POOLE v. DIXON

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CURTIS WEDO POOLE,

Petitioner,

v. Case No. 4:24-cv-23-MW-MJF

RICKY DIXON,

Respondent.

____________________________/

REPORT AND RECOMMENDATION

Curtis Wedo Poole, proceeding pro se, has filed an amended petition

for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 10. Respondent

(“the State”) answered, Doc. 23, and provided relevant portions of the

state-court record, Doc. 17. Poole replied. Doc. 25. The undersigned

concludes that no evidentiary hearing is required for the disposition of

this matter, and that Poole is not entitled to habeas relief.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The following is drawn from the evidence presented at trial, viewed

in the light most favorable to the State. See Doc. 17-2, Ex. B (Trial Tr.).

On August 17, 2018, Deputy David Cripe was on foot patrol in a parking

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lot of The Boardwalk at Quietwater Beach in Escambia County, Florida.

Cripe was walking down a row of parked cars, when Poole drove past

Cripe—going the same direction—down the adjacent, parallel row of

parking spaces. Poole was in a red Ford Ranger pickup truck. Poole

started backing into a parking space. Cripe was walking toward the

empty parking space that abutted Poole’s space from behind. As Poole

backed in and Cripe approached, Cripe “clearly read” Poole’s license plate

and observed that the registration validation sticker (the “tag”) expired

in January 2018. Doc. 17-2, Ex. B at 92. Cripe “believe[d]” that the truck’s

tailgate was down, but Cripe could not “recall completely.” Id. at 108.1

Poole exited the driver’s side of the truck. Cripe put his hand up,

signaling Poole to stop. Cripe informed Poole that Poole’s tag was expired

and that Cripe was detaining him briefly to investigate the traffic

violation. Cripe asked Poole for his driver’s license, registration, and

proof of insurance.

1 Cripe made this statement during cross-examination. The undersigned

notes it here, because it forms the basis of at least two of Poole’s

ineffective-assistance-of-counsel claims.

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Poole advised Cripe that he did not have his driver’s license, but

that his identification card was in the truck bed. Cripe asked Poole to

retrieve his ID card. Poole looked briefly for the card but did not locate it,

and became hostile toward Cripe. Cripe asked Poole for his name, but

Poole refused to provide it and instead argued that he did not have to

provide any identification, that he could leave, and that Cripe had no

reason to stop him. Cripe repeatedly asked Poole for his identification.

Each time, Poole refused and repeated his statements that he could leave

and did not have to identify himself. Cripe warned Poole that Poole was

obstructing Cripe’s traffic investigation by refusing to identify himself

and that he would detain Poole for obstructing justice if Poole continued

to impede the investigation. Poole stood firm in his position that he did

not have to identify himself and was not being detained. Cripe then told

Poole to turn around and place his hands behind his back. Poole refused.

At that point Deputy Jose Oliveras, who was working an off-duty

shift at the souvenir shop near the parking lot, joined Cripe and Poole.

Cripe attempted to get a hold of Poole’s left hand from behind, but Poole

pulled away, tensed his arms, brought his arms toward the front of his

body, and insisted he was not going to be arrested. Oliveras, who was in

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front of Poole, attempted to grasp Poole’s right hand and move it behind

Poole’s body toward Cripe. Poole shoved Oliveras back, causing Oliveras

to fall into a vehicle and to the ground.

Poole then balled his right fist and drew it back to strike Oliveras.

As Poole drew his right arm back, he thrust his left arm backward toward

Cripe and elbowed Poole in the chest. Cripe grabbed Poole’s right arm

before Poole could strike Oliveras. Poole continued to struggle with Cripe

and Oliveras, causing Oliveras to fall into another car. Eventually,

Oliveras tased Poole, and he and Cripe were able to handcuff him.

During the scuffle, Cripe saw a cigarette box fall out of Poole’s right

front pants pocket. Once Poole was in handcuffs, Cripe retrieved the

cigarette box. Inside the box was a plastic bag that contained marijuana,

a small straw with cocaine on it, and a plastic bag that contained crack

cocaine.

In Escambia County Circuit Court Case No. 2018-CF-4775, Poole

was convicted of six crimes: Resisting Officer Without Violence (Count 1),

Battery (Count 2), Battery on a Law Enforcement Officer (Cunt 3),

Possession of Cocaine (Count 4), Possession of Cannabis (Count 5), and

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Possession of Drug Paraphernalia (Count 6). Doc. 17-1, Ex. A at 62-71.2

The trial court sentenced Poole to 60 months of imprisonment on Count

3, and 24 months of imprisonment on Count 4 consecutive to Count 3. Id.

at 65-66. Poole was sentenced to time served on the remaining counts. Id.

at 67. Without opinion, the Florida First District Court of Appeal (“First

DCA”) affirmed the judgment on May 11, 2020. Poole v. State, No. 1D19-

1351, 300 So. 3d 133 (Fla. 1st DCA 2020) (Table) (per curiam) (copy at

Doc. 17-6, Ex. F).

On December 10, 2021, Poole filed a pro se motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850, which he later

amended. Doc. 17-9, Ex. I at 7-45 (Mot.), 48-81 (Am. Mot.). The state

circuit court denied the motion. Id. at 82-124. The First DCA per curiam

affirmed without opinion. Poole v. State, No. 1D22-2543, 376 So. 3d 705

(Fla. 1st DCA 2023) (Table) (copy at Doc. 17-12, Ex. L).

Poole filed his original federal habeas petition on January 16, 2024.

Doc. 1 at 21, 30. Poole’s amended petition raises six claims of ineffective

2 Citations to page numbers of exhibits are to the numbers appearing at

the bottom-most center of the page.

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assistance of trial counsel. Doc. 10. The parties agree that Poole

presented his claims to the state courts in his Rule 3.850 motion and

appeal, and that the state courts denied relief on the merits. Doc. 10; Doc.

23. The State asserts that Poole is not entitled to habeas relief because

he fails to satisfy § 2254(d)’s demanding standard.

II. RELEVANT LEGAL STANDARDS

A. Section 2254 Standard of Review

A federal court “shall not” grant a habeas corpus petition on any

claim that was adjudicated on the merits in state court unless the state

court’s decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court.”

28 U.S.C. § 2254(d)(1). The United States Supreme Court explained the

framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).3

Justice O’Connor described the appropriate test:

3 Unless otherwise noted, references to Supreme Court’s Williams case

are to the majority holding, written by Justice Stevens for the Court

(joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in

parts I, III, and IV of the opinion (529 U.S. at 367-75, 390-99); and Justice

O’Connor for the Court (joined by Justices Rehnquist, Kennedy, Thomas,

and—except as to the footnote—Scalia) in part II (529 U.S. at 403-13).

The opinion of Justice Stevens in Part II was joined by Justices Souter,

Ginsburg, and Breyer.

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Under the “contrary to” clause, a federal habeas court

may grant the writ if the state court arrives at a conclusion

opposite to that reached by this Court on a question of law or

if the state court decides a case differently than this Court has

on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may

grant the writ if the state court identifies the correct

governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the

prisoner’s case.

529 U.S. at 412-13 (O’Connor, J., concurring). In applying the

“unreasonable application” clause, the federal court defers to the state

court’s reasoning unless the state court’s application of the governing

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

the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542

U.S. 649, 652 (2004). In Harrington v. Richter, 562 U.S. 86 (2011), the

Supreme Court warned that, “even a strong case for relief does not mean

the state court’s contrary conclusion was unreasonable.” Id. at 102.

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

the merits in state court where that adjudication “resulted in a decision

that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The “unreasonable determination of the facts” standard is

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

conclusion is premised on unreasonable fact finding. See Gill v. Mecusker,

633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable

application” clause of § 2254(d)(1), the federal court applies an objective

test. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (a state court

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

factual grounds unless objectively unreasonable in light of the evidence

presented in the state court proceeding.”). “The question under AEDPA

is not whether a federal court believes the state court’s determination

was incorrect but whether that determination was unreasonable—a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473

(2007) (citing Williams, 529 U.S. at 410). AEDPA also requires federal

courts to “presume the correctness of state courts’ factual findings unless

applicants rebut this presumption with ‘clear and convincing evidence.’”

Landrigan, 550 U.S. at 473-74 (quoting 28 U.S.C. § 2254(e)(1)).

A federal court may conduct an independent review of the merits of

a petitioner’s claim only if it first finds that the petitioner satisfied §

2254(d). See Panetti v. Quarterman, 551 U.S. 930, 954 (2007). Even then,

however, the writ will not issue unless the petitioner shows that he is in

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custody “in violation of the Constitution or laws and treaties of the United

States.” 28 U.S.C. § 2254(a).

B. Ineffective Assistance of Counsel Claims

The Supreme Court follows a two-pronged test for evaluating

claims of ineffective assistance of counsel. The petitioner must show (1)

his counsel’s performance was constitutionally deficient, and (2) the

deficient performance prejudiced him. Strickland v. Washington, 466

U.S. 668, 687 (1984). “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, 184 (1986)

(quoting Strickland, 466 U.S. at 694).

The inquiry under Strickland’s performance prong is “whether

counsel’s assistance was reasonable considering all the circumstances.”

Strickland, 466 U.S. at 688. Trial counsel is “strongly presumed to have

rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. The burden to

overcome that presumption and to show that counsel’s performance was

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deficient “rests squarely on the defendant.” Burt v. Titlow, 571 U.S. 12,

22-23 (2013).

Strickland’s prejudice prong requires a defendant to establish a

“reasonable probability” of a different trial outcome. See Strickland, 466

U.S. at 694. A reasonable probability is one that sufficiently undermines

confidence in the outcome. Id. at 694. “The likelihood of a different result

must be substantial, not just conceivable.” Richter, 562 U.S. at 112.

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. See Strickland, 466 U.S. at 698. “Surmounting Strickland’s high bar

is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult.” Richter, 562 U.S.

at 105 (citations omitted).

III. DISCUSSION

Ground One “Trial Counsel Rendered Ineffective

Assistance For Failing To File Motion To

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Dismiss All Charges For Lack Of Probable

Cause.” Doc. 10 at 9.

Poole claims that his trial counsel was ineffective for failing to file

a pretrial motion to dismiss the charges for “lack of probable cause.” Doc.

10 at 9-10. In support, Poole alleges that sometime after counsel took

Cripe’s deposition, Poole provided counsel with photographs of his truck

with the tailgate down from what Poole considered to be, a car-length

away. According to Poole, the photographs showed that the tag “can not

be observed or seen with the tailgate down.” Id. at 9-10. Poole faults trial

counsel for failing to move to dismiss the charges based on Poole’s

photographs. Id.

A. The State Court’s Decision

Poole presented this claim to the state courts as “Claim One” of his

amended Rule 3.850 motion. Doc. 17-9, Ex. I at 57-59. The state circuit

court identified Strickland as the controlling legal standard, Ex. I at 82-

83, and denied relief for these reasons:

The charges were based on allegations that on August

17, 2018, Defendant was stopped on a Friday night in the

parking lot of the Pensacola Beach Boardwalk for operating a

vehicle with an expired registration. After failing to produce

a driver’s license or identification, a struggle ensued between

Defendant and the two officers on the scene, drugs and

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paraphernalia fell out of Defendant’s pocket, and Defendant

was arrested.

CLAIM ONE

Defendant claims counsel was ineffective for failing to

file a pretrial motion to dismiss for lack of probable cause. He

alleges Officer David Cripe testified he observed an expired

tag on a red Ford truck Defendant was driving. Defendant

asserts Cripe could not have observed the tag with the tailgate

down while the officer was on foot about a car length away.

Defendant alleges the pictures he provided to counsel show

the validation sticker could not be seen from the described

position Cripe stated or from any distance. Therefore, there

was no probable cause to detain Defendant. Defendant

further asserts it is likely a motion to dismiss would have been

granted, and there was a reasonable probability the result of

the trial would have been different.

In support of his claim, Defendant directs the Court to

see Exhibits A, B, C, and D. However, he has not attached or

submitted any exhibits with his motion. He alleges he

provided counsel with four photos in January 2019 of the

truck with the tailgate down. No photos of the truck were

introduced into evidence at trial. (Exhibit C.)

At trial, Cripe testified he was on foot and saw the red

2004 Ford Ranger pickup truck traveling through the parking

lot and back up into a parking space, at which point he could

clearly read the license plate and see the plate had an

expiration date on the tag of January 2018, which was

expired. (Exhibit D, pp. 91-92, 120.) Cripe made contact with

Defendant as Defendant exited the driver’s side door of the

truck, Defendant was detained on the basis of the expired

registration, and Cripe advised him the reason for the stop.

(Exhibit D, pp. 92-94.) Cripe requested Defendant produce a

driver’s license; Defendant stated his license had been stolen,

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and he had an identification card. (Exhibit D, p. 94.)

Defendant became hostile and stated he did not have to

produce identification. (Exhibit D, pp. 94096.) Cripe informed

Defendant he was obstructing the officer’s investigation by

failing to identify himself. (Exhibit D, pp. 95-96.)

Cripe testified on cross examination that the incident

occurred on a Friday night between 8:30 and 9:30 p.m., and

there were a lot of cars in the parking lot but not a lot of

people. (Exhibit D, p. 106.) He saw the tag as the truck was

parking a row away from him and he was walking toward it,

he was about a car length away, and the tailgate may have

been down. (Exhibit D, p. 108.) The keys were not located.

(Exhibit D, p. 109.) The truck was not registered to Defendant

and was unregistered completely. (Exhibit D, p. 110.)

Officer Jose Oliveras testified he was on duty on foot in

the area and walked over because he saw Cripe make contact

with Defendant. (Exhibit D, pp. 125-126.) He testified he

heard Cripe asking Defendant for identification more than

once but Defendant did not produce identification, and they

attempted to place Defendant in handcuffs. (Exhibit D, p.

126.)

Defendant does not refute that the tag was expired, that

the sticker indicated an expiration of January 2018, or that

Cripe was investigating the expiration of the tag. Instead,

Defendant insists it was impossible to see the sticker on the

tag with the tailgate down. It is stated in the arrest report

that a computer check revealed the tag had expired on

January 8, 2018, and the vehicle was currently unregistered.

(Exhibit E.) Moreover, both the truck and Cripe were in

motion when Cripe observed the tag. It defies logic that Cripe

was unable to see the sticker. Therefore, this claim does not

warrant an evidentiary hearing. See Capalbo v. State, 73 So.

3d 838, 840 (Fla. 4th DCA 2011) (“A postconviction court is

not required to hold hearings on absurd claims or accept as

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true allegations that defy logic, and which are inherently

incredible.”).

Doc. 17-9, Ex. I at 84-86. The First DCA affirmed without explanation.

Doc. 17-12, Ex. L.

B. Poole Is Not Entitled to Habeas Relief

The First DCA’s summary affirmance is an “adjudication on the

merits” of Poole’s claim and, therefore, is reviewed under § 2254(d)’s

deferential standard. See Richter, 562 U.S. at 99 (“When a federal claim

has been presented to a state court and the state court has denied relief,

it may be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state-law procedural principles

to the contrary). Because the First DCA’s order is unexplained, this court

employs the following “look through” presumption: “[T]he federal court

should ‘look through’ the unexplained decision to the last related state-

court decision that does provide a relevant rationale. It should then

presume that the unexplained decision adopted the same reasoning.”

Wilson v. Sellers, 584 U.S. 122, 125 (2018). In other words, this court

presumes that the First DCA rejected Poole’s claim for the reasons

provided by the state circuit court.

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The state court’s decision is not “contrary to” clearly established

federal law, because the state court identified and applied the Strickland

standard. See Williams, 529 U.S. at 405-06 (interpreting § 2254(d)(1)). To

obtain habeas relief, therefore, Poole must show that the First DCA’s

decision involved an unreasonable application of the Strickland

standard, or that it was based on an unreasonable determination of the

facts in light of the evidence presented in the state-court proceeding.

Poole fails to make either showing.

Poole theorizes that even though his tag was expired—and the

expired tag was Cripe’s basis for the traffic stop—counsel should have

moved to dismiss the charges by using Poole’s photographs to dispute

Cripe’s ability to see the tag and to argue that Cripe’s stop was

unconstitutional. A fairminded jurist could agree with the state court’s

conclusion that Poole failed to establish there was a reasonable

probability the proposed motion would have succeeded.

The Fourth Amendment requires that an officer have a “reasonable

suspicion” of criminal activity in order to initiate a traffic or investigatory

stop. Heien v. North Carolina, 574 U.S. 54, 59-60 (2014). “Reasonable

suspicion” means “‘a particularized and objective basis for suspecting the

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particular person stopped’ of breaking the law.” Heien, 574 U.S. at 60

(quoting Navarette v. California, 572 U.S. 393, 396 (2014)). “Even minor

traffic violations qualify as criminal activity.” United States v. Campbell,

26 F.4th 860, 880 (11th Cir. 2022). Thus, an officer lawfully may detain

a vehicle and its occupants “pending inquiry into a vehicular violation.”

Arizona v. Johnson, 555 U.S. 323, 332 (2009). Having an expired

registration validation sticker violates Florida law requiring the

registration of vehicles. See Fla. Stat. § 320.02.

Cripe testified that as he was approaching the parking space Poole

was backing into, he read the license plate on the rear of Poole’s truck

and saw a registration tag. Cripe read the tag, saw that it had an

expiration date of January 2018, and determined that the tag was

expired. Doc. 17-2, Ex. B at 91-92.4 There was no dispute that the tag

was, in fact, expired.

Even assuming to Poole’s benefit that the alleged photographs

would have been admissible, the photographs—as Poole described them

4 Poole offers no reason to believe that Cripe would have testified any

differently at a pretrial motion hearing. Indeed, Poole’s claim is based on

Cripe’s trial testimony and arrest report. See Doc. 10 at 9.

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to the state court—could not have supported a finding that Cripe lacked

a reasonable suspicion to initiate the traffic stop.5 For starters, Poole did

not provide the state court with the photographs underlying this claim.

Poole offered only this description of the photographs:

These four pictures of the red Ford Ranger truck are

over a car length, there about, back, it is clear from these

pictures that the upper portion of the license plate sticker of

the tag, which is where the month and year decals are, the

month on the left and the year on right, the decals cannot be

observed or seen with the tailgate down, see picture of the

truck. (See Ex. A, B, D, D).

The Defendant alleges Officer David Cripe could not

have observed nor seen the decals sticker was expired with

tailgate down while he was on foot.

Doc. 17-9, Ex. I at 57. Although Poole now has provided this federal

habeas court with photocopies of the photographs, see Doc. 25, App., this

Court cannot lawfully consider this evidence because the photographs

were not part of the record that was before the state postconviction court.

5 The assumption that the photographs would have been admissible is a

stretch. Poole makes no showing that counsel could have satisfied the

prerequisites for admissibility. Poole does not allege who took the

photographs, when, and where, nor does he describe the vantage point

with sufficient detail to show that it was the same vantage point from

which Cripe observed the tag (as opposed to Poole’s speculative

interpretation of what Cripe would have seen as he walked toward the

parking space).

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See Shoop v. Twyford, 596 U.S. 811, 819-20 (2022). A federal habeas

court’s review under § 2254(d) is confined to the record that was before

the state court. Shoop, 596 U.S. at 819-20 (citations omitted).

As the state court noted, Poole’s still photographs were taken from

a static position, whereas Cripe and Poole’s truck were in motion—

moving toward one another—when Cripe read the rear tag. See Doc. 17-

2, Ex. B (Cripe’s testimony that he got a good view of the tag “as [Poole’s

truck] was parking, I was walking towards that direction.”).

But of greater consequence, Poole has not shown that there was a

reasonable probability his photographs would have led a court to find

that Cripe’s understanding of the particularized facts that he directly

observed and were factually correct—that Poole’s tag reflected a date

that had expired—was unreasonable. See Heien, 574 U.S. at 61

(“Reasonable suspicion arises from the combination of an officer’s

understanding of the facts and his understanding of the relevant law.”).

For this reason, Poole’s proposed challenge to the constitutionality of

Cripe’s traffic stop almost certainly would have failed.

A fairminded jurist, therefore, could agree with the state court’s

conclusion that Poole failed to establish counsel was ineffective for failing

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to file Poole’s proposed pretrial motion. See Pinkney v. Sec’y, DOC, 876

F.3d 1290, 1297 (11th Cir. 2017) (“[A]n attorney will not be held to have

performed deficiently for failing to perform a futile act, one that would

not have gotten his client any relief[.]”).

The state court’s rejection of Poole’s claim was not contrary to, and

did not involve an unreasonable application of, the Strickland standard.

Nor was the decision based on an unreasonable determination of the

facts. Poole is not entitled to habeas relief on Ground One.

Ground Two “Trial Counsel Failure To File A Motion To

Suppress The Illegal Stop Turned Into An

Illegal Arrest, Violating Defendant’s Rights

Under the Fourth, Fifth, Sixth And

Fourteenth Amendments To The United

States Constitution.” Doc. 10 at 12.

Poole claims that trial counsel was ineffective for failing to file a

motion to suppress based on Cripe’s “illegal stop” (discussed above), and

Cripe’s “illegal arrest” of Poole. Poole maintains that his arrest was

illegal because he did not have an identification card or driver’s license

on his person; therefore, Poole “could not have resisted or obstructed

Officer David’s Cripe’s investigation.” Doc. 10 at 12.

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A. The State Court’s Decision

Poole presented this claim to the state courts as “Claim Two” of his

amended Rule 3.850 motion. Doc. 17-9, Ex. I at 60-63. The state circuit

court identified Strickland as the controlling legal standard, Doc. 17-9,

Ex. I at 82-83, and denied relief for these reasons:

Defendant claims counsel was ineffective for failing to

file a motion to suppress the illegal stop which turned into an

illegal arrest. Defendant alleges he did not obstruct Cripe’s

investigation, because he did not have an identification card

or driver’s license on his person. This part of Defendant’s

claim is without merit. Cripe had detained Defendant in order

to investigate a traffic violation. Defendant told Cripe he had

identification and then told Cripe he did not have to provide

it. Thus, Defendant was obstructing Cripe in the execution of

his legal duty of investigating the traffic offense and was

lawfully arrested. See P.V. v. State, 899 So. 2d 480, 482 (Fla.

3d DCA 2005).

Also in this claim, Defendant asserts the handcuffing of

Defendant was not justified, because Cripe testified he was

not worried about anything in Defendant’s possession being a

weapon, and counsel failed to investigate this defense. This

part of Defendant’s claim is without merit. Cripe was

attempting to execute an arrest and was not attempting to

handcuff Defendant to merely temporarily detain him for

officer safety. See Reynolds v. State, 592 So. 2d 1082, 1085

(Fla. 1992).

Defendant also raises the issue of counsel’s failure to

investigate the photos of the truck and present them as

rebuttal to Cripe’s testimony that he observed the expired

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sticker. There is no reasonable probability of a different

outcome as explained as to Claim One above.

Doc. 17-9, Ex. I at 86. The First DCA affirmed without explanation. Doc.

17-12, Ex. L.

B. Poole Is Not Entitled to Habeas Relief

The First DCA’s summary affirmance is an “adjudication on the

merits” of Poole’s claim and, therefore, is reviewed under § 2254(d)’s

deferential standard. See Richter, 562 U.S. at 99. Because the First

DCA’s order is unexplained, this court presumes that the First DCA

rejected Poole’s claim for the reasons provided by the state circuit court.

Wilson, 584 U.S. at 125.

The state court identified and applied the Strickland standard.

Thus, Poole cannot obtain habeas relief unless he shows that the First

DCA’s decision involved an unreasonable application of the Strickland

standard, or that it was based on an unreasonable determination of the

facts in light of the evidence presented in the state-court proceeding.

Poole fails to make either showing.

“AEDPA affords a presumption of correctness to a factual

determination made by a state court; the habeas petitioner has the

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burden of overcoming the presumption of correctness by clear and

convincing evidence.” Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842,

845 (11th Cir. 2011) (citing 28 U.S.C. § 2254(e)). “[I]n a habeas case

governed by AEDPA, clear and convincing evidence consists of proof that

a claim is ‘highly probable.’” Ingram v. Warden, Holman Corr. Facility,

80 F.4th 1304, 1313 (11th Cir. 2023) (quoting Fults v. GDCP Warden, 764

F.3d 1311, 1314 (11th Cir. 2014)).

This court defers to the state court’s factual findings because they

are amply supported by the state-court record. See Doc. 17-1, Ex. A at 11-

15 (Arrest Report); Doc. 17-2, Ex. B at 93-98 (Cripe’s Trial Test.). Poole

has not rebutted any finding with clear and convincing evidence.

As the state court reasonably determined, Cripe testified consistent

with his arrest report that after noticing that Poole’s tag was expired,

Cripe stopped Poole and asked for his registration, proof of insurance,

and driver’s license. Poole said he didn’t have his license but he had an

identification card in the truck bed. Cripe told Poole to produce the ID

card. Poole searched the truck bed very briefly, but then became hostile,

refused to produce the ID card, refused Cripe’s multiple requests to

provide his name, insisting that he was not going to cooperate and was

Page 22 of 44

free to leave. Cripe warned Poole that Poole was obstructing Cripe’s

traffic investigation by refusing to identify himself, and that if Poole did

not identify himself he would be detained for obstructing justice. When

Poole again insisted that he was not being detained, that he was free to

leave, and that he was not going to provide any identifying information,

Cripe informed Poole that Cripe was detaining Poole for obstructing

justice, and ordered Poole to turn around and put his hands behind his

back. Doc. 17-2, Ex. B at 91-97.

On this record, the state court reasonably concluded that Poole

failed to meet his burden under Strickland. “To obtain relief where an

ineffective assistance claim is based on trial counsel’s failure to file a

timely motion to suppress, a petitioner must prove (1) that counsel’s

representation fell below an objective standard of reasonableness, (2)

that the Fourth Amendment claim is meritorious, and (3) that there is a

reasonable probability that the verdict would have been different absent

the excludable evidence.” Zakrzewski v. McDonough, 455 F.3d 1254, 1260

(11th Cir. 2006) (citing Kimmelman v. Morrison, 477 U.S. 365, 375

(1986)).

Page 23 of 44

The constitutional validity of an arrest depends on “whether, at the

moment the arrest was made, the officers had probable cause to make

it—whether at that moment the facts and circumstances within their

knowledge and of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that the petitioner

had committed or was committing an offense.” Beck v. State of Ohio, 379

U.S. 89, 91 (1964); see also District of Columbia v. Wesby, 583 U.S. 48, 56-

57 (2018)). A reviewing court must consider the “totality of the

circumstances” the officer faced; that is, “the whole picture.” Wesby, 583

U.S. at 60.

Probable cause “requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.” Illinois v. Gates,

462 U.S. 213, 243-44, n. 13 (1983). “Probable cause is not a high bar.”

Wesby, 583 U.S. at 57.

The state court reasonably concluded that Poole failed to show that

counsel had a meritorious—or even an arguably meritorious—basis to

file a motion to suppress. Prior to trial, counsel informed the trial court

that Poole had inquired about filing a motion to suppress but counsel did

Page 24 of 44

not believe there was any valid legal basis for one. See Doc. 17-9, Ex. I at

124.

As discussed above regarding Ground One, counsel had no basis to

challenge the legality of Cripe’s traffic stop. Cripe had a reasonable

suspicion that Poole was driving with an expired registration tag. See

Fla. Stat. § 320.02.

Counsel also had no basis to challenge the legality of Cripe

requiring Poole to identify himself. Cripe’s action was reasonably related

to his traffic investigation and was permitted by the Fourth Amendment

and Florida law. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968); Fla. Stat. §

901.151(2).6

6 Section 901.151(2), the Florida Stop and Frisk Law, states in relevant

part:

Whenever any law enforcement officer of this state encounters

any person under circumstances which reasonably indicate

that such person has committed, is committing, or is about to

commit a violation of the criminal laws of this state or the

criminal ordinances of any municipality or county, the officer

may temporarily detain such person for the purpose of

ascertaining the identity of the person temporarily detained

and the circumstances surrounding the person’s presence

abroad which led the officer to believe that the person had

committed, was committing, or was about to commit a

criminal offense.

Page 25 of 44

Counsel also had no basis to challenge the legality of Cripe’s

decision to handcuff and arrest Poole. There was probable cause to arrest

Poole because a reasonable officer could have concluded that Poole

committed the offense of obstructing Cripe in the lawful execution of his

duty to investigate the traffic violation. See Brinegar v. United States,

338 U.S. 160, 175-76 (1949) (citations omitted); Fla. Stat. § 843.02.7

Because Poole’s proposed motion to suppress “would have been

futile,” counsel’s decision not to file it was reasonable, and Poole “could

not possibly have suffered Strickland prejudice.” Green, 882 F.3d at 987.

The state postconviction court did not unreasonably apply, nor reach a

decision contrary to, Strickland, in rejecting Ground Two.

Ground Three “Trial Counsel Rendered Ineffective

Assistance Of Counsel When Counsel Failed

To Fully Investigate The 2000 Red Ford

Ranger Truck With The Tailgate Down That

Night.” Doc. 10 at 15.

Fla. Stat. § 901.151(2).

7 Section 843.02 states: “Whoever shall resist, obstruct, or oppose any

officer . . . in the lawful execution of any legal duty . . . shall be guilty of

a misdemeanor of the first degree.” Fla. Stat. § 843.02.

Page 26 of 44

Poole claims that counsel was ineffective for failing to “fully

investigate” Cripe’s ability to see the expired tag. Doc. 10 at 15.

A. The State Court’s Decision

Poole presented this claim to the state courts as “Claim Three” of

his amended Rule 3.850 motion. Doc. 17-9, Ex. I at 64-66. There, he

alleged that counsel failed to “investigate the truck and charges that lead

to the Defendant’s detention and illegal arrest.” Id. at 65. Poole noted

that the property sheet at the Jail reflected his name and did not indicate

that he had a driver’s license or keys on his person when he was arrested.

Id.

The state circuit court identified Strickland as the controlling legal

standard. Doc. 17-9, Ex. I at 82-83. The court denied relief for these

reasons:

Defendant claims counsel was ineffective for failing to

investigate the truck with the tailgate down, and counsel

should have moved to suppress the illegal traffic stop and all

evidence[,] on the ground that the tag could not be seen from

a car length away. This part of his claim is without merit, as

discussed as to Claim One above.

Defendant further alleges counsel knew Defendant did

not own the truck and did not have keys to the truck, as

reflected in counsel’s questioning of Cripe at trial on page 109

of the trial transcript. Defendant alleges his property report

Page 27 of 44

refutes the officer’s allegation that Defendant refused to

provide any information. He asserts it was impossible to

comply with the officer’s order because [he] did not have

identification or a driver’s license to provide to him.

Cripe testified he observed the truck in transit and

parking, and he made contact with Defendant as Defendant

was exiting the driver’s door of the truck. (Exhibit D, pp. 91-

93.) On cross examination, Cripe testified he never located the

keys to the truck; Defendant told him his ID was in the

exterior bed of the truck, not in the interior cab. (Exhibit D,

pp. 109-110.)

Section 320.02, Florida Statutes, requires a person in

charge of a motor vehicle driven on the roads of this state to

register the vehicle. Defendant does not allege he was not

operating the truck. Otherwise, there was evidence he was in

charge of the truck as it was being driven. Therefore, he was

required to produce proof of registration. Also, Defendant did

not tell Cripe he did not have identification. Nor did he

provide his name to Cripe. Instead, Cripe overheard

Defendant provide his name to EMS personnel called on the

scene after Defendant was tased. (Exhibit D, p. 95.) There was

no reasonable probability a motion to suppress would have

been granted or of a different outcome had trial counsel

argued Defendant did not own the truck or have keys to it or

have identification or a driver’s license.

Doc. 17-9, Ex. I at 87. The First DCA affirmed without explanation. Doc.

17-12, Ex. L.

B. Poole Is Not Entitled to Habeas Relief

The First DCA’s summary affirmance is an “adjudication on the

merits” of Poole’s claim and, therefore, is reviewed under § 2254(d)’s

Page 28 of 44

deferential standard. See Richter, 562 U.S. at 99. Because the First

DCA’s order is unexplained, this court presumes that the First DCA

rejected Poole’s claim for the reasons provided by the state circuit court.

Wilson, 584 U.S. at 125.

Because the state court identified and applied the Strickland

standard, Poole cannot obtain habeas relief unless he shows that the

First DCA’s decision involved an unreasonable application of the

Strickland standard, or that it was based on an unreasonable

determination of the facts in light of the evidence presented in the state-

court proceeding. Poole fails to make either showing.

This court defers to the state court’s factual findings because they

are amply supported by the record. Again, Poole has not rebutted any

factual determination with clear and convincing evidence.

The state postconviction court’s application of Strickland was

reasonable, because defense counsel questioned Cripe on cross-

examination about all of the points Poole raises: Cripe’s ability to see the

tag, whether the tailgate was down, whether Cripe found an

identification card, and whether Cripe found keys to the truck. Doc. 17-

2, Ex. B at 106-19. Counsel’s questions reflect that counsel investigated

Page 29 of 44

all of these points. The property sheet from the jail (as described by Poole)

was not inconsistent with—and would not have helped counsel

impeach—any of Cripe’s testimony on these points.

Because Poole failed to show that counsel performed deficiently, or

that counsel’s investigation and failure to file a motion to suppress

prejudiced Poole, the state court’s rejection of Poole’s claim was a

reasonable application of Strickland. Poole is not entitled to habeas relief

on Ground Three.

Ground Four “Trial Counsel Rendered Ineffective

Assistance Of Counsel By Failing To

Investigate The Crime Scene Area For

Possible Surveillance Cameras From The

Businesses Where Video Footage From Such

Cameras Would Have Corroborated

Defendant’s Counsel Failures In This

Respect Violated Defendant’s Fourth, Fifth,

Sixth And Fourteenth Amendment Rights

Under The U.S. Constitution, And Articles 1,

9, 12, And 16 Of The Florida Constitution.”

Doc. 10 at 18.

Poole claims that counsel was ineffective for failing to investigate

the crime scene for “possible surveillance video cameras from any

businesses in the area.” Doc. 10 at 18. Poole does not explain how video

footage of the incident could have weakened the evidence against him or

Page 30 of 44

otherwise aided his defense. Instead, he asserts generally that had

counsel investigated more thoroughly, he “would have discovered the

existence of those cameras.” Id. at 18.

A. The State Court’s Decision

Poole presented this claim to the state courts as “Claim Four” of his

amended Rule 3.850 motion. Doc. 17-9, Ex. I at 67-70. There, he provided

no additional explanation of how video footage of his arrest would have

helped his defense.

The state circuit court identified Strickland as the controlling legal

standard. Doc. 17-9, Ex. I at 82-83. The court denied relief for these

reasons:

Defendant claims counsel was ineffective for failing to

investigate the crime scene for possible surveillance cameras

from surrounding businesses to corroborate Defendant’s

theory of defense. He alleges counsel questioned Cripe

concerning surveillance cameras in the area, as shown on

page 112 of the trial transcript. Defendant asserts had counsel

not relied on the officer’s theory and had conducted his own

investigation, he would have discovered the existence of those

cameras, which would have corroborated Defendant’s sole

theory of defense.

On cross examination, counsel asked Cripe if he had

requested any video from any of the businesses in the area,

which he had not. (Exhibit D, pp. 112-113.) In closing, counsel

argued there was no video from any of the establishments

Page 31 of 44

along the boardwalk, and Cripe made no attempt to get any,

which was a lack of evidence. (Exhibit D, p. 173.)

Defendant is speculating that any of the surrounding

businesses had video cameras and were recording that area of

the parking lot where the incident occurred. Because his

defense hinges on his allegations that Cripe could not have

seen the sticker on the tag from where he was standing, as

alleged in other grounds, Defendant is further speculating

that any such video would also show the view of the tag from

Cripe’s perspective. Therefore, this claim is insufficient to

warrant an evidentiary hearing.

Doc. 17-9, Ex. I at 88. The First DCA affirmed without explanation. Doc.

17-12, Ex. L.

B. Poole Is Not Entitled to Habeas Relief

The First DCA’s summary affirmance is an “adjudication on the

merits” of Poole’s claim and, therefore, is reviewed under § 2254(d)’s

deferential standard. See Richter, 562 U.S. at 99. Because the First

DCA’s order is unexplained, this court presumes that the First DCA

rejected Poole’s claim for the reasons provided by the state circuit court.

Wilson, 584 U.S. at 125.

Again, the state court identified and applied the Strickland

standard. Thus, Poole cannot obtain habeas relief unless he shows that

the First DCA’s decision involved an unreasonable application of the

Page 32 of 44

Strickland standard, or that it was based on an unreasonable

determination of the facts in light of the evidence presented in the state-

court proceeding. Poole fails to make either showing.

Poole’s sole argument is that surveillance cameras from nearby

businesses might have captured his arrest. This speculative and

conclusory argument falls far short of establishing deficient performance

and prejudice under Strickland. See Richter, 562 U.S. at 105; Aldrich v.

Wainwright, 777 F.2d 630, 636 (11th Cir. 1985).

The First DCA’s rejection of Poole’s claim—a claim based on pure

speculation—was a reasonable application of the Strickland standard

and was based on a reasonable determination of the facts in light of the

record before the state court. Poole, therefore, is not entitled to habeas

relief on Ground Four.

Ground Five “Trial Counsel Was Ineffective Assistance

For Failure To Subpoena The Phone

Company For Defendant Phone Records To

Identify The Phone Numbers Of The Two

Witnesses That Would Have Testified To The

Facts That The Red Ford Ranger Truck Was

In Fact Parked Hours Before The Officers

Arrived At The Scene. Trial Counsel Failures

Violated Defendant’s Fourth, Fifth, Sixth

And Fourteenth Amendment Rights Under

Page 33 of 44

The U.S. Constitution, And Articles 1 Section

9 Of The Florida Constitution.” Doc. 10 at 21.

In this claim, Poole faults trial counsel for failing to obtain Poole’s

phone records to identify two potential witnesses. According to Poole,

these witnesses “would have testified to the fact that the truck was

parked in the parking lot at the time hours before the officer arrived at

scene.” Doc. 10 at 22. Poole explains:

[T]he two witnesses . . . were there inside the bar that night,

whom came out side of the bar to the parked truck in the

parking lot, at the time Defendant call the two witnesses

phone[.] [T]he two witnesses would have testified to the fact

that the truck was parked in the parking space in the lot. . . .

The phone records would have proved Defendant’s claim as to

the time line from Defendant’s phone records call made to the

two witnesses phones whom were inside the bar that day and

night. They would have testified to the fact that the truck was

parked in the parking lot at the time hours before the officer

arrived at scene.

Id. at 22. Oddly, Poole does not explain why he did not look up the phone

numbers himself, on his telephone, during the two weeks he was at

liberty. See Doc. 17-1, Ex. A at 4-5 (indicating Poole’s release on bond on

09/21/2018 and revocation of bond on 10/05/2018). Poole also does not

explain why he did provide the witnesses’ names and telephone numbers

to defense counsel.

Page 34 of 44

A. The State Court’s Decision

Poole presented this claim to the state courts as “Claim Five” of his

amended Rule 3.850 motion. Doc. 17-9, Ex. I at 71-73. The state circuit

court identified Strickland as the controlling legal standard. Doc. 17-9,

Ex. I at 82-83. The court denied relief for these reasons:

Defendant claims counsel was ineffective for failing to

subpoena Defendant’s phone records to identify the phone

numbers of two witnesses that would have testified the truck

was parked hours before the officers arrived at the scene. He

alleges the phone records would have proven his claim as to

the timeline from his calls to the witnesses.

This claim is insufficiently pled. Defendant fails to

allege the names of the witnesses that would appear on his

phone calls and that they were specifically available to testify

at trial. See Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004);

Sage v. State, 905 So. 2d 1039, 1042 (Fla. 2d DCA 2005).

Moreover, testimony that Defendant was parked for hours

would not refute evidence that Cripe encountered Defendant

exiting the truck and that he observed the expired tag.

Additionally, at the Nelson hearing of January 14, 2019,

Defendant told the trial court he was at the scene 15 to 20

minutes before the police arrived. (Exhibit F, p. 4.) The

inconsistency between Defendant’s statement to the trial

court as to when he arrived in the parking lot and his

allegations in his motion contributes to the insufficiency of his

motion.

Finally, Defendant fails to sufficiently allege how phone

records would prove his claim. The Court notes Defendant

attempted to explain to the trial court at the Nelson hearing

Page 35 of 44

that phone records would prove he was in the parking lot

because of the time frame. (Exhibit F, p. 4.) Trial counsel

advised the trial court that Defendant had told him there

were no other witnesses and that this was the first time he

had heard of phone evidence. (Exhibit F, pp. 4-5.) The trial

court found there was no reasonable cause to find ineffective

assistance of counsel. (Exhibit F, p. 5.)

Doc. 17-9, Ex. I at 88-89. The First DCA affirmed without explanation.

Doc. 17-12, Ex. L.

B. Poole Is Not Entitled to Habeas Relief

The First DCA’s summary affirmance is an “adjudication on the

merits” of Poole’s claim and, therefore, is reviewed under § 2254(d)’s

deferential standard. See Richter, 562 U.S. at 99. This court presumes

that the First DCA rejected Poole’s claim for the reasons provided by the

state circuit court. Wilson, 584 U.S. at 125; see also Pope v. Sec’y for Dep’t

of Corr., 680 F.3d 1271, 1285-86 (11th Cir. 2012) (state court’s denial of

claim as insufficiently pled is a rejection of the claim on the merits).

The state court identified and applied the Strickland standard.

Thus, Poole cannot obtain habeas relief unless he shows that the First

DCA’s decision involved an unreasonable application of the Strickland

standard, or that it was based on an unreasonable determination of the

facts in light of the evidence presented in the state-court proceeding.

Page 36 of 44

On this record, a fairminded jurist could agree with the state court’s

conclusion that Poole’s allegations failed to satisfy the Strickland

standard. Poole’s allegations made no showing, much less a sufficient

one, that there was a reasonable probability the result of his trial would

have been different had counsel subpoenaed Poole’s phone records.

A petitioner’s burden under Strickland “is particularly heavy

where the petitioner alleges ineffective assistance in failing to call a

witness because often allegations of what a witness would have testified

to are largely speculative.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d

1357, 1365 (11th Cir. 2021) (quoting Sullivan v. DeLoach, 459 F.3d 1097,

1109 (11th Cir. 2006)). Thus, the Eleventh Circuit has held that “a

petitioner’s own assertions about whether and how a witness would have

testified are usually not enough to establish prejudice from the failure to

interview or call that witness.” McKiver, 991 F.3d at 1365.

Poole’s confusing and unsupported allegations of potential

witnesses—whom he obviously knew but declined to name or contact

when he was out on bail—was insufficient to establish a Strickland

violation. Poole's speculation and conclusory argument are precisely the

type of uncalled-witness claims that courts uniformly reject. See McKiver,

Page 37 of 44

991 F.3d at 1365-67; see also Johnson, 256 F.3d at 1187; Wilson, 769 F.

App’x at 827; Aldrich, 777 F.2d at 636.

The state court's rejection of Poole's claim was neither contrary to,

nor an unreasonable application of, the Strickland standard. Poole,

therefore, is not entitled to habeas relief on Ground Five.

Ground Six “Trial Counsel Was Ineffective For Failing To

Impeach The State Two Witnesses Falsely

Making Inconsistent Statements During

Trial And In Theirs Record Deposition

Transcripts As Well In The Narrate Report

And At Trial.” Doc. 10 at 24.

Poole alleges that the arrest report indicated that Deputy Oliveras

took 11 photographs at the crime scene. Poole claims that his trial

counsel was ineffective for failing to obtain the photographs. Poole does

not explain how the photographs would have aided his defense or

changed the result of his trial. Doc. 10 at 24-25. Poole also asserts that

trial counsel was ineffective because he failed to impeach Deputy Cripe’s

trial testimony—that he “made contact with Mr. Poole, he was exiting

the driver’s door of the vehicle”—with “inconsistent prior statements”

from Cripe’s deposition. Id. at 25. Poole does not describe Cripe’s

statement at his deposition or attach an excerpt of the transcript.

Page 38 of 44

A. The State Court’s Decision

Poole presented this claim to the state courts as “Claim Six” of his

amended Rule 3.850 motion. Doc. 17-9, Ex. I at 74-77. The state circuit

court identified Strickland as the controlling legal standard, Doc. 17-9,

Ex. I at 82-83, and denied relief for these reasons:

Defendant claims counsel was ineffective for failing to

impeach the trial testimony of Cripe and Olivera[s] with prior

inconsistent statements from their deposition testimony. This

claim is insufficiently pled in that Defendant does not

adequately identify what prior statements would have been

inconsistent with specific trial testimony. Also, Defendant

asserts the prior inconsistent statements would have been

admissible since they were cumulative to other facts that trial

counsel elicited on cross examination. See Pierce v. State, 137

So. 3d 578, 582 (Fla. 2d DCA 2014) (finding prior inconsistent

statements were admissible where they were not cumulative

of testimony elicited on cross examination).

Defendant also asserts counsel should have impeached

Cripe with photos Defendant provided to counsel, which

would show the validation sticker could not be observed from

any distance. This part of his claim is without merit, as

addressed as to Claim One above.

Defendant alleges there were 11 photographs taken at

the scene by Oliveras. He asserts counsel was ineffective for

failing to investigate the issue. This part of his claim is

insufficiently pled.

Doc. 17-9, Ex. I at 89-90. The First DCA affirmed without explanation.

Doc. 17-12, Ex. L.

Page 39 of 44

B. Poole Is Not Entitled to Habeas Relief

The First DCA’s summary affirmance is an “adjudication on the

merits” of Poole’s claim and, therefore, is reviewed under § 2254(d)’s

deferential standard. See Richter, 562 U.S. at 99. Because the First

DCA’s order is unexplained, this court presumes that the First DCA

rejected Poole’s claim for the reasons provided by the state circuit court.

Wilson, 584 U.S. at 125.

The state court identified and applied the Strickland standard.

Thus, Poole cannot obtain habeas relief unless he shows that the First

DCA’s decision involved an unreasonable application of the Strickland

standard, or that it was based on an unreasonable determination of the

facts in light of the evidence presented in the state-court proceeding.

Poole fails to make either showing.

Poole wholly failed to describe or quote any statement made by

Cripe or Oliveras in his deposition that was inconsistent with his trial

testimony. Poole cites the trial transcript where Cripe testified: “When I

made contact with Mr. Poole, he was exiting the driver’s door of the

vehicle.” Doc. 10 at 25 (citing Trial Tr. at 93, lines 8-12). Poole does not

detail Cripe’s deposition testimony on that point. At a pretrial Nelson

Page 40 of 44

hearing to address Poole’s complaints about trial counsel, Poole’s counsel

described Cripe’s deposition testimony: “[T]he evidence from the

depositions will show that an officer saw Mr. Poole park his vehicle. As

Mr. Poole was getting out of the vehicle, the officer made contact with

him.” Doc. 17-9, Ex. I at 124. That reflects consistent statements.

As to Oliveras, the trial transcript establishes that defense counsel

did, in fact, attempt to impeach Oliveras with Oliveras’s statements in

his police report. Doc. 17-2, Ex. B at 131-34. On this record, the state

court reasonably determined that Poole failed to establish deficient

performance with regard to the use of Cripe’s and Oliveras’s deposition

testimony during cross-examination.

Poole also failed to show a reasonable probability of a different trial

outcome had counsel questioned Cripe or Oliveras about any particular

statement from either deputy’s deposition. A fairminded jurist, therefore,

could agree with the state court’s conclusion that Poole failed to satisfy

the prejudice prong of the Strickland standard.

As to the crime-scene photographs, Poole fails to describe any

photograph, much less explain how it would have weakened the evidence

of his guilt or supported a viable defense. Thus, the state court reasonably

Page 41 of 44

concluded that Poole’s vague and conclusory allegations fell far short, on

their face, of establishing Strickland’s performance and prejudice prongs.

Freeman v. Comm’r, Ala. Dep’t of Corr., 46 F. 4th 1193, 1221-22 (11th Cir.

2022); Boyd, 697 F.3d at 1332-33.

The state court’s rejection of Poole's claim was neither contrary to,

nor an unreasonable application of, the Strickland standard. Poole,

therefore, is not entitled to habeas relief on Ground Six.

IV. A CERTIFICATE OF APPEALABILITY IS NOT WARRANTED

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).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must

still be filed, even if the court issues a certificate of appealability. See 28

U.S.C. § 2254 Rule 11(b).

“[Section] 2253(c) permits the issuance of a COA only where a

petitioner has made a ‘substantial showing of the denial of a

constitutional right.’” Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. §

Page 42 of 44

2253(c)). “At the COA stage, the only question is whether the applicant

has shown that ‘jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed

further.’” Buck v. Davis, 580 U.S. 100, 115 (2017) (quoting Miller-El, 537

U.S. at 327). Here, Petitioner has not made the requisite demonstration.

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.” 28 U.S.C. § 2254 Rule 11(a). If there

is an objection to this recommendation, the relevant party shall file such

an objection with the District Court.

V. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that:

1. The amended petition for writ of habeas corpus, Doc. 10,

challenging Petitioner’s judgment of conviction in State of Florida v.

Page 43 of 44

Curtis Wedo Poole, Escambia County Circuit Court Case No. 2018-CF-

4775, be DENIED.

2. The District Court DENY a certificate of appealability.

3. The clerk of court close this case file.

At Panama City, Florida, this 5th day of September, 2024.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the

undersigned to make recommendations regarding

dispositive matters. See 28 U.S.C. § 636(b)(1)(B), (C);

Fed. R. Civ. P. 72(b). Objections to these proposed

findings and recommendations must be filed within

fourteen days of the date of the report and

recommendation. Any different deadline that may

appear on the electronic docket is for the court’s

internal use only. A party must serve a copy of any

objections on all other parties. A party who fails to

object to this report and recommendation waives the

right to challenge on appeal the district court’s order

based on unobjected-to factual and legal conclusions.

See 11th Cir. R. 3-1; 28 U.S.C. § 636.

Page 44 of 44