was transmitted to the appellate court. Further, he did not file the motion in the appellate

court. Therefore, his contention that the state courts improperly determined the appeal prior to

providing him an opportunity to supplement the record is without merit. See Trans-Continental

Finance Corp. v. Baxter, 402 So. 2d 1287, 1290 n.1 (Fla. 5th DCA 1981) (Rule 9.200(f)(2) was not

intended to cure deficiencies resulting from the failure to make a record in the lower tribunal, but

to give the parties the opportunity to have the appellate proceedings decided on the record before

the lower tribunal) (citations omitted); Seashole v. F & H of Jacksonville, Inc., 258 So. 2d 316 (Fla.

1st DCA 1972) (motion to supplement record would be denied where attached to it were affidavits

and copies of correspondence and matters that had not been before trial court). Additionally,

Petitioner failed to show that the “Amended/Second” motion was ten pages in length when it was

mailed from the correctional institution. Indeed, Respondent notes, Petitioner never provided a copy

of this alleged tenth “oath page” to the state courts, nor has he provided it to this court. Therefore,

Petitioner has failed to establish that the state courts caused him to procedurally default the claims

asserted in his “Amended/Second” Rule 3.850 motion. 

Petitioner also failed to show he is entitled to review of his claims through any other

recognized exception to the procedural bar. The court notes that in Ground Seven of the instant

federal petition, Petitioner alleges the existence of newly discovered evidence that demonstrates his

actual innocence of the murder (doc. 1 at 11–13). The court will therefore determine whether

Petitioner is entitled to review of his procedurally defaulted claims (Grounds Three, Four, Five, and

Six) through the miscarriage of justice exception to the procedural bar. As previously discussed,

to qualify for this exception, Petitioner must show that “a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327. “To establish

the requisite probability, the petitioner must show that it is more likely than not that no reasonable

juror would have convicted him.” Id. Further:

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 25 of 36
Page 26 of 36

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.

Id. The court’s function is not to make an independent factual determination about what likely

occurred, but rather to assess the likely impact of the evidence on reasonable jurors. Id. at 329. The

Schlup standard is demanding and permits review only in the “extraordinary” case. Id. at 327

(quotation omitted). At the same time, though, the Schlup standard does not require absolute

certainty about Petitioner’s guilt or innocence. “A petitioner’s burden at the gateway stage is to

demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find

him guilty beyond a reasonable doubt—or, to remove the double negative, that more likely than not

any reasonable juror would have reasonable doubt.” House v. Bell, 547 U.S. 518, 538, 126 S. Ct.

20264, 165 L. Ed. 2d 1 (2006).

The allegedly new evidence in the instant case is an affidavit of Petitioner’s sister, Carletha

Purifoy, executed June 28, 2008 (see doc. 1 at 12). In her affidavit, Ms. Purifoy states she is the

former girlfriend of Garren Smith, who murdered Dean Perry, the victim in this case (Ex. XX at 42). 

Ms. Purifoy states Garren Smith was a “big time drug dealer,” who was feared by many people,

including herself (id.). She states he bragged to her that he had murdered many people (id.). Purifoy

states Garren Smith came home angry at Dean Perry for telling others where he (Smith) and Purifoy

lived (id.). Purifoy states Smith was angry, because Perry’s disclosing the information placed their

home in jeopardy of being robbed, and placed her and Smith in danger of being killed due to the

large sums of money, drugs, and guns in their home (id.). Purifoy states Garren Smith told her Dean

Perry was a “dead man walking,” and he was going to kill him (id.). She states Smith said he was

going to “set up” the killing to look like an accident (id.). Purifoy states Garren Smith asked

Petitioner to poison Dean Perry by putting boric acid in cocaine, but Petitioner refused (id.). Purifoy

states one night in October of 2003, Garren had a few friends at their home, including “Big Pope”

and “Lil Pope” (id. at 43). She states Garren drove off with the Popes and told her he would be right

back (id.). Purifoy states Garren was wearing a black jersey and black tennis shoes (id. at 43–44). 

She states much later, she was awakened by a telephone call from Garren stating, “It’s done. Dean

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 26 of 36
Page 27 of 36

is dead.” (id. at 43). She states Garren instructed her to follow Lil Pope, and he would bring her to

him (id.). Purifoy states she followed Lil Pope to a motel and waited for Garren (id.). Garren

arrived shirtless and barefoot with Big Pope (id.). She states they drove back to their home and saw

a card from the Pensacola Police Department on the door, so Garren decided they had to move (id.

at 44). She states the following morning, Petitioner called her and said the police were looking for

him (Petitioner) (id.). She told Petitioner to take a cab to the Rodeway Inn (id.). Purifoy states

Garren had told her police were looking for a white car and white men for questioning (id.). She

states Petitioner and Big Pope drove white cars, and the Pope brothers resembled white men, but

they were black (id.). Ms. Purifoy states she told Garren she needed to help Petitioner, but he did

not want to see or help Petitioner (id.). She states Garren finally agreed to go with her to meet

Petitioner, but he told her to frisk Petitioner when she made contact with him (id.). She states she

begged Garren to give her some money to help Petitioner, and he finally gave her a stack of bills

(id.). Ms. Purifoy states she gave Petitioner the money and told him to go to Mobile, Alabama, and

she would meet him there (id.). She then picked up Garren and they met Petitioner in Mobile (id.). 

Petitioner got in their vehicle, and Purifoy drove toward Mississippi (id.). During the ride, Purifoy

tried to get Garren to talk about Dean Perry, but he would not (id.). She states Garren “drilled”

Petitioner during the ride, making sure Petitioner said what he (Garren) wanted him to say (id.). 

Purifoy wondered to herself how Garren could know so much about the murder if he had not been

there (id.). Upon their arrival in Mississippi, Petitioner got on a bus (id.). Purifoy states Garren

promised to take care of Petitioner while he was on the run (id. at 45). She states when she returned

to Pensacola, she contacted Detective Goss and briefly talked to him about Petitioner (id.). She

states she told Goss about Garren’s “evil ways” and said she had to leave town to care for a friend

(id.). Purifoy states Garren made her quit her jobs and then forced her to flee with him to Georgia,

Louisiana, and Texas (id.).

Ms. Purifoy states she was arrested on July 21, 2004 and detained at the Escambia County

Jail (id. at 45). She states Detective Goss visited her at the jail and told her he could not “pin”

Garren for the murder, because he did not have enough evidence, but he knew Garren pulled the

trigger and Petitioner “just got caught up” (id.). Goss also allegedly told her, “the streets say Garren

did it” (id.). Purifoy states she told her defense attorney and “the State” what she knew and that she

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 27 of 36
Page 28 of 36

was willing to testify (id.). She states she was in jail from July 21, 2004 to September 28, 2005, but

no one questioned her about Dean Perry’s murder (id.). She states she had no involvement in

Perry’s death (id.). She states her opinion that the wrong man was convicted of Perry’s death (id.

at 46).

In determining what, if any, effect Ms. Purifoy’s testimony would have had on the jury’s

decision, a review of the evidence admitted at trial is required. Marya Hill, Dean Perry’s sister,

testified she saw Petitioner at Dean’s house at 10:55 or 11:00 p.m. on the night of October 25, 2003

(Ex. D at 143–44). She testified Petitioner was wearing a striped, long-sleeved shirt (id. at 144). 

Robert Ouellette testified he was working at the Circle K store on Cervantes Street, where

Cervantes turns into Scenic Highway, on the night of October 25, 2003 (Ex. D at 149). He testified

he started work at 11:00 p.m. that night (id.). He stated two black men came into the store and

purchased flashlight batteries (id. at 150). He identified Petitioner in the courtroom as the man who

paid for the batteries that night (id.). Mr. Ouellette testified Petitioner acted nervous that night,

because he dropped a hand full of change but did not bother to pick it up (id. at 150–51). Mr.

Ouellette identified a photograph from the store’s surveillance camera (id. at 151). He testified he

recognized the man in the photograph as Petitioner (id.).

Mark Holmes, a police officer with the Pensacola Police Department, testified he was

dispatched to the boardwalk at the bluffs on Scenic Highway at 12:23 a.m. on October 26, 2003, in

reference to a dead person (Ex. D at 125).

Detective Eric Goss testified that shortly after midnight on October 26, 2003, he responded

to a report of a dead person on the boardwalk of the bluffs on Scenic Highway in Pensacola (Ex. D

at 180). Later that day, Goss went to the home of Felicia Davis and observed a white Camaro owned

by Petitioner backed up to a fence on the far side of the lot (id. at 181–83). He made contact with

Ms. Davis, and she escorted Goss to Petitioner’s car and pointed to an area of bushes behind the car

and said she saw Petitioner throw a gun there (id. at 183). Goss testified he recovered the gun and

gave it to Carolyn Stephens, a crime scene officer (id. at 183–84). He testified that after speaking

with Ms. Davis and the victim’s sister, Marya Hill, he prepared an arrest warrant for Petitioner’s

arrest for Dean Perry’s murder (id. at 185). 

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 28 of 36
Page 29 of 36

Sergeant Trotter testified he worked for the Cumberland County Sheriff’s Office in North

Carolina (Ex. D at 166). He testified Petitioner was arrested in his jurisdiction on November 5, 2003

(id. at 167). Trotter testified he interview Petitioner on November 7, 2003, during which Petitioner

stated his sister, Carletha Purifoy, and her boyfriend, “Black,” asked him to kill Dean Perry by

mixing poison with powder and getting Perry to sniff it (id. at 168). Petitioner told Trotter he

refused to do it, but he agree to beat up Perry or “set him up” to be beaten (id.). Petitioner told

Trotter he picked up Dean Perry in his (Petitioner’s) white Camaro, and they went to a Circle K near

Scenic Highway and Cervantes (id. at 168–69). Trotter testified Petitioner told him he and Perry

bought batteries and a flashlight, and drove to the bluffs (id. at 169). Petitioner told Trotter he

dropped off Perry at the bluffs between 11:30 p.m. and 12:15 a.m., and that was the last time he saw

him (id.). Petitioner told Trotter he heard about Perry’s murder the next morning, and he went to

his sister’s house (id. at 169–70). Petitioner told Trotter his sister gave him $1,000.00, and he

bought a bus ticket to North Carolina (id. at 170). Petitioner told Trotter he had previously owned

a .357 magnum that he acquired from “Black,” but he gave the gun back to “Black” a few weeks

before Perry’s murder (id. at 171).

Detective Goss testified he was notified by authorities in North Carolina that Petitioner had

been arrested, so he and Investigator Sanderson went to North Carolina (id. at 185–86). He testified

that when they arrived in North Carolina, Petitioner was being interviewed by Sergeant Trotter (id.

at 186). He testified he and Sanderson entered the interview room, and Trotter introduced them to

Petitioner (id.). Goss testified Petitioner first denied involvement in the murder and stated his sister

actually wanted Dean Perry dead (id. at 187, 203). Petitioner also told Goss that his sister wanted

him to kill Perry, and she suggested that Petitioner put poison in Perry’s cocaine (id. at 187, 204). 

Petitioner told Goss that he told his sister he would not poison Perry (id.). Goss said Petitioner then

told him his sister wanted Dean Perry beaten up, and he agreed to beat him up, but his sister was still

trying to get Petitioner to poison Perry (id. at 187–88). Petitioner told Goss he and Perry were

driving around the night of Perry’s murder, and they went to a Circle K and then Petitioner dropped

off Perry at the bluffs (id. at 188). Goss testified he asked Petitioner about a .357 magnum pistol,

and Petitioner said he last saw the gun a week prior to Perry’s murder, when he sold it to “Black”

(Garren Smith) (id.). Detective Goss testified he told Petitioner he found the gun at Felicia Davis’s

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 29 of 36
Page 30 of 36

house behind Petitioner’s car, and he found a striped shirt Petitioner was observed wearing at the

Circle K that night (id. at 189). Goss testified he also suggested to Petitioner that Petitioner

accidentally shot Dean Perry (id. at 189–90). Goss testified Petitioner changed his story and said

he was at the bluffs with Perry when his (Petitioner’s) sister and “Black” showed up (id. at 190). 

Petitioner told Goss he was walking up the stairs and heard a gunshot, and then saw “Black” run past

him (id. at 190–91). Petitioner also told Goss he went to Felicia Davis’s house after the shooting

(id. at 191). Goss testified he asked Petitioner why he threw the gun in the bushes, and Petitioner

responded he was scared (id.). Goss testified he continued to press Petitioner about Petitioner being

the actual shooter, and Petitioner eventually stated the gun misfired while he was holding it (id. at

192). Petitioner told Goss he and Perry were walking down a stairway at the bluffs, and Perry was

ahead of him (id. at 193). Petitioner told Goss he pulled the gun out of his waistband, brought it up

to fire it in the air, and it misfired and hit Perry in the back of the head (id.). Goss testified Petitioner

demonstrated how it happened (id. at 193–94). Petitioner told Goss the gun was loaded, and after

it went off, he opened the cylinder of the gun and the other bullets fell out onto the boardwalk (id.

at 196, 207). Detective Goss testified that no bullets were found at the boardwalk (id. at 197). 

Petitioner maintained his story that his sister and “Black” wanted Dean Perry dead (id. at 194, 203). 

Goss asked Petitioner why his sister and “Black” gave him a large amount of money, and Petitioner

responded that they gave him $1,000.00 to get him out of town (id. at 194, 196). Goss asked

Petitioner why they (his sister and “Black”) wanted Dean Perry dead, and Petitioner responded that

“Black” was a big dope dealer in town, and Dean was “running his mouth” about “Black” (id. at

195). Petitioner told Goss he was afraid that Carletha and “Black” were going to “do something”

to him, and he (Petitioner) did not believe the police could protect him (id. at 198). Petitioner stated

he did not want to be involved in it, but “they” involved him in it (id. at 200). He asked Goss, “how

are you going to get them and protect me?” (id.). He stated, “They’ll kill me. They’ll disappear and

pin it on me.” (id. at 201). Petitioner told Goss he and Perry had bought a flashlight at a Circle K

on Cervantes Street earlier that evening (id.). Petitioner also told Goss that Perry was lying face

down after he shot him, and he (Petitioner) ran to Felicia Davis’s house after he shot Perry (id. at

195–96). Petitioner told Goss he then called his sister (id. at 196).

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 30 of 36
Page 31 of 36

Detective Goss testified he interviewed Carletha and “Black” (Ex. D at 207). He testified

neither of them told him anything that he could use against them (id.). He stated he did not have

enough evidence to charge either of them with Dean Perry’s murder (id.).

Andrea Minyard, the chief medical examiner for Escambia County, testified she performed

an autopsy on Dean Perry’s body (Ex. D at 238–39). She testified she observed a gunshot wound

to the back of Mr. Perry’s head and recovered a bullet from inside his head (id. at 240). She gave

the bullet to a crime scene officer, Nicole Heintzelman (id.). Minyard testified Mr. Perry’s death

was caused by the gunshot wound (id. at 241).

Carolyn Stephens, a crime scene investigator, testified that no bullets were recovered from

the crime scene (Ex. D at 209–10). She testified she received a Smith & Wesson .357 magnum

revolver from Detective Goss and placed it in a sealed box to be sent to the Florida Department of

Law Enforcement (“FDLE”) (id. at 211). Nicole Heintzelman, also a crime scene analyst, testified

she received a bullet from Dr. Minyard during Mr. Perry’s autopsy and placed it in a sealed package

to be sent to the FDLE (id. at 213–14). She testified she also received samples of Mr. Perry’s blood

and forwarded those to the FDLE as well (id. at 215).

Michael Watkins, a crime scene analyst, testified that when he arrived at the murder scene,

he found a yellow Dorcy brand flashlight on the ground just east of Mr. Perry’s body, and the

flashlight was still shining (Ex. D at 129–30). He testified he did not find any bullets at the scene

(id. at 131). Watkins testified he examined Petitioner’s white Camaro automobile and found a

yellow Dorcy brand flashlight in the car (id. at 132). He also found two empty battery packages and

a striped shirt (id. at 132–33). He testified he viewed video from a surveillance camera from a

Circle K store and observed that an individual in the video was wearing what appeared to be the

same shirt he recovered from Petitioner’s car (id. at 133–34). Watkins testified he recovered one

expended shell casing from the gun found in the bushes at Felicia Davis’s house, and the rest of the

chambers were empty (id. at 135).

Douglas Rawls, a forensic firearms examiner, testified he examined the Smith & Wesson

.357 magnum revolver recovered from the bushes at Felicia Davis’s house near Petitioner’s car, the

.357 magnum caliber expended shell casing, and the bullet removed from Dean Perry’s body, and

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 31 of 36
Page 32 of 36

determined that the shell casing and the bullet were fired from the revolver found near Petitioner’s

car (Ex. D at 216–19).

Magda Clanton, a crime lab analyst supervisor, testified she analyzed a bloodstain found on

the striped shirt recovered from Petitioner’s car with a sample of Dean Perry’s blood, and the two

matched (Ex. D at 228–34).

Petitioner alleges Carletha Purifoy’s affidavit “tends to demonstrate” his actual innocence

of the crime (doc. 1 at 13). He argues if the jury had heard Purifoy’s testimony, no reasonable juror

would have accepted the State’s theory of premeditation, that Petitioner was paid $1,000.00 to

murder Dean Perry (id.). However, the jury heard evidence, through Petitioner’s statements to Goss,

that the purpose of the $1,000.00 payment was to “get out of town,” not as payment for murdering

Perry. Further, Purifoy’s testimony would not have undermined the State’s other evidence of

premeditation, including evidence that “Black” wanted Petitioner to kill Perry, Petitioner refused

to poison Perry but agreed to beat him up, Petitioner bought a flashlight prior to taking Perry to the

bluffs, and Petitioner had a gun in his waistband that he pulled out as he and Perry were walking

down a stairway at the bluffs. 

Additionally, to the extent Petitioner argues Purifoy’s testimony would have shown he was

framed for the murder, he has not shown that her testimony would have caused any reasonable juror

to have reasonable doubt about his guilt. The jury heard Petitioner’s admission to Detective Goss

that he took a gun and Perry to the bluffs, and there he shot Perry. Additionally, Purifoy’s affidavit

does not suggest she was a witness to the murder, nor does it suggest she heard Garren Smith state

he killed Perry. Ms. Purifoy merely states Garren “Black” Smith wanted Perry dead, he wanted

Petitioner to commit the murder, he was not at home when the murder occurred, he knew about the

murder immediately after it happened, he helped Petitioner leave town and gave him money to do

so, and he coached Petitioner about what to say when questioned about the killing. Although

Purifoy’s information may have supported a charge against Garren “Black” Smith relating to Dean

Perry’s murder, her statements do not suggest Petitioner was actually innocent of the murder. 

Petitioner failed to demonstrate that more likely than not any reasonable juror would have

reasonable doubt at to his guilt had Ms. Purifoy testified consistently with her affidavit. Therefore,

he has failed to make a colorable showing of actual innocence. Accordingly, he is not entitled to

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 32 of 36
Page 33 of 36

review of his procedurally barred claims through the miscarriage of justice exception to the

procedural bar. 

D. Ground Seven: “Newly discovered evidence of a Fourteenth Amendment due

process Brady violation demonstrating Petitioner’s actual innocence was denied by the state

court on an unreasonable application of U.S. Supreme Court precedent.”

In this ground, Petitioner asserts a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963) with respect to the State’s failure to disclose to the defense that

Carletha Purifoy, Petitioner’s sister, could provide exculpatory testimony (doc. 1 at 11–13). 

Petitioner states Purifoy was forced by Garren “Black” Smith to leave the State after Dean Perry’s

death, so the State could not contact her to testify before the grand jury (id. at 12). He states Purifoy

was arrested on July 21, 2004, and detained at the Escambia County Jail (id.). He states Detective

Goss interviewed Purifoy at the jail, but the State never disclosed Ms. Purifoy or “Black” as

potential witnesses in any discovery material, although the prosecutor argued at Petitioner’s trial that

Purifoy and “Black” paid Petitioner $1,000.00 to murder Perry (id.). Petitioner asserts neither he

nor defense counsel knew of Ms. Purifoy’s whereabouts, and Detective Goss failed to disclose that

she was at the jail (id.). Further, since the State did not disclose Ms. Purifoy in any discovery

materials, defense counsel had no reason to believe she had any information beyond what Petitioner

was aware of (id. at 12–13).

Respondent states Petitioner presented this claim to the state court in his Rule 3.850 motion

alleging newly discovered evidence, filed July 3, 2008 (doc. 22 at 53). Respondent states the state

circuit court dismissed the motion with prejudice and without adjudicating the merits of the Brady

claim, on the ground that the motion was barred as successive under rule 3.850(f) (id. at 54–55). 

Respondent contends the court determined that Ms. Purifoy’s affidavit did not qualify as newly

discovered information, and Petitioner failed to show he could not have presented the claim in his

first Rule 3.850 motion filed in 2007 that was adjudicated on the merits on June 13, 2007 (id. at

54–55). Respondent asserts the First DCA affirmed the state circuit court’s determination that the

motion was impermissibly successive (id. at 56). Therefore, the Brady claim is procedurally barred

from federal review (id. at 56–59).

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 33 of 36
Page 34 of 36

The state court record demonstrates Petitioner raised this claim in his Rule 3.850 motion filed

July 3, 2008 (Ex. XX). The state circuit court found as fact that Petitioner was aware at the time of

his trial of his sister’s potential testimony (Ex. ZZ at 84). The court further found that Ms. Purifoy

could have been called to testify by the defense regardless of whether she was listed as a witness by

the State (id.). The court found that Petitioner alleged no reason why his Brady claim could not have

been brought in his previously filed Ruled 3.850 motion, which was denied on the merits on June

13, 2007 (id. at 85). Based upon these findings, the court determined that the information presented

by Petitioner did not qualify as newly discovered evidence; therefore, his motion was barred as

successive under Rule 3.850(f) (id.). The First DCA affirmed the decision without written opinion 

Petitioner appears to argue that the state court’s determination that Ms. Purifoy’s affidavit

did not qualify as newly discovered evidence constituted an adjudication on the merits for purposes

of § 2254 (doc. 28 at 24). He contends the court’s application of the procedural bar was thus not an

independent basis for dismissal of his motion (id.). He also argues the state court’s application of

the procedural bar was arbitrary (id. at 252–29). He insists he could not have known Ms. Purifoy’s

whereabouts unless the State disclosed it (id. at 25–28). He argues Ms. Purifoy’s testimony would

have established that Garren Smith shot Dean Perry (id. at 25). He argues no reasonable jury would

have believed the State’s theory of premeditation had they heard Purifoy’s testimony (id. at 26). 

Petitioner states he told the truth during his interview with Detective Goss, and he never confessed

to shooting anyone (id.).

Rule 3.850(f) provides, in relevant part, that a second or successive motion may be dismissed

“if new and different grounds are alleged, [and] the judge finds that the failure of the movant or the

attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed

by these rules.” Fla. R. Crim. P. 3.850(f). In the instant case, the state court determined the Rule

3.850 motion was barred by Rule 3.850(f), because Petitioner failed to show a sufficient justification

for not raising his Brady claim in the prior Rule 3.850 motion that was adjudicated on the merits on

June 13, 2007 (see Exs. S, Y). This was a clear and express statement that the court was relying on

a state procedural rule to resolve Petitioner’s claim. See Ylst, 501 U.S. at 803 (although a

procedural bar may be removed if the last state court to be presented with a claim ignores the bar

and reaches the merits, when the trial court’s denial of a claim on procedural grounds is affirmed

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 34 of 36
Page 35 of 36

by the appellate court per curiam and without opinion, the appellate decision is deemed to have

affirmed the procedural bar). Additionally, the state court’s decision on the procedural issue rested

entirely on state law grounds, namely, Rule 3.850(f), and this rule is firmly established and regularly

followed by Florida courts. See Fla. R. Crim. P. 3.850(f); see also Frazier v. State, 898 So. 2d 1183,

1183–84 (Fla. 3d DCA 2005) (barring as successive claims that could have and should have been

made in previous post-conviction motion); Washington v. State, 876 So. 2d 1233, 1234 (Fla. 5th

DCA 2004) (same). Therefore Petitioner’s Brady claim is procedurally barred from federal review

unless he satisfies the “cause and prejudice” or “miscarriage of justice” exception to the procedural

bar.

Petitioner failed to show he could not have obtained his sister’s affidavit prior to August 30,

2006, the date he filed the Rule 3.850 motion that was adjudicated on the merits (see Ex. S). Ms.

Purifoy’s affidavit reflects that when she executed it, she was an inmate of the Florida Department

of Corrections, FDOC identification number J01145 (see Ex. XX at 46). The records of the FDOC

show Ms. Purifoy was initially received by the FDOC on September 28, 2005, which is the day Ms.

Purifoy states was her last day at the Escambia County Jail. Petitioner was obviously able to obtain

Ms. Purifoy’s affidavit within one month after she executed it, since her affidavit was executed June

18, 2008, and Petitioner filed it with the court on July 3, 2008 (see Ex. XX). He has not alleged or

shown that an external impediment prevented him from obtaining his sister’s affidavit prior to filing

his 2006 post-conviction motion. Therefore, he failed to demonstrate cause for his procedural

default. Further, as previously discussed, he failed to show he qualifies for review under the

fundamental miscarriage of justice exception to the procedural bar. Therefore, he is not entitled to

federal review of his Brady claim.

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.

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 35 of 36
Page 36 of 36

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 respectfully RECOMMENDED:

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

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 27th day of October 2011.

/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).

Case No. 3:09cv360/MCR/EMT

Case 3:09-cv-00360-MCR-EMT Document 38 Filed 10/27/11 Page 36 of 36