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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLES ALLEN, JR.,

Petitioner,

v. Case No. 5:09cv287/MCR/CJK

KENNETH S. TUCKER,

Respondent.

___________________________________________________________________

REPORT AND RECOMMENDATION

Before the Court is an amended petition for writ of habeas corpus filed under

28 U.S.C. § 2254. (Doc. 30). Respondent filed an answer (doc. 46), submitting

relevant portions of the state court record (docs. 14, 50). Petitioner replied. (Doc.

52). 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 the issues petitioner raises, the undersigned concludes 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. The

undersigned further concludes that the pleadings and attachments before the Court

show that petitioner is not entitled to federal habeas relief, and that the amended

petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On May 8, 2008, petitioner was charged in the Circuit Court for Bay County,

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Florida, with robbing three banks. (Doc. 14, Ex. A, Docket Sheets and Ex. A, p. 7,

Ex. B, pp. 64, 117). The robberies were charged in three separate cases – Case

Numbers 08-1168, 08-1169 and 08-1170. (Id.). On October 23, 2008, petitioner filed

a motion in all three casesseeking to suppress evidence obtained through an allegedly

illegal search of petitioner, his vehicle and immediate vicinity. (Doc. 14, Ex. A, pp.

17-25). The motion was denied after a hearing. (Doc. 14, Ex. D). Petitioner went

to trial on one of the robberies – the robbery charged in Case Number 08-1170. (Doc.

14, Exs. C, D, F). Prior to trial the State moved to have petitioner determined a

Habitual Violent Felony Offender (“HVFO”) and a Prison Releasee Reoffender

(“PRR”). (Doc. 14, Ex. B, pp. 145-46, 174-75). On October 30, 2008, a jury

convicted petitioner as charged in Case Number 08-1170. (Doc. 14, Ex. B, p. 87). 

The court determined petitioner was an HVFO and PRR, and sentenced petitioner on

October 30, 2008 to 30 years imprisonment as an HVFO, with the first 15 years to be

served as a PRR. (Doc. 14, Ex. F, pp. 169-75). Petitioner’s Case Numbers 08-1168

and 08-1169 were set for a pretrial conference on November 5, 2008. (Id.).

On November 5, 2008, petitioner executed a written Plea, Waiver and Consent

form (“Plea Agreement”) in which he pleaded no contest to the robberies in Case

Numbers 08-1168 and 08-1169. (Doc. 14, Ex. A, pp. 34-35). The Plea Agreement

provided that petitioner would be sentenced to 30 years imprisonment on each count

as an HVFO, that the first 15 years of each sentence would be served as a PRR, and

that the sentences would run concurrent with each another and with petitioner’s

existing sentence in Case Number 08-1170. (Doc. 14, Ex. A, p. 34; Ex. E, p. 357). 

The Plea Agreement further provided that petitioner waived notice and a hearing on

his sentencing as an HVFO and PRR; that no probation would follow petitioner’s

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sentences; that petitioner reserved the right to appeal the denial of his motion to

suppress, and if the appeal on that issue wassuccessful petitioner could withdraw his

no contest pleas and the State could re-file Case Number 08-1168 as an armed

robbery. (Id.). The trial court accepted petitioner’s pleas on November 5, 2008,

adjudicated petitioner guilty of the robberiesin Case Numbers 08-1168 and 08-1169,

determined petitioner to be a PRR and HVFO, and sentenced petitioner in accordance

with the Plea Agreement. (Doc. 14, Ex. A, pp. 32-33, 41-53, 56-57; Ex. B, pp. 88-89

and 109-110; Ex. E, pp. 359-65). On November 12, 2008, the trial court entered an

order that as an HVFO, petitioner was not eligible for release for 10 years. (Doc. 14,

Ex. A, pp. 56-57; Ex. B, pp. 109-110). 

Petitioner’s three cases were consolidated for purposes of direct appeal. 

Petitioner’s direct appeal raised one issue – that the trial judge erred in denying

petitioner’s motion to suppress. (Doc. 14, Ex. G). On June 25, 2009, the Florida First

District Court of Appeal (“First DCA”) per curiam affirmed without written opinion. 

Allen v. State, 11 So.3d 943 (Fla. 1st DCA 2009) (Table) (copy at Doc. 14, Ex. H).

On February1, 2010, petitioner filed a motion to correct sentence under Florida

Rule of Criminal Procedure 3.800(a). (Doc. 50, Ex. J, pp. 1-12). The motion was

denied on March 8, 2010. (Id., pp. 13-19). Petitioner appealed. (Id., pp. 20-21). The

First DCA assigned Case Number 1D10-1764, and per curiam affirmed. (Doc. 50,

Ex. K; see also Allen v. State, No. 1D10-1764, 41 So.3d 891 (Fla. 1st DCA 2010)

(Table)). The mandate issued August 31, 2010. (Id.). 

On May 6, 2010, petitioner filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850, which he later amended. (Doc. 50, Ex. L,

pp. 111-173). The motion was denied by ordersrendered September 8, 2010 and May

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4, 2011. (Doc. 50, Ex. M, pp. 177-473 and 741-904). Petitioner appealed. The First

DCA assigned Case Number 1D11-2528, and per curiam affirmed on September 7,

2011. Allen v. State, 72 So.3d 748 (Fla. 1st DCA 2011) (Table). Petitioner’s motion

for rehearing was denied on October 26, 2011. (Id.). 

On May 25, 2011, petitioner filed a second motion to correct sentence under

Florida Rule of Criminal Procedure 3.800(a), claiming that he was improperly

sentenced as both a PRR and HVFO. (Doc. 50, Ex. Q, pp. 1-13). The trial court

denied relief on June 14, 2011. (Id. pp. 14-30). Petitioner appealed. (Id., p. 31). The

First DCA assigned Case Number 1D11-3683. (Doc. 50, Ex. R). The First DCA per

curiam affirmed on November 9, 2011. Allen v. State, 77 So.3d 183 (Fla. 1st DCA 

2011) (Table). Petitioner’s motion for rehearing was denied on January 10, 2012. 

(Id.). 

Petitioner filed his original federal habeas petition in this Court on August 14,

2009. (Doc. 1). Petitioner’s amended petition, filed on October 19, 2011, raises

fourteen grounds for relief: (1) trial counsel was ineffective for failing to subpoena

Mark Davey to testify at the suppression hearing; (2) trial counsel wasineffective for

failing to subpoena Ms. Caleia to testify at the suppression hearing; (3) trial counsel

was ineffective for failing to subpoena Paul Johannis to testify at the suppression

hearing; (4) trial counsel was ineffective for failing to subpoena D’Wayne Johnson

to testify at the suppression hearing; (5) trial counsel was ineffective for failing to

subpoena Kevin Cheek to testify at the suppression hearing; (6) trial counsel was

ineffective for failing to move to suppress the photo lineup as impermissibly

suggestive; (7) trial counsel was ineffective for failing to object to the trial court’s

decision not to answer particular jury questions; (8) trial counsel was ineffective for

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failing to strike Juror James Burke on the grounds that Burke was aware of

petitioner’s criminal history and tainted the jury with that information; (9) trial

counsel wasineffective for failing to object to the racial composition of the jury; (10)

the cumulative effect of trial counsel’s errors identified in Grounds 1-9 deprived

petitioner of his Sixth Amendment right to counsel and Fourteenth Amendment right

to due process; (11) petitioner was subjected to an illegal search and seizure, and the

trial court improperly denied his motion to suppress; (12) mistaken identity and

perjury; (13) witness perjury where the State gave Michael Allen $300 to identify

petitioner and testify that he was petitioner’s brother; and (14) C.S.I Vickers planted

false evidence (money bands) on petitioner’s personalmoney. (Doc. 30, continuation

pages 1-17). 

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. 

Section 2254(d) provides, in relevant part:

(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.

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28 U.S.C. § 2254(d) (2011).

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). The 1

appropriate test was described by Justice O’Connor as follows:

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

fromthisCourt’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). 

Employing the Williams framework, on any issue raised in a federal habeas

petition upon which there has been an adjudication on the merits in a state court

proceeding, the federal court must 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” only when a Supreme Court holding at the time of the state court

decision embodies the legal principle at issue. Thaler v. Haynes, — U.S. —, 130 S.

Ct. 1171, 1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 1

Stevens for the Court (joined byJustices 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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F.3d 1313, 1315 (11th Cir. 2010).

After identifying the governing legal principle(s), the federal court determines

whether the state court adjudication is contrary to the clearly established Supreme

Court case law. The adjudication is not contrary to Supreme Court precedent merely

because it fails to cite to that precedent. Rather, the adjudication is “contrary” only

if either the reasoning or the result contradicts the relevant Supreme Court cases.

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (“Avoiding

th[e] pitfalls [of § 2254(d)(1)] 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.”). 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. See Panetti v.

Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

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

federal habeas court next determines whether the state court “unreasonably applied”

the governing legal principles set forth in the Supreme Court’s cases. The federal

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

legal principle(s) was “objectively unreasonable” in light of the record before the

state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,

124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S.

685, 697 n. 4, 122 S. Ct. 1843, 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

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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). 

A state court, however, 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 v. Mirzayance, 556 U.S. 111, 122, 129

S. Ct. 1411, 173 L. Ed. 2d 251 (2009). 

When faced with a state appellate court’s summary affirmance of a trial court’s

decision,the “unreasonable application” standard focuses on the state court’s ultimate

conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011) (citing Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786,

178 L. Ed. 2d 624 (2011)). The federal 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 Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that 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). In sum, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” 

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Richter, 131 S. Ct. at 786-87.

Section 2254(d) also allows federal habeasrelief 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 federal court applies an objective test. Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state

court decision based on a factual determination “will not be overturned on factual

grounds unless objectively unreasonable in light ofthe evidence presented in the state

court proceeding.”). The “unreasonable determination of the facts” standard is

implicated only to the extent the validity of the state court’s ultimate conclusion is

premised on unreasonable fact finding. See Gill, 633 F.3d at 1292. 

When performing review under § 2254(d), the federal court presumes that all

factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). 

The petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; 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”). Neither the Supreme Court nor the

Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the

context of fact-based challenges to state court adjudications. Cave v. Sec’y for Dep’t

of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently 

declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate

court’s summary affirmance, where it found that the validity of the state court

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decision was not premised on the trial court’s unreasonable fact finding, and that the

petitioner failed to demonstrate “by clear and convincing evidence that the record

reflect[ed] an insufficient factual basis for affirming the state court’s decision.” Gill,

633 F.3d at 1292.

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, 551 U.S. 930, 954, 127 S. Ct. 2842. 

Even then, 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). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

Within this framework, the Court will review petitioner’s claims.

BACKGROUND OF PETITIONER’S MOTION TO SUPPRESS

Six of petitioner’s claims involve petitioner’s motion to suppress physical

evidence seized upon execution of a search warrant on April 9, 2008. (See Doc. 30,

Grounds 1-5 and 11). The following facts are drawn from the record. 

Petitioner’s motion to suppress challenged a warrant authorizing the search of

a house located at 909 Kraft Avenue, and a red car situated directly in front of the

house. (Doc. 14, Ex. A, pp. 17-25). The warrant application/affidavit was prepared

by D’Wayne Johnson, an investigator with the Bay County Sheriff’s Office.

Johnson’s affidavit stated, in relevant part:

(1) On March 18, 2008, Regions Bank located on Tyndall Parkway was robbed

by a black male with a dark colored mustache and beard wearing dark clothing and

a dark colored toboggan; 

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(2) On April 2, 2008, Bay Bank located on Panama City Beach Parkway was

robbed by a black male with a dark colored mustache and beard wearing dark clothing

and a dark colored toboggan. Crime scene investigators located a footwear

impression left by the black male and identified the impression as being made by a

Nike Air Force One athletic shoe; 

(3) On April 8, 2008, Prosperity Bank located on Tyndall Parkway wasrobbed

by a black male with a dark colored mustache and beard wearing dark clothing and

a dark colored toboggan; 

(4) Based on bank surveillance videos and photographs, law investigators

believed the same black male robbed all three banks; 

(5) Law enforcement distributed still photographs of the robber (produced from

the bank surveillance videos) to the media and other law enforcement;

(6) On April 8, 2008, Michael Allen called the Bay County Sheriff’s Office and

stated that he saw a photograph of the offender and believed it was his brother

Charles Allen. Sheriff’s Office investigators traveled to Apalachicola, Florida, met

with Michael Allen and showed Allen surveillance photos from the Prosperity Bank

robbery. Michael Allen stated that the individual in the photo was “definitely” his

brother Charles. Michael Allen provided a sworn statement to that effect; 

(7) Law enforcement’s research revealed that Charles Allen Jr. was released

from the Department of Corrections in 2007 for bank robbery; that Charles Allen’s

address was a Georgia address; and that Charles Allen had relatives in Panama City,

and Apalachicola, Florida;

(8) Witnesses outside of Prosperity Bank identified a possible suspect vehicle,

which was described as a red Chevy passenger car, possibly a Chevy Cavalier or a

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Chevy Corsica, with white along the front of the vehicle. The vehicle was operated

by a black male, possibly having dreadlocks;

(9) On April 8 , 2008, a Sheriff’s Office investigator located what was possibly

the suspect vehicle at 909 Kraft Avenue. The vehicle was a red Chevy Cavalier, 2

door, with a white piece bearing a Chevy emblem on the front. The vehicle bore a

Georgia temporary tag. A computer search of the Vehicle Identification Number

revealed that the vehicle registration was cancelled by Reginald Parker. Footwear

impressions were located at the vehicle. The footwear impressions led to the house

at 909 Kraft Avenue. The footwear impressions were consistent with the Nike Air

Force One footwear impression from the Bay Bank robbery;

(10) An unidentified neighbor near 909 Kraft Avenue stated thatshe observed

two individuals working on the red vehicle – one had dreadlocks and the other had

a mustache and beard;

(11) Charles Allen Jr.’s probation officer stated that Charles Allen had listed,

with probation and parole, 909 Kraft Avenue as his residence of record; and

(12) Charles Allen Jr., was currently on probation and listed 909 Kraft Avenue

as his address.

(Doc. 14, Ex. A, pp. 23-24). Based on the foregoing facts, Investigator Johnson

stated that he believed Charles Allen Jr. resided at 909 Kraft Avenue, and that

evidence in the robberies would be located in the residence at 909 Kraft Avenue or

any vehicle located on that property. (Id., p. 24). The search warrant was issued on

April 9, 2008, and executed the same day. Police seized physical evidence from the

car, from petitioner’s person, and from a bag petitioner dropped in the carport

attached to 909 Kraft Avenue. (Id., p. 19). No evidence was seized from the

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residence. (Doc. 14, Ex. D, p. 352).

The defense argued that the search warrant was unconstitutional, because it was

based on a flawed affidavit which did not establish probable cause to search the red

car. The alleged flaws in Investigator Johnson’s affidavit were: (1) the affidavit

stated that “Charles Allen Jr.’s probation officer stated that Charles Allen listed, with

probation and parole, 909 Kraft Avenue as his residence of record” (id., p. 24), but

petitioner’s federal probation officer denied ever identifying 909 Kraft Avenue as

petitioner’s address; (2) the affidavit stated that “Charles Allen Jr. is currently on

probation and has listed 909 Kraft Avenue as his current address” (id.), but

petitioner’s federal probation officer stated that the address petitioner listed with

probation was an apartment on Transmitter Road; and (3) the affidavit stated that

“witnesses” believed they saw a red Chevy car with white on the front leave the scene

of the robbery (id.), but there was only one witness – Mr. Cheek – and when police

took Mr. Cheek to 909 Kraft Avenue to examine and identify the red car, Mr. Cheek

said the car was not the one he saw leaving the bank. Investigator Johnson’s warrant

affidavit said nothing about Mr. Cheek’s examination of the car at 909 Kraft Avenue. 

Defense counsel argued that disregarding the flawed information, the remaining

information in the affidavit was insufficient to establish probable cause to search the

residence or the red car. Counsel further argued that had the omitted information

been included (Mr. Cheek’s statement that the red car at Kraft Avenue was not the

one he saw leaving the bank) the judge would have found there was not probable

cause to issue the warrant. (Doc. 14, Ex. D, pp. 339-40)

The trial court held a suppression hearing on October 27, 2008. (Doc. 14, Ex.

D). Two witnesses testified: Captain Jimmy Stanford with the Bay County Sheriff’s

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Office (“BCSO) and BCSO Deputy Chad King. 

Captain Stanford testified to the following facts. Stanford was involved in

investigating the robbery of Prosperity Bank on April 8, 2008. (Doc. 14, Ex. D, p.

306). The bank provided Stanford with surveillance videos of the robbery. (Id.). 

Still photographs of the robber were produced from the surveillance videos. (Id.). 

Stanford distributed the still photographs to law enforcement and the media. (Id.). 

Petitioner’s brother, Michael Allen, called the BCSO and told them that he

recognized his brother as the bank robber in the photo. (Id., pp. 306-07). Michael

Allen’s telephone call prompted law enforcement to do a background investigation

of petitioner, which included contacting the FBI agent for the area, Matt Melia. (Id.,

p. 307). At approximately 8:40 p.m. on the night of April 8, 2008, Mr. Melia sent emails to Stanford which included an updated picture of petitioner and information

regarding some of petitioner’s familymembers. (Id., p. 308). One of the listed family

members was Brandy Austin, petitioner’s granddaughter. (Id., pp. 308-09). Law

enforcement searched its reporting system in the Sheriff’s Office and found a

November 28, 2007 incident report listing Brandy Austin’s home address as 909

Kraft Avenue. (Id., p. 309).

Law enforcement had been looking at the Kraft Avenue address earlier in the

day because of a vehicle that was seen in the driveway. (Id., p. 309). A witness (Mr.

Cheek) who was outside the bank at the time of the robbery said that he saw a

suspicious black male run from the bank, get into a vehicle (a red Citation, later

corrected to be a Cavalier) and speed away from the area. Law enforcement believed

the red car to be the getaway car. A BOLO was issued for the vehicle matching Mr.

Cheek’s description (a red car with some white on the front bumper). At

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approximately 1:30 or 2:00 p.m., a deputy found a vehicle matching that description

parked at 909 Kraft Avenue. (Id., p. 310). At approximately 2:30 or 3:00 p.m, law

enforcement took Mr. Cheek to the Kraft Avenue address to see if he could identify

the car. Mr. Cheek said he did not think it was the car. (Id., p. 311). Law

enforcement backed off of the 909 Kraft Avenue address. (Id., p. 312). Law

enforcement’s receipt of Mr. Melia’s e-mailslater that day indicating that petitioner’s

granddaughter lived at 909 Kraft Avenue rekindled law enforcement’s interest in that

address. Law enforcement officers were sent back to 909 Kraft Avenue while other

officers applied for a search warrant. (Id., p. 313). 

Stanford testified that the Prosperity Bank robbery was the third robbery law

enforcement attributed to the same person. (Id., p. 307). Shoe tracks leading from

the red car at 909 Kraft Avenue were consistent with shoe prints seen at one of the

previous robberies connected to the Prosperity Bank robbery. (Id., p. 314).

Stanford did not prepare the search warrant application. The application was

prepared by Investigator D’Wayne Johnson. (Id., p. 315). Johnson’s statement that

Kraft Avenue was the address petitioner listed with his federal probation officer was

based on information received from Nicki Vickers, a crime scene technician, who

received the information from Chad King, who received the information from “P.J.”

with the United States Marshals Service, who had spoken to someone at parole and

probation. (Id., p. 316). 

Stanford testified on cross-examination thatJohnson’s affidavit did not include

the information about petitioner’s granddaughter living at 909 Kraft Avenue, because

the information from the federal parole and probation office provided more

substantial evidence. (Id., p. 319). Stanford was unaware that Johnson’s affidavit

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omitted the fact that Mr. Cheek denied the red car at 909 Kraft Avenue was the

suspect vehicle. The State Attorney’s Office had instructed law enforcement to

include that fact. (Id., pp. 315, 317-18). 

Deputy Chad King testified that he was part of the unit that was sent to watch

the 909 Kraft Avenue address. (Doc. 14, Ex. D, p. 322). While King was watching

the address, he called his contact at the United States Marshals Service, Paul

Johannis, because King had heard petitioner was on federal probation. (Id.). Deputy

King asked Johannis if Johannis could find any information about petitioner. Mr.

Johannis called King back after talking to someone in the probation department and

reported that petitioner’s listed address with probation was 909 Kraft Avenue. (Id.,

p. 323). King passed that information on to Nicki Vickers, his contact point with

“CID.” (Id., p. 324).

The partiesstipulated to the admission of two e-mailsfrom petitioner’s federal

probation officer Mark Davey. Mr. Davey’s e-mails were admitted in lieu of Mr.

Davey’s live testimony. (Doc. 14, Ex. D, pp. 304-05). Mr. Davey’s first e-mail,

dated October 21, 2008, states in relevant part:

I have looked through my file but see no mention of any other

address in P.C. [Panama City] besides the Transmitter Rd residence with

[Charles Allen’s] niece, Brandi Austin. On the evening of April 8, 2008,

I received a call from USPO Francine Ware who told me a guy named

P.J. with the S.O. wanted to talk to me about the subject’s whereabouts. 

From my home, I called P.J. at about 11:30 pm, but didn’t have the

offender’s file or info with me. Told him that Allen resided with Brandi

Austin in P.C., but I couldn’t recall the address without looking at the

file the next morning. Told him subject had been in Atlanta but was

denied transfer there. Told him the subject was given the option to

move to P.C. with relatives or West Palm Beach. When I told P.J. about

subject’s residence with his niece, it sounded like he may have been

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familiar with it. I have no info at all as to the Kraft Avenue address,

where Allen was arrested. The morning after subject’s arrest, I called

for Investigator Vickers of the S.O. who had left a message on my

voicemail at the office. I was going to give him the Transmitter Rd.

address that I listed, but was advised by him that the subject was already

in custody. I then spoke to Matt Melia with the FBI for the first and

only time on 4/11/08 and faxed him prior record documents.

As to his most recent conviction/release, Allen was sentenced on

7/18/91 to 230 months Prison followed by 3 years supervised released

[sic] based upon his conviction for the offense of Bank Robbery, in

Southern District of Florida case 90-8063-CR-ROETTGER. Allen was

released from prison to begin his term of supervised release on 5/18/07

to the Northern District of Florida. . . .

(Doc. 30, Ex. D, p. 1). Mr. Davey’s second e-mail, dated October 23, 2008, states:

On 4/9/08, I was contacted late in the evening at my home by

USPO Francine Ware advising that a US Marshal, who goes by P.J.,

wanted to talk to me about Charles Allen’s possible involvement in local

bank robberies. I called P.J. and advised him that Allen did, in fact,

reside in Panama City with his niece Brandi. I could not recall the

address or Brandi’s last name, but told P.J. that Allen had been given

permission to reside with Brandi previously by me. I told P.J. that I

would call him first thing in the morning when I had benefit of the file

to give him the exact address.

In our conversation, I also told P.J. about Allen’s relatives in

Apalachicola and that Allen had recently resided with Brandi in

Apalachicola before moving to Atlanta.

(Id., p. 2).

The trial court denied petitioner’s motion to suppress. (Doc. 14, Ex. D, pp.

348-51). The trial court found that the Sheriff’s Department acted in good faith and 

did not act in bad faith to intentionally mislead the judge who signed the warrant. 

(Id., p. ) The trial court noted that the information about petitioner’s residence would

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have been discovered inevitably. The trial court further found that disregarding the

flawed information about petitioner’s residence, and considering the information

about Mr. Cheek denying the identity of the red car at Kraft Avenue, there was

sufficient evidence tying petitioner to the car: the description of the car (which was

distinctive – a red Chevy with white on the front), the Georgia tag, the footprints and

the description of petitioner’s hair at the time of the robbery. (Id., pp. 348-51).

DISCUSSION

Ground 1 Trial counsel was ineffective for failing to subpoena Mark Davey to

testify at the suppression hearing

Petitioner faults trial counsel for failing to call Mark Davey to testify at the

suppression hearing. Petitioner asserts that Mr. Davey would have testified that

petitioner did not live at 909 Kraft Avenue, that petitioner’s address was 499

Transmitter Rd., and that at no time did Davey tell anyone that petitioner lived at 909

Kraft Avenue. (Doc. 30, continuation page 1). Petitioner argues that as a result of

defense counsel not calling Mr. Davey, the State’s assertion that Mr. Davey told

Marshal Paul Johannis that petitioner lived at 909 Kraft Avenue went “unrebutted”

at the suppression hearing. (Id.). Petitioner argues that had Mr. Davey testified at the

suppression hearing, the motion to suppress would have been granted. (Id.). The

parties agree that petitioner exhausted this claim by raising it in his Rule 3.850

proceeding. (Doc. 46, p. 19).

A. Clearly Established Federal Law

The Sixth Amendment guarantees a criminal defendant the right to the effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct.

1441, 1449 n. 14, 25 L. Ed. 2d 763 (1970) (recognizing that “the right to counsel is

the right to the effective assistance of counsel.”); Strickland v. Washington, 466 U.S.

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668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). Ineffective assistance

claims are governed by the United States Supreme Court’s opinion in Strickland v.

Washington, supra. Strickland held that a successful claim of ineffective assistance

requires a defendant to show both deficient performance by counsel and prejudice

resulting from that deficiency Id. at 687, 104 S. Ct. 2052. 

“The purpose ofineffectiveness review is not to grade counsel’s performance.” 

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

Reviewing courts must indulge a strong presumption that counsel’s conduct fell

within the wide range of reasonable, professional assistance. Chandler at 1314. 

Courts must make “every 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 at 1314 (explaining that the Strickland standard compels courts to “avoid

second-guessing counsel’s performance”). 

Strickland’s prejudice prong requires a petitioner to allege more than simply

that counsel’s conduct might have had “some conceivable effect on the outcome of

the proceeding.” Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. The petitioner must

show a reasonable probability existsthat, “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id., at 694, 104 S. Ct. at 2068. 

Bare allegations that the petitioner was prejudiced by counsel’s performance are not

sufficient. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The petitioner

must support his allegations of prejudice with evidence. 

B. Federal Review of State Court Decision 

The Rule 3.850 court denied relief on this claim after identifying Strickland as

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the controlling legal standard. (Doc. 50, Ex. M, p. 177). The court ruled:

[T]he record reflects that the Court was aware of this information when

it ruled on the motion to suppress. Trial counsel introduced e-mailsinto

evidence form Mr. Davey containing substantially the same information

that Defendant alleges Mr. Davey could have testified to. Moreover, the

State conceded to these facts. Accordingly, Defendant was not

prejudiced by the fact that Mr. Davey did not testify and counsel was not

ineffective for not subpoenaing him.

(Doc. 50, Ex. M, p. 178) (citations to record omitted). The state appellate court

summarily affirmed.

As the Rule 3.850 court found, the record establishes that defense counsel

presented, and the state trial court considered, the same facts to which petitioner says

Mr. Davey would have testified had Davey been subpoenaed. Counsel simply

presented Davey’s statements in a different form. Petitioner has not shown that

presenting Davey’s testimony in paper form (through Davey’s e-mails) versus live

was objectively unreasonable, orthat there is a reasonable probability the result ofthe

suppression hearing would have been different had Mr. Davey testified live. The

state court’s rejection of petitioner’s ineffective assistance claim was not contrary to

Strickland, did not involve an unreasonable application of Strickland, and was not

based on an unreasonable determination of the facts. 

Ground 2 Trial counsel was ineffective for failing to subpoena Ms. Caleia, the

owner of the house at 909 Kraft Avenue, to testify at the suppression

hearing

Petitioner faults trial counsel for failing to call Ms. Caleia to testify at the

suppression hearing. Petitioner asserts that Ms. Caleia would have testified that

petitioner never lived at 909 Kraft Avenue and that petitioner was only there visiting. 

(Doc. 30, continuation page 2). Petitioner argues that Ms. Caleia’s testimony would

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have proved that petitioner did not live at 909 Kraft Avenue. (Id.). Petitioner argues

that had Ms. Caleia testified, the motion to suppress would have been granted. (Id.). 

The parties agree that petitioner exhausted this claim by raising it in his Rule 3.850

proceeding. (Doc. 46, p. 19).

A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief, explaining: “As noted in response to

Ground One, the Court was aware of this information at the time it ruled on the

Motion to Suppress. There is no reasonable probability that ‘Ms. Caleia’s’ testimony

concerning information that the Court was already aware of would have changed the

outcome of the suppression hearing. Thus, counsel was not ineffective for failing to

subpoena ‘Ms. Caleia.’” (Doc. 50, Ex. M, p. 178). The state appellate court

summarily affirmed.

The search warrant affidavit identified petitioner’s address as 909 Kraft

Avenue and identified the source of that information as petitioner’s federal probation

officer. Defense counsel presented evidence at the suppression hearing that

petitioner’s federal probation officer never identified 909 Kraft Avenue as

petitioner’s address, and that petitioner’s actual address was 499 Transmitter Rd.

Any additional testimony from Ms. Caleia that petitioner did not live at 909 Kraft

Avenue would have been cumulative. Defense counsel was not ineffective for failing

to present evidence that was merely cumulative. See Williams v. Allen, 458 F.3d

1233, 1245 (11th Cir. 2006) (holding that habeas petitioner could not demonstrate

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that the state courts’ determination that he failed to prove prejudice under Strickland

was objectively unreasonable, where petitioner’s proposed new evidence was merely

cumulative and elaborated on other evidence that counsel presented); Van Poyck v.

Fla. Dep’t of Corr., 290 F.3d 1318, 1324 n. 7 (11th Cir. 2002) (noting that, “[a]

petitioner cannot establish ineffective assistance by identifying additional evidence

that could have been presented when that evidence is merely cumulative.”); Glock v.

Moore, 195 F.3d 625, 636 (11th Cir. 1999) (holding that habeas petitioner failed to

show prejudice under Strickland, “where much of the new evidence that [petitioner]

presents is merely repetitive and cumulative to that which was presented . . .”). 

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts. 

Ground 3 Trial counsel was ineffective for failing to subpoena Paul Johannis to

testify at the suppression hearing

Petitioner faults trial counsel for failing to subpoena DeputyU.S. Marshal Paul

Johannisto testify at the suppression hearing. Petitioner assertsthat Deputy Johannis

would have testified that “the address 909 Kraft Ave was a mistake he made.” (Doc.

30, continuation page 3). Petitioner argues that Deputy Johannis’ testimony would

have proved petitioner never lived at 909 Kraft Avenue. (Id.). The parties agree that

petitioner exhausted this claim by raising it in his Rule 3.850 proceeding. (Doc. 46,

p. 19).

A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

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The Rule 3.850 court denied relief, explaining: “As stated previously, the

Court was already aware of this information and there is no reasonable probability

that U.S. Marshal Johansson’s testimony would have changed the outcome of the

suppression hearing.” (Doc. 50, Ex. M, p. 178) (citations to record omitted). The

state appellate court summarily affirmed.

This ground for relief should be denied for the same reason as Ground 2 was

denied. The testimony petitioner’s proposes – that Johannis “made a mistake” when

he reported that Davey said petitioner resided at 909 Kraft Avenue – would have

been cumulative, because Mr. Davey’s e-mails already established thatfact. The state

court’s rejection of petitioner’s ineffective assistance claim was not contrary to

Strickland, did not involve an unreasonable application of Strickland, and was not

based on an unreasonable determination of the facts.

Ground 4 Trial counsel was ineffective for failing to subpoena Mr. D’Wayne

Johnson to testify at the suppression hearing

Petitioner faults trial counsel for failing to subpoena Bay County Sheriff’s

Office Investigator D’Wayne Johnson to testify at the suppression hearing. 

InvestigatorJohnson wasthe author ofthe search warrant affidavit. Petitioner asserts

InvestigatorJohnson would have testified to the following: (1) thatJohnson “got the

false information from Mr. Paul Johannis, U.S. Marshall [sic] to where petitioner

lived”; (2) that “Mr. Davey ‘never’ gave Mr. Johannis 909 Kraft ave. address”; (3)

that “Mr. Davey gave Mr. Johannis 499 Transmitter Rd. apt. address”; (4) that there

was only one witness (Mr. Cheek) who saw the car leaving the bank, that Mr. Cheek

was taken to 909 Kraft Avenue to identify the red car, and Mr. Cheek said the car at

909 Kraft Avenue was not the one he saw leaving the bank; (5) that State Attorney

Bill Lewis told Investigator Johnson to include the information about Cheek’s

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affirmative denial of the car’s identity; (6) that Johnson knowingly and intentionally

omitted the information about Cheek’s denial; and (7) thatJohnson falsely stated that

there was more than one witness to the suspect vehicle, when Johnson knew there

was only one witness Mr. Cheek. (Doc. 30, continuation pages 4-5). Petitioner

argues that had Investigator Johnson testified, the trial court would have granted the

motion to suppress. (Id.). The parties agree that petitioner exhausted this claim by

raising it in his Rule 3.850 proceeding. (Doc. 46, p. 19).

A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief, finding: “This too is information that was

placed on the record at the suppression hearing and this testimony would not have

changed the outcome of the suppression hearing.” (Doc. 50, Ex. M, p. 178). The

state appellate court summarily affirmed. 

That aspect of D’Wayne Johnson’s proposed testimony concerning where he

got the information about petitioner’s address, and what Mr. Davey told Deputy

Johannis, is cumulative to Mr. Davey’s e-mails, Captain Stanford’s testimony and

Deputy King’s testimony. (See Doc. 14, Ex. D, pp. 316, 319, 322-24, 328). That

aspect of Johnson’s proposed testimony concerning Mr. Cheek’s description of the

suspect vehicle, Mr. Cheek’s denial of the vehicle’s identity at 909 Kraft Avenue, and

the State Attorney’s advice to include Cheek’s denial in the warrant affidavit, is

cumulative to Captain Stanford’s testimony. (Doc. 14, Ex. D, pp. 310-11). As with

Grounds 2 and 3 above, the state court reasonably concluded that defense counsel was

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not ineffective for failing to present additional evidence (in this case, Johnson’s

testimony) that was merely repetitive and cumulative to that which was presented. 

The state court’s rejection of petitioner’s ineffective assistance claimwas not contrary

to Strickland, did not involve an unreasonable application of Strickland, and was not

based on an unreasonable determination of the facts.

Ground 5 Trial counsel was ineffective for failing to subpoena Kevin Cheek to

testify at the suppression hearing

Petitioner faults trial counsel for failing to call Kevin Cheek to testify at the

suppression hearing. Petitioner asserts that Mr. Cheek would have testified that he

was the eyewitness who saw the car leave the bank; that the car he saw at 909 Kraft

Avenue was not the car he saw leaving the bank; and that he wasthe only witnesslaw

enforcement brought to 909 Kraft Avenue to identify the car. (Doc. 30, continuation

page 5). Petitioner argues that had the trial court heard Cheek’s testimony, the court

would have found that law enforcement did not have probable cause or a good faith

basis to detain petitioner or search the car parked outside of 909 Kraft Avenue. (Id.,

p. 6). The parties agree that petitioner exhausted this claim by raising it in his Rule

3.850 proceeding. (Doc. 46, p. 19).

A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief, explaining: “This is the same information

Defendant claims he was prejudiced by the exclusion of in Ground Four. This is also

the same information that was placed on the record at the suppression hearing. Thus,

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Defendant was not prejudiced by counsel’s failure to subpoena Mr. Cheeks.” (Doc.

50, Ex. M, p. 179) (citations to record omitted). The state appellate court summarily

affirmed. 

Mr. Cheek’s proposed testimonywas entirely cumulative to Captain Stanford’s

testimony. Petitioner failsto show deficient performance or prejudice fromcounsel’s

failure to present cumulative evidence. See discussion supra Grounds 2-4. The state

court’s rejection of petitioner’s ineffective assistance claim was not contrary to

Strickland, did not involve an unreasonable application of Strickland, and was not

based on an unreasonable determination of the facts.

Ground 6 Trial counsel was ineffective for failing to move to suppress the photo

lineup as impermissibly suggestive

Petitioner assertsthat prior to trial, Prosperity Bank employee Heather Brewer 

identified petitioner as the bank robber from a police photo lineup that was

impermissibly suggestive. Petitioner asserts that the lineup was impermissibly

suggestive, because Brewer had given a description of the bank robber as a black

male with dreadlocks and a black beard, and the photo lineup presented to Ms.

Brewer consisted of six black males with only one of them (petitioner) having

dreadlocks and a black beard. Petitioner faults trial counsel for failing to move to

suppress Ms. Brewer’s out-of-court identification. (Doc. 30, continuation pages 6-7).

The parties agree that petitioner exhausted this claim by raising it in his Rule 3.850

proceeding. (Doc. 46, p. 19).

A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

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The Rule 3.850 court identified Strickland as the controlling legal standard

(doc. 50, ex. O, p. 741-42), and denied relief after concluding that a motion to

suppress the photo lineup as impermissibly suggestive “would have been without

merit,” and petitioner failed to show any prejudice from admission of the

identification. (Doc. 50, Ex. O, p. 743). The state court’s determination was

supported by detailed findings:

While the Defendant alleges that Ms. Brewer vaguely described

the suspect as a “black male with dread locks and a black beard,” and

the Defendant was the only suspect in the photo lineup with all these

characteristics, the record reflects that Ms. Brewer made no mention of

the suspect’s hairstyle. Ms. Brewer only described the suspect as an

individual wearing dark clothing, with a black toboggan on his head and

a beard that was “very, very black” and looked almost fake. (08-1170-H

Tr. at 28, 32.) In her August 12, 2008 [deposition] Ms. Brewer gave

essentially the same description with no mention of the suspect’s hair

style. (Brewer Dep. at 4.) The investigator who prepared the

photographic lineup also testified on cross-examination that according

to his information, the robber had a beard. (Tr. at 93.) In Investigator

Larson’s [sic] affidavit in support of the search warrant for 909 Kraft

Avenue, he noted that based on the Prosperity Bank surveillance video,

a black male in dark colored clothing, with a dark colored mustache and

beard robbed the bank. (Def.’s Mot. to suppress, Ex. C.) Inv. Larson

[sic] also noted that witnesses outside the bank stated that the possible

suspect vehicle was “operated by a black male, possibly having dread

locks.” Id. Later, an unidentified neighborstated that she observed two

individuals working on the suspect vehicle;she described one as having

dread locks and the other as having a mustache and a beard. Id. While

it does appear that in the aggregate, the police’s information wasthat the

suspect [was] a black male with dreadlocks and a beard, the only

information gleaned from Ms. Brewer was that the suspect had a very

dark beard. At least three of the individuals in the photo lineup that was

shown to Ms. Brewer had beards.

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Even if the court were to agree that the lineup was impermissibly

suggestive, given the entire description the police had, the second prong

of the test has not been met. Ms. Brewer’s trial testimony revealed that

she had ample opportunity to view the Defendant at the time of the

crime, that she was paying attention, that she was immediately certain

when she picked the Defendant’s picture out ofthe photographic lineup,

and that only 6 days passed between the robbery and her identification. 

(See 08-1170-H Tr. at 25-42.) Accordingly, it cannot be said that, in

light of all of the circumstances, there was a substantial likelihood of

irreparable misidentification. See State v. Billue, 497 So.2d 712 (Fla.

4th DCA 1986). Thus, any motion to suppress filed by trial counsel on

this basis would have been without merit. Counsel cannot be deemed

ineffective for failing to raise meritless claims or claims that had no

reasonable probability of affecting the outcome of the proceeding. 

Teffeteller v. Dugger, 734 So.2d 1009, 1023 (Fla. 1999).

(Doc. 50, Ex. O, pp. 742-43). The state court went on to discuss that petitioner failed

to show any prejudice from the admission of Brewer’s out-of-court identification. 

(Id., p. 743). The state appellate court summarily affirmed. 

Florida law and Federal law provide the same test for evaluating challenges to

out-of-court identifications on the grounds of an impermissibly suggestive

confrontation procedure. “[T]he appropriate test istwofold: (1) did the police employ

an unnecessarily suggestive procedure in obtaining an out-of-court identification; (2)

if so, considering all the circumstances, did the suggestive procedure give rise to a

substantial likelihood of irreparable misidentification.” Grant v. State, 390 So.2d

341, 343 (Fla. 1980) (citing Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243,

53 L. Ed. 2d 140 (1977)). The factors to consider in evaluating the likelihood of

misidentification include

the opportunity of the witness to view the criminal at the time of the

crime, the witness’ degree of attention, the accuracy ofthe witness’ prior

description of the criminal, the level of certainty demonstrated by the

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witness at the confrontation, and the length of time between the crime

and the confrontation.

Grant at 344 (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L.

Ed. 2d 401 (1972)).

All of the state court’s factual findings are reasonable, including its

determination that petitioner’s central premise – that he was the only person in the

photo array that matched Ms. Brewer’s physical description – was rebutted by the

record. The photo lineup was based not only on Ms. Brewer’s description of the

robber, but also on other witnesses’ descriptions and the surveillance video. Ms.

Brewer’s statement to police described the robber as an African-American male

wearing dark clothing and a toboggan, and having a beard that was “very black . . .

that looked dyed.” (Doc. 50, Ex. O, p. 742; Doc. 14, Ex. F, p. 32; Doc. 30, Ex. F). 

Ms. Brewer’s deposition taken on August 12, 2008 described the robber as “a black

male wearing a black T-shirt and jeans and had a black toboggan on his head with a

black beard . . . a very thick, black beard.” (Doc. 50, Ex. P, p. 885). The surveillance

video from all three of the robbed banks revealed that the robber was a black male

wearing dark clothing, a dark colored toboggan, and a dark colored mustache and

beard. (Doc. 14, Ex. A, p. 23). A witness outside Prosperity Bank made reference

to the suspect having “possible dreadlocks.” (Id.). Petitioner wasthe only man in the

lineup with a beard and dreadlocks; however, Ms. Brewer was not one of the

witnesses who described the robber’s hair – she indicated that the robber’s “toboggan

. . . was pulled down, you know, pretty far. You couldn’t really see too much.” (Doc.

30, Ex. F). Brewer’s description of a black man with a black beard matched the

physical description of at least three other men in the six-photo lineup. (Doc. 30, Ex.

A; Doc. 50, Ex. L, pp. 132-33 (providing a better image of the photo lineup); Ex. M,

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p. 329; Ex. O, p. 742). There is nothing to suggest that the hair styles of the men in

the lineup had anything to do with Ms. Brewer’s identification.

As the photo lineup was not impermissibly suggestive to Ms. Brewer, there was

no valid legal basis for trial counsel to challenge the lineup or Brewer’s out-of-court

identification. Counsel is not ineffective for failing to argue a meritless claim. 

Freeman v. Attorney Gen., Fla., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer

cannot be deficient for failing to raise a meritless claim. . . .”); see also Brownlee v.

Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (concluding that counsel was not

ineffective for failing to raise issues clearly lacking in merit); Bolender v. Singletary,

16 F.3d 1547, 1473 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise

nonmeritorious issues does not constitute ineffective assistance.”); Lamontagne v.

Sec’y, Dep’t of Corr., 433 F. App’x 746, 749-50 (11 Cir. 2011) (holding that th

because the petitioner’s ineffective assistance claim was based on the faulty

assumption that he had a viable motion to exclude evidence from being admissible

in his criminal case, the state court reasonably concluded that the petitioner could not

show either deficient performance or resulting prejudice under Strickland). 

Moreover, petitioner cannot show prejudice, because even if trial counsel suppressed

Ms. Brewer’s out-of-court identification, the result of petitioner’s trial would have

been the same because the remaining evidence amply established that petitioner was

the robber.

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts.

Ground 7 Trial counsel was ineffective for failing to object to the trial court

declining to answer jury questions

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During deliberations, the jury sent four notes to the judge, with the following

results: 

1. “We would like to see the Defendant in person, full profile, without

glasses and see him walk acrossthe room. Also we would like to see the

surveillance video.” (Doc. 14, Ex. F, p. 157). The trial judge expressed

confusion with the jury’s request to see petitioner without glasses,

because petitioner had not worn glasses during trial. (Id., p. 158). The

attorneys agreed that the jury would not be permitted to view petitioner

walk across the room, but that they would be permitted to view the

surveillance video again. (Id., pp. 158). The jury was brought back into

the courtroom and viewed the surveillance video. (Id., pp. 159-60). 

2. “When was the line-up picture taken used by tellers to ID?” (Id., p.

161). The parties agreed that the judge would respond by saying, “You

have all of the information we can give you. I cannot answer this

question any further.” (Id.).

3. “Is the ‘mug shot’ of the Defendant current? One juror will not make a

decision without the date of the ‘mug shot.’ If you cannot give it to us

then we have a problem.” (Id., p. 161). The trial judge and the attorneys

expressed confusion over what the jury meant by “mug shot,” and

agreed that the judge could not provide the jury with any further

evidence. (Id., pp. 161-62). The judge called the jury into the

courtroom and provided this response: “Members of the jury thank you

for your note but I am not able to answer the question because the only

evidence that you have is what has been given to you and you have to

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rely on your own recollection and I can’t add anything else to what’s

already been given to you. Did you have any other questions or

comments you wanted to make at this time?” (Id., p. 163). Juror

Goodway responded: “Not that we didn’t already ask.” (Id.). The jury

was instructed to “go and deliberate further then.” (Id.).

4. “We have a problem, Houston! What about the alternate?” (Id., p. 163). 

 The trial judge brought the jury into the courtroom and responded: 

Members of the panel, I have received your latest note.

You are the jury to try this case, we can’t substitute members for

the alternate with one of your existing members, you are the jury. 

I am gonna read you another instruction and then we can go from

there. I have to read this to you also. I know that all of you have

worked hard to try to find a verdict in this case. It apparently has

been impossible for you so far. Sometimes an early vote before

discussion can make it hard to reach an agreement about the case

later. The vote, not the discussion, might make it hard to see all

sides of the case. We are all aware it’s legally permissible for a

jury to disagree. There’s two things that a jury can lawfully do. 

Agree on the verdict or disagree on what the facts of the case may

truly be. There’s nothing to disagree about on the law. The law

is as I told you. If you have any disagreements about the law, I

should clear them up for you now. That should be my problem,

not yours. If you disagree over what you believe the evidence

showed then only you can resolve that conflict, if it is to be

resolved. I have only one request for you. By law I cannot

demand this of you, but I want you to go back into the jury room

and then taking turns tell each of the other jurors about any

weakness of your own position. You should not interrupt each

other or comment on each other’s views until each of you has had

a chance to talk. After you have done that, if you simply cannot

reach a verdict then return to the courtroom and I will declare this

case mistried and will discharge you with my sincere appreciation

for your services. I ask you to now retire and continue with your

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deliberations.

(Id., pp. 164-65). 

Petitioner faults trial counsel for failing to object to the court’s declining to

answer the jury questions in their entirety. Petitioner asserts with regard to the last

question, that the judge should have declared a mistrial assoon asthe jury stated they

had a problem if they could not get the date of the photo lineup, and that the judge’s

request for the jurors to go back into the jury room and take turns identifying the

weaknessesin their own positions “cause[d] the jury to find petitioner guilty.” (Doc.

30, continuation pages 8-9). To support his claim of prejudice, petitioner assertsthat

the fact that the jury came back with a guilty verdict just a few minutes after the judge

made her “request” establishes a reasonable probability that the “request” affected the

outcome of the trial. (Id., continuation page 9). The parties agree that petitioner

exhausted this claim by raising it in his Rule 3.850 proceeding. (Doc. 46, pp. 21-22).

 A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief, noting at the outset that it was necessary

to review each jury request “to determine whether counsel’s objection would have

been sustained or whether there is a reasonable probability that the objection would

have preserved an error that would have resulted in reversal on appeal.” (Doc. 50,

Ex. M, p. 179). The state court found that displaying petitioner “full profile” and

“walking across the room” constituted new, additional evidence that the jury had not

seen during the trial. The court made the same findings as to the date of petitioner’s

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“mug shot” and the date of petitioner’s photograph used in the photo lineup. The

dates were “facts,” and evidence of those facts would be “new evidence” presented

after the case was submitted to the jury. (Id.). The court determined that Florida law

prohibits the presentation of new evidence after the court submits the case to the jury,

and therefore any objection to the trial judge’s declining the jury’s requests would

have been overruled as a matter of law. (Doc. 50, Ex. M, p. 179 (citing Scott v. State,

664 So.2d 3 (Fla. 3d DCA 1995); Fla. R. Crim. P. 3.430; and Infantes v. State, 941

So.2d 432, 434 (Fla. 3d DCA 2006)). As petitioner failed to show deficient

performance or prejudice arising from counsel’s failure to object, petitioner’s

ineffective assistance claim was without merit. The state appellate court summarily

affirmed. 

This Court defersto the state court’s reasonable factual findings that those jury

requests declined by the trial judge required the presentation of new evidence. This

Court also defers to the state court’s interpretation of Florida law as prohibiting the 

presentation of new evidence after the case has been submitted to the jury. 

Petitioner’s contention that the state court unreasonably applied Strickland obviously

depends upon this Court determining that trial counsel’s failure to object was

deficient and prejudicial, but first this Court would have to conclude that the state

court misinterpreted state law when it held that petitioner’s proposed objections

would have been overruled. It is a “fundamental principle that state courts are the

final arbiters ofstate law, and federal habeas courtsshould not second-guessthem on

such matters.” Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997) (citations

omitted). The state court has answered the question of what would have happened

had trial counsel objected to the trial court’s refusal to allow the jury to receive the

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new evidence – the objection(s) would have been overruled. Accordingly, petitioner

cannot establish deficient performance bytrial counsel or prejudice, under Strickland. 

See, e.g., Callahan v. Campbell, 427 F.3d 897, 932 (11 Cir. 2005) (“[T]he Alabama

th

Court of Criminal Appeals has already answered the question of what would have

happened had [defense counsel] objected to the introduction of [the petitioner’s]

statements based on [state law] – the objection would have been overruled. 

Therefore, [defense counsel] was not ineffective for failing to make that objection.

. . . [A petitioner] cannot be prejudiced by his counsel’s failure to make a losing

objection.”) (citations omitted); Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338,

1354-55 (11th Cir. 2005) (“The Florida Supreme Court already has told us how the

issues would have been resolved under Florida state law had [defense counsel] done

what [the petitioner] argues he should have done – objected to the State’s

cross-examination. . . . Accordingly, with regard to this claim, we hold [petitioner]

cannot establish either deficient performance by [counsel] or prejudice.”). Although

a federal court will grant habeas relief if application of a state law violates a specific

federal constitutional right or if a state trial judge’s erroneous admission or exclusion

of evidence makes a petitioner’s trial “so fundamentally unfair that the conviction

was obtained in violation of the due process clause of the fourteenth amendment,” 

Thigpen v. Thigpen, 926 F.2d 1003, 1012 (11th Cir. 1991) (citations omitted), neither

circumstance is present in this case.

The same istrue of counsel’s failure to object to the trial judge’s Allen charge. 

See Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896)

(holding that it is not error to charge the jury, on their return for further instructions,

that they should examine the question submitted with candor and with a proper regard

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and deference to the opinions of each other; that it is their duty to decide the case, if

they can conscientiously do so; that they should listen to each other’s arguments with

a disposition to be convinced; that if the majority is for conviction, a dissenting juror

should consider whether his doubt is a reasonable one; and that if a majority is for

acquittal, the minority juror should consider whether he may not reasonably doubt

their judgment). The state court found as fact that the trial judge’s “request” or

instruction wastaken directly from the Allen charge asshown in the Florida Standard

Jury Instructions. (Doc. 50, Ex. M, pp. 179-80 (citing Fla. Std. Jury Instr. (Crim.)

4.1; Trial Transcript at 163-165)). Based on this finding, the state court concluded

that the trial judge’s “request” was not improper or objectionable, and that counsel

was not deficient in failing to object. (Id., p. 180). 

The state court answered the question of what would have happened had

defense counsel objected to the trial judge’s Allen-type “request” – the objection

would have been overruled because the request was permissible under state law. This

Court will not second-guess the state court’s interpretation of its own laws. Defense

counsel was not deficient for failing to make a losing objection, and petitioner was

not prejudiced by counsel’s failure to do so. 

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts.

Ground 8 Trial counsel was ineffective for failing to strike Juror James Burke

Petitioner claims trial counsel wasineffective for failing to “strike” JurorJames

Burke, after counsel became aware that Burke was tainted by “knowledge of

petitioner’s past crime history.” (Doc. 30, continuation page 9). In support,

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petitioner asserts that the jury was selected on October 27, 2008; that Burke and the

other jurors were allowed to go home until trial commenced on October 30, 2008; and

that when Burke returned on October 30, 2008 he admitted “to looking at the news

and reading about the petitioner’s past crime history, etc.” and to seeing “the news

about the bank that was robbed.” (Id.). Petitioner argues that “had trial counsel

struck Mr. Burke from the jury, the outcome would have been different” because

Burke “would have not been able to share his knowledge of petitioner’s past crime

history with the jury.” (Id.). The parties agree that petitioner exhausted this claim by

raising it in his Rule 3.850 proceeding. (Doc. 46, p. 22).

 A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief explaining, in relevant part:

A defendant alleging that counsel was ineffective for failing to

object or preserve a claim of reversible error in jury selection must

demonstrate prejudice at the trial. Carratelli v. State, 961 So.2d 312,

323 (Fla. 2007). To establish prejudice, Defendant must demonstrate

that an actually biased juror served on the jury. . . . Under the actual bias

standard, the defendant must demonstrate that the juror in question was

not impartial – i.e., that the juror was biased against the defendant, and

the evidence of bias must be plain on the face of the record. Carratelli,

961 So.2d at 324. In this case, there is no evidence of actual bias on the

face of the record. During voir dire, the Assistant State Attorney

inquired asto whether anyone had heard or read anything about the bank

robbery. Juror Burke indicated that he heard that the bank was robbed. 

The ASA then asked Juror Burke whether that would influence him as

a juror in any way and Juror Burke responded in the negative. See Jury

Selection Transcript at 35-36. When the selected jury returned for the

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trial, the court asked whether anyone had read or listened to any reports

about the case since the jury selection. Juror Burke indicated that he

had. When the Court excused the rest of the jury to inquire further, Mr.

Burke said that he hadn’t heard anything new since the jury selection. 

See Trial Transcript at 11-12. Mere exposure to pre-trial publicity does

not automatically form the basis of a for cause challenge. See Dillbeck

v. State, 964 Fo.2d 95, 102 (Fla. 2007). The face of the record is devoid

of any evidence of actual bias with regard to Juror Burke. Moreover,

there is nothing in the record which supports Defendant’s contention

thatJuror Burke had knowledge of the Defendant’s past criminal history

and that he shared this information with the jury. Accordingly,

Defendant has failed to establish that there was any evidence of actual

bias that is plain on the face of the record and his claim is due to be

denied on this ground.

(Doc. 50, Ex. M, p. 180). The state appellate court summarily affirmed. 

The state court reasonably found that there was no evidence to support

petitioner’s allegation thatJuror Burke was biased or thatJuror Burke knew anything

about petitioner’s criminal history. The record establishes that during voir dire, the

prosecutor asked the venire: “Does anybody know anything about the case? And,

when I say that, have you read anything about it, heard anything about it, or heard

street talk about it?” (Doc. 14, Ex. C, p. 31). Mr. Burke responded, “Just hearing a

bank was robbed, that was it.” (Doc. 14, Ex. C, p. 36). The prosecutor asked Mr.

Burke if that would influence him as a juror in any way, and Mr. Burke responded,

“No.” (Id.). Mr. Burke was selected to be on the jury. On the first day of trial,

defense counsel advised the trial judge that the morning after jury selection a

newspaper article appeared in the News-Herald. Defense counsel described the

article:

It’s a newspaper article about this case. It includes information about

Mr. Allen’s past and also some other pending matters that are not the

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subject of this trial. You had instructed the jurors to not read or listen

to any reports about the case but I would just ask that you inquire of the

jury if they had read and if they had, any appropriate inquiriesthereafter.

(Doc. 14, Ex. F, p. 6). The judge inquired of the jurors whether anyone “read or

listened to any reports about this case since Monday.” (Ex. F, p. 11). Juror Burke

nodded. The other jurors were sent to the jury room and Juror Burke wasinterviewed

outside the presence of the other jurors:

THE COURT: I just didn’t want you to say anything that might

influence anyone else. Mr. Burke –

JUROR BURKE: I really got nothing to say, just what I said when we

were, we just heard, heard on the news or whatever there was a bank

robbery, that was it.

THE COURT: Okay, but nothing new since –

JUROR BURKE: No, I don’t know who the fellow’s name was that

robbed the bank.

THE COURT: So you haven’t heard or read or –

JUROR BURKE: No, ma’am.

THE COURT: – know anything else than you knew on Monday?

JUROR BURKE: No, ma’am, just what I said when we were in here the

first time.

THE COURT; Okay, I was looking for new stuff, but no new stuff?

JUROR BURKE: No, no new stuff.

(Doc. 14, Ex. F, pp. 11-12). 

The state court reasonably concluded that there was no basis for counsel to

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move to strike or remove Juror Burke for bias. Petitioner’s speculation that Juror

Burke was biased and that he learned of and shared petitioner’s criminal history with

the rest of the jury has no support in the record, and provides no basis to find either

that counsel was deficient for failing to request Burke’s removal, or that petitioner

was prejudiced by counsel’s failure to act. 

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts. 

Ground 9 Trial counsel was ineffective for failing to object to the racial make-up

of the jury

Petitioner claims trial counsel was ineffective for failing to “object to the

‘racial’ make-up of the jury composition of an ‘all white jury’ who had friends and

relatives and ties to the Bay County Law Enforcement and Judicial Officers and trial

judge.” (Doc. 30, continuation pages 10-11). To support this claim, petitioner states

that his jury was all white; that three jurors (Houser, Goodway and Harris) had

relatives or friends who were in law enforcement; thatJuror Burke “watched the news

of petitioner on TV, read about petitioner’s past crime history, [and] shared it with the

jury;” that Juror Cuthbest was the victim of a robbery; that Juror Hollingsworth’s

niece was married by the trial judge and was the victim of a robbery; and that Juror

Harris’ sister worked for a bank that was robbed. (Id.). Petitioner concludes that he

“was prejudiced by trial counsel when he failed to object to this ‘all white’ jury

composition. Due to trial counsel’s unprofessional error the court should find that

petitioner’s trial counsel’s performance was deficient and that it affected the outcome

of the proceeding.” (Id., continuation page 11). The parties agree that petitioner

exhausted this claim by raising it in his Rule 3.850 proceeding. (Doc. 46, pp. 22-23).

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 A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief, explaining that petitioner did not assert, or

attempt to make a showing, that the jury was selected in a manner that

unconstitutionally discriminated on the basis of race. (Doc. 50, Ex. O, p. 743). The

court further found that petitioner made no showing that an actually biased juror

served on his jury, and that the transcript of jury selection did not evince any actual

bias or illegal discrimination. The court made a final note: 

[B]efore the jury selection began, the court specifically explained how

the jury selection process worked [and] instructed the Defendant to let

his lawyer know if he did not want one of the jurors. (Jury Selection Tr.

at 2-3.) Defendant later stated that he was personally satisfied with the

jury after the challenge conference. (Id. at 59-61.) Thus, the Defendant

cannot now complain that he was not satisfied with the composition of

the jury. 

(Doc. 50, Ex. O, pp. 743-44). The state appellate court summarily affirmed. 

Petitioner provides no information asto the race ofthe venire, nor any evidence

whatsoever of any perceived racial bias or discrimination in the selection of the jury

panel or the six members of his jury. As to the other alleged factors that could have

made jurors more inclined to convict than to acquit, each juror wasspecifically asked

about each fact petitioner now challenges, and each responded that he or she could

be fair and impartial and would not be influenced in any way by that factor. (Doc. 14,

Ex. C, pp. 18, 23, 24, 25, 26, 36, 38-39, 40, 43). After the jury was selected, the trial

judge asked petitioner if the jury was agreeable to him, and petitioner responded

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“Yes, ma’am.” (Id., p. 61). As the state court reasonably found, petitioner’s

speculation of bias is unsubstantiated – and indeed rebutted – by the record. The

state court reasonably concluded that petitioner failed to establish any legal basis for

counsel to object to either the racial makeup of the jury or any particular juror; that

counsel was not deficient for failing to object; and that there was not a reasonable

probability the outcome of petitioner’s trial would have been different had counsel

made petitioner’s proposed objections.

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts. 

Ground 10 The cumulative effect of trial counsel’s errors was tantamount to a

complete deprivation of petitioner’s Sixth Amendment right to counsel

and Fourteenth Amendment right to due process

Petitioner assertsthat the cumulative effect ofthe errors alleged in Grounds 1-9

deprived him of his right to the effective assistance of counsel. (Doc. 30,

continuation page 11). Petitioner raised this claim in his Rule 3.850 proceeding. 

(Doc. 50, Ex. L, p. 127). The Rule 3.850 court denied relief, explaining that

“[b]ecause all of the Defendant’s claims are without merit, this ground is due to be

denied as well.” (Doc. 50, Ex. O, p. 745). The state appellate court summarily

affirmed. 

A claimof cumulative ineffectiveness failsif the individually alleged instances

of ineffectiveness are without merit. Sims v. Singletary, 155 F.3d 1297, 1309 (11th

Cir. 1998); cf., United States v. Culver, 598 F.3d 740, 751 (11th Cir. 2010) (doctrine

of cumulative trial error does not apply where the trial court commits no individual

errors); United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004) (holding that

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where there is no error or only a single error, there can be no cumulative error);

United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984) (“Without harmful

errors, there can be no cumulative effect compelling reversal.”); Mullen v. Blackburn,

808 F.2d 1143, 1147 (5th Cir. 1987) (“Mullen cites no authority in support of his

assertion, which, if adopted, would encourage habeas petitioners to multiply claims

endlessly in the hope that, by advancing a sufficient number of claims, they could

obtain relief even if none of these had anymerit. We receive enough meritless habeas

claims asit is; we decline to adopt a rule that would have the effect of soliciting more

and has nothing else to recommend it. Twenty times zero equals zero.”). Petitioner’s

individual claims of ineffective assistance have no merit; therefore, petitioner’s

cumulative error claim must fail.

The state court’s rejection of petitioner’s cumulative error claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts.

Ground 11 Petitioner was subjected to an illegal search and seizure, and the trial

court improperly denied his motion to suppress

Petitioner asserts that the search warrant was unconstitutional, because it was

based on a flawed affidavit that, when considered in its entirety, did not establish

probable cause to search the car. (Doc. 30, continuation pages 12-13). Petitioner

argues that law enforcement “needed” a connection between petitioner and the 909

Kraft Avenue address in order to obtain the search warrant, and that had the correct

information been included in Johnson’s affidavit, there would have been insufficient

evidence tying petitioner to the house at 909 Kraft Avenue and, correspondingly,

insufficient evidence to establish probable cause to search the house or the red car. 

(Id.) 

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Petitioner raised his claim by a motion to suppress. (Doc. 14, Ex. A, pp. 17-

24). A hearing was held and the motion was denied. (Doc. 14, Ex. D). The state trial

court made explicit findings on matters essential to the Fourth Amendment issue:

THE COURT: . . . [O]kay, number one, I find that the Sheriff’s

Department was acting in good faith. I don’t see any signs that they did

anything in bad faith to intentionally mislead Judge Sirmons. They had

that information and in reading carefully what Mr. Davey said . . .

[summarizing Davey’s e-mails], this information . . . and then the

information the Sheriff’s Office found out as to Brandy Austin with the

909 Kraft Avenue address from some confrontation she was in with the

neighbors or people living there.

All of that is inevitable information, inevitable discovery, they

would have discovered it had they not relied on what appears, has turned

out to be the wrong information even though it was done in good faith. 

It would have been probably a little better practice to have added that

information about Ms. Austin in there that they did know and then we

would have had it. It certainly would have been a better practice also to

added in the information that the witness said, it wasn’t the car. 

However, it is, looking at the car and looking at the original description

given as to the car with the white stuff on the front of the car with the

emblem, is a little, kind of marks it as not your regular red Chevy. That

is different. So I think with that information they could have discovered

more information.

The Georgia, the tag also connects him up to Georgia because

they did have information that he had lived in Georgia and that’s

corroborated by what Mr. Davey said.

So, the only problem is to make sure we can tie in the car to the

defendant. And I think based, and it’s probably narrow and it’s probably

a light connection but I think it’s sufficient under these circumstances. 

The specific nature of the car, the footprints, the Georgia connections,

all of that, and the dreadlocks, which we’ve agreed he had dreadlocks at

the time of this arrest. Correct, Mr. Meredith, at the time of his arrest?

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MR. MEREDITH [defense counsel]: I’m not sure it’s dreadlocks. It’s

kind of twisty, twist knots.

THE COURT: Okay. Long hair.

MR. MEREDITH: His hair was longer than it is now but it wasn’t –

THE COURT: Okay, now it’s quarter of an inch long, maybe. I mean,

it’s not very long, it’s not very, it’s close shaven, to my taste.

So, and the question of the bag. The bag was, even if all of this

is not admissible the bag was dropped. I do think that they had the right

to be there while investigative and once he abandoned the bag, the bag

is admissible with the money in it.

So I’m going to deny the Motion to Suppress.

(Doc. 14, Ex. D, pp. 348-51). Petitioner obtained review ofthe issue on direct appeal. 

(Doc. 14, Ex. G). The state appellate court affirmed petitioner’s convictions without

written opinion. 

“[W]here the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an unconstitutional search or seizure

wasintroduced at his trial.” Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052,

49 L. Ed. 2d 1067 (1976) (footnotes omitted); see also, Devier v. Zant, 3 F.3d 1445,

1455 (11th Cir. 1993) (holding that where Fourth Amendment claims were raised by

motion to suppress and on appeal they were given a full and fair hearing and therefore

barred under Stone). Petitioner has not shown that he was not given a full and fair

hearing on this issue. Ground Eleven affords no basis for federal habeas relief. 

Ground 12 Mistaken identity and perjury

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Petitioner labels this claim as one of “Mistaken Identity and Perjury,” but the

essence of petitioner’s claimisthat trial counsel wasineffective for failing to “argue”

certain “facts” on the issue of identification. Petitioner assertsthat Ms. Jeanne Floyd,

a Prosperity Bank employee, “gave false testimony about the identity of the petitioner

at trial” when she identified petitioner as the bank robber. (Doc. 30, continuation

page 14). In support, petitioner alleges that Ms. Floyd testified in a pre-trial

deposition (held on August 12, 2008) that the robber was: “Black male, 5'10" tall,

170 to 180 lbs, 45 years or older,” and told police on the day of the robbery that the

robber was: “Black male, 30 years old; 5'6" [or 5'10"] tall, 130 lbs.” (Doc. 30,

continuation page 14 and Ex. F). Petitioner suggests that Ms. Floyd’s identification

of petitioner as the bank robber was “false,” because at the time of Ms. Floyd’s

deposition petitioner “was 59 years old, 180 lbs, black male with short hair, no

‘dreadlocks’ with a gray beard.” (Id.).

Petitioner also challenges Ms. Heather Brewer’s in-court identification of

petitioner as the bank robber. Ms. Brewer was the teller petitioner robbed at

Prosperity Bank. Petitioner faults trial counsel for failing to “argue” that: (1) Ms.

Brewer did not give a description of the bank robber on the day of the robbery; (2)

the description Ms. Brewer gave at her August 12, 2008 pre-trial deposition was

“coerced by Bay County Law Enforcement”; (3) the surveillance video of the robbery

showed that Ms. Brewer never looked at the bank robber; and (4) the surveillance

video established that the robber was only in the bank for one minute and forty-five

seconds. (Doc. 30, continuation page 14).

As a final point, petitioner emphasizes that the State’s expert witness, 

Christopher Iber, who was qualified as an expert in the field of image analysis (doc.

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14, ex. C, p. 105), was unable to identify petitioner as the robber in the bank

surveillance video even after analyzing the video with a digital computer. Petitioner

asserts that had trial counsel “argued these ‘facts,’” the outcome of petitioner’s trial

would have been different. The parties agree that petitioner raised this ineffective

assistance claim in his Rule 3.850 proceeding. (Doc. 46, p. 29).

A. Clearly Established Federal Law

The clearly established Federal law governing ineffective assistance claims is

set forth above.

B. Federal Review of State Court Decision

The Rule 3.850 court denied relief as follows:

In Ms. Floyd’s statement to police taken on the day of the

robbery, she described the robber as having a beard, being about “5'5",

5'6", 5'10",” that he “was medium build so I’m guessin’ oh a hundred

and fifty, somethin’ like that,” and as being in his thirties. (See attached

Statement ofJeanne Floyd). In her deposition, she described the robber

as being of medium build, “five-ten, I’m guessing there,” with a beard

and short dreadlocks, in his 30s or 40s. (See Jeanne Floyd Dep. at 4.) 

These statements were not contradictory. Ms. Floyd did not give a

description at trial, but counsel cross-examined her on the fact that she

had previously described the robber as being in his 30s. (See Tr. at 48-

50). Counsel also argued in closing that Ms. Floyd only had one brief

encounter with the robber and yetshe wassure of the identification. (id.

at 137).

Defense counsel cross-examined Ms. Brewer regarding whether

she had time to observe the Defendant and on having her head down in

the [surveillance] video. (Id. at p. 39-40.) He argued on crossexamination that the jurors could see on the video that she kept her eyes

on her cash drawer and that the whole encounter was only a minute and

a half. (Id. at 135-136.)

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Mr. Iber testified at trial that he could not make a positive

identification of the Defendant, nor could he eliminate him. (Id. at 102-

115.) Defense counsel argued this point in closing. (Id. at 137-138.) 

Similarly, the crime scene investigator testified at trial that she was

unable to obtain any fingerprints from the bank counter and doors. (Id.

at p. 67-68.) Additionally, the FDLE analyst who compared the

notebook found in the Defendant’s car with the note the robber gave Ms.

Brewer also had expertise in fingerprinting, and counsel cross-examined

him about the hard marble surface of the counter that the robber had

touched being a good surface for getting fingerprintsfrom. (Id. at 122.) 

Counsel also argued about the lack of a fingerprint match in closing. 

(Id. at 139.)

It is clear that the Defendant has failed to establish deficient

performance by defense counsel. In addition to cross-examining the

witnesses as outlined above, defense counsel did in fact argue in closing

that this was a case of mistaken identity. (Id. at 135-139.). To the

extent the Defendant argues the sufficiency ofthe evidence, such a claim

is not cognizable in a motion for postconviction relief. See Betts v.

State, 792 So. 2d 589 (Fla. 1st DCA 2001).

(Doc. 50, Ex. O, pp. 744-45). The state appellate court summarily affirmed.

The state court reasonably found that the inconsistencies upon which petitioner

bases this claimwere largely not borne out by the factual record and to the extent they

were, counsel did attempt to impeach both Ms. Brewer’s and Ms. Floyd’s in-court and

out-of-court identifications of petitioner, as well as Mr. Iber’s testimony. In addition, 

counsel brought out in closing argument all of the points petitioner faults counsel for

failing to argue. (See Doc. 14, Ex. C, pp. 135-39). 

The state court’s rejection of petitioner’s claim was not contrary to clearly

established Federal law, did not involve an unreasonable application of clearly

established Federal law, and was not based on an unreasonable determination of the

facts. Petitioner is not entitled to federal habeas relief. 

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Ground 13 Witness perjury where the State gave Michael Allen $300 to testify that

he was petitioner’s brother

Petitioner claims he “was prejudiced by the court when the State subpoenaed

their ‘key’ witness, Mr. Michael Allen for $300.00 to testify he was the petitioner’s

brother.” (Doc. 30, continuation page 15). Michael Allen testified that petitioner was

his brother (more specifically, his stepbrother), and that petitioner was the bank

robber appearing in one of the bank’s surveillance videos. (Doc. 14, Ex. F, pp. 51-

54). Petitioner takes issue with the fact that Michael Allen received a $300.00 reward

fromthe Bay County Sheriff’s Office after he identified petitioner asthe bank robber,

and asserts that “D.N.A. will prove that Mr. Michael Allen is not the petitioner’s

brother.” (Id., continuation pages 15-16). Respondent asserts a procedural default

defense, arguing that petitioner has not presented this claim to the state courts and is

now barred by state proceduralrules fromreturning to state court to litigate the claim. 

(Doc. 46, p. 29). Petitioner responds that he presented this claim to the state courts

in his Rule 3.850 proceeding. (Doc. 52, p. 4). 

A. Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must

exhaust all available state court remedies for challenging his conviction, 28 U.S.C.

§ 2254(b)(1), thereby giving the state the “‘opportunity to pass upon and correct’ 2

Section 2254 provides, in pertinent part: 2

(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

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alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365, 115 S. Ct. 887, 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)). The petitioner

“must give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round ofthe State’s established appellate review process.” 

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. A claim that was not presented to the state court and

which can no longer be litigated under state procedural rules is considered

procedurally defaulted, i.e., procedurally barred fromfederalreview. O’Sullivan, 526

U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th

Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)

(holding that federal habeas courts should enforce applicable state procedural bars

even as to claims that were never presented to the state courts). A claim is also

considered procedurally defaulted if it was presented in state court and rejected on the

independent and adequate state ground of procedural bar or default. Coleman v.

Thompson, 501 U.S. 722, 734-35 and n. 1, 111 S. Ct. 2546, 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.”);

accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876

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

rights of the applicant.

. . . .

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

of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented. 

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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, the

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, 112 L. Ed. 2d 935 (1991); Upshaw

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

A petitioner seeking to overcome a procedural default must show cause and

prejudice, or a fundamental miscarriage of justice. Tower, 7 F.3d at 210. “For cause

to exist, an external impediment, whether it be governmental interference or the

reasonable unavailability of the factual basis for the claim, must have prevented

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

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

2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the

petitioner to 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

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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.

Petitioner raised this claim in his Rule 3.850 motion as Ground 12. (Doc. 50,

Ex. L, p. 126). The Rule 3.850 court applied the firmly established and regularly

followed state procedural rule that the claim was procedurally barred because it

should have been raised on direct appeal. (Doc. 50, Ex. M, pp. 180-81) (“Any claim

relating to trial court error must be raised on direct appeal and is procedurally barred

from consideration in postconviction proceedings. See Robinson v. State, 913 So.2d

514, 524 n. 9 (Fla. 2005). Thus, Ground Twelve is due to be denied.”). The state

appellate court affirmed the lower court’s decision. Petitioner’s procedural default

bars federal habeas review of this claim. 

Petitioner has not shown “cause” for his default such that this Court may

address the claim. Petitioner argues that “[t]his claim was not in petitioner[’s] direct

appeal because his counsel was ineffective assistance of counsel.” (Doc. 52, p. 4). 

Petitioner did not raise an ineffective assistance of appellate counsel claim in state

court, nor did he raise this particular ineffective assistance of trial counsel claim in

his Rule 3.850 motion. Petitioner is precluded from now seeking review of either

claimin state court. Petitioner’s proposed ineffective assistance claimis procedurally

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defaulted and cannot be considered as cause for the default of his trial court error

claim. See Edwards v. Carpenter, 529 U.S. 446, 450-51, 120 S. Ct. 1587, 1591

(2000) (concluding that a federal habeas court is barred from considering a

procedurally defaulted ineffective assistance of counsel claimas cause for procedural

default of another claim); Hill v. Jones, 81 F.3d 1015, 1029-31 (11th Cir. 1996); see

also Dowling v. Sec’y, for Dep’t of Corr., 275 F. App’x 846, 847-48 (11th Cir. 2008)

(holding that prisoner’s ineffective assistance of appellate counsel claim was

procedurally defaulted and could not be considered as cause for default of his trial

court error claim raised in his federal habeas petition; prisoner failed to raise his

ineffective assistance claimin state court and was barred fromreturning to state court

to do so).

Even if petitioner’s claim were not procedurally defaulted, it provides no basis

for federal habeas relief. Petitioner’s assertion that Michael Allen committed

“perjury” is wholly unsubstantiated. The fact that Michael Allen received reward

money does not show that Allen’s testimony was false, it merely provides a basis to

impeach Allen’s credibility. The reward money was disclosed to the jury in the

prosecutor’s direct examination of Michael Allen, (doc. 14, ex. F, p. 54), and was

emphasized by defense counsel on cross-examination (id., pp. 54-55). It was for the

jury to decide whether Michael Allen should be believed. The taking of reward

money, in and of itself, does not prove that Allen’s testimony was false. Petitioner’s

allegation that DNA testing will establish that he and Michael Allen are not brothers

does not suggest that Michael Allen’s testimonywasfalse, because Michael Allen did

not testify that the two were biological brothers – he testified that they were

“brothers,” (doc. 14, ex. F, pp. 51, 52, 53), and more specifically, stepbrothers (id.,

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p. 54). Petitioner is not entitled to federal habeas relief on this claim, because it is

procedurally defaulted and without merit.

Ground 14 C.S.I Vickers planted false evidence (money bands) on petitioner’s

personal money

Petitioner’s final claim is that he “was prejudiced by the State when Ms.

Vickers placed false money bands on petitioner’s personal money and used it as

evidence from the bank that was robbed.” (Doc. 30, continuation pages 16-17). 

Petitioner argues that “[i]f it was not for Ms. Vickers’ misconduct the outcome of the

proceeding would have been different.” (Id., p. 17). Respondent asserts a procedural

default defense, arguing that petitioner has not presented this claim to the state courts

and is now barred by state procedural rules from returning to state court to do so. 

(Doc. 46, p. 30). Petitioner responds that he presented this claim to the state courts

in his Rule 3.850 proceeding. (Doc. 52, p. 4).

A. Exhaustion and Procedural Default

The law concerning exhaustion and procedural default is provided above.

Petitioner raised this claim in his postconviction motion as Ground 13. (Doc.

50, Ex. L, p. 127). The Rule 3.850 court applied the firmly established and regularly

followed state procedural rule that claims challenging the factual basis and

sufficiency of the evidence cannot be raised in a Rule 3.850 motion, especially where

a direct appeal was taken. (Doc. 50, Ex. M, p. 181 (citing Betts. v. State, 792 So.2d

589, 590 (Fla. 1st DCA 2001)). The state appellate court affirmed the lower court’s

decision. Petitioner’s claim, whether construed as one of false testimony, false

evidence, manufactured evidence and evidence tampering, or as one involving

Brady/Giglio violations and prosecutorial misconduct, is procedurally barred from

federal habeas review, because petitioner failed to raise the claim(s) on direct appeal

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and was procedurally barred from raising them in his postconviction motion. 

Petitioner has not shown cause for his procedural default or made a colorable

showing of actual innocence. 

Petitioner argues that “[t]his claim was not in petitioner[’s] direct appeal

because his counsel was ineffective assistance of counsel.” (Doc. 52, p. 4). 

Petitioner did not raise an ineffective assistance of appellate counsel claim in state

court, nor did he raise this particular ineffective assistance of trial counsel claim in

his Rule 3.850 motion. Petitioner is precluded from now seeking review of either

claimin state court. Petitioner’s proposed ineffective assistance claimis procedurally

defaulted and cannot be considered as cause for the default of his “false evidence”

claim raised here. See Edwards v. Carpenter, supra. Petitioner’s procedural default

bars federal habeas review of this claim.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides: “[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).” 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 petitioner in this case fails to make a 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 the meaning

of this term) (citation omitted). Therefore, the court should deny a certificate of

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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.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such 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 amended petition for writ of habeas corpus (doc. 30), challenging

the convictions and sentences in State of Florida v. Charles Allen, Jr. in the Circuit

Court for Bay County, Florida, Case Nos. 08-1168, 08-1169 and 08-1170 be

DENIED.

2. That the clerk be directed to close the file.

3. That a certificate of appealability be DENIED.

At Pensacola, Florida this 8th day of June, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

NOTICE TO THE 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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