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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DEMETRIUS A WALLACE,

Petitioner,

v. CASE NO. 1:10-cv-200-MP-GRJ

SECRETARY, DEPT.

OF CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a pro se Petition for a Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Respondent filed a response and

an appendix of exhibits with relevant portions of the state-court record (hereafter

“Exh.”). Docs. 30, 32. Petitioner filed a reply. Doc. 33. Upon due consideration of the

Petition, the Response, the Reply, and the state-court record, the undersigned

recommends that the Petition be denied.

1

Summary of State Court Proceedings

Following a jury trial, Petitioner was found guilty of possession of cocaine, in

contravention of Fla. Stat. § 893.13(6)(a), and sale or delivery of cocaine, in

contravention of Fla. Stat. § 893.13(1)(a)(1). Exh. 1. He was sentenced to concurrent

five and 15 year terms of imprisonment. 

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

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

Governing Habeas Corpus Petitions Under Section 2254.
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The evidence adduced at trial may be summarized as follows. Levy County

Sheriff‘s Office Investigator Burt Miller testified that a paid confidential informant,

Elizabeth Robertson, assisted in an investigation of Petitioner. Miller followed

Robertson to Petitioner’s home, where Robertson gave Petitioner one hundred dollars

and then drove around the block. She returned to Petitioner’s house, and he gave her

drugs. Robertson then met with Miller and gave him the drugs, which field tested

positive for crack cocaine. On cross-examination, Miller conceded that Robertson

stopped to talk to several individuals between the time that she gave Petitioner the

money and the time she returned to pick up the cocaine. Miller testified that Robertson

had assisted in a high number of cases because she had good contacts.

Robertson testified that she agreed to assist Miller after her arrest on drug

charges, and that she sometimes made more than one hundred dollars a day working

for Miller. Robertson testified that she purchased cocaine from Petitioner on April 18,

2008, and she identified Petitioner in court. She had known Petitioner prior to the

transaction. She admitted that several people approached her car before she received

the cocaine from Petitioner, and that she received cigarettes from them and shook

hands with a person, but she testified that none of the persons were drug dealers and

one person was looking for cocaine.

Robertson was equipped with video recording equipment that recorded the

transaction, and the video was played for the jury. Defense counsel cross-examined

Robertson regarding the fact that the video did not actually show drugs changing

hands. He questioned whether Petitioner had any reason to be suspicious of

Robertson, and Robertson stated that Petitioner had been suspicious of her after her

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arrest. She also stated that she had purchased drugs from Petitioner on two prior

occasions. Defense counsel objected and moved for a mistrial, arguing that he had

been attempting to establish that Petitioner would not have sold drugs to someone of

whom he was suspicious. The court found that counsel had opened the door to the

testimony and denied the motion. Counsel did not request a curative instruction.

In closing argument, defense counsel argued that no exchange of drugs could

be seen on the video, and that Robertson had hand-to-hand contact with others prior to

encountering Petitioner. Counsel challenged Robertson’s credibility and motive in

assisting law enforcement. Counsel pointed out that there was no evidence that

Petitioner had ever previously sold drugs to Robertson, and suggested that she made

up that testimony. The prosecutor argued that Petitioner had been targeted by the

investigation because Robertson had previously bought drugs from him. Exh. 2.

After sentencing, and while his case was pending on appeal, Petitioner filed a

motion in the trial court to correct sentence pursuant to Florida Rule of Criminal

Procedure 3.800(b)(2), arguing that the sentences violated due process insofar as they

exceed the maximum sentence that may be imposed for the commission of strict

liability offenses. Exh. 4. Petitioner asserted on appeal, inter alia, that the Florida

statutes proscribing possession of cocaine and sale or delivery of cocaine are facially

unconstitutional insofar as they are strict liability offenses classified as felonies. Exh. 7. 

Petitioner’s conviction and sentences were affirmed per curiam without opinion. Exh. 7. 

 There were no further postconviction proceedings.

The instant Petition followed. Respondent concedes that the Petition is timely. 

Doc. 30. Petitioner contends that he is entitled to habeas relief because: (1) the trial

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court erred in denying his motion for mistrial; (2) the Florida controlled-substance

statutes under which he was convicted are strict liability crimes and therefore

unconstitutional; (3) & (4) his sentences are unconstitutional because the statutes are

unconstitutional; and (5) his convictions violate double jeopardy. Doc. 1.2

Section 2254 Standard of 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), 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).

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). “[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

Petitioner’s claims are numbered differently in his Petition than in his attached 2

memorandum. The Court will address the claims in the order presented in the

memorandum. 

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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 issue).

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).

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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

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

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

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

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

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

Discussion

Claim 1: Denial of motion for mistrial

Petitioner contends that the trial court should have granted the motion for a

mistrial because the confidential informant testified that Petitioner had committed

collateral crimes. Respond contends that Petitioner failed to exhaust this issue in the

state court because he did not raise it as a federal constitutional claim, and that in any

event he is not entitled to relief on the merits.

Before bringing a habeas action in federal court, a petitioner must exhaust all

state court remedies that are available for challenging his conviction, either on direct

appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion

requires that prisoners give the state courts a “full and fair opportunity” to resolve all

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” his federal 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). A petitioner must “do

more than scatter some makeshift needles in the haystack of the state court record”; a

reasonable reader should be able to understand the factual and legal bases for the

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federal claim. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.2005) (quotations

and citations omitted). A petitioner may raise a federal claim in state court “by citing in

conjunction with the claim the federal source of law on which he relies or a case

deciding such claim on federal grounds, or by simply labeling the claim ‘federal.’ ”

Baldwin, 541 U.S. at 32.

In this case, the record reflects that Petitioner argued on appeal that the trial

court abused its discretion under Florida law in denying the motion, but did not assert

the claim as a federal constitutional issue. See Exh. 5. Thus, the undersigned agrees

that the claim is unexhausted. Petitioner does not argue that he can show any cause or

prejudice sufficient to overcome the procedural default.

Even if the claim was not procedurally defaulted, Petitioner has failed to show

that the claim has any merit as a federal habeas corpus claim. Federal habeas courts 3

do not sit to review State evidentiary rulings unless the alleged error is of such a

magnitude as to render the state defendant's trial fundamentally unfair. See Estelle v.

McGuire, 502 U.S. 62, 71 (1991); Knight v. Singletary, 50 F.3d 1539, 1546 (11th

Cir.1995). The State court on direct review implicitly found no reversible error under

Florida law. It is a “fundamental principle that state courts are the final arbiters of state

law, and federal habeas courts should not second-guess them on such matters.”

Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1355 (11th Cir.2005) (internal quotation

omitted). Further, the record does not reflect that the denial of a mistrial in this case

amounted to error of such a magnitude as to render the state defendant's trial

Pursuant to 28 U.S.C § 2254(b)(2), a habeas petition may be denied on the

3

merits, notwithstanding Petitioner’s failure to exhaust state court remedies.

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fundamentally unfair. The record supports the trial court’s conclusion that counsel

opened the door to the collateral crimes evidence, albeit inadvertently. Counsel argued

to the jury that the State had presented no evidence of any such prior drug sales, and

that Robertson might be highly motivated to fabricate such information in view of her

service as a paid informant. 

On this record, Petitioner has failed to show that the state court’s rejection of this

claim presents any basis for federal habeas relief. 

Claims 2, 3 & 4: Constitutionality of Florida statute and felony sentences

Petitioner’s jury instructions required the jury to find that Petitioner had

knowledge of the presence of the substance that he possessed and sold or delivered,

but did not require the jury to find that Petitioner had knowledge of the illicit nature of

the substance. Exh. 3 at 290-92. Petitioner’s second, third, and fourth claims all

depend upon his assertion that the Florida controlled-substance statutes are

unconstitutional because they impose strict liability by eliminating knowledge of the illicit

nature of the substance as an element of the offense. These claims are foreclosed by

recent Circuit precedent. See Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir.

2012). 

 Following Florida Supreme Court cases holding that the State was required to

prove mens rea in controlled-substance cases, and that the requisite mens rea includes

both knowledge of the presence of the controlled substance as well as knowledge of its

illicit nature, the Florida legislature enacted Fla. Stat. § 893.101, amending the Drug

Abuse Prevention and Control Act. The amendment expressly provided that knowledge

of the illicit nature of the controlled substance was not an element of the offense, and

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created an affirmative defense of lack of knowledge of the illicit nature of the substance. 

The statute did not eliminate the element of knowledge of the presence of the

substance. “In short, the amendment did not completely eliminate mens rea for Florida

drug crimes: it converted one aspect of mens rea from an element of the crime into an

affirmative defense.” See Shelton, 691 F.3d at 1350-51.

As the Eleventh Circuit explained, the Florida Supreme Court upheld the

constitutionality of the amendment in State v. Adkins, ___ So.3d ___, 2012 WL

2848903 (Fla. July 12, 2012). In Adkins, the court examined the history of criminal

statutes that omitted a scienter requirement and were nonetheless constitutional as

compared to those statutes where the lack of scienter rendered them unconstitutional.

The court explained that § 893.101 fell within the former because 1) it punished an

affirmative act—possessing or delivering controlled substances—rather than merely a

passive activity, such as simply being a felon present in a city more than five days; and

2) the provision did not threaten to chill otherwise protected activities.

In Shelton, the Eleventh Circuit reviewed habeas claims in which the Petitioner

challenged the constitutionality of Florida’s strict liability drug statutes. The Court held

that Adkins was not an unreasonable application of federal law. The district court in

Shelton had determined that Fla. Stat. § 893.101 was facially unconstitutional because

(1) its felony penalties are too harsh to allow omission of a mens rea requirement; (2)

violations lead to substantial social stigma and so mens rea is required; and (3) it

reaches inherently innocent conduct without a mens rea component. On appeal, the

Eleventh Circuit found that the district court had failed to give the proper deference

under the AEDPA to the state courts' adjudication of the issue. Specifically, the

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Eleventh Circuit held that the Florida Supreme Court's adjudication of the facial

constitutionality of § 893.101 on the merits in Adkins was not “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.” Shelton, 691 F.3d at 1355.

The decision in Shelton is binding upon this Court. Pursuant to Shelton, the

state courts’ rejection of Petitioner’s claims regarding the constitutionality of the mens

rea component of the Florida statute was not contrary to, or an unreasonable

application of, Federal law.

Claim Five: Double Jeopardy

Petitioner contends that his convictions violate double jeopardy because he was

convicted of two crimes that stemmed from a single act and the same quantum of

cocaine. Doc. 1.

Petitioner does not explain how the state court’s rejection of this claim affords

him any basis for federal habeas relief. Under settled Florida law, convictions and

sentences for sale and possession of the same quantum of cocaine do not violate

double jeopardy because the greater offense of sale of a controlled substance does not

necessarily include possession. State v. McCloud, 577 So.2d 939, 941 (Fla. 1991). In

McCloud, the Florida Supreme Court upheld separate convictions and sentences for

possession and sale of the same quantum of cocaine, noting that “offenses are

separate if each offense requires proof of an element that the other does not, without

regard to the accusatory pleading or the proof adduced at trial.” McCloud, 577 So.2d at

941. 

This test comports with the familiar federal “same-elements” or “Blockburger”

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test. See United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v.

United States, 284 U.S. 299, 304 (1932)). This test “inquires whether each offense

contains an element not contained in the other; if not, they are the ‘same offense’ and

double jeopardy bars additional punishment and successive prosecution.” Dixon, 509

U.S. at 696. Although this court will decide under federal law whether a double

jeopardy violation has occurred, it must accept a Florida courts' interpretation of that

state's own statutes. Tarpley v. Dugger, 841 F.2d 359, 364 (11th Cir.1988) (citing

Missouri v. Hunter, 459 U.S. 359, 368 (1983).

In this case, the state courts’ interpretation of its statutes comports with the

federal constitutional standard. Petitioner has failed to show that the state court’s

rejection of his double-jeopardy claim is contrary to, or an unreasonable application of,

federal law.

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

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.

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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.

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (Doc. 1) should be DENIED.

2. That a certificate of appealability should be DENIED.

IN CHAMBERS this 24 day of July 2013. 

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: 1:10-cv-200-MP -GRJ