IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILLIAM R. MEYERS III,

Petitioner,

vs. Case No. 4:11cv122-MP/CAS

MICHAEL D. CREWS, Secretary, 

Florida Department of Corrections,1

Respondent.

 /

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

Petitioner William R. Meyers III, proceeding pro se, filed a 28 U.S.C. § 2254

petition on March 22, 2011. Doc. 1. On April 5, 2012, Respondent filed a response,

with exhibits filed the following day. Docs. 25 (response), 26 (exhibits). Petitioner has

not filed a reply to the response, although given opportunities to do so. See Docs. 23,

30, 32. 

The Clerk of Court shall substitute Michael D. Crews as Secretary of the Florida 1

Department of Corrections in place of Kenneth Tucker. Michael Crews became

Secretary on December 17, 2012, and shall be automatically substituted pursuant to

Federal Rule of Civil Procedure 25(d). 
Page 2 of 26

On August 12, 2013, Petitioner filed a “Motion for Clarification” concerning his

§ 2254 petition, noting that the petition has been pending for several months (Doc. 48),

as well as a copy of a petition for writ of mandamus he had filed in the Eleventh Circuit

Court of Appeals, which was docketed as a motion to expedite (Doc. 49). On August

26, 2013, Petitioner filed a Letter of Inquiry, requesting the status of his motion for

clarification. Doc. 50.

The matter was referred to the undersigned United States Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of

Florida Local Rule 72.2(B). After careful consideration of all issues raised, the

undersigned has determined that no evidentiary hearing is required for disposition of

this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons

stated herein, the pleadings and attachments before the Court show that Petitioner is

not entitled to federal habeas relief, and the § 2254 petition should be denied. 

Procedural History

By information filed March 10, 2006, in case number 06CF660, the State of

Florida charged Petitioner with two counts involving the same victim, Jeffery Moore, in

connection with events that took place on February 19, 2006, in Leon County, Florida:

(1) armed robbery with a deadly weapon, a first degree felony in violation of section

812.13(2)(a), Florida Statutes; and (2) aggravated battery with a deadly weapon, a

second degree felony in violation of section 784.045(1)(a)2., Florida Statutes. Doc. 26

at 1. The Office of the Public Defender was appointed to represent Petitioner. Id. at 8. 

Trial was set for July 24, 2006. Id. at 9.

Case No. 4:11cv122-MP/CAS
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On May 10, 2006, Petitioner filed a pro se motion to dismiss, which was dated

April 20, 2006. Id. at 11-17. In support of his motion, Petitioner attached an affidavit

from Moore stating that he wished to drop the charges against Petitioner. Id. at 15. 

The state trial court entered an order on May 10, 2006, striking the pro se motion as

unauthorized because Petitioner was represented by the Public Defender’s Office. Id.

at 18.

On July 21, 2006, the Office of the Public Defender requested appointment of

conflict counsel. Id. at 30. By order dated July 24, 2006, the state trial court granted

the request and appointed attorney James Banks to represent Petitioner. Id. at 31. 

The court amended the order on August 9, 2006, finding the first appointed counsel

also had a conflict of interest and appointing instead attorney Frank Sheffield. Id. at 33. 

The jury trial took place on November 15, 2006. Id. Ex. B (trial transcript). The

victim, Jeffery Moore, testified. Id. at 26-46. Officers with the Tallahassee Police

Department also testified. Id. at 46-59 (Officer William Faust), 59-77 (Officer Brianne

Shaut), 77-89 (Officer Susan Burton Newhouse). After the State rested, defense

counsel moved for judgment of acquittal. Id. at 90-92. The trial court denied the

motion. Id. at 92. Petitioner did not testify, and the defense presented no witnesses or

evidence. Id. at 93-94. The jury returned a verdict finding Petitioner guilty as charged

on both counts. Id. at 148; see id. Ex. A at 64-65. The state trial court adjudicated

Petitioner guilty and sentenced him to 120 months in prison on the robbery charge and

48 months in prison on the aggravated battery charge, to run concurrently. Id. Ex. B at

153; see id. Ex. A at 68-77. 

Case No. 4:11cv122-MP/CAS
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Meyers appealed his judgment and sentence to the First District Court of Appeal

(DCA), assigned case number 1D06-6197. See id. Ex. A at 79. Appointed appellate

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Id. Ex. D. 

The First DCA per curiam affirmed the case without an opinion. See id. Ex. E; Meyers

v. State, 993 So. 2d 520 (Fla. 1st DCA 2008) (table). Meyers filed a pro se motion for

rehearing, which the First DCA denied by order dated December 17, 2008. Doc. 26

Exs. F (motion), G (order). The First DCA issued the mandate on January 6, 2009. Id.

Ex. H. 

On January 10, 2009, Meyers filed a pro se motion for post-conviction relief in

the state trial court, pursuant to Florida Rule of Criminal Procedure 3.850, raising three

claims of ineffective assistance of counsel (IAC): (1) IAC for failing to file notice of

expiration of speedy trial period despite Petitioner’s request that he do so; (2) IAC for

failing to object to improper comments by the prosecutor at trial; and (3) IAC at

sentencing for failing to investigate and present mitigating evidence. Doc. 26 Ex. I at 1-

14. By order dated July 17, 2009, the state post-conviction trial court, Circuit Judge

Mark E. Walker, directed the Office of the State Attorney to file a response to Meyers’

Rule 3.850 motion. Id. at 19. The State responded, denying the claims and requesting

an evidentiary hearing. Id. at 21. Petitioner filed a motion requesting appointment of

counsel for the Rule 3.850 motion and evidentiary hearing, which the state postconviction trial court denied. Id. 23-24 (motion), 25 (order denying motion). 

On May 28, 2010, Judge Walker held an evidentiary hearing on Meyers’ Rule

3.850 motion. Id. Ex. J (hearing transcript). At the hearing, Petitioner again requested

Case No. 4:11cv122-MP/CAS
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appointment of counsel. Id. at 4. Petitioner explained, “I am a layman to the law and I

don’t have a license to practice the law in Florida.” Id. at 5. The judge denied the

motion:

Again as I stated previously on the record there’s no entitlement to court

appointed counsel in such a collateral matter unless I deem it. Giving the

nature of the matter and the allegations and so forth the complexity of the

issues or the limited skills of the person appearing in front of me. By

limited skills I mean, sir, if you couldn’t read or write and so forth there

may be other issues for me to consider. But based on all the

circumstances that I’m to consider I find that there’s no legal basis to

compel me to and I choose not to exercise my discretion to appoint

counsel. But your request and your objection to my denial is noted for the

record.

Id. Frank Sheffield, who by that point was a circuit judge, testified at the hearing, and

Petitioner asked him questions on cross-examination. Id. at 7-28 (direct), 29-55 (crossexamination). Petitioner offered into evidence letters he had written to and received

from Mr. Sheffield during the course of his representation; the court admitted the letters

into evidence. Id. at 33-34; see id. Ex. K. Petitioner also offered into evidence medical

records and documents, which the court admitted. Id. Ex. J at 34. Near the conclusion

of the hearing, Judge Walker summarized the parties’ positions:

THE COURT: . . . Mr. Evans I understand your argument that not only is

there no deficient performance that there’s even if there was no prejudice

as to any of these three grounds. In fact implicit in your questions is Mr.

Sheffield would have been deficient had he gone ahead with speedy trial

or had he forced the issue at sentencing. And I understand based on

your questions and your arguments. Do you wish to add anything further?

MR. EVANS: No, you understand what my argument is going to be.

THE COURT: All right. Mr. Myers [sic], I understand from you that your

argument is, Judge, we should have pushed the speedy trial, shouldn’t

have gotten the State and should have tried to catch the State without a

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victim. And if we had pursued that even without all the other evidence we

could have caught the case the State without the victim testifying and we

could have won. Is that your argument as to Ground 1?

THE DEFENDANT: Yes, sir.

THE COURT: As to Ground 2 your argument is Judge, Mr. Sheffield

should have objected to improper arguments. If he had have done so he

could have argued for a mistrial and I could have gotten another trial and

the jury was tainted by those improper comments by the prosecutor, you

preferenced [sic] earlier. Is that Ground 2?

THE DEFENDANT: Yes, sir.

THE COURT: And Ground 3 is, Judge, I got the bottom of the guidelines

was a little less than six years. I go ten years. I could have gotten less of

a sentence if Mr. Sheffield has presented evidence of my medical

conditions at sentencing. Is that sum up accurate your Ground 3? Does

that sum up Ground 3 sir?

THE DEFENDANT: Yes, sir.

THE COURT: Okay. Is there anything you’d like to – I mean you wrote a

cogent easily understandable –

THE DEFENDANT: No, I haven’t wrote anything else, sir.

THE COURT: I meant, your motion was easy to follow believe me. There

are motions written by pro se litigants and quite frankly motions written by

lawyers that I find it hard to follow. But I could clearly follow your motion in

the three arguments that you were making both through your questioning,

implicit in your questions as well as your statements to Mr. Sheffield. I’ve

also have the benefit of not only have both sides referenced certain

portions of the transcripts I’ve had the benefit of reviewing the statements

at issue. And based on the arguments your presented, Mr. Myers [sic], as

well as those by Mr. Evans and the testimony of Mr. Sheffield I think I

have in my review of the court file for example the sentence and so forth I

think I have a command of the facts of the case. Mr. Evans has rested on

the record as it stands. Is there anything that me having summarized your

arguments to make sure that I understood your arguments is there

anything additional you’d like to add by way of argument?

THE DEFENDANT: No, sir. I rest.

Case No. 4:11cv122-MP/CAS
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Id. at 56-58. The judge then ruled on the record, making findings and concluding there

was no deficient performance and no prejudice. Id. at 58-64. Judge Walker entered a

written order on June 1, 2010, nunc pro tunc May 28, 2010, consistent with the oral

pronouncement, denying the Rule 3.850 motion. Id. Ex. I at 27. 

Meyers appealed to the First DCA, assigned case number 1D10-3313. See Doc.

26 Ex. L (Initial Brief). Meyer raised one point: “The order in this case denying the

Appellant’s Motion for Post-Conviction Relief is inadequate to allow for meaningful

appellate review.” Id. at i; see id. at 3-5. On December 15, 2010, the First DCA per

curiam opinion affirmed the appeal without an opinion. Id. Ex. M; see Meyers v. State,

50 So. 3d 1140 (Fla. 1st DCA 2010) (table). Meyers filed a motion seeking an

extension of time to file a motion for rehearing and a motion for rehearing. Doc. 26 Exs.

O, P. The First DCA denied both motions. Id. Exs. Q, R. The mandate issued on

January 28, 2011. Id. Ex. N. 

As indicated above, on March 22, 2011, Meyers filed a § 2254 petition in this

Court. Doc. 1. Respondent filed a response and with exhibits. Docs. 25, 26. Meyers

has not filed a reply, although given opportunities to do so. See Docs. 23, 30, 32.

Meyers has filed a “Motion for Clarification” concerning his § 2254 petition, noting that

the petition has been pending for several months (Doc. 48), as well as a copy of a

petition for writ of mandamus he had filed in the Eleventh Circuit Court of Appeals,

which was docketed as a motion to expedite (Doc. 49). Meyers has also filed a Letter

of Inquiry, requesting the status of his motion for clarification. Doc. 50.

Case No. 4:11cv122-MP/CAS
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Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for

persons in state custody. Section 2254(d) provides, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody

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

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

unless the adjudication of the claim –

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000); Gill v. Mecusker,

633 F.3d 1272 (11th Cir. 2011). 

In this case, in his § 2254 petition, Meyers raises three grounds alleging IAC:

(1) Trial counsel failed in his duty to uphold the Fourteenth Amendment by

failing to file a notice of expiration of the speedy trial period after Meyers

requested him to do so, Doc. 1 at 4;

(2) Trial counsel was ineffective and failed in his duty to uphold the Fifth

and Sixth Amendments by failing to make a timely object to improper

arguments made by the prosecutor during trial, Doc. 1 at 4; 

(3) Trial counsel failed in his duty to uphold the Fifth and Sixth

Amendments because counsel was ineffective at sentencing for failing to

investigate and present mitigating evidence regarding Meyers’ diabetes

and bipolar condition, Doc. 1 at 8 (ECF page number).

Respondent asserts that Meyers has not properly exhausted these claims because, in

his appeal from the denial of his Rule 3.850 motion, Meyers did not challenge the

Case No. 4:11cv122-MP/CAS
Page 9 of 26

merits of the post-conviction trial court’s findings and conclusions; rather, Meyers

argued only that the post-conviction trial court erred in failing to make written findings of

fact and conclusions of law. Doc. 25 at 11. Respondent then addresses the merits of

Meyers’ claims. Id. at 12, 17-19. 

Meyers’ grounds allege IAC. In Strickland, the U.S. Supreme Court adopted a

two-part test for such claims:

First, the defendant must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

466 U.S. at 687. To demonstrate ineffectiveness, a “defendant must show that

counsel’s performance fell below an objective standard of reasonableness.” Id. at 688. 

To demonstrate prejudice, a defendant “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. 

If a state prisoner’s habeas petition “includes a claim that has been ‘adjudicated

on the merits in State court proceedings,’ § 2254(d), an additional restriction applies.” 

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The federal court may not grant

relief unless the state court’s 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

Case No. 4:11cv122-MP/CAS
Page 10 of 26

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). “This is a

‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt.’” Cullen,

131 S.Ct. at 1398 (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011), and

Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court’s review “is limited to the

record that was before the state court that adjudicated the claim on the merits.” Cullen,

131 S.Ct. at 1388. 

For this Court’s purposes, importantly, “[t]he question ‘is not whether a federal

court believes the state court’s determination’ under the Strickland standard ‘was

incorrect but whether that determination was unreasonable – a substantially higher

threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schiro v.

Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a

general standard, a state court has even more latitude to reasonably determine that a

defendant has not satisfied that standard.” Id. It is a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

Ground 1: IAC – Speedy Trial

In his first ground, Petitioner Meyers claims his trial counsel rendered ineffective

assistance by failing to file a notice of the expiration of the speedy trial period and a

motion to discharge on that basis, after Meyers asked him to do so. Doc. 1 at 4. 

Meyers raised this claim in his state Rule 3.850 motion and the state post-conviction

Case No. 4:11cv122-MP/CAS
Page 11 of 26

trial court denied it after holding an evidentiary hearing. In particular, the state postconviction trial court judge ruled on the record:

While I understand Mr. Myers [sic] and appreciate your reference to the

speedy trial I cannot tell you how – I think it is the most misconstrued rule

of procedure in terms of lay people. It appears that on one had [sic] most

people believe that it’s sort of something magic that at 175 day passes

and you haven’t been brought to trial you’re automatically discharged.

You’ve recognized that’s not the case because you recognized because

there was a recapture period.

Also equally misconstrued in terms of the rule is the notion that the

defendant regardless of the decision made by the – a professional view of

the lawyer the defendant controls the decision of when you go to trial not

the lawyer. That is not what the rule itself says. More importantly as

recently as last year the first DCA has ruled that when the defendant says

that judge I want my trial now and the lawyer says well judge I’m not ready

but I’ll do what my client wants. The first DCA overruled – reversed the

case and reversed the judge saying it’s not up to the defendant. The

second the lawyer said I need more time to prepare. It was the lawyers

obligation to move to continue and not just say I’ll do whatever my client

wants.

In this case I find not only is Mr. Sheffield’s testimony credible, it’s

entirely consistent with the record. I find that there is absolutely no

deficient performance and refusing the demand for speedy trial but to

prepare for trial, to the contrary. I find the opposite. If mr [sic] Sheffield

had of [sic] just gone forward like a bull in a china shop and gone forward

with taking depositions, without preparing for trial. That arguably would

have been a deficient performance. So I find there is no deficient

performance.

Moreover, I find that even if there had been, which there isn’t,

under any legal theory deficient performance there’s clearly no prejudice.

The victim was available. The victim could be called. There was nothing

– this was not a case where the State had no idea what the case was

about. The defense had all kinds of witness [sic] it could bring to refute

the State so it would sort have been a gotcha to the State. That’s not

what the evidence revealed. So even if there had been, even if there was

some requirement that Mr. Sheffield do exactly what you say, which that’s

not the law, there would clearly be no prejudice. I find it would only have

been prejudice if Mr. Sheffield had done what you asked which is forced

the case forward.

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Page 12 of 26

Doc. 26 Ex. J at 58-60. In the written order, the judge denied the Rule 3.850 motion for

the reasons stated on the record. Id. Ex. I at 27. 

Assuming Meyers properly exhausted this claim, the state courts’ rulings are

entitled to deference and review is limited to the record before the state court. See

Cullen, 131 S.Ct. at 1388. The testimony of Frank Sheffield, found credible by the state

post-conviction trial court, supports the state courts’ determinations. 

In particular, Mr. Sheffield testified he was appointed to represent Meyers on

August 6, 2006, and the case was not ready to go to trial at that point. Doc. 16 Ex. J at

10. Sheffield explained that Meyers was charged with a felony punishable by life and

discovery was incomplete: “no deposition has been taken and nothing had been done

to actually prepare the case for trial itself.” Id. Sheffield testified that a hearing took

place on August 22, 2006, and the trial was set for November 13, 2006. Id. at 11. He

prepared for trial between August and November, and the case did go to trial in

November. Id. at 11-13. Sheffield testified that, at the time he received the case, on

August 6, 2006, there were only four (4) days remaining in the speedy trial period. Id.

at 14. Sheffield testified he never sought to continue the trial, he prepared for it, and

tried it in mid-November. Id. at 14-15. Sheffield testified that Meyers asked him to file a

demand for a speedy trial or notice of expiration of the speedy trial period, but Sheffield

responded to Meyers that he was not going to do that because it would result in him

going to trial unprepared:

. . . I told him when I first undertook to represent him that he’d have to get

somebody else appointed because I was not going to go to trial

unprepared nor – I sent him a letter that quoted the rule. It says rule

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Page 13 of 26

3.191 governing speedy trial. It says a person charged with a felony must

be brought to trial within 175 days from arrest. If not, defendant can file a

notice of expiration. The court then sets it for hearing within five days. 

The case is then set for trial within 10 days. By the time I was appointed

to represent you it was 171 days. Been in jail for 171 days therefore, I

had the case for four days at the time he wanted me to file a demand for

speedy trial. The rule in Section G states counsel shall only file a demand

for speedy trial after he has “diligently investigated the case and is

prepared or will be prepared for trial within five days.” The rule goes on to

say that a person is bound by their demand. A delay or continuance will

not be granted after the demand is filed. A demand that is filed in a case

that has not been diligently investigated shall be stricken as invalid. This

rule is directed to judgment by counsel for the defendant and not the

defendant.

And I made the decision that I could not represent that the case

had been properly investigated and diligently investigated and that I was

not prepared to go to trial and I was not prepared to waive the right to do

all that within four days of me being appointed. And that’s exactly what I

told Mr. Meyers. . . .

Id. at 16-17. 

The record thus supports the post-conviction trial court judge’s determination that

Meyers had shown neither deficient performance nor prejudice. Under Florida law,

defense counsel could not have demanded a speedy trial until he had investigated and

completed discovery. See, e.g., Landry v. State, 666 So. 2d 121, 125 (Fla. 1995)

(explaining that Rule 3.191 “is designed to ensure that an accused cannot control the

court’s docket by filing spurious demands for a speedy trial for which the accused is not

prepared”); San Martin v. Menendez, 467 So. 2d 1035, 1037 (Fla. 2d DCA 1985)

(explaining that at time defendant filed speedy trial motion, “he was still engaged in

discovery and preparation for trial and his demand, therefore, was not proper and was

correctly struck upon motion by the state”). Nothing indicates the state courts’

adjudication of this claim resulted in a decision that was either (1) contrary to, or

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Page 14 of 26

involved an unreasonable application of, clearly established U.S. Supreme Court

precedent, or (2) based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). This

ground should be denied. 

Ground 2: IAC – Prosecutor’s Comments 

In his second ground, Meyers claims his trial counsel rendered ineffective

assistance by failing to object to allegedly improper comments by the prosecutor during

his closing argument at trial. Doc. 1 at 4. Meyers raised this claim in his state Rule

3.850 motion and the state post-conviction trial court denied it after holding an

evidentiary hearing. In particular, the state post-conviction trial court judge ruled on the

record:

As to Ground 2 the statements at issue were a fair – regarding the

witnesses who were present at the park was a fair comment when you

review the transcript as a whole on the evidence, even some of the lines

that you cited so it was not objectionable. Moreover the statements made

about the victim this is not a case where the prosecutor said, this is a

swearing contest between the victim and the defendant. You know if you

believe the defendant then find him not guilty, is forth. That would be a

shifting of the burden. That’s not what happened here. This was fair

comment, fair argument by the prosecutor and quite frankly was

responsive to the Defense argument which is the victim was lying. And so

there’s no impermissible shift of the burden.

So in either case where the statements – and none of these types

of statements were objectionable in the closing argument of the

prosecutor. Moreover even if they had been objectionable the decision in

light of the state of the record, that is, that there was no weapon, there

was no glass, there was no blood, there was no evidence of a fight. The

fact that through the depositions by dragging the case out Mr. Sheffield

was able to get one of the officers to concede that the injuries of the victim

were inconsistent with his story.

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Page 15 of 26

It was clearly an appropriate tactical decision not to highlight, a)

testimony during closing argument with the prosecutor and, b) create the

potential view of the jury that there was – the Defense was trying to hide

something. The defense was you’re innocent. You did nothing and the

State had no evidence – their evidence was weak and the physical

evidence was entirely inconsistent with the State’s theory of the case. 

So, a) there was no deficient performance, b) – I mean, it was

nothing objectionable, b) it was a tactical decision. Moreover given the

totality of the record the statement that the only witness present in the

park was an accurate statement or consistent with the testimony rather so

there could be no prejudice from that argument in closing because that’s

what the evidence was. So I find no prejudice. 

Doc. 26 Ex. J at 60-62. In the written order, the judge denied the Rule 3.850 motion for

the reasons stated on the record. Id. Ex. I at 27. 

Assuming Meyers properly exhausted this claim, the state courts’ rulings are

entitled to deference and review is limited to the record before the state court. See

Cullen, 131 S.Ct. at 1388. Similar to Ground 1, the testimony of Frank Sheffield, found

credible by the state post-conviction trial court, supports the state courts’ determinations

with regard to this ground. 

In particular, Mr. Sheffield testified:

Q Mr. Webster [the prosecutor] made several comments to the, quote,

and I’m reading from Mr. Myers [sic] Ground 2 of his motion, “prosecutor

made several comments during closing arguments that testimony was

heard that the defendant and the victim was the only people at the park

during the time of the alleged crime.” And he refers to transcript pages

105, 109 and 127. I’ll ask you to take a look on – do you have a copy of

the transcript?

A I do.

Q Take a look on page 34 of the trial transcript. It’s part of Mr. Moore’s

testimony during the trial. And I’ll refer you down to line 17.

A Okay.

Case No. 4:11cv122-MP/CAS
Page 16 of 26

Q Could you read for us through lines 22 please, sir.

A All right. We were asking questions about who all was present – or Mr.

Webster was – who all was present and at line 12 he said[:]

At that point the two of you remained in the van or did you

get outside the van? The answer was no, we stood outside

and leaned up against the side of the van went drinking our

drink and smoking cigarettes and talking. Okay. 

Approximately did you see anybody else around you in the

park that morning? Answer, no, sir. Okay was there

anybody other than the two of you? Anybody close to you or

in close proximity? No, sir.

Q Now looking at page 105 of the transcript. I believe this is the closing of

Mr. Webster.

A Okay.

Q And I believe the issue is defendant takes (inaudible) with probably

begins on line 9 of that.

A All right.

Q Where Mr. Webster indicated referring to Mr. Moore that he testified

that no one else was at Lake Ella that morning. No one else anywhere

near the parking lot. And also on page 109 on line 11. Mr. Moore was

adamant that there was no one else in Lake Ella that night or that morning

rather. No one else was in the park. No one else was round him, no one

else was around him when he came to. And on page 127. And I’m

assuming that he’s talking along 18 and line 20 specifically is there was

nobody else that came along and took the money. No one else hit the

victim. Those effects. Did you see anything – given the testimony in the

case did you see anything improper about those arguments?

A I didn’t see anything improper about those arguments. And I didn’t want

to get up and interrupt Mr. Webster during his closing because at that

point in time based upon the evidence that was presented Mr. Myers [sic]

and I both felt that the jury was going to acquit him because there was no

weapon found, no blood found, no glass shards found, no area of a

skirmish found. He was never seen by Mr. Moore as actually hitting him

or taking the money. He was caught a little while later in his van. There

was no blood in his van. There was no blood on him. There was no

weapon that was found. And I got the main police officer to admit on the

Case No. 4:11cv122-MP/CAS
Page 17 of 26

witness stand that the injuries sustained by Mr. Moore wee more

consistent with someone that had tripped and fallen down and had hurt

himself with contact with something that was abrasive rather than blunt

force trauma. So we felt that we had the jury in a position to find him not

guilty. And from that evidence and reading the transcript today I think

they should have found him not guilty. But I was not going to get up and

interrupt Mr. Webster and make us look like we were trying to hide

something or the bad guys. It was a judgment call, one and two, it wasn’t

objectionable to begin with.

Q Now did you feel that the arguments that Mr. Myers [sic] refers to on

page 105, 109, 110, 123, 124, and 131 that the victim was the – in basic

was the sole witness in this case as to what occurred or didn’t occur and

that it was his testimony that the jury was going to have to use to either

convict or acquit Mr. Myers [sic]?

A I think that’s correct. There was no other witness that was available as

to the incident itself. The police officers came in and testified as to their

investigation. And the only other thing that they had is there was an

alleged admission against interest made by Mr. Myers [sic] when they

stopped him where they were asking him what happened and he blurted

out I didn’t hit anybody with a bottle and they hadn’t even told him that. 

So that piece of evidence from him, making him kind of a witness against

himself and the testimony from the victim was really the only testimony

regarding the incident.

Q And did you feel that the arguments that were made by Mr. Webster

were in any way impermissibly shifting the burden?

A I did not.

Q So you didn’t make an objection, is that correct?

A I did not. I did not think that what he was doing was objectionable. And

I didn’t think it was a prudent thing to do at that time because from a

factual standpoint we had everything in the record we needed. As a

matter of fact I even managed to get Judge Hood to give the jury the

circumstantial evidence instruction because of the state of he evidence

that had been deleted from the jury instructions for years.

Doc. 26 Ex. J at 17-21. See id. Ex. B at 34-38 (trial testimony of victim Moore that no

one else was around when incident occurred in which he was struck on the head, heard

Case No. 4:11cv122-MP/CAS
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glass breaking, lost consciousness, and, after regaining consciousness, realized his

money, $132.00 in cash, was missing) and 104-05 (prosecutor’s closing: “Ladies and

gentlemen, in this case, we have the testimony of the victim, Jeffrey Moore. And the

State is calling upon you to rely on that primarily for the proof of this case. Now, the

question before you is do you believe that Mr. Moore was telling the truth or not today. .

. .”), 109 (prosecutor’s closing: “We don’t have to prove 100 percent. We talked about

that in jury selection. It’s beyond a reasonable doubt. If you believe Mr. Moore is telling

the truth, is there any reasonable doubt as to who committed the offense? The State

would submit that there isn’t. Mr. Moore was adamant there was nobody else in Lake

Ella that night – or that morning, rather. Nobody else was in the park. Nobody else

was around him.”), 110 (prosecutor’s closing: “If you believe the victim, then you must

believe he was hit with a bottle, you must believe that his money was taken, and you

must believe that the defendant did it.”), 123-24 (prosecutor’s closing: “Now, when it

comes to reasonable doubt, the State would argue that there’s only one question you

really need to ask yourself: Do you believe the victim in this case? . . . Well, if you

believe the victim, if you believe he was struck across the back of the head with a

bottle, if you believe him, that he’s telling the truth in that regard, and you have to ask

yourself, then who did it if it wasn’t the defendant. Who else was there. . . . No, the only

question for you is do you believe the victim in this case. And it really is that simple.”),

131 (prosecutor’s closing: “If you believe the victim in this case is telling the truth, then

there’s only one lawful verdict you can return. And that’s a verdict of guilty as

charged.”). 

Case No. 4:11cv122-MP/CAS
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The record thus supports the post-conviction trial court judge’s determination that

Meyers had shown neither deficient performance nor prejudice. Nothing indicates the

state courts’ adjudication of this claim resulted in a decision that was either (1) contrary

to, or involved an unreasonable application of, clearly established U.S. Supreme Court

precedent, or (2) based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). This

ground should be denied. 

Ground 3: IAC – Mitigating Evidence for Sentencing 

In his third ground, Meyers claims his trial counsel rendered ineffective

assistance by failing to investigate and present mitigating evidence at sentencing,

regarding his diabetes and bipolar conditions. Doc. 1 at 8. Meyers raised this claim in

his state Rule 3.850 motion and the state post-conviction trial court denied it after

holding an evidentiary hearing. In particular, the state post-conviction trial court judge

ruled on the record:

As to Issue 3 like Issue 1, first of all there’s no requirement – in fact

the law, you were not entitled to a PSI. I find Mr. Sheffield’s testimony to

be credible that he was not aware of the diabetes or the bi-polar. In fact

the records that you brought before the Court are from 2009 and given the

voluminous exchanges between you and Mr. Sheffield the fact that there

was all this information that went back and forth between you in the letters

is that has now been admitted into evidence and are part of this record is

entirely consistent with what Mr. Sheffield has said which is it was never

mentioned. It was never mentioned in the letters, moreover, at sentencing

itself on the record it was never mentioned.

So I find no only is Mr. Sheffield’s testimony credible it’s entirely

consistent with both the written record that’s before us by way of transcript

as well as the written record in the form of the exhibits that were

introduced namely, the voluminous exchanges between Mr. Sheffield and

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Mr. Myers. So Mr. Sheffield did not – it would have been pointless for him

to insist on a PSI and he could not introduce evidence which he was not

aware of. So there was no deficient performance.

Moreover, even if you are entitled to a PSI and even if there was

some other evidence that could have been introduced I find that Mr.

Sheffield based on the scoresheet would have absolutely been deficient

had he forced the issue and moved the sentencing or had the sentencing

continued. If the sentencing had been continued under the scoresheet

and based on the record before this Court the scoresheet was inaccurate. 

The score should have shown a much higher lower permissible sentence. 

So it would not have inured to your benefit. If anything the scoresheet

could have been higher than 120 months you were given. You scored

almost seven years which would have been 72 months, almost seven

years to Life. And you got 10 years with the second count to run

concurrent. If anything the record shows that Judge Hood gave you a

lower end of the range sentence. I find specifically the time would have in

no way benefitted you. To the contrary it would have harmed you. So

again there was no deficient performance. There was no prejudice. The

only prejudice that would have resulted would have been if Mr. Sheffield

had done what you wanted him to do, which was to drag – or what you

now say you wanted him to do – which was to continue the sentencing.

Doc. 26 Ex. J at 62-63. The judge corrected his math in calculating the possible

sentence, realizing that 72 months is six years instead of seven years as he stated, but

indicated his analysis remained the same. Id. at 64. In the written order, the judge

denied the Rule 3.850 motion for the reasons stated on the record. Id. Ex. I at 27. 

Assuming Meyers properly exhausted this claim, the state courts’ rulings are

entitled to deference and review is limited to the record before the state court. See

Cullen, 131 S.Ct. at 1388. As with the other two grounds, the testimony of Frank

Sheffield, found credible by the state post-conviction trial court, supports the state

courts’ determinations regarding this claim. In particular, Mr. Sheffield testified that,

after the trial ended, the judge went straight to sentencing. Doc. 26 Ex. J at 21. 

Mr. Sheffield further testified regarding Petitioner’s criminal history, that Petitioner never

Case No. 4:11cv122-MP/CAS
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told him about his bipolar condition or diabetes, and that Petitioner actually benefitted

by not having a PSI and going straight to sentencing, because the prosecutor did not

have copies of all of his prior convictions, so Petitioner had a lower permissible

guidelines sentence:

Q Now, the defendant now makes a claim of ineffectiveness for failing to

investigate and present mitigating evidence, namely failing to request a

PSI and failing to discover and present evidence that the defendant was

bi-polar and had diabetes and that he had been diagnosed with both of

those conditions and I’m guessing that they somehow had a serious effect

on him and his behavior and mental stability at the time. 1) let’s start first

with the PSI. The defendant had an extensive history of being convicted

of felonies, is that correct?

A He did.

Q And the defendant didn’t – admitted that he had a pretty bad history, is

that correct?

A Yes.

Q So you’re familiar that you don’t need to order a PSI if somebody’s

been previously convicted of a felony?

A We discussed that on the record and based on the fact that he had a

prior conviction he wasn’t entitled to a PSI.

Q Okay. So that issue was raised? It was considered and it was

(inaudible).

A It was discussed by Mr. Webster and myself and Judge Hood. And

there was a determination made by Judge Hood that he was not going to

order a PSI and that we were going to proceed to sentencing.

Q And that began on page 150 of the trial transcript, is that correct?

A Right. If you look at line 12 Judge Hood says I think the bailiff told me

the defendant Myers [sic] has a prior felony. And I said yes, sir. And Mr.

Webster said I found one prior, Your Honor, for bank larceny in 1977. 

The Court said, do we need a PSI, here on line 20 and I stared and I don’t

[sic] and then Mr. Webster said I don’t believe so, Your Honor. I don’t

Case No. 4:11cv122-MP/CAS
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think he qualifies if he has a prior conviction and we know that he’s got at

least the one that they have the certified records of. And they did have

the certified records of that one prior conviction.

Q And on page 152 about half way down the page I guess beginning on

line 15, Mr. Webster goes over the history of Mr. Myers [sic], is that

correct?

A Right. He talks about beginning 1969 that he had an armed robbery

from Cook County, Illinois, and agg battery in ’71, armed robbery in ’75, a

bank robbery in ’75 that he was acquitted, bank theft in ’76, bank robbery

in ’77 and he got five years in prison, fraud, breach of trust in ’82, a

robbery in ’87, a theft in ’94 and an aggravated robbery in 1994. He just

didn’t have the certified copies of those convictions but he didn’t need but

one. 

Q Now the issue of the bi-polar and diabetes, did Mr. Myers [sic] ever

inform you of any of that as a possibility to use as mitigation?

A He did not. At the stages that we were preparing the case he

maintained his innocence. He didn’t offer any excuse of being bi-polar or

diabetic as an excuse for him committing the crime because the two were

180 degrees apart. You can’t say I didn’t commit the crime, but if I did, I

did it because I was bi-polar. So he never told me about that and here we

are at sentencing and the judge asked him questions and he says I

maintain my innocence here. This is the first time in my criminal career

that I’ve been innocent. And he again doesn’t say I did this because I’m

bi-polar or because I’m diabetic or what have you. So he had the

opportunity to raise it then and he didn’t raise it then.

Q That was page 153 of the transcript, is that correct?

A Correct.

. . . .

Q Now under the prior record, even though Mr. Webster referred to all

those crimes the defendant admitted in the record that he was guilty of

and maintained his innocence on this one. But admitted he was guilty of

those others with the exception of when he was acquitted. They weren’t

scored on this scoresheet were they?

A They were not. The one that he had the certified copy of was scored. 

And well, no, I take that back. It wasn’t even scored. He scored the

Case No. 4:11cv122-MP/CAS
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current charges. It looks like he scored the current robbery charge and

the secondary charge of agg. battery.

Q Okay. So if you’ll look to the second page of the scoresheet.

A He scores from 69 months lowest permissible sentence to Life in prison.

Q And 120 was the total sentencing points, is that correct?

A Correct. If you look in the transcript Judge Hood specifically made a

comment on the record, I don’t think this is a Life case. And Mr. Webster

argued for substantially more time. I wanted bottom of the guidelines and

he got pretty close to the bottom of the guidelines.

. . . .

Q Now were you ever informed or do you recall on the aggravated robbery

in ‘’94 what the resulting sentence was that Mr. Myers [sic] had received?

A I was told Mr. Myers [sic] had received five years. But now as to seeing

something to verify it I never saw anything to verify it.

Q Assuming that he was in fact sentenced to five years on the aggravated

robbery and all these other offenses could have been counted on the

scoresheet is that correct?

A Yes, sir.

Q And that sentence and I guess just based upon your experience without

seeing the numbers that it would have – the bottom of the guidelines

based upon the number of robberies that he had would have increased

[his] score well beyond, the bottom of the scoresheet well beyond 120

months, is that correct?

A I think that he got a very generous guideline scoresheet because had all

that other information been figured in and quite honestly we didn’t have to

sentence him that day we could have deferred sentencing and Mr.

Webster could have gotten copies of his other convictions and it would

have substantially raised his exposure beyond 120 months. But by going

ahead and sentencing him that day and using this criminal punishment

scoresheet he got the benefit of the fact that none of those priors were

added in.

Case No. 4:11cv122-MP/CAS
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Q And part of the PSI is to look at those priors and try to locate them and

verify priors, is that correct?

A That’s correct. When you get a PSI they will go back and all of those

prior cases will appear in the PSI and hence they will appear on the

scoresheet.

Q And I think as you pointed out as well given more time it would have

given the State itself more opportunity to locate the disposition in any

prison sentences he may have served even if they would have been out of

state.

A Mr. Webster knew about them. He just didn’t have the paperwork on

them.

. . . .

Q Did Mr. Myers [sic] ever request you after the sentencing took place to

file a motion to mitigate sentence?

A No.

Id. at 21-28. See id. Ex. B at 150-55 (transcript of discussion about need for PSI,

determination to proceed directly to sentencing, and sentencing proceeding). 

The record thus supports the post-conviction trial court judge’s determination that

Meyers had shown neither deficient performance nor prejudice. Nothing indicates the

state courts’ adjudication of this claim resulted in a decision that was either (1) contrary

to, or involved an unreasonable application of, clearly established U.S. Supreme Court

precedent, or (2) based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). This

ground should be denied. 

Case No. 4:11cv122-MP/CAS
Page 25 of 26

Conclusion

Based on the foregoing, Petitioner is not entitled to federal habeas relief. 

Accordingly, the § 2254 petition (Doc. 1) should be denied. Petitioner’s pending

motions (Docs. 48 and 49) should be denied as moot. 

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant,” and if a certificate is

issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” Rule 11(b) provides that a timely notice of appeal

must still be filed, even if the court issues a certificate of appealability. 

Petitioner 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 (2000)

(explaining substantial showing) (citation omitted). Therefore, the Court should deny a

certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order, the

court may direct the parties to submit arguments on whether a certificate should issue.” 

The parties shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P.

24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).

Case No. 4:11cv122-MP/CAS
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Recommendation

It is therefore respectfully RECOMMENDED that the Court DENY the § 2254

petition (Doc. 1). To the extent Petitioner has filed a motion to expedite, the Court

should also DENY that motion (Doc. 49), as well as the motion for clarification (Doc.

48), as both are now moot. It is further RECOMMENDED that a certificate of

appealability be DENIED and that leave to appeal in forma pauperis be DENIED. The

Clerk shall substitute Michael D. Crews for Kenneth S. Tucker as Respondent. 

IN CHAMBERS at Tallahassee, Florida, on September 23, 2013.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within fourteen (14) days after being served with a copy of this

report and recommendation. A party may respond to another party's objections

within fourteen (14) days after being served with a copy thereof. Failure to file

specific objections limits the scope of review of proposed factual findings and

recommendations.

Case No. 4:11cv122-MP/CAS