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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

BOBBY GENE MAYS,

Petitioner,

v. CASE NO. 1:10-cv-198-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 with relevant portions of the state-court record. (Docs. 16, 17.) Petitioner filed

a reply. (Doc. 20.) Upon due consideration of the Petition, the Response, and the

1

Appended to Petitioner’s reply, but never docketed by the Clerk, is a “Motion to

1

Stay and Hold in Abeyance” (Doc. 20, pp. 16-24) and a “Proposed First Amended

Petition” (Id. at pp. 25-50.) The Proposed First Amended Petition deletes Grounds 1, 3,

5, and 6 of the original petition, with Petitioner proceeding under the mistaken

assumption that his procedurally defaulted claims (Grounds 1, 3, 5, 6) could not be

addressed alongside his exhausted claims (Grounds 2, 4, 7, 8). Petitioner was not in

the position to exhaust these claims at the time he filed the motion for a stay, as they

were already procedurally defaulted. Petitioner asked the Court to stay proceedings not

so that he could exhaust his claims–that was no longer an option–but rather in the

hopes that the Florida Supreme Court would reconsider issues of state appellate

procedure. Petitioner cited two cases–Prince v. State, 40 So.3d 11 (Fla. 4 DCA 2010) th

and Walton v. State, 2010 WL 150728 (Fla. 2d DCA 2010)–yet the Florida Supreme

Court denied review in Prince and the Walton opinion was withdrawn well before

Petitioner filed the motion to stay. Accordingly, even if the pendency of unrelated state

appellate court cases was a proper basis to stay the case, Petitioner’s motion to stay

was due to be denied as moot upon filing. Petitioner has not been prejudiced by the

Clerk’s docketing error, and in the intervening two years has filed no inquiries with the

Court as to the status of the motion; nor has he sought leave to file an amended

petition.
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state-court record, the undersigned recommends that the Petition be denied.

2

Summary of State Court Proceedings

Petitioner’s underlying conviction stems from a May 1, 2004 incident that occurred

while Petitioner was at his girlfriend’s home watching a movie with her 9-year-old

daughter. At his second trial in August 2005 (the first ended in a mistrial), the state

presented testimony from the victim, who stated that Petitioner put his hand down her

pants and moved it around while they were watching the movie. The girl’s mother

testified as to statements the victim made to her about the incident. The state also

presented a video of the victim’s interview by professionals at the Child Advocacy

Center. Petitioner unsuccessfully attempted to have the video evidence excluded prior

to trial. 

Petitioner testified in his defense that he thought of the victim as one of his own

children, and denied the allegations. On cross-examination, the trial court allowed the

State to present, for impeachment purposes, evidence of Petitioner’s 1995 conviction for

solicitation of sexual activity by a person in familial or custodial authority. The jury

convicted Petitioner of one count of lewd and lascivious molestation of a child under 12,

and he was sentenced to 30 years imprisonment and designated a sexual predator. 

(Respondent’s Exhs. N, O, P.)

The First DCA affirmed without opinion on July 26, 2007. (Exh. V); Mays v. State,

958 So. 32d 1127 (Fla. 1 DCA 2007). Petitioner filed a pro se Fla. R. Crim. P. 3.850 st

Because the Court may resolve the Petition on the basis of the record, the Court 2

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

Governing Habeas Corpus Petitions Under Section 2254. 

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motion on April 24, 2008, and two subsequent supplements. (Exhs. W, X, Y.) The trial

court summarily denied the 3.850 motion on 7 of the 8 grounds; an evidentiary hearing

was ordered on ground “viii.” (Exh. Z.) The state court conducted the evidentiary

hearing on August 31, 2009 and denied relief the next day. (Exhs. AA, BB.) Through

counsel, Petitioner filed an initial brief in the appellate court. (Exh. DD.) The First DCA

affirmed without opinion. (Exh. R); Mays v. State, 36 So.3d 660 (Fla. 1 DCA 2010). st

Petitioner has also unsuccessfully sought state habeas relief. (Exhs. GG through LL.) 

The instant Petition, which Respondent concedes is timely, followed. Petitioner

asserts 8 grounds for relief in his pro se Petition. (Doc. 1.)

Section 2254 Exhaustion Requirement

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” 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). 

When a petitioner fails to properly exhaust a federal claim in state court, and it is

obvious that the unexhausted claim would now be procedurally barred under state law,

the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11 Cir. th

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1999). Federal habeas courts are precluded from reviewing the merits of procedurally

defaulted claims unless the petitioner can show either (1) cause for the failure to

properly present the claim and actual prejudice from the default, or (2) that a

fundamental miscarriage of justice would result if the claim were not considered. Id. at

1302, 1306. A fundamental miscarriage of justice exists “where a constitutional violation

has probably resulted in the conviction of one who is actually innocent.” Ward v. Hall,

592 F.3d 1144, 1157 (11 Cir. 2010). To state a credible claim of actual innocence, a th

petitioner must present new reliable evidence that was not presented at trial showing

that “it is more likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

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

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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 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.

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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 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

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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 objectively

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

Ineffective Assistance of Counsel

Because Petitioner’s claims allege ineffective assistance of counsel, a review of

the applicable law is necessary. Under Strickland v. Washington, 466 U.S. 668, 677-78

(1984), to prevail on a 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. 

Strickland, 466 U.S. at 686. The court may dispose of the claim if a defendant fails to

carry his burden of proof on either the performance or the prejudice prong. Id. at 697. 

To show counsel’s performance was unreasonable, a defendant must establish

that “no competent counsel would have taken the action that his counsel did take.” 

Grayson v. Thompson, 257 F.3d 1194, 1216 (11 Cir. 2001) (emphasis omitted). “The th

relevant question is not whether counsel’s choices were strategic, but whether they were

reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute

rules” for determining whether counsel’s actions were indeed reasonable, as “[a]bsolute

rules would interfere with counsel’s independence–which is also constitutionally

protected–and would restrict the wide latitude counsel have in making tactical decisions.” 

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Putnam v. Head, 268 F.3d 1223, 1244 (11 Cir. 2001). “To uphold a lawyer’s strategy,

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[the Court] need not attempt to divine the lawyer’s mental processes underlying the

strategy.” Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11 Cir. 2000) (en th

banc). “No lawyer can be expected to have considered all of the ways [to provide

effective assistance].” Id. 

If a defense lawyer pursued course A, it is immaterial that some other

reasonable courses of defense (that the lawyer did not think of at all)

existed and that the lawyer’s pursuit of course A was not a deliberate

choice between course A, course B, and so on. The lawyer’s strategy was

course A. And [the Court’s] inquiry is limited to whether this strategy, that

is, course A, might have been a reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

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

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

as a probability sufficient to undermine confidence in the outcome.” Id. 

When, as here, the state courts have denied an ineffective assistance of counsel

claim on the merits, the standard a petitioner must meet to obtain federal habeas relief is

a difficult one. Harrington 131 S.Ct. at 786. The standard is not whether an error was

committed, but whether the state court decision is contrary to or an unreasonable

application of federal law that has been clearly established by decisions of the Supreme

Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not

enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal

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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. 

When faced with an ineffective assistance of counsel claim that was denied on

the merits by the state courts, a federal habeas court “must determine what arguments

or theories supported or, [if none were stated], 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 in a prior decision of

[the Supreme] Court.” Id. So long as fairminded jurists could disagree about whether

the state court’s denial of the claim was inconsistent with an earlier Supreme Court

decision, federal habeas relief must be denied. Id. Stated the other way, only if “there is

no possibility fairminded jurists could disagree that the state court’s decision conflicts

with [the Supreme] Court’s precedents” may relief be granted. Id.

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

the performance of counsel “is a most deferential one.” Id. 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.

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Discussion

Grounds 1, 3, 5, and 6: Ineffective Assistance of Counsel 

Petitioner raised Grounds 1, 3, 5, and 6 of his petition–all claims of ineffective

assistance of trial counsel–in his Rule 3.850 motion in the state court. The state court

granted an evidentiary hearing on one issue (Ground 8 of the instant petition) and

summarily denied the remaining claims. In appealing his denial of the 3.850 motion to

the First DCA, Plaintiff (represented by counsel) did not include Grounds 1, 3, 5, and 6

of the instant petition in his initial brief. 

As discussed above, before Petitioner filed his Petition in this Court he was

required to 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 required 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). 

 Pursuant to Florida law, where a movant’s Rule 3.850 motion is denied after an

evidentiary hearing, he must file an initial brief if he wishes to appeal the denial. Fla. R.

App. P. 9.141(b)(3). Florida law also establishes that claims for which an appellant does

not present any argument–or presents only conclusory argument–are waived. See, e.g.,

Gamble v. State, 877 So. 2d 706 (Fla. 2004). The majority of Florida courts–including

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the First DCA, where Petitioner was convicted and pursued postconviction relief–hold

that this rule applies even where the evidentiary hearing in the Rule 3.850 proceeding is

limited to only some of the post-conviction claims. Accordingly, a movant must present

all claims–whether summarily denied or denied after an evidentiary hearing–in the initial

brief to the appellate court. Prince v. State, 40 So. 3d 11 (Fla. 4 DCA 2010); Williams

th

v. State, 24 So.3d 1252 (Fla. 1 DCA 2009) (where appellant received evidentiary st

hearing on some of his post-conviction claims and others were summarily denied,

appellate court would review only those summarily denied claims which movant argued

in the appellate brief). 

Federal district courts in Florida – including this Court – that have considered this

issue have determined that a petitioner’s failure to raise a ground in his brief before the

Florida District Court of Appeals waives federal habeas review of any such omitted

claims. Corn v. McNeil, No. 3:08-cv-199-MCR-EMT, 2010 WL 5811434, at *17 (N.D. Fla.

Nov. 24, 2010) (“The undersigned concludes that the Florida procedural rule deeming as

waived or abandoned those claims for which an appellant has not presented any

argument in his appellate brief (or for which he provides only conclusory argument),

even when the insufficiently denied claims were summarily denied by the trial court, is a

firmly established and regularly followed procedural rule for purposes of federal

habeas.”). See also Ross v. McNeil, 5:07-cv-219-RS-EMT, 2010 WL 2179039 (N.D. Fla.

Apr. 14, 2010); Sharp v. McNeil, No. 4:07-cv-17-MP-MD, 2009 WL 981594, at *13-14

(N.D. Fla. Apr. 10, 2009); Durain v. McNeil, No. 2:08-cv-24-FTM-29DNF, 2008 WL

4888989, at *9 (M.D. Fla. Nov. 12, 2008); Williams v. McDonough, No.

8:02-CV-965-T-30MAP, 2007 WL 2330794, at *1-2 (M.D.Fla. Aug.14, 2007); Walker v.

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Sec'y, Dep't of Corr., No. 8:05-cv-1539-T-17MAP, 2007 WL 1747181, at *4 (M.D. Fla.

June 18, 2007). 

Because Petitioner failed to raise Grounds, 1, 3, 5 and 6 in the instant Petition in

his Initial Brief on the Merits to the First District Court of Appeals, Petitioner did not

exhaust his available state remedies with respect to each of those claims. Petitioner

cannot now take a second appeal from the denial of his 3.850 motion in order to

successfully exhaust these claims; therefore, they are procedurally defaulted.

Petitioner argues that he can show cause for his failure to properly present these

claims to the First DCA–specifically, that his post-conviction appellate counsel

performed ineffectively in failing to include these grounds in the initial brief. (Doc. 20.) 

However, it is well established that there is no constitutional right to an attorney in state

post-conviction proceedings. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991)

(holding that attorney error in postconviction proceedings that led to defaulted federal

habeas claims could not constitute cause to excuse procedural default because

petitioner had no right to postconviction counsel). Accordingly, Petitioner cannot claim

post-conviction counsel’s ineffective assistance as cause for his procedural default.

Petitioner has failed to demonstrate cause for his failure to properly present any

of these claims to the First District Court of Appeals; prejudice from his default; or that a

fundamental miscarriage of justice would occur if these claims were not considered by

this Court. Accordingly, each of Grounds 1, 3, 5, and 6 in the Petition was unexhausted

in state court, and each of those claims for relief is procedurally barred and, thus, it is

inappropriate for this Court to consider these claims on federal collateral review.

However, the Court will consider Petitioner’s remaining four claims (2, 4, 7, and

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8), as these claims were exhausted in the state court and are properly considered on

federal collateral review.

Ground 2: Ineffective Assistance - Failure to file a motion in limine

Petitioner contends that trial counsel rendered ineffective assistance by failing to

file a motion in limine to exclude videotaped testimony and failing to properly preserve

the issue for appellate review. (Doc. 1, pp. 11-12.) In rejecting this claim on

postconviction review, the state court wrote:

As to ground (ii), Defendant alleges that trial counsel was ineffective for failing

to file a motion in limine to exclude videotaped evidence. Because the State

had already filed its Notice of Intent to Offer Hearsay Statements, a motion

in limine would have been redundant. Once the State had already filed its

Notice, all that was left for trial counsel to do was object. Defendant argues

that although trial counsel did argue that the videotape was cumulative; trial

counsel should have argued that the prejudicial weight of the tape far

outweighed the probative value. Trial counsel did ague that the hearsay

statements were cumulative. See Motion Hearing Transcript, dated July 13,

2005, at 40. The inherent reasoning underlying the cumulative argument is

that the evidence is unfairly prejudicial. This is apparent from the fact that the

rule against allowing cumulative evidence is part of Fla. R. Evid. 90.403,

“Exhaustion on Grounds of Prejudice or Confusion.” Therefore trial counsel

did make the argument Defendant is alleging he should have. It is unclear

why Defendant believes that this issue was not preserved for appellate

review. The State filed the notice, a hearing was held, trial counsel presented

an argument and the Court found in favor of the State. This is sufficient to

preserve the issue for appellate review. Defendant’s claim in ground (ii) is

without merit.

(Exh. Z, pp. 49-50.) The First DCA per curiam affirmed without written opinion. (Exh.

FF.)

Trial counsel cannot be deemed deficient for failing to file a motion that would

have been redundant. Furthermore, trial counsel did in fact challenge the introduction of

the hearsay evidence and argued that it was cumulative, and therefore unfairly

prejudicial. This was also adequate to the preserve the issue for appellate review. 

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Even assuming, arguendo, that counsel was deficient, Petitioner has not shown

prejudice. It is not reasonably probable that the exclusion of the videotape evidence

would have resulted in a not guilty verdict, especially where the victim and her mother

both testified at trial and trial counsel argued that the video evidence was cumulative. 

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

was contrary to, or an unreasonable application of Strickland, or an unreasonable

determination of the facts in light of the evidence adduced in state court.

Ground 4: Ineffective Assistance - Failure to prepare for evidentiary hearing

Petitioner contends that his trial counsel rendered ineffective assistance in failing

“to motion the court for a continuance, to adequately prepare for the Hearsay Hearing,

and present after reasonable investigation of case law, to support the defense position

that the video tape of the alleged victim, should not be admitted into evidence.” (Doc. 1,

pp. 16-18.) With the exception of the failure to move for a continuance issue, this claim 3

was exhausted in the state court. In rejecting this claim on postconviction review, the

state court concluded:

As to ground (iv), Defendant claims that trial counsel was ineffective for failing

to adequately prepare for the hearing on the State’s Notice of Intent to Offer

Hearsay Statements. Defendant alleges that trial counsel did not present one

case in support of Defendant’s position. Trial counsel actually presented five

cases in support of his argument against the State’s request to offer hearsay

statements. See Transcript of Motion Hearing, dated July 13, 2005, at 42-43. 

In fact one of the cases Defendant claims should have been presented to the

 Petitioner did not fully and fairly present this issue–failure to request a 3

continuance to adequately prepare for the hearing–to the state courts and is now

procedurally barred from doing so. For the reasons discussed above related to

Grounds 1, 3, 5, and 6, Petitioner is precluded from federal review of this claim. 

However, as discussed below in Ground 7, the Court will review Petitioner’s claim that

trial counsel was ineffective for failing to request a continuance in order to secure the

victim’s testimony at the hearing.

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Court, Tussey v. State, 793 So. 2d 1188 (Fla. 2001) was presented by trial

counsel. Defendant also claims that trial counsel should have been prepared

to argue that the cases the State cited in support of the State’s position were

distinguishable from the instant case. Although some of the facts of Mickler

v. State, 829 So. 2d 932 (Fla. 4th DCA 2002) were distinguishable from

Defendant’s case, it did not make the caselaw completely inapplicable. 

Defendant’s claim in the instant ground is conclusively refuted by the record

and without merit. 

(Exh. Z, pp. 50-51.) The First DCA per curiam affirmed without written opinion. (Exh.

FF.)

Trial counsel cannot be deemed deficient where he did present cases and

arguments in support of his argument against admitting the hearsay statements, where

the record reflects that he did so. Furthermore, to the extent that, in appealing the Rule

3.850 motion Petitioner narrowed the issue to trial counsel’s alleged deficiency for failing

to raise the “unfairly prejudicial” objection, that claim is also without merit, for the

4

reasons discussed above in Ground 2. 

 Even assuming, arguendo, that counsel was deficient, Petitioner has not shown

prejudice. It is not reasonably probable that the exclusion of the videotape evidence

would have resulted in a not guilty verdict, especially where the victim and her mother

both testified at trial and trial counsel argued that the video evidence was cumulative. 

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

was contrary to, or an unreasonable application of Strickland, or an unreasonable

determination of the facts in light of the evidence adduced in state court.

 In his initial brief to the First DCA, Petitioner’s argument as to ground iv of the 4

Rule 3.850 motion focused almost entirely on his claim that trial counsel failed to object

to the video as unfairly prejudicial rather than just cumulative. (Exh. DD, pp. 13-15.) 

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Ground 7: Ineffective Assistance - Failure to call victim to testify at evidentiary

hearing

Petitioner contends that his trial counsel rendered ineffective assistance in failing

to subpoena the victim to the hearsay hearing and failing to request a continuance in

order to do so. (Doc. 1, pp. 27-30.) In rejecting this claim on postconviction review, the

state court concluded:

As to ground vii, Defendant claims that trial counsel was ineffective for failing

to subpoena the victim to testify at the hearing on the State’s Notice to

Introduce Hearsay Statements and for failing to move the Court for a

continuance of the hearing. Defendant alleges that at trial the victim testified

that she did not always like Defendant and that this was evidence of a motive

to lie. According to Defendant, had trial counsel presented her testimony at

the hearing, the Court would have had evidence to rebut the victim’s

credibility, and therefore deny the State’s motion. At the time of the hearing,

the Court had already heard the interview tape of the victim. At the actual

hearing, the Court heard testimony from the forensic interviewer and the

victim’s mothers. The Court stated, on the record, a multitude of reasons why

the Court believed the victim’s testimony to be reliable. See Transcript of

Hearing, dated July 13, 2005, at 47-51. There is no reason to assume that

if the victim testified at the hearing the Court’s finding would have been any

different. Defendant has failed to establish that any prejudice was suffered

as a result of this omission. This argument is without merit.

(Exh. Z, p. 53.) The First DCA per curiam affirmed without written opinion. (Exh. FF.)

Even assuming, arguendo, that counsel was deficient, Petitioner cannot show

prejudice. There is no evidence to suggest that if the victim would have testified at the

hearing, the Court would have ruled in Petitioner’s favor and excluded the video. The

trial court’s analysis at the hearing of the girl’s video statement focused on indicia of

reliability in the video itself. (Exh. H, pp. 47-51.) Even if the victim had testified at the

hearing that she did not always like Petitioner, there is no indication in the record that

this would have resulted in a different ruling on the admission of the video. 

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Furthermore, it is not reasonably probable that the exclusion of the videotape evidence

would have resulted in a not guilty verdict, especially where the victim and her mother

both testified at trial and trial counsel argued that the video evidence was cumulative. 

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

was contrary to, or an unreasonable application of Strickland, or an unreasonable

determination of the facts in light of the evidence adduced in state court.

Ground 8: Ineffective Assistance - Failure to advise of maximum penalty

Petitioner contends that his trial counsel rendered ineffective assistance “when

counsel omitted from the state’s plea offer, the direct consequence, and penalty faced

following a verdict of guilt . . .” (Doc. 1, pp. 30-31.) In rejecting this claim on

postconviction review–after conducting an evidentiary hearing where both Petitioner and

trial counsel testified– the state court concluded:

Defendant alleges that trail counsel misadvised him by telling the defendant

that the maximum possible sentence if he proceeded to trial and lost was ten

(10) years imprisonment. Prior to his second trial, Defendant rejected a plea

offer of two and a half (2 1⁄2) years imprisonment followed by eight (8) years

probation. Defendant contends that he would have accepted this plea offer,

and not continued to trial, had he known that he was actually facing a

maximum prison sentence of 30 years.

During the hearing, Defendant testified that both prior to his first trial, which

ended in a mistrial, and prior to his second trial, he was advised by counsel

that he faced a sentence of up to ten (10) years if he was convicted. 

According to Defendant, counsel never told him that he faced a prison

sentence longer than ten (10) years.

Trial counsel (Victor Hayes) testified that on more than one occasion he told

Defendant that he faced a possible of up to thirty (30) years imprisonment if

he proceeded to trial and lost. Counsel remembers these discussions

because Defendant was adamant about not accepting a plea and instead,

proceeding to trial. Defendant consistently maintained his innocence to the

charged offense; and, according to counsel, Defendant did not want counsel

representing him if counsel did not intend to go to trial. So emphatic was the

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defendant on that point that Mr. Hayes, trial counsel, testified that during his

first jail interview with the defendant, he (Attorney Hayes), felt like he was

being “interviewed” by the defendant so that the defendant would be fully

assured in his own mind that Attorney Hayes would take the case to trial.

In addition, counsel testified that prior to the first trial he gave Defendant a

copy of documents that were provided during discovery. These documents

included information reflecting the degree of the offense and the possible

penalty that Defendant faced if he lost at trial.

This Court finds the testimony of trial counsel to be credible and the testimony

of Defendant to not [be] credible. First, Defendant had no intention of

entering a plea, and he made that point abundantly clear to his lawyer, Mr.

Hayes. Prior to the second trial, counsel advised Defendant of the State’s

favorable plea offer. Defendant rejected that offer even though he faced a

substantially longer prison sentence were he to be found guilty after the trial. 

Second, counsel remembers clearly the discussions that he had with

Defendant regarding the potential maximum sentence of thirty (30) years. 

Finally, it is inconceivable that Defendant, having been through one trial and

in the process of preparing for another, would have been completely unaware

of the potential sentence that he faced.

(Exh. BB) (numbering omitted). The First DCA per curiam affirmed without written

opinion. (Exh. FF.)

“The factual findings of the state court, including the credibility findings, are

presumed to be correct unless [the petitioner] rebuts the presumption by clear and

convincing evidence.” Rolling v. Crosby, 438 F.3d 1296, 1301 (11 Cir. 2006) (citing 28 th

U.S.C. § 2254(e)(1)). In the instant case, conflicting testimony was presented at the

state court evidentiary hearing. Petitioner testified that trial counsel misadvised him as

to the maximum penalties if he rejected the plea offer and was unsuccessful at trial. 

Trial counsel testified that he advised Petitioner of the 30-year maximum on more than

one occasion; that Petitioner was adamant about his innocence; and that he gave

Petitioner discovery materials that also would have contained notice of the maximum

penalty.

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The state court credited trial counsel’s testimony. Petitioner has not presented

clear and convincing evidence establishing that the state court’s credibility finding was

incorrect. See Rolling, 438 F.3d at 1301; Lewis v. McNeil, 372 Fed. Appx. 55, 56-57

(11 Cir. 2010) (unpublished) (rejecting habeas petitioner’s claim where the case came th

“down to a swearing match” between defendant and trial counsel as to whether counsel

advised defendant of maximum penalty and state court credited counsel’s testimony). 

Nor has Petitioner shown that the state court’s decision 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). Based on the state court’s finding of fact as to the

credibility of the testimony at the evidentiary hearing, Petitioner’s claim is meritless.

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.

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

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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 16 day of August 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-198-MP-GRJ