Profetto v. Jones (Charlotte County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

THOMAS J. PROFETTO,

Petitioner,

v. Case No: 2:17-cv-533-SPC-MRM

SECRETARY, DOC and

FLORIDA ATTORNEY

GENERAL,

Respondents.

/

OPINION AND ORDER1

Before the Court is Thomas James Profetto’s Petition under 28 U.S.C. §

2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 8).

Background

The State of Florida charged Profetto with the attempted murder of

Randall Robinett. (Doc. 15 at 26). Attorney Thomas Marryott entered his

appearance and a not-guilty plea on Profetto’s behalf. (Doc. 15 at 29). “At trial,

the State presented evidence that Profetto, Jevon Gibson, and Tatijana Dimic

formed a plan to rob another friend [Robinett] by ambushing him at a staged

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or the services or products they provide, nor does it have any agreements with them. The

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order.

break-down of Dimic’s automobile.” Profetto v. State, 198 So. 3d 684, 685 (Dist.

Ct. Fla. App. 2015). “The plan did not unfold as expected, however, and

Profetto and Gibson ended up charging the victim’s vehicle on foot while firing

numerous shots at it.” Id. Tatijana Dimic testified against Profetto as part of

a plea deal, but Gibson did not. Id. The jury found Profetto guilty of first-

degree murder, and the Court sentenced him to a 35-year prison sentence with

a mandatory minimum of 20 years. (Doc. 16 at 4, 10). The Second District

Court of Appeal of Florida (2nd DCA) affirmed the conviction. (Doc. 17 at 184).

Profetto filed a postconviction motion, raising 14 grounds of ineffective

assistance of counsel. (Doc. 17 at 213-262). The postconviction court

summarily denied the motion in part and held an evidentiary hearing for the

remaining grounds. (Doc. 20 at 36). After appointing Profetto counsel and

conducting a hearing, the postconviction court denied Profetto’s postconviction

motion. (Doc. 21 at 304). On review, the 2nd DCA affirmed in part and

remanded to allow Profetto to amend his claim that Merryott should have

objected to his sentence based on its disparity with Gibson’s sentence. Profetto,

198 So. 3d at 685. The postconviction court denied the amended ground (Doc.

22 at 385), and the 2nd DCA affirmed (Doc. 23 at 105).

In his Habeas Petition, Profetto raises eight grounds of ineffective

assistance of counsel. Respondent concedes that the Petition is timely and that

Profetto exhausted his state court remedies for all eight grounds.

Applicable Habeas Law

A. AEDPA

The Antiterrorism Effective Death Penalty Act (AEDPA) governs a state

prisoner’s petition for habeas corpus relief. 28 U.S.C. § 2254. Relief may only

be granted on a claim adjudicated on the merits in state court if the

adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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

State court proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet.

White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s violation of state

law is not enough to show that a petitioner is in custody in violation of the

“Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

“Clearly established federal law” consists of the governing legal

principles set forth in the decisions of the United States Supreme Court when

the state court issued its decision. White, 134 S. Ct. at 1702; Casey v. Musladin,

549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Habeas relief is appropriate only if the state court decision was “contrary to, or

an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A

decision is “contrary to” clearly established federal law if the state court either:

(1) applied a rule that contradicts the governing law set forth by Supreme

Court case law; or (2) reached a different result from the Supreme Court when

faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application” of Supreme

Court precedent it the state court correctly identifies the governing legal

principle, but applies it to the facts of the petitioner’s case in an objectively

unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.

Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either

unreasonably extends a legal principle from [Supreme Court] precedent to a

new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.” Bottoson, 234 F.3d at 531

(quoting Williams, 529 U.S. at 406). “A state court’s determination that a claim

lacks merit precludes federal habeas relief so long as fair-minded jurists could

disagree on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011). “[T]his standard is difficult to meet because it was

meant to be.” Sexton v. Beaudreaux, 138 S. Ct. 255, 2558 (2018).

Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a federal

court must remember that any “determination of a factual issue made by a

State court shall be presumed to be correct[,]” and the petitioner bears “the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]

state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first

instance.”).

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part

test for determining whether a convicted person may have relief for ineffective

assistance of counsel. 466 U.S. 668, 687-88 (1984). A petitioner must establish:

(1) counsel’s performance was deficient and fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the defense. Id.

This is a “doubly deferential” standard of review that gives both the state court

and the petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13

(citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).

When considering the first prong, “courts must ‘indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Sealey v. Warden, 954 F.3d 1338, 1354 (11th Cir.

2020) (quoting Strickland, 466 U.S. at 689).

The second prong requires the petitioner to “show that there is a

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

of the proceeding would have been different.” Id. at 1355 (quoting Strickand,

466 U.S. at 694). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. “An ineffective-assistance claim

can be decided on either the deficiency or prejudice prong.” Id. And “[w]hile

the Strickland standard is itself hard to meet, ‘establishing that a state court’s

application of Strickland was unreasonable under § 2254(d) is all the more

difficult.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

Analysis

A. Ground 1: Trial counsel misinformed Profetto of his sentencing

range when discussing a plea offer

Profetto claims Merryott misinformed him that his maximum sentencing

exposure was 20 years, and that if he knew he faced a mandatory 25-year

sentence, he would have accepted the State’s 10-year plea offer. After an

evidentiary hearing, the postconviction court made these findings:

13…Trial Counsel testified that he discussed the 20 to 25 year

minimum mandatory penalty with the Defendant while the ten

year offer was pending on January 30, 2009. Trial Counsel further

testified that the Defendant was never interested in the State’s

plea offer because he did not believe that the co-defendants would

testify against him. Lastly Trial Counsel informed the Defendant

that if the Defendant was found guilty at trial then he faced life in

prison. The Court does not find the Defendant’s self-serving

testimony credible.

(Doc. 21 at 309 (citations omitted)). The postconviction court then held that

Profetto failed to satisfy either Strickland prong.

Profetto argues the postconviction court’s reliance on Merryott’s

testimony was objectively unreasonable. As support, Profetto attempts to

tease out several inconsistencies in Merryott’s deposition.2 Profetto focuses on

two aspects of Merryott’s testimony: (1) whether he informed Profetto of the

mandatory minimum; and (2) when and if the plea offer expired. (Doc. 32 at

5-6). On the first issue, Merryott repeatedly testified that he discussed the

sentencing range with Profetto and that Profetto knew the risk of going to trial.

(see, e.g., Doc. 21 at 331). Profetto points to a moment in cross-examination

when Merryott initially gave a contradictory answer, then corrected it when

the question was rephrased:

Q. In regards to Ground 13, what is the maximum sentence that you

informed Mr. Profetto that he could face if he lost at trial?

A. I don’t recall specifically telling him that.

Q. Okay. And what is the maximum that the charges carried?

A. Life.

Q. Okay. And at any time did you inform Mr. Profetto that if he lost

at trial he was looking at life?

A. Yes, I did.

2 The parties deposed Merryott several months before the evidentiary hearing because he

suffered from a serious medical condition. Profetto’s attorney was present, and Profetto

participated by telephone. Merryott passed away before the hearing.

(Doc. 21 at 350). This brief inconsistency does not render the state court’s

reliance on Merryott’s testimony unreasonable.

On the second issue, Profetto points to inconsistencies about when and

if the plea offer expired. Based on the notation “1/30” on the written plea offer,

Merryott believed he discussed the offer with Profetto on January 30, but he

was not sure what year. (Doc. 21 at 346). Merryott also recalled that the

prosecutor threatened to withdraw the plea offer if Merryott took depositions.

(Doc. 21 at 346). And Profetto claims the first depositions were conducted in

September 2007, which calls Merryott’s recollection of the relevant dates into

question. This issue is a red herring. While Profetto and Merryott’s discussion

about the plea offer might not have happened on January 30, 2009—as the

postconviction court found—it did happen. Profetto acknowledged as much

himself. Profetto testified he told Merryott to try negotiating the offer down to

be comparable to the sentences of Tatijana Dimic (three years) and Gibson (five

years). (Doc. 22 at 89).

Profetto has not rebutted the postconviction court’s factual findings with

clear and convincing evidence. Record evidence shows that Merryott advised

Profetto of the sentencing range and notified Profetto of the plea offer, and that

Profetto chose not to accept it. Ground 1 is denied.

B. Ground 2: Trial counsel misadvised Profetto about testifying at

trial

Profetto claims Merryott advised him not to testify because Merryott did

not believe the prosecution met its burden of proof. As a result, Profetto chose

not to testify. Merryott confirmed this. (Doc. 21 at 329). After a hearing, the

postconviction court made the following findings:

8. Trial Counsel testified that the decision to testify is a personal

decision that is always left to the Defendant. Trial Counsel stated

that he and the Defendant did discuss whether he would testify and

that counsel advised after the State rested that he believed that the

State had not proven the elements and advised the Defendant that

he did not believe he needed to testify, but that it was the

Defendant’s decision. Trial counsel testified that after their

discussion, it was the Defendant’s decision not to testify, and that

he did not coerce the Defendant or force him to make a decision one

way or the other. Counsel testified that he had concerns about the

Defendant testifying, which he conveyed to the Defendant,

including his client[‘s] prior conviction for a crime of dishonesty and

the experience of the prosecutor. Defendant indicated that he had

to testify because he had an alibi that he was with Stephanie [sic]

Dimic, during the time the charged crime was alleged to have been

committed and that the State’s star witness, Tatiana [sic] Dimic

was making up her story out of revenge. Trial counsel testified that

the Defendant never discussed an alibi defense and that in fact

Stephanie [sic] Dimic was listed as a State witness and was brought

to trial from Indiana to testify as a rebuttal witness for the State,

if needed.

9. Further, the trial transcript reflects a colloquy between the

Defendant and the Court regarding Defendant’s decision not to

testify. The Defendant clearly indicated to the Court that he

understood that his decision not to testify was his decision. He

further indicates that he had discussed his decision with his

attorney. The Court finds counsel’s testimony credible. It appears

that in hindsight, Defendant now regrets his decision to exercise

his right to remain silent.

(Doc. 21 at 307-8). The court concluded that Profetto failed to establish either

prong of Strickland.

Profetto argues the postconviction court failed to adequately consider

Merryott’s knowledge of his alibi defense because it did not mention Merryott’s

opening statement. Had Profetto taken the stand, he would have testified that

he was asleep with Stefanie Dimic at the time of the crime. During opening

statements at trial, Merryott previewed Profetto’s expected testimony:

Tom will tell you that on the date and time they had indeed agreed

to go to New Jersey. He was over at his brother’s house with

Stephanie [sic], and quite a few other people. There was drugs.

There was alcohol. Stephanie [sic] went to sleep on the couch. Tom

went to sleep on the couch with her.

(Doc. 20 at 222). At his deposition, Merryott had no recollection of Profetto

mentioning an alibi defense. (Doc. 21 at 337). But Merryott did recall that the

state had Stefanie Dimic on hand to impeach Profetto if he took the stand.

(Doc. 21 at 340).

Merryott’s memory may have been imperfect when he gave his

deposition, but that does not render his testimony wholly incredible. Nor does

it render the postconviction court’s reliance on that testimony objectively

unreasonable. What is more, the undisputed evidence supports the

postconviction court’s ruling. Merryott advised Profetto not to testify, and

Profetto chose to heed that advice.

The postconviction court’s denial or relief on this ground was consistent

with Eleventh Circuit precedent—even though Merryott’s advice was based

partly on an ultimately mistaken expectation of an exoneration. In Maharaj,

trial counsel explained to the petitioner his right to testify but advised him to

forego that right. Maharaj v. Sec’y for Dep’t of Corrs., 432 F.3d 1292, 1317-18

(11th Cir. 2005). Counsel’s advice was based in part on his mistaken belief

that the Maharaj had two outstanding warrants in Great Britain, which were

mentioned in newspaper articles. Id. at 1318. The Eleventh Circuit held, “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 articles and cannot be a sound basis for a claim of

ineffective assistance of counsel.” Id. at 1319.

Like in Maharaj, Merryott’s advice was partly flawed. He believed—

ultimately incorrectly—that the state had not established every element of the

crime. But Merryott was also concerned about cross-examination,

impeachment evidence, and a rebuttal witness. Merryott’s mistaken

expectation of a defense verdict did not negate those valid concerns. The

postconviction court correctly found that Merryott was not constitutionally

deficient when he advised Profetto not the testify. See McNeal v. Wainwright,

722 F.2d 674, 676 (11th Cir. 1984) (“Counsel will not be deemed

unconstitutionally deficient because of tactical decisions”).

Even if Merryott’s advice was unconstitutionally deficient, Profetto has

not shown prejudice. The record includes a police interview of the prosecution’s

rebuttal witness, Stefanie Dimic. She stated that Profetto left with her sister

on the night of the crime and returned the next morning. (Doc. 22 at 177-78).

Thus, Profetto’s self-serving alibi testimony likely would have carried little to

no weight with the jury. And it would have been risky, for the reasons stated

by Merryott and the postconviction court. Ground 2 is denied.

C. Grounds 3: Trial counsel failed to object to Profetto’s leg

restraint

During trial, Profetto wore a leg restraint device under his pants. He

suspects the jury saw and heard the device and faults Merryott for not raising

the issue to the trial court. The postconviction made these findings:

4…Defendant testified at the evidentiary hearing that the leg

restraint was concealed underneath his suit pant that that a bulge

could be seen. Defendant further testified that the leg restraint

would lock if the knee bent too much and that the leg restraint did

lock as he approached the bench during one bench conference

during jury selection. The Defendant testified that he believed

that the jury could hear the device lock however he also testified

that his counsel was not aware that the device had locked.

5…Trial Counsel testified that he never became aware through his

own observation, nor notification by the Defendant, that the

Defendant had any problems with the leg restraint with regards to

the device locking or being visible in the courtroom. Trial counsel

further testified that the leg restraint was not visible and if it had

been he would have brought the matter to the court’s attention.

Although the Defendant speculated that the jurors knew that he

was wearing a brace, he provided no evidence to indicate what gave

him that impression. Trial counsel testified that he never heard

the leg brace make any creaking, snapping, or popping sounds

during the trial.

(Doc. 21 at 305-6 (citations omitted)). The court found Merryott’s testimony

more credible than Profetto’s and held that Profetto failed to satisfy either

prong of Strickland.

Profetto complains that the postconviction court’s findings omitted

certain details from his postconviction motion. But the court accurately

summarized Profetto’s and Merryott’s testimony. Thus, the postconviction

court decision was based on a reasonable determination of the facts. Profetto

also claims that testimony from a bailiff and security camera footage would

show that he fell twice in the “bullpen” because of the leg brace. That evidence

was not presented to the state court, so it cannot be considered here. And

anyhow, evidence that Profetto fell outside the presence of the jury is not

relevant.

Profetto has not shown by clear and convincing evidence that the

postconviction court erred in its factual determination. And based on those

facts, the Court agrees that Profetto failed to establish either prong of

Strickland. Ground 3 is denied.

D. Ground 4: Trial counsel failed to object to the prosecutor’s

improper vouching of two state witnesses

Profetto argues Merryott should have objected to three statements the

prosecutor made during closing argument. While summarizing Tatijana

Dimic’s testimony, the prosecutor said, “And then you have to also consider, at

that point, as she’s sitting in the police station, what would be her reason to lie

about the people that are with her?” (Doc. 17 at 64). Moments later, the

prosecutor discussed the victim’s testimony:

The other testimony that came out was, that Mr. Robinett,

afterwards, after being shot, going home, getting his roommate,

heading to the hospital, saw the car again. And that he did see the

Caucasian up there, which – you know, you have to determine if

he’s telling you the truth, too. Is there any reason that he’d have

to lie to you about that? And I’d suggest to you that if he’s going

to lie, and his main purpose is that he wants to get Mr. Profetto,

you know, it’s much better to lie and say, you know, I saw him

shoot me, or I saw him in the car. But he didn’t do that. He didn’t

– there’s nothing about Mr. Robinett’s testimony that you could

consider disingenuous.

(Doc. 17 at 65-66). Finally, during rebuttal, the prosecutor responded to a

portion of Marryott’s argument:

Now, one of the last things he said was, well, what about this

burglary that happened at Mr. Robinett’s house that my client had

nothing to do with? Use your memory. Do you remember any

testimony from Mr. Robinett that his house was burglarized? The

only thing that was brought up was by Mr. Marryott, when he

asked a question of Tatijana. And she said, I don’t know what

you’re talking about. There’s been no evidence that his house was

burglarized while he was away.

(Doc. 17 at 82).

The postconviction court denied this ground before the evidentiary

hearing. After summarizing relevant precedent, the court found:

35. Upon review of the transcript of closing arguments, the Court

can find no improper bolstering. At no point does the State place

the prestige of the government behind the witness. These

statements seem designed to request the jury determine for

themselves the credibility of the witness, and to remind the jury of

testimony elicited at trial. As such this claim can be denied

without evidentiary hearing.

(Doc. 20 at 47-48). This Court agrees.

A prosecutor may not “bolster a witness’s testimony by vouching for that

witness’s credibility.” United States v. Contreras Maradiaga, 987 F.3d 1315,

1327 (11th Cir. 2021). But that rule does not “prevent the prosecutor from

commenting on a witness’s credibility, which can be central to the

government’s case.” Id. The Eleventh Circuit explained the difference:

While a prosecutor may not make personal assurances about a

witness’s veracity, such as by stating “I believe the witness is

telling the truth,” a prosecutor is permitted to comment on a

witness’s credibility and indicate his opinion or knowledge of the

case if the prosecutor makes it clear that the conclusions he is

urging are conclusions to be drawn from the evidence.

Id.

The prosecutor’s statements in Profetto’s trial were not improper

vouching. Rather, he urged the jury to find the state’s witnesses credible based

on the evidence. And the prosecutor did not—as Profetto contends—refer to

evidence not presented to the jury when countering Merryott’s argument about

a burglary. He instead encouraged the jury to consider only the evidence they

heard at trial. Ground 4 is denied.

E. Ground 5: Trial counsel failed to impeach Tatijana Dimic

Profetto contends that although Merryott impeached Tatijana Dimic at

least five times, he missed five other opportunities to do so. The Court will

address each of the testimonial statements Profetto claims should have been

impeached.

1. Tatijana never dated the victim

At trial, Tatijana stated she and the victim, Randy Robinett, where

friends and denied any romantic or sexual relationship with him. (Doc. 16 at

333). Profetto argues Merryott should have impeached Tatijana with the

following exchange during a police interview:

MC: And how do you know Randy?

TD: Uh, uh, a girlfriend introduced me to him, like, about three,

almost four years ago. And I just went out with him.

MC: What would you categorized your relationship with him? Are

you friends? Are you –

TD: Yeah, friends.

(Doc. 26-2 at 2).

The postconviction court did not address this sub-ground, but it clearly

lacks merit. Tatijana’s pretrial statement is not meaningfully inconsistent

with her trial testimony. An attempt to impeach her on this point would not

likely have helped Profetto’s case. In fact, such a flimsy attempt to impeach

Tatijana might have undermined Merryott’s successful attacks on her

credibility. The Court denies relief on this sub-ground.

2. Tatijana dated Profetto

At trial, Tatijana described Profetto as her ex-boyfriend. (Doc. 16 at 329).

Profetto acknowledges this to be true, but he believes Merryott should have

impeached Tatijana with her prior denials that they dated. (See Doc. 26-2 at

2-3). The postconviction court apparently misunderstood this claim. It said,

“After review of the trial testimony, the Court finds that Defendant’s claim is

refuted by the record. Dimic never denied being in a relationship with

Defendant [at trial].” (Doc. 20 at 40).

Profetto argues that by showing Tatijana lied in her previous

statements, Merryott could have damaged her credibility. But Merryott

repeatedly impeached her trial testimony with inconsistent statements, and

she admitted that she lied to the police multiple times. (Doc. 16 at 356-60; Doc.

17 at 1). Impeaching Tatijana’s true trial testimony that she dated Profetto

with earlier false statements would not likely have affected the outcome of the

trial. This sub-ground is denied.

3. Profetto had never asked Tatijana to aid in a robbery before

This sub-ground does not relate to Tatijana’s trial testimony. Rather,

Profetto contends Merryott should have highlighted two inconsistent

statements she made before trial. Profetto claims Tatijana alternatingly

stated that Profetto did and did not ask her to help him rob Robinett months

before the crime. The postconviction court rejected this argument because the

inconsistencies in prior statements is relatively insignificant and, more

importantly, this impeachment would have required Merryott to present

inculpatory evidence. The Court agrees. This attack on Tatijana’s credibility

would have required Merryott to elicit testimony that Profetto had

contemplated robbing the victim months prior. The damage of that testimony

would have far outweighed any benefit. This sub-ground lack merit.

4. Profetto broke up with Tatijana on her birthday

At trial, the prosecutor asked Tatijana when she and Profetto broke up,

and she said, “I think it was on my birthday.” (Doc. 16 at 331). Profetto

contends this “was a material matter one would expect to have reported at the

outset and not for the first time at trial.” (Doc. 8 at 23). As the postconviction

court found, Profetto’s claim of materiality is conclusory. And Profetto does

not identify any prior statement Merryott could have used to impeach Tatijana.

This sub-ground lacks merit.

5. Tatijana drove toward the scene of the crime around midnight

The prosecutor asked Tatijana when she, Profetto, and Gibson arrived

at Profetto’s house after leaving his brother’s house, just before going to the

scene of the crime. She answered, “I’m not sure of the time; midnight, maybe.”

(Doc. 16 at 337). Profetto claims this statement does not fit into the established

timeline of the crime—Robinett was shot around 5:00 or 6:00 a.m. The

postconviction court found that even if Merryott missed an opportunity to

impeach Tatijana, Profetto failed to “demonstrate a reasonable likelihood that

had trial counsel questioned the witness regarding the time she left the

Defendant’s home that a different outcome would have occurred.” (Doc. 20 at

42). The Court agrees. Merryott aptly attacked Tatijana’s credibility on cross-

examination. Impeaching her recollection of the timeline of the night—about

which she had already admitted uncertainty—would not likely have made any

difference. This sub-ground is denied.

F. Trial counsel failed to call an expert on drug use

Profetto argues Merryott denied him an adequate defense by not calling

an expert witness to testify about the possible effect of drug use on Tatijana’s

memory of the crime. The postconviction court found this claim facially

insufficient because Profetto failed to state (1) the name of the witness, (2) the

substance of the testimony, and (3) that the witness was available to testify.

(Doc. 20 at 43). It also found the claim meritless because expert testimony

would not have been admissible:

21…Expert testimony is generally only admissible when the facts

affecting the reliability of testimony are not within the ordinary

experience of the jurors and requires expertise beyond the common

knowledge of the jurors. Johnson v. State, 393 So. 2d 1069, 1072

(Fla. 1980); §90.702 Florida Statutes. The admissibility of expert

testimony regarding the reliability of eyewitness testimony is left

to the sound discretion of the trial judge, and they must consider

whether the testimony would have aided the jury in reaching their

decision. McMullen v. State, 714 So. 2d 368, 372 (Fla. 1998).

Defendant argues that the average person does not consume

narcotic drugs, and therefore is not capable of deciding or

understanding without the aid of an expert.

22. This Court disagrees. Though the average person may not

consume narcotic drugs, they are likely fully aware that a person

under the influence of narcotics has a limited cognizance or

awareness of their surroundings while so influenced. Therefore, it

is unlikely that the expert testimony would have been allowed at

trial, as it would not have assisted the jury in forming their

conclusions. Counsel cannot be deemed ineffective for failing to

present inadmissible evidence. See Pietri v. State, 885 So. 2d 245,

252 (Fla. 2004); Tefteller v. Dugger, 734 So. 2d 1009, 1020 (Fla.

1999).

(Doc. 20 at 43) (citations to the record omitted).

Profetto notes that the first part of the postconviction court’s decision

was contrary to State v. Lucas, 183 So.3d 1027 (Fla. 2016), which held that a

Rule 3.850 movant who complains that his attorney failed to call an expert

witness need not name a specific expert. But Profetto does not identify any

clearly established federal law, as required by § 2254. Nor does he

meaningfully challenge the postconviction court’s alternative reasoning—that

the proposed expert testimony would have been inadmissible under Florida

law.

Federal habeas courts may “not review a question of federal law decided

by a state court if the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.”

Coleman v. Thompson, 501 U.S. 722, 729 (1991). The postconviction court

decided that Profetto’s proposed expert testimony would have been

inadmissible under Florida state law. This Court cannot disturb a state court

evidentiary ruling absent some resulting fundamental unfairness, which

Profetto has not demonstrated. See Snowden v. Singletary, 135 F.3d 732, 737

(11th Cir. 1998). The Court thus accepts that expert testimony on drug use

would not have been admissible at trial. It follows that Merryott’s decision not

to call an expert witness was not deficient representation and that Profetto

suffered no prejudice. Ground 6 is denied.

G. Ground 7: Trial counsel failed to seek DNA testing

Profetto next faults Merryott for not seeking DNA testing of beer bottles

and cigarette butts found at the scene of the crime. Profetto claims these items

“were not found in a public place but miles from civilization on a desolate road

where no other than the perpetrators could have been.” (Doc. 8). The

postconviction court rejected his argument:

30…Both Defendant and the State agree that no testimony was

elicited that indicated the evidence was connected to the

Defendant or any particular person. A review of the record

confirms a lack of connections. Defendant argues that common

sense dictates that no one other than the perpetrators could have

left said evidence and relies on Smyth v. State, 84 So. 3d 388 (Fla.

4th DCA 2012).

31. In Smyth, the court required an evidentiary hearing regarding

testing hair found within victim’s underwear. The case relied upon

by the Defendant is easily distinguishable. A road traversed by

anyone at anytime and an intimate article of clothing worn by a

victim cannot be considered analogous. Without any testimony

linking the evidence, DNA testing would only have served to

indicate who had passed by that stretch of road at some point

within an indeterminate time frame. As such, Defendant’s

speculative and conclusory statements that the evidence must

have belonged to the perpetrators and DNA testing would have

exonerated him are legally insufficient.

(Doc. 20 at 45-46). Profetto responds with speculation that DNA testing could

have identified someone “closely affiliated with Dimic.” (Doc. 32 at 18). He

does not show that the postconviction court’s decision was contrary to any

clearly established federal law or was based on an unreasonable determination

of the facts. Ground 7 is denied.

H. Ground 8: Trial counsel failed to object to disparate sentencing

Gibson, the other alleged shooter in this case, pled guilty and received a

5-year prison sentence. Profetto argues Merryott should have objected to his

disparate 35-year sentence. The postconviction court summarily denied this

claim. The 2nd DCA agreed the ground was facially insufficient but remanded

with instructions to allow Profetto to amend. The postconviction court denied

the amended ground. First, it noted that a jury found Profetto guilty of

Attempted First Degree Murder and of possessing and discharging a firearm

during the commission of the offense. (Doc. 22 at 387). Whereas Gibson plead

guilty to the reduced charge of Aggravated Battery with a Deadly Weapon. The

court then reasoned as follows:

4. The Defendant’s ground rests first on the premise that the

Defendant and the co-defendant, Jevon Gibson, were equally

culpable. This Court has reviewed the trial transcript contained

within the Court file and finds that based on the trial testimony of

the victim, Randy Robinett and the co-defendant, Tatijana Dimic,

the Defendant and Javon Gibson were not equally culpable. At

trial the victim testified that he knew the Defendant since the

third grade, that they were old friends, and had been roommates.

Further, the victim testified that Gibson was a mere

“acquaintance,” someone that he had said hello to during high

school but not someone he “hung out” with. Additionally, Dimic

testified that the Defendant is the one who approached her with

the planned robbery. Although there was some dispute as to

whether Gibson was present for this conversation, the

uncontroverted testimony was that the Defendant detailed the

specific plan, to lure Robinette [sic] out to a desolate street to help

her fix her car, to Dimic and sought her assistance in carrying out

the plan. There was no testimony that Gibson participated in this

conversation or encouraged Dimic to take part in the plan.

Further, after the plan was botched, the Defendant told Dimic that

she was now an accessory and told her not to say anything.

The Court finds that a further review of the disparity in prior

criminal record is unnecessary as the Defendant, Gibson, and

Dimic were not equally culpable. Counsel cannot be ineffective for

failing to raise a meritless claim. Further Defendant has failed to

show that there is a reasonable probability that he would have

received a different sentence has [sic] counsel made such an

argument. As this ground is conclusively refuted by the record,

the Defendant’s amended claim...is denied.

(Doc. 22 at 387-88) (citations omitted).

Profetto challenges the postconviction court’s finding that he and Gibson

were not equally culpable. He points to four pieces of evidence: (1) Tatijana

acknowledged on cross-examination that Gibson was in the room when

Profetto recruited her to aid in the robbery after testifying on direct that he

was not; (2) Robinett testified he saw muzzle flashes from two shooters; (3) two

different sized shell casings were found at the scene; and (4) the victim was

shot 17 times. (Doc. 32 at 19).

Profetto fails to establish that the postconviction court’s decision was

based on an unreasonable determination of the facts. The evidence he points

to is consistent with the court’s factual findings, and it does not undermine the

court’s determination that Profetto and Gibson were not equally culpable.

Ground 8 is denied.

DENIAL OF CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute entitlement

to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather,

a district court must first issue a certificate of appealability (COA). “A [COA]

may issue…only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a

petitioner must demonstrate that “reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong,” Tennard

v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 478,

484 (2000)), or that “the issues presented were adequate to deserve

encouragement to proceed further,” Miller—El v. Cockrell, 537 U.S. 322, 335-

36 (2008) (citations omitted). Profetto has not made the requisite showing here

and may not have a certificate of appealability on any ground of his Petition.

Accordingly, it is now

ORDERED:

Petitioner Thomas James Profetto’s Petition under 28 U.S.C. § 2254 for

Writ of Habeas Corpus by a Person in State Custody (Doc. 8)is DENIED. The

Clerk of the Court is ORDERED to terminate any pending motions, enter

judgment, and close this case.

DONE and ORDERED in Fort Myers, Florida on March 28, 2021.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record