Rosa v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSHUA ROSA,

Petitioner,

v. Case No. 8:17-cv-2474-T-35TGW

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________/

O R D E R

Before the Court is Rosa’s petition for the writ of habeas corpus under 28 U.S.C.

§ 2254 challenging his state court conviction for first-degree murder. After reviewing the

petition and supporting memorandum (Docs. 1 and 2), the amended response and appendix

(Docs. 13 and 15), and the reply (Doc. 16), it is ORDERED that the petition is DENIED.

PROCEDURAL BACKGROUND

A jury found Rosa guilty of first-degree felony murder and the state court sentenced

Rosa to life in prison. (Doc. 15, Ex. 1 at 121, 159) The state appellate court affirmed in a

written opinion and the state supreme court denied discretionary review. Rosa v. State, 97

So. 3d 824 (Fla. 2012); Rosa v. State, 58 So. 3d 900 (Fla. 2d DCA 2011). The post-conviction

court denied relief after an evidentiary hearing (Doc. 15, Ex. 10 at 112–25 and Ex. 13 at

307–13) and the state appellate court affirmed. (Doc. 15, Ex. 17) Rosa’s timely federal

petition followed.

FACTS1

Rosa, a 19 year-old, lived across the street from Stephen Tomlinson, a 13 year-old.

On December 8, 2005 in the afternoon, Rosa’s mother saw Rosa and Tomlinson outside

together. Another witness saw Tomlinson ride his bicycle in the direction of a nearby park

and Rosa follow about five minutes later with a big flashlight.

Shortly after, Kevin Whitely and Fabian Flis saw Rosa walk out of a wooded area at

the park shining the flashlight. Rosa told Whitely that “a kid back there is possibly dead,

possibly hurt,” and asked Whitely if he had a mobile telephone. Rosa ran across the street

to ask a neighbor for help. Rosa returned to the woods with Whitely. Whitely saw

Tomlinson’s body lying several feet away from his bicycle.

Blood ran from Tomlinson’s nose and mouth and his jeans were pulled down around

his ankles. Whitely tried to pick Tomlinson up but was unable to do so and instead checked

his vital signs. Rosa held the back of Tomlinson’s head while Whitely checked to see if

Tomlinson’s pupils were dilated. When police arrived, Rosa pulled out a pair of white gloves

from his pocket and showed them to Whitely. Rosa had a pair of fingernail clippers in the

same pocket.

Rosa had fresh scratches on his armpit, forearm, and bicep and blood on his hands,

pants, shoes, and white gloves. DNA from these bloodstains matched Tomlinson’s DNA.

DNA from the fingernail clippers matched Rosa’s DNA and Tomlinson’s DNA. DNA from

fingernail clippings from Tomlinson’s left hand also matched Tomlinson’s DNA and a

foreign profile. Police further examined the fingernail clippings with YSTR DNA testing —

a type of testing that relies on male DNA. An analyst could not exclude Rosa or any of his

1 The factual summary is derived from the briefs on direct appeal and trial transcripts.

male relatives as a contributor to the DNA from the fingernail clippings. A medical

examiner observed injuries to Tomlinson’s neck and opined that the cause of his death was

asphyxia due to strangulation. The injuries were consistent with strangulation by hands.

The examiner identified injuries to other parts of Tomlinson’s body inflicted before death.

For the defense, Rosa’s mother and another witness testified that Rosa regularly used

the white gloves at church services. A forensic pathologist testified that Tomlinson’s injuries

were consistent with strangulation by a forearm and indicated that two or more assailants

were involved.

Based on this evidence, the jury found Rosa guilty of felony murder and concluded

that he killed Tomlinson while committing or attempting to commit aggravated child abuse.

(Doc. 15, Ex. 1 at 121)

STANDARDS OF REVIEW

AEDPA

Because Rosa filed his federal petition after the enactment of the Antiterrorism and

Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320,

327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

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.

A decision is “contrary to” clearly established federal law “if the state court arrives

at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law

or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A

decision involves an unreasonable application of clearly established federal law “if the state

court identifies the correct governing legal principle from [the U.S. Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

413. Clearly established federal law refers to the holding of an opinion by the U.S. Supreme

Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 694

(2002). An unreasonable application is “different from an incorrect one.” Id. Even clear

error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017). A federal petitioner

must show that the state court’s ruling was “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility of

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Ineffective Assistance of Counsel

Rosa asserts ineffective assistance of counsel — a difficult claim to sustain. Strickland

v. Washington, 466 U.S. 668, 687 (1984) explains:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court

deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” Strickland, 466 U.S. at 690.

“An error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a

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

proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability

is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694.

Strickland cautions that “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at

690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel

was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Because the

standards under Strickland and AEDPA are both highly deferential, “when the two apply in

tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the double deference due,

it is a ‘rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.’” Nance v.

Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).

The state appellate court affirmed in an unexplained decision the post-conviction

court’s order denying Rosa’s ineffective assistance of counsel claims. (Doc. 15, Ex. 17) A

federal court “‘look[s] through’ the unexplained decision to the last related state-court

decision that does provide a relevant rationale [and] presume[s] that the unexplained

decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

Because the post-conviction court recognized that Strickland governed the claims

(Doc. 15, Ex. 10 at 114–15), Rosa cannot meet the “contrary to” test in Section 2254(d).

Rosa instead must show that the state court either unreasonably applied Strickland or

unreasonably determined a fact.

Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before

a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must

(1) alert the state court to the federal nature of his claim and (2) give the state court one full

opportunity to resolve the federal claim by invoking one complete round of the state’s

established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard

v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review

and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a

petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);

Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on state

procedural grounds, the federal court instead denies the claim as procedurally barred.

Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501

U.S. 722, 735 n.1 (1991)).

A petitioner may excuse a procedural default on federal habeas by (1) showing cause

for the default and actual prejudice from the alleged violation of federal law or (2)

demonstrating a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House

v. Bell, 547 U.S. 518, 536–37 (2006).

DISCUSSION

Ground One

Rosa contends that jurors compared notes during trial. (Doc. 1 at 4) Rosa asserts that

trial counsel was ineffective for not interviewing the jurors, moving to strike jurors, or

moving for a mistrial. (Doc. 1 at 4–5) The post-conviction court denied the claim as follows

(Doc. 15, Ex. 13 at 307–08) (state court record citations omitted):

. . . Defendant alleges ineffective assistance of counsel due to

counsel’s failure to adequately inquire and move for mistrial

following the State’s discovery of two jurors comparing notes

during trial. Specifically, Defendant alleges that had counsel

moved for a mistrial following the discovery, the Court would

have determined that a new trial was required.

The Court notes that the following transpired on the record:

[Prosecutor]: May Mr. Gonzalez and I speak with

you for a moment?

The Court: Yes.

(A bench conference was held, as follows:)

[Prosecutor]: We’re not suggesting you make an

inquiry or suggestion at this time.

My assistant, Ms. Blevins,

observed two of the jurors on a

couple of occasions in trial

comparing — actually comparing

notes. I don’t know that that’s

appropriate. I don’t know that I’ve

had a trial where they’ve taken

notes throughout the whole trial.

But for the purpose of note taking,

if you could make an inquiry, if

you think appropriate, at a time

that doesn’t follow our bench

conference right now because then

it looks like even Brian and I are

bad guys.

The Court: Just tell me what to say later.

[Trial counsel]: I would suggest to the court if you

feel it appropriate that ladies and

gentlemen, I just want to let you all

know that although you have the

ability to take notes, it’s

inappropriate for [you] to share

those notes or discuss and compare

those notes.

The Court: I’ll wait until after. Okay.

(The bench conference concluded.)

After three additional witnesses provided testimony during the

trial, the Court made the following announcement to the jurors:

The Court: All right. Our jury’s back in the

courtroom and seated. The

defendant and all counsel are

present. You can all be seated.

Again, members of the jury, has

anybody been exposed to anything

during the break in any way, shape

or form? I see no show of hands.

Just to remind you and caution all

of you to please make certain that

during recesses or breaks or what

have you that the jurors

individually not discuss this case

with each other and that includes

not showing each other your notes

and what have you. You can

certainly do that when you go back

to deliberate, but not until you do

that.

At the evidentiary hearing on his motion, Defendant testified

that he did not learn about the potential juror misconduct until

after the trial. He alleged that counsel never brought it to his

attention. [Trial counsel] testified that Miss Blevins, the

prosecutor’s assistant, indicated that she had seen a couple

jurors showing or tilting their notepads to each other. He

testified that he was not aware if what was shown was

evidentiary in nature or unrelated to the trial. He testified that

based on the description of what happened, it did not appear

the jurors were collaborating. [Trial counsel] testified that he

had a brief discussion with Defendant regarding what

happened, but because he did not feel that it impacted the trial,

he did not suggest that anything be done about it. [Trial

counsel] testified that not only did he feel it was not worthy of

a mistrial, but he also liked the jury that was chosen, and he felt

that they were already creating reasonable doubt. [Trial

counsel] testified that for these reasons, he did not move for a

mistrial. The Court finds [trial counsel’s] testimony credible.

After considering the testimony presented at the hearing, and

the record, the Court finds counsel’s decision not to move for a

mistrial was reasonable trial strategy. Further, the Court finds

Defendant has failed to demonstrate that a motion for mistrial

would have been granted. As such, [the claim] is denied.

The state court found trial counsel credible at the post-conviction evidentiary

hearing, and a state court’s credibility determination receives deference in federal court.

Nejad v. Att’y Gen., State of Ga., 830 F.3d 1280, 1292 (11th Cir. 2016) (“‘Determining the

credibility of witnesses is the province and function of the state courts, not a federal court

engaging in habeas review.’”) (citation omitted).

At the hearing, trial counsel testified as follows (Doc. 15, Ex. 13 at 243–46):

[Prosecutor:] . . . I would like to address with you first

the claim concerning failure or alleged

ineffectiveness concerning purported jury

misconduct involving jurors who had

been seen comparing notes in the jury box

during trial. What do you recall about that

scenario, sir?

[Trial counsel:] You know, we took great pains in

selecting our jury. I cannot remember

whether this was the first or second day of

trial because it was multiple — I think it

was a week, almost, of testimony.

And it was brought to, I believe, your

attention by your assistant, Miss Blevins,

that she had seen a couple of the jurors

during the course of testimony, not

outside of the presence of the courtroom,

either showing or tilting their notes to

each other.

And I believe, as I recall, you approached

the bench. We approached. You told the

court in an abundance of caution, Judge,

Miss Blevins saw a couple of jurors maybe

sharing or looking at notes during the

course of the proceedings. I believe she

said it happened on two occasions. It did

not appear based on what you were telling

the court that it was something that was

habitual or something that was for a

significant length of time or something

that would have insinuated that jurors

were collaborating.

So we decided that we would not at that

particular moment of approaching making

the jury aware of what the circumstance

was, but that we would do it in due course

during the course of the day in between

witnesses, and with regard to their general

admonishments of what they should be

doing outside and inside of the courtroom.

I went back. I had a very brief, and it was

very brief, conversation with [Rosa] just to

say, look, there might have been a couple

jurors comparing notes. But to be very

honest, I did not consider it worthy of

making an issue of. I did not see it to be

something that impacted the course of the

trial. I did not suggest to [Rosa] that

anything should be done about it.

He briefly looked at me and said, fine, and

that was it. We moved on. The court did,

in fact, three or four witnesses later

comment to the jury, look, you

understand when you leave today, you’re

not to talk about it, and of course, you’re

taking notes, make sure that you don’t

share those notes with each other and talk

about your notes amongst each other.

As the court knows, as you know, those

tablets are left on the seats during breaks.

They’re left overnight. They’re not

allowed to be taken home with the jurors.

So there was — I loved my jury. I — not

only did I like my jury, I also felt like [at]

that point in time, we were getting what

we wanted in. We were in a position to

already, in my estimation, be creating

some reasonable doubt. So the possibility

of mistrial really never even entered my

mind.

[Prosecutor:] And in summary, you did not move for a

mistrial as a strategic decision?

[Trial counsel:] One hundred percent. Not only did I

believe that it was not worthy of [a]

mistrial, certainly you do things

sometimes if you feel the need to even if

you don’t think they’re not worthy, allow

the judge to make a determination, but in

my particular circumstance, we were

ready. We were prepared. I liked my jury.

I liked the way things were going, and I

saw no need to seek a mistrial for

something that I probably would suggest

would not have created a mistrial to begin

with.

Trial counsel considered what the prosecutor’s assistant had observed, how the trial

had progressed, and whom the parties had selected as jurors before deliberately not moving

for a mistrial. The state court neither unreasonably determined that trial counsel made a

strategic decision nor unreasonably applied Strickland. Strickland, 466 U.S. at 690

(“[S]trategic choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable . . . .”); Franks v. GDCP Warden, 975 F.3d 1165, 1176

(11th Cir. 2020) (“‘The question of whether an attorney’s actions were actually the product

of a tactical or strategic decision is an issue of fact, and a state court’s decision concerning

that issue is presumptively correct.’”) (citation omitted).

Also, Rosa did not identify which jurors shared notes and what the jurors shared in

those notes. He did not show that a motion for mistrial would have succeeded or that the

outcome at trial would have changed if the trial court had struck the jurors. Consequently,

his claim of prejudice was speculative and conclusory. Strickland, 466 U.S. at 693 (“[A]ctual

ineffectiveness claims alleging a deficiency in attorney performance are subject to a general

requirement that the defendant affirmatively prove prejudice.”); Johnson v. Alabama, 256

F.3d 1156, 1183 (11th Cir. 2001) (rejecting a Strickland claim based on “pure speculation”).

Accord Williams v. State, 297 So. 3d 660, 662 (Fla. 1st DCA 2020) (“A trial court should only

grant a motion for mistrial when an error is deemed so prejudicial that it vitiates the entire

trial and deprives the defendant of a fair trial.”). Ground One is denied.

Ground Two

Rosa contends that the prosecutor commented on his failure to testify three times

during closing argument. (Doc. 1 at 7–9) Rosa asserts that trial counsel was ineffective for

not objecting and moving for a mistrial. (Doc. 1 at 7–9) The post-conviction court denied

the claim as follows (Doc. 15, Ex. 10 at 117–20) (state court record citations omitted)

(bolding in original omitted):

. . . Defendant alleges ineffective assistance of counsel due to

counsel’s failure to object and move for a mistrial following

comments in the State’s closing argument which touched upon

Defendant’s Fifth Amendment right to remain silent.

Specifically, Defendant argues that the State’s instruction for

the jury to “look for any witness, anything in the record that

tells you [Defendant] was out jogging that night” was an

impermissible comment on his right to remain silent. Further,

Defendant points out that the State argued both “there is no

evidence in the record that [Defendant] jogged in the park that

night” and “there was only evidence that [Defendant] was at

the park one time that night, not jogging.” Defendant alleges

that those three comments were all improper comments that

should have been objected to by his counsel.

After reviewing the allegations, the court file, and the record,

the Court finds that Defendant failed to allege prejudice.

Normally, the Court would dismiss [the claim] without

prejudice to allow Defendant to re-file a facially sufficient

claim. However, because the Court finds Defendant’s

allegations in [the claim] are conclusively refuted by the record,

it is not necessary that the Court dismiss [the claim] for such a

deficiency.

The record reflects Defendant’s counsel made the following

arguments during his closing:

[Trial counsel]: When he does arrive at the park —

and remember, he’s last. So some

of what goes on there is not

contemplated in his testimony. He

again talks about yelling and —

and [Defendant’s] fright. He tells

you and gives you another piece to

the puzzle when he talks about

during the yelling and the asking

how did you find him, [Defendant]

tells them he had been jogging.

And so, therefore, consider the

consistency of the fact that the

testimony [is] that he jogs

regularly.

Defendant’s counsel went on to argue:

[Trial counsel:] Ladies and gentleman, the wrong

man is on trial this week. I said it

in opening statement. I said it

during the trial. I’m saying it now.

[Defendant] did not asphyxiate

Stephen Tomlinson. He was

jogging, lost his keys. He found

Stephen Tomlinson. As he did so,

he did the best he could.

Following the completion of Defendant’s closing argument, the

State responds with the following:

[Prosecutor:] The defense wants you to believe

that he just — that [Defendant] just

found Stephen Tomlinson and that

he was just an innocent victim of

circumstance. And counsel argues

to you that [Defendant] was out

jogging and lost his keys. Scour

your notes when you get back

there.

Look for any witness, anything in

the record that tells you he was out

jogging that night. You will not

find that. There is no evidence that

he was jogging that night. There’s

only evidence that he was in that —

there’s evidence that he was only in

that park one time and that he only

walked down Mondragon Street to

Monterey one time and that he did

so with his flashlight and those

gloves and that clipper in his

pocket.

Ask yourself was he jogging with

his flashlight. An innocent victim

doesn’t look for help in the trees.

There is no plausible explanation

for why he was there[.]

. . .

He didn’t expect a car to be back

there. His — he was absolutely

flushed out of those woods by the

presence because he was freaked

out that what he had just done was

going to be found by people sooner

than he thought. And at the first

opportunity to reveal the truth, he

lied.

Now there is no evidence in the

record that he jogged in the park

that night. No innocent

explanation of that supported.

. . .

The attack was long enough for

Stephen to bleed on his own pants

and on [Defendant’s] pants and

shoes. There was only evidence

that [Defendant] was at the park

one time that night, not jogging.

There’s no evidence of that. That

he was in the park after he left and

was seen by Pedro Rivera walking

down the street five or ten minutes

after Stephen Tomlinson, twenty to

thirty minutes before the sirens

announced to the world that

Stephen Tomlinson was in dire

straights.

Defendant is correct in his assertion that because he has the

constitutional right to decline to testify against himself, “any

comment on, or which is fairly susceptible of being interpreted

as referring to, a defendant’s failure to testify is error and is

strongly discouraged.” Caballero v. State, 851 So. 2d 655, 660

(Fla. 2003) (citing Rodriguez v. State, 753 So. 2d 29, 37 (Fla.

2000)). When determining whether a statement “impermissibly

comments on the defendant’s right to remain silent during trial,

the court should examine the statement in the context it was

made.” State v. Jones, 867 So. 2d 398, 400 (Fla. 2004). However,

“it is permissible for the State to emphasize uncontradicted

evidence for the narrow purpose of rebutting a defense

argument since the defense has invited the response.[”]

Caballero, 851 So. 2d at 660.

A careful review of the record reveals that the State emphasized

the lack of evidence about Defendant jogging on the day of the

crime for the purpose of countering the Defendant’s argument

that he was jogging when he lost his keys and found the victim

in this case. By making that argument, Defendant “invited the

State’s response.” Id. at 660. The Court finds the State’s

comment was an invited response to defense counsel’s

argument that Defendant found the victim while jogging.

Therefore, the Court finds Defendant cannot prove defense

counsel acted deficiently in failing to make the alleged objection

or motion for mistrial when such was an invited response to the

defense’s argument.

The Court finds that defense counsel “cannot be found

ineffective for failing to pursue a ‘course of action that counsel

would — or should — have known was futile.” Claps v. State,

971 So. 2d 131, 134 (Fla. 2d DCA 2007); see Maxwell v.

Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (finding that “we

cannot find ineffectiveness based on lack of objection or

argument when counsel could reasonably have decided that

such objection or argument would have been futile in view of

the established rules of law”); see also Willacy v. State, 967 So. 2d

131, 140 (Fla. 2007) (explaining that “counsel is not ineffective

for failing to make a futile objection[”]). Consequently, no relief

is warranted on [the claim].

Whether the prosecutor’s comments were “fairly susceptible of being interpreted as

[ ] comment[s] on silence” is an issue of state law, and a state court’s determination of state

law receives deference in federal court. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)

(“In Florida, we have adopted a very liberal rule for determining whether a comment

constitutes a comment on silence: any comment which is ‘fairly susceptible’ of being

interpreted as a comment on silence will be treated as such.”). Accord Ford v. Norris, 364 F.3d

916, 918 (8th Cir. 2004) (“In Mr. Ford’s case, the Arkansas Supreme Court came to the

conclusion that had Mr. Ford’s attorney objected to the prosecutor’s statements, the

objection, as a matter of Arkansas law, would probably have been overruled. . . . [T]he

Arkansas Supreme Court was applying Arkansas law to the facts of Mr. Ford’s case.”).

The state court accurately quoted the comments by both the prosecutor and trial

counsel during closing argument. (Doc. 15, Ex. 1, Trial Transcript at 1098–99, 1134,

1140–43, 1167) The prosecutor made the disputed comments during rebuttal argument in

direct response to the defense’s theory that Rosa was jogging before the murder. Brown v.

State, 771 So. 2d 603, 605–06 (Fla. 4th DCA 2000) (“A narrow exception to the rule

forbidding a comment on a defendant’s failure to testify applies where the prosecution’s

statement is invited by the defense.”); Burford v. State, 8 So. 3d 478, 481 (Fla. 4th DCA 2009)

(“Considered in context, the prosecutor was simply responding to the defense’s alternative

theory that the driver of the pickup truck — and not Burford — had run the red light. The

prosecutor argued that his theory was supported by the evidence and that Burford’s theory

was not.”).

Because neither an objection to the disputed comments nor a motion for a mistrial

would have succeeded, the state court did not unreasonably apply Strickland. Meders v.

Warden, Ga. Diag. Prison, 911 F.3d 1335, 1354 (11th Cir. 2019) (“It is not ineffective

assistance of counsel to fail to make an objection that is not due to be sustained.”).

Rosa asserts that the state court unreasonably determined that no evidence proved

that Rosa was jogging. (Doc. 16 at 5–10) Rosa contends that Flis testified that Rosa was

jogging. (Doc. 16 at 5) The state court did not make that determination. The state court

accurately quoted the parties’ comments during closing argument and concluded that the

prosecutor did not comment on Rosa’s right to not testify.

Even so, Flis did not testify that he observed Rosa jogging. On cross-examination,

Flis testified that he heard Whitely and other people threaten Rosa when they discovered

Tomlinson’s body. (Doc. 15, Ex. 1, Trial Transcript at 687–88) Flis remembered that Rosa

explained how he found Tomlinson’s body but did not remember what Rosa said. (Id. at

688) After he refreshed his recollection with his statement to police, Flis testified that Rosa

claimed that he was jogging. (Id. at 688–89) The prosecutor objected to the testimony as

hearsay, and the trial court overruled the objection. (Id. at 689) Because Flis only restated

what Rosa claimed that he was doing when he discovered Tomlinson’s body and Rosa’s

out-of-court statement was admitted only to give context to the threats against him, no

evidence proved that Rosa was jogging. Pitts v. State, 227 So. 3d 674, 678 (Fla. 1st DCA

2017) (“If a statement is offered to show the effect on the listener rather than the truth of the

statement, as was the case in this instance, it is not hearsay. Pitts’s response to an allegation

that he killed someone is relevant, so there was no error in admitting the testimony.”)

(citations omitted). Ground Two is denied.

Ground Three

Rosa asserts that trial counsel was ineffective for advising him not to testify.

(Doc. 1 at 10–11) The post-conviction court denied the claim as follows (Doc. 15,

Ex. 13 at 309–11):

. . . Defendant alleges counsel was ineffective when he advised

Defendant not to testify in his own defense. Specifically,

Defendant argues that counsel advised against him testifying

because the State would introduce a three-hour interview that

Defendant participated in with the Hillsborough County

Sheriff’s Office. However, the State did not submit the

recording into evidence. Further, Defendant alleges that had he

testified, the jury would have heard his version of events and

would have found him to be innocent of the crime charged.

At the hearing on the motion, Defendant testified that at the

end of the State’s case-in-chief, he realized his recorded

statements had not been admitted into evidence. Defendant

testified that he expressed to counsel his concerns regarding not

testifying. Defendant testified that counsel advised Defendant

that he would support him regardless of whether he chose to

testify, and that it was his decision to make; however, counsel

advised him not to testify because the prosecutor would

“crucify” him. Defendant further testified that counsel advised

him that there was no reason to testify because he had already

explained the purpose of the gloves and the fact that Defendant

was out jogging when he found the victim. Defendant testified

that he felt pressured not to testify based on counsel’s statement

that he would be crucified, by the fact that he was not prepared

to testify, by counsel’s assertion that he did not want the jury to

be able to go home for the weekend, and by the cameras in the

courtroom. Defendant testified that he understood that it was

his constitutional right to testify or not to testify, and counsel

advised him that it was his right alone. Additionally, Defendant

acknowledged that he had the [right] to determine whether he

would stay with the decision not to testify or change his mind,

and that counsel did not pressure him one way or the other.

[Trial counsel] testified at the evidentiary hearing that he met

with Defendant several times and provided Defendant with all

of the discovery. He testified that after the State rested, he had

a conversation with Defendant regarding whether or not he

would testify. [Trial counsel] testified that he believed they had

created some significant reasonable doubt, and he suggested to

the Defendant that he not testify. [Trial counsel] testified that

he did not believe it would be in Defendant’s best interest to

testify because Defendant had an odd demeanor. [Trial

counsel] testified that Defendant was not a very emotional

young man, and he appeared to be very calculated in his

responses. He testified that although Defendant had many good

qualities, he was able to get many of those critical items

admitted through other witnesses. [Trial counsel] testified that

after considering the fact that he would be subjected to

cross-examination by a very skilled prosecutor, understanding

the inconsistencies with the Defendant’s story, and feeling like

they had created significant reasonable doubt, he suggested to

Defendant that he not testify. [Trial counsel] testified that he

did not pressure Defendant not to take the stand. Finally, [trial

counsel] testified that he prepared the Defendant to testify by

conducting a mock direct examination and by discussing what

questions he might face on cross-examination. [Trial counsel]

testified that the Defendant never expressed any second

thoughts about not testifying. After considering the testimony

presented at the evidentiary hearing, and the record, the Court

finds that counsel’s decision to advise the Defendant not to

testify in his own defense was reasonable trial strategy.

Therefore, the Defendant is not entitled to relief on [the claim].

At the post-conviction evidentiary hearing, trial counsel testified as follows (Doc. 15,

Ex. 13 at 246–62):

[Prosecutor:] And the state ultimately having rested

without playing a taped interview of the

defendant conducted by the investigators,

did you have discussions after the state

rested with Mr. Rosa about him testifying?

[Trial counsel:] Let me go back a little bit, too. We

prepared, to the extent that there might be

testimony, we talked about Mr. Rosa’s

story. I was certainly prepared in the event

that we were to determine that it was in

his best interest to take the stand, to do a

direct examination.

After the state rested, we had a

conversation. I believed that we had

created some significant reasonable doubt.

I anticipated still my case where I had not

even put on my expert yet. I hadn’t put on

my witnesses on Mr. Rosa’s behalf and

certainly I knew what they would be

saying, and I suggested to [Rosa] that he

not testify.

[Prosecutor:] Okay. And how did he respond, if you

recall, in general terms?

[Trial counsel:] He took my advice wholeheartedly. I

mean this is not the first conversation that

we had. We had conversations previously.

This is not the first time that I said, hey,

[Rosa], what do you think about

testifying? We had those conversations

periodically along the way; and, you

know, [Rosa] did have a story to tell. . . .

[T]he bottom line was in this particular

circumstance, I felt for a number of

different reasons that it wouldn’t be in his

best interest to testify.

[Prosecutor:] Explain what, if any, other reasons that

you thought perhaps — as you explained

it to him, that it wouldn’t be in his best

interest to testify?

[Trial counsel:] . . . [Rosa] had an odd demeanor. He was

not, at least during that period of time, a

very emotional young man. He appeared

in my estimation to be very calculated in

his responses, even to me, even in

discussing the case, even as we developed

his version of what occurred. It was

strange because even law enforcement

during the course of their interview with

him made that statement to him over and

over and over again. . . . The state on a

couple of occasions had made mention to

me during the course of our interactions

that he appeared to be a little bit of a

strange young man. Now, granted there

were lots of good things. You know, he

had no prior criminal history. He worked.

He went to school. He was a leader of a

youth ministry, but those are all things

that I was going to be able to get out

without him. So —

[Prosecutor:] And you did so through the testimony of

his girlfriend and others, correct?

[Trial counsel:] Absolutely, his mother, people — a person

from the church. Many of the things that I

felt were critical in having the jury know

about [Rosa] I was able to get admitted.

Now, granted, what I wasn’t —

[Prosecutor:] Excuse me. In that vein, you were able to

personalize him without subjecting him to

cross-examination?

[Trial counsel:] There is no question about it. His affect

was very flat. Even in the post-Miranda

interview, you know, he would mold

himself to the questions of law

enforcement as the story evolved. . . . And

I felt after weighing the fact that he would

be subjected to a very veteran prosecutor,

a very skilled prosecutor, understanding

the shortcomings of the story and feeling

like I had created a significant amount of

reasonable doubt, I suggested to him and

he did not blink. . . .

. . .

[Prosecutor:] Was there also a concern — or did you

have any concern from the defendant’s

recorded interview statements about any

inconsistencies expressed by Mr. Rosa in

that interview as to where he was when he

first saw the body of Stephen Tomlinson?

[Trial counsel:] You know, there were a number of

inconsistencies and, you know, depending

on your client, you can either feel

comfortable he’s going to explain them in

a manner that the jury will understand and

believe or you can be concerned that it will

not go well. And part of the reason in not

putting or advising [Rosa] that I didn’t

believe that it was in his best interest to

become a witness was those

inconsistencies about at what point in

time he saw the body and from what

distance and under what circumstances,

circumstances as it relates to the multiple

trips that he took back out to the park and

why he would do that, the chronology of

events in terms of when he had his cell

phone and when he didn’t, and when he

lost his keys and how he found them and

how they ended up underneath the

victim’s body. . . .

[Prosecutor:] You’ve alluded to a few minutes ago steps

you had taken to prepare Joshua Rosa in

the event that he did testify. Could you go

further explaining what, if any, steps that

you did take to prepare him for that?

[Trial counsel:] I mean we did a direct type of

examination, a posture, he and I. I mean,

we had talked about his story. Obviously,

I knew his story from day one, from the

very first day I interviewed him. So there

was nothing new to me during the course

of the ramping up of discovery and

utilizing that story to frame my deposition

questions and to be able to elicit what I

believed to be evidence I could use at trial

keeping in the back of my mind that I just

can’t presume that Joshua Rosa is going to

become a witness. So we talked about

what his recollection of events were

throughout.

As we got closer, I did not preclude the

possibility that he would choose to be a

witness, or I would want him to seriously

consider being a witness. And it was only

at the time that the state rested and I

looked at the evidence as it had come out

to that point contemplating what was yet

to come that I suggested to him that I

didn’t believe that it was in his best interest

to take the stand.

[Prosecutor:] Did you apply any pressure to him not to

take the stand?

[Trial counsel:] None whatsoever. I never would. It’s

[Rosa’s] life. He was a very young man at

the time of this prosecution. You know, I

don’t do that. I mean it is his life, and I

would have been prepared to direct him.

We would have, you know, waited for the

onslaught as it relates for cross, and we

would have done the best we could with

it.

. . .

[Prosecutor:] From the time when the court first

engaged in a colloquy with Mr. Rosa

concerning his right to testify, at the end

of the state’s case until the following day

when the court engaged in a much briefer

colloquy with the defendant, did Joshua

Rosa ever express any equivocation or

second thoughts about not testifying?

[Trial counsel:] No, he did not.

Trial counsel considered Rosa’s demeanor, his prior inconsistent statements to

police, his performance during mock examinations, and the evidence introduced during the

prosecution’s case-in-chief before advising Rosa not to testify. The state court neither

unreasonably determined that trial counsel made a strategic decision nor unreasonably

applied Strickland. Strickland, 466 U.S. at 690. Accord Maharaj v. Sec’y Dep’t Corrs., 432 F.3d

1292, 1319 (11th Cir. 2005) (“The tactical decision to advise petitioner against testifying

because of the dangerous cross-examination that could ensue was utterly unaffected by the

truth or falsity of the [newspaper] articles [about his outstanding warrants] and cannot be a

sound basis for a claim of ineffective assistance of counsel.”); Cain v. Sec’y, Fla. Dep’t Corrs.,

266 F. App’x 854, 856 (11th Cir. 2008) (“[B]y Cain’s own account, his decision not to testify

was part of counsel’s overarching advice against presenting a defense case in general, which

was also based on counsel’s belief the State had not met its burden of proof and the fact that

Cain would remain in custody while the defense presented its case. . . . [C]ounsel’s advice

against presenting a defense case could be considered a reasonable strategy.”). Ground

Three is denied.2

2 Also, at the end of the prosecution’s case-in-chief, the trial judge advised Rosa that he had

the right to testify or not testify and trial counsel could not make that decision for him. (Doc. 15,

Ex. 1, Trial Transcript at 924–27) Rosa confirmed that he understood his rights (Id. at 927) and

declined to testify. (Id. at 1040)

Ground Four

Rosa asserts that trial counsel was ineffective for not conducting DNA testing with

swabs that police collected from Kevin Whitely and Fabian Flis. (“Failure to Investigate

Claim”) (Doc. 1 at 12–13) Rosa further asserts that trial counsel was ineffective for not

objecting to the admission of the results from the YSTR DNA testing. (“Failure to Object

Claim”) (Doc. 1 at 13–14)

Failure to Investigate Claim

Police collected swabs from Whitely and Flis but did not compare DNA on the swabs

with DNA collected from the victim’s fingernails. (Doc. 1 at 12) DNA on fingernails from

the victim’s left hand was a mixture of the victim’s DNA and DNA from a foreign profile.

Rosa asserts that trial counsel was ineffective for neither conducting DNA testing (“Sub-

claim A”) nor arguing during closing argument that police failed to rule out Whitely and

Flis as suspects (“Sub-claim B”). (Doc. 1 at 12)

Sub-claim A

Rosa asserts that trial counsel was ineffective for not comparing DNA from Whitely

and Flis with DNA from the victim’s fingernails. (Doc. 1 at 12) The post-conviction court

denied the claim as follows (Doc. 15, Ex. 13 at 311–12) (state court record citations

omitted):

. . . Defendant alleges ineffective assistance of counsel for

counsel’s failure to investigate Kevin Whitely and Fabian Flis,

two of the State’s witnesses, as potential suspects. Defendant

argues that because testimony was presented that placed both

Mr. Whitely and Mr. Flis near the scene of the crime, they

should have been treated as potential suspects. Specifically,

Defendant alleges that investigators took DNA swabs from

both of the witnesses, but counsel never had their DNA

compared to the DNA that was found under the victim’s

fingernails. Defendant points out that the State’s medical expert

testified that the victim may have died due to the actions of

more than one individual. Further, Defendant alleges that

because the DNA results could not positively identify

Defendant as the sole contributor to the DNA sample, counsel

should have had the other DNA samples tested in order to see

if the witnesses’ DNA contributed to the sample. Defendant

argues that had counsel had the additional DNA samples

tested, they would not have been excluded as possible

contributors to the foreign substance removed from the victim,

and thus the jury would have found there was reasonable doubt

as to Defendant’s guilt.

At the hearing on Defendant’s motion, [trial counsel] testified

that after taking depositions of all the witnesses he did not find

any evidence to indicate that Kevin Whitely, Fabian Flis, or

Javier Rivera could be the perpetrators. [Trial counsel] testified

that he did not request that the State have the DNA samples

tested because he did not want them excluded as possible

contributors to the DNA. [Trial counsel] testified that he

intended to argue at trial the fact that they were not tested

created reasonable doubt. After considering the testimony

presented at the evidentiary hearing, and the record, the Court

finds that counsel’s decision [to] not have Kevin Whitley’s or

Fabian Flis’s DNA compared to the DNA that was found on

the victim’s fingernails was reasonable trial strategy.

Additionally, the Court finds Defendant has failed to meet his

burden regarding this claim. Therefore, Defendant is not

entitled to relief.

At the post-conviction evidentiary hearing, trial counsel testified as follows (Doc. 15,

Ex. 13 at 259–69):

[Prosecutor:] Did you engage in discovery eliciting their

statements during depositions?

[Trial counsel:] I did. I took all of their depositions as it

relates to that night, as it relates to their

history, as it relates [to] their knowledge of

the victim, their knowledge of the

defendant; and, so, yes, we were very

prepared for their testimony at trial.

[Prosecutor:] And did you investigate the possible

avenue of defense of identifying them as

the actual perpetrators?

[Trial counsel:] So did it cross my mind as a potential

defense as it relates to the creation of

reasonable doubt, yes. Did I intend on

making it an issue for the jury to consider?

Yes. Did I find anything as it relates to

their relationship with the victim, as it

relates to the chronology leading up to the

time that their car crossed those poles into

the park that would indicate to me having

taken the depositions of everyone

associated that there was any belief that

they could be perpetrators? No, I did not.

Their stories were consistent about where

they had been previous. They were

unimpeachable to that extent in terms of

the other people that they were with prior

to the incident taking place. The why as to

why they were going into the park was,

you know, uncontroverted.

. . .

[Prosecutor:] During your discovery, you learned tha[t]

investigators had obtained swabs of DNA

voluntarily provided by these witnesses?

[Trial counsel:] Yes, and there was lots of DNA. There

[were] lots of exhibits. There were lots of

items analyzed. There were multiple

DNA analysts involved from multiple

agencies. But, yes, these individuals had

been swabbed just in the normal course of

police work.

[Prosecutor:] And had their swabs been tested by the

Florida Department of Law Enforcement

for comparison purposes to any known

DNA sample from either the defendant’s

gloves or any DNA found on the victim’s

body?

[Trial counsel:] They had not.

[Prosecutor:] Had you considered the possibility of

requesting that the state be compelled to

have the lab test those?

[Trial counsel:] No, I didn’t want them tested.

[Prosecutor:] Why is that?

[Trial counsel:] Because I wanted the possibility of having

that in my pocket as a form of argument. I

didn’t want them excluded as it relates to

any analysis done. And, you know, the

bottom line was [ ] that it was a very small

sample. It was a mixture. It was going to

be a low yield to begin with, and the

bottom line is that although I wasn’t going

to be able to submit to the jury any other

corroborating evidence that would

indicate that, you know, they were the

perpetrators, you know, it was my intent

to say, hey, why didn’t they do this? I

mean, I think that that is something that I

could and wanted to do.

[Prosecutor:] Okay. Well, explain to the court, please,

the low profile DNA that you were talking

about. This was from underneath the

victim’s fingernails?

[Trial counsel:] You said it was from underneath the

victim’s fingernails. It was actually [ ]

from the victim’s fingernail clippings. No

one was able to determine if it was from

beneath the fingernails or on top of the

fingernails, which to me makes a huge

difference, and that was also part of the

cross-examination as it relates to the DNA

experts . . . .

Trial counsel deposed Whitely and Flis, investigated whether the two males could

have committed the crimes, and confirmed that the two males were not in the park at the

time of the murder before deciding to not compare their DNA with DNA found on the

victim’s fingernails. Trial counsel instead planned to capitalize on the police’s failure to

compare the DNA to argue reasonable doubt. The state court neither unreasonably

determined that trial counsel made a strategic decision nor unreasonably applied Strickland.

Strickland, 466 U.S. at 690. Rogers v. Zant, 13 F.3d 384, 388 (11th Cir. 1994) (“If the act of

conducting no investigation of a particular defense is reasonable, the matter is closed; there

can be no question about the reasonableness of having failed to present evidence of which

the lawyer was unaware as a result of a reasonable decision to investigate no further.”);

Palmes v. Wainwright, 725 F.2d 1511, 1521 (11th Cir. 1984) (“In this circuit ‘a strategic

decision to pursue less than all plausible lines of defense will rarely, if ever, be deemed

ineffective if counsel first adequately investigated the rejected alternatives.’”) (citation

omitted).

Also, Rosa never demonstrated that DNA from Whitely and Flis matched DNA on

the victim’s fingernails. Consequently, his claim of prejudice was speculative and

conclusory. Strickland, 466 U.S. at 693. Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir.

2002) (“As we have explained, ‘[s]peculation is insufficient to carry the burden of a habeas

corpus petitioner as to what evidence could have been revealed by further investigation.’”)

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

Sub-claim B

Rosa asserts that trial counsel was ineffective for not arguing during closing argument

that the police’s failure to compare DNA from Whitely and Flis with DNA from the victim’s

fingernail supported reasonable doubt. (Doc. 1 at 12) The post-conviction court denied the

claim as follows (Doc. 15, Ex. 13 at 311–12) (state court record citations omitted):

Defendant also alleges . . . that counsel failed to point out

during trial that the State had failed to compare the DNA of

Kevin Whitely and Fabian Flis with the DNA found on the

victim’s fingernails, as counsel had advised Defendant he

would do. At the hearing, [trial counsel] testified that he

intended to argue this issue during closing, but he did not. [Trial

counsel] testified that he did not think it made a difference in

the trial. After considering Defendant’s motion and the record,

the Court finds that based on the evidence presented at trial,

there is not a reasonable probability that the outcome of the

proceedings would have been different had counsel made this

argument. As such, Defendant is not entitled to relief on this

claim.

At the post-conviction hearing, trial counsel testified as follows (Doc. 15, Ex. 13 at

259–69):

[Prosecutor:] Was it your intent to make an argument to

the jury that the state should have — the

state’s failure to submit the DNA of Mr.

Flis and Mr. Whitely to comparison to

this fingernail sample was a basis for

potential reasonable doubt.

[Trial counsel:] Yes, it was.

[Prosecutor:] Did you do so?

[Trial counsel:] I did not.

[Prosecutor:] Any reason that you can explain?

[Trial counsel:] First of all, did I feel it was a feature of the

trial? One hundred percent not. Did I feel

like a competent prosecutor would not be

able in closing to suggest a number of

reasons why it shouldn’t be something

that should be heavily considered by a

jury? Yes, I did.

But in my normal, you know, course of

trial of a case, I’m going to try to bring to

the jury’s attention every possible thing

that I can that can create doubt, and it was

my intention to say, hey, look, we have a

sample here from a couple of individuals.

There is evidence potentially that this

could have been a crime committed by

more than one person. Why didn’t they do

that? It would have been something else

for the jury to consider.

Now, could I have followed up with, why

in particular that would have been critical

for them to do? No, I could not, but in the

heat of a —

[Prosecutor:] What do you mean by that?

[Trial counsel:] Well, you know, in my mind, in the long

run, it’s not just sufficient to say they

didn’t do it. It’s sufficient to tie in what

would have happened had they done it or

what other evidence existed that would

suggest that those boys were out there and

would have had the opportunity to do this,

and in my pretrial preparation, which was

pretty exhaustive, I couldn’t find one

scintilla of evidence that would indicate

that they would have been out there at that

time.

[Prosecutor:] At the time of the murder?

[Trial counsel:] Correct. I wouldn’t call it alibis because

they weren’t suspect[s], but the stories

matched the people they were around that

I deposed that ended up not being

witnesses in the trial; but I deposed them,

corroborated where they were. . . .

[Prosecutor:] Was it your view or opinion of the

evidence that the state’s failure to have the

DNA samples of Mr. Flis and [Mr.]

Whitely tested by Cellmark and FDLE

would have, in your view or estimation,

created reasonable doubt?

[Trial counsel:] I would have loved to have it in my bag of

tricks. I would have loved to have been

able to argue it briefly along with

everything else. It was my intent to do so,

but in a two hour and some odd closing

argument, I didn’t say it. Do I feel, after

the trial, do I feel today that had I made

that mention as I intended to do, would it

have changed the course of the trial?

Unfortunately, because I wanted a

positive verdict, unfortunately, no, I don’t

think that it would have made any

significant difference.

The outcome at trial would not have changed. A match between DNA from the

fingernail and DNA from Whitely or Flis would not have shown that either committed the

murder. The DNA from the fingernail was not from fingernail scrapings; the DNA was from

a swab of the top and bottom of fingernail clippings. (Doc. 15, Ex. 1, Trial Transcript at

759) While a match could have shown that the victim scratched Whitely or Flis to defend

himself, a match could also have shown that Whitely or Flis may have only touched the top

of the fingernail. For example, Whitely testified that he tried to carry Tomlinson’s body out

of the woods after the murder. (Id. at 336) The prosecutor could have explained that a match

with DNA from Whitely resulted from this physical contact.

Also, comparing DNA from the fingernail with DNA from Whitely or Flis with

DNA testing would not have been conclusive. The DNA analyst testified that the foreign

profile in the mixture of the DNA from the fingernail was too weak for STR testing. (Doc.

15, Ex. 1, Trial Transcript at 759–61) The analyst instead used YSTR testing. (Id. at

765–66) At most, the analyst could have opined that either Whitely and Flis or their male

relatives could not be “excluded” from the DNA sample. (Id. at 811–12, 817) The analyst

could not have opined that either male was “included” in the sample. (Id. at 817) During

closing argument, trial counsel argued that YSTR testing was scientifically unreliable. Trial

counsel would have contradicted himself by further arguing that the police’s failure to use

YSTR testing to compare DNA from the fingernail with DNA from Whitely and Flis

supported reasonable doubt.

Lastly, trial counsel could not have pointed to any other evidence that tended to

prove that Whitely and Flis committed the murder. Trial counsel investigated and did not

find any evidence to corroborate the theory. During closing argument, trial counsel pointed

to other evidence — or lack of evidence — that supported reasonable doubt. Trial counsel

argued: (1) the prosecution failed to prove a motive; (2) Rosa did not flee the scene and

instead sought help; (3) Rosa did not have any injuries consistent with the manual

strangulation of an individual who was conscious and would have fought for his life; (4) the

blood was from Rosa’s contact with Tomlinson while rendering aid; (5) testing of the DNA

from the fingernail was scientifically unreliable. (Doc. 15, Ex. 1, Trial Transcript at 1088–

89, 1103–04, 1109–10, 1127–30, 1134–35) Additional argument about the police’s failure to

use YSTR testing to compare DNA from the fingernail with DNA from Whitely and Flis

would not have changed the outcome at trial.

Consequently, Rosa did not show prejudice and the state court did not unreasonably

apply Strickland. Strickland, 466 U.S. at 694. Yarborough v. Gentry, 540 U.S. 1, 7 (2003)

(“Even if some of the arguments would unquestionably have supported the defense, it does

not follow that counsel was incompetent for failing to include them. Focusing on a small

number of key points may be more persuasive than a shotgun approach.”); Dell v. United

States, 710 F.3d 1267, 1282 (11th Cir. 2013) (“[I]t is quite difficult to establish that the

omission of any particular argument resulted in ineffective assistance, although such a

showing is possible if the argument or arguments neglected were stronger than the ones

counsel actually offered.”); Dill v. Allen, 488 F.3d 1344, 1357 (11th Cir. 2007) (“[O]ur circuit

maintains that constitutionally sufficient assistance of counsel does not require presenting

an alternative — not to mention unavailing or inconsistent — theory of the case.”).

Failure to Object Claim

An analyst testified that YSTR DNA testing of the victim’s fingernails could not

exclude either Rosa or his male relatives as contributors. (Doc. 1 at 13) Rosa asserts that

trial counsel was ineffective for not objecting to the admission of these results because no

state court had ruled that YSTR DNA testing was scientifically reliable. (Doc. 1 at 13)

The Respondent asserts that this claim is unexhausted and procedurally barred.

(Doc. 13 at 34–35) Rosa did not raise the claim in his post-conviction motion (Doc. 15, Ex.

9) but raised the claim in his brief on appeal. (Doc. 15, Ex. 14) Because the State of Florida

did not assert on appeal that the issue was unpreserved and instead addressed the merits

(Doc. 15, Ex. 15 at 19–22), Rosa is entitled to review of the claim on the merits on federal

habeas. Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989) (“The state’s attorney may

have briefed only the procedural default issue; he may have briefed only the merits; or he

may have briefed both issues. . . . [O]nly when the state’s attorney briefs the merits alone

should the federal court also reach the merits.”) (citing Martinez v. Harris, 675 F.2d 51, 54

(2d Cir. 1982)). The state appellate court’s unexplained decision is an adjudication on the

merits and Rosa must show no reasonable basis for the denial of the claim. Richter, 562 U.S.

at 98.

A forensic analyst testified that she supervised YSTR DNA testing at a laboratory

accredited by several national organizations. (Doc. 15, Ex. 1, Trial Transcript at 805–06)

She was a member of a national YSTR DNA database consortium that had the goal to

develop a larger global database. (Id. at 806–07) She also published articles in a scientific

journal and presented material about DNA testing at national and international symposia.

(Id. at 807) Trial counsel neither asked the analyst about the reliability of YSTR DNA testing

nor objected to her qualifications as an expert. (Id. at 807)

Even though a Florida appellate court has not concluded that YSTR DNA testing is

scientifically reliable,3 Lemour v. State, 802 So. 2d 402, 406 (Fla. 3d DCA 2001), holds that

STR testing is scientifically reliable, and the analyst testified that YSTR testing is based on

the same science as STR testing. (Doc. 15, Ex. 1, Trial Transcript at 815) Also, Hodges v.

State, 55 So. 3d 515, 541–42 (Fla. 2010), relies on the results from YSTR DNA testing to

conclude that the prosecution presented competent, substantial evidence to prove a crime.

Before Rosa’s trial, other jurisdictions had concluded that YSTR DNA testing is

scientifically reliable. Curtis v. State, 205 S.W.3d 656, 661 (Tex. App. 2006); Shabazz v. State,

592 S.E.2d 876, 879 (Ga. App. 2004). Because an objection would not have succeeded, trial

counsel was not ineffective. Meders, 911 F.3d at 1354 (“It is not ineffective assistance of

counsel to fail to make an objection that is not due to be sustained.”).

Even if trial counsel deficiently performed by not objecting, Rosa cannot show

prejudice. During closing argument, trial counsel explained why the results based on YSTR

DNA testing were scientifically unreliable (Doc. 15, Ex. 1, Trial Transcript at 1109–14):

[Trial counsel:] And, ladies and gentleman, ask yourself if

Stephen Tomlinson was struggling and

fighting for his life? And we’re not talking

about being shot in the head or stabbed in

the heart or beat over the back of the head

with a bat. We know it was a dynamic

3 At the time of Rosa’s trial, a Florida court applied the test under Frye v. United States, 293 F.

1013 (D.C. Cir. 1923) for expert testimony. DeLisle v. Crane Co., 258 So. 3d 1219, 1227 (Fla. 2018)

(“Following our repeated affirmations of the Frye rule, in 2013 the Legislature amended section 90.702

to incorporate Daubert in the Florida Rules of Evidence.”). Under Frye, a proponent of the expert

testimony must prove general acceptance of both the underlying scientific principle and the testing

procedure used to apply the principle to the facts of the case. Yisrael v. State, 827 So. 2d 1113, 1114

(Fla. 4th DCA 2002).

situation as set forth by numerous

different people.

Why was there no DNA on Stephen

Tomlinson’s hands and fingers. Now, I

stepped away a little bit from the

clippings, but now I’m talking about his

hands and fingers. The one and most

probable source of everything that he

could do to stay alive rests in his hands

and arms.

Now, I don’t want to limit the possibility

of his feet and legs, but certainly that is the

most common means of defending

yourself, especially in a situation like this.

Whether it be from behind, whether it be

from — from, you know, from here,

whether it be in any situation, why is there

no DNA on his hands and fingers?

DNA is some spectacular stuff. I don’t

think we can rise and fall with it as I

believe I’m proving to you and will

continue to show you based on the

evidence. But the bottom line is it’s some

powerful stuff. Why wouldn’t Josh Rosa’s

DNA be on the victim’s primary means to

defend himself or to create any viewable,

credible injuries on Joshua Rosa?

Again, he wasn’t knocked unconscious,

wasn’t stabbed in a vital organ. He wasn’t

shot. So Cassie Johnson does her testing,

and what Cassie Johnson tells us is that

when you do YSTR, you’re going to have

17 markers, 17 different places where they

look. Okay.

And what she tells you is that she got

information consistent with Stephen

Tomlinson at those markers and she only

got information that can exclude Joshua

Rosa at three of the 17 markers. And this

is DNA, people. We’re not talking about

three mini vans. We’re not talking about

three tractor trailers.

We’re talking about three areas of DNA

out of 17. And I anticipate the state’s

going to tell you, well, if there were more,

you know, if there was more DNA, there

might be, you know, more places and we

had limited quantities. Well, we had what

we had and they tested what they had.

And you know what the result was?

The result was very simply that the way

this works is that you have several

populations and several ethnic groups,

and those ethnic groups are set forth in a

database and you put that sample in and

you punch a number and it’s going to give

you a number based on that particular

ethnic group.

But what it doesn’t tell you, what science

doesn’t tell you unless you ask is that it

doesn’t tell you what the ethnic group is of

the contributor. Okay. So the bottom line

is you heard Cassie Johnson say that

essentially all this does is not exclude Josh

Rosa of being a person that could have

contributed to that sample.

But what makes that even more startling

as you consider it in your deliberations is

look at the report. And I — you know, we

talked about the report. The report is

essentially that if you were the contributor

to this sample under Stephen Tomlinson’s

fingernails and you weren’t Josh Rosa,

you were an African American, if you

were an African American, it would be

one in five.

So every one in five African Americans as

it relates to that database would have

similar DNA pattern and wouldn’t be

excluded. If you were a Caucasian and

you happen to be the contributor to that

DNA sample, then it would be one in 20.

And I don’t know.

Not in jest, but certainly out of curiosity, I

asked Ms. Johnson, you know, how many

African Americans did you pass since you

got out of the car? Because more than

likely, she would have passed enough to

where one of them could have been the

contributor to this unknown sample.

And as it relates to Hispanics, it would be

one in 12. So if there were 12 Hispanics

sitting in this box, one of them could also

have the same potential profile as the

person that left that DNA under or on

Stephen Tomlinson’s clippings. And

Cassie Johnson, I believe, showed us the

very reason why we should be so

concerned about scientific evidence.

Because if you know what you’re doing,

you can’t be blinded by the light. You

can’t be blinded by the light and blinded

by the numbers. So don’t be blinded. This

is not Joshua Rosa’s DNA on that

fingernail clipping. It’s no more Joshua

Rosa’s DNA on that fingernail clipping

than every 12th Hispanic that you will

pass when you leave this courtroom.

Cassie Johnson used the word Joshua

Rosa can’t be excluded so many times that

I stopped writing it down on my paper. I

just stopped. I said how many times can

you say somebody can’t be excluded. But

you know what? This is not C.S.I. This is

not Law and Order and it’s everyday

interaction between people that know

each other.

And do you know what can’t exclude —

can’t be excluded is? That’s reasonable

doubt. That’s what he can’t be excluded

means. I couldn’t have put it, as it relates

to that evidence, any better. If you can’t be

excluded, then you have reasonable

doubt. Paulina Berdos — and I just harken

back to her for a minute — said DNA

gives value and weight to evidence. And

you need to look closely at what this DNA

evidence really gives you in terms of value

and in terms of weight.

The analyst’s highly speculative testimony did not directly inculpate Rosa, and trial

counsel relied on that speculative testimony to argue reasonable doubt. Other more

compelling evidence including blood on Rosa’s hands, shoe, pant leg, and white gloves,

Tomlinson’s DNA in that blood, and fresh scratches on Rosa’s armpit, forearm, and bicep

proved Rosa’s guilt. Even if an objection to the analyst’s testimony would have succeeded,

the outcome at trial would not have changed and the state court did not unreasonably deny

the claim. Ground Four is denied. Strickland, 466 U.S. at 694.

Accordingly, it is ORDERED that Rosa’s petition (Doc. 1) is DENIED. The

CLERK is directed to enter judgment against Rosa and CLOSE this case.

CERTIFICATE OF APPEALABILITY

AND

LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Rosa does not make a “substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). For a claim denied on procedural grounds, Rosa does not show that

reasonable jurists would find debatable both the merits of the underlying claims and the

procedural issues. Slack v. McDaniel, 529 U.S. 473, 478 (2000). Consequently, a certificate

of appealability and leave to appeal in forma pauperis are DENIED. Rosa must obtain

permission from the court of appeals to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida on February 8, 2021. _

os f / Ff |

MARYS. SCRIVEN

39 UNITED STATES DISTRICT JUDGE