Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

NICHOLAS VAUGHN

Petitioner,

vs. CASE NO.: 5:10cv217/RS/MD

KENNETH S. TUCKER,

Respondent.1

______________________________________________________________________

REPORT AND RECOMMENDATION

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

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

portions of the state court record (doc. 30). Petitioner filed a response (doc. 35). 

The matter is referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After

careful consideration of all issues raised by petitioner, it is the opinion of the

undersigned that no evidentiary hearing is required for the disposition of this matter,

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

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

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

petition is without merit and should be denied.

1

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

and is substituted as the respondent. 

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 1 of 28
Page 2 of 28

BACKGROUND AND PROCEDURAL HISTORY

The petitioner, Nicholas Vaughn, was charged with selling cocaine in case

number 04-4340 in the Circuit Court of Bay County, Florida, in violation of Sections

893.03 and 893.13, Florida Statutes (2004) (doc. 30, ex. B, p. 7).2 Mr. Vaughn was

tried by jury and found guilty of the charge on November 17, 2005. (Ex. C, p. 272). 

On January 3, 2006, the court adjudicated him a habitual offender under Florida law

and sentenced him to a term of thirty years imprisonment with 386 days of credit

time (ex. C, pp. 288-292).

Mr. Vaughn appealed the conviction and sentence to the First District Court

of Appeal (“First DCA”). (Ex. C, p. 302). On November 8, 2007, the First DCA per

curium affirmed the conviction and sentence without written opinion. Vaughn v.

State of Florida, 973 So.2d 1132 (Fla. 1st DCA 2007) (Table) (copy at ex. C, p. 376). A

motion for rehearing was denied on January 31, 2008 (ex. Q).

On March 12, 2008, Mr. Vaughn filed a motion for reduction or modification of

sentence pursuant to Rule 3.800(c), Florida Rules of Criminal Procedure (ex. C, p.

377). He averred the goals of sentencing could be accomplished with a sentence of

fewer years (Id. at 377-78). The trial court denied the motion in open court on March

20, 2008 (ex. D, p. 475).

On September 11, 2008, Mr. Vaughn filed a motion for post-conviction relief

pursuant to Rule 3.850, Florida Rules of Criminal Procedure (ex. D, p. 476-518). He

alleged eleven grounds for relief based on ineffective assistance of counsel (id.). 

The Rule 3.850 court held an evidentiary hearing on April 24, 2009 (ex. L, p. 631-83). 

At the conclusion of the hearing, the Rule 3.850 judge granted the State’s motion for

directed verdict and denied all of Mr. Vaughn’s grounds for relief (ex. L, pp. 679-81).

The court entered a written order on May 6, 2009 (ex. E, pp. 606-610).

Mr. Vaughn appealed, arguing, “the trial court erred in denying [his] motion

for post-conviction relief.” (Ex. R). His brief on appeal only addressed grounds one

2

 Hereafter all references to exhibits will be to doc. 30 unless otherwise noted.

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 2 of 28
Page 3 of 28

through six and ten of his post-conviction motion (Ex. R, pp. 11-12). It did not

address grounds seven through nine or eleven. On June 11, 2010, the First DCA per

curiam affirmed the Rule 3.850 court’s decision (ex. T). The mandate issued on June

29, 2010 (Ex. U).

On August 23, 2010, Mr. Vaughn filed the instant petition for writ of habeas

corpus (doc. 1). Respondent states it appears the petition is timely (doc. 30, p. 23).

STANDARD OF REVIEW 

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

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

Penalty Act of 1996 (“AEDPA”). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. In

relevant part, § 2254 provides:

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

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

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

court proceedings unless the adjudication of the claim–

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d) (2006).

The United States Supreme Court explained the framework for § 2254 review

in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).3

 Section

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

3

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

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

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

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

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

Breyer.

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 3 of 28
Page 4 of 28

Under the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached

by this court on a question of law or if the state court decides a case

differently than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a federal habeas

court may grant the writ if the state court identifies the correct

governing legal principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

Id., 529 U.S. at 412–13 (O’Connor, J., concurring). The federal habeas court

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

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

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

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

(2009).

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

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

court proceeding, the federal court should first ascertain the “clearly established

Federal law,” namely, “the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade,

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

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

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

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

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

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

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

(2010)).

After identifying the governing legal principle, the court determines whether

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

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 4 of 28
Page 5 of 28

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

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

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

cases or even be aware of them, “so long as neither the reasoning nor the result of

the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct.

362, 365, 154 L. Ed. 2d 263 (2002). If the state court decision is contrary to clearly

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

merits of the petitioner’s claim.

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

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

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

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

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

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

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

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

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

v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737–38, 159 L. Ed. 2d 683 (2004) (per

curiam)); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851 n.4, 152 L. Ed.

2d 914 (2002) (declining to consider evidence not presented to state court in

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

application of federal law is objectively unreasonable when the state court “identifies

the correct legal rule from Supreme Court case law but unreasonably applies that

rule to the facts of the petitioner’s case” or “unreasonably extends, or unreasonably

declines to extend, a legal principle from Supreme Court case law to a new context.”

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

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

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 5 of 28
Page 6 of 28

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

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

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the

merits in state court where that adjudication “resulted in a decision that was based

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

the State court proceeding.” 28 U.S.C. § 2254(d)(2). As with the “unreasonable

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

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

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

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

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

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

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

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

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

Amendment right to counsel.4 The Eleventh Circuit granted a limited Certificate of

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

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

reasoning.” Id. at 1286.5

4

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

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

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

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

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

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

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

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

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

5

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

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

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

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

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 6 of 28
Page 7 of 28

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

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

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

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

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

Court has confirmed that determining whether the state court unreasonably applied

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

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

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

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

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

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

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

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

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

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

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

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

result, not on the reasoning that led to the result.” Id.6

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[:]”

waived his right to counsel. Id.

6

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

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 7 of 28
Page 8 of 28

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

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

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

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

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

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

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

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

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

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

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

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

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

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

(2007) (same). The writ will not issue unless the petitioner shows that he is in

custody “in violation of the Constitution or laws and treaties of the United States.” 

28 U.S.C. § 2254(a). When performing its review under § 2254(d), the federal court

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

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

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

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

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

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

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

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

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

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

Ct. at 786. 

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 8 of 28
Page 9 of 28

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel.

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

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

provides: “[i]n all criminal prosecutions, the accused shall enjoy the right. . .to have

the Assistance of Counsel for his defence.” U.S. Const. amend. VI. To prevail on a

claim of ineffective assistance of counsel, the petitioner must prove: (1) “counsel’s

representation fell below an objective standard of reasonableness;” and (2) “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 677-678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Berghuis v.

Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L. Ed. 2d 1098 (2010). 

Reasonableness of representation does not implicate what is possible, prudent, or

even appropriate, but only what is “constitutionally compelled.” Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing Burger v. Kemp, 483 U.S. 776, 794,

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

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

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

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

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

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

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

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

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

Even if many reasonable lawyers would not have done as defense

counsel did at trial, no relief can be granted on ineffectiveness grounds

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

would have done so. This burden, which is petitioner’s to bear, is and

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

lawyers’ performances; we are interested in whether the adversarial

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 9 of 28
Page 10 of 28

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

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

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

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

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

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

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

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

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

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

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

been different. Frazier v. Bouchard, __ F.3d __, 2011 WL 5059247 *9 (11th Cir. Oct. 25,

2011); Marquard, 429 F.3d at 1305 (petitioner’s burden under the prejudice prong is

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

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

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

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

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

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

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

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

emphasized:

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

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

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

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 10 of 28
Page 11 of 28

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

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

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

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

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

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

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

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

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

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

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

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

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

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

See Rogers, 13 F.3d at 386.

Exhaustion of state remedies and Procedural Default

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

(doc. 30, pp. 58-60, 66-69). A petitioner defaults on an issue unless the petitioner

first exhausts available state court remedies so the state has the “‘opportunity to

pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan

v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865 (1995) (per curiam);

see 28 U.S.C. § 2254(b)(1)(A) (applicant must exhaust available state court remedies);

§ 2254(b)(3) (state may rely on exhaustion requirement unless it expressly waives

the right). But see § 2254(b)(2) (application may be denied on the merits even when

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

the petitioner must “fairly present” his claim in each appropriate state court, alerting

that court to the federal nature of the claim. Duncan, 513 U.S. at 365-66, 115 S. Ct.

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 11 of 28
Page 12 of 28

at 888; see O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed.

2d 1 (1999) (same). This affords the state courts “one full opportunity to resolve any

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

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

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

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

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

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

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

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

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

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

authority only by referring to a state court decision in which “the defendant. . .

asserted a broad federal due process right to jury instructions that properly explain

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

presented if the state court “must read beyond a petition or a brief (or a similar

document) that does not alert it to the presence of a federal claim in order to find

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

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

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

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

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

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

The Eleventh Circuit requires specific reference to the United States

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

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

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

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 12 of 28
Page 13 of 28

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

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

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

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

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

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

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

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

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

case advanced a federal claim). 

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

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

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

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

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

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

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

constitutional claim on state procedural grounds generally precludes subsequent

federal habeas review of that claim). The Eleventh Circuit recently stated:

Nonetheless, comity does not demand that we give preclusive

effect to a state court decision disposing of a claim on state grounds

unless: (1) the state court has plainly stated that it is basing its decision

on the state rule; (2) the state rule is “adequate,” i.e., not applied in an

arbitrary manner; and (3) the state rule is “independent,” i.e., the federal

constitutional question is not intertwined with the state law ruling.

Frazier v. Bouchard, __ F.3d __, 2011 WL 5059247 *2 (11th Cir. Oct. 25, 2011). Unless

the federal court determines the state court “clearly and expressly” relied on

independent and adequate state grounds, the federal court may address the

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 13 of 28
Page 14 of 28

petition.7 Coleman, 501 U.S. at 735, 111 S. Ct. at 2557. However, when any future

attempt to exhaust state remedies would be futile under the state’s procedural

default doctrine, the default is per se adequate state grounds independent of the

federal question. Id. at 735 n.1, 2557 n.1; Harris v. Reed, 489 U.S. 255, 263 n.9, 109

S. Ct. 1038, 1043 n.9, 103 L. Ed. 2d 308 (1989) (federal habeas court need not require

a federal claim be presented to a state court if the state court would hold the claim

procedurally barred).

The adequacy of a state procedural bar to the assertion of a federal question

is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 885, 151

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

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

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

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

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

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

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

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

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

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

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

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

impediment, such as governmental interference or the reasonable unavailability of

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

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

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

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

7

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 14 of 28
Page 15 of 28

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

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

Ed. 2d 808 (1995). Further:

[A] substantial claim that constitutional error has caused the conviction

of an innocent person is extremely rare. To be credible, such a claim

requires [a] petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial.

Id. In short, actual innocence claims opening the gate for the miscarriage of justice

exception are summarily rejected in virtually every case. Id.

Deference to state court findings of fact

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

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

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

(“§ 2254(d)(2) allows for relief where the state court adjudication ‘resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’ § 2254(d)(2).”); see also

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

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

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

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

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

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

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

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

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

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

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

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 15 of 28
Page 16 of 28

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

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

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

rest solely on a state procedural bar.”).

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

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

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

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

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

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

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

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

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

PETITIONER’S GROUNDS FOR RELIEF

Grounds One through Six

Grounds One through Six challenge portions of testimony elicited at trail

regarding the general practices of drug dealers. Mr. Vaughn alleges his trial

counsel, Alvin Peters, was ineffective for failing to object to impermissible testimony

describing “criminal behavior pattern, i.e., the practices of drug dealers.” (Doc. 1,

p. 4). For each ground, he claims his counsel’s deficiencies prejudiced him by:

(1) allowing the testimony to go unchalleneged; (2) denying the Trial

Court an opportunity to read a curative instruction; (3) not preserving

the issue for plenary review; and (4) denying Petitioner due process

and a fair trial.

(Id. at 4-8). Mr. Vaughn avers the testimony was highly prejudicial because it invited

the jury to infer that he was a drug dealer simply because his behavior was similar

to that of other drug dealers (Id. at 4). Mr. Vaughn’s federal petition mirrors his state

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 16 of 28
Page 17 of 28

post-conviction motion, which also raised these claims as grounds one through six

(ex. D, pp. 481-94).

State Court Decision

The Rule 3.850 court held an evidentiary hearing on the motion (ex. L). During

cross-examination, Mr. Vaughn agreed that his counsel’s strategy at trial was to

discredit the confidential informant by showing that he was a drug dealer with a

vendetta who set up Mr. Vaughn (ex. L, pp. 651-55). He conceded that testimony

about what drug dealers do could have helped his attorney establish that the

confidential informant was a drug dealer (id. at 655). The Rule 3.850 court denied his

grounds for relief at the hearing. The Rule 3.850 judge found that Mr. Peters’ actions

were based on sound trial strategy:

. . .Mr. Vaughn, the strategy that’s been presented by the State and that

was presented at your trial, from my view, made excellent sense given

the facts. And you know, the cases that you cited in your Motion and

that have been argued by Mr. Alldredge, you know, those cases apply

to trials, but you don’t look at them in a vacuum. And in this instance,

the strategy was to prove, by evidence, of what drug dealers do, that

you got duped by, and set up by a two-time convicted confidential

informant. And you know, one of the strategies that are typically

employed in cases like this, is to show the Jury just how believable

your client is and how candid your presentation is, is you admit, we’re

not sitting here arguing that it’s not cocaine, it’s obviously, it’s cocaine,

that’s not a defense to this case because we didn’t do it. And so the

point being this, that when we look at the totality of the circumstances

in this case, the way it was presented, the colloquys [sic] that occurred

between you and me about your right to testify, first of all, Mr. Peters’

performance did not fall below the standard expected of lawyers, it

exceeded it. . ..

(Ex. L, pp. 679-70). 

The court also issued a written order denying relief, stating in part: “Other

testimony regarding drug dealers’ habits were not inconsistent with defense’s trial

strategy; therefore, trial counsel’s tactical decisions were reasonable and not

deficient.” (Ex. E, p. 608).

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 17 of 28
Page 18 of 28

Federal Review of State Court Decision

The Rule 3.850 court set out the standard that governs ineffective assistance

of counsel claims based on Strickland, supra. (Ex. E, pp. 606-07). The court applied

clearly established federal law and concluded Mr. Vaughn did not show his

counsel’s performance was deficient. It did not address prejudice, nor was it

required to. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (the court may reject an

ineffective assistance claim if petitioner fails to carry his burden on either of the two

prongs).

The Rule 3.850 court acknowledged that the prosecution and the defense

elicited testimony at trial regarding the habits of drug dealers (ex. E, p. 607). Rule

403, Florida Rules of Evidence, states in part:

Relevant evidence is inadmissible if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.

Fla. Stat. § 90.403. Florida courts have repeatedly held: 

[G]eneral criminal behavior testimony based upon a law enforcement

officer’s observations and experience in the investigation of other

cases is inadmissible as substantive proof of a defendant’s guilt,

because a defendant has a right to be tried based on the evidence

against him or her, not on the characteristics or general behavior of

certain classes of criminals in general.

Baskin v. State of Florida, 732 So.2d 1179, 1180 (Fla. 1st DCA 1999). See, e.g., Dean

v. State of Florida, 690 So.2d 720, 723 (Fla. 4th DCA 1997) (detective’s testimony

about behavior patterns of drug dealers was not isolated and substantially affected

defense; the “patently prejudicial testimony” was not harmless); Lowder v. State of

Florida, 589 So.2d 933, 935 (Fla. 3d DCA 1991) (detective’s testimony that “people

who sell narcotics usually have cash in their pockets” was reversible error),

dismissed, 598 So.2d 78 (Fla. 1992). However, “[t]he Supreme Court has recognized

that defense counsel in defending their client’s interests, need not urge every

conceivable objection the law would provide.” Hubbard v. Haley, 317, F.3d 1245,

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 18 of 28
Page 19 of 28

1259 (11th Cir. 2003) (citing Engle v. Isaac, 456 U.S. 107, 133-34, 102 S. Ct. 1558, 1575,

71 L. Ed. 2d 783 (1982)). The Rule 3.850 court determined defense counsel’s

decision not to object to generally impermissible testimony, and to elicit such

testimony, was a matter of trial strategy:

. . .According to trial transcripts and testimony of the Defendant, the

defense strategy was to show that the confidential informant, Thomas

Ray, was a drug dealer. Defense counsel wanted to show to the jury

that some drug dealers conduct their transactions outside and, at

times, store their drugs outside. This was offered to show how Mr. Ray

could have stored the cocaine outside; he then induced the Defendant

to come to his house. Mr. Ray, according to defense, owed the

Defendant $50. He gave the Defendant the money, thus simulating a

drug purchase. Mr. Ray then took cocaine, which was already stored

outside, to the police and represented it as drugs purchased from

Defendant.

Other testimony regarding drug dealers’ habits were not

inconsistent with defense’s trial strategy; therefore, trial counsel’s

tactical decisions were reasonable and not deficient.

(Ex. E, pp. 607-08).

 Matters of trial strategy generally do not constitute ineffective assistance. 

“We have long held that the fact that a particular defense was unsuccessful does not

prove ineffective assistance of counsel.” Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir.

2010) (citing Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000)); see

Felker v. Thomas, 52 F.3d 907, 912 (11th Cir. 1995) (whether to pursue residual doubt

or another defense is strategy left to counsel, which court must not second-guess);

Stanley v. Zant, 697 F.2d 955, 964 (11th Cir. 1983) (reliance on line of defense to

exclusion of others is matter of strategy). But not every strategic decision passes

constitutional muster. Whether a particular decision by counsel was a tactical one

is a question of fact, Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003), and the

state court's resolution of that issue enjoys a strong presumption of correctness. 

See 28 U.S.C. § 2254(e)(1); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995). 

Whether a particular tactical decision was a reasonable one, however, is a question

of law, Hardwick, 320 F.3d at 1163; Jackson, 42 F.3d at 1367. “[A] tactical or

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 19 of 28
Page 20 of 28

strategic decision is unreasonable if it is based on a failure to understand the law.” 

Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003).

Grounds One through Six challenge trial testimony regarding general

practices of drug dealers. Lieutenant Faith Bell was present during the controlled

buy at confidential informant Thomas Ray’s residence and collected two crack

cocaine rocks from him after he met with Mr. Vaughn (Ex. J, pp. 138-45). Ground

One focuses on testimony the prosecution elicited on direct examination. He

questioned Lieutenant Bell about two short phone conversations between Mr. Ray

and Mr. Vaughn:

Q. Are the conversations normally pretty long?

A. Very short, most drug dealers don’t want to talk on the

phone any more.

(Ex. J, p. 141). Mr. Peters did not object. 

Ground Two alleges Investigator Bell and others testified that “$50.00 was a

common amount of money used to purchase crack cocaine.” (Doc. 1, p. 5). Mr. Ray,

Lieutenant Bell, and Captain Ramie testified that cocaine is commonly purchased in

quantities worth fifty dollars. (Ex. I, p. 45; ex. J, pp. 145, 167).

Ground Three alleges testimony elicited by Captain Ramie on direct

examination was highly prejudicial because it inferred Mr. Vaughn could have been

hiding drugs in a body cavity. The prosecution questioned Mr. Ramie about

searching Mr. Vaughn:

Q. Are you aware if the defendant was, that Investigator

Plummer searched him?

A. Yes, sir.

Q. Do you know if he performed a cavity search?

A. No, sir.

Q. Has there been a change in your office policy about

searches?

A. Most recently we have found that a lot of the people we

come in contact with, through trying to deter us from finding narcotics,

they put it in their genital area or backs of their pants so, yes, sir, we

have done a lot more strip searching.

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 20 of 28
Page 21 of 28

Q. So is it fair to say that cavity searches are more prevalent

now?

A. Yes, sir.

(Ex. I, pp. 172-73). The prosecution’s line of questioning on this subject had no

meaningful impact on the trial. Captain Ramie stated he had no personal knowledge

of whether anyone performed a cavity search on Mr. Vaughn. Although he testified

that cavity searches are more prevalent, the jury could just as easily infer that the

police broke standard procedure by failing to conduct a cavity search. The

testimony was not helpful to the prosecution, Mr. Peters’ decision not to object was

not unreasonable.

Ground Four attacks Mr. Peters’ cross-examination of Lieutenant Bell (see

doc. 1, p. 6):

Q: In your experience do drug dealers sometimes hide drugs

outside their reddens (sic)?

A: Dealers, not users.

Q: Dealers do?

A: Drug dealers have, a type of dealers that stand around in

yards and sell out of yards, in my experience I’ve seen that.

Q: You didn’t search the outside of this dwelling did you?

A: No.

(Ex. J, p. 152). Contrary to Mr. Vaughn’s contention that Mr. Peters’ first question

was prejudicial, the line of questioning was part of his trial strategy to impeach Mr.

Ray’s credibility and portray him as a drug dealer. Counsel focused on the evidence

that Mr. Ray had drugs, drug paraphernalia (including scales), a gun, ammunition,

and barking dogs to compare him to a “typical” drug dealer (ex. J, pp. 148-52). Mr.

Vaughn cannot show his counsel’s strategy of portraying Mr. Ray as a drug dealer

who was motivated to set up Mr. Vaughn to avoid being arrested constituted

deficient performance or resulted in prejudice.

Mr. Vaughn’s fifth ground alleges trial counsel’s failure to object to Lieutenant

Bell’s statement that the cocaine recovered came from him improperly bolstered the

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 21 of 28
Page 22 of 28

prosecution’s case (doc. 1, p. 7). He states: “Such testimony allowed the jury to

infer that because “Detective Bell believed so, it must be so. . ..” (Id.).

Mr. Vaughn quotes testimony Mr. Peters elicited from Lieutenant Bell on

cross-examination:

Q: And can you say that from your own personal knowledge

and observation that the piece of cocaine came from Mr. Vaughn?

A: It is my belief that it did.

(Ex. J, pp. 154-55). However, Mr. Peters rejected Lieutenant Bell’s answer and

refocused the question to show she did not observe Mr. Ray procure cocaine from

Mr. Vaughn: 

Q: I understand your belief, but my question was not about

your belief. My question was can you say from your own personal

observation that the piece of cocaine that’s in evidence came from Mr.

Vaughn?

A. I didn’t see it come from Mr. Vaughn, no.

(Ex. J, p. 155). This testimony supported Mr. Peters’ case theory that Mr. Vaughn

was not guilty because the he did not supply Mr. Ray the rocks of cocaine. Mr.

Vaughn has not shown how his counsel was deficient. The record shows his

counsel successfully impeached Lieutenant Bell’s credibility as a witness to the

sale.

In Ground Six, Mr. Vaughn alleges he was prejudiced by the prosecution’s

question:

Q. In these types of cases is it sometimes appropriate for law

enforcement to suggest the name of a possible person who would sell

cocaine?

(Doc. 1, p. 7; ex. J, p. 165). Captain Ramie responded in the affirmative (ex. J, p. 165).

The prosecution’s question was preceded by a bench conference, during

which the trial judge determined that Mr. Peters’ previous questions opened the door

for the prosecution to ask about general procedures in controlled buy cases. The

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 22 of 28
Page 23 of 28

prosecution proffered the specific question to the trial judge before he asked it in

open court:

MR. GRAHAM: I just want to be very, very careful about what

the question I’m going to ask and that’s the reason I’m doing this.

THE COURT: Thank you.

MR. GRAHAM: Question will be, at some point in time is (sic)

these types of cases is it sometimes appropriate for law enforcement

to suggest the name of someone who would possibly sell cocaine. Is

that in compliance with your ruling, Judge?

THE COURT: We have to be very careful here. Say the

question again.

MR. GRAHAM: In these type of cases is it sometimes

appropriate for law enforcement to suggest the name of someone who

would sell cocaine.

THE COURT: You can be heard if you want to.

MR. GRAHAM: I don’t want to violate your order.

MR. PETERS: I think all of this comes from the original

testimony of the informant that he was shown a piece of paper with

Vaughn’s name on it and they suggested it to him. That’s all we got

here.

THE COURT: You’ve - -

MR. PETERS: He can, I think he can ask that question.

THE COURT: I think he can ask that question too.

(Ex. J, pp. 161-62). Counsel is not deficient for failing to make a meritless objection. 

Land v. Allen, 573 F.3d 1211, 1221 (11th Cir. 2009) (attorney’s failure to object to

prosecutorial misconduct where petitioner was not entitled to relief does not warrant

reversal); see also, e.g., Muhammad v. McNeil, 352 Fed. Appx. 371, 377 (11th Cir.

2009) (unpublished opinion). The record shows the trial judge ruled the question

was appropriate; trial counsel had no basis to object when the prosecution asked

the question.

Regardless of whether Mr. Peters’ failure to object to statements about the

general practices of drug dealers was a proper trial strategy, to prevail on a claim of

ineffective assistance of counsel, Mr. Vaughn must still show that his performance

“so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686,

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 23 of 28
Page 24 of 28

104 S. Ct. at 2064. Mr. Vaughn has not shown there is a reasonable probability that

the outcome of the trial would have been different. 

The record reveals that the jury was presented with overwhelming evidence

of Mr. Vaughn’s guilt. See Harrison v. Jones, 880 F.2d 1279, 1281-82 (physical

evidence presented at trial made petitioner’s version of events highly unlikely even

absent his counsel’s failure to render competent assistance); see also Jones v.

United States, 2011 WL 4425315 (11th Cir. Sept. 23, 2011) (unpublished opinion) (but

for counsel’s error in allowing admission of tainted evidence, the jury would have

found the evidence failed to establish an essential element of the crime). The

evidence showed the police searched the inside and outside of Mr. Ray’s residence

prior to the controlled buy and did not find drugs outside (ex. I, pp. 106-07). Police

also searched Mr. Ray before he met Mr. Vaughn and he was not in possession of

any drugs (ex. I, pp. 107-08). Mr. Ray contacted Mr. Vaughn to come to his residence

on short notice (ex. I, pp. 45-46). Mr. Ray gave Mr. Vaughn three marked bills, which

police recovered from Mr. Vaughn. A search of Mr. Vaughn’s person revealed the

marked bills in one pocket and $1,128 in small bills in a separate pocket (ex. J, p.

126). Mr. Ray and Mr. Vaughn had a brief conversation at Mr. Ray’s residence, after

which he immediately turned over two “rocks” to the police (ex. I, p. 52). The police

searched Mr. Ray after Mr. Vaughn left, and he did not have any controlled

substances (ex. I, pp. 110, 112). The defense stipulated at trial that the rocks were

cocaine (ex. I, p. 4). A co-defendant who plead guilty to the charge of principal to the

sale of cocaine testified that he drove Mr. Vaughn to Mr. Ray’s residence to sell

cocaine (ex. I, p. 91).

Mr. Vaughn has not shown that his trial counsel’s performance was deficient

or that there is a reasonable probability that but for his actions the result of the trial

would have been different. The state court’s ruling did not result in a decision that

was contrary to, or involved an unreasonable application of, clearly established

federal law, or was based on an unreasonable determination of the facts in light of

the evidence presented. 28 U.S.C. § 2254(d)(1), (2); Williams, supra. Mr. Vaughn is

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 24 of 28
Page 25 of 28

not entitled to federal habeas relief on Grounds One through Six, and the writ should

not issue.

Grounds Seven and Eight

Mr. Vaughn’s Grounds Seven and Eight are unexhausted and cannot be

reviewed in federal habeas court. Ground Seven alleges his counsel was ineffective

for advising him that if he took the stand, the nature and substance of his prior

criminal record would be revealed to the jury (doc. 1, p. 8). He also alleges counsel

told him to “just say yes” when the trial judge asked him if he was sure he wanted

to waive his right to testify (id.). Ground Eight states his trial counsel was ineffective

for stipulating that the substance recovered in the controlled buy was crack cocaine

(id. at 9). Mr. Vaughn argues in both grounds that his counsel’s actions denied him

due process of law and a fair trial (id. at 8-9). Additionally, he states that counsel’s

stipulation “reliev[ed] the prosecution of its heavy burden of proof by conceding half

of the elements required to be proven.” (Id. at 9).

Mr. Vaughn raised these arguments as grounds seven and eight of his state

motion for post-conviction relief (ex. D, pp. 495-99). However, he did not include

these grounds in his appeal upon denial of his Rule 3.850 motion, so they were not

presented to the state appellate court for review. (See ex. R, pp. 11-15). Therefore,

the grounds are not properly exhausted. It is too late for him to return to the state

courts to exhaust the claims, and they are procedurally defaulted for purposes of

federal habeas review. O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732. He has not

asserted cause for the default or that he is actually innocent of the crime for which

he was convicted (See doc. 35, pp. 9-12). Mr. Vaughn is not entitled to federal

habeas relief on Grounds Seven or Eight, and the writ should not issue.

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 25 of 28
Page 26 of 28

Ground Nine

Mr. Vaughn’s final ground for relief alleges his counsel was ineffective due to

the cumulative effect of his errors (doc. 1, p. 9-10). Mr. Vaughn raised this claim as

ground ten in his state motion for post-conviction relief (ex. D, pp. 502-07).

State Court Decision

The Rule 3.850 court denied this claim after holding an evidentiary hearing (ex.

E, pp. 607-08). It addressed this ground together with the post-conviction motion

grounds one through six, as ground ten only addressed his counsel’s “continuing”

failure to object to improper and prejudicial testimony (see ex. D, pp. 502, 505-07). 

The Rule 3.850 court denied relief on grounds one through six, finding that trial

counsel was not deficient. Accordingly, it also denied ground ten (ex. E, p. 609). 

Implicit in its finding is the conclusion that trial counsel’s individual acts that were

appropriate could not together make out a claim of cumulative error.

Federal Review of State Court Decision

Mr. Vaughn raised the issue of cumulative error in his brief on appeal of the

Rule 3.850 court’s decision by referring specifically to cumulative error and restating

the arguments advanced in grounds one through six (ex. R, pp. 11-15). Therefore,

the ground is exhausted.

Nevertheless, his cumulative-error claim based on counsel’s failure to object

to witness statements about the general behavior of drug dealers is without merit. 

The Supreme Court stated in United States v. Cronic, 466 U.S. 648, 659 n. 26, 104 S.

Ct. 2039, 2047 n. 26, 80 L. Ed. 2d 657 (1984), that apart from errors of great

magnitude, such as a complete denial of counsel or right of effective crossexamination, “there is generally no basis for finding a Sixth Amendment violation

unless the accused can show how specific errors of counsel undermined the

reliability of the finding of guilt.” Similarly, the Eleventh Circuit has held that where

there is no error or only a single error, there can be no cumulative error. United

States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004) (“factors” that taken on their

own are not legal error do not “cumulatively” become error).

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 26 of 28
Page 27 of 28

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

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

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

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

federal habeas relief on Ground Nine, and the writ should not issue.

CONCLUSION

The undersigned has carefully reviewed the transcripts of proceedings, postconviction motions, orders, records on appeal, and all submissions in this

proceeding. Grounds One through Six and Nine are without merit. Grounds Seven

and Eight are unexhausted and procedurally defaulted from federal habeas review.

Mr. Vaughn is not entitled to federal habeas relief.

CERTIFICATE OF APPEALABILITY

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

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

appealability when it enters a final order adverse to the applicant.” If a certificate is

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

required by 28 U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Cases. 

A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. Rule 11(b), Rules Governing Section 2254 Cases.

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

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595,

1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

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

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

issue.” If there is an objection to this recommendation by either party, that party 

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 27 of 28
Page 28 of 28

may bring this argument to the attention of the district judge in the objections

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the 28 U.S.C. § 2254 petition for writ of habeas corpus (doc. 1),

challenging the conviction and sentence in State of Florida v. Nicholas Vaughn in the

Circuit Court of Bay County, Florida, case no. 04-4340, be DENIED and the clerk be

directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 4th day of November, 2011.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No. 5:10cv217/RS/MD

Case 5:10-cv-00217-RS-MD Document 37 Filed 11/04/11 Page 28 of 28