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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TIMOTHY WAYNE CHILTON,

Petitioner,

v. CASE NO. 5:11-cv-45-RH-GRJ

SECRETARY, FLORIDA DEPT.

OF CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 1, Petitioner’s pro se Petition for a Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition.”) The Petition stems from

Petitioner’s Bay County, Florida, convictions for two counts of vehicular homicide and

one count of leaving the scene of an accident with death, for which Petitioner is serving

a life sentence. Respondent filed a response and an appendix with relevant portions of

the state-court record (Docs. 21, 22, 23, 25), and Petitioner filed a reply. (Doc. 26.) 

Upon due consideration of the Petition, the response, the reply, and the state-court

record, the undersigned recommends that the Petition be denied. 

1

State-Court Proceedings

The relevant portions of the record may be summarized as follows. Petitioner

was charged with two counts of vehicular homicide, one count of leaving the scene of

 Because the Court may resolve the Petition on the basis of the record, the 1

Court has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.
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an accident involving death, one count of leaving the scene of an accident involving

personal injury, and one count of driving while license suspended or revoked involving

death after a Bay County collision in which two people were killed. (App. Ex. A.) Prior

to trial, Petitioner rejected a plea offer from the state for a total twenty-year sentence.

On the morning of jury selection, Petitioner changed his mind and decided to accept the

state’s offer. However, after speaking with the family of the victims, the state asserted

that the plea offer was no longer available, and Petitioner continued to trial. 

Petitioner was convicted of two counts of vehicular homicide, one count of

leaving the scene of an accident involving death, and one count of driving while license

suspended or revoked involving death. (Ex. A.) At sentencing, the parties and the

Court discussed Petitioner’s prior criminal convictions in Ohio. (Ex. B at 353-90.) The

trial court sentenced the Defendant to a life sentence after determining that the points

for Petitioner’s prior offenses were sufficient to qualify for a life sentence. (Ex. B at 392-

96.) After appeal, Petitioner’s convictions and sentences were affirmed per curiam

without opinion. (Ex. F; Chilton v. State, 959 So.2d 719 (Fla. 1st DCA 2007.)) 

Petitioner filed a postconviction motion pursuant to Fla. R. Crim. P. 3.850,

asserting that his trial counsel rendered ineffective assistance by failing to advise him

that if he rejected the State’s plea offer and was convicted at trial he faced a life

sentence based on his score sheet. (Ex. K.) The state court ordered an evidentiary

hearing and appointed postconviction counsel for Petitioner. (Id.) Following the

evidentiary hearing, the state court denied Petitioner’s motion, finding that he failed to

establish that even if he had been correctly advised he was facing a life sentence that

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he would have accepted the state’s plea offer. (Id. at 27.) The state court further held

that there was no evidence that the trial court would have accepted the plea deal

because twenty years was a substantial downward departure for such a crime. (Id.)

The First DCA affirmed per curiam without written opinion. (Ex. O; Chilton v. State, 49

So.3d 749 (Fla. 1st DCA 2010)(unpublished)). Petitioner also unsuccessfully pursued

state habeas relief. (Exs. G, J; Chilton v. State, 978 So.2d 848 (Fla. 1st DCA 2008.))

Petitioner then filed the instant habeas corpus petition, which Respondent concedes is

timely. 

Petitioner asserts three grounds for relief. First, Petitioner contends that his trial

counsel was ineffective for failing to advise him before he turned down the twenty year

plea offer that he could face a life sentence if convicted. Petitioner’s second claim is

that the circuit court erred by instructing the jury on voluntary intoxication when the

defense did not advance a voluntary intoxication defense. His third claim is that the trial

court erred in allowing a witness, named Mrs. Black, to testify to matters that were not

disclosed to the defense before trial. (Doc. 1.)

Section 2254 Standard of Review

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes limitations

on the scope of this Court's review. Under 28 U.S.C. § 2254(d)(2), a federal court may

not grant a state prisoner's application for a writ of habeas corpus based on a claim

already adjudicated on the merits in state court unless 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.” Under § 2254(e)(1), “a

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

and the petitioner “shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” “‘[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a different

conclusion in the first instance.’” Burt v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4

(2013) (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841(2010)).

As to legal findings, a petitioner is entitled to federal habeas relief only if the

state court's adjudication of the merits of the federal claim “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.” § 2254(d)(1); see Burt,

2013 WL 5904117, *4 (standard for reviewing claims of legal error by state courts is

“highly deferential.”) “[C]learly established Federal law, as determined by the Supreme

Court of the United States,” refers only to holdings (rather than dicta) of the Supreme

Court, but decisions of lower federal courts may be considered to the extent that they

demonstrate how those courts applied Supreme Court holdings. Hawkins v. Alabama,

318 F.3d 1302, 1309 (11th Cir. 2003) (citations omitted) (“the decisions of other federal

circuit courts (and our decisions for that matter) are helpful to the AEDPA inquiry only to

the extent that the decisions demonstrate that the Supreme Court's pre-existing, clearly

established law compelled the circuit courts (and by implication would compel a state

court) to decide in a definite way the case before them.”) See also, Carey v. Musladin,

549 U.S. 70, 74-77 (2006) (§ 2254 refers to holdings, rather than dicta, of the Supreme

Court, collecting circuit cases “[r]eflecting the lack of guidance from this Court” on the

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issue.) This standard “recognizes a foundational principle of our federal system: State

courts are adequate forums for the vindication of federal rights.” Burt, 2013 WL

5904117, *4 

The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have

independent meanings. Williams v. Taylor, 529 U.S. 362, 404-406 (2000); Bell v. Cone,

535 U.S. 685, 694 (2002) (citing Williams.) 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 [the Supreme] Court on a question of law or if the state court decides a

case differently than this Court has on a set of materially indistinguishable facts. Under

the “unreasonable application” clause, a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case. Williams, 529

U.S. at 412-13. “Avoiding these pitfalls [described in Williams v. Taylor ] does not

require citation of our cases-indeed, it does not even require awareness of our cases,

so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in original.) Further, “whether

a state court's decision was unreasonable must be assessed in light of the record the

court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004.)

In Gill v. Mecusker, 633 F.3d 1272 (11 Cir. 2011), the Eleventh Circuit clarified

th

how the federal habeas court should address the “unreasonable application of law” and

the “unreasonable determination of facts” tests. The court acknowledged the

well-settled principle that summary affirmances, such as the Florida First District Court

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of Appeal's in this case, are presumed adjudicated on the merits and warrant

deference. Id. at 1288 (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770,

784–85 (2011), and Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th

Cir. 2002.)) “A judicial decision and a judicial opinion are not the same thing,” and the

Supreme Court has confirmed that determining whether the state court unreasonably

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

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

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

habeas court “looks exclusively to the objective reasonableness of the state court's

ultimate conclusion or must also consider the method by which the state court arrives at

its conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244–45 (5th Cir.

2002) (summarizing the emerging circuit split.)) The Eleventh Circuit concluded that

district courts must apply the plain language of § 2254(d) and answer the “precise

question” raised in a claim based on the state court's ultimate legal conclusion, and

should not “evaluate or rely upon the correctness of the state court's process of

reasoning.” Id. at 1291. In short, the court stated, “the statutory language focuses on

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

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

role in habeas review because the district court considers the reasonableness of the

trial court's fact finding only to the extent that the state court's ultimate conclusion relied

on it. Id. at 1292. A federal habeas court can consider the full record before it to

answer “the only question that matters[:]” whether the state court's decision was

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objectively unreasonable. Gill, 133 F.3d at 1290.

Standard of Review for Ineffective Assistance Claims

The highly deferential standard of Section 2254 carries special force in habeas

cases asserting ineffective assistance claims: “Especially where a case involves such a

common claim as ineffective assistance of counsel under Strickland —a claim state

2

courts have now adjudicated in countless criminal cases for nearly 30 years—‘there is

no intrinsic reason why the fact that a man is a federal judge should make him more

competent, or conscientious, or learned . . . than his neighbor in the state courthouse.’” 

Burt, 2013 WL 5904117, *4 (quoting Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct.

3037 (1976.) As the Supreme Court explained, error alone is not enough, because

“[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different

from an incorrect application of federal law.” Harrington, 131 S.Ct. at 785 (quotation

marks omitted.) And “even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. at 786. 

In view of the deference afforded to the state courts’ adjudication of

constitutional claims, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court. AEDPA requires ‘a state

prisoner [to] show that the state court's ruling on the claim being presented in federal

Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that to prevail on a 2

constitutional claim of ineffective assistance of counsel, a defendant must demonstrate

(1) that his counsel’s performance was below an objective and reasonable professional

norm, and (2) that he was prejudiced by this inadequacy. A court may dispose of the

claim if a defendant fails to carry his burden of proof on either the performance or the

prejudice prong).

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court was so lacking in justification that there was an error . . . beyond any possibility for

fairminded disagreement.’” Burt, 2013 WL 5904117, *4 (quoting Harrington v. Richter,

562 U.S. ___, 131 S.Ct. 770, 786–787 (2011.)) “‘If this standard is difficult to

meet’—and it is—‘that is because it was meant to be.’” Id. (quoting Harrington, 131

S.Ct. at 786). “We will not lightly conclude that a State's criminal justice system has

experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” 

Id. (quoting Harrington, 131 S.Ct. at 786.) 

Even without the deference due under § 2254, the Strickland standard for

judging the performance of counsel “is a most deferential one.” Harrington, 131 S.Ct.

at 788. When combined with the extra layer of deference that § 2254 provides, the

result is double deference and the question becomes whether “there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Id. Double

deference is doubly difficult for a petitioner to overcome, and it will be a rare case in

which an ineffective assistance of counsel claim that was denied on the merits in state

court is found to merit relief in a federal habeas proceeding.

In Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399 (2012), and Lafler v. Cooper,

566 U.S. ___, 132 S.Ct. 1376 (2012), the Supreme Court held that the Sixth

Amendment right to effective assistance of counsel extends to plea negotiations. Frye,

566 U.S. ___, 132 S.Ct. at 1404–08; Lafler, 566 U.S. at ___, 132 S.Ct. at 1384. Thus,

criminal defendants are “entitled to the effective assistance of competent counsel”

during plea negotiations. Lafler, 566 U.S. at ––––, 132 S.Ct. at 1384 (internal quotation

marks omitted). The Court also considered how to apply the prejudice prong of the

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ineffective-assistance-of-counsel test set forth in Strickland and concluded that, in order

to show prejudice, a defendant must demonstrate a reasonable probability that: (1) he

would have accepted a plea offer but for counsel's ineffective assistance; (2) the plea

would have been entered without the prosecution canceling it or the trial court refusing

to accept it; and (3) the plea would have resulted in a lesser charge or a lower

sentence. Frye, 566 U.S. at ___, 132 S.Ct. at 1409; Lafler, 566 U.S. at ___, 132 S.Ct.

at 1384–85.

Discussion

Ground One: Ineffective Assistance of Counsel for Failing to Correctly Advise of

the Maximum Penalty

Petitioner’s first claim is that trial counsel was ineffective for failing to correctly

advise him that he could face a life sentence if convicted of his charges, which

precluded him from making an informed decision on the plea bargain offer. Petitioner

presented this claim in his Rule 3.850 postconviction motion. (Ex. K.) 

At the evidentiary hearing on the Rule 3.850 motion, Petitioner testified that his

counsel informed him that he was facing a thirty or thirty-five year maximum penalty if

convicted. (Ex. L at 51.) He testified that he nevertheless believed he had a strong

possibility of being convicted of a lesser offense and consequently receiving a lesser

sentence if he went to trial. (Ex. L at 54.) Petitioner testified that he was informed of

the plea offer, but he ran a “risk assessment” and took into account possible gain time,

in electing to go to trial rather than accepting the plea deal. (Ex. L at 55.) He testified

that he did not become aware that he faced a life sentence until the day of the

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sentencing, and he did not see his score sheet until twenty-one months after he was

sentenced. (Ex. L at 56.) 

Petitioner’s trial counsel, James Dowgul, also testified at the hearing. He

testified that he would have advised Petitioner of the statutory maximum penalty for the

charges, which was fifty-five years on all charges. (Ex. L at 78.) Mr. Dowgul testified

that he never advised Petitioner that he was eligible for a life sentence because he was

unaware that he faced one based on his prior offenses. (Ex. L.) Mr. Dowgul recalled

that he discussed the state’s plea deal offer with Petitioner and believed that it was a

reasonable offer, but Petitioner was hostile to any plea offer. (Ex. L at 80.) Mr. Dowgul

testified that his notes reflect that Petitioner would not even accept time served,

because Petitioner’s defense was that he was not the driver of the vehicle. (Ex. L.) Mr.

Dowgul further stated that he did not see Petitioner’s score sheet until the day of, or day

before sentencing and, thus, he was unaware that Petitioner faced a possible life

sentence until that time. (Ex. L.)

In rejecting this claim on postconviction review, the state court summarized the

testimony adduced at the evidentiary hearing and found that Petitioner failed to

establish that he would have accepted the plea offer if he had been correctly advised of

the maximum penalty. The state court found that there was no evidence that the court

would have accepted the plea deal, given that the sentence was a substantial

downward departure for such a conviction. Based upon this finding the Court concluded

that Petitioner failed to establish any prejudice from counsel’s failure to correctly advise

of the maximum sentence. (Ex. K at 28-29.) The state court explained that although

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Petitioner claimed he performed a risk assessment when he was offered the plea, even

a 55 year sentence would have resulted in the equivalent of a life sentence because the

Petitioner was 45 years old at that time. (Id at 28.) 

The court also noted that trial counsel testified that Petitioner was hostile to any

plea deal.

Trial counsel testified that at the time he communicated the plea offer to

the defendant, the defendant was not receptive to any plea offer. Prior to

the plea offer being made, trial counsel testified the defense was that the

defendant was not the driver of the vehicle. The defendant was adamant

that he was not the driver and that he was not even willing to accept time

served. However, at the time of the plea offer, trial counsel gave the

defendant a copy of the FDLE lab report which showed the defendant’s

DNA was located on the driver’s side airbag of the vehicle. Because of

this DNA evidence, trial counsel correctly advised the defendant that his

claim of not being the driver was significantly weakened and that the

defendant should consider accepting the offer. Trial counsel even had the

Assistant Chief Public Defendant, Doug White, go and talk to the

defendant about accepting the plea offer. Indeed, trial counsel persuaded

the Assistant State Attorney to keep the plea offer open until the Friday

before the trial week. Trial counsel also asked the defendant’s brother to

talk to the defendant about accepting the plea offer. The evidence does

establish that after a jury had been selected but before the opening

arguments were made, the defendant did express an interest in accepting

the plea offer of 20 years but by that time the victim’s family had objected

and the State had withdrawn the offer. With this factual background the

Court finds the defendant’s self-serving statement after trial, conviction

and sentence that, with knowledge he could have faced life imprisonment

instead of 55 years, he would have accepted the plea offer of 20 years is

not credible . . . To allow the defendant to now say he would have

accepted the plea would reward the defendant for his unwillingness to

consider an plea offer at the time of the offer when he knew of the

strength of the evidence against him and the circumstances surrounding

the offense he was charged with. The defendant also should have known

a sentence of 20 years was not unreasonable given the seriousness of

the charges against him involving the death of two individuals. 

The defendant has proved that if the defendant had accepted the plea

offer, he would have received the lesser sentence of 20 years instead of

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the sentence he did receive. However, there is no evidence that the Court

would have accepted the plea offer. The Court notes that there was no

score sheet available at the time the plea offer was made but it would

have been available at the time of the Court accepting the plea and

sentencing. The 20 year plea offer was a substantial downward departure

from the ultimate score sheet sentence range. The Court could have

reasonably rejected the plea offer given the defendant’s prior record. 

Because the Defendant failed to establish that he would have accepted

the plea if he had known he faced a life sentence, the defendant is not

entitled to relief under his Motion for Post Conviction Relief. (Ex. K at 29-

30.) 

The court concluded that Petitioner’s “self-serving” testimony after the trial,

conviction, and sentencing – that he would have accepted the plea deal if correctly

advised – was “not credible.” (Id. at 29.)

“Determining the credibility of witnesses is the province and function of state

courts, not a federal court engaging in habeas review. Federal habeas courts have ‘no

license to redetermine credibility of witnesses whose demeanor was observed by the

state court, but not by them.’” Consalvo v. Secretary for Dept. of Corrections, 664 F3d

842, 845 (11 Cir. 2011) (quoting Marshall v. Lonberger, 459 U.S. 422 (1983)). th

Questions about the credibility of a witness involve a question of fact, and “the AEDPA

affords a presumption of correctness to a factual determination made by a state court.” 

Id. It is Petitioner’s burden to rebut the presumption of correctness by clear and

convincing evidence. Burt v. Titlow, ___ U.S. ___, 2013 WL 5904117, *4.

Petitioner has pointed to no evidence demonstrating why this Court should

disregard the conclusion of the state court. To the extent that Petitioner relies upon his

own testimony to support his claim, Petitioner’s testimony is wholly insufficient to rebut

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the state court’s factual determination that Petitioner’s testimony was not credible under

the circumstances. 

During the time Petitioner’s habeas case has been pending before this Court, the

Supreme Court decided Missouri v. Frye, __ U.S. ___, 132 S.Ct. 1399 (2012) and

Lafler v. Cooper, __ U.S. __. 132 S.Ct. 1376 (2012). Under Frye and Lafler, a

Defendant is required to demonstrate a reasonable probability that: (1) he would have

accepted a plea offer but for counsel's ineffective assistance; (2) the plea would have

been entered without the prosecution canceling it or the trial court refusing to accept it;

and (3) the plea would have resulted in a lesser charge or a lower sentence. Frye, 132

S.Ct. at 1409; Lafler, 132 S.Ct. at 1384–85. While Petitioner did establish at the 3.850

hearing that the plea deal would have resulted in a lower sentence, he was unable to

establish that he would have accepted the plea but for counsel’s ineffectiveness or that

the trial court would have accepted it. (Ex. K.) Although the state trial court did not

have the benefit of Frye and Lafler at the time the trial court issued its decision on

Petitioner’s Rule 3.850 motion, the trial court nonetheless specifically addressed two of

the Frye and Lafler elements. The trial court found that: (1) “the defendant has failed to

establish that he would have accepted the offer if he had been correctly advised,” and

(2) “there is no evidence that the Court would have accepted the plea offer.” (Ex. K at

28-29.) Thus, under Frye and Lafler the Petitioner has not demonstrated a reasonable

probability that the result would have been different.

Accordingly, on this record, and in view of the deference afforded to the state

court’s rejection of this ineffective-assistance claim on the merits, the Court concludes

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that Petitioner has failed to show that he is entitled to federal habeas corpus relief.

Claim Two: The Trial Court Erred by Instructing the Jury on Voluntary Intoxication

In his second claim, Petitioner argues that “the circuit court erred by instructing

the jury on voluntary intoxication where Defendant did not advance a voluntary

intoxication defense in violation of the Sixth and Fourteenth Amendments to the United

States Constitution.” Petitioner’s counsel objected to this instruction. (Ex. C at 579,

628.)

Respondent contends that this claim is unexhausted. Before a petitioner files a

federal habeas petition, he is required to exhaust all state court remedies that are

available for challenging his conviction, either on direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion requires Petitioner to give

the Florida state courts a “full and fair opportunity” to resolve all his federal

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

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999.) To

properly exhaust a federal claim, a petitioner must “fairly present” the claim in each

appropriate state court, thereby affording the state courts a meaningful opportunity to

“pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (quotation omitted.)

Respondent contends that Petitioner did not fairly present at the state level the

claim that the trial court erred in instructing the jury on voluntary intoxication in violation

of his federal constitutional rights. Specifically, Respondent contends that Petitioner did

not present any federal due process argument in state court but only argument based

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upon state law. 

The Court concludes that this claim was fairly presented to the state court on

appeal. (Ex. E.) In the argument section of the brief on direct appeal, Petitioner clearly

presented this issue as a federal due process argument. For example, on page 37 of

Petitioner’s brief on direct appeal, he argues that “the trial court violated appellant’s

right to due process of law by giving the instruction at issue. U.S.C.A. amends. 5 & 14.” 

(Ex. E.) Under these circumstances, the issue has been fairly presented to the state

court and thus this claim must be evaluated on the merits. As discussed above, the

Court presumes that the DCA adjudicated the issue on the merits, thus requiring

deference, where, as here, the DCA affirms the trial court decision summarily. Gill, 633

F.3d 1272, 1288.

Jury instructions are a matter of state law, and are evaluated in the context of the

overall charge to the jury as a component of the entire trial process. United States v.

Frady, 456 U.S. 152, 169 (1982). The inquiry on habeas review is whether there is a

“reasonable likelihood” that the jury applied the challenged instruction in a way that

violates the Constitution. Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991.) 

Reviewing the state court’s instruction in the context of the entire proceeding,

there is not a “reasonable likelihood” the jury applied the instruction in a way that

violated Petitioner’s federal constitutional rights. The instruction that voluntary

intoxication is not a defense was correct under state law. FLA. STAT. ANN. § 775.05.

(“Voluntary intoxication . . . is not a defense to any offense proscribed by law.”) 

The instruction was consistent with the evidence presented at trial. At trial

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testimony had been adduced that the driver of the vehicle was stumbling and appeared

to lay witnesses at the scene to be drunk. Consequently, the instruction to the jury on

voluntary intoxication was appropriate and thus there is no argument that Petitioner’s

due process rights were violated when the jury was given this instruction. 

Accordingly, the Court concludes that the state court’s rejection of this claim was

not contrary to, or an unreasonable application of, federal law. Petitioner’s is, therefore,

not entitled to federal habeas relief on this claim.

Claim Three: The Trial Court Erred by Allowing Ms. Black to Testify to Matters Not

Disclosed to the Defense 

Petitioner’s third claim is that “the trial court erred in allowing Ms. Black to testify

to matters that were not disclosed to the defense violating the defendant’s Fifth, Sixth

and Fourteenth Amendments of the United States Constitution.” Respondent again

argues that this claim is unexhausted because it was not fairly presented to the state

court. The Court disagrees. This claim was presented on direct appeal. In Petitioner’s

first ground presented on appeal Petitioner claimed that “[t]he trial court violated

appellant’s right to due process by conducting an inadequate Richardson inquiry and by

allowing the state to present testimony that was the opposite of what had been provided

in discovery and which was disclosed to defense counsel the first day of trial.” The

Court, therefore, has no trouble concluding that this issue has been properly exhausted.

(Ex. E.) 

Turning to the merits of Petitioner’s claim, Petitioner alleges that the trial court

denied him the opportunity to have a fair and impartial trial by permitting the state to

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introduce the testimony of a witness, the full extent of which was not disclosed to the

defense until the evening prior to trial. Respondent disputes this characterization,

asserting that the state disclosed the witness in the state’s request for a subpoena to

bring the witness in question to Florida to testify. The state’s request “indicated the

witness had additional conversations with the defendant about him being the driver.”

According to the State, this information was hand-served on defense counsel on

September 15, 2005, more than two weeks before trial. 

At trial, defense counsel requested exclusion of the witness’ testimony. The trial

court denied the request. Petitioner’s counsel did not request a continuance, although

the trial court did permit the witness to be called out of order so that a transcript of her

deposition could be prepared for impeachment purposes. (Ex. C at 145-154.) 

The testimony that Petitioner objects to is inculpatory, rather than exculpatory

and, therefore, Brady does not apply. Further, the failure to disclose inculpatory 3

evidence does not violate due process. Weatherford v. Bursey, 429 U.S. 545 (1977).

 With regard to the dispute concerning the timing of the disclosure, even

assuming Petitioner’s allegations are correct that the defense did not learn of this

evidence until the night before trial that fact is not sufficient to give rise to a

constitutional violation. The Supreme Court has held that a defendant “does not have a

constitutional right to notice of the evidence which the state plans to use to prove the

Brady v. Maryland, 373 U.S. 83, 87 (1963). Brady held that “the suppression by 3

the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.

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charges, and Brady, which addressed only exculpatory evidence, did not create one.” 

Gray v. Netherland, 518 U.S. 152, 154 (1996.) 

The fact of the matter is that the prosecution had to resort to filing a motion to

obtain Mrs. Black’s testimony because she was an unwilling witness. Once it was made

known that the witness had information that the Petitioner was the driver of the vehicle,

the trial court directed that the witness should be deposed and a transcript provided for

use at trial. There is no suggestion that the prosecution deliberately attempted to

mislead the Petitioner or that the disclosure of the testimony of this witness, even

shortly before trial, resulted in any fundamental unfairness.

Accordingly, the Court cannot conclude that the state court’s decision to permit

the witness, Ms. Black, to testify to matters that were not disclosed to the defense until

shortly before trial, was contrary to, or an unreasonable application of, Federal law.

Petitioner, therefore, is not entitled to federal habeas relief on this claim.

Certificate of Appealability

Section 2254 Rule 11(a) provides that “[t]he district court must issue or deny a

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

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

showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

Case no.: 5:11-cv-45-RH-GRJ
Page 19 of 19

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Therefore, the undersigned recommends that the district court deny a certificate of

appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument

to the attention of the district judge in the objections permitted to this report and

recommendation.

In light of the foregoing, it is respectfully RECOMMENDED:

1. The Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 

(Doc. 1) should be DENIED.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 27 day of January 2014. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 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.: 5:11-cv-45-RH-GRJ