# Rosa v. Secretary, Department of Corrections

> District Court, M.D. Florida · February 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10106828

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106828. Public record. Not legal advice.