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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOHNNY BRYANT GAFFORD,

Petitioner,

v. Case No. 3:11cv227/LC/CJK

MICHAEL D. CREWS,1

Respondent.

___________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Before the Court is an amended petition for writ of habeas corpus filed under

28 U.S.C. § 2254. (Doc. 8). Respondent filed an answer (doc. 21), submitting

relevant portions of the state court record (see docs. 22, 23). Petitioner replied. (Doc.

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

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

careful consideration of all issuesraised by petitioner, the undersigned concludes that

no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the

Rules Governing Section 2254 Cases in the United States District Courts. The

undersigned further concludes that the pleadings and attachments before the Court

Michael D. Crews succeeded Edwin G. Buss and Kenneth S. Tucker as Secretary of the 1

Florida Department of Corrections, and is automatically substituted as the respondent. Fed.R.Civ.P.

25(d).
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show that petitioner is not entitled to federal habeasrelief, and that the petition should

be denied.

BACKGROUND AND PROCEDURAL HISTORY

On October 25, 2005, petitioner wasindicted for First Degree Premeditated or

Felony Murder with a Weapon (Count 1), Attempted First Degree Premeditated

Murder with a Weapon (Count 2) and Attempted First Degree Felony Murder with

a Weapon (Count 3), in the Circuit Court for Okaloosa County, Florida. (Doc. 23,

Ex. A, pp. 169-70). After a jury trial, petitioner was acquitted of the murder charge

2

(Count 1) and the second instance of attempted murder (Count 3), but convicted of

Attempted First Degree Premeditated Murder with a Weapon (Count 2). (Ex. D, pp.

657-59). Petitioner was adjudicated guilty of Count 2 and sentenced to natural life

in prison. (Id., pp. 729-34). Petitioner’s judgment of conviction was summarily

affirmed on direct appeal, on May 30, 2008. Gafford v. State, 982 So. 2d 1181 (Fla.

1st DCA 2008) (Table) (copy at Ex. S). 

On December 5, 2008, petitioner filed a pro se motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850. (Ex. U). The motion was dismissed

on September 8, 2009, pursuant to petitioner’s voluntary dismissal. (Id.).

On October 7, 2009, petitioner filed a new Rule 3.850 motion. (Ex. V, pp. 1-

26). The motion was denied without an evidentiary hearing. (Ex. W, pp. 152-213). 

The Florida First District Court of Appeal (“First DCA”) summarily affirmed. 

Gafford v. State, 57 So. 3d 849 (Fla. 1st DCA 2010) (Table) (copy at Ex. Z). The

mandate issued April 19, 2011. (Ex. PD-3).

While petitioner’s postconviction proceeding was pending, petitioner filed a

All references to exhibits will be to those provided at Doc. 23, unless otherwise noted. 2

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state habeas petition alleging ineffective assistance of appellate counsel. (Ex. CC). 

The First DCA denied the petition on the merits on February 15, 2010. Gafford v.

State, 28 So. 3d 940 (Fla. 1st DCA 2010) (copy at Ex. DD).

Petitioner filed his original federal habeas petition in this Court on May 6,

2011. (Doc. 1, p. 1). Petitioner’s amended petition, filed on June 22, 2011, presents

five grounds for relief. (Doc. 8). Respondent argues that petitioner is not entitled to

federal habeasrelief because petitioner’s claims are procedurally defaulted or without

merit. (Doc. 21).

LEGAL STANDARDS

Section 2254 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. 

Section 2254(d) provides, in relevant part:

(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) (2011).

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

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

appropriate test was described by Justice O’Connor as follows:

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

fromthisCourt’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). 

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

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

proceeding, the federal court must 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 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” only when a Supreme Court holding at the time of the state court

decision embodies the legal principle at issue. Thaler v. Haynes, 559U.S. 43, 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).

After identifying the governing legal principle(s), the federal court determines

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 3

Stevens for the Court (joined byJustices 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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whether the state court adjudication is contrary to the clearly established Supreme

Court case law. The adjudication is not contrary to Supreme Court precedent merely

because it fails to cite to that precedent. Rather, the adjudication is “contrary” only

if either the reasoning or the result contradicts the relevant Supreme Court cases. 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (“Avoiding

th[e] pitfalls [of § 2254(d)(1)] 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.”). If the state court decision is

contrary to clearly established federal law, the federal habeas court must

independently consider the merits of the petitioner’s claim. See Panetti v.

Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

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

federal habeas court next determines whether the state court “unreasonably applied”

the governing legal principles set forth in the Supreme Court’s cases. The federal

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

legal principle(s) was “objectively unreasonable” in light of the record before the

state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,

124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S.

685, 697 n. 4, 122 S. Ct. 1843, 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 unreasonably declines to extend, a legal principle from Supreme Court

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case law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). 

A state court, however, 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 v. Mirzayance, 556 U.S. 111, 122, 129

S. Ct. 1411, 173 L. Ed. 2d 251 (2009). 

When faced with a state appellate court’s summary affirmance of a trial court’s

decision, the “unreasonable application” standard focuses on the state court’s ultimate

conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011) (citing Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786,

178 L. Ed. 2d 624 (2011)). The federal 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 Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that 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). In sum, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Richter, 131 S. Ct. at 786-87.

Section 2254(d) also allows federal habeasrelief for a claimadjudicated on the

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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 federal court applies an objective test. Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state

court decision based on a factual determination “will not be overturned on factual

grounds unless objectively unreasonable in light ofthe evidence presented in the state

court proceeding.”). The “unreasonable determination of the facts” standard is

implicated only to the extent the validity of the state court’s ultimate conclusion is

premised on unreasonable fact finding. See Gill, 633 F.3d at 1292. 

When performing review under § 2254(d), the federal court presumes that all

factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). 

The petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that

a federal 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”). Neither the Supreme Court nor the

Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the

context of fact-based challenges to state court adjudications. Cave v. Sec’y for Dep’t

of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently 

declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate

court’s summary affirmance, where it found that the validity of the state court

decision was not premised on the trial court’s unreasonable fact finding, and that the

petitioner failed to demonstrate “by clear and convincing evidence that the record

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reflect[ed] an insufficient factual basis for affirming the state court’s decision.” Gill,

633 F.3d at 1292.

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, 551 U.S. 930, 954, 127 S. Ct. 2842. 

Even then, 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). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must

exhaust all available state court remedies for challenging his conviction, 28 U.S.C.

§ 2254(b)(1), thereby giving the state the “‘opportunity to pass upon and correct’ 4

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

Section 2254 provides, in pertinent part: 4

(b)(1) 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 unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the

State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts

of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented. 

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365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S.

270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner

“must give 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 v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999);

Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and

which can no longer be litigated under state procedural rules is considered

procedurally defaulted, i.e., procedurally barred fromfederal review. O’Sullivan, 526

U.S. at 839-40, 848, 119 S. Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th

Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)

(holding that federal habeas courts should enforce applicable state procedural bars

even as to claims that were never presented to the state courts). 

A petitioner seeking to overcome a procedural default must show cause and

prejudice, or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210

(11th Cir. 1993). “For cause to exist, an external impediment, whether it be

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

claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant,

499 U.S. 467, 497, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier,

477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of

justice exception requires the petitioner to show that “a constitutional violation has

probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo,

513 U.S. 298, 327, 115 S. Ct. 85, 130 L. Ed. 2d 808 (1995). “To establish the

requisite probability, the petitioner must show that it is more likely than not that no

reasonable juror would have convicted him.” Schlup, 513 U.S. at 327. Further:

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a substantial claim that constitutional error has caused the conviction of

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

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

with new reliable evidence – whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence

– that was not presented at trial.

Id.

DISCUSSION

Ground One “Whether Mr. Gafford was denied effective assistance of counsel

for counsel’s failure to adequately argue grounds for judgement

[sic] of acquittal due to actual innocence.” (Doc. 1, p. 4 and

continuation pages 1-13).

Count 2 of the indictment charged petitioner with attempting to kill, with

premeditated design, Joel Zetterlund by cutting orstabbing himwith a knife or blade. 

(Ex. A, p. 170). At the close of the State’s case, defense counsel moved for a

judgment of acquittal (“JOA”). Counsel argued with regard to Count 2:

We also feel that the state has not proved a prima facie case as to count

two. They have failed to prove a prima facie case saying that Mr.

Gafford formed a premeditated design to effect the death of Joel

Zetterlund and did attempt to kill and murder Joel Zetterlund by cutting

or stabbing him with a knife or blade.

(Ex. J, p. 991). At the close of all the evidence, defense counsel renewed his motion

for JOA, arguing: “With regard to count two, attempted murder, the state has not

made a prima facie case with regard to the elements and that the facts support

otherwise.” (Ex. K, p. 1183).

Petitioner asserts that trial counsel rendered ineffective assistance by arguing

a “boilerplate” motion for judgment of acquittal that “failed to state with specificity,

the shortcomings of the State’s case . . ., where the evidence presented failed to prove

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that Mr. Gafford’s assault on Zetterlund was of a ‘premeditated’ design, when the

evidence affirmatively supports a self defense theory.” (Doc. 8, continuation page

13). Petitioner assertsthat he presented this claim to the state courtsin his Rule 3.850

motion. 

Respondent contends this claim is procedurally defaulted, because petitioner

never presented it to the state courts. (Doc. 21, pp. 4-7). Respondent acknowledges

that petitioner’s postconviction motion raised an ineffective assistance claim that

counsel failed to adequately argue the motion for JOA. Respondent maintains,

however, that petitioner’s claim in state court did not present the specific legal and

factual foundation petitioner now presents in his federal habeas petition. Petitioner

asserted in state court that counsel should have argued the evidence was insufficient

to convict petitioner of any offense greater than attempted voluntary manslaughter

because the State’s evidence of intent was purely circumstantial and failed to exclude

petitioner’s hypothesis that he cut Zetterlund because he subjectively but perhaps

unreasonably believed himself under immediate threat of serious bodily harm. In

contrast, petitioner asserts here that counsel should have argued the evidence

affirmatively supported a self-defense theory, which implies that counsel should have

sought acquittal on the greatest and all lesser offenses including attempted voluntary

manslaughter. (Doc. 21, pp. 4-7). Respondent argues that the two positions are not

the same:

Before the postconviction court, Gafford’s ineffectiveness claim went

only to the heightened mental states (premeditation or depraved mind)

necessary to prove attempted first or second degree murder,

respectively; while conceding a legally sufficient case of attempted

manslaughter. Before this court, he claims counsel was ineffective for

not seeking complete JOA based on self defense. 

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The rule 3.850 motion expressly conceded a legally sufficient case

of attempted manslaughter. To the extent [petitioner’s federal habeas

claim] implies defense counsel ineffectively failed to argue against a

prima facie case of attemptedmanslaughter, Gafford’s first ground is not

exhausted.

(Id. pp. 6-7). Respondent maintains that even if petitioner is found to have properly

exhausted this claim, he is not entitled to federal habeas relief because the state

court’s rejection of the claim is consistent with Strickland. 

A. Exhaustion and Procedural Default

“‘[A] habeas petitioner may not present instances of ineffective assistance of

counsel in his federal petition that the state court has not evaluated previously.’” 

Ogle v. Johnson, 488 F.3d 1364, 1369 (11th Cir. 2007) (quoting Footman v.

Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992)). Petitioner must present the state

court with the instance of ineffective assistance he now asserts “such that a

reasonable reader would understand [the] claim’s particular legal basis and specific

factual foundation.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)

(internal quotation marks omitted). “[A] general allegation of ineffective assistance

or a specific allegation ofineffective assistance [made in state court] wholly unrelated

to the ground on which the claim ultimately depends [in federal court] will [not]

immunize a petitioner from a finding of procedural default.” Ogle, 488 F.3d at 1369.

Respondent accurately characterizes petitioner’s presentation of his

ineffectiveness claims in state court and here. (Compare Doc. 23, Ex. V, p. 2, with

Doc. 8, continuation pages 1 and 13). The first ground of petitioner’s Rule 3.850

motion complained that counsel’s JOA argument was deficient, because counsel

failed to argue that the State’s evidence of intent was insufficient to prove

premeditation or depravedmind (sufficient to prove attempted first-degree orsecondCase No: 3:11cv227/LC/CJK
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degree murder) because the State’s case was purely circumstantial and failed to

exclude petitioner’s hypothesisthat he cut Mr. Zetterlund because he subjectively but

unreasonably believed himself under immediate threat of serious bodily harm. 

Petitioner admitted that “[u]nder a reasonable view ofthe State’s evidence, Defendant

overreacted and used excessive force in a situation that appeared threatening but

actually might not have been.” (Ex. V, p. 4). Petitioner summarized the argument

counsel should have made as follows:

The State failed to prove Defendant intended to kill or that he

acted with malice or evil intent. At worst, he overreacted to a charged

situation thrust upon him by Zetterlund and Ciastko. Therefore, the

evidence in this case, when viewed in the light most favorable to the

State, does not support a finding of guilt to attempted first-degree

murder without the improper stacking of inference upon inference, and

is entirely consistent with voluntary manslaughter.

(Id., p. 5). That is not the same claim petitioner now advances – that counsel was

deficient for failing to argue that the State’s evidence was insufficient to convict of

first-degree murder and all lesser-included offenses, because the State failed to rebut

petitioner’s evidence of self-defense. The Rule 3.850 court addressed petitioner’s

claim as follows:

In his first claim, the Defendant argues that his trial attorney

failed to adequately argue for a judgment of acquittal on the charge of

attempted first degree murder. According to the motion, the Defendant

only attacked the victim because he believed Mr. Zetterlund posed a

serious physical threat to his safety. The Defendant’s actions, he

submits, were justified and did not rise to the level of first degree

attempted premeditated murder.

The elements of the crime of attempted first degree murder are: 

(1) an act intending to cause death that went beyond just thinking or

talking about it; (2) a premeditated design to kill; and (3) the

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commission of an act which would have resulted in the death of the

victim except that someone prevented the defendant from killing the

victim or the defendant failed to do so.

The Defendant does not suggest that the act of plunging a knife

into the neck of the victim was not an act which was intended to cause

death. He does, however maintain that he lacked the premeditated

design to kill and that he only acted, perhaps unreasonably, in selfdefense. When the facts are viewed in a light most favorable to the

State, the court finds that the Defendant’s claim that his attorney erred

in not moving for a judgment of acquittal must fail and that the case was

properly submitted to the jury for consideration.

A defendant is entitled to use deadly force against another only if

he or she reasonably believes such force is necessary to prevent

imminent death or great bodily harm. The defense of property, or

property of another, is not a sufficient legal basis to use deadly force. 

The evidence submitted at trial by the State showed that the Defendant

attacked Mr. Zetterlund at a time when he presented no threat to the

Defendant or anyone else. The Defendant also revealed his intentions

when he warned the men earlier that he would kill them if they did not

leave. Furthermore, the Defendant’s claim that he may have

“unreasonably perceived” the victim as being a threat is not a defense

that is recognized in Florida. Since the judgment of acquittal would not

have been granted had it been raised, the Defendant’s trial counsel

cannot be held ineffective for not moving for a judgment of acquittal.

(Ex. W, pp. 2-3) (footnotes omitted). The Rule 3.850 court noted in a footnote that

the claim of “imperfect self defense” is not available in Florida. (Id., p. 3 n.3). The

court also noted in a footnote: “Although counsel moved for a judgment of acquittal,

he did not specify the basis for the motion and the issue does not appear to have been

preserved for appellate review.” (Id., p. 3 n.4). The Rule 3.850 court did not address

the likelihood that a motion for JOA would have succeeded had counsel argued that

the State failed to present evidence establishing beyond a reasonable doubt that

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petitioner did not act in self-defense. To the extent petitioner’s present claimdeviates

from the ineffective assistance claim petitioner presented to the state court, the claim

is procedurally defaulted and this Court will not review it. To the extent petitioner’s

seeks federal habeasreview of the claim he presented to the state court, the following

analysis applies.

B. Merits

i. Clearly Established Federal Law

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

(1984)the Supreme Court set out a two-part inquiry for ineffective assistance claims. 

A petitioner must show that (1) his counsel’s performance was constitutionally

deficient, and (2) the deficient performance prejudiced him. 466 U.S. at 687, 104 S.

Ct. 2052. “First, petitioner must show that ‘counsel’s representation fell below an

objective standard of reasonableness. Second, petitioner must show that ‘there is a

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

proceeding would have been different.’” Darden v. Wainwright, 477 U.S. 168, 106

S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (quoting Strickland, 466 U.S. at 668, 694).

When a district court considers a habeas petition, the state court’s findings of

historical facts in the course of evaluating an ineffectiveness claim are subject to the

presumption of correctness, while the performance and prejudice components are

mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S. Ct. at 2070;

Collier v. Turpin, 177 F.3d 1184, 1197 (11 Cir. 1999). “Surmounting Strickland’s th

high bar is never an easy task.” Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473,

1485, 176 L. Ed. 2d 284 (2010). “Establishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131

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S. Ct. at 788. As the Richter Court explained:

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

applicationsissubstantial. 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). 

ii. Federal Review of State Court Decision 

The state court’s written order properly identifies Strickland asthe controlling

legal standard. (Ex. W, p. 153). As petitioner challenges only the state court’s

application of the two-part Strickland test in its resolution of his motion for

postconviction relief, the analysis of petitioner’s claim is confined to whether the

state court’s application of Strickland was objectively unreasonable. See Williams,

120 S. Ct. at 1521 (interpreting 28 U.S.C. § 2254(d)(1)).

The state court determined, reasonably, that a motion for JOA on petitioner’s

proffered basis would not have succeeded, because the State presented legally

sufficient evidence (direct evidence) fromwhich the jurors could reasonably conclude

petitioner attempted to murder Zetterlund with premeditation, Fla. Stat. §§ 782.04

and 775.087. Viewing the evidence in the light most favorable to the State, the State

showed through Mr. Zetterlund’s testimony that petitioner used deadly force at a time

when Zetterlund presented no threat to petitioner or anyone else. (Ex. W, p. 154

(citing Ex. G, pp. 347-651)). Mr. Zetterlund testified that the first hostile encounter

between himself and petitioner ended when he left petitioner’s property. Zetterlund

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had gone to petitioner’s home after he saw Barbara’s (Zetterlund’s girlfriend) van

parked there. Zetterlund walked to the doorway of petitioner’s home, spoke to

Barbara, and after she indicated she was not going home with Zetterlund, walked

away from the house. (Ex. G, pp. 345-46). When Zetterlund got outside the fence

enclosing petitioner’s yard, he turned and asked Barbara if she was sure about her

decision. Barbara again indicated she was not going home with Zetterlund. (Id., p.

346). At that point, petitioner showed Zetterlund a knife and said he would kill

Zetterlund if he did not leave. (Id., pp. 346-47). Zetterlund left.

Some time later, Zetterlund walked back to petitioner’s property. Zetterlund

was not armed. Zetterlund yelled from near Barbara’s van into petitioner’s yard. The

van was parked outside the fence enclosing petitioner’s yard. (Id., p. 350). Barbara

did not respond. (Id., pp. 349-51). Zetterlund went to the back door of Barbara’s van

to get tools he mistakenly thought were still there. Zetterlund saw his cousin Joey

Ciastko walk up from behind. (Id., p. 351). Zetterlund saw a small knife lying in the

van by the back door and picked it up. Zetterlund was angry and began puncturing

the van’s tires with the knife. (Id., pp. 351-56). After puncturing the tires, Zetterlund

stood upright. Zetterlund saw Ciastko struggling with petitioner at the fence, about

ten feet from the van. Petitioner had his hands across the fence. Ciastko was outside

the fence and trying to fend petitioner off. The next thing, Ciastko turned around. 

Ciastko was holding his chest and looked badly hurt. (Id., pp. 356-58, 361).

Zetterlund never saw Ciastko with a knife. (Id., p. 399). Zetterlund yelled to

Ciastko, “let’s get the hell out of here.” (Id., p. 358). As soon as Zetterlund said that,

he got his “neck sliced.” (Id., p. 359). It happened so quickly Zetterlund did not see

it coming, but felt the blood. When Zetterlund had lastseen petitioner, petitioner was

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standing on the “other side” of the fence from where Zetterlund was. (Id., pp. 358-

61). Zetterlund saw no one else in the yard. (Id., p. 364).

As the Rule 3.850 court reasonably concluded, a jury could reasonably infer

from petitioner’s threat to kill Zetterlund made earlier in the day, that petitioner was

disposed to murder and had formed the intent to kill Zetterlund should he return. A

jury could also reasonablyinfer that once petitioner fatally stabbed Ciastko, petitioner

was no longer threatened by anyone and that petitioner attempted to murder

Zetterlund with premeditation and evil intent when he walked around the fence to the

van and stabbed Zetterlund in the neck. As there was sufficient evidence of intent to

survive a motion for JOA and to support petitioner’s conviction for attempted first

degree premeditated murder, petitioner cannot establish deficient performance or

prejudice for counsel’s failure to advance petitioner’s proposed argument. Freeman

v. Attorney Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be

deficient for failing to raise a meritless claim[.]”). 

Petitioner argues that the Rule 3.850 court’s decision was unreasonable

because Mr. Zetterlund’s testimony was unreliable and, in petitioner’s view, the

reliable evidence shows that petitioner “was attacked by two drug/alcohol crazed

hoodlums.” (Doc. 8, continuation page 12). Whether Mr. Zetterlund’s testimonywas

reliable was an issue for the jury to decide, not the trial court on a motion for

judgment of acquittal. Fitzpatrick v. State, 900 So. 2d 495, 508 (Fla. 2005) (holding

that the existence of contradictory, conflicting testimony or evidence “does not

warrant a judgment of acquittal because the weight of the evidence and the witnesses’

credibility are questions solely for the jury.”); Williams v. State, 967 So. 2d 735, 755

(Fla. 2007) (holding that the trial court should not grant a motion for judgment of

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acquittal, unless “there is no view of the evidence which the jury might take favorable

to the opposite party that can be sustained under the law”.) Further, the trial court is

required, in ruling on a motion for judgment of acquittal, to view the evidence and

every reasonable inference from it in favor of the State. Jones v. State, 790 So. 2d

1194, 1197 (Fla. 1st DCA 2001); State v. Williams, 742 So. 2d 509, 511 (Fla. 1st

DCA 1999) (“A defendant, in moving for a judgment of acquittal, admits . . . every

conclusion favorable to the adverse party that a jury might fairly and reasonably infer

from the evidence.”) (internal quotation omitted). The state court was not

unreasonable in relying on Zetterlund’s testimony to determine that there was

sufficient evidence of premeditation to survive a motion for JOA. 

The state court also concluded, reasonably, that petitioner could not show his

counsel was ineffective for failing to argue that petitioner cut Zetterlund’s neck

because he believed unreasonably that he was under immediate threat of serious

bodily harm, as that theory was not a viable defense under Florida law. (Ex. W, p.

154) (citing Hill v. State, 979 So. 2d 1134, 1135 (Fla. 3d DCA 2008)). This Court

will not second guess the state court’s determination that petitioner’s proposed theory

was not viable under state law. See, e.g., Herring v. Sec’y, Dep’t of Corr., 397 F.3d

1338 (11th Cir. 2005); Callahan v. Campbell, 427 F.3d 897 (11th Cir. 2005). 

Because petitioner’s proposed argument for acquittal would not have succeeded, trial

counsel was not ineffective for failing to raise it in his motion for JOA. 

The state court’s rejection of petitioner’s ineffective assistance claim was not

contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts. Petitioner is not entitled

to federal habeas relief on Ground One.

Case No: 3:11cv227/LC/CJK
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Ground Two “Whether Mr. Gafford was denied effective assistance of counsel 

by failing to sufficiently argue specific events, which were the

basis for suppressing Mr. Gafford’s taped statement, in violation

of his rights guaranteed under the 6th and 14th amendmentsto the

United States Constitution.” (Doc. 1, p. 4 and continuation pages

13-14)

Petitioner faults trial counsel for failing to “sufficiently argue” the following

points as grounds for suppressing petitioner’s videotaped statements to law

enforcement: (1) the law enforcement officer used deception to persuade petitioner

to talk to him without counsel present, by leading petitioner to believe he was merely

a witness and not a suspect; (2) “Although Mr. Gafford wasread his rights after twice

asking if he needed a lawyer, the spirit of the law was violated”, because the officer

“rapidly and barely audibly read Mr. Gafford his rights” and petitioner, when asked

if he wished to speak after the rights were read, stated ‘I’m tired. I want to go

home.’”; (3) “Mr. Gafford was extremely intoxicated, as demonstrated by his

mannerisms and repeated tripsto the restroom”; (4) “[t]he officer recited Mr. Gafford

his Miranda rights in rapid-fire, barely audible monotone and read the Miranda form

in about 1⁄4 amount of time it would take a college graduate to read and understand the

same document”; and (5) “It is well established that a statement provided while a

suspect is under the influence is grounds for suppression.” (Doc. 1, p. 4 and

continuation pages 13-14). Petitioner asserts that he exhausted this claim by

presenting it in his Rule 3.850 motion.

Respondent assertsthat petitioner properly exhausted onlyalleged omission (1)

above, and that he procedurally defaulted the remaining complaints about counsel’s

performance (omissions (2)-(5)) by abandoning them in his postconviction appeal. 

(See Doc. 21, pp. 21-22). Petitioner asserts that this Court should review only

Case No: 3:11cv227/LC/CJK
Page 21 of 48

omission (1), applying a de novo standard of review, because the Rule 3.850 court

“inadvertently evaded the merits” in its order denying relief. (Doc. 21, p. 21). 

A. Exhaustion and Procedural Default

Petitioner’s Rule 3.850 motion raised all five of his present complaints about

counsel’s motion to suppress. The Rule 3.850 court summarily denied relief without

an evidentiary hearing, as follows:

The Defendant next argues that he was denied effective assistance

of counsel when his attorney failed to have his statement to police

suppressed. After the attack on Mr. Zetterlund and the killing of Mr.

Ciastko, the police interviewed the Defendant regarding his potential

involvement. The Defendant, after waiving his Miranda rights, denied

cutting either man.

The admissibility of the Defendant’s custodial interview was

addressed by the trial court in an order dated February 3, 2006. The

statements were found to have been freely and voluntarily made after a

knowing waiver of Miranda. Since this ground was specifically raised

at trial and preserved for review, it could have or should have been on

[sic] raised on appeal. Trial counsel, accordingly, cannot be held

ineffective since he raised and preserved the issue at trial.

(Ex. W, pp. 154-55) (footnotes omitted). 

Petitioner appealed the denial of relief to the First DCA and chose to file an

appellate brief. (Ex. X). Issue II of petitioner’s brief argued that counsel was

ineffective for “failing to sufficiently argue specific events which were the basis for

suppressing appellant’s taped statement.” Petitioner identified only one “specific

event” that counsel should have proffered: “the officer used trickery to persuade

Appellant to talk to him without counsel being present.” (Id., p. 14). Petitioner

alleged the following factual basis for this claim:

Before Appellant wasinterrogated, he asked to [sic] officer if he needed

Case No: 3:11cv227/LC/CJK
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a lawyer after the officer asked if he could read him his rights. The

officer responded by saying “Well, I don’t know. I know what you’re

saying. I wanna find out what you know. I gotta talk to you, I gotta talk

to your son, I gotta talk to everybody. . . .

When the officer stated ‘I know what you’re saying’, in response

to Appellant’s question as to whether he needed a lawyer, at that point,

questioning should have ceased. The officer knew that Appellant was

requesting information that was material to his decision asto whether or

not he needed counsel present during questioning.

(Id., pp. 14-15). Petitioner argued that under the case of Almeida v. State, 748 So. 2d

922 (Fla. 1999), the officer was required to answer his question as to whether he

“needed a lawyer” before any questioning took place. (Id., p. 15). Petitioner

concluded his argument by asserting: “Based on Almeida the trial court abused it’s

discretion in denying this claim.” (Id., p. 16). Petitioner did not argue error with

regard to the lower court’s denial of relief on the remaining aspects of his claim – 

counsel’s failure to raise the issues of the officer’s rapid recitation of the Miranda

warnings, petitioner’s statement that he wastired and wanted to go home when asked

if he wished to speak to the officers, petitioner’s intoxication, and petitioner’s

exhaustion during the late night questioning. (Id., pp. 14-16). The State did not file

an answer brief. (Ex. Y). The First DCA per curiam affirmed without written

opinion.

As discussed previously, to properly exhaust a claim“state prisoners must give

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. In Florida, an appellant who files a brief when appealing a

summarily denied postconviction motion is required to address all arguments in his

brief that he wishes to preserve for appellate review. See Watson v. State, 975 So. 2d

Case No: 3:11cv227/LC/CJK
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572, 573 (Fla. 1st DCA 2008); see also Cook v. State, 638 So. 2d 134, 135 (Fla. 1st

DCA 1994). If an appellant does not file a brief when appealing, the appellate court

is required to investigate all possible means of relief. Id. n.1; see also Fla. R. App.

P. 9.141(b)(2). Here, petitioner filed an appellate brief, so he was required to raise

and fully address the merits of any issues he wished to preserve for appellate review.5

Petitioner’s appellate brief did not address the circuit court’s rejection of his

complaints that trial counsel failed to argue for suppression based on petitioner’s

intoxication, petitioner’s exhaustion, the officer’s “rapid” reading of the Miranda

warnings, and the officer’s interrogation of petitioner after petitioner stated he was

tired and wanted to go home. By seeking appellate review of only one of counsel’s

alleged omissions (the officer’s “deceptive” answer to petitioner’s questions whether

he needed counsel) and not the remaining ones, petitioner failed to invoke the state

court’s established appellate review process as to those remaining issues and thus

failed to properly exhaust them in state court. See, e.g., Solis v. Tucker, No.

4:10cv3/SPM/CAS, 2012 WL 4478301, at *5 (N.D. Fla. Aug. 29, 2012), Report and

Recommendation Adopted by 2012 WL 4478782 (N.D. Fla. Sept. 28, 2012). 

There are two unpublished Eleventh Circuit opinions concluding that when a Florida

5

defendant does not receive an evidentiary hearing in his Rule 3.850 proceeding and appeals the

circuit court’s decision denying his motion, he satisfies the federal exhaustion requirement as to all

claims raised in his Rule 3.850 motion even if he files a brief and fails to address each issue in his

appellate brief, see Darity v. Sec’y, Dep’t of Corr., 244 F. App’x 982, 984 (11th Cir. 2007), and

Cortes v. Gladish, 216 F. App’x 897, 899-900 (11th Cir. 2007). The Florida case upon which these

opinions rely is Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000). Webb is no longer the

decisional law of the Fifth DCA. See Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (en

banc). Petitioner’s initial brief in his postconviction appeal was filed December 30, 2010, well after

the First DCA decided Watson v. State, supra, and after the law of the Fifth DCA changed. See

Watson, 975 So. 2d at 573. Cf. Daniels v. Sec’y, Dep’t of Corr., No. 6:10cv200-ACC-KRS, 2010

WL 5297167, at *7 (M.D. Fla. Dec. 20, 2010) (recognizing that Webb was receded from in Ward,

but holding that Webb applied to federal petitioner’s claim, because his state postconviction appeal

pre-dated Ward). 

Case No: 3:11cv227/LC/CJK
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Any future attempt to exhaust state remedies would be futile under the state’s

procedural default doctrine, because a second appeal is unavailable, and any further

attempt to raise the four issues in another Rule 3.850 motion would be subject to

dismissal as successive. See Fla. R. Crim. P. 3.850(f). Thus, petitioner’s claim

concerning counsel’s failure to argue “specific events” (2)-(5) is procedurally

defaulted. Petitioner has made none ofthe requisite showing to excuse his procedural

default. Petitioner’s procedural default bars federal habeas review of counsel’s

alleged failure to argue petitioner’s intoxication, petitioner’s exhaustion, the officer’s

“rapidly’reading the Miranda warnings and the officer’s interrogating petitioner after

petitioner said he was tired and wanted to go home. This Court’s review of the state

court’s decision will be confined to petitioner’s allegation that trial counsel was

ineffective for failing to argue that petitioner’s statement was obtained in violation

of his constitutional rights, because the officer did not respond appropriately to

petitioner’s question whether he needed an attorney, and the officer used deception

to persuade petitioner to talk to him without counsel present by leading petitioner to

believe that he was merely a witness.

 B. Clearly Established Federal Law

The clearly established federal law governing claims of ineffective assistance

of counsel is set forth above.

C. Federal Review of State Court Decision 

Petitioner alleges in support of this claim that counsel’s suppression argument

should have included the following:

Before Mr. Gafford was interrogated, he asked the officer if he needed

a lawyer after the officer asked if he could read him his rights. The

officer responded by saying “Well, I don’t know. I know what you’re

saying. I wanna find out what you know. I gotta talk to you, I gotta talk

Case No: 3:11cv227/LC/CJK
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to your son, I gotta talk to everybody. . . .

The officer knew that Mr. Gafford was requesting information that was

material to his decision as to whether or not he needed counsel present

during questioning. The type of utterance at issue here, was an

unequivocal question that was prefatory to – and possibly determinative

of – the invoking of a right and which cast doubt on the knowing and

intelligent nature of the prior waiver. However, no waiver had been

given when the question of the police had been asked. Under these

circumstances, police were required to answer Mr. Gafford’s question

as to whether he “needed a lawyer” before any questioning took place.

(Doc. 1, p. 4 and continuation pages 13-14).

The Rule 3.850 court adjudicated petitioner’s ineffective assistance claim on

the merits, see 28 U.S.C. § 2254(d), concluding that petitioner’s claim failed because

the record demonstrated trial counsel adequately argued and preserved for appellate

review the points petitioner faulted him for omitting. The Rule 3.850 court’s explicit

denial of petitioner’s ineffective assistance claim on the merits is not erased or

diminished by the court’s observation that any substantive challenge to the admission

of petitioner’s statements should have been raised on direct appeal. The state court’s

adjudication of petitioner’s claim is therefore subject to § 2254(d)’s deferential

standard of review.

The state court denied relief after identifying Strickland asthe controlling legal

standard. (Ex. W, pp. 153, 154-55). The Rule 3.850 court found that trial counsel

raised and properly preserved for appeal petitioner’s proposed basis for suppression. 

The state court’s finding is amply supported by the record. The transcript of the

suppression hearing reveals that trial counsel raised the specific argument petitioner

now claims he omitted. (Ex. B, pp. 398-400; Ex. E, pp. 749-50, 827-31). The trial

court addressed that specific argument (the officer’s reply of “I don’t know” and “I

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have to interview everybody”) in its order denying the motion to suppress. (Ex. C,

pp. 435-37). The trial court ruled that petitioner’s question whether he needed an

attorney was not an invocation of his right to counsel, that the officer responded

appropriately, and that petitioner was not coerced or tricked into speaking with the

officers. (Id., p. 436). Petitioner’s appellate counsel raised the issue on direcrt

appeal, arguing that the trial court erred in denying the motion to suppress where

petitioner twice asked if he needed an attorney before being read his Miranda rights

and petitioner’s questions were not answered in a truthful and straightfowardmanner. 

(Ex. Q, pp. 30, 41-46). Appellate cousnel also argued additional points favoring

suppression (petitioner’s intoxication, exhaustion, education level, etc. ). The State

filed an answer brief, arguing that the trial court properly denied the motion to

suppress. (Ex. R, pp. 13-14, 23-32). The State conceded that trial counsel argued,

and preserved for appellate reivew, the following specific bases for suppression: that

petitioner twice asked if he needed an attorney and the officer did not respond

appropriately; that petitioner’s rights were read “really fast”; and that after reading

the rights form petitioner said he wanted to go home and was tired. (Ex. R, p. 25). 

The appellate court affirmed without written opinion.

Petitioner has not rebutted the Rule 3.850 court’s findings with clear and

convincing evidence that trial counsel did not argue and properly preserve for appeal

the issue petitioner now raises. Based on the state court’s finding that trial counsel

did what petitioner says he should have done, the state court did not unreasonably

apply Strickland in concluding that “trial cousnel . . . cannot be held ineffective since

he raised and preserved the issue at trial.” (Ex. W, p. 155). The state court’s rejection

of petitioner’s ineffective assistance claim (petitioner’s specific allegation that trial

counsel failed to argue as a basis for suppression the officer’s alleged inappropriate

Case No: 3:11cv227/LC/CJK
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and deceptive response to petitoiner’s question whether he needed an attorney) was

not contrary to Strickland, did not involve an unreasonable application of Strickland,

and was not based on an unreasonable determination of the facts. 

Petitioner is not entitled to federal habeas relief on Ground Two.

Ground Three “The evidence was legally insufficient to support Gafford’s

[conviction] for attempted premeditatedmurder in violation of his

rights guaranteed under the 6th and 14th amendments to the

United States Constitution.” (Doc. 1, p. 5 and continuation pages

14-15).

Petitioner asserts that the trial court erred in denying his motion for JOA at the

close of all the evidence, because the State’s evidence was wholly circumstantial and

failed to exclude the reasonable hypothesis that petitioner cut Zetterlund because

petitioner believed himself under immediate threat ofserious bodily harm. Petitioner

concedes that at trial, he failed to establish that his belief was reasonable and thus

failed to prove complete self-defense. Petitioner argues: “The evidence, when

viewed in the light most favorable to the State, is entirely consistent wih voluntary

manslaughter[,]” but no higher offense. (Doc. 1, contination pages 14-15).

Respondent asserts that this claim is procedurally defaulted, because the 

argument petitioner raises was not argued at the trial court level in counsel’s motion

for JOA, and was procedurally barred when petitioner attempted to raise it on direct

appeal. (Doc. 21, pp. 33-36). Respondent argues in the alternative that if this ground

is found to have been properly exhausted, it must be rejected without reaching the

merits because it raises a purely state law issue. (Id., pp. 36-38). As a final

alternative respondent argues that petitioner’s claim should be rejected because the

state court’s denial of relief is consistent with Jackson v. Virginia, 443 U.S. 307

(1979). 

Case No: 3:11cv227/LC/CJK
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A. Exhaustion and Procedural Default

Petitioner’s Ground Three is procedurally defaulted in two ways. First, to the

extent petitioner’s present claim can be liberally construed as raising a federal

constitutional challenge to the sufficiency of the evidence (by petitioner’s reference

to the sixth and fourteenth amendments), the claim is unexhausted because petitioner

did not present the federal constitutional nature of his claim to the state appellate

court on direct appeal. When petitioner challenged the trial court’s denial of his

motoin for JOA on direct appeal, petitioner presented the same substantive arguments

he presents here, but he did not say, or even suggest, that his claim was a federal

claim about due process. (Ex. Q, pp. 32-40). Petitioner cited exclusively to state law

cases and all of his substantive arguments addressed Florida law, namely, the State’s

failure to meet Florida’s “special” standard for assessing the sufficiency of the

evidence in wholly circumstantial cases. None of the cases petitioner cited were

decided on federal grounds, and petitioner did not otherwise indicate that he intended

to raise a federal claim. See Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1351,

158 L. Ed. 2d 64 (2004) (“[A] litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a state court petition or brief, for

example, by citing in conjunction with the claim the federal source of law on which

he relies or a case deciding such a claim on federal grounds, or by simply labeling the

claim ‘federal.’”). Although Florida courts assess the sufficeincy of the evidence

under the standard applied in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61

L. Ed. 2d 560 (1979), the basis of petitioner’s argument on direct appeal was that

Florida’s “special standard of review” – the circumstantial evidence standard –

applied and required petitioner’s acquittal of any offense greater than manslaughter,

because the State failed to rebut petitioner’s hypothesis that he subjectively, if

Case No: 3:11cv227/LC/CJK
Page 29 of 48

perhaps unreasonably, perceived Zetterlund was a threat to his safety. Nothing in

petitioner’s direct appeal argument would have alerted the state court to the presence

of a federal claim about due process or the Fourteenth Amendment. Thus, petitioner

failed to exhaust his federal claim. See, e.g., Duncan v. Henry, 513 U.S. at 365-66

115 S. Ct. at 888 (holding that federal habeas petitioner failed to exhaust his claim

that the state trial court’s evidentiary ruling violated the Due Process Clause of the

Fourteenth Amendment; petitioner’s state law claim that the prejudicial effect of the

evidence outweighed its probative value was only somewhat similar to, not the same

as, petitioner’s federal habeas claim that the evidence was so inflammatory as to

prevent a fair trial); Zeigler v. Crosby, 345 F. 3d 1300, 1307 (11th Cir. 2003) (holding

that federal habeas petitioner failed to “fairly present” his juror misconduct claims to

the state courts where his brief to the state appellate court did not refer to the federal

constitutional issues raised in his federal habeas petition, and none of the cases cited

in his direct appeal discussed the Federal Constitution); see also, e.g., Pearson v.

Sec’y, Dep’t of Corr., 273 F. App’x 847, 850 (11th Cir. 2008) (holding that petitioner

did not alert the state court to the alleged federal nature of his sufficiency of the

evidence claim and therefore failed to exhaust his federal due process claim;

“Although Florida courts assess the sufficiency of the evidence under the standard

applied in Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the basis of

Pearson’s argument was that there was no evidence of reasonable fear on the part of

the victim, as defined by state law. Nothing in this argument would have alerted the

state court to the presence of a federal claim about due process.”); Cook v. McNeil,

266 F. App’x 843, 845-46 (11th Cir. 2008) (holding that petitioner did not alert the

state court to the alleged federal nature of his insufficient evidence claim and

therefore failed to exhaust his federal due process claim; even though petitioner

Case No: 3:11cv227/LC/CJK
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moved for a judgment of acquittal and although Florida courts assess the sufficiency

of the evidence under the standard applied in Jackson, supra, petitioner cited

exclusively to state cases and all of his substantive arguments addressed Florida law;

“the tenor of [petitioner’s] narrow arguments that challenged the characterization of

his knife and the sequence of his actions under the Florida statute did not bring a

federal claim about due process to the attention of the state appellate court.”). Troy

v. Sec’y of Dep’t of Corr., No. 8:11cv796, 2013 WL 24212, at *15 (M.D. Fla. Jan. 2,

2013) (finding that federal habeas petitioner’s challenge to the sufficiency of the

evidence, which relied upon the same state law arguments challenging the sufficiency

of the evidence that he presented on direct appeal, provided no basis for federal

habeas relief because it presented purely state law issues; further finding that to the

extent the claimcould be construed as asserting a federal due process challenge to the

sufficiencyofthe evidence, the ground was unexhausted (and procedurally defaulted)

because the petitioner presented no federal due process claim to the state courts).

Even if petitioner is found to have fairly presented a federal due process claim

to the state court on direct appeal, his claim is still procedurally defaulted on a

different basis. When petitioner challenged the trial court’s denial of his motion for

JOA on appeal, the State responded that the issue was not preserved, because there

was no correspondence between petitioner’s motion for JOA in the trial court and his

argument on appeal. Petitioner’s trial motion urged that the State failed to prove

premeditation, and did not contend the evidence was wholly circumstantial (because

defense counsel knew the surviving victim’s testimony was direct evidence, and

counsel reasonably did not suggest a hypothesis of innocence), whereas petitioner’s

direct appeal argued that the State’s evidence of petitioner’s intent was “entirely

circumstantial” and failed to exclude the hypothesis that petitioner retaliated with

Case No: 3:11cv227/LC/CJK
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excessive force but not with premeditation or with evil intent. (Ex. R, pp. 15-18). 

The State alternatively addressed the merits. (Id., pp. 18-23). The First DCA

affirmed without written opinion. 

In Florida, a motion for judgment of acquittal “must fully set forth the grounds

on which it is based.” Fla. R. Crim. P. 3.380; F.B. v. State, 852 So. 2d 226, 230 n. 2

(Fla. 2003) (“[A] motion or objection must be specific to preserve a claim of

insufficiency of the evidence for appellate review.”). “[U]nlessthe error complained

of is adequately brought to the attention of the trial judge, it is not preserved and

cannot be considered by [the appellate] court.” Cornwell v. State, 425 So. 2d 1189,

1190 (Fla. 1st DCA 1983); G.W.B. v. State, 340 So. 2d 969 (Fla. 1st DCA 1977)

(declining to review as not preserved juvenile’s claim that evidence was insufficient

to sustain conviction ofreceiving stolen property because the State failed to prove the

property was stolen property on the date it was received and failed to prove the

ownership of the property; the only argument made in support of the juvenile’s

motions for judgment of acquittal was that the juvenile had not been identified));

Elma v. State, 819 So. 2d 198, 199 (Fla. 4th DCA 2002) (finding argument on appeal,

that circumstantial evidence was insufficient for defendant to be found a principal,

was not preserved because defense counsel had argued at trial that the evidence was

insufficient as to identity).

Defense counsel’s motion for JOA on Count 2 contended that the State “has not

proved a prima facie case as to count two. They have failed to prove a prima facie

case saying that Mr. Gafford formed a premeditated design to effect the death of Joel

Zetterlund and did attempt to kill and murder Joel Zetterlund by cutting of stabbing

him with a knife or blade.” (Ex. J, p. 991). As renewed, the motion urged: “With

regard to count two, attempted murder, the state has not made a prima facie case with

Case No: 3:11cv227/LC/CJK
Page 32 of 48

regard to the elements and that the facts support otherwise.” (Ex. K, p. 1183). The

only ground for JOA that was arguably preserved below was that the State failed to

establish a prima facie case as to premeditation. The JOA motion did not contend

that the State’s evidence was circumstantial and failed to exclude the hypothesis that

petitioner overreacted or used excessive force but did not act with premeditation or

evil intent. The state appellate court’s per curiam affirmance operates as an

acceptance of the State’s asserted procedural bar. Where a claim is rejected without

opinion, and the existence of procedural bar is clear, federal courts on habeas review

will not assume that the state appellate court would have reached the merits of the

claim rather than rejecting it as being procedurally barred. See Coleman, 501 U.S.

722, 735-36 (1991); Kight v. Singletary, 50 F.3d 1539, 1544-45 (11th Cir. 1995)

(applying procedural bar where state court’s summary denial did not explain basis for

ruling).

Petitioner has made none of the requisite showings to excuse his default. 

Petitioner’s procedural default bars federal habeas review of Ground Three. Even

assuming for purposes of argument that petitioner’s present claim raises a federal

constitutional issue and was properly exhausted, petitioner is not entitled to federal

habeasrelief, because the state court’s rejection of his claim is consistent with clearly

established federal law. 

B. Clearly Established Federal Law

As an issue of federal law, petitioner’s claim derives from the Fourteenth

Amendment due process requirement that the evidence presented at trial be sufficient

to convict. The Due Process Clause of the Fourteenth Amendment requires the state

to prove each element of the offense charged beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979). Under

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Jackson, federal courts must look to state law for the substantive elements of the

criminal offense, but to federal law for the determination of whether the evidence was

sufficient under the Due Process Clause. Coleman v. Johnson, 566 U.S. —, — 132

S. Ct. 2060, 2064, 182 L. Ed. 2d 978 (2012). When reviewing a claim of insufficient

evidence, the proper inquiry is not whether the reviewing court itself believesthat the

evidence established guilt beyond a reasonable doubt, but “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319 (citation omitted). The court should not re-weigh the evidence but

should view the evidence in the light most favorable to the jury’s verdict. Id. 

Because jurors are free to evaluate the credibility of testimony and the weight of the

evidence, the court should assume that all conflicting inferences were resolved

against the defendant. Id. at 326. The test under Jackson is a limited one, and it does

not require that the evidence rule out every hypothesis except that of guilt beyond a

reasonable doubt. Id.; Wilcox v. Ford, 813 F.2d 1140, 1143 (11th Cir. 1987). “The

simple fact that the evidence gives some support to the defendant's theory of

innocence does not warrant the grant of habeas relief.” Wilcox, 813 F.2d at 1143.

In Florida, “if the State’s evidence is wholly circumstantial, not only must there

be sufficient evidence establishing each element ofthe offense, but the evidence must

also exclude the defendant’s reasonable hypothesis of innocence.” Pagan v. State,

830 So. 2d 792, 803 (Fla. 2002) (citing Orme v. State, 677 So. 2d 258 (Fla. 1996)). 

When the State’s evidence is both direct and circumstantial, it is unnecessary to apply

the special “circumstantial evidence” standard of review. Pagan, 830 So. 2d at 803. 

Even in a purely circumstantial case, the State is not required to rebut conclusively

every possible variation of events that could be inferred from the evidence, but only

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to introduce competent evidence that is inconsistent with the defense’s version or

theory of events. State v. Law, 559 So.2d 187, 188-89 (Fla. 1989). The federal due

process standard does not require the exclusion of any reasonable hypothesis of

innocence. See United States v. Herrera, 931 F.2d 761, 763 (11th Cir. 1991) (holding

that under federal law, it is not necessary that the evidence exclude every reasonable

hypotheses of innocence or be wholly inconsistent with every conclusion except that

of guilt, provided that a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt) (citations omitted); see also Holland v.

United States, 348 U.S. 121, 139-40, 75 S. Ct. 127, 137-38, 99 L. Ed. 150 (1954)

(rejecting the view that where the Government relies on circumstantial evidence, it

must “exclude every reasonable hypotheses other than that of guilt”). 

There are two layers of judicial deference in federal habeas proceedings. 

Johnson, 566 U.S. at —, 132 S. Ct. at 2062. First, a reviewing state court on direct

appeal may only set aside the jury’s verdict for insufficient evidence if no rational

trier of fact could have agreed with the jury. Id. Second, a federal habeas court may

overturn the state court decision only if it was objectively unreasonable. Id. The

only question for the reviewing state court under Jackson is “whether the finding was

so insupportable as to fall below the threshold of bare rationality.” Johnson at —,

132 S. Ct. at 2065. That determination in turn is entitled to considerable deference

under AEDPA. Id.

C. Federal Review of State Court Decision

Florida law states that attempted first-degree premeditated murder consists of

three elements: (1) an act intending to cause death that went beyond just thinking or

talking about it; (2) a premeditated design to kill; and (3) the commission of an act

that would have resulted in the death of the victim except thatsomeone prevented the

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defendant from killing the victim or the defendant failed to do so. Holliday v. State,

781 So. 2d 796 (Fla. 5th DCA 2001) (citing Gordon v. State, 780 So. 2d 17, 21 (Fla.

2001)); see also Fla. Stat. § 782.04. With regard to premeditation, the Florida

Supreme Court has held:

Premeditation is more than a mere intent to kill; it is a fully formed

conscious purpose to kill. This purpose to kill may be formed a moment

before the act but must exist for a sufficient length of time to permit

reflection as to the nature of the act to be committed and the probable

result of that act.

Wilson v. State, 493 So. 2d 1019, 1021 (Fla. 1986).

The state court’s rejection of petitioner’s claim was not contrary to Jackson,

and did not involve an unreasonable application of Jackson. The State’s evidence set

forth in the Court’s discussion of Ground One supra, when viewed in the light most

favorable to the prosecution, was sufficient to enable a rational juror to find the

element of premeditation beyond a reasonable doubt. See discussion supra pp. 17-

20). Petitioner is not entitled to federal habeas relief on Ground Three. 

Ground Four “(A) The trial court erred in denying defendant’s motion to

suppress his statement given after he twice asked it [sic] he

needed a lawyer and told police he wanted to go home, in

violation of his rights guaranteed under the 6th and 14th

amendments to the United States Constitution;

(B) The trial court erred in denying Mr. Gafford’s motion to

redact those portions of his videotaped statement to police in

which the interrogating officers repeatedly harangue him to tell

the truth in violation of his rights guaranteed under the 6th and

14th amendments to the United States Constitution.” (Doc. 1, p.

5 and continuation pages 15-16)

Petitioner challenges the trial court’s denial of his motion to suppress his

videotaped statement to police and the court’s denial of his motion to redact certain

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portions of that statement. Respondent asserts that petitioner is not entitled to relief

on sub-claim (A), because the state courts’ rejection of petitioner’s claim is not

contrary to Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362

(1994), did not unreasonably apply Davis, and was not based on an unreasonable

determination of the facts. (Doc. 21, pp. 39-40). Respondent assertsthat petitioner’s

sub-claim (B) is procedurally defaulted, because petitioner did not fairly present the 

federal constitutional nature of his claim to the state courts. (Id., pp. 40-41). 

Respondent alternatively argues thatsub-claim (B) is without merit. (Id., pp. 41-42).

Petitioner states that he presented these claims in his Rule 3.850 motion. The

Rule 3.850 court found that petitioner’s substantive claim challenging the denial of

his motion to suppress was procedurally barred, as it could have and should have

been raised on direct appeal. (Ex. W, p. 155). The Rule 3.850 court resolved on the

merits only that aspect of petitioner’s claim relating to trial counsel’s ineffectiveness

with regard to the motion to suppress. (Id.). Petitioner did, however, raise his

substantive challenge to the trial court’s denial of his motion to suppress on direct

appeal. (Ex. Q, pp. 41-46). 

Denial of Motion to Suppress

A. Clearly Established Federal Law

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),

the Court held that a suspectsubject to custodial interrogation has the right to consult

with an attorney and to have counsel present during questioning, and that the police

must explain this right to him before questioning begins. If, during custodial

interrogation, a suspect indicates that he wishes to remain silent, the interrogation

must cease. Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627. “[T]he admissibility of

statements obtained after the person in custody has decided to remain silent depends

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under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously

honored.’” Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed.

2d 313 (1975). Similarly, if an individual “states that he wants an attorney” during

a custodial interrogation, the interrogation “must cease until an attorney is present.”

Miranda, 384 U.S. at 474, 86 S. Ct. at 1628.

“If the interrogation continues without the presence of an attorney and a

statement is taken, a heavy burden rests on the government to demonstrate that the

defendant knowingly and intelligentlywaived his privilege against self-incrimination

and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475, 86 S. Ct.

at 1628. The inquiry into whether a waiver was voluntary, knowing, and intelligent

is twofold:

First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it. Only if

the “totality of the circumstances surrounding the interrogation” reveal

both an uncoerced choice and the requisite level of comprehension may

a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410

(1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572, 61 L.

Ed. 2d 197 (1979)).

B. Federal Review of State Court Decision

Petitioner argued in his motion to suppress, as he does here, that his

videotaped statement required suppression because: (1) prior to questioning and the

reading of his Miranda rights, petitioner twice invoked his right to counsel by asking

the officer if he needed an attorney; (2) petitioner invoked his right to remain silent

Case No: 3:11cv227/LC/CJK
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when, in response to a question from the officer whether petitioner wanted to speak

with the officer, petitioner stated he wanted to go home; and (3) petitioner’s

statements were the product of coercion and deception because in response to

petitioner asking if he needed an attorney, the officer mislead petitioner into

believing he was merely a witness when in fact petitioner was the primary suspect. 

(Ex. B, pp. 399-400; Ex. E, pp. 749-50, 827-31). Petitioner’s entire custodial

interview was videotaped. The trial court reviewed the applicable portions of the

videotapes, heard and considered the testmiony and evidence presented at the

suppression hearing, and denied petitioner’s motion as follows:

1. Defendant was taken into custody late in the evening on June

1, 2005, and transported to the Niceville Police Department where he

was interviewed by Detective Joseph Forgione of the Niceville Police

Department and Investigator Keith Matz of the Okaloosa County

Sheriff’s Office. Detective Forgione told Defendant he was going to

read him his Miranda rights, at which time, Defendant said, “If you are

reading my rights, do I need an attorney?” Detective Forgione stated,

“I don’t know.” Before the reading of his Miranda rights, Defendant

again asked if he needed an attorney. After Detective Forgione read

Defendant his Miranda rights, Defendant stated that if he did not want

to answer a question, he did not have to. After being asked if he was

willing to talk, Defendant said he wanted to go home and he was tired,

but then shortly thereafter said, “ask me anything you want; if I feel like

there’s something I don’t want to answer, I can quit.” Defendant then

read and signed the written waiver of his Miranda rights.

2. Defendant alleges that his statements asking if he needs an

attorney and saying he wants to go home are unequivocal requests for

an attorney and an invocation of his right to remain silent. The Court

disagrees and finds that these statements are at best equivocal, and that

Detective Forgione’s response “I don’t know,” was a simple,

straightforward, and appropriate answer. The Court further finds that

Detective Forgione was not required to cease questioning or resolve any

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ambiguity of Defendant’s statement that he wanted to go home,

especially in light of Defendant’s further statement “ask me anything

you want; if I feel like there’s something I don’t want to answer, I can

quit.” The totality of the circumstances show that Defendant was

familiar with and understood his Miranda rights; that Defendant was

permitted to use the restroom when he requested it; that Defendant was

relaxed and speaking freely to the officers; and that Defendant was not

coerced or tricked into speaking with the officers.

3. Based upon the testimony and evidence presented to the Court,

the Court finds that the Defendant’s statements were freely, knowingly

and voluntarily given, and not in violation of Defendant’s constitutional

rights, including the right to due process, right to counsel, and right to

remain silent.

(Ex. C, pp. 435-37) (footnotes omitted). Petitioner’s appellate counsel raised the

issue on direct appeal, arguing that the trial court erred in denying the motion to

suppress where petitioner twice asked if he needed an attorney before being read his

Miranda rights and petitioner’s questions were not answered in a truthful and

straightforward manner. (Ex. Q, pp. 30, 41-46). Appellate counsel also argued other

points favoring suppression (petitioner’s intoxication, exhaustion, education level,

etc. ). The State filed an answer brief, arguing that the trial court properly denied the

motion to suppress. (Ex. R, pp. 13-14, 23-32). The State conceded that trial counsel

argued, and preserved for appellate review, the basis for suppression that petitioner

twice asked if he needed an attorney and the officer did not respond appropriately,

and that after reading the rights form petitioner said he wanted to go home and was

tired. (Ex. R, p. 25). The state appellate court affirmed without written opinion.

The state court’s factual findings are amply supported by the record, and are

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entitled to deference. (Ex. E; State’s Ex. 2 and State’s Ex. 3). In addition to the state

6

court’s findings, the record also reveals, and petitioner does not dispute, that he was

familiar with and understood his Miranda rights prior to the interview with Detective

Forgione. Investigator Stalnaker testified at the suppression hearing that she had

twice explained petitioner’s Miranda rights to him in the past, in 1996 and 2000, as

part of her work on two other criminal cases. (Ex. E, pp. 752-53). In each of those

cases petitioner told Stalnaker that he understood his rights, agreed to waive his rights

to counsel and to remain silent, gave statements to Stalnaker, and was present at trial

when Stalnaker testified to petitioner’s statements. (Id., pp. 754-55, 759). The record

of the suppression hearing further reveals that at the time of the interview, Detective

Forgione did not know what charges, if any, would be filed against petitioner and

perceived the situation as petitioner possibly having acted in self-defense. (Ex. E, pp.

790-91). 

Given the totality of the circumstances and in light of the state court’s

reasonable factual determinations, the state court was not unreasonable in concluding

that petitioner’s question “do I need an attorney” was not a request for counsel and

Officer Forgione’s response was not misleading, deceptive, coercive, or an

inappropriate effort to either persuade petitioner to answer questions without counsel;

that petitioner’s statement that he was tired and wanted to go home was not an

invocation of petitioner’s right to remain silent; that petitioner’s waiver of his

constitutional rights was knowing and voluntary; and that petitioner’s statements to

law enforcement were freely, knowingly and voluntarily given. 

Exhibit E is the suppression hearing transcript. State’s #2 and State’s #3 are the two 6

videotapes of the actual unredacted interview, which have been converted to DVDs and submitted

with respondent’s response. 

Case No: 3:11cv227/LC/CJK
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Redaction

Early in trial, defense counsel declared that he had four other objections to the

videotape of petitioner’s interrogation. Only counsel’s second objection is relevant

here. Counsel objected to the jury hearing those portions of the interrogation where

law enforcement officers “keep repeating telling [petitioner] that he’s not telling the

truth and that’s prejudice to my client. . . .” (Ex. I, p. 769). Counsel argued that the

officers were essentially telling petitioner that he was lying, and that the jury should

not be allowed to hear the officers’ statements. The prosecutor noted that the

officers’ references to petitioner as “a liar” had been redacted, and argued that there

was nothing prejudicial in the jury hearing the officers admonish petitioner to tell

them the truth. (Id., p. 770). The parties agreed that the trial judge should watch the

videotape and decide. (Id., pp. 771). The next morning, the trial judge noted that he

had “reviewed the four specific areas” and then overruled defense counsel’s

objections. The prosecutor reiterated that referencesto petitioner as “a liar” had been

redacted. The trial judge ruled:

THE COURT: All right. Before the jury comes in we need to go over

the issue the defense had about the tape recording of the statement made

by Mr. Gafford and I’ve reviewed the four specific areas that were

objected to and I found that they’re – I’m going to overrule the

objection, but there was one area I believe Mr. Kilpatrick [defense

counsel] indicated that the state had previously agreed to that was still

on the tape. What was that?

MR. KILPATRICK [defense counsel]: That was the statements – yeah,

statements calling defendant a liar and not telling the truth but Mr.

Elmore just informed me that he did not agree to the not telling the truth. 

He just agreed to statements calling the defendant a liar so I don’t know.

THE COURT: Okay. Well, can Mr. Peaden redact the liar issue out?

Case No: 3:11cv227/LC/CJK
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MR. ELMORE [prosecutor]: It’s not in there.

MR. KILPATRICK: It’s not in there.

THE COURT: Oh, well then –

MR. ELMORE: Judge, all that’s in there is the cops saying, come one,

tell us the truth. There’s nothing wrong with that.

THE COURT: Okay. I agree. 

(Id., pp. 771-72). When the prosecutor moved the redacted tape into evidence as

State’s Ex. 39, it was subject to the objections raised at the suppression hearing, and

to the objections to content not redacted that morning. (Ex. J, p. 986). The videotape

was published, but as noted in the transcript, was not sufficiently intelligible to be

transcribed during trial. (Id., p. 988).

A. Exhaustion and Procedural Default

Respondent asserts a procedural default defense, arguing that although

petitioner presented a similar state law claim to the state court on direct appeal,

petitioner never presented a federal due process claim to the state courts and is now

procedurally barred from doing so. (Doc. 21, p. 40). Respondent is correct.

When defense counsel objected to the jury hearing the officer’s admonitions

to tell the truth, no federal law or constitutional right was mentioned. To the contrary,

defense counsel asserted that the basis for his position was “case law . . . from the 4th

DCA.” (Ex. I, p. 769). Petitioner challenged on direct appeal the trial court’s refusal

to further redact the videotape, raising it as Issue III. Petitioner argued:

“Interrogating officers’ opinions and characterization as to the truth and veracity of

a defendant’s statements are inadmissible”, and that the “trial court erred in admitting

the taped statement, which included such opinions.” (Ex. Q, p. 89). Petitioner

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contended that the well established law in Florida isthat police officers and witnesses

cannot give their opinions asto the truthfulness of a defendant. Petitioner’s argument

relied on, and cited to, exclusively state law cases. (Id., pp. 89-92). Petitioner did not

assert his direct appeal claim as a matter of federal constitutional law, did not cite to

any federal cases, and did not so much as mention the federal right to due process or

the United States Constitution. Petitioner did not “fairly present” to the state courts

his present claim that the trial court’s failure to redact the videotape violated the Due

Process Clause of the Fourteenth Amendment. See, e.g., Duncan v. Henry, 513 U.S.

at 365-66 115 S. Ct. at 888. 

Petitioner is barred by state procedural rules from returning to state court to

present the federal constitutional nature of his claim. Accordingly, petitioner’s claim

concerning redaction is considered procedurally defaulted on federal habeasreview. 

Petitioner makes none of the requisite showings to excuse his procedural default. 

(See Doc. 25). Petitioner’s procedural default bars federal habeas review of the

merits of his claim. 

Petitioner is not entitled to federal habeas relief on either of the sub-claims

raised in Ground Four.

Ground Five “Whether Mr. Gafford was denied effective assistance of counsel

by failing to request a limiting instruction on the use of

impeachment evidence in violation of his rights guaranteed under

the 6th and 14th amendments to the United States Constitution.” 

(Doc. 1, continuation pages 18-19)

Petitioner alleges that the State “attempted to use prior inconsistentstatements

made by Mr. Gafford’s son assubstantive evidence.” (Doc. 1, continuation page 19). 

Petitioner faults trial counsel for “failing to seek a limiting instruction for the jury,

advising themofthe sole purpose ofimpeachment evidence.” (Id.). Petitioner argues

Case No: 3:11cv227/LC/CJK
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that had counsel requested a limiting instruction, the outcome of his trial would have

been different because: “(1) the jury would not have used impeachment evidence as

substantive evidence of guilt (2) Defendant would not have been denied his right to

have the jury instructed on the limited purpose of the impeachment (3) Defendant

would have been acquitted when considering the State’s case was circumstantial at

best. . . .” (Id.).

The parties agree that petitioner presented this claim to the state courts in his

Rule 3.850 motion as Grounds V and VI. (Doc. 21, p. 42). Respondent asserts that

petitioner is not entitled to habeas relief, because the state court’s rejection of the

claim is consistent with Strickland. 

A. Clearly Established Federal Law

The clearly established federal law governing claims of ineffective assistance

of counsel is set forth above.

B. Federal Review of State Court Decision

The state court’s written order cites Strickland asthe controlling legal standard.

(Ex. W, p. 153). As petitioner challenges only the state court’s application of the

two-part Strickland test, this Court’s analysis of petitioner’s claim is confined to

whether the state court’s application of Strickland was objectively unreasonable. See

Williams, 120 S. Ct. at 1521 (interpreting 28 U.S.C. § 2254(d)(1)). The Rule 3.850

court rejected petitioner’s claim as follows:

The Defendant next claims that this attorney was ineffective in

failing to object when the state attempted to use prior inconsistent

statements made by the Defendant’s son, John E. Gafford, assubstantive

evidence. He also claims that his attorney should have sought a jury

instruction which informed the jury that inconsistent statements were not

to be considered as substantive evidence. In support of his claim, the

Defendant has cited specific instances where John E. Gafford’s

Case No: 3:11cv227/LC/CJK
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testimony was contradicted by the State with prior inconsistent

statements.

The Defendant is correct that prior inconsistent statements not

made under oath and not subject to cross-examination are to be used as

impeachment, rather than substantive, evidence. The Court, however,

has reviewed the comments cited by the Defendant and finds the state

did not attempt to use the witness’ prior inconsistent statements as

substantive evidence.

The state, in its closing, pointed out the numerousinconsistencies

in John E. Gafford’s recollection of events on the night Mr. Zetterlund

was nearly killed. It wasthe state’s position that the Defendant attacked

each man while they were outside his house. John E. Gafford, however,

insisted that the two men were inside his father’s home when he came

at them with a knife.

The fact that the state posited that events did not happen as John

E. Gafford described does not suggest an effort to use his prior

inconsistent statements as substantive evidence. The prosecution’s

reference to the inconsistencies in John E. Gafford’s testimony was a

fair comment on the evidence and, therefore, any objection would have

been overruled had one been made by counsel. In addition, since the

court finds that the state did not use the inconsistent statements other

than as impeachment evidence, the failure to seek a limiting instruction

was harmless.

(Ex. W, pp. 156-57) (footnotes omitted). The First DCA affirmed without written

opinion.

The state court’s findings of fact are presumed correct, and are amply

supported by the record. The state court reasonably determined that petitioner’s

proposed objection would have been overruled, because the State did not attempt to

use impeachment evidence as substantive evidence. The challenged questions to

Gafford’s son and the references to the son’s deposition testimony and statements to

Case No: 3:11cv227/LC/CJK
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law enforcement were proper impeachment, and the State did not attempt to use the

prior inconsistent statements as substantive evidence. Defense witness John E.

Gafford, petitioner’s son, testified to the circumstances surrounding the stabbings of

Zetterlund and Ciastko. The prosecutor cross-examined John E. Gafford concerning

whether certain aspects of Gafford’s testimony differed from what Gafford had

related previously in his deposition testimony and statements to police. (Ex. K, pp.

1042-44, 1057, 1063-65, 1070-72, 1090-91, 1094-97). John E. Gafford attempted to

explain his prior statements. (Id.). The challenged questions, when read in context,

were no more than questions directly affecting John E. Gafford’s credibility. The

prosecutor used John E. Gafford’s prior inconsistent statements to illustrate the

unreliability of his trial testimony and the inconsistencies between his trial testimony

and his prior statements. The prosecutor did not use the prior inconsistent statments

to affirmatively prove a fact in issue. Counsel cannot be ineffective to failing to make

a losing objection. Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“Even

if [defense 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. [A

defendant] cannot be prejudiced by his counsel’s failure to make a losing objection.”).

Petitioner also faults trial counsel for failing to request a limiting instruction

advising the jury that they could consider John E. Gafford’s prior statements only to

decide whether or not he was credible, and not to determine the facts of what

occurred. As the state court reasonably determined, because John E. Gafford’s prior

inconsistent statements were used for no purpose other than to impeach John E.

Gafford’s credibility, petitioner was not prejudiced by counsel’s failure to request an

instruction limiting the jury’s consideration of the evidence to that purpose. 

The state court’s rejection of petitioner’s ineffective assistance claim was not

Case No: 3:11cv227/LC/CJK
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contrary to Strickland, did not involve an unreasonable application of Strickland, and

was not based on an unreasonable determination of the facts. Petitioner is not entitled

to federal habeas relief on Ground Five.

CERTIFICATE OF APPEALABILITY

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

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

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

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

required by 28 U.S.C. § 2253(c)(2).” 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 petitioner in this case fails to make a 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 the meaning

of this term) (citation omitted). Accordingly, the court should deny a certificate of

appealability in its final order.

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

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

issue.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such argument to the

attention of the district judge in the objections permitted to this report and

recommendation.

Accordingly, it is ORDERED:

The Clerk shall change the docket to reflect that Michael D. Crews has been

substituted as the respondent in this cause.

Case No: 3:11cv227/LC/CJK
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And it is respectfully RECOMMENDED:

1. That the amended petition for writ of habeas corpus (doc. 8), challenging

the judgment of conviction and sentence in State of Florida v. Johnny Bryant Gafford

in theCircuitCourt for Okaloosa County, Florida, Case No. 05-CF-1311 be DENIED,

and the Clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 6th day of March, 2013.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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).

Case No: 3:11cv227/LC/CJK