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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT LEE HINSON, JR.,

Petitioner,

v. Case No. 3:10cv480/RV/MD

KENNETH S. TUCKER,

Respondent.1

______________________________________________________________________

REPORT AND RECOMMENDATION

This cause is before the court on petitioner’s petition for habeas corpus filed

pursuant to Title 28 U.S.C. § 2254 (doc. 1). Respondent filed a response and relevant

portions of the state court record (docs. 32, 35-38, 44). Petitioner filed a response

(doc. 47). 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,

Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District

Courts. It is further the opinion of the undersigned that the pleadings and

attachments before the court show that petitioner is not entitled to relief, and the

petition is without merit and should be denied.

1

 Kenneth S. Tucker became Secretary of the Florida Department of Corrections on August 24, 2011,

and is substituted as the respondent. 

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BACKGROUND AND PROCEDURAL HISTORY

The petitioner, Robert Lee Hinson Jr., was charged with several crimes in the

Circuit Court of Escambia County, Florida, in 2007 and 2008 (see doc. 35, ex. H).2

 At

issue is the charge of burglary of a conveyance in case number 2007 CF 5153 (“case

5153") and the charge of felony petit theft in case number 2008 CF 402 (“case 402").3

(Id.). Mr. Hinson moved to waive his right to counsel and represent himself in both

cases (ex. F, p. 18). The trial court granted the motion after holding a Faretta4

hearing on March 25, 2008 (ex E, pp. 86-107). On the burglary charge, Mr. Hinson

entered a plea of guilty to the lesser included offense of trespassing. (Ex. A, pp. 39-

44) (case no. 2008 CF 5153). The court sentenced him to nine months in jail with

nine days of credit time (Ex. A, p. 50). He was tried by jury and adjudicated guilty of

felony petit theft on July 2, 2008. (Ex. F, p. 135) (case no. 2008 CF 402). The court

sentenced him to a term of five years imprisonment with 225 days of credit time (ex.

G, pp. 183-89).

Mr. Hinson appealed the convictions and sentences in cases 5153 and 402 to

the First District Court of Appeal (“First DCA”) (exs. A, p. 70; G, p. 208). The First

DCA consolidated the appeals (ex. D, p. 77). Through counsel, Mr. Hinson raised one

issue: the trial judge erred in not conducting an adequate Faretta inquiry (ex. D). On

July 13, 2009, the First DCA per curium affirmed the convictions and sentences

without written opinion. Hinson v. State of Florida, 14 So.3d 1007 (Fla. 1st DCA 2009)

(Table). A motion for rehearing was denied (ex. H, dkt. Aug. 25, 2009).

Mr. Hinson filed numerable motions and appeals in the state trial and appellate

courts. On January 21, 2009, he filed a motion to correct the sentence in case 402

2

 Hereafter all references to exhibits will be to docs. 35-38 unless otherwise noted.

3

 Mr. Hinson’s petition only challenges the conviction and sentence in case 402, but the central issue

of the adequacy of a competency hearing potentially affects case 5153 as well.

4

 Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975) (accused must

“knowingly and intelligently” waive representation).

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based on the Florida speedy trial rule (ex. I, p. 1). The trial court denied the motion

on February 6, 2009 (ex. I, p. 4). The First DCA affirmed the decision on May 14,

2009, and issued the mandate on July 1, 2009. Hinson v. State of Florida, 10 So.3d

365 (1st DCA 2009) (Table) (docket at sxs. J, HH).

On August 13, 2009, Mr. Hinson filed two virtually identical petitions for writ

of habeas corpus seeking a belated appeal. The first challenged the June 9, 2008,

hearing on his motion to dismiss the charges in case 402, stating the information

was impermissibly vague, and his appellate attorney failed to appeal “the hearing[.]”

(Ex. K). The second challenged the portion of the August 11, 2008, hearing

pertaining to case 402 (ex. M). At that hearing, the trial judge denied Mr. Hinson’s

post-trial “motion for judgment of not guilty” and “motion for a cross bill of

information”, which Mr. Hinson stated was similar to a motion to dismiss the

charges. (See ex. F, p. 168). The First DCA per curiam denied both petitions by

separate opinions issued on September 17, 2009 (exs. L, N).

On August 17, 2009, Mr. Hinson filed a petition for writ of habeas corpus with

the First DCA contending the trial court lacked subject matter jurisdiction in case

402 because the information was defective (ex. O). The First DCA denied the petition

without written opinion on September 17, 2009 (ex. P). 

On August 25, 2009, he filed another petition for writ of habeas corpus with

the First DCA, this time alleging ineffective assistance of appellate counsel for failing

to “appeal” the June 9 and August 11, 2008, hearings and the trial court’s order

denying a motion to disqualify the judge (ex. Q). The First DCA denied the petition

on the merits on September 29, 2009 (ex. R).

On October 13, 2009, Mr. Hinson filed a petition for writ of habeas corpus with

the Florida Supreme Court arguing the trial court was “obligated” to order a mental

health evaluation based on the March 25, 2008 Faretta inquiry (ex. S). The Florida

Supreme Court transferred the petition to the Escambia County Circuit Court for

consideration as a motion for post-conviction relief on February 8, 2010 (exs. T; X,

p. 29). While that motion was pending, Mr. Hinson filed a Rule 3.850 post-conviction

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motion raising four grounds for relief (ex. U, p. 1). On August 25, 2010, the Rule

3.850 court denied both motions in a written opinion (ex. U, p. 12). Mr. Hinson

appealed (ex. LL), and the First DCA per curiam affirmed the Rule 3.850 court’s

decision on November 10, 2010 (ex. KK, dkt. Nov. 10, 2010).

On March 15, 2010, while the Rule 3.850 motions were pending, Mr. Hinson

filed a motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of

Criminal Procedure, alleging the trial court did not have subject matter jurisdiction

in case 402 because the statute Mr. Hinson violated lacks an enacting clause (ex. V,

pp. 1-30). He filed another Rule 3.800(a) motion on July 27, 2010, raising three

additional grounds for relief (ex. V, pp. 31-41). The Rule 3.800 court denied both

motions on the merits on August 25, 2010 (ex. V, pp. 42-43). Mr. Hinson appealed

(ex. II), and the First DCA per curiam affirmed the Rule 3.800 court’s decision on

November 10, 2010 (ex. JJ).

On August 13, 2010, Mr. Hinson filed three pleadings—a petition for writ of

habeas corpus to the Florida Supreme Court, a petition for writ of prohibition to the

Florida Supreme Court, and a petition for writ of prohibition to the First

DCA—alleging the trial court lacked subject matter jurisdiction in case 402 because

the statute under which he was charged does not have an enacting clause and is

therefore not a valid law. (See exs. W, Y, AA). The Florida Supreme Court

transferred the petition for writ of prohibition to the Jackson County Circuit Court,

where Mr. Hinson was imprisoned (ex. Z). That court dismissed the petition on

October 6, 2010. (Case no. 2010 CA 827) (docket available at

http://www.jacksonclerk.com). The Florida Supreme Court transferred the petition

for habeas corpus to the Escambia County Circuit Court (ex. FF, dkt. # 267), which

denied the petition on November 5, 2010 (id., dkt. # 282). He appealed to the First

DCA (ex. MM), and the court affirmed the trial court’s order denying the petition on

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March 14, 2011 (ex. NN). The First DCA dismissed the petition filed in its court on

November 19, 2010, due to Mr. Hinson’s motion for voluntary dismissal (ex. BB).5

Mr. Hinson filed another petition for writ of prohibition with the First DCA on

August 25, 2010, again raising the issue of the trial court’s failure to order a mental

competency evaluation (ex. DD). The court denied the petition on October 29, 2010

(ex. EE).6

On November 23, 2010, Mr. Hinson filed the instant petition for writ of habeas

corpus (doc. 1).

STANDARD OF REVIEW 

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended 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, § 2254 provides:

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

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

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim–

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

5

 Mr. Hinson continued to file petitions for writ of habeas corpus and post-conviction motions with

the Circuit Court of Escambia County throughout 2011. (Case no. 2008 CF 402) (docket available at

http://www.escambiaclerk.com). On October 10, 2011, the court cautioned him regarding “frivolous

and repetitious filings” (id. at dkt. # 312).

6

 The First DCA issued an opinion on January 6, 2011, imposing sanctions. (Ex. CC). It stated he had

“appeared as appellant or petitioner in [the] court 58 times since 1995[,]” and none of the filings

resulted in the granting of any substantive relief. (Id. at 2). It prohibited him from appearing as a

litigant before the court unless represented by counsel. (Id.).

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28 U.S.C. § 2254(d) (2006).

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).7

 Section

2254(d)(2) must be divided into two separate inquiries: 

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). The federal habeas court

“determining whether [it] should overturn the state courts’ [sic] rejection of the claim

at issue” should “review the highest state court decision disposing of the claim.” 

Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1237 (11th Cir. 2011); see 

Knowles v. Mirzayance, 556 U.S. 111, __, 129 S. Ct. 1411, 1419, 173 L. Ed. 2d 251

(2009).

Following the Williams framework, 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 renders its decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003). The law is “clearly

established” only when the Supreme Court’s holding embodies the legal principle;

dicta in opinions is not controlling. Thaler v. Haynes, __ U.S. __, 130 S. Ct. 1171,

7

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

Stevens for the Court (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts

I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and Justice O’Connor for the Court (joined by

Justices Rehnquist, Kennedy, Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at

403–13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg, and

Breyer.

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1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608 F.3d 1313,

1315 (11th Cir. 2010). Furthermore, a federal court of appeals decision, “even a

holding directly on point,” cannot clearly establish federal law for § 2254 purposes. 

Bowles, 608 F.3d at 1316 (citing Renico v. Lett, __ U.S. __, 130 S. Ct. 1855, 1866

(2010)).

After identifying the governing legal principle, the court determines whether

the state court adjudication is “contrary to” clearly established Supreme Court case

law, either because the state court “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases,” or because it “confronts a set of facts that is

materially indistinguishable from a decision of [the] Court but reaches a different

result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438, 161 L. Ed. 2d 334

(2005); see § 2254(d)(1). The state court does not need to cite to Supreme Court

cases or even be aware of them, “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). If the state court decision is contrary to clearly

established federal law, the federal habeas court must independently consider the

merits of the petitioner’s claim.

If the state court decision is not contrary to clearly established federal law, the

federal habeas court must then determine whether the state court “unreasonably

applied” the governing legal principles set forth in the Supreme Court’s cases. §

2254(d)(1); Williams, 529 U.S. at 412–13, 120 S. Ct. at 1523. The federal court defers

to the state court’s reasoning unless the state court’s application of the legal

principle was “objectively unreasonable” in light of the record the court had before

it. Williams, 529 U.S. at 409, 120 S. Ct. at 1521; see Cullen v. Pinholster, __ U.S. __,

131 S. Ct. 1388, 1400, 179 L. Ed. 2d 557 (2011) (holding new evidence introduced in

federal habeas court has no bearing on § 2254(d)(1) review, rejecting dicta in 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

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determining whether its decision was contrary to federal law). A state court’s

application of federal law is objectively unreasonable 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.”

Brown, 544 U.S. at 141, 125 S. Ct. at 1439. However, a state court may “decline to

apply a specific legal rule that has not been squarely established by [the Supreme

Court]” without running afoul of the “unreasonable application” clause. Knowles,

129 S. Ct. at 1419. Notably, even a state court’s incorrect application of law will not

warrant federal habeas relief unless it is also objectively unreasonable. See

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86, 178 L. Ed. 2d 624 (2011).

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). As with the “unreasonable

application” clause, the Supreme Court applies the “objectively unreasonable” test

to the state court’s factual determination. Miller-El v. Cockrell, 537 U.S. 322, 324, 123

S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). The petitioner must advance

clear and convincing evidence that the state court’s factual determination was

“objectively unreasonable” to rebut the presumption that the determination was

correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); see § 2254(e)(1).

The Eleventh Circuit Court of Appeals in Gill clarified how the federal habeas

court should address the “unreasonable application of law” and the “unreasonable

determination of facts” tests. Mr. Gill’s petition alleged he was denied his Sixth

Amendment right to counsel.8

 The Eleventh Circuit granted a limited Certificate of

8

 Mr. Gill twice moved the trial court in pretrial hearings to allow him to waive his Sixth Amendment

right to counsel. Gill, 633 F.3d at 1275-1284; see U.S. Const. amend. VI. The trial court denied the first

motion, concluding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill, 633 F.3d

at 1278; see Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975)

(accused must “knowingly and intelligently” waive representation). It also denied the second motion,

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Appealability to determine the precise issue of the validity of “summary affirmance

by a state appellate court of a trial court’s decision based on potentially flawed

reasoning.” Id. at 1286.9

The court acknowledged the well-settled principle that summary affirmances,

such as the Florida Second District Court of Appeal’s, are presumed adjudicated on

the merits and warrant deference. Id. at 1288 (citing Harrington, 131 S. Ct. at 784-85

and Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)). “A

judicial decision and a judicial opinion are not the same thing,” and the Supreme

Court has confirmed that determining whether the state court unreasonably applied

the law or unreasonably determined the facts requires only a decision, not an

opinion. Id. at 1291 (citing Harrington, 131 S. Ct. at 784). Yet, the Supreme Court has

never squarely addressed whether under the “unreasonable application” test a

federal habeas court “looks exclusively to the objective reasonableness of the state

court’s ultimate conclusion or must also consider the method by which the state

court arrives at its conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230,

244-45 (5th Cir. 2002) (summarizing the emerging circuit split)). The Eleventh Circuit

court concluded that district courts must apply the plain language of § 2254(d) and

answer the “precise question” raised in a claim based on the state court’s ultimate

legal conclusion, and should not “evaluate or rely upon the correctness of the state

court’s process of reasoning.” Id at 1291 (agreeing with the Fifth Circuit court in

but it allowed Mr. Gill to act as co-counsel for himself only for determining trial strategy. Gill, 633 F.3d

at 1284. He was convicted, and the Florida Second District Court of Appeal (“Second DCA”) affirmed

without opinion the trial court’s denial of post-conviction relief. Id. at 1284-85. Mr. Gill then filed a

petition in federal court, which petition the court denied with prejudice. Id. at 1284-85. 

9

 The court reviewed Gill’s claims that the federal habeas court erred in two respects. First, Gill

argued the habeas court erred by “failing to review on the merits the ‘legally and factually unsupported

rationale’ articulated by the state trial court.” 633 F.3d at 1288. Second, Gill argued the habeas court’s

decision was per se erroneous because it “relied on a finding that the state court did not make.” Id.

Gill averred the trial court denied relief by finding that Gill’s waiver was not knowing and intelligent,

while the federal district court denied relief by finding that Gill “never clearly and unequivocally”

waived his right to counsel. Id.

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Neal, supra). In short, the court stated, “the statutory language focuses on the

result, not on the reasoning that led to the result.” Id.10

In light of Gill, the “unreasonable determination of facts” standard plays a

limited role in habeas review because the district court considers the

reasonableness of the trial court’s fact finding only to the extent that the state

court’s ultimate conclusion relied on it. Id. at 1292. A federal habeas court can

consider the full record before it to answer “the only question that matters[:]”

whether the state court’s decision was objectively unreasonable. Lockyer, 538 U.S.

at 64, 123 S. Ct. at 1168; Gill, 133 F.3d at 1290.

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

Under §2254, a habeas court must determine what arguments or

theories supported or . . . could have supported [ ] the state court’s

decision; and then it must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

Harrington, 131 S. Ct. at 786. Federal habeas relief is precluded “so long as

fairminded jurists could disagree on the correctness of the state court’s

conclusion.” Id. at 786 (internal quotations omitted).

The federal habeas court will take the final step of conducting an independent

review of the merits of the petitioner’s claims only if it finds that the petitioner

satisfied AEDPA and § 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 953-54, 127

S. Ct. 2842, 2858-59, 168 L. Ed. 2d 662 (2007); Jones v. Walker, 496 F.3d 1216, 1228

(2007) (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). When performing its review under § 2254(d), the federal court

must resolve all claims for relief regardless of whether habeas relief is granted or

10 Applying this analysis, the court rejected Gill’s claim that the district court erred by relying on

different grounds than the trial court because Gill’s basic premise—the Second DCA’s summary

affirmance relied on the trial court’s statements from the bench—was not dispositive. Id. at 1288.

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denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc); see Puiatti v.

McNeil, 626 F.3d 1283, 1307 (11th Cir. 2010). The federal court must also bear in mind

that state court factual determinations are presumed to be correct, and the petitioner

bears the burden of rebutting that presumption by clear and convincing evidence. 

28 U.S.C. § 2254(e)(1); see also Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002)

(AEDPA provides for a “highly deferential standard of review” for factual

determinations made by a state court); Jackson, 112 F.3d at 824-25 (noting petitioner

has heavier burden to overcome the presumption of factual correctness). “If this

standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S.

Ct. at 786. 

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel.

Petitioner contends in some of his grounds for relief in this court that he was

denied his constitutional right to the effective assistance of counsel. The

Constitution provides “[i]n all criminal prosecutions, the accused shall enjoy the

right. . .to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

To prevail on a claim of ineffective assistance of counsel, the petitioner must prove: 

(1) “counsel’s representation fell below an objective standard of reasonableness;”

and (2) “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 677-678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see

also Berghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L. Ed. 2d 1098

(2010). Reasonableness of representation does not implicate what is possible,

prudent, or even appropriate, but only what is “constitutionally compelled.” 

Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing Burger v. Kemp,

483 U.S. 776, 794, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987)).

In evaluating counsel’s performance, reviewing courts must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable,

professional assistance. Chandler, 218 F.3d at 1314. Courts must make “every

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effort. . .to eliminate the distorting effects of hindsight” and must evaluate the

reasonableness of counsel’s performance “from counsel’s perspective at the time.” 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also, e.g., Chandler, 218 F.3d at

1314 (the Strickland standard compels courts to “avoid second-guessing counsel’s

performance”). The Eleventh Circuit has summarized the standard and the burden:

Even 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. This burden, which is petitioner’s to bear, is and

is supposed to be a heavy one. And, “[w]e are not interested in grading

lawyers’ performances; we are interested in whether the adversarial

process at trial . . . worked adequately.” See White v. Singletary, 972

F.2d 1218, 1221 (11th Cir. 1992). Therefore, the cases in which habeas

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also, e.g., Waters v. Thomas, 46

F.3d 1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done

more); Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (“. . .the Constitution

requires a good deal less than maximum performance.”).

In order to meet the prejudice prong of the Strickland standard, petitioner

must allege more than that the unreasonable conduct might have had “some

conceivable effect on the outcome of the proceeding.” 466 U.S. at 693, 104 S. Ct. at

2067; see Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005). 

Petitioner must show a reasonable probability exists that the outcome would have

been different. Marquard, 429 F.3d at 1305 (petitioner’s burden under the prejudice

prong is high); Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In applying Strickland,

the court may dispose of an ineffective assistance claim if petitioner fails to carry his

burden on either of the two prongs. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“If 

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice. . .that course should be followed.”).

The Strickland standard exists to prevent petitioners from abusing the posttrial process by escaping rules of waiver or presenting new issues; it should be

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“applied with scrupulous care” to protect the integrity of the adversary process. 

Harrington, 131 S. Ct. at 788. As it relates to habeas corpus applications, the Court

emphasized:

The standards created by Strickland and § 2254(d) are both “highly

deferential,” and when the two apply in tandem, review is “doubly” so.

The Strickland standard is a general one, so the range of reasonable

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d). When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. at 788 (citations omitted); Knowles,129 S. Ct. at 1420 (Strickland claims evaluated

under § 2254(d)(1) require “doubly deferential” judicial review).

Finally, when a district court considers a habeas petition, the state court’s

findings of historical facts in the course of evaluating an ineffectiveness claim are

subject to the presumption of correctness, while the performance and prejudice

components are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.

Ct. at 2070; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “The pivotal

question is whether the state court's application of the Strickland standard was

unreasonable. “This [inquiry] is different from asking whether defense counsel's

performance fell below Strickland's standard.” Jones v. Sec’y, Dep’t of Corr., 644

F.3d 1206, 1209 (11th Cir. 2011) (quoting Harrington, 131 S. Ct. at 785). Habeas claims

of ineffective assistance of counsel require “doubly deferential” judicial review

under §2254(d) and Strickland, and petitioners only rarely prevail on this ground. 

See Rogers, 13 F.3d at 386.

Exhaustion of state remedies and Procedural Default

Respondent contends some of Mr. Hinson’s ground for relief are unexhausted

(doc. 32). A petitioner defaults on an issue unless the petitioner first exhausts

available state court remedies so the state has the “‘opportunity to pass upon and

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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) (per curiam); see 28 U.S.C. §

2254(b)(1)(A) (applicant must exhaust available state court remedies); § 2254(b)(3)

(state may rely on exhaustion requirement unless it expressly waives the right). But

see § 2254(b)(2) (application may be denied on the merits even when applicant fails

to exhaust state remedies). To satisfy the exhaustion requirement, the petitioner

must “fairly present” his claim in each appropriate state court, alerting that court to

the federal nature of the claim. Duncan, 513 U.S. at 365-66, 115 S. Ct. at 888; see

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999)

(same). This affords the state courts “one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732.

“Fair presentation” requires that, in each claim for relief, the petitioner include

a reference to a specific federal constitutional guarantee and a statement of the facts

that entitle the petitioner to relief. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509,

513, 30 L. Ed. 2d 438 (1971). To satisfy the exhaustion requirement, the petitioner

must present the same facts and claims in state court about which he petitions the

federal court. Id. Appeals to a broad, general constitutional guarantee also fail to

present the “substance” of such a claim to the state court. See Anderson v. Harless,

459 U.S. 4, 7, 103 S. Ct. 276, 278, 74 L. Ed. 2d 3 (1982) (petitioner cited federal

authority only 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” (internal quotation marks omitted)). A state prisoner’s claim is not fairly

presented if the state 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. . ..” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d

64 (2004). However, when a petitioner squarely raises a federal constitutional claim

in state court, the “failure of a state court to mention a federal claim does not mean

the claim was not presented to it.” Dye v. Hofbauer, 546 U.S. 1, 3, 126 S. Ct. 5, 6-7,

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163 L. Ed. 2d 1 (2005). And, simply labeling the claim “federal” may be sufficient to

fairly present the claim. Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351 (dictum).

The Eleventh Circuit requires specific reference to the United States

Constitution and favors citations to federal cases. Zeigler v. Crosby, 345 F.3d 1300,

1307-08 and n.5 (11th Cir. 2003) (“Cursory and conclusional sentences

(unaccompanied by citations to federal law) . . . did not present to the Florida courts

the federal claim asserted to us.”). This stricter standard requires the petitioner to

differentiate a claim under the United States Constitution from one under a state

constitution. Id. at n.5; McNair v. Hall, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (“a

habeas applicant [must] do more than scatter some makeshift needles in the

haystack of the state court record” (internal citations omitted)). If state and federal

constitutional law overlap in their applicability to the petitioner’s claim, he must raise

his issue in terms of the federal right in state court to obtain federal review of the

issue. Duncan, 513 U.S. at 366, 115 S. Ct. at 888; see also Anderson, 459 U.S. at 7

and n.3, 103 S. Ct. at 278 and n.3 (petitioner’s citation to a state-court decision

predicated solely on state law is probably insufficient to fairly apprise a reviewing

court of a potential federal claim merely because the defendant in the cited state

case advanced a federal claim). 

A claim is procedurally defaulted and barred from federal review in two

instances: (1) if it was raised in state court and rejected on the independent and

adequate state ground of procedural bar or default; or (2) if it was not properly raised

in state court and can no longer be litigated under state procedural rules. Coleman

v. Thompson, 501 U.S. 722, 734-35 and n.1, 111 S. Ct. 2546, 2557 and n.1, 115 L. Ed.

2d 640 (1991); Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); see also Judd

v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (state court’s rejection of petitioner’s

constitutional claim on state procedural grounds generally precludes subsequent

federal habeas review of that claim). Unless the federal court determines the state

court “clearly and expressly” relied on independent and adequate state grounds, the

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federal court may address the petition.11 Coleman, 501 U.S. at 735, 111 S. Ct. at 2557. 

However, when any future attempt to exhaust state remedies would be futile under

the state’s procedural default doctrine, the default is per se adequate state grounds

independent of the federal question. Id. at 735 n.1, 2557 n.1; Harris v. Reed, 489 U.S.

255, 263 n.9, 109 S. Ct. 1038, 1043 n.9, 103 L. Ed. 2d 308 (1989) (federal habeas court

need not require a federal claim be presented to a state court if the state court would

hold the claim procedurally barred).

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, 375, 122 S. Ct. 877, 885, 151

L. Ed. 2d 820 (2002). To foreclose federal review, the state procedural bar must be

firmly established and regularly followed, that is, not applied in an arbitrary or

unprecedented fashion. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 857,

112 L. Ed. 2d 935 (1991). A state procedural bar is firmly established and regularly

followed when the state has put litigants on notice of the rule, and the state has a

legitimate interest in the rule’s enforcement. Maples v. Allen, 586 F.3d 879, 888 (11th

Cir. 2009) (citing Lee, 534 U.S. at 385-88, 122 S. Ct. at 890-92)).

To overcome a procedural default so that the federal habeas court may reach

the merits of a claim, the petitioner must show either “cause for the default and

actual prejudice resulting therefrom,” or a fundamental miscarriage of justice. 

Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004); High v.

Head, 209 F.3d 1257, 1261 (11th Cir. 2000). Cause exists when an external

impediment, such as governmental interference or the reasonable unavailability of

the factual basis for the claim, prevented petitioner from raising the claim. 

McCleskey v. Zant, 499 U.S. 467, 497, 111 S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991). 

To meet the miscarriage of justice exception, the petitioner must show that “a

constitutional violation has probably resulted in the conviction of one who is

11 The “adequate and independent state grounds” rule applies equally to procedural and substantive

state-law grounds. Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885, 151 L. Ed. 2d 820 (2002). 

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actually innocent” because “it is more likely than not that no reasonable juror would

have convicted him.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L.

Ed. 2d 808 (1995). 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. In short, actual innocence claims opening the gate for the miscarriage of justice

exception are summarily rejected in virtually every case. Id.

Deference to state court findings of fact

Federal habeas courts defer to the state court’s findings of fact, unless the

petitioner shows by clear and convincing evidence that it was unreasonable. See

28 U.S.C. § 2254(d)(2); § 2254(e)(1); Callahan v. Hall, 427 F.3d 897, 926 (11th Cir. 2005)

(“§ 2254(d)(2) allows for relief where the state court 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.’ § 2254(d)(2).”); see also

Rutherford v. Crosby, 385 F.3d 1300, 1308 (11th Cir. 2004) (concluding that

“[petitioner] has not shown by clear and convincing evidence that the Florida

Supreme Court’s factual finding . . . [wa]s unreasonable in light of the evidence in

the state court record”). Under the AEDPA, the state court does not have to

explicitly state its findings of fact. See Blankenship v. Hall, 542 F.3d 1253, 1271-72

(11th Cir. 2008). State court findings of fact can be implied from the opinion and the

record when they are necessary to the Rule 3.850 court’s rejection of a petitioner’s

claim. Id. These implicit findings are entitled to deference. Id. As explained in the

Standard of Review, supra, the state court is not required to cite or be aware of the

relevant Supreme Court precedent as long as its conclusion is not contradictory. 

Early, 537 U.S. at 8, 123 S. Ct. at 365. A summary adjudication with a brief, or total

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lack of, statement of reasons is still an adjudication on the merits. Harrington, 131

S. Ct. at 780, 784; see Childers v. Floyd, 642 F.3d 953, 968 (11th Cir. 2011) (“an

‘adjudication on the merits’ is best defined as any state court decision that does not

rest solely on a state procedural bar.”).

Under Eleventh Circuit precedent, the habeas court will “‘look through’ a

summary decision to the ‘last reasoned decision’ on the issue.” McGahee v.

Alabama Dep’t of Corr., 560 F.3d 1252, 1262 n.12 (11th Cir. 2009) (quoting Sweet v.

Sec’y, Dep’t of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006)); see also Ylst v.

Nunnenmaker, 501 U.S. 797, 802, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991) (“.

. .the Harris presumption only applies after habeas court determines ‘the relevant

state court decision. . .fairly appear[s] to rest primarily on federal law or [is]

interwoven with [federal] law.’”) (quoting Coleman v. Thompson, 501 U.S. 722, 740,

111 S. Ct. 2546, 2559, 115 L. Ed. 2d 640 (1991)). 

PETITIONER’S GROUNDS FOR RELIEF

Ground One Deniel of competency hearing or evaluation.

Mr. Hinson alleges the trial court erred in failing to conduct a competency

hearing or order a mental evaluation based on Mr. Hinson’s responses during a

Faretta12 hearing (doc. 1, p. 4). At the March 25, 2008 hearing, Mr. Hinson stated he

was “currently disabled for bipolar disorder and he had stopped taking his

medication, psychological without a doctor’s consent.” (Id. at 4). Mr. Hinson

contends he was incompetent to waive his right to counsel (id.).

12 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (a defendant has a Sixth

Amendment constitutional right to conduct his own defense). The trial court should make the

defendant aware of the “dangers and disadvantages of self-representation, so that the record will

establish that he knows he has “knowingly and intelligently” relinquished those benefits . Id. at 835,

95 S. Ct. at 2541. In Florida, a trial court is obligated to hold a Faretta hearing when the defendant

makes an unequivocal request for self-representation. Muehleman v. State of Florida, 3 So.3d 1149

(Fla. 2009).

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Exhaustion

Respondent contends this claim is unexhausted because Mr. Hinson could

have, but did not, raise the claim on direct appeal (doc. 32, p. 21). It further states

that to the extent Mr. Hinson raised the claim in his post-conviction motions, he

raised it “in terms of state procedural grounds, not the U.S. Constitution[,]” and

“[f]ederal habeas relief cannot be issued based on perceived errors of state law.”

(Id.). 

Mr. Hinson’s sole argument on direct appeal was that the trial judge erred in

failing to conduct an adequate Faretta hearing. His appeal squarely addressed the

claim because it alleged the failure to inquire further into Mr. Hinson’s mental

competency or order an exam rendered the Faretta hearing inadequate. He

contended that:

An inquiry under Faretta v. California, 422 U.S. 806 (1975) focuses

primarily on a defendant’s capacity to “voluntarily and intelligently”

waive his constitutional right to counsel. Indiana v. Edwards, 128 S. Ct.

2379 (2008)[.] The determination as to a defendant’s capacity to waive

this right includes an examination of a defendant’s “mental competency

and mental capacity.” Tennis v. State, 997 So.2d [(]2008)[.] In this case,

the trial judge simply glossed over the information that raised serious

questions about Mr. Hinson’s mental competency to waive his right to

a lawyer. This makes the inquiry inadequate. Petty v. State, 34 Fla. L.

Weekly 265 (Fla. 1st DCA 2009); Flowers v. State, 976 So.2d 665 (Fla. 1st

DCA 2008)[.]

The Florida Supreme Court has decided that “we recognize that

in certain instances a defendant may be precluded from exercising his

or her right to proceed pro se after the court conducts a Faretta

inquiry.” Tennis, above. This conclusion is required after Indiana v.

Edwards, above. “[T]he Constitution permits judges to take realistic

account of the particular defendant’s mental capacities by asking

whether a defendant who seeks to conduct his own defense at trial is

mentally competent to do so.”

This means an adequate Faretta inquiry must ask questions

when the defendant himself raises the question of his competency

during the hearing. . ..

Although the judge had all of this information, he never inquired

further nor did he order a competency exam. This was error in making

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an adequate determination that Mr. Hinson had the mental capacity to

waive his right to a lawyer. In addition, the judge had seen numerous

court filings by Mr. Hinson. The judge was often perplexed by what Mr.

Hinson meant in those filings and a review of most of them

demonstrate[s] they make no sense. Although a defendant does not

have to possess real legal skills to represent himself, Godinez v. Moran,

509 U.S. 389 (1993), these filings are supportive of the position that Mr.

Hinson was not competent to waive his right to an attorney. A judge

must make a thorough and searching inquiry to decide whether a

defendant has the mental capacity to waive a lawyer. Mr. Hinson’s

disclosures about his mental illness; his failure to keep taking his

medication; and the nonsensical court filings should have triggered

more questioning and fact-finding about Mr. Hinson’s capacity to

represent himself. Smith v. State, 956 So.2d 1288 (Fla. 4th DCA 2008);

Wilson v. State, 724 So.2d 144 (Fla. 1st DCA 1998); In Re Amendment to

Fla. R. Cr. P. 3.111(d)(2)-(3), 719 So.2d 873 (Fla. 1998).

(Ex. D, p. 14).

The undersigned finds that Mr. Hinson adequately raised this claim in terms

of his Sixth Amendment right to self-representation. His brief on direct appeal cited

to clearly established federal law. His reply brief relied heavily on Indiana v.

Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008), which states:

That is to say, the Constitution permits States to insist upon

representation by counsel for those competent enough to stand trial

under Dusky but who still suffer from severe mental illness to the point

where they are not competent to conduct trial proceedings by

themselves.

 554 U.S. at 178; 128 S. Ct. at 2388. Mr. Hinson’s claim is not articulate, but a review

of the record shows he is raising the same claim he raised in state court, and that

claim is a federal constitutional claim that is cognizable for federal habeas review.

He claims the trial court should have inquired into his competency because of his

disclosures; that in fact, his waiver was not “voluntary and intelligent” because he

was not mentally competent; and the trial court could not allow Mr. Hinson to waive

his Sixth Amendment right to counsel when he lacked the mental competency to

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represent himself. Thus, allowing Mr. Hinson to proceed pro se was

unconstitutional.

While Mr. Hinson’s post-conviction motions are irrelevant to this claim

because trial court error is generally not appropriate for collateral review, they lend

further support to the conclusion that Mr. Hinson intended to and did raise a federal

constitutional claim. In fact, Mr. Hinson raised this claim four more times by way of

a Rule 3.850 motion, a Rule 3.800 motion, a state habeas corpus petition, and a state

petition for writ of prohibition (see exs. U, V, DD, EE).13

State Court Decision

The First DCA per curiam affirmed the trial court’s judgment and sentence

without written opinion. Robert Lee Hinson, Jr. v. State of Florida, 14 So.3d 1007

(Table) (see ex. H, dkt. July 13, 2009).

Federal Review of State Court Decision

Respondent argues that Mr. Hinson is not entitled to relief because: 1) he

waived a mental competency evaluation in open court; 2) he stated he no longer

suffered from depression; 3) his disclosure about being treated for bipolar disorder

and discontinuing medication is insufficient to establish incompetence. (Doc. 32,

p. 22). Respondent’s arguments are not convincing.

First, the record shows Mr. Hinson filed a pre-trial “motion to be placed in

mental hospital to be evaluated” on July 2, 2008 (ex. F, p. 137). Mr. Hinson cited

Rules 3.210 and 3.214, Florida Rules of Criminal Procedure, dealing with competence

to stand trial and competence to proceed to sentencing. At the time, Mr. Hinson was

awaiting sentencing on case 402(see ex. F, dkt. # 164). On August 11, 2008, he orally

withdrew his motion (ex. F, p. 158). That he withdrew the motion in August 2008 is

not relevant to determining whether the trial court erred in finding him competent to

waive his right to counsel in March 2008, prior to trial.

13 The state court properly denied these claims for being raised incorrectly under Florida rules of

procedure.

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Second, Mr. Hinson’s response to the court’s question “You are not depressed

any now?” (ex. E, p. 91) during the Faretta hearing is not evidence that he was not

currently suffering from bipolar disorder so that he was not “competent to waive”

the right to assistance of counsel. See Godinez v. Moran, 509 U.S. 389, 401, 113 S.

Ct. 2680, 2688 (1993) (The Supreme Court has used the phrase “competence to

waive” as shorthand for “intelligent and competent waiver”.).

Third, respondent’s conclusion that Mr. Hinson’s diagnosis is insufficient to

show incompetence is irrelevant to Mr. Hinson’s claim that the trial judge erred in

failing to inquire into competency or order an evaluation. While Mr. Hinson’s claim

necessarily implies he was not competent to waive his right (because if he was

deemed competent after the proper inquiry the result of the trial would not change),

respondent’s factual conclusion cannot substitute for a conclusion about the

adequacy of the trial judge’s decision under clearly established federal law.14 The

AEDPA requires a habeas court to defer to the state court’s decision unless it is

objectively unreasonable under clearly established federal law.

14 The undersigned notes that the trial judge conducted a second bare-bones Faretta inquiry at the

June 9, 2008, status hearing:

THE COURT: Okay. All right. Let’s take care of 1631 first. It is fairly unclear

to me. Mr. Hinson on March the 25th on some other cases, I think there were three

other cases, I asked you a series of questions called a Faretta hearing and you

responded to those questions. Without me having to go through every bit of that,

which takes about 15, minutes, 20 minutes or whatever, if I asked you - - do you

remember the questions that I asked you on March the 25th?

THE DEFENDANT: Yeah, I remember.

THE COURT: Do you remember your responses?

THE DEFENDANT: Yes, sir, I remember.

THE COURT: If I asked you the same questions, would you respond in the

same way?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want to represent yourself on this new charge of

passing a lottery ticket with the intent to defraud?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Let’s take and just show that a Faretta hearing was

held and the Court is relying upon the questions and answers that were given on

March the 25th, ‘08 on his other three cases.

(Ex. E, pp. 126-27).

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The record shows that the state court’s decision affirming the adequacy of the

Faretta hearing is not objectively unreasonable. “The Sixth and Fourteenth

Amendments of [the] Constitution guarantee that a person brought to trial in any

state or federal court must be afforded the right to the assistance of counsel before

he can be validly convicted and punished by imprisonment.” Faretta v. California,

422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562 (1975). The Sixth Amendment,

however, also includes the right to self-representation. 422 U.S. at 831-32, 95 S. Ct.

at 2539. The Supreme Court has held that, “[a]lthough a defendant need not himself

have the skill and experience of a lawyer in order competently and intelligently to

choose self-representation, he should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that he knows

what he is doing and his choice is made with eyes open.” Id. at 835, 95 S. Ct. at 2541

(internal quotations and citation omitted); see also Patterson v. Illinois, 487 U.S. 285,

298, 108 S. Ct. 2389, 2398, 101 L. Ed. 2d 261 (1988). Faretta does not specify

particular procedures to ensure that a defendant’s decision is knowing and

intelligent. Nelson v. Alabama, 292 F.3d 1291, 1296-97 (2002). In fact, the Supreme

Court has implied that the trial judge’s decision should be reviewed deferentially:

The import of our decision in Pate v. Robinson [, 383 U.S. 375, 86

S. Ct. 836, 15 L. Ed. 2d 815 (1966)], is that evidence of a defendant's

irrational behavior, his demeanor at trial, and any prior medical opinion

on competence to stand trial are all relevant in determining whether

further inquiry is required, but that even one of these factors standing

alone may, in some circumstances, be sufficient. There are, of course,

no fixed or immutable signs which invariably indicate the need for

further inquiry to determine fitness to proceed; the question is often a

difficult one in which a wide range of manifestations and subtle

nuances are implicated. That they are difficult to evaluate is suggested

by the varying opinions trained psychiatrists can entertain on the same

facts.

Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103 (1975).

In this case, the judge asked Mr. Hinson if he understood exactly what

advantages he was giving up by representing himself including but not limited to

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having the benefit of an attorney’s expertise (ex. E, pp. 89-107). In addition to asking

whether he “understood”, the judge asked Mr. Hinson to explain why he did not want

an attorney:

Q. Okay. Do you understand that it’s almost always unwise

to represent yourself in court?

A. Yes, sir.

Q. Do you believe that?

A. Always unwise to represent yourself in court?

Q. Yes.

A. Yes, sir.

Q. Well, why do you want to do it then if it’s unwise?

A. Well, sometime it do you no good to get no public defender

anyway ‘cause they don’t be representing you on your behalf anyway,

you know. I mean, they work for the State, so.

Q. So you think that because they are state employed they are

not working in your best interest?

A. Yes, sir.

Q. What makes you think that?

A. Because of self experience, sir. I have done that before,

so.

(Ex. E, pp. 94-95). The record shows Mr. Hinson’s response is coherent and

reasoned.

After the judge finished explaining the consequences of self-representation

and repeatedly highlighted the severe disadvantage of self-representation, he asked

questions to determine if Mr. Hinson was “competent to make a knowing and

intelligent waiver of counsel.” (Ex. E, p. 103). The judge inquired about his age,

literacy, education, drug use, physical impairments, and mental illness. He also

inquired about the 2001 bipolar diagnosis, Mr. Hinson’s medication, and his reason

for discontinuing medication. Mr. Hinson stated he did not think the medication

helped him. (Ex. E, pp. 103-105). Based on his answers, the trial judge found his

waiver knowing and intelligent (ex. E, p. 107).

Unlike reviewing courts, the trial judge is in the unique position of observing

the petitioner firsthand. While Mr. Hinson’s prior medical diagnosis is relevant to the

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competency inquiry, it is not determinative. The trial judge’s opinion that Mr. Hinson

was capable of representing himself, taking into account all the attendant

circumstances, is reasonable. Furthermore, the judge appointed standby counsel

to answer Mr. Hinson’s questions (ex. E, pp. 106-07).

Mr. Hinson argued in his brief on appeal that the judge’s confusion and

seeming frustration with the number and content of his filings supported the

conclusion that he was not competent to waive counsel (ex. D, pp. 13-14). Mr.

Hinson filed multiple pre-trial motions. In the majority of the motions, Mr. Hinson

argued two points: 1) evidence or statements should be suppressed for substantive

reasons (e.g. because he is not guilty); and 2) the charging instrument is defective. 

(See ex. F, pp. 22-40). The trial judge asked him to clarify his motions at the June 9,

2008 hearing (ex. E, p. 131-38). As to his motions to suppress:

THE DEFENDANT: They got the wrong truck. See that’s

not, that’s not the evidence they got that it belonged to them. They’ve

got the wrong truck. That’s what I’m trying to tell you. They got the

wrong truck. They’ve got me driving an S-10 Chevrolet. I wasn’t

driving an S-10 Chevrolet.

THE COURT: You’re saying they have - - the description of

the vehicle in the police report is wrong?

THE DEFENDANT: Yeah.

THE COURT: And that’s the whole point of everything

you’re saying?

THE DEFENDANT: Uh-huh.

(Ex. E, p. 134). He also explained the purpose of his motions to dismiss:

THE COURT: He’s also filed a motion to dismiss. He claims

lack of evidence and insufficient probable cause in the indictment and

information is vague and indefinite.

What do you want to say on that, Mr. Hinson?

THE DEFENDANT: They got the evidence wrong. I mean,

like I said before, it wasn’t me. They got the trucks mixed up, got the

property mixed up and they got me charged with more than one statute

on the document of the information. They’ve got me charged with more

than one statute on the document of the information. It is not certain.

THE COURT: Sir, they’ve got you charged with grand theft.

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THE DEFENDANT: Yeah, but look how many statutes

they’ve got me charged with.

(Ex. E, p. 137). Disregarding incorrect terminology, Mr. Hinson’s motions are

comprehensible, and his oral explanations are coherent.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hinson is not entitled to

federal habeas relief on this claim, and the writ should not issue.

Ground Two Ineffective assistance of trial counsel for failing to object to a

Faretta hearing.

Mr. Hinson’s second ground for relief alleges his trial counsel was ineffective

for failing to object to or otherwise stop his Faretta hearing (doc. 1, p. 4). He states

that he informed the trial judge that he was currently disabled because he suffered

from Bipolar Disorder and he had stopped taking his medication without consulting

a medical professional (id.). He claims his counsel, Steve Bayhi, failed to object “to

have Defendant evaluated.” (Id.). He concludes he would have been found

incompetent had he been evaluated (id.). Mr. Hinson raised this as Ground Three of

his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of

Criminal Procedure (ex. U, p. 7).

Exhaustion

Respondent contends this claim is unexhausted because Mr. Hinson did not

allege any prejudice resulting from defense counsel’s inaction despite the trial

court’s order allowing him to amend the pleading. (Doc. 32, p. 22) (citing ex. U, pp.

13-14, 18-19). Respondent concludes Mr. Hinson did not fairly present the claim to

the state court and is procedurally barred from federal habeas relief (doc. 32, p. 22).

The Rule 3.850 court struck Mr. Hinson’s motion as facially insufficient for

failing to state how defense counsel’s action prejudiced him (ex. U, p. 18). The court

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allowed him a reasonable time to amend his motion (ex. U, p. 19). Mr. Hinson did not

amend his motion. Resultantly, the Rule 3.850 court denied it as facially insufficient

in its August 25, 2010, order (ex. U, pp. 13-14). The Eleventh Circuit has held that

when the state court denies a claim an insufficiently pled, it is a rejection of the claim

on the merits, not a ruling that the claim is procedurally barred. See Owen v. Sec’y

for Dep’t of Corr., 568 F.3d 894, 912-13 (11th Cir. 2009). Therefore, the Rule 3.850

order and corresponding First DCA opinion is a denial on the merits.

State Court Decision

The Rule 3.850 court struck the motion as facially insufficient because it did

not state how defense counsel’s failure to object or “stop” the Faretta inquiry to

obtain a competency hearing for Mr. Hinson prejudiced him (ex. U, p. 18). He did not

file an amended motion. The court reviewed several motions together and denied 

his claim for ineffective assistance of counsel on the same grounds, citing its earlier

order (ex. U, p. 13-14).

Federal Review of State Court Decision

Respondent alternatively contends Mr. Hinson cannot show how his counsel’s

failure to ensure he was evaluated for mental competency, “whether to represent

himself or to stand trial[,]” would have resulted in a different outcome at trial (doc.

32, p. 23). Respondent’s argument is persuasive. Even if Mr. Hinson’s counsel had

objected to the trial judge’s determination that he was competent to waive his right

to counsel and somehow obtained a mental competency evaluation, there is no

evidence that a physician would have concluded that he was incompetent. And even

if he was found incompetent to waive his right to an attorney, he still must show that

having counsel would have probably resulted in a different outcome at trial. Mr.

Hinson failed to meet the prejudice prong of the Strickland test. It is unnecessary

to evaluate the deficient performance prong. Strickland, 466 U.S. at 697, 104 S. Ct.

at 2069.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

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based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hinson is not entitled to

federal habeas relief on this claim, and the writ should not issue.

Ground Three “Denial of equal protection of the law” when the trial court failed 

to offer a plea agreement .

Mr. Hinson’s third ground for relief alleges the trial court “failed to offer him

a plea agreement [as] opposed to his co-defendants”, who he states received nonprison sentences (doc. 1, p. 5). He avers if he had received a plea agreement he

would not have gone to trial. He contends the trial court denied him equal protection

of the law (id.). Mr. Hinson raised this claim as Ground Four of his Rule 3.850 motion

for post-conviction relief (ex. U, p. 8).

Exhaustion

Mr. Hinson did not raise this claim on direct appeal (see ex. D). Instead, he

raised it for the first time in his Rule 3.850 motion for post-conviction relief (ex. U,

p. 13). The Rule 3.850 court denied the claim as procedurally barred. Citing Florida

precedent, it stated that claims that “could have been brought on direct appeal are

procedurally barred in postconviction proceedings.” (Ex. U, p. 13). However, Mr.

Hinson did not include this ground in his appeal of the denial of the motion for postconviction relief, so the claim was not presented to the state appellate court for

review. Therefore, it is not exhausted. (See ex. LL). In fact, upon review of the

record, it does not appear that Mr. Hinson raised this claim in any appeal (see, e.g., 

exs. D, GG, II, LL, MM). 

Furthermore, Mr. Hinson’s claim amounts to a sentencing challenge, which is

an issue of state law. A state's interpretation of its own laws or rules provides no

basis for federal habeas corpus relief because it does not involve a question of a

federal constitutional nature. See Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th

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Cir. 1983); Llamas–Almaguer v. Wainwright, 666 F.2d 191 (5th Cir.1982).15 The

Eleventh Circuit Court of Appeals stated that “[i]n the area of state sentencing

guidelines in particular, we consistently have held that federal courts can not review

a state's alleged failure to adhere to its own sentencing procedures.” Branan v.

Booth, 861 F.2d 1507, 1508 (11th Cir.1988). “This limitation on federal habeas review

is of equal force when a petition, which actually involves state law issues, is

‘couched in terms of equal protection and due process.’” Branan, 861 F.2d at 1508

(quoting Willeford v. Estelle, 538 F.2d 1194, 1196-98 (5th Cir.1976)). Mr. Hinson’s

claim is merely couched in terms of a federal constitutional violation. Willeford, 538

F.2d at 1198.

For these reasons, the claim is unexhausted and procedurally defaulted in the

state court.16 It is too late for Mr. Hinson to return to the state courts to cure the

default, and the claims are therefore defaulted in this court. Mr. Hinson is not

entitled to federal habeas relief, and the writ should not issue.

Ground Four Ineffective assistance of appellate counsel for failing to appeal

the trial court’s denial of motions.

Mr. Hinson’s fourth ground for relief alleges his appellate counsel was

ineffective for failing to appeal the trial court’s denial of his motion to suppress and

motion to dismiss (doc. 1, p. 5). He argues if his appellate counsel had appealed

these motions “he would have been released from custody, due to trial court lacked

jurisdiction to sustain a felony conviction. Based on a denial of due process on June

9, 2008. By misleading Defendant.” (Doc. 1, p. 5). Mr. Hinson raised this as Ground

One of his state petition for writ of habeas corpus (ex. Q, p. 3). Mr. Hinson filed a

motion to dismiss the charge in case 402 for lack of evidence, probable cause, and

15 Former Fifth Circuit decisions issued before October 1, 1981, are binding precedent on the Eleventh

Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

16 The undersigned also notes that Mr. Hinson failed to cite any case law, state or federal, to support

his claim.

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because the “indictment and information [are] so vague, indistinct, and indefinite as

to mislead the accused and embarrass him in preparation of a defense.” (Ex. F, p.

22).17 He also filed a motion to suppress evidence, including: the impound receipt

for the truck he allegedly drove; the name of the person who towed the truck; the

receipt for the scrap metal he was alleged to have stolen and sold; the name of the

person he sold it to; and the identity of an anonymous caller (ex. F, p. 26). He then

filed a “motion for suppression of exculpatory evidence” seeking to suppress the

inventory of the impounded truck because he claimed he was driving a different

truck (ex. F, p. 28). The motion requested an order “from the public records”

describing the truck and who towed it for deposition purposes (id. at 29).18

The trial judge heard arguments on the motions on June 9, 2008 (ex. E, pp.

132-40). As stated in the undersigned’s analysis of Ground One, Mr. Hinson filed the

motions to “prove” he was driving a different truck than the one described in the

information and to argue that he was charged with too many statutes (id.). The trial

judge denied the motions (ex. E, pp. 133,134,135, 137-38; ex. F, dkt. nos. 74-75, 77,

80). The judge stated that the portions of the motions requesting information would

be satisfied through the State’s discovery (see e.g., ex. E, p. 136; ex. F, dkts. nos. 78-

79).

Exhaustion

Respondent concedes that Mr. Hinson raised this issue in state court, “thus

exhausting it for federal habeas corpus purposes.” (Doc. 32, p. 23).

17 Mr. Hinson’s pleading is titled “motion to suppress the vagueness and indistinct[ness] of F[lorida]

S[tatute]/offense in question. . ..” (Ex. F, p. 36) (listing the statutory sections included in the

information).

18 Mr. Hinson’s pleading is titled “motion to suppress exculpatory evidence favorable to the accused/

and public records information” on May 8, 2008, requesting the relief (ex. F, p. 33).

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State Court Decision

The First DCA per curium denied the petition on the merits (ex. R).

Federal Review of State Court Decision

This court gives deference to the First DCA’s adjudication of Mr. Hinson’s

petition on the merits so long as its conclusion is not contradictory to clearly

established federal law. See Harrington, 131 S. Ct. at 780, 784; Wright, 278 F.3d at

1254-55. The clearly established federal law governing ineffective assistance of

appellate counsel is the same as set forth in Strickland, supra: counsel rendered

deficient performance, and the deficient performance prejudiced the petitioner. 

Appellate counsel does not perform deficiently for failing to raise every non-frivolous

ground for appeal. Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 765, 145 L.

Ed. 2d 756 (2000). Indeed, “the practice of ‘winnowing out’ weaker arguments on

appeal, so to focus on those grounds that are more likely to prevail, is the “hallmark

of effective appellate advocacy.” Hargrove v. Solomon, 227 Fed. Appx. 806, 808 (11th

Cir. 2007) (unpublished opinion) (citing Smith v. Murray, 477 U.S. 537, 536, 106 S. Ct.

2661, 2667, 91 L. Ed. 2d 434 (1986)). Furthermore, for the petitioner to be prejudiced,

he must show a reasonable probability that the outcome of the appeal would be

different, not the outcome of the trial on remand. Clark v. Crosby, 335 F.3d 1303,

1312 n.9 (11th Cir. 2003). 

While ineffective assistance of appellate counsel is a question of federal law,

federal habeas courts defer to the state court’s decision regarding state law when

the answer turns on whether counsel should have raised a state law issue. Alvord

v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (superceded by statute on other

grounds). Mr. Hinson’s motions are based on state evidentiary law. The June 9,

2008, hearing reveals he was actually seeking to prove his innocence through his

motions to suppress by showing that he was not driving the truck described in the

police report. The trial judge noted that “. . .you don’t suppress exculpatory

evidence. You try to suppress incriminating evidence.” (Ex. E, p. 134). Some of Mr.

Hinson’s other motions sought information that would be revealed through the

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discovery process (see, e.g., ex. E, p. 136). Furthermore, Mr. Hinson’s motion to

dismiss the charges because they were indefinite or uncertain was without merit. 

Mr. Hinson was charged with violating Sections 812.014(1)(a) and (b), Florida

Statutes. (Ex. F, p. 3). These sections describe the crime of theft. Sections

812.014(3)(a) and (c), also listed in the information (id.), specify the theft as petit theft

and indicate an enhanced penalty for third and subsequent theft convictions. In

response to Mr. Hinson’s motion, the trial judge directed him to look at the statutes

and stated: “Doesn’t one of them go to the penalties?” (Ex. E, p. 137). Appellate

counsel could reasonably determine raising the denial of Mr. Hinson’s motions on

appeal was not likely to be successful. Furthermore, Mr. Hinson has not shown that

the outcome of his appeal would likely have been different had his attorney raised

these issues.

The state court’s ruling did not result in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, or was

based on an unreasonable determination of the facts in light of the evidence

presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Hinson is not entitled to

federal habeas relief on this claim, and the writ should not issue.

Ground Five Trial court error for failing to hold a Richardson hearing.

Mr. Hinson’s fifth ground for relief alleges the trial court failed to conduct a

Richardson19 hearing to investigate why the State failed to call a witness, Ronnie

McGraw (doc. 1, p. 5A). He states that the prosecuting attorney knew Mr. McGraw

was a material witness because he was the neighbor and “anonymous caller” who

caused Mr. Hinson’s arrest (id.). He argues:

This witness was importantly needed to allow the Defendant to receive

a fair and impartial trial. As this was the only witness to identify

19 Richardson v. State, 246 So.2d 771 (Fla. 1971) (The State’s failure to furnish a defendant with the

name ofa witness who has relevant information to the defendant or his defense warrants reversal of

conviction on appeal if the failure resulted in harm or prejudice to the defendant.)

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defendant and call the police. Defendant needed this witness to prove

his innocence.

(Id.).

Mr. Hinson raised this issue as Ground One in his motion for post-conviction

relief, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. (Ex. U, p.

4). In the motion, Mr. Hinson elaborated that Mr. McGraw was “included” in the

State’s discovery but was not subpoenaed to testify at trial (ex. U, p. 4). He argued

that Mr. McGraw would have testified that Mr. Hinson was not driving the vehicle

detailed in the police report (id. at 5). Furthermore, he stated that he alerted the trial

judge at the June 9, 2008, hearing “that an additional witness was needed–such as

the caller.” (Id.).

Exhaustion

Respondent contends this ground is unexhausted because Mr. Hinson could

have, but did not, raise the issue on direct appeal (doc. 32, p. 25). Therefore, it was

not fairly presented to the state courts and is barred from federal habeas review (id.).

State Court Decision

The Rule 3.850 court denied Mr. Hinson’s request for relief on this ground,

stating that “[c]laims that could have been brought on direct appeal are procedurally

barred in postconviction proceedings.” (Ex. U, p. 13) (citing Willacy v. State of

Florida, 967 So.2d 131, 141 (Fla. 2007); Hodges v. State of Florida, 885 So.2d 338, 366

(Fla. 2004)).

Federal Review of State Court Decision

Neither Mr. Hinson’s federal habeas petition nor his state motion for postconviction relief alleges a violation of federal constitutional law. He asserts for the

first time in his response that he was denied “due process of the law.” (Doc. 40, p.

22). A petitioner cannot simply couch a claim in terms of a federal constitutional

violation. Willeford, 538 F.2d at 1198. Even if Mr. Hinson alleges a federal

constitutional violation, the claim is unexhausted because he did not present it to

the state court. See Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351. Assuming his state

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petition can be read to include a federal constitutional claim, the state court

expressly rejected it on independent and adequate state procedural grounds, so it

is procedurally defaulted from federal review. Coleman, 501 U.S. at 734-35 and n.1,

111 S. Ct. at 2557 and n.1.

It is well-settled Florida law that issues that were or should have been raised

on direct appeal are procedurally barred from collateral review. See Green v. State

of Florida, 975 So.2d 1090, 1105 (Fla. 2008); Miller v. State of Florida, 926 So.2d 1243,

1260 (Fla.2006) (“[A] claim that could and should have been raised on direct appeal

is procedurally barred.”) (citing Davis v. State of Florida, 928 So.2d 1089, 1120 (Fla.

2005); Duckett v. State of Florida, 918 So.2d 224, 234 (Fla. 2005); Robinson v. State

of Florida, 913 So.2d 514, 524 n. 9 (Fla. 2005)). The record shows Mr. Hinson failed

to raise this claim on direct appeal. 

Mr. Hinson’s argument in his post-conviction motion was based on Florida law

and did not present a federal claim to the state court for resolution. It is too late for

him to return to the state courts to cure the default and the claims are therefore

defaulted in this court. His bare assertion that he is actually innocent is insufficient

to excuse the default. (See doc. 40, pp. 22, 24). Mr. Hinson is not entitled to federal

habeas relief, and the writ should not issue.

Ground Six Sections 812.014(1)(a) and (b), (3)(a) and (c) are unconstitutional.

Mr. Hinson’s final ground for relief alleges the theft statute on which his

conviction rests is unconstitutional because it lacks an enacting clause (doc. 1, p.

5A). He raised this claim in a state motion to correct illegal sentence, filed pursuant

to Rule 3.800(a), Florida Rules of Criminal Procedure (ex. V, p. 1). He concludes the

trial court lacked subject matter jurisdiction because the statute “is no law at all”. 

(See ex. V, p. 3). Mr. Hinson raised the same claim via: a petition for writ of habeas

corpus directed to the Florida Supreme Court (ex. W); a petition for writ of

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prohibition directed to the Florida Supreme Court (ex. Y); and a petition for writ of

prohibition directed to the First DCA (ex. AA).20

Exhaustion

Respondent contends this ground is unexhausted because Mr. Hinson could

have, but did not, raise the issue on direct appeal (doc. 32, p. 26). Therefore, it was

not fairly presented to the state courts and is barred from federal habeas review (id.).

State Court Decision

The Rule 3.800 court denied the claim as “plainly malicious.” (Ex. V, p. 42)

(quoting McCutcheon v. State of Florida, 44 So.3d 156, 160 (Fla. 4th DCA 2010)). The

Florida Supreme Court transferred the petition to the Circuit Court of Jackson

County (ex. Z), which dismissed the petition (see case no. 2010-CA-827).

Federal Review of State Court Decision

As in Ground Five, Mr. Hinson has not claimed a violation of federal

constitutional law. The instant petition (and numerous state petitions) alleges only 

a violation based on Florida law. Therefore, this claim is not cognizable on federal

habeas review. Even assuming the ground presented a federal constitutional claim,

the Rule 3.800 court rejected the basis of the claim as meritless. This court defers

to the state court’s determination that the Florida statute is not unconstitutional. 

Accordingly, there can exist no federal constitutional violation, and Mr. Hinson’s

federal claim (assuming he raised one) is also without merit. Mr. Hinson is not

entitled to federal habeas relief on this claim, and the writ should not issue.

CONCLUSION

The undersigned has carefully reviewed the transcripts of hearings, record on

direct appeal, post-conviction motions and petitions, orders, and all submissions in

this proceeding. Mr. Hinson’s Grounds One through Six are either unexhausted and

20 Mr. Hinson voluntarily dismissed the petition with the First DCA (see ex. BB). In a separate order,

the First DCA sanctioned Mr. Hinson for repeatedly filing meritless motions (ex. CC).

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defaulted from federal review or without merit, and he is not entitled to federal

habeas relief.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” 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).” Rule 11(a), Rules Governing Section 2254 Cases. 

A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595,

1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” 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 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

challenging the conviction and sentence in State of Florida v. Robert Lee Hinson, Jr.

in the Circuit Court of Escambia County, Florida, case no. 08-0402, be DENIED and

the clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

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At Pensacola, Florida, this 25th day of October, 2011.

/s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. 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 any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

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

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