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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DONNIE LEON THOMAS,

Petitioner,

vs. Case No.: 3:11cv137/MCR/EMT

KENNETH S. TUCKER,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

This cause is before the court on Petitioner’s petition for writ of habeas corpus filed pursuant

to 28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant portions of the state court

record (doc. 30). Petitioner filed a reply (doc. 39).

The case was referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see

also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(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, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the

undersigned that the pleadings and attachments before the court show that Petitioner is not entitled

to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state

court record (see doc. 30).1

 Petitioner was charged in the Circuit Court in and for Escambia County,

Florida, Case No. 2007-CF-328, with one count of burglary of a conveyance armed with explosives

1

 Hereinafter all citations to the state court record refer to the exhibits submitted with Respondent’s answer (doc.

30). If a cited page has more than one page number, the court cites to the “Bates stamp” page number. 

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or a dangerous weapon (Count 1), one count of attempted robbery armed with a firearm (Count 2),

and one count of aggravated assault by threat with a firearm (Count 3) (Ex. A at 2–3). Following

a jury trial, he was found guilty as charged (Ex. A at 12–14, Exs. B, C). On October 31, 2007,

Petitioner was sentenced to thirty (30) years of imprisonment on Count 1 and concurrent terms of

twenty (20) years of imprisonment on Counts 2 and 3, to run concurrently with the sentence on

Count 1, with a 20-year mandatory minimum sentence on each count, pursuant to Florida Statutes

§ 775.087(2), and with pre-sentence jail credit of 113 days (Ex. A at 37–47, Ex. C at 247–49).

Petitioner, through counsel, appealed the judgment to the Florida First District Court of

Appeal (“First DCA”), Case No. 1D07-6123 (Ex. E). The First DCA affirmed the judgment per

curiam without written opinion on June 22, 2009 (Ex. H). Thomas v. State, 11 So. 3d 360 (Fla. 1st

DCA 2009) (Table). Petitioner did not seek further review.

On June 11, 2010, Petitioner filed a motion for postconviction relief, pursuant to Rule 3.850

of the Florida Rules of Criminal Procedure (Ex. I at 1–18). The state circuit court summarily denied

the motion on October 25, 2010 (id. at 113–22). Petitioner appealed the decision to the First DCA,

Case No. 1D10-6345 (id. at 191). The First DCA affirmed the judgment per curiam without written

opinion on March 2, 2011, with the mandate issuing March 29, 2011 (Exs. J, K). Thomas v. State,

56 So. 3d 772 (Fla. 1st DCA 2011) (Table). 

Petitioner filed the instant federal habeas action on March 17, 2011 (doc. 1). Respondent

does not assert a statute of limitations defense (doc. 30 at 26).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides that “a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court”

upon a showing that his custody is in violation of the Constitution or laws of the United States. As

the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for

habeas review of state court decisions under § 2254 as brought about 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, section 2254(d) now 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

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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.A. § 2254 (2002).

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).2 The appropriate test was

described by Justice O’Connor as follows:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court

to grant a state prisoner’s application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may

issue only if one of the following two conditions is satisfied—the state court

adjudication resulted in a decision that (1) “was contrary to . . . clearly established

Federal law, as determined by the Supreme Court of the United States,” or (2)

“involved an unreasonable application of . . . clearly established Federal law, as

determined by the Supreme Court of the United States.” 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); Ramdass v. Angelone, 530 U.S. 156, 120 S. Ct.

2113, 2119–20, 147 L. Ed. 2d 125 (2000). In employing this test, the Supreme Court has instructed

that 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

2

 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. 

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Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S.

63, 71–72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is “clearly established” if Supreme

Court precedent at the time “would have compelled a particular result in the case.” Neelley v.

Nagle, 138 F.3d 917, 923 (11th Cir. 1998), overruled on other grounds by Parker v. Head, 244 F.3d

813, 835 (11th Cir. 2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly

established Supreme Court case law, either because “‘the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases’ or because ‘the state court confronts a

set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and

nevertheless arrives at a result different from [Supreme Court] precedent.’” Lockyer, 538 U.S. at

73 (quoting Williams, 529 U.S. at 405–06). The Supreme Court has clarified that “[a]voiding these

pitfalls does not require citation to 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, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002) (quoting Williams, 529

U.S. at 405–06). If the State court decision is found in either respect to be contrary, the district court

must independently consider the merits of the petitioner’s claim.

If on the other hand, the State court applied the correct Supreme Court precedent and the

facts of the Supreme Court cases and the petitioner’s case are not materially indistinguishable, the

court must go to the third step and determine whether the State court “unreasonably applied” the

governing legal principles set forth in the Supreme Court’s cases. The standard for an unreasonable

application inquiry is “whether the state court’s application of clearly established federal law was

objectively unreasonable.” Williams, 529 U.S. at 409. Whether a State court’s decision was an

unreasonable application of a legal principle must be assessed in light of the record the court had

before it. 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). An objectively unreasonable application of federal law

occurs 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

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

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). “In determining whether a state court’s

decision represents an unreasonable application of clearly established federal law, a federal court

conducting habeas review ‘may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be unreasonable.’” Gill v. Mecusker,

633 F.3d 1272, 1287 (11th Cir. 2011) (quoting Williams, 529 U.S. at 411) (citing Harrington v.

Richter, — U.S. —, 131 S. Ct. 770, 786–87 (Jan. 19, 2011)). The AEDPA’s “unreasonable

application” standard focuses on the state court’s ultimate conclusion, not the reasoning that led to

it. See Gill, supra at 1291 (citing Harrington, 131 S. Ct. at 786). Under § 2254(d), a habeas court

must determine what arguments or theories supported or could have supported the state court’s

decision, and then ask whether it is possible that fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court. 

See Harrington, 131 S. Ct. at 786; see also Gill, supra, at 1292 (the federal district court may rely

on grounds other than those articulated by the state court in determining that habeas relief was not

warranted, so long as the district court did not err in concluding that the state court’s rejection of the

petitioner’s claims was neither an unreasonable application of a Supreme Court holding nor an

unreasonable determination of the facts). 

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). The Supreme Court has clarified that: “a decision adjudicated on the merits

in a state court and based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El

v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). 

When performing its review under § 2254(d), the federal court must bear in mind that any

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

petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); see e.g. Miller-El, 537 U.S. at 340 (explaining that a federal

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court can disagree with a state court’s factual finding and, when guided by AEDPA, “conclude the

decision was unreasonable or that the factual premise was incorrect by clear and convincing

evidence”); Jones v. Walker, 469 F.3d 1216, 1226–27 (11th Cir. 2007) (holding that § 2254(d)(2)’s

“unreasonable determination” standard “must be met by clear and convincing evidence,” and

concluding that that standard was satisfied where prisoner showed “clearly and convincingly” that

the state court’s decision “contain[ed] an ‘unreasonable determination’ of fact.”). The

“unreasonable determination of the facts” standard is only implicated to the extent that the validity

of the state court’s ultimate conclusion is premised on unreasonable fact finding. See Gill, 633 F.3d

at 1292. A petitioner is not entitled to relief unless he demonstrates by clear and convincing

evidence that the record reflects an insufficient factual basis for affirming the state court’s decision. 

Id.

Only if the federal habeas court finds that the petitioner satisfied AEDPA, and § 2254(d),

does the court take the final step of conducting an independent review of the merits of the

petitioner’s claims. See Panetti v. Quarterman, 531 U.S. 930, 953, 127 S. Ct. 2842, 2858, 168 L.

Ed. 2d 662 (2007); Jones, 469 F.3d 1216 (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).

Within this framework, the court will review Petitioner’s claims.

III. PETITIONER’S CLAIMS

Ground One: “The lower court erred [in failing] to conduct a hearing on Petitioner’s

competency.”

Petitioner contends the trial court violated his due process rights by failing to order a

competency evaluation or conduct a competency hearing (doc. 1 at 4, 6–7).3 Petitioner asserts the

trial court had reason to doubt his competency when he had an outburst during jury selection (id.). 

He asserts he raised this claim on direct appeal (id. at 4).

Respondent concedes Petitioner raised his federal due process claim on direct appeal, and

the state court adjudicated the merits of the claim (doc. 30 at 31–31). Nevertheless, Respondent

3

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those the parties may have assigned.

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“expressly declines to waive any defenses or procedural bars” (id. at 30). Respondent contends the

state court’s adjudication of the claim was not contrary to or an unreasonable application of clearly

established federal law (id. at 31–35).

1. Clearly Established Federal Law

The Due Process Clause of the Fourteenth Amendment prohibits states from trying or

convicting a defendant who is mentally incompetent. See Pate v. Robinson, 383 U.S. 375, 86 S. Ct.

836, 15 L. Ed. 2d 815 (1966). The Supreme Court set the standard to be used in determining mental

competency as whether a defendant “has sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding—and whether he has a rational as well as factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.

Ct. 788, 4 L. Ed 2d 824 (1960) (per curiam); Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896,

43 L. Ed. 2d 103 (1975); see also Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L. Ed. 2d

345 (2008).

In Drope, the Court elaborated as follows:

[t]he import of our decision in Pate v. Robinson is that evidence of a defendant’s

irrational behavior, his demeanor at trial, and any prior medical opinion on

competence to stand trial are all relevant in determining whether further inquiry is

required, but that even one of these factors standing alone may, in some

circumstances, be sufficient. There are, of course, no fixed or immutable signs

which invariably indicate the need for further inquiry to determine fitness to proceed;

the question is often a difficult one in which a wide range of manifestations and

subtle nuances are implicated. That they are difficult to evaluate is suggested by the

varying opinions trained psychiatrists can entertain on the same facts.

Drope, 420 U.S. at 180.

The Eleventh Circuit Court of Appeals has applied and expounded upon these standards.

“[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be

equated with mental incompetence to stand trial.” Medina v. Singletary, 59 F.3d 1095, 1107 (11th

Cir. 1995) (citation omitted). A Pate analysis must focus on “what the trial court did in light of what

it then knew, whether objective facts known to the trial court were sufficient to raise a bona fide

doubt as to the defendant’s competency.” Fallada v. Dugger, 819 F.2d 1564, 1568 (11th Cir. 1987).

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A petitioner who makes a substantive competency claim, contending that he was tried and convicted

while mentally incompetent, “is entitled to no presumption of incompetency and must demonstrate

his or her incompetency by a preponderance of the evidence.” James v. Singletary, 957 F.2d 1562,

1571 (11th Cir. 1992). This standard is in contrast to a petitioner who makes a procedural

competency claim alleging that the trial court failed to hold a competency hearing after his

competency was put at issue. To prevail on a procedural competency claim, “a petitioner must

establish that the state trial judge ignored facts raising a ‘bona fide doubt’ regarding the petitioner’s

competency to stand trial.” Id. at 1572 n.15 (citing Fallada, 819 F.2d at 1568). A petitioner who

presents “clear and convincing evidence” which creates a “real, substantial and legitimate doubt”

as to his competence is entitled to an evidentiary hearing on his substantive competency claim. 

Medina, 59 F.3d at 1106 (quoting James, 957 F.2d at 1573). However, the standard of proof is high,

and “the facts must positively, unequivocally, and clearly generate the legitimate doubt.” Card v.

Singletary, 981 F.2d 481, 484 (11th Cir. 1992) (quotations omitted). Relevant information may

include evidence of a defendant’s irrational behavior, demeanor at trial, or prior medical opinion. 

See Watts v. Singletary, 87 F.3d 1282, 1287 (11th Cir. 1996). 

A lifelong history of mental illness and emotional problems does not demonstrate

incompetency without a specific showing of how these difficulties generated a substantial doubt as

to the defendant’s competency at the time in question. See Medina, 59 F.3d at 1106; Card, supra. 

Similarly, the fact that the accused is undergoing treatment with psychiatric drugs, while relevant,

does not alone prove incompetence. See Sheley v. Singletary, 955 F.2d 1434, 1438–39 (11th Cir.

1992). In order to establish incompetence, evidence must establish that the drugs affected the

accused to the point that he could not effectively consult with his attorney and could not understand

the proceedings. See id. at 1439. 

Furthermore, because legal competency is primarily a function of defendant’s role in

assisting counsel in conducting the defense, the defendant’s attorney is in the best position to

determine whether the defendant’s competency is suspect, so “the failure of defense counsel to raise

the competency issue at trial, while not dispositive, is evidence that the defendant’s competency was

not really in doubt and there was no need for a Pate hearing.” Watts, 87 F.3d at 1288; see also

Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir. 1985).

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“A presumption of correctness attaches to a state court’s finding of competence and a federal

habeas court must determine that the finding is not ‘fairly supported by the record’ before it may

overturn a state court’s decision.” Medina, 59 F.3d at 1106 (quoting Maggio v. Fulford, 462 U.S.

111, 117, 103 S. Ct. 2261, 76 L. Ed. 2d 794 (1983)); see also Card, 981 F.2d at 484 n.5 (citing

Demosthenes v. Baal, 495 U.S. 731, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990)); Lawrence v.

McNeil, 3:08cv69/SPM, 2010 WL 2890576, at *12 (N.D. Fla. July 21, 2010).

2. Federal Review of State Court Decision

Petitioner raises a procedural competency claim, and he did so on direct appeal of his

conviction (Ex. E). In his initial brief, he argued the trial judge had sufficient information that raised

a bona fide doubt regarding Petitioner’s competency, and the court thus erred by failing to conduct

a competency hearing (id.). The First DCA affirmed the judgment per curiam without written

opinion (Ex. H). 

Although the state court’s denial of Petitioner’s claim without opinion provides no guidance

to this court in determining the rationale for its decision, under the “contrary to” prong of

§ 2254(d)(1), the state court need not cite federal law “so long as neither the reasoning nor the result

of the state court decision contradicts the Supreme Court’s precedents. See Early, 537 U.S. at 8. 

Additionally, Petitioner is not entitled to relief under the “unreasonable application” prong unless

he demonstrates the decision is objectively unreasonable. See Wright v. Sec’y for the Dep’t of

Corr., 278 F.3d 1245, 1256 (11th Cir. 2002).

The record reflects that prior to the State’s calling its last rebuttal witness, the prosecutor

noted, outside the presence of the jury, that during jury selection, “Mr. Thomas [Petitioner] had an

outburst, talking about the alpha, the omega, and stuff like that.” (Ex. B at 135). The prosecutor

asked the trial judge to “make . . . some kind of statement that he [Petitioner] did, in fact, testify at

trial, appeared to understand the questions, just for the record’s sake, in case it is an issue on appeal”

(id.). The trial judge made the following statement:

THE COURT: . . . [T]he whole time that Mr. Thomas was over there talking

to his counsel and the whole time he was in the room and then when he got up and

he did that, that’s all on video . . . .

. . . .

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First of all, this is not Mr. Thomas’ first foray in front of this Court. Because

he was already before me on a case, a battery case, that he was arrested on in

late—late ‘06, I think maybe October, November ‘06, something like that. So he’s

been consistently before me since October of ‘06, something like that. Then he had

this charge that was in January of ‘07. I revoked his bond and he was here each time,

and at no time did Mr. Thomas ever appear to this Court to be incompetent, and I

know that that doesn’t always have to be.

But when Mr. Thomas was appearing to be incompetent the day of jury

selection, he did it in a very erratic and vocal way, and that doesn’t just pop up. So

it was very clear to this Court what was going on. And then when Mr. Thomas came

in and I read him the rule and read him the case law, Mr. Thomas then returned to

the demeanor that I know.

And so it was this Court’s determination that based upon all the factual

observations of his many prior appearances in front of the Court, that morning

having had what appeared to this Court to be meaningful discussions with his

counsel both before and then after he decided to return back to the Mr. Thomas that

I had observed previously, coupled with the fact that Ms. Amond [defense counsel]

testified that she did not see that there was any need to have his competency testified

[sic]—I mean, that she did not feel that there was a need to have him examined for

competency—and I’m not sure I had this put on the record, but I do want you then

to confirm all of this, Ms. Amond. When you were asking for an evaluation the first

time, it wasn’t for competency. It was for mitigation, correct?

MS. AMOND: That’s correct.

THE COURT: All right. So coupled with all of that, we came back and we

did have jury selection, and Mr. Thomas—I put on the record that he was

participating at the bench, as I do with all defendants. And not only that, I noted that

he was participating actually with the graph, following along and having, again, what

appeared to be to the Court meaningful conversations with Ms. Amond during the

jury selection process, discussing who should and shouldn’t be a potential person for

their—their jury.

Again, Mr. Thomas has participated today. I have taken two colloquies as

it related to different decisions that he has made regarding strategy in this trial. And

he has taken the stand, and he indeed responded to the questions that Mr. Simon [the

prosecutor] and that Ms. Amond posed to him. It was clear to this Court that he

understood the questions. He answered them in his own fashion, but indeed, he

seemed to understand them, to comprehend them, and didn’t have any problem

answering them.

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So no, this Court, for factual observations, has no concern in any way that

Mr. Thomas has any sort of a mental difficulty. And, Mr. Thomas, would—and you

are still under oath. You understand what we’re doing here today, sir?

THE DEFENDANT: Yes, ma’am.

(Ex. B at 137–38). After the jury retired for deliberations, the trial judge made additional findings

on the record:

THE COURT: . . . when I was making a record about the event that took

place on jury day with—I mean, jury selection day with Mr. Thomas, I was going

down a path and then forgot to get there, when I talked about that Mr. Thomas had

been before me since October. In that case, that attorney never expressed any

concern about Mr. Thomas’ mental health.

Further, we actually took a plea in that case in June of—the end of June. I

think it was June. I think it was June 21st of 2007. And at that time, again, the

attorney expressed no concern. This Court had no concern or it certainly would not

have accepted the plea. And that was just very shortly before this jury selection [on

October 29, 2007].

(Ex. C at 226).

Petitioner’s outburst during jury selection is not included in the transcript of the jury

selection proceeding (see Ex. D at 81–144). However, that transcript does reflect rational,

meaningful interactions between Petitioner and the court and defense counsel. During the exercise

of strikes during jury selection, the court and Petitioner had the following exchange, which indicated

Petitioner was actively participating in jury selection:

THE COURT: And, Mr. Thomas, can you hear me okay? Because I’m

trying to whisper, but I know you’ve got a sheet and you’re following along.

THE DEFENDANT: Yes, ma’am.

(Ex. D at 132). The transcript of jury selection also indicates that defense counsel consulted with

Petitioner as to whether to strike juror number nine (id. at 136). The court thereafter inquired:

THE COURT: All right. Mr. Thomas, there are the people that you folks

have selected to be the jury. Are you satisfied with this group of people?

THE DEFENDANT: Yes, ma’am

. . . .

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THE COURT: Let’s try this again. Mr. Thomas, Mr. Simon changed his

mind on some things, so we’re back at this again. Are you satisfied with this group

of people?

THE DEFENDANT: Yes, ma’am.

(Ex. D at 139, 141).

Prior to commencement of trial, the prosecutor indicated he and defense counsel agreed that

the defense would not contest the basis of the fingerprint expert’s comparison of fingerprints found

at the crime scene with Petitioner’s (namely, that the expert compared the fingerprints at the scene

with fingerprints taken of Petitioner when he was previously booked into the jail) (Ex. B at 7). The

trial judge conducted a colloquy with Petitioner during which she inquired whether Petitioner had

discussed the decision with defense counsel and agreed with counsel’s decision (id. at 8). Petitioner

answered affirmatively. The court further inquired whether Petitioner was confused about the issue

or had further questions for defense counsel, and Petitioner responded, “No, ma’am, I don’t.” (id.).

Additionally, after the State rested its case, and defense counsel advised the court that

Petitioner desired to testify, the court conducted the following colloquy:

THE COURT: So I just need to ask you some questions. You understand,

sir, that if you want to get up and take the stand, that is absolutely your right.

THE DEFENDANT: Yes, ma’am.

THE COURT: And you can absolutely do that.

THE DEFENDANT: Yes, ma’am.

THE COURT: You also understand that you have a constitutional right to

remain silent, if you choose to.

THE DEFENDANT: Yes, ma’am.

THE COURT: And the reason you have the right to remain silent is because

the State has the burden of proving their case. You don’t have to prove anything. 

Do you understand that?

THE DEFENDANT: Yes, ma’am.

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THE COURT: And, indeed, you heard me this morning read the statement

that if you did decide to remain silent, that the jury was not to take anything from

that. 

THE DEFENDANT: Yes, ma’am.

THE COURT: And I will also assure you that if you choose to exercise that

right, I will do that at the end. Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT: Again, have you had a conversation with Ms. Amond about

whether or not you should testify?

THE DEFENDANT: Yes, ma’am.

THE COURT: And, again, I don’t want to know the substance of that

conversation, but are you confused in any way about that conversation?

THE DEFENDANT: No, ma’am.

THE COURT: Do you need any further time with her to make the decision?

THE DEFENDANT: No, ma’am.

THE COURT: And do you believe it would be within your best interest to

take the stand and testify?

THE DEFENDANT: Yes, ma’am.

THE COURT: All right. Then I find that he is freely, voluntarily, and

intelligently exercising his right to testify.

(Ex. B at 101–03).

Review of the transcript of Petitioner’s trial testimony does not indicate any issue as to

Petitioner’s competency (see Ex. B at 104–23). His testimony was responsive to questions posed

by defense counsel and the prosecutor and reflected a rational and factual understanding of the case.

The trial judge’s observation of Petitioner’s conduct, both prior to and during trial, the

weight attributed to the last-minute timing of Petitioner’s single, irrational verbal outburst during

jury selection, and Petitioner’s immediate return to normal demeanor after the judge advised him

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of the law regarding competency, support the trial judge’s determination that there was insufficient

question as to Petitioner’s competence to warrant invocation of Florida procedures for evaluating

his competency. Additionally, although the trial judge’s comments suggest that during pretrial

proceedings, defense counsel requested a psychological evaluation for purposes of mitigation at

sentencing, defense counsel clearly confirmed during trial that she saw no need for a competency

evaluation. Further, defense counsel’s failure to pursue a competency evaluation, despite ample

time and opportunity to do so, suggests an absence of any indication Petitioner was unable to assist

in his defense. Finally, there is no record evidence of any irrational behavior or other troubling

demeanor before or after the verbal outburst during jury selection, and there is no evidence of any

such problem throughout the course of the trial. To the contrary, throughout trial, Petitioner behaved

and spoke in a rational manner that indicated he had a sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding, and that he had a rational and factual

understanding of the proceedings. 

Petitioner has failed to demonstrate that the state court’s rejection of this claim relied upon

an unreasonable determination of the facts, or applied law contrary to established United States

Supreme Court precedent or in a manner which was objectively unreasonable in light of such

precedent. Given these considerations, the undersigned cannot conclude that the state court

unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore,

Petitioner is not entitled to habeas relief on Ground One.

B. Ground Two (Petitioner’s Ground Two (1)): “The state court erred in denying

Petitioner’s claim of ineffective assistance of counsel for failing to file motion to suppress

the victim’s pretrial identification and failing to object to the in-court identification’s taint.” 

Petitioner contends defense counsel was ineffective for failing to seek suppression of the

victim’s pretrial identification of him as the perpetrator, and failing to object to the victim’s in-court

identification (doc. 1 at 9–10). He asserts the pretrial identification was impermissibly suggestive

for three reasons. First, the victim could have seen Petitioner’s photograph during a local news

broadcast which announced his arrest. Petitioner asserts the victim admitted he watched the

broadcast, but stated he could not remember if he saw Petitioner’s picture. Second, the victim was

shown a video of the crime before he identified Petitioner. Third, the victim could not identify

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Petitioner when he first viewed a photographic lineup, but then identified Petitioner when his

photograph was again included in a second lineup. Petitioner contends defense counsel should have

objected to the in-court identification as unreliable, because it was tainted by the impermissibly

suggestive pretrial identification, and the victim used the photographic array, which included his

initials near Petitioner’s picture, when identifying him in court.

Respondent “expressly declines to waive any defenses or procedural bars” (doc. 30 at 36)

but admits that Petitioner presented all of these arguments in his state postconviction motion, and

the state courts adjudicated the merits of the claim (id. at 36–42). Respondent contends the state

court’s adjudication of the claim was not contrary to or an unreasonable application of clearly

established federal law (id.). 

1. Clearly Established Federal Law

The standard for evaluating claims of ineffective assistance of counsel is set forth in

Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under Strickland, Petitioner must

show (1) deficient performance by counsel and (2) a reasonable probability that, but for counsel’s

deficient performance, the result of the proceeding would have been different. Id. at 687–88. If

Petitioner fails to make a showing as to either performance or prejudice, he is not entitled to relief. 

Id. at 697. 

“The petitioner’s burden to prove, by a preponderance of the evidence, that counsel’s

performance was unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir.

2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)). The focus

of inquiry under the performance prong is “reasonableness under prevailing professional norms.” 

Strickland, 466 U.S. at 688–89. “Judicial scrutiny of counsel’s performance must be highly

deferential,” and courts should make every effort to “eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. at 689. If the record is not complete regarding counsel’s

actions, “then the courts should presume ‘that what the particular defense lawyer did at trial—for

example, what witnesses he presented or did not present—were acts that some lawyer might do.” 

Jones, 436 F.3d at 1293 (citing Chandler, 218 F.3d at 1314–15 n.15). Furthermore, “[e]ven if many

reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on

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

have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Counsel’s performance is

deficient only if it is “outside the wide range of professional competence.” Jones, 436 F.3d at 1293

(citing Strickland, 466 U.S. at 690); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989)

(emphasizing that petitioner was “not entitled to error-free representation”). “[T]here are no

‘absolute rules’ dictating what reasonable performance is . . . .” Michael v. Crosby, 430 F.3d 1310,

1320 (11th Cir. 2005) (quoting Chandler, 218 F.3d at 1317). Indeed, “‘[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.’” Id. (quoting Putman v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001)).

As to the prejudice prong of the Strickland standard, Petitioner’s burden of demonstrating

prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). The Supreme

Court has cautioned that “‘[i]t is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding.’” Id. (quoting Strickland, 466 U.S. at 693). 

However, the Court has also clarified that a petitioner need not demonstrate it “more likely than not,

or prove by a preponderance of evidence,” that counsel’s errors affected the outcome. Strickland,

466 U.S. at 693–94. Instead, 

The defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.

Id. at 694. Indeed, it would be “contrary to” the law clearly established in Strickland for a state

court to reject an ineffectiveness claim for failing to prove prejudice by a preponderance of the

evidence. Williams v. Taylor, 529 U.S. at 405–06.

The prejudice assessment does “not depend on the idiosyncracies of the particular

decisionmaker,” as the court should presume that the judge or jury acted according to law. 

Strickland, 466 U.S. at 694–95. “When a defendant challenges a conviction, the question is whether

there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695. Further, when the claimed error of counsel occurred at the guilt

stage of trial (instead of on appeal), Strickland prejudice is gauged against the outcome of the trial,

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not on appeal. See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (citing Strickland, 466 U.S.

at 694–95). 

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; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). 

2. Federal Review of State Court Decision

Petitioner raised this claim as Ground I in his Rule 3.850 motion (Ex. I at 3–4, 10–13). The

state circuit court identified the Strickland standard as the applicable legal standard (id. at 113–14). 

The court adjudicated the claim as follows:

In the Defendant’s first claim for post-conviction relief, the Defendant asserts

that his counsel was ineffective for failing to file a motion to suppress the victim’s

pre-trial identification and his in-court identification of the Defendant. The

Defendant claims that the photographic lineup was “tainted” by the victim seeing the

Defendant’s photograph on the news prior to making the identification and seeing

a video of the crime. The record conclusively demonstrates that the Defendant is not

entitled to relief on this claim.

Troy Brown of the Escambia County Sheriff’s Office gave testimony at trial

regarding the photographic lineups used in this case. Deputy Brown testified that on

January 19, 2007, the victim was presented with a photographic lineup at his home. 

Attachment 1, at 70–71. At that time, the victim was unable to identify anyone in the

photographic lineup. Id., at 71.

Later, the victim was presented with a second photographic lineup. Id., at 72. 

In this second lineup, a different picture of the Defendant was used. In this second

lineup, the Defendant’s picture was a more recent photograph than the one used in

the initial photographic lineup. Id. This time, the victim “immediately pointed [the

Defendant] out.” Id., at 73.

The victim testified that, although he watched the news prior to performing

the photographic lineup, the victim “didn’t see any photographs prior to doing the

photographic lineup.” Attachment 1, at 49. The victim clearly testified that when

he watched the news prior to seeing the photographic lineup, the news did not “show

any—any photographs of anybody because there was none to give.” Id., at 41

(emphasis added).

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Even if the witness had viewed the video of the crime prior to viewing the

photographic lineup, that would not render the photo lineup impermissibly

suggestive or “tainted.” The record reflects that the video did not clearly show the

gunman’s face.[FN 1: During closing, the Defendant’s counsel argued, “You can

look at that video all you want, and you can’t tell who that person is.” Attachment

1, at 174–175.] Attachment 1, at 18.

It should be noted that, at trial, the victim expressed no uncertainty as to

whether the Defendant was the gunman. Indeed, the victim testified: “You know

what? It’s so—it’s like it was yesterday, as far as the facial [sic] of the gentleman

who’s sitting before us.” The victim continued, “So I know that’s who—who the

gun belonged to and who did this to me.” Id., at 49.

The only difference that is supported by the record between the first

photographic lineup and the second was that the police were able to show the victim

an updated picture of the Defendant during the second lineup. Showing an updated

photo is not “impermissibly suggestive,” especially considering that the second

photo lineup contained photographs both of persons who were in the first photo

lineup and persons who were not in the first photo lineup. Attachment 1, at 75–76.

Accordingly, the record refutes the Defendant’s claim that his counsel was

ineffective for failing to challenge the second photo lineup as being “tainted” by

news coverage or by the victim viewing the security video.

Moreover, even if the victim’s identification of the Defendant had not been

introduced into evidence, it should be noted that another eyewitness positively

identified the Defendant as the gunman. Attachment 1, at 139–143. Indeed, as

previously noted, the Defendant conceded that his fingerprints were recovered from

the car door used by the gunman. Attachment 1, at 115–117.

(Ex. I at 115–17).

Petitioner appealed the decision to the First DCA, and the appellate court affirmed the lower

court’s decision without written opinion (Ex. J).

The improper use of photographs by police may reduce the trustworthiness of a subsequent

lineup or courtroom identification. Simmons v. United States, 390 U.S. 377, 383–84, 88 S. Ct. 967,

971, 19 L. Ed. 2d 1247 (1968). “The danger that use of the technique may result in convictions

based on misidentification may be substantially lessened by a course of cross-examination at trial

which exposes to the jury the method’s potential for error.” 390 U.S. at 384. “[E]ach case must be

considered on its own facts, and . . . convictions based on eyewitness identification at trial following

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a pretrial identification by photograph will be set aside on that ground only if the photograph

identification procedure was so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” Id. “Where suggestive pretrial confrontations may have

created a substantial likelihood of irreparable misidentification at trial, the core question is whether

under the totality of the circumstances, the in-court identification was reliable.” Jones v. Newsome,

846 F.2d 62, 64 (11th Cir. 1988). The following factors should be considered in making that

determination: (1) whether the witness had the opportunity to view the criminal at the time of the

crime; (2) the degree of attention by the witness; (3) the accuracy of the witness’s prior description;

(4) the level of certainty displayed by the witness; and (5) the length of time between the crime and

the identification. Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401

(1972). “While the ultimate conclusion as to the reliability of identification evidence is a mixed

question of law and fact not governed by the Section 2254(d) presumption, each of the Neil v.

Biggers factors is considered an issue of fact governed by the presumption.” Jones, 846 F.2d at 64.

In the instant case, the state court found as fact that the “pretrial confrontation” at issue, that

is, the photographic lineup, was not impermissibly suggestive. Petitioner has not produced clear and

convincing evidence to rebut this finding. Petitioner submitted a copy of both lineups with his reply

brief, and there is nothing about the array itself that is impermissibly suggestive (doc. 39, Ex. 3). 

Further, Investigator Brown’s trial testimony regarding the procedure he employed in preparing each

lineup and presenting it to the victim, supports the state court’s finding that the second lineup, from

which Petitioner was identified, was not impermissibly suggestive (Ex. B at 70–76). The record also

supports the state court’s findings that the second lineup included photographs of some persons—in

addition to Petitioner—who were also in the first lineup, and that the second lineup was not tainted

by news coverage or the victim’s viewing the videotape from a camera placed in the area by the

local sheriff’s office. Investigator Brown testified that another person’s photograph, besides

Petitioner’s, appeared in both lineups (id. at 75–76). Additionally, as the state court found, the

victim testified that when he watched the news prior to seeing the photographic lineup, the news did

not “show any—any photographs of anybody because there was none to give.” (id. at 41). Further,

the victim testified at trial that he viewed the video after he viewed the second photographic lineup,

albeit he testified he was “not positive” he did so (id. at 47); and he testified in his pretrial deposition

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that he viewed the video after the second lineup (see doc. 39, Ex. 3). In the absence of any showing

that the victim’s pretrial identification of Petitioner was tainted by unduly suggestive procedures,

defense counsel had no legal basis for seeking suppression of either the photo lineup or the victim’s

in-court identification. See Cikora v. Dugger, 840 F.2d 893, 897 (11th Cir. 1988) (“Because we

conclude that the district court was not clearly erroneous in finding that the photo array was not

impermissibly suggestive, we need not reach the five-factor Neil v. Biggers test.”).

Additionally, Petitioner failed to show a reasonable probability of a different outcome at trial

had counsel sought suppression of either or both identifications. Another eyewitness to the crimes,

Ann Marie Franklin, testified she was familiar with Petitioner and identified him as one of the two

men who attempted to rob the victim and as the man who had actual possession of the gun when the

crimes were committed (Ex. B at 139–43). Additionally, a fingerprint expert testified that

Petitioner’s fingerprint was on the handle of the victim’s car door (id. at 94–97 ). During

Petitioner’s trial testimony, he admitted his fingerprints could have been on the door handle

(Petitioner testified he had been in the victim’s vehicle earlier that morning during a drug

transaction) (id. at 110–11, 117, 122). He also admitted that one of the robbers in the video was

approximately his size (id. at 117). Moreover, defense counsel placed the identification issue before

the jury by rigorously cross-examining the victim about the reliability of his identification, eliciting

testimony from the convenience store owner that he knew Petitioner and could not identify the

person in the video as Petitioner, and arguing during closing argument that the robber’s identity was

not discernible in the video (Ex. B at 46–48, 78, Ex. C at 174–75). Therefore, Petitioner failed to

show prejudice or, as previously discussed, deficient performance with regard to counsel’s failure

to seek suppression of the victim’s pretrial or in-court identification.

 Petitioner failed to demonstrate that the state court’s adjudication of the claim was based

upon an unreasonable determination of the facts, or contrary to or an unreasonable application of 

Strickland. Therefore, he is not entitled to relief on this ineffective assistance of counsel claim.

C. Ground Three (Petitioner’s Ground Two (2)): “The state court erred in denying

Petitioner’s claim of ineffective assistance of counsel were [sic] counsel failed to order a

competency hearing and failed to notify the court that Petitioner was under the influence of

psychotropic medications throughout all trial proceedings.”

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Petitioner argues defense counsel should have requested a competency evaluation after his

abnormal behavior during jury selection, especially since counsel knew that he was taking

psychotropic medication for his mental illness (doc. 1 at 11–12). Petitioner further contends counsel

should have notified the trial court that Petitioner was taking psychotropic medication, because that

fact was relevant to the court’s determination as to whether a competency evaluation was required

(id.).

Respondent again “expressly declines to waive any defenses or procedural bars” (doc. 30 at

43) but admits that Petitioner presented this claim in his state postconviction motion, and the state

courts adjudicated the merits of the claim (id. at 43–46). Respondent contends the state court’s

adjudication of the claim was not contrary to or an unreasonable application of clearly established

federal law (id.). 

1. Clearly Established Federal Law

The Strickland standard, set forth supra, governs this claim.

2. Federal Review of State Court Decision

Petitioner raised this claim as Ground II in his Rule 3.850 motion (Ex. I at 4–5, 13–14). The

state circuit court adjudicated the claim as follows:

Defendant asserts that counsel was ineffective for failing to move for a

competency hearing regarding the Defendant’s competency to stand trial and for

failing to inform the Court that the Defendant was on “psychotropic drugs.” The

record conclusively demonstrates that the Defendant is not entitled to relief on this

claim. Attachment 1, 135–138. The issue of the Defendant’s competency was

discussed on the record in the midst of trial. The Court found as follows:

The Court: So he’s been consistently before me since October of ‘06,

something like that. Then he had this charge that was in

January of ‘07. I revoked his bond and he was here each

time, and at no time did Mr. Thomas ever appear to this Court

to be incompetent, and I know that that doesn’t always have

to be.

But when Mr. Thomas was appearing to be incompetent the

day of jury selection, he did it in a very erratic and vocal way,

and that doesn’t just pop up. So it was very clear to this

Court what was going on. And then when Mr. Thomas came

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in and I read him the rule and read him the case law, Mr.

Thomas then returned to the demeanor that I know.

Attachment 1, at 136–137.

Subsequently, the Court continued:

The Court: Again, Mr. Thomas has participated today. I have taken two

colloquies as it related to different decisions that he has made

regarding strategy in this trial. And he has taken the stand,

and he indeed responded to the questions that Mr. Simon [the

prosecutor] and that Ms. Amond posed to him. It was clear

to this Court that he understood the questions. He answered

them in his own fashion, but indeed, he seemed to understand

them, to comprehend them, and didn’t have any problem

answering them.

So no, this Court, for factual observations, has no concern in

any way that Mr. Thomas has any sort of a mental difficulty. 

And, Mr. Thomas, would—and you are still under oath. You

understand what we’re doing here today, sir?

The Defendant: Yes, ma’am.

Attachment 1, at 138 (emphasis added).

Finally, the Court would note that the record reflects the following exchange

between the Court and the Defendant’s counsel:

The Court: . . . Ms. Amond testified that she did not see that there was

any need to have his competency testified [sic]—I mean, that

she did not feel that there was a need to have him examined

for competency—and I’m not sure I had this put on the

record, but I do want you then to confirm all of this, Ms.

Amond. When you were asking for an evaluation the first

time, it wasn’t for competency. It was for mitigation, correct?

Ms. Amond: That’s correct.

Attachment 1, at 137.

Thus, the record demonstrates that the Defendant’s attorney had no concerns

as to the Defendant’s competency. The Defendant stated under oath to the Court that

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he understood the proceedings. More importantly, the Court made it plain for the

record that it found the Defendant’s erratic conduct during jury selection not to be

genuine. Furthermore, the Court made the factual finding that during the

proceedings the Defendant was able to understand questions posed to him and

appropriately answer those questions. The Court stated that after it had multiple

opportunities to observe the Defendant, it had “no concern in any way that Mr.

Thomas has any sort of a mental difficulty.” Attachment 1, at 138 (emphasis added). 

Thus, the Defendant’s counsel cannot be considered ineffective for failing to raise

an issue of the Defendant’s competency when the Court was fully satisfied, based on

factual determinations, that the Defendant was competent to stand trial.

(Ex. I at –118–19).

Petitioner appealed the decision to the First DCA, and the appellate court affirmed the lower

court’s decision without written opinion (Ex. J). 

Petitioner failed to show that defense counsel’s failure to notify the trial court of Petitioner’s

medication and failure to request a competency evaluation was unreasonable. Petitioner submitted

his medical records as an exhibit to his Rule 3.850 motion (Ex. I at 64–99). The records cover the

period from March through November, 2007 (id.). The records indicate that in March of 2007,

Petitioner was seen by a mental health professional in the jail for reportedly hearing voices “telling

what he can and can’t do” (id. at 83). The mental health professional noted that Petitioner’s chart,

which dated back to 2002, included no history of mental health treatment while incarcerated at the

jail, and made no mention of mental health treatment outside the jail (id.). Petitioner was diagnosed

with schizophrenia-paranoid type based upon his report of a family history of the disease in his

mother and grandfather (id. at 71, 80–82, 83). He was prescribed Risperdal (an anti-psychotic drug)

from March 23, 2007 to May 21, 2007, but was changed to Geodon (another anti-psychotic drug)

due to his complaint of headaches (id. at 73, 74, 82, 88–99). 

On October 17, 2007, two weeks prior to trial, Petitioner was changed from Geodon to

Prolixin (a medication used to treat symptoms of schizophrenia) due to “shakes” (id. at 68, 85–86,

89). The records indicate on that date he was oriented to time, person, place, and situation (id.). His

behavior was unremarkable, and his attitude was cooperative (id.). His speech was coherent, and

his memory intact (id.). His mood was depressed, and his affect somewhat blunted (id.). His

thought processes were logical, but his thought content had indications of paranoia (id.). Petitioner

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denied delusions or any psychotic symptoms, but he reported insomnia and that he isolated himself

(id.). He was additionally prescribed Sinequan, an anti-depressant, at that time (id.). 

The mental health record dated October 24, 2007, just five days prior to jury selection and

seven days prior to trial, indicate Petitioner’s attitude was appropriate, he appeared neat, his

behavior was calm and cooperative, his speech was normal, his mood was euthymic (moderate, not

manic or depressed), his thought process/content was coherent, his insight and judgment were good,

and he was “oriented in all spheres” (id. at 67). Petitioner reported he was “doing better” and did

not report any auditory hallucinations (id.). 

On October 30, 2007, the day after jury selection and the day before trial, Petitioner’s

attitude was appropriate, he appeared disheveled, but his behavior was calm and cooperative, his

speech was normal, his mood was euthymic, his affect was good, his thought process/content was

coherent, his insight and judgment were good, and he was “oriented in all spheres” (id. at 66). 

Petitioner did not report any auditory hallucinations (id.). 

Petitioner’s medical records do no suggest any reason for defense counsel to question

Petitioner’s competency. The mere fact that he was taking psychiatric drugs did not alone prove he

was incompetent. Additionally, as discussed supra in Ground One, Petitioner’s single, irrational

verbal outburst during jury selection was insufficient to raise a bona fide issue as to Petitioner’s

competency, when considered in the context of his immediate return to normal demeanor, his

participation in jury selection and other decisions concerning his defense, and his rational, coherent,

and appropriate responses to questions by his counsel and the prosecutor during his own testimony. 

Further, there is no record evidence of any irrational behavior or other troubling demeanor before

or after the verbal outburst during jury selection, and there is no evidence of any such problem

throughout the course of the trial. Therefore, counsel’s failure to notify the court of Petitioner’s

medication or request a competency evaluation was not unreasonable. Furthermore, Petitioner has

failed to establish a reasonable probability that the trial court would have properly determined there

was a bona fide issue as to Petitioner’s competency had the court known of Petitioner’s mental

condition and medications. 

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Petitioner failed to demonstrate that the state court’s adjudication of the claim was based

upon an unreasonable determination of the facts, or contrary to or an unreasonable application of 

Strickland. Therefore, he is not entitled to relief on this claim.

D. Ground Four (Petitioner’s Ground Two (3)): “The state court erred in denying

Petitioner’s claim of ineffective assistance of counsel were [sic] counsel failed to do a

thorough pre-trial investigation into the relevant laws and facts applicable to Petitioner’s

case.”

Petitioner contends defense counsel failed to thoroughly investigate the law and facts of his

case and, as a result, presented a “virtually impossible defense” and overlooked a “reasonable line

of defense” (doc. 1 at 13–14). He contends the state court failed to discuss or rule upon this issue

in its order denying his Rule 3.850 motion, and the court failed to conduct an evidentiary hearing

or attach portions of the record conclusively refuting his allegations (id.). Therefore, the state

court’s adjudication was contrary to federal and state law (id.).

 Respondent contends Petitioner failed to fairly present a claim to the state court, because

he failed to specify in his Rule 3.850 motion (1) how counsel’s pretrial investigation was deficient,

(2) the line of defense counsel should have investigated, or (3) how he was prejudiced by counsel’s

alleged error (doc. 30 at 46–47). Respondent thus contends the claim was not properly exhausted

and is procedurally defaulted (id. at 47). Respondent additionally contends Petitioner failed to

sufficiently plead his claim in his federal petition; therefore, it should be denied (id. at 47–49). 

Third, Respondent argues Petitioner failed to present a federal claim in his federal petition, because

he alleges only that the state court failed to follow state rules in addressing his claim (id. at 49). 

Finally, without waiving these defenses, Respondent contends to the extent Petitioner raises the

claim he presented as Ground III of his Rule 3.850 motion, he failed to show the state court’s

adjudication of the claim was contrary to or an unreasonable application of clearly established

federal law (id. at 50–52).

In Petitioner’s reply, he argues the state postconviction court addressed only his contention

that counsel should have advised him of the principal theory of liability and pursued an “independent

act” defense (doc. 39 at 21–23). Petitioner contends the state court failed to address his argument

that counsel should have investigated the reliability of the victim’s pretrial identification, and

Petitioner’s competency to stand trial (id.). 

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1. Clearly Established Federal Law

The Strickland standard, set forth supra, governs this claim.

2. Federal Review of State Court Decision

In Ground III of Petitioner’s Rule 3.850 motion, Petitioner argued only that defense counsel

was ineffective for failing to explain the principal theory of liability to him (Ex. I at 5–8). Petitioner

argued had counsel done so, he would have directed counsel to present an “independent act” defense

(id.).

The state circuit court adjudicated the claim as follows:

The Defendant claims that his counsel was ineffective for “overlooking” the

“independent act” theory of defense. The record conclusively demonstrates that the

Defendant is not entitled to relief.

As the Fifth District Court of Appeal has explained:

The Independent Act defense applies to a situation in which,

after participating in a common plan or design to commit a crime, one

of the co-defendants embarks on acts not contemplated by the other

defendants or participants in the crime, and commits additional

criminal acts beyond the scope of the original collaboration. Ward

v. State, 568 So. 2d 452, 453 (Fla. 3d DCA 1990). The purpose of

the defense is to exonerate a defendant from acts committed by

another defendant, which departed from the original plan.

Barfield v. State, 762 So. 2d 564, 566 (Fla. 5th DCA 2000).

The Defendant was not prosecuted or convicted under a principal theory. 

Rather, the Defendant was tried as the one who demanded money from the victim,

the one who actually possessed a firearm, and the one who shot at the victim as he

escaped. Attachment 1, at 15–17; 26–36, 42. Thus, the independent act defense

would be of no benefit to undermining the State’s case.

Furthermore, the Defendant himself testified that he was not near the victim’s

car during the attempted robbery at all. Attachment 1, at 109. In other words, the

Defendant testified under oath that he had nothing to do with events surrounding the

attempted robbery. Attachment 1, at 122. Therefore, counsel cannot be considered

ineffective for not pursuing an “independent act” theory of defense; such a defense

would be unavailing against the State’s contention that the Defendant was the one

who demanded money from the victim, was the one who possessed a revolver, and

was the one who fired a bullet which struck the victim’s cell phone. Moreover, the

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independent act theory of defense would have been directly contrary to the

Defendant’s own sworn testimony that he had nothing to do with the robbery.

(Ex. I at –119–20).

Petitioner appealed the decision to the First DCA, and the appellate court affirmed the lower

court’s decision without written opinion (Ex. J). 

To the extent Petitioner raises the same claim here, he exhausted the claim, and the state

court adjudicated the merits. The record supports the state court’s finding that the theory pursued

by the prosecution was not that Petitioner was a principal to the crimes; rather, Petitioner actually

entered the backseat of the victim’s vehicle with a handgun and with the intent to rob him, he

actually demanded money from the victim while in the vehicle and while he actually possessed the

handgun, and he threatened to do violence to the victim with the handgun and actually fired the gun

at the victim. The prosecutor did not argue a principal theory of liability in his opening statement

or closing argument, nor did the prosecutor request a jury instruction on the principal theory of

liability (see Ex. A at 15–32, Ex. B at 15–17, Ex. C at 155–74, 181–85). Because the State’s case

against Petitioner was not based upon a principal theory of liability, defense counsel’s failure to

advise Petitioner of this theory was not unreasonable. 

Additionally, the theory of defense pursued by counsel, that Petitioner did not have any

involvement in the crimes, was a much stronger theory than an “independent act” theory. Had

counsel pursued an independent act defense, Petitioner would have had to admit he was one of the

men shown in the video committing the crimes, and when combined with the fingerprint expert’s

testimony that Petitioner’s fingerprints were found on the areas of the victim’s car touched by the

man who entered the rear passenger seat, as well as the victim’s testimony that the man in the back

seat was the one with the gun, a conviction on all counts would have been certain. Therefore, the

state court’s adjudication of this aspect of Petitioner’s claim was reasonable under Strickland.

To the extent Petitioner argues counsel was ineffective for failing to investigate the reliability

of the victim’s pretrial identification and Petitioner’s competency, he failed to show he was

prejudiced by counsel’s alleged errors. As discussed supra, Petitioner failed to show that the pretrial

identification was impermissibly suggestive or that there were sufficient facts raising a bona fide

doubt regarding his competency to stand trial. Therefore, Petitioner failed to show a reasonable

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probability of a different outcome had counsel investigated the victim’s pretrial identification or

Petitioner’s competency. Accordingly, Petitioner is not entitled to federal habeas relief on this

claim.

E. Ground Five (Petitioner’s Ground Three): “Conviction violated double jeopardy.”

Petitioner contends his conviction for armed assault by threat violated double jeopardy,

because it “arose out of the commission of” the armed burglary (doc. 1 at 15–17). Petitioner admits

in his petition that each of the offenses of which he was convicted are separate offenses under

Blockburger v. United States, 284 U.S. 299 (1932), because each offense contains an element not

contained in the others (id. at 17). However, in his reply brief he argues armed assault by threat was

a lesser included offense of armed burglary (doc. 30 at 24).

Respondent concedes Petitioner raised this claim in his Rule 3.850 motion (doc. 30 at 52). 

Respondent asserts the state court properly found that the matter was procedurally barred, because

it should have been raised on direct appeal (id.). Respondent thus contends Petitioner failed to

properly exhaust the claim, and it is procedurally barred from federal review (id. at 52–54). 

Respondent’s exhaustion argument is not supported by the record. The state court did not

determine that Petitioner’s double jeopardy argument was procedurally barred; instead, the court

adjudicated the double jeopardy claim on the merits (Ex. I at 120–21).4

 Petitioner appealed the

decision to the First DCA, and the appellate court affirmed (Ex. J). Therefore, the claim was

exhausted.

1. Clearly Established Federal Law

The Double Jeopardy Clause embodies three separate guarantees: “It protects against

a second prosecution for the same offense after acquittal, against a second prosecution for the same

offense after conviction, and against multiple punishments for the same offense.” Justices of Boston

Mun. Court v. Lydon, 466 U.S. 294, 307–08 (1984) (citation and footnote omitted). “With respect

to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the legislature intended.”

4

 The state court determined that Petitioner’s challenge to the jury instructions was procedurally barred (Ex. I

at 121).

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Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983); Whalen v.

United States, 445 U.S. 684, 689, 100 S. Ct. 1432, 1436, 63 L. Ed. 2d 715 (1980) (“The Double

Jeopardy Clause at the very least precludes . . . courts from imposing consecutive sentences unless

authorized by [the legislature] to do so.”); Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct.

1137, 1145, 67 L. Ed. 2d 275 (1980) (stating, “the question of what punishments are constitutionally

permissible is not different from the question of what punishment the Legislative Branch intended

to be imposed. Where [the legislature] intended . . . to impose multiple punishments, imposition of

such sentence does not violate the Constitution.”); Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct.

2221, 2225, 53 L. Ed. 2d 187 (1977) (noting “[w]here consecutive sentences are imposed at a single

criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not

exceed its legislative authorization by imposing multiple punishments for the same offense.”). 

“Where the same conduct violates two statutory provisions, the first step in the double

jeopardy analysis is to determine whether the legislature . . . intended that each violation be a

separate offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d

764 (1985)). Although the Double Jeopardy Clause does not flatly prohibit the legislature from

punishing the same conduct under two different statutes, federal courts assume that the legislature

ordinarily does not intend to do so “‘in the absence of a clear indication of contrary legislative

intent.’” Hunter, 459 U.S. at 366 (quoting Whalen, 445 U.S. at 691–92); see also Garrett, 471 U.S.

at 779 (holding that multiple punishments are permissible “when the legislative intent is clear from

the face of the statute or the legislative history”); Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct.

2536, 2541 n.8, 81 L. Ed. 2d 425 (1984) (“[I]f it is evident that a state legislature intended to

authorize cumulative punishments, a court’s inquiry is at an end.” (emphasis added)). If no clear

intention is evident, the provisions are analyzed under the “same elements” test announced in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), which “inquires

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

offence’ and double jeopardy bars additional punishment and successive prosecution.” United States

v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556 (1993). Although the court

will decide under federal law whether a double jeopardy violation has occurred, it must accept the

Florida courts’ interpretation of the state’s own statutes. Hunter, 459 U.S. at 368.

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The Eleventh Circuit summarized its interpretation of Supreme Court law regarding double

jeopardy as follows: 

To summarize, our review of a potential double jeopardy violation arising

from a single prosecution is a two-stage analysis. First, we ascertain whether there

exists a clear legislative intent to impose cumulative punishments, under separate

statutory provisions, for the same conduct. If a clear indication of such intent exists,

our inquiry is at an end and the double jeopardy bar does not apply. If there is no

clear indication of legislative intent to impose cumulative punishments, we examine

the relevant statutes under the same-elements test of Blockburger. Under that test,

if each statutory offense requires proof of an element not contained in the other, the

offenses are not the “same” and double jeopardy is no bar to cumulative punishment.

Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996).

2. Federal Review of State Court Decision

Petitioner raised this double jeopardy claim in his Rule 3.850 motion (Ex. I at 8–9, 15–16). 

The state circuit court adjudicated the claim as follows:

The Defendant challenges, on double jeopardy grounds, his dual convictions

for burglary of a conveyance while armed with explosive or dangerous weapon and

aggravated assault with a firearm. See Attchment 1, at 230–231; Attachment 2. The

Court finds that these dual convictions do not violate double jeopardy principles. 

See Swain v. State, 744 So. 2d 474 (Fla. 2d DCA 1999); Bronson v. State, 768 So.

2d 1274 (Fla. 1st DCA 2000); see also Valdes v. State, 3 So. 3d 1067 (Fla. 2009).

Burglary of a conveyance while armed and aggravated assault with a firearm

do not require identical elements of proof. The offenses are not degrees of the same

offense. Finally, contrary to the Defendant’s argument, aggravated assault is not a

lesser included offense subsumed by burglary of a conveyance while armed. 

§ 775.021(4) Fla. Stat.

(Ex. I at 120–21).

Petitioner appealed the decision to the First DCA, and the appellate court affirmed the lower

court’s decision without written opinion (Ex. J).

The relevant Florida statutes specifying the separate offenses of burglary of a conveyance

while armed with a dangerous weapon and aggravated assault by threat with a firearm are sections

810.02(1)(b), and (2)(b) and 784.021(1)(a), respectively. At the time of Petitioner’s offense conduct,

January 18, 2007, Florida Statutes § 810.02 provided, in relevant part:

(1)

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. . . .

(b) For offenses committed after July 1, 2001, “burglary” means:

1. Entering a dwelling, a structure, or a conveyance with the intent to commit an

offense therein, . . . .

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term

of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or

s. 775.084, if, in the course of committing the offense, the offender:

. . . .

(b) Is or becomes armed within the dwelling, structure, or conveyance, with

explosives or a dangerous weapon; . . . 

Fla. Stat. § 810.02(1)(b), (2)(b).

Florida Statutes § 784.021 provided, in relevant part:

(1) an “aggravated assault” is an assault:

(a) With a deadly weapon without intent to kill; . . .

Fla. Stat. § 784.021(1)(a). “Assault” is defined as “an intentional, unlawful threat by word or act

to do violence to the person of another, coupled with an apparent ability to do so, and doing some

act which creates a well-founded fear in such other person that such violence is imminent. Fla. Stat.

§ 784.011.

None of those statutory provisions indicate whether the Florida legislature authorized

cumulative sentences where the statutes are offended in a single criminal episode. Therefore, rules

of statutory construction must be applied to help determine legislative intent.

The Florida legislature set forth rules of construction in Florida Statutes section 775.021. 

That provision provides, in relevant part:

(1) The provisions of this code and offenses defined by other statutes shall be strictly

construed; when the language is susceptible of differing constructions, it shall be

construed most favorably to the accused.

(2) The provisions of this chapter are applicable to offenses defined by other statutes,

unless the code otherwise provides.

. . . .

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act

or acts which constitute one or more separate criminal offenses, upon conviction and

adjudication of guilt, shall be sentenced separately for each criminal offense; and the

sentencing judge may order the sentences to be served concurrently or consecutively.

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For the purposes of this subsection, 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.

(b) The intent of the Legislature is to convict and sentence for each criminal offense

committed in the course of one criminal episode or transaction and not to allow the

principle of lenity as set forth in subsection (1) to determine legislative intent.

Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed

by the greater offense.

Fla. Stat. § 775.021 (2003). Based upon this language, it is clear that the Florida Legislature

expressly intended to convict and sentence a defendant for each offense he commits during the

course of a single criminal episode, with three exceptions to that rule. Fla. Stat. § 775.021(4)(b). 

The exceptions adopt the Blockburger test. See State v. Weller, 590 So. 2d 923, 925 (1991).

As the state postconviction court found, and Petitioner concedes, burglary of a conveyance

while armed and aggravated assault with a firearm do not require identical elements of proof. See

Bronson v. State, 768 So. 2d 1274 (Fla. 1st DCA 2000) (defendant’s convictions for burglary with

a deadly weapon and aggravated battery did not violate prohibition against double jeopardy, as each

offense contained an element that the other did not; burglary required proof only that defendant

intended to commit battery during burglary, while aggravated battery required that defendant

actually committed battery). The state court additionally determined that the offenses are not

degrees of the same offense, and aggravated assault with a firearm is not a lesser included offense

of burglary of a conveyance while armed. This federal court is bound by those determinations,

because they are the state court’s interpretations of state law.5 See Bradshaw v. Richey, 546 U.S.

5

 As Respondent notes, had Petitioner been charged with burglary with assault or battery and aggravated assault,

his convictions for both may have violated double jeopardy, because aggravated assault is a permissive lesser included

offense of burglary with assault or battery. See The Florida Bar 2002 Florida Standard Jury Instructions in Criminal

Cases, Fourth Edition, Part Two: Instruction on Crimes, Chapter 13.1 Burglary with Assault, Lesser Included Offenses

(2002). However, Petitioner was not charged with or convicted of burglary with assault or battery (see Ex. A at 2–3,

12–14). Further, the crime with which he was charged and convicted, burglary with a firearm, is a different crime than

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74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005) (citation omitted); Mullaney v. Wilbur, 421 U.S.

684, 691, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) (citations omitted); see also Herring v. Sec’y

Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005). In light of the state court’s interpretations

of Florida law, Petitioner failed to show a double jeopardy violation. 

Petitioner failed to demonstrate that the state court’s adjudication of his double jeopardy

claim was contrary to or an unreasonable application of clearly established federal law. Therefore,

he is not entitled to federal habeas relief.

IV. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 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, 120 S. Ct. 1595, 1603–04, 146 L.

Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) 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) be DENIED.

2. That a certificate of appealability be DENIED.

burglary with assault or battery. See Swain v. State, 744 So. 2d 474 (Fla. 2d DCA 1999).

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At Pensacola, Florida, this 20th day of July 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. 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

objections shall be served upon the magistrate judge and all 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).

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