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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DAMIEN ORLANDO RODGERS,

Petitioner,

v. Case No. 3:11cv197/LAC/MD

KENNETH S. TUCKER, 

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

This case is before the court on Damien Orlando Rodgers’ (“Mr. Rodgers”)

April 22, 2011 petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 (doc. 1). 

Respondent filed an answer (doc. 19) and relevant portions of the state court record

(docs. 20 and 21). The matter was referred to the undersigned magistrate judge for

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

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

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

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

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

attachments before the court show that Mr. Rodgers is not entitled to relief, and the

petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

On October 28, 2004, Mr. Rodgers was charged with count 1 burglary of

dwelling with assault or battery, and count 2 attempted second degree felonymurder

in violation of Sections 810.02 and 782.051(3) respectively, Florida Statutes, in the

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Circuit Court of Escambia County, Florida in case number 1704CF4253A-D (doc. 20-

1, p. 45) . On April 20, 2005, Mr. Rodgers was found guilty by a jury of burglary with 1

assault or battery, and of aggravated battery (doc. 20-1, p. 56). On July 26, 2005, the

court sentenced him as a prison releasee reoffender to life in prison for count 1 and

a concurrent term of 15 years for count 2, with 311 credit days (doc. 20-2, pp. 17-20). 

On June 1, 2006, Mr. Rodgers filed a motion to correct sentencing error pursuant to

Rule 3.800, Florida Rules of Criminal Procedure, which was denied (doc. 20-7, pp.

25-74 and doc. 20-8, pp. 1-23). 

On November 6, 2006, Mr. Rodgers directly appealed his conviction and

sentence to the Florida First District Court of Appeal (“First DCA”) (doc. 20-8, pp. 26-

74 and doc. 21-1, pp. 1-5). He raised four issues in his initial brief: (1) “Trial court

erred by either granting a partial judgment of acquittal or allowing the state to amend

the information as to count II when the state wholly failed to charge a crime in that

count and the change was highly prejudicial to the appellant;” (2) “The trial court

erred when it sentenced appellant for aggravated battery where the jury merely

found him guilty of aggravated battery but did not find any factor which increased

the charge of battery to the higher offense;” (3) “Trial counsel was ineffective on the

face of the record and this court should reverse for a new trial;” and (4) “The trial

court erred fundamentally when it gave the forcible felony exception jury instruction

as this negated appellant’s sole defense of justifiable use of force to defend Ms.

Vanderhall and his child.” Doc. 20-8, p. 27. On October 10, 2007, the First DCA

issued an opinion affirming Mr. Rodgers’ conviction on count 1, but reversing his

Respondent’s counsel seems to not understand the requirements of CM/ECF filing. Instead

1

of filing each exhibit separately, he has filed them together without any label as to each (merely

naming each document “Exhibit” fails to help matters). He also has filed the exhibits in two separate

document numbers (doc. 20 and doc. 21) confusing the record even more. The court hereby warns

that future filings must comply with the Local Rules and this type of disorganized filings will not be

tolerated. In the future, the court will mandate re-filing of all exhibits in an orderly fashion and with

the proper identification (for example Exhibit A, Exhibit B, etc.).

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conviction as to count 2 (doc. 21-2, pp. 2-7). The trial court vacated count 2's

judgment and sentence on November 16, 2007 (doc. 21-7, p. 46). 

On January 8, 2008, Mr. Rodgers filed a pro se motion for post-conviction

relief in the trial court pursuant to Rule 3.850, Florida Rules of Criminal Procedure

(doc. 21-2, pp. 29-74). He also filed a motion requesting an evidentiary hearing and

for appointment of counsel (doc. 21-2, pp. 75-80). In his Rule 3.850 motion, he

asserted four claims of ineffective assistance of counsel (doc. 21-2, pp. 30-31). After

several other filings by the parties, on July 9, 2008, Mr. Rodgers filed a supplemental

post-conviction motion under Rule 3.850 asserting an additional ineffective

assistance of counsel claim (doc. 21-5, pp. 35-40). On February 10, 2009, the Rule

3.850 court denied Mr. Rodgers’ motion and supplemental motion in a written

opinion (doc. 21-5, pp. 50-59). On February 24, 2009, the Rule 3.850 court dismissed

as moot Mr. Rodgers’ motion requesting an evidentiary hearing and appointment of

counsel (doc. 21-6, p. 31). Mr. Rodgers appealed to the First DCA (doc. 21-6, pp. 36-

80), and on August 18, 2009, the First DCAper curiam affirmed the Rule 3.850 court’s

denial of post-conviction relief (doc. 21-7, p. 5). Mr. Rodgers filed a motion for

rehearing and clarification with the First DCA on September 19, 2009 (doc. 21-6, pp. 

86-95 and doc. 21-7, pp. 1-3), which was denied (doc. 21-6, p. 85). Mandate issued

on October 15, 2009 (doc. 21-7, p. 7). 

On December 9, 2009, Mr. Rodgers filed a pro se “Motion to Correct Illegal

Sentence” pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure alleging

his conviction did not qualifyhim for enhanced sentencing under theprison releasee

reoffender statute (doc. 21-7, pp. 30-35). The state court denied the motion in an

order dated March 31, 2010 (doc. 21-7, pp. 36-37). Mr. Rodgers appealed to the First

DCA, which affirmed the trial court without issuing an opinion on August 5, 2010

(doc. 21-7, p. 52). Mandate issued on August 31, 2010 (doc. 21-7, p. 54). 

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Mr. Rodgers filed the instant petition for federal writ of habeas corpus on April

26, 2011 (doc. 1), and respondent concedes its timeliness (doc. 19, p. 4).

STANDARD OF REVIEW 

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

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

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

(1996). In relevant part, Section 2254 provides:

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

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

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

court proceedings unless the adjudication of the claim -- 

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

court proceeding.

28 U.S.C. § 2254(d) (2006).

The Supreme Court explained the framework for Section 2254 review in

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

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

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

2

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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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. at 412–13 (O’Connor, J., concurring). The federal habeas court “determining

whether [it] should overturn the state courts’ [sic] rejection of the claim at issue”

should “review the highest state court decision disposing of the claim.” Harvey v.

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

Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 173 L. Ed. 2d 251(2009).

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

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

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

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

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

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

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

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

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

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

holding directly on point,” cannot clearly establish federal law for Section 2254

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

1866, 176 L. Ed. 2d 678 (2010)).

After identifying the governing legal principle, the court determines whether

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

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

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

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

result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005);

see 28 U.S.C. § 2254(d)(1). The state court does not need to cite to Supreme Court

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

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

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

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

merits of petitioner’s claim.

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

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

applied” the governing legal principles set forth in the Supreme Court’s cases. 28

U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412–13. The federal court defers to the

state court’s reasoning unless the state court’s application of the legal principle was

“objectively unreasonable” in light of the record the court had before it. Williams,

529 U.S. at 409; see Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1400, 179 L. Ed.

2d 557 (2011) (holding new evidence introduced in federal habeas court has no

bearing on Section 2254(d)(1) review, rejecting dicta in Holland v. Jackson, 542 U.S.

649, 652, 124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam)). A state court’s

application of federal law is objectively unreasonable when the state court

“identifies the correct legal rule from Supreme Court case law but unreasonably

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

unreasonably declines to extend, a legal principle from Supreme Court case law to

a new context.” Brown, 544 U.S. at 141. However, a state court may “decline to

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

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

556 U.S. at 261. Notably, even a state court’s incorrect application of law will not

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

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

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

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

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

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

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

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

S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (dictum). 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); 28 U.S.C. § 2254(e)(1).

The Eleventh Circuit in Gill clarified how the federal habeas court should

address the “unreasonable application of law” and the “unreasonable determination

of facts” tests. Id. at 1288-89. Mr. Gill’s petition alleged he was denied his Sixth

Amendment right to counsel. Id. at 1288. The Eleventh Circuit granted a limited 3

Certificate of Appealabilityto determine the precise issue of the validityof “summary

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

3

Amendment right to counsel. Gill, 633 F.3d at 1275-84; U.S. Const. amend. VI. The trial court denied

the first motion concluding that Mr. Gill’s waiver of counsel was not knowing and intelligent. Gill, 633

F.3d at 1278; see Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)

(accused must “knowingly and intelligently” waive representation). The trial court also denied the

second motion, but allowed Mr. Gill to act as co-counsel for himself only for determining trial strategy.

Gill, 633 F.3d at 1284. After Mr. Gill was convicted and timely requested post-conviction relief, the

Florida Second District Court of Appeal (“Second DCA”) affirmed without opinion the trial court’s

denial of said relief. Id. at 1284-85. Mr. Gill then filed a petition in federal court, which the district

court denied with prejudice. Id.

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

flawed reasoning.” Id. at 1286.

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The Gill court acknowledged the well-settled principle that summary

affirmances, such as the Second DCA’s, are presumed adjudicatedon the merits and

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

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

and a judicial opinion are not the same thing,” and the Supreme Court has confirmed

that determining whether the state court unreasonably applied the law or

unreasonably determined the facts requires only a decision, not an opinion. Id. at

1291 (citing Harrington, 131 S. Ct. at 784). Yet, the Supreme Court has never

squarely addressed whether under the “unreasonable application” test a federal

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

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

arrives at its conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244-45

(5th Cir. 2002) (summarizing the emerging circuit split)). The Eleventh Circuit in Gill

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

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

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

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

The Eleventh Circuit reviewed Mr. Gill’s claims that the district court erred in its habeas

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corpus analysis as to two issues. First, Mr. Gill argued that the habeas court erred by “failing to

review on the merits the ‘legally and factually unsupported rationale’ articulated by the state trial

court.” Gill, 633 F.3d at 1288. Second, Mr. Gill argued the habeas court’s decision was per se

erroneous because it “relied on a finding that the state court did not make.” Id. Specifically, Mr. Gill

averred that the trial court denied relief by finding that his Sixth Amendment waiver was not knowing

and intelligent, while the federal district court denied relief by finding that he “never clearly and

unequivocally” waived his right to counsel. Id.

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Neal, 286 F.3d at 244-45). In short, the Eleventh Circuit held that “the statutory

language focuses on the result, not on the reasoning that led to the result.” Id.5

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 in order to answer “the only question that

matters[:]” whether the state court’s decision was objectively unreasonable.

Lockyer, 538 U.S. at 64; Gill, 133 F.3d at 1290.

The Supreme Court recently summarized the meaning and function of habeas

corpus in the federal system:

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

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

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

could disagree that those arguments or theories are inconsistent with

the holding of a prior decision of this Court.

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

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

conclusion.” Id. (internal quotations omitted)

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

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

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

S. Ct. 2842, 168 L. Ed. 2d 662 (2007). The writ will not issue unless petitioner shows

that he is in custody “in violation of the Constitution or laws and treaties of the

United States.” 28 U.S.C. § 2254(a). When performing its review under Section

Applying this analysis, the Eleventh Circuit rejected Mr. Gill’s claim that the district court

5

erred by relying on different grounds than the trial court because Mr. Gill’s basic premise—the Second

DCA’s summary affirmance relied on the trial court’s statements from the bench—was not dispositive.

Id. at 1288.

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2254(d), the federal court must resolve all claims for relief regardless of whether

habeas relief is granted or denied. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992)

(en banc); see also Puiatti v. McNeil, 626 F.3d 1283, 1307 (11th Cir. 2010). The

federal court must also bear in mind that state court factual determinations are

presumed to be correct, and petitioner bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also

Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002) (AEDPA provides for a “highly

deferential standard of review” for factual determinations made by a state court);

Jackson v. Anderson, 112 F.3d 823, 824-25 (noting petitioner has heavier burden to

overcome the presumption of factual correctness). “If this standard is difficult to

meet, that is because it was meant to be.” Harrington, 131 S. Ct. at 786.

OTHER CONTROLLING LEGAL PRINCIPLES

Ineffective assistance of counsel

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

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

Constitution provides that: “[i]n all criminal prosecutions, the accused shall enjoy

the right. . .to have the Assistance of Counsel for his defence.” U.S. Const. amend.

VI. To prevail on a claim of ineffective assistance of counsel, petitioner must prove

that: (1) “counsel’s representation fell below an objective standard of

reasonableness;” and (2) “there is a reasonable probability that, but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 677-78, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); see also Berghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264-65, 176 L.

Ed. 2d 1098 (2010). Reasonableness of representation does not implicate what is

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possible, prudent, or even appropriate, but only what is “constitutionally

compelled.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (citing

Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987)).

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

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

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

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

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

Strickland, 466 U.S. at 689; see also Chandler, 218 F.3d at 1314 (the Strickland

standard compels courts to “avoid second-guessing counsel’s performance”). The

Eleventh Circuit has summarized the standard and the burden:

Even if many reasonable lawyers would not have done as defense

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

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

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

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

lawyers’ performances; we are interested in whether the adversarial

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

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

petitioners can properly prevail on the ground of ineffective assistance

of counsel are few and far between.

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

1506, 1518 (11th Cir. 1995) (the test is not whether counsel could have done more);

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

a good deal less than maximum performance.”)

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

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

conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693;

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

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

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been different. Frazier v. Bouchard, 661 F.3d 519, 532 (11th Cir. 2011); Marquard, 429

F.3d at 1305 (petitioner’s burden under the prejudice prong is high); Strickland, 466

U.S. at 694. In applying Strickland, the court may dispose of an ineffective

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

Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice. . .that course should be followed.”).

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

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

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

Supreme Court emphasized:

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

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

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

applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with

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

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

question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.

Id. (citations omitted); Knowles, 556 U.S. at 262 (Strickland claims evaluated under

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

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

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

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

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

v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “‘The pivotal question is whether the

state court's application of the Strickland standard was unreasonable, [which] is

different from asking whether defense counsel's performance fell below Strickland's

standard.’” Jones v. Sec’y, Dep’t of Corr., 644 F.3d 1206, 1209 (11th Cir. 2011)

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(quoting Harrington, 131 S. Ct. at 785). Habeas claims of ineffective assistance of

counsel require “doubly deferential” judicial review under Section 2254(d) and

Strickland, and petitioners only rarely prevail on this ground. See Rogers, 13 F.3d

at 386.

Exhaustion of state remedies and procedural default

A petitioner defaults on an issue unless the petitioner first exhausts available

state court remedies so the state has the “‘opportunity to pass upon and correct’

alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,

365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam); see 28 U.S.C. §

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

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

right). But see 28 U.S.C. § 2254(b)(2) (application may be denied on the merits even

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

requirement, petitioner must “fairly present” his claim in each appropriate state

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

66; see O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1

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

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

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

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

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

that entitle petitioner to relief. Picard v. Connor, 404 U.S. 270, 278, 92 S. Ct. 509, 30

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

the same facts and claims in state court about which he petitions the federal court. 

Id. Appeals to a broad, general constitutional guarantee also fail to present the

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“substance” of such a claim to the state court. See Anderson v. Harless, 459 U.S.

4, 7, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982) (petitioner cited federal authority only by

referring to a state court decision in which “the defendant. . . asserted a broad

federal due process right to jury instructions that properly explain state law”

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

if the state court “must read beyond a petition or a brief (or a similar document) that

does not alert it to the presence of a federal claim in order to find material. . ..”

Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004). However,

when a petitioner squarely raises a federal constitutional claim in state court, the

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

presented to it.” Dye v. Hofbauer, 546 U.S. 1, 3, 126 S. Ct. 5, 163 L. Ed. 2d 1 (2005). 

And, simply labeling the claim “federal” may be sufficient to fairly present the claim. 

Baldwin, 541 U.S. at 32 (dictum).

The Eleventh Circuit requires specific reference to the United States

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

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

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

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

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

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

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

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

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

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

issue. Duncan, 513 U.S. at 366; see also Anderson, 459 U.S. at 7 and n.3 (petitioner’s

citation to a state-court decision predicated solely on state law is probably

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insufficient to fairly apprise a reviewing court of a potential federal claim merely

because the defendant in the cited state case advanced a federal claim). 

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

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

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

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

Coleman v. Thompson, 501 U.S. 722, 734-35 and n.1, 111 S. Ct. 2546, 115 L. Ed. 2d

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

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

constitutional claim on state procedural grounds generally precludes subsequent

federal habeas review of that claim). Unless the federal court determines the state

court “clearly and expressly” relied on independent and adequate state grounds, the

federal court may address the petition. Coleman, 501 U.S. at 735. However, when 6

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

procedural default doctrine, the default is per se adequate state grounds

independent of the federal question. Id. at 735 n.1; Harris v. Reed, 489 U.S. 255, 263

n.9, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) (federal habeas court need not require

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

procedurally barred).

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

is itself a federal question. Lee, 534 U.S. at 375. To foreclose federal review, the

state procedural bar must be firmly established and regularly followed, that is, not

applied in an arbitrary or unprecedented fashion. Ford v. Georgia, 498 U.S. 411,

423-24, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991). A state procedural bar is firmly

established and regularly followed when the state has put litigants on notice of the

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

6

substantive state-law grounds. Lee v. Kemna, 534 U.S. 362, 375 (2002).

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rule, and the state has a legitimate interest in the rule’s enforcement. Siebert v.

Allen, 455 F.3d 1269, 1271 (11th Cir. 2006).

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

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

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

Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004); High v. Head, 209

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

as governmental interference or the reasonable unavailability of the factual basis for

the claim prevented petitioner from raising the claim. McCleskey v. Zant, 499 U.S.

467, 497 (1991) (superseded by AEDPA statute, but holding is still good law as cited

and followed by the Eleventh Circuit in High, 209 F.3d at 1262-63). Recently the

Supreme Court found cause due to petitioner's out-of-state counsel, who were on

record as representing him in post-conviction proceedings, abandoned him without

leave of court, without informing him they could no longer represent him, and

without securing any recorded substitution of counsel. Maples v. Thomas, --- S.

Ct.---, 2012 WL 125438, *14 (January 18, 2012). Therefore, petitioner had no

knowledge that his time to appeal had lapsed, and showed ample cause to excuse

the procedural default. Id. 

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

constitutional violation has probablyresulted in the conviction of one who is actually

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

convicted him.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d 808

(1995) (superseded by AEDPA statute, but holding is still good law as cited and

followed by the Eleventh Circuit in High, 209 F.3d at 1270). Further:

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

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

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

with new reliable evidence -- whether it be exculpatory scientific

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evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial.

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

exception are summarily rejected in virtually every case. Id.

Deference to state court findings of fact

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

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

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

Cir. 2005) (quoting the statute’s language) (“[Section] 2254(d)(2) allows for relief

where the state court adjudication ‘resulted in a decision that was based on an

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

State court proceeding.’”). Under the AEDPA, the state court does not have to

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

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

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

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

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

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

Early, 537 U.S. at 8. A summary adjudication with a brief, or total lack of, statement

of reasons is still an adjudication on the merits. Harrington, 131 S. Ct. at 780, 784;

see Childers v. Floyd, 642 F.3d 953, 968 (11th Cir. 2011) (“an ‘adjudication on the

merits’ is best defined as any state court decision that does not rest solely on a state

procedural bar.”)

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

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

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

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Dep’t of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006)); see also Ylst v. Nunnemaker, 501

U.S. 797, 802, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) (quoting Coleman, 501 U.S.

at 740) (the Harris presumption only applies after the habeas court determines that

“‘the relevant state court decision. . .fairly appear[s] to rest primarily on federal law

or [is] interwoven with [federal] law.’”) 

PETITIONER’S GROUNDS FOR RELIEF

I. MERITS

Ground 1 Defense counsel performed ineffectively by failing to fully advise Mr.

Rodgers of the strength of the state’s case against him when the state

offered him a 7-year sentence to plead guilty, and the trial court erred

in failing to grant an evidentiary hearing on this claim.

Mr. Rodgers avers that his counsel failed to inform him that the defense

planned as to the burglary charge would not be reasonable (doc. 1, pp. 6-7). He

claims that he was unable to claim self-defense and justifiable use of force to the

aggravating element of the burglary charge. Id. Mr. Rodgers alleges that had he

been advised correctly by his counsel, that he was facing a life sentence under the

prison releasee reoffender statute (Section 775.082 of the Florida Statutes); then he

would have accepted the state’s plea offer of seven years instead of pursuing a risky

trial. Id. He contends that the Rule 3.850 court erroneously determined that no plea

offer was ever tendered based solely on the state’s pleading. Id.

Mr. Rodgers presented this claim as Ground D in his Rule 3.850 motion (doc.

21-2, pp. 31-41, 68-74). He also mentioned this claim in his direct appeal to the First

DCA (doc. 20-8, pp. 69).

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State Court Decision

The First DCA issued an opinion affirming Mr. Rodgers’ conviction and

sentence as to count 1, burglary of a dwelling with assault or battery, but did not

address this claim specifically (doc. 21-2, pp. 2-7). The Rule 3.850 court did not hold

a hearing, and decided that no plea offer was pending (doc. 21-5, pp. 57-58). It

determined that there had been negotiations, “but no agreement satisfactoryto both

sides was reached.” Id. at 58. Moreover, the Rule 3.850 court found that Mr.

Rodgers’ defense counsel presented a reasonable defense to the burglary charge:

“lack of the essential element of intent.” Id. Therefore, it concluded that Mr.

Rodgers did not prove that defense counsel was deficient. Id. 

Federal Review of State Court Decision

A. Defense for Burglary Charge 

The trial court determined that Mr. Rodgers’ counsel presented a reasonable

defense as to the burglary charge- that Mr. Rodgers did not have the requisite intent

(doc. 21-5, p. 58). This is supported by the record. Mr. Rodgers’ defense counsel

called Ms. Vanderhall to testify, and she confirmed that at the time Mr. Rodgers

arrived at her apartment she was having a disagreement with Mr. Clemmons, which

was loud enough to be heard outside her front door (doc. 20-5, p. 14). Mr. Rodgers

then took the stand and testified that he has a little girl with Ms. Vanderhall. Id. at

30. He explained that on the night of the incident he had called Ms. Vanderhall to tell

her that he was bringing her some money. Id. at 32. When he arrived, he knocked

on the door and heard a bunch of commotion and arguing. Id. Ms. Vanderhall told

him to leave, and he was about to but he heard something drop. Id. He went back

to the door and heard a male voice and continued arguing. Id. at 33. He heard Ms.

Vanderhall say “you better stop” and reacted by kicking in the door. Id. Mr. Rodgers

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explained that he thought somebody was trying to hurt her or one of his children. 

Id. at 33 and 42. 

What defense to pursue is clearly a strategy decision. “By ‘strategy,’ [courts]

mean no more than this concept: trial counsel's course of conduct, that was neither

directly prohibited by law nor directly required by law, for obtaining a favorable

result for his client.” Chandler, 218 F.3d at 1314 n.14. Matters of trial strategy and

tactics, unless plainly not within the bounds of reasonableness, and even if

unsuccessful, do not constitute ineffective assistance. Id. at 1316 n.16. But not

everystrategicdecisionpasses constitutional muster. Whether a particular decision

by counsel was a tactical one is a question of fact, Hardwick v. Crosby, 320 F.3d

1127, 1163 (11th Cir. 2003), and the state court's resolution of that issue enjoys a

strong presumption of correctness. See 28 U.S.C. § 2254(e)(1); Jackson v. Herring,

42 F.3d 1350, 1367 (11th Cir. 1995); Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.

1991). Whether a particular tactical decision was a reasonable one, however, is a

question of law, Hardwick, 320 F.3d at 1163; Jackson, 42 F.3d at 1367; Horton, 941

F.2d at 1462, and habeas relief is mandated only where the trial court's decision was

either contrary to, or an objectively unreasonable application of, clearly established

Supreme Court precedent, 28 U.S.C. § 2254(d)(1).

Mr. Rodgers’ counsel decision to demonstrate Mr. Rodgers’ lack of intent as

to the burglary charge was reasonable and did not constitute ineffective assistance

of counsel. The state court’s decision was not contrary to, or involved an

unreasonable application of, clearly established federal law, or was based on an

unreasonable determination of the facts in light of the evidence presented. 28 U.S.C.

§ 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. Rodgers is not entitled to federal

habeas relief, and the writ should not issue.

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B. Plea offer

In a very recent Supreme Court case, the High Court analyzed the Strickland

standard in the context of plea agreements. Lafler v. Cooper, - - - S. Ct. - - -, 2012 WL

932019 (March 21, 2012). The defendant in Lafler was offered several plea offers but

rejected them due to faulty legal advice by his counsel. Lafler, - - - S. Ct. - - -, 2012

WL 932019, *4. He then went to trial, was convicted, and asserted ineffective

assistance of counsel claims in a federal habeas petition. Id. The Supreme Court

explained that, under the Sixth Amendment, defendants are entitled to effective

assistance of competent counsel during plea negotiations. Lafler, - - - S. Ct. - - -,

2012 WL 932019, *5. Since respondent conceded that the performance of

defendant’s counsel was deficient, the analysis turned to whether the defendant

suffered prejudice under Strickland. Id. 

In order to establish prejudice under Strickland, a 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.” Strickland, 466 U.S. at 694. “In

the context of pleas a defendant must show the outcome of the plea process would

have been different with competent advice.” Lafler, - - - S. Ct. - - -, 2012 WL 932019,

*5. Since the defendant in Lafler rejected the plea offers and chose to go to trial, the

Supreme Court held that he had to establish that:

but for the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been presented to the court

(i.e., that the defendant would have accepted the plea and the

prosecution would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its terms, and that

the conviction or sentence, or both, under the offer’s terms would have

been less severe than under judgment and sentence that in fact were

imposed. 

Id. 

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The High Court reasoned that:

If a plea bargain has been offered, a defendant has the right to effective

assistance of counsel in considering whether to accept it. If that right

is denied, prejudice can be shown if loss of the plea opportunity led to

a trial resulting in a conviction on more serious charges or the

imposition of a more severe sentence.

Id. at *8. 

However, “[i]f no plea offer is made, or a plea deal is accepted by the

defendant but rejected by the judge, the issue raised here simply does not arise.” 

Id. That is the case here. Even though Mr. Rodgers alleges that he received a plea

offer of 7 years, he has not proffered any evidence of said plea. In fact, in his Rule

3.850 motion Mr. Rodgers stated:

Movant freely admits that he desired to proceed to trial. Of course,

Movant really had no choice in the matter, because, up until the

morning trial was to began, the State had made no plea offer (doc. 21-2,

p. 72)

His counsel testified during sentencing that he attempted to reach a plea deal with

prosecutors on the morning of the trial, but was unsuccessful (doc. 20-1, pp. 61-62). 

The state denies there being an outstanding plea offer of 7 years (doc. 21-1, p. 41). 

The record also shows that Mr. Rodgers insisted on going to trial despite being

advised by his counsel not to waive the conflict of interest found on the eve of trial

(doc. 20-3, pp. 46-50 and doc. 20-1, pp. 62-63, 67). At that point his defense counsel

requested the court to provide Mr. Rodgers an unconflicted counsel to advise him,

and the court did so (doc. 20-3, pp. 51-62 and doc. 20-1, p. 63). Mr. Rodgers still

insisted on going to trial. Id. Mr. Rodgers cannot now argue that his defense

counsel’s performance was deficient when there was no plea offer and when he

refused to follow his recommendation to continue the trial, which may have allowed

for further negotiations with the state possibly resulting in a plea deal.

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

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

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

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presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at 409. Mr. Rodgers is not

entitled to federal habeas relief, and the writ should not issue. 

C. No Evidentiary Hearing

Mr. Rodgers alleges that the trial court erred in failing to grant an evidentiary

hearing on this claim (doc. 1, p. 6). Respondent contends that this argument was

raised solely as a state law issue, and is thus unexhausted (doc. 19, p. 7). This is

actually an argument of a Due Process violation.

Due process violations during state post-conviction proceedings do not form

the basis of habeas relief. See Carroll v. Sec’y, Dep’t of Corr., 574 F.3d 1354, 1365

(11th Cir. 2009); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004). The habeas

statute permits federal courts to grant habeas relief to state prisoners on the ground

that they are “in custody pursuant to the judgment of a State court” in violation of

federal law. 28 U.S.C. § 2254(a). State post-conviction proceedings are not the

“judgment” that resulted in the prisoner’s detention. See Carroll, 574 F.3d at 1365

(“[A] challenge to a state collateral proceeding does not undermine the legalityof the

detention or imprisonment—i.e., the conviction itself . . . .”). 

Post-conviction proceedings are instead “civil in nature and are not part of the

criminal proceeding itself.” Pennsylvania v. Finley, 481 U.S. 551, 556–57, 107 S. Ct.

1990, 1994, 95 L. Ed. 2d 539 (1987). Therefore, procedural violations during state

post-conviction proceedings are “issues unrelated to the cause of the petitioner’s

detention.” Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987). As such, they

cannot form the basis for habeas relief. See, e.g., Carroll, 574 F.3d at 1365 (holding

that a failure to hold an evidentiary hearing in a state post-conviction proceeding

was not a basis for habeas relief); In re Rutherford, 437 F.3d 1125, 1127 (11th Cir.

2006) (finding insufficient for habeas relief the petitioner’s claim that the state

post-conviction court denied him due process by failing to provide mental health

records of a person the petitioner alleged had actually committed the crime) (citation

omitted); Quince, 360 F.3d at 1262 (rejecting a habeas petition, which alleged that

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the state judge presiding over the petitioner’s post-conviction hearing denied the

petitioner due process by not recusing himself, because the claim did not relate to

the petitioner’s conviction).

The due process violation alleged by Mr. Rodgers occurred during state

post-conviction proceedings, not during his criminal trial. The process afforded Mr.

Rodgers during that proceeding, had no bearing on the judgment that led to his

conviction and sentence. A writ of habeas corpus is not the proper remedy for this

alleged wrong.

Ground 2 Defense counsel was ineffective for failing to argue necessity as an

affirmative defense and for failing to request jury instructions on that

defense 

Mr. Rodgers alleges that his defense counsel was ineffective because he did

not argue a necessity defense as to the burglary charge despite it being supported

by his testimony and Ms. Vanderhall’s testimony (doc. 1, p. 7). He also avers that his

defense counsel’s failure to request jury instructions on that defense amounted to

deficient performance. Id. 

Even though Mr. Rodgers included a claim for ineffective assistance of

counsel in his direct appeal to the First DCA, he did not mention this claim (doc. 20-

8, pp. 68-74). Mr. Rodgers instead argued this claim in his Rule 3.850 motion as

Ground A (doc. 21-2, pp. 45-56).

State Court Decision

The Rule 3.850 court determined that Mr. Rodgers’ defense counsel presented

a very similar defense to the necessity defense - lack of intent (doc. 21-5, pp. 52-54). 

It explained that “[a] lack of intent to commit an offense upon entry is a complete

defense to burglary.” Id. at 53. The Rule 3.850 court cited the record where both Mr.

Rodgers and his counsel reasoned to the jury that Mr. Rodgers “kicked in the door

of Ms. Vanderhall in order to protect [her] and her children from what [Mr. Rodgers]

perceived as a pending threat.” Id. Mr. Rodgers’ counsel then argued that burglary

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was not committed because of the lack of intent, and even implied that to believe so

“was rather absurd.” Id. Therefore, it concluded that Mr. Rodgers did not prove that

defense counsel was deficient because his counsel “pursued a defense nearly

identical” to the necessity defense. Id. at 54. 

As to the jury instruction, the Rule 3.850 court instructed the jury, as

requested by Mr. Rodgers’ counsel, that:

Even though an unlawful entering a structure is proved, if the evidence

does not establish that it was done with the intent to commit assault or

battery, the defendant must be found not guilty. 

Id. at 53-54 quoting doc. 20-5, p. 52 and 20-6, p. 34. The Rule 3.850 court held that

Mr. Rodgers did not demonstrate that the result would have been different at trial

had his counsel pursued a necessity defense or requested a necessity jury

instruction. Id. at 54.

Federal Review of State Court Decision

As discussed in detail above, this court owes deference to the state courts’

rulings, and cannot disturb them so long as there was a “satisfactory conclusion.” 

Williams, 529 U.S. at 410-12; see also Crawford, 311 F.3d at 1295 (explaining that

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

determinations made by a state court).

Mr. Rodgers asserts that counsel should have argued the affirmative defense

of necessity and request a jury instruction as to that defense. He contends that his

failure to do so constituted deficient performance. It was not. Counsel’s

performance was not deficient merely because it was not perfect. 

“[J]udicial scrutiny of counsel’s performance must be highly

deferential.” Because retrospective evaluation of a lawyer’s

performance can be difficult, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance . . . . In light of the “strong

presumption in favor of competence,” we have held that in order to

prove deficient performance, “a petitioner must establish that no

competent counsel would have taken the action that his counsel did

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take.” Brownlee v. Haley, 306 F.3d 1043, 1059 (11th Cir. 2002) (quoting

Strickland, 466 U.S. at 687, 689-90 and Chandler, 218 F.3d at 1315).

United State v. Freixas, 332 F.3d 1314, 1319-1320 (11th Cir. 2003). In the context of

this case, Mr. Rodgers must convince this court that no other lawyer would have

advanced the lack of intent argument as opposed to the necessity one. He has not. 

A court must not second-guess counsel's strategy. Waters, 46 F.3d at 1518-19 (en

banc). Mr. Rodgers’ counsel presented a reasonable defense to his burglary charge,

but without success. Mr. Rodgers failed to prove his trial counsel’s performance

was deficient or that he suffered prejudice. 

The state court’s ruling was not unreasonable under Strickland, did not result

in a decision that was contrary to, or involved an unreasonable application of, clearly

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

in light of the evidence presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at

409. Mr. Rodgers is not entitled to federal habeas relief, and the writ should not

issue.

Ground 3 Defense counsel performed ineffectively by failing to object to the

forcible felony exception jury instruction, which precluded a justifiable

use of force defense to the battery element of the burglary charge.

Mr. Rodgers argues that his trial counsel should have objected to the court’s

jury instruction on the forcible felony exception to self-defense and justifiable use

of force because it assured his conviction on the aggravating element of the

burglary charge (doc. 1, p. 8). He contends that he was not charged with a separate

forcible felony, and thus forcible felony jury instruction read to the jury was

inappropriate (doc. 21-2, pp. 64-68 and pp. 87-88, doc. 21-3, pp. 1-4). His defense

counsel argued during trial that Mr. Rodgers forced his way into Ms. Vanderhall’s

apartment based on the reasonable need to protect her and her children (doc. 1, p.

8). Therefore, Mr. Rodgers contends that at the very least his counsel should have

requested a clarifying instruction so that the jury could excuse the forcible entry

based upon the showing of reasonable need. Id. He concludes that as instructed,

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the jury could not find him not guilty based on self-defense or justifiable use of

force. Id. 

Mr. Rodgers argued this claim in his direct appeal to the First DCA while

conceding that it was not preserved for appeal, but averring it is fundamental (doc.

21-1, pp. 1-4). He also included it in his Rule 3.850 motion as Ground C (doc. 21-2,

pp. 64-68 and pp. 87-88, doc. 21-3, pp. 1-4). 

State Court Decision

The First DCAissued an opinion reversing Mr. Rodgers’ conviction as to count

2, aggravated battery (doc. 21-2, pp. 2-7). In the same opinion, the First DCAaffirmed

Mr. Rodgers’ conviction and sentence as to count 1, burglary of a dwelling with

assault or battery, but did not discuss Mr. Rodgers’ claims as to this charge. Id. 

The Rule 3.850 court determined that because Mr. Rodgers argued this in his

direct appeal to the First DCA, then the issue was not properly before it (doc. 21-5,

pp. 55-56). However, it concluded that even if the issue was properly before it, Mr.

Rodgers was not entitled to relief. Id. at 56. The Rule 3.850 court explained that:

As a threshold issue, the jury had to find that [Mr. Rodgers] committed

a burglary. [Mr. Rodgers’] claim of self defense did not apply to the

burglary. . . .[Mr. Rodgers’] defense to burglary was absence of the

essential element, intent. Next, as shown clearly by the verdict form,

the jury had to decide whether [Mr. Rodgers] committed an assault or

batterywhile he was in the apartment. [Mr. Rodgers’] self-defense claim

was a defense to any assault or battery. The forcible felony instruction

informed the jury that if they found [Mr. Rodgers] guilty of burglary, self

defense was no longer a valid defense to the battery. Therefore,

although the battery was an aggravator to the burglary, the two were in

essence separate offenses with separate elements. Each offense had

to be found separately by the jury. 

Id. The court went on to hold that the forcible felony instruction was given properly

regarding to the burglary because Mr. Rodgers was seeking to justify the battery

with self-defense. Id. at 57. “The fact that the two were charged as a crime with an

aggravator rather than two separate crimes does not change the analysis.” Id. 

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Lastly, it added that Mr. Rodgers’ claims of prejudice are pure speculation because

he could not establish that - had the forcible felony instruction not been given - the

jury’s verdict would have been different. Id.

Ground 4 Defense counsel performed ineffectively by failing to object to the

forcible felony exception jury instruction because battery does not

qualify as a forcible felony under Florida law.

Mr. Rodgers asserted this argument in his Supplemental Rule 3.850 PostConviction Motion as Ground E (doc. 21-5, pp. 35-39). He alleges that simple battery

does not include the use or threat of physical force or violence as a necessary

element (doc. 1, pp. 8-9). He then concludes that it does not qualify as a forcible

felony and that the jury was given an erroneous instruction. Id.

State Court Decision

The Rule 3.850 court explained that the forcible felony instruction was given

in relation to the burglary offense, and not in relation to the battery (doc. 21-5, p. 58). 

It concluded that since burglary is listed in Section 776.08 of the Florida Statutes as

a forcible felony, Mr. Rodgers was not entitled to relief on this claim.

Federal Review of State Court Decision on Grounds 3 and 4

Mr. Rodgers’ arguments on Grounds 3 and 4 depend upon this court

determining counsel’s performance was deficient, but first this court would have to

conclude that the state court misinterpreted state law. In Herring v. Secretary, Dep’t

of Corrections, 397 F.3d 1338 (11th Cir. 2005) and Callahan v. Campbell, 427 F.3d 897

(11th Cir. 2005), the Eleventh Circuit addressed similar issues. In Herring, the

petitioner argued his counsel was ineffective for failing to make an objection, based

on state law, to the introduction of non-statutory aggravating evidence at the penalty

phase of his trial. Id. at 1354-55. The Florida Supreme Court concluded that the

proposed objection would have been overruled and therefore counsel was not

deficient. Id. The Eleventh Circuit held: “The Florida Supreme Court already has

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told us how the issues would have been resolved under Florida state law had

[petitioner’s counsel] done what [petitioner] argues he should have done. . . . It is

a ‘fundamental principle that state courts are the final arbiters of state law, and

federal habeas courts should not second-guess them on such matters.’” Id. (quoting

Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)). 

Similarly, in Callahan, the petitioner contended his counsel was ineffective for

failing to argue that, based on the Alabama state courts’ interpretation of the Double

Jeopardy Clause in three state court cases (Hull v. State, 607 So.2d 369 (Ala. Crim.

App. 1992), Ex parte Hergott, 588 So.2d 911 (Ala. 1991), and Ex parte Callahan, 471

So.2d 463 (Ala. 1985) (Callahan I)), the introduction of petitioner’s statements at his

second trial was precluded. Callahan, 427 F.3d at 931-32. The Alabama Court of

Criminal Appeals concluded that the petitioner’s claim relied on an erroneous

interpretation of state law and rejected it. Id. at 932. 

The Eleventh Circuit held: 

[T]he Alabama Court of Criminal Appeals has already answered the

question of what would have happened had [petitioner’s counsel]

objected to the introduction of [petitioner’s] statements based on

Callahan I, Hull, and Hergott - the objection would have been overruled. 

Callahan [v. State of Alabama], 767 So.2d [380,] 386-87 [(Ala. Crim. App.

1999)](Callahan III). Therefore, [petitioner’s counsel]wasnotineffective

for failing to make that objection.

Moreover, we are convinced [petitioner] could not satisfy the prejudice

prong of Strickland. [Petitioner’s] ability to demonstrate prejudice is

again foreclosed by the state court’s decision in Callahan III. Even if

[petitioner’s counsel] was ineffective for failing to make the objection,

the state court has told us that if he did make the objection it would not

have been successful. [Petitioner] cannot be prejudiced by his

counsel’s failure to make a losing objection.

Id. 

Here, as in Herring and Callahan, the state courts have answered the question

of what would have happened had Mr. Rodgers’ counsel objected to the forcible

felony jury instruction - the objection would have been overruled. Therefore, his

counsel cannot be faulted for having failed to make it. 

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Section 776.041 of the Florida Statutes titled “Use of force by aggressor”

provides that:

The justification . . . is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the

commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself,

unless:

(a) Such force is so great that the person reasonably believes that he

or she is in imminent danger of death or great bodily harm and that

he or she has exhausted every reasonable means to escape such

danger other than the use of force which is likely to cause death or

great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with

the assailant and indicates clearly to the assailant that he or she

desires to withdraw and terminate the use of force, but the assailant

continues or resumes the use of force.

As explained by the Rule 3.850 court, Mr. Rodgers would have only been

entitled to the self-defense instruction as to the battery portion of the charge.

Therefore, since it was up to the jury to decide whether Mr. Rodgers was

committing a forcible felony - the burglary part of the charge - then it was proper

for the trial court to instruct the jury with the forcible felony exception pursuant

to Section 776.041. See also Holland v. State of Florida, 916 So.2d 750, 761 (2005)

(Defense of self-defense is legally unavailable to a person who is attempting to

commit, committing, or escaping from the commission of a forcible felony).

Mr. Rodgers argument in Ground 4 that battery does not qualify as a

forcible felony under Florida law is also unavailing. Section 776.08 of the Florida

Statutes states:

“Forcible felony” means treason; murder; manslaughter; sexual

battery; carjacking; home-invasion robbery; robbery; burglary;

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arson; kidnapping; aggravated assault; aggravated battery;

aggravated stalking; aircraft piracy; unlawful throwing, placing, or

discharging of a destructive device or bomb; and any other felony

which involves the use orthreat of physical force or violence against

any individual.

(emphasis added); see also Marshall v. State of Florida, 604 So.2d 799, 803 (1992)

(Section 776.08, Florida Statutes, specifically defines forcible felony to include

both burglary and aggravated battery). The Rule 3.850 court explained that the

forcible felony instruction was given in relation to the burglary, which is listed in

Section 776.08. Thus, no error can be claimed.

Since Mr. Rodgers’ counsel would have failed had he acted as Mr. Rodgers

now demands, he cannot show prejudice under Strickland. Moreover, this court

will not second-guess the state courts on their resolution of a state-law issue. The

state court’s ruling was not unreasonable under Strickland, did not result in a

decision that was contrary to, or involved an unreasonable application of, clearly

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

in light of the evidence presented. 28 U.S.C. § 2254(d)(1)(2); Williams, 529 U.S. at

409. Mr. Rodgers is not entitled to federal habeas relief, and the writ should not

issue.

II. PROCEDURALLY DEFAULTED

Ground 5 Counsel was ineffective for failing to move for a continuance in order

to take the deposition of Ms. Vanderhall before trial.

Ground 6 Counsel performed ineffectively by failing to seek a competency

determination of Mr. Rodgers, who wasunable to understand counsel’s

explanation of the case.

In Ground 5, Mr. Rodgers contends that Ms. Vanderhall was summoned but

failed to appear for a deposition on March 9, 2005 (doc. 1, pp. 9-10). He argues that

his defense counsel did not file a motion requesting an order to show cause until the

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day before the trial, April 19, 2005. Id. He alleges that no hearing was held regarding

this motion until after the trial on June 8, 2005. Id. Mr. Rodgers asserts that instead

of rescheduling the trial, the court had his defense counsel briefly question Ms.

Vanderhall just before the trial began. Id. Afterwards, the court questioned Mr.

Rodgers counsel whether the defense was ready to proceed and he responded

affirmatively. Id. He alleges that his counsel admitted later that his defense was

severely hampered because he was unable to properly cross-examine Ms.

Vanderhall without a thorough deposition and transcript. Id. 

In Ground 6, Mr. Rodgers argues that his counsel expressed grave doubts as

to his competency when he declined the plea offer (doc. 1, pp. 10-11). Mr. Rodgers

mentions, as an example, his confusion at the beginning of trial as to whether he

would waive a conflict of interest issue with his defense counsel, which he did. Id.

He contends that his counsel was ineffective because he did not request an inquiry

as to Mr. Rodgers’ competency. Id. 

State Court Decision

The First DCA issued an opinion affirming Mr. Rodgers’ conviction and

sentence as to count 1, burglary of a dwelling with assault or battery, but did not

address these claims specifically (doc. 21-2, pp. 2-7). 

Federal Review of State Court Decision 

Respondent contends that Grounds 5 and 6 were not presented in Mr.

Rodgers’ Rule 3.850 motions as required, thus they were abandoned (doc. 19, pp.

7-11). The court agrees. Mr. Rodgers asserted Grounds 5 and 6 in his direct appeal

before the First DCA (doc. 20-8, pp. 68-74). However, Mr. Rodgers essentially

conceded, in his reply brief on direct appeal, that the appellate record was

insufficient for him to successfully demonstrate that he was denied the effective

assistance of counsel (doc. 21-1, p. 74). In addition to Mr. Rodgers’ concession, (1)

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the ineffective assistance of counsel claim was not the proper subject of appellate

review by the First DCA, (2) the First DCA did not address the claim in its written

opinion, (3) Mr. Rodgers subsequently filed some of the same claims in his Rule

3.850 motion, (4) the Rule 3.850 court adjudicated those claims on the merits, and

these facts all support the conclusion that the First DCA declined to address the

ineffective assistance of counsel claim because the First DCA was not the proper

forum. Therefore, since Mr. Rodgers did not include Grounds 5 and 6 in his Rule

3.850 motion, even though he could have, they are procedurally defaulted. 

Now, any further attempt at exhaustion in Florida courts would be futile

because Mr. Rodgers’ claims would be procedurally barred under Florida law. See

Rodriquez v. State, 919 So.2d 1252, 1262 n. 7 (Fla. 2005) (holding that issues were

procedurally barred because they should have been, but were not, raised on direct

appeal); Smith v. State, 445 So.2d 323, 325 (Fla. 1983) (“Issues which either were or

could have been litigated at trial and upon direct appeal are not cognizable through

collateral attack.”) Moreover, Mr. Rodgers has made none of the requisite showings

to excuse his default. Grounds 5 and 6 are therefore barred from federal review by

this court. Coleman, 501 U.S. at 734-35 and n.1; Bailey, 172 F.3d at 1302-03; Judd,

250 F.3d at 1313.

Ground 7 The trial court erred when it gave the forcible felony exception jury

instruction because it negated Mr. Rodger’s sole defense, which was

that his use of force was justifiable and intended to defend his child,

and his child’s mother, Ms. Vanderhall.

The trial court gave the jury the following forcible felony exception instruction:

The use of force not likely to cause death or great bodily harm is not

justifiable if you find No. 1, that Damien Rodgers was attempting to

commit, committing or escaping after the commission of a burglary or

No. 2, that Damien Rodgers initially provoked the use of force against

himself unless the force asserted toward the defendant was so great

that he reasonably believed that he was in imminent danger of death or

great bodily harm and had exhausted every reasonable means to

escape the danger other than using force not likely to cause death or

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great bodily harm toward Kelvin Clemmons or in good faith the

defendant withdrew from physical contact with Kelvin Clemmons and

indicated clearly to Kelvin Clemmons that he wanted to withdrawal (sic)

and stop the use of force not likely to cause death or great bodily harm

but Kelvin Clemmons continued or resumed the use of force.

(doc. 20-6, pp. 36-37).

Mr. Rodgers claims that the jury was essentially told that if he broke into Ms.

Vanderhall’s apartment, which constituted the burglary referred to in the instruction,

then he could not be found to have used justifiable force (doc. 1, pp. 11-12). Mr.

Rodgers testified that he heard raised voices inside the apartment, and was

concerned for the safety of his child and Ms. Vanderhall (doc. 20-5, p. 30-33). Ms.

Vanderhall admitted that she was arguing loudly when Mr. Rodgers arrived. Id. at

14. Mr. Rodgers argues that even though Ms. Vanderhall asked him to leave, he

reasonably believed that Mr. Clemmons forced her to say that (doc. 1, p. 12). He also

avers that the only way to protect his child and Ms. Vanderhall was to enter the

apartment by force. Id. Mr. Rodgers concludes that according to the jury instruction

he could not have taken justifiable forcible action regardless of what he was

confronted with inside the apartment. Id. 

State Court Decision

The First DCA issued an opinion affirming Mr. Rodgers’ conviction and

sentence as to count 1, burglary of a dwelling with assault or battery, but did not

address this claim specifically (doc. 21-2, pp. 2-7). 

Federal Review of State Court Decision 

Respondent contends this claim is unexhausted because it does not cite any

federal law cases or the U.S. Constitution (doc. 19, p. 11-14). The court agrees. 

Since it was presented as a state law issue only, it is unreviewable in this habeas

petition because Mr. Rodgers failed to present this claim fairly to the state court to

put it on notice of its federal nature. Duncan, 513 U.S. at 365-66. Now, any further

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attempt at exhaustion in Florida courts would be futile because Mr. Rodgers’ claim

would be procedurally barred under Florida law. See Rodriquez v. State, 919 So.2d

1252, 1262 n. 7 (Fla. 2005) (holding that issues were procedurally barred because

they should have been, but were not, raised on direct appeal); Smith v. State, 445

So.2d 323, 325 (Fla. 1983) (“Issues which either were or could have been litigated at

trial and upon direct appeal are not cognizable through collateral attack.”)

Moreover, Mr. Rodgers has made none of the requisite showings to excuse

his default. He has not proffered any official impediment as the cause for his failure

to fairly present this constitutional claim before the state courts. Additionally, he

has not presented the kind of new relevant evidence of innocence - not presented

at trial - that would justify making a miscarriage of justice exception like in Schlup, 

513 U.S. at 327. Thus, this claim is procedurally defaulted and barred from federal

7

review by this court. Coleman, 501 U.S. at 734-35 and n.1; Bailey, 172 F.3d at

1302-03; Judd, 250 F.3d at 1313.

CONCLUSION

The undersigned has carefully reviewed the trial transcript, post-conviction

motions, orders, records on appeal, and all submissions in this proceeding. Mr.

Rodgers’ claims were either abandoned, procedurallydefaulted, or are withoutmerit. 

He is not entitled to federal habeas relief.

CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts provides that “[t]he district

The Supreme Court recently gave a specific example of the kind of new evidence necessary

7

to excuse a procedural default. See House v. Bell, 547 U.S. 518 (2006) (holding that there was

sufficient evidence to allow the exception where there was new DNA evidence that contradicted the

state’s case; there was scientific evidence that the bloodstains upon which the state relied were the

result of faulty evidence handling by law enforcement; there were new independent witnesses who

credibly pointed to the likelihood that the murder was committed by someone else; and there was

other evidence tending to negate the state’s evidence).

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court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” If a certificate is issued, “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule

11(a), Rules Governing Section 2254 Cases. A timely notice of appeal must still be

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

Governing Section 2254 Cases.

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

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

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

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

appealability in its final order.

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.” If petitioner

files an objection to this recommendation, he may bring this argument to the

attention of the district judge in his objections.

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (doc. 1) challenging the

conviction and sentence in State of Florida v. Rodgers, in the Circuit Court of

Escambia County, Florida, case number 1704CF4253A-D, be DENIED and the clerk

be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 24th day of April, 2012.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

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

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

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

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

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

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