ROBERTSON v. AGBAOSI

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
DAVID BRYAN ROBERTSON, 	:
:
Petitioner, 	:
:
v. 	: 	Case No. 1:25-cv-50-MTT-CHW
:
Warden MARK AGBOASI, 	: 	Proceedings Under 28 U.S.C. § 2254
: 	Before the U.S. Magistrate Judge
Respondent. 	:
:
REPORT AND RECOMMENDATION
Petitioner David Bryan Robertson commenced this 28 U.S.C. § 2254 federal habeas action
to challenge his November 2017 conviction in the Superior Court of Decatur County for terroristic
threats and aggravated assault. Petitioner raised one claim of ineffective assistance of appellate
counsel. As discussed below, Petitioner has failed to show that the state court’s resolution of this
claim was based on an unreasonably determination of the facts or that it was contrary to, or
involved 	an 	unreasonable 	application 	of, 	clearly 	established 	law. 	28 	U.S.C. 	§ 2254(d).
Accordingly, it is RECOMMENDED that Petitioner’s Section 2254 petitions (Docs. 1, 6, 8) be
DENIED. Further, it is RECOMMENDED that the Court deny a certificate of appealability in
its final order.
BACKGROUND
I. 	Procedural Background
In August 2016, Petitioner was indicted on one count terroristic threats (Count 1), three
counts aggravated assault (Counts 2–4), one count obstruction of an officer (Count 5), and one
count attempted removal of weapon from public official (Count 6). (Doc. 10-10, p. 111–13). In
November 2017, after a jury trial in Decatur County Superior Court, Petitioner was found guilty
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of Counts 1–4. (Doc. 10-10, p. 49). Petitioner received a sentence of twenty years for Count 2, a
consecutive sentence of twenty years on Count 3, a sentence of twenty years on Count 3 to serve
concurrently with Count 2, and a sentence of five years on Count 1 to serve concurrently with
Count 3, for a total sentence of forty years. (Id., pp. 57–58).
Following the denial of his motion for new trial and second motion for continuance on the
motion for new trial, Petitioner appealed to the Court of Appeals of Georgia. (Id., p. 176).
Petitioner raised only one enumeration of error: “The trial court abused its discretion when it
denied Robertson’s Second Motion for Continuance.” (Id., p. 182). The Georgia Court of Appeals
confirmed Petitioner’s conviction. Robertson v. State, 354 Ga. App. 706, 841 S.E.2d 421 (2020).
Petitioner did not seek further review with the Supreme Court of Georgia. (Doc. 1, p. 3).
Petitioner then challenged his conviction by filing a state habeas corpus petition in the
Superior Court of Dooly County on December 18, 2020. (Doc. 10-2). Petitioner amended and
supplemented his petition to raise a total of twelve grounds, including Ground Ten in which he
argued that he received ineffective assistance of counsel on appeal. (Docs. 10-3; 10-4, 10-5; 10-6).
Following evidentiary hearings on May 11 and May 17, 2021, (Docs. 10-9; 10-10), the Dooly
County Superior Court denied the habeas petition on January 5, 2024. (Doc. 10-8). The Georgia
Supreme Court then denied Petitioner’s application for a certificate of probable cause on January
14, 2025. (Docs. 10-12; 10-13). Petitioner filed this timely petition under 28 U.S.C. § 2254 raising
one ground for relief. (Docs. 1, 4, 6). Responded filed his answer and response, along with
numerous exhibits in support thereof, on July 11, 2025. (Docs. 8, 10).
II. 	Factual Background
As summarized by the Georgia Court of Appeals, the trial of Petitioner and subsequent
proceedings transpired as follows:
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Thus viewed in favor of the jury's verdict, the record shows that on March 31, 2016,
Robertson took a large number of Xanax pills, which he was prescribed for his post-
traumatic stress disorder (PTSD), in front of his wife. Due to Robertson's irrational
behavior during this period, the wife had removed all firearms from the couple's
Bainbridge house. On the evening of the following day, after the wife had gone to
bed, Robertson entered their bedroom and spilled gasoline on her. When the wife
jumped out of bed, Robertson, who was “staggering” and “unsure on his feet,”
poured more gasoline “all over the mattress.” When the wife went into the
bathroom to wash off, Robertson followed her and pulled her by the hair, screaming
“Where are the guns?” The wife pushed him into the bathtub, left the house, and
drove to a friend's house in Alabama.
The next day, the wife returned to the house with a group of police officers,
including a friend of hers. The front door was blocked from the inside. Robertson
eventually came out of the door with a crossbow pointed at his wife's head. The
friend told Robertson to put the crossbow down, but he fired the bow as he turned
to confront the officer, with the released arrow traveling between the officer and
the wife. While Robertson was being handcuffed, he told one of the officers to give
him a gun and said, “I'll kill you motherf***ers.” When the wife told Robertson,
who was now in custody, that he had tried to kill her the night before, Robertson
replied, “You[‘re] damn right I did.”
Robertson was charged with making a terroristic threat, three counts of aggravated
assault (for pouring the gasoline on his wife and for pointing the crossbow at her
and the officer), obstruction, and attempting to remove a weapon from a public
official. After pretrial proceedings, including an assessment of Robertson's sanity,
a jury found him guilty of the terroristic threat and all three aggravated assault
charges. Trial counsel timely filed a motion for new trial raising the general
grounds. Appellate counsel Betsey L. Tate was appointed on June 21, 2018, and
filed a notice of appearance on July 30, 2018.
On February 11, 2019, the trial court entered an order setting the hearing on
Robertson's motion for new trial for March 5, 2019. Although she had been counsel
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of record for more than six months, appellate counsel moved for a continuance due
to her caseload of 37 active cases. On February 27, the trial court denied the motion
and again noted that the case would be called on March 5. Immediately before that
hearing, appellate counsel filed a motion for reconsideration. At the March 5
hearing, and after the trial court noted its responsibility to “move forward,”
appellate counsel said that she was not prepared, that she had not read the transcript,
and that she “[didn't] know anything about the case.” The trial court then, after
consultation with appellate counsel, continued the hearing until July 9, 2019. The
trial court also arranged for appellate counsel to speak to Robertson.
On June 24, 2019, however, appellate counsel filed a motion for a second
continuance, again on the ground that she was not adequately prepared –
specifically, that “she had not had sufficient time” to identify or hire a private
investigator or a medical expert. In a written order filed on June 26, the trial court
noted that the transcripts of Robertson's trial were “already filed at the time of her
assignment,” that appellate counsel had been “assigned this case over a year ago,”
and that the court had “already granted one continuance” based on her “being
unprepared.” The trial then denied the motion and noted that the hearing on the
motion for new trial would proceed as scheduled on July 9, 2019.
On that day, appellate counsel appeared and asked for “additional time” to obtain
an evaluation of her client for PTSD, given that she “ha[d] not had the opportunity
to arrange that.” Appellate counsel also asked for a sentence modification. After
the trial court denied the motion for new trial, appellate counsel noted that she
“ha[d] not filed an amended motion for new trial” and that the original motion was
“on the general grounds.” The trial court agreed with this statement, and the hearing
ended. The trial court later denied Robertson's motion for new trial, finding that the
evidence was “more than sufficient” to sustain his conviction. The trial court also
filed orders denying Robertson's oral motions for modification of sentence and
psychological evaluation, noting as to the latter that “a pretrial psychological
examination was had on [Robertson].”
Robertson, 354 Ga. App. at 706–08, 841 S.E.2d at 422–24.
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III. 	State Court Habeas Hearing
The state habeas court held evidentiary hearings on May 11 and May 17, 2021, at which
Petitioner’s appellate counsel testified. (Doc. 10-9; 10-10). The state habeas court found that
Petitioner satisfied the first Strickland prong but that he had failed to demonstrate prejudice. (Doc.
10-8, pp. 10–13).
STANDARDS OF REVIEW
Deference to State Court Rulings
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254,
governs a district court’s jurisdiction over federal habeas corpus petitions brought by state
prisoners. 28 U.S.C. § 2254(d). When a state court has previously denied relief, a federal court
may grant relief under Section 2254(d) only where “the relevant state-court decision was either (1)
contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United
States, or (2) involved an unreasonable application of . . . clearly established Federal law as
determined by the Supreme Court of the United States.” Williams v. Taylor, 529 U.S. 362, 404–
05 (2000) (cleaned up). “A state court decision is ‘contrary to’ clearly established federal law if
either (1) the state court applied a rule that contradicts the governing law set forth by Supreme
Court case law, or (2) when faced with materially indistinguishable facts, the state court arrived at
a result different from that reached in a Supreme Court case.” Putnam v. Head, 268 F.3d 1223,
1241 (11th Cir. 2001) (citation omitted). Furthermore, “a federal habeas court making the
‘unreasonable application’ inquiry should ask whether the state court’s application of clearly
established federal law was objectively unreasonable.” Williams, 529 U.S. at 409. “[A] federal
habeas court may not issue the writ simply because that court concludes in its independent
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judgment that the relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Petitioner must establish by a
preponderance of the evidence that (1) his attorney’s performance was deficient, and (2) he was
prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Chandler v. United States, 218 F.3d 1305, 1312–13 (11th Cir. 2000). Petitioner must prove that
his counsel's performance “was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy” to establish deficient performance. Kimmelman v.
Morrison, 477 U.S. 365, 381, 384 (1986) (citing Strickland, 466 U.S. 688–89). He “must show
that counsel’s representation fell below an objective standard of reasonableness. Strickland, 466
U.S. at 688. A reviewing court “must apply a ‘strong presumption’ that counsel’s representation
was within the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689); see Chateloin v. Singletary, 89 F.3d
749, 752 (11th Cir. 1996).
As for prejudice, Petitioner must show there is a reasonable probability that, but for
counsel's inadequate representation, “the result of the proceeding would have been different.”
Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 694). If
Petitioner fails to establish that he was prejudiced by the alleged ineffective assistance, a court
need not address the performance prong of the Strickland test. See Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000). “Claims of ineffective assistance of appellate counsel are governed
by the same standards applied to trial counsel under Strickland.” Philmore v. McNeil, 575 F.3d
1251, 1264 (11th Cir. 2009) (citation omitted).
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When federal courts review a claim of ineffective assistance of counsel previously
entertained by state courts, “AEDPA review is doubly deferential,” as “federal courts are to afford
both the state court and the defense attorney the benefit of the doubt.” Woods v. Etherton, 578 U.S.
113, 117 (2016) (cleaned up). In these situations, a federal habeas petitioner “must also show that
in rejecting his ineffective assistance of counsel claim, the state court ‘applied Strickland to the
facts of his case in an objectively unreasonable manner.’” Rutherford v. Crosby, 385 F.3d 1300,
1309 (11th Cir. 2004) (quoting Bell v. Cone, 535 U.S. 685, 699 (2002)).
ANALYSIS
Petitioner’s sole ground has been exhausted by virtue of his state habeas petition. As
discussed below, Petitioner has not demonstrated that the denial of his habeas petition was based
upon an unreasonable determination of the facts or that it was contrary to, or involved an
unreasonable application of, clearly established law. 28 U.S.C. § 2254(d). Accordingly, Petitioner
is not entitled to relief on the merits. It is recommended that the Court deny Petitioner’s Section
2254 petitions.
Petitioner’s federal habeas action alleges one ground of ineffective assistance of appellate
counsel. This ground was raised in his state habeas petition as Ground Ten. See (Docs. 10-3, p. 90;
10-4, p. 5). Petitioner argued to the state habeas court that Ms. Tate, his post-sentencing and
appellate counsel, was not prepared to present the motion for new trial and failed to argue any
ground and that she improperly filed a “no-merit brief” on direct appeal. (Doc. 10-3, pp. 91–92,
99).
In reviewing this claim, the state habeas court identified and then correctly applied the
appropriate legal standard, as set forth in Strickland. (Doc. 10-8, pp. 10–13). As the state habeas
court acknowledged, Strickland requires a petitioner to show first that his counsel’s performance
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was deficient, then that counsel’s deficient performance prejudiced the defense. (Id.). After
exhaustive briefing and two evidentiary hearings that included an examination of Ms. Tate, the
state habeas court determined that:
this court is convinced that Ms. Tate rendered ineffective assistance at the hearing
on Petitioner’s Motion for New Trial as well as during Petitioner’s appeal to the
Georgia Court of Appeals. The first prong of the Strickland test is accordingly
satisfied. However . . . Petitioner did not “affirmatively prove prejudice” and
therefore cannot meet the requirements of Strickland’s second prong
(Doc. 10-8, pp. 10–11) (internal citations omitted).
Respondent argues that this decision be given proper deference under 28 U.S.C. § 2254(d). (Doc.
8-1, p. 4). The state habeas court’s decision was neither contrary to nor an unreasonable application
of clearly established law. Therefore, there is no basis for relief on this ground.
As Petitioner concedes, under Strickland, he must satisfy both the deficient performance
prong and the prejudice prong. See (Doc. 10-3). He has not satisfied this burden or overcome the
AEDPA deference. It is clear from the record that Ms. Tate’s performance was deficient. Petitioner
has not shown prejudice, however, because he has not directed the Court to any actions Ms. Tate
should have taken or evidence she should have presented that create a reasonable probability the
outcome of the proceeding would have been different. Petitioner’s assertions before the Court
mirror his assertions to the state habeas court. He asserts numerous times that he was prejudiced
by Ms. Tate’s performance, but he does not explain how he was prejudiced beyond threadbare
statements. Petitioner states to the Court that a potential witness, Ms. Linda Harris, had exculpatory
evidence and tendered an affidavit of what purportedly would have been her testimony. (Docs. 4,
p. 2; Doc. 10-8, p. 12); see (Doc. 10-3, pp. 39–43). The state habeas court noted that none of the
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claims in the affidavit “tend to ‘undermine confidence in the outcome’ of Petitioner’s trial and
subsequent appeal.” (Doc. 10-8, p. 12) (quoting Strickland, 466 U.S. at 694). The state habeas
court, after reviewing the record, concluded that “[a]t best, the Affidavit offered only a
third-person’s superficial impressions of the events that occurred before petitioner’s arrest; at
worst, some of those impressions actually support the charges lodged against petitioner.” (Doc.
10-8, p. 12).
As for any argument that Ms. Tate was ineffective for failing to argue sufficiency of the
evidence (Doc. 4, pp. 5–6), Petitioner was not prejudiced because the Georgia Court of Appeals
considered, sua sponte, whether there was sufficient evidence and determined that there was.
Robertson, 354 Ga. App. at 708. The state habeas court considered each of Petitioner’s grounds
for relief and noted that he did not offer any evidence to support his arguments. (Doc. 10-8, p. 11).
The state habeas court concluded ultimately that “Petitioner failed to provide any evidence that
demonstrated he suffered the necessary prejudice for satisfying the second prong of the Strickland
test such the he is not owed relief, despite Ms. Tate’s deficient performance.” (Id., p. 12).
A narrow exception may exist, and prejudice may be presumed, if a petitioner shows he
was constructively abandoned by counsel. United States v. Chronic, 466 U.S. 648, 659 (1984).
Both before the state habeas court and before this Court, Petitioner has not developed specific
grounds 	for 	showing 	how 	Ms. 	Tate’s 	deficient 	performance 	amounted 	to 	“constructive”
abandonment or otherwise resulted in any change to the outcome of his criminal proceedings. See
(Doc. 4, p. 7). This constructive abandonment occurs “if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing . . . that makes the adversary process itself
presumptively unreliable.” Chronic, 466 U.S. at 659; see Penson v. Ohio, 488 U.S. 75, 88 (1988)
(applying Chronic to the appellate stage). This is an extremely narrow exception. Mercado v. Sec'y,
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Fla. Dep't of Corr., 119 F.4th 1261, 1267–68 (11th Cir. 2024) (“Only twice has the Supreme Court
applied a presumption of prejudice . . . .”), cert. denied sub nom. Mercado v. Dixon, 145 S. Ct.
2868 (2025). Never has the Supreme Court applied the presumption of prejudice to counsel’s
failure to present grounds on a motion for new trial or filing a “no-merit brief.” Id. at 1267–70. As
such, Chronic’s presumption of prejudice is inapplicable here.
Petitioner has failed to demonstrate that the state habeas court applied Strickland in an
objectively unreasonable manner. Nor is there any indication that the state court did so. The record
indicates that, while Ms. Tate’s performance was certainly lackluster, Petitioner did not suffer
prejudice that would warrant relief. Therefore, the state habeas court’s decision warrants
deference. See Metrish v. Lancaster, 569 U.S. 351, 357 (2012) (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)) (“To obtain habeas corpus relief from a federal court, a state prisoner
must show that the challenged state-court ruling rested on ‘an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’”).
CONCLUSION
Because Petitioner is not entitled to relief on the merits of any ground raised, it is
RECOMMENDED that Petitioner’s Section 2254 habeas petition (Docs. 1, 6, 8) be DENIED.
Additionally, pursuant to the requirements of Rule 11 of the Rules Governing Section 2254 Cases,
it does not appear that Petitioner has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore,
it is further RECOMMENDED that the Court deny a certificate of appealability in its final order.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this
Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14)
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DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20)
PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those
portions of the Recommendation to which objection is made. All other portions of the
Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing
to object to a magistrate judge’s findings or recommendations contained in a report and
recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to
challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions
if the party was informed of the time period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.”
SO RECOMMENDED, this 24th day of October, 2025.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge
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