Bradwell v. Secretary, Department of Corrections, (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBERT JAMES BRADWELL, JR.,

Petitioner,

-vs- Case No. 8:18-cv-1899-CEH-AAS

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________/

ORDER

Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of

habeas corpus under 28 U.S.C. § 2254 (Doc. 1). Respondent filed a response opposing

the petition (Doc. 11), to which Petitioner replied (Doc. 15). Upon consideration, the

petition will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner was charged with first-degree murder and aggravated child abuse (Doc.

12-2, Ex. 1, docket pp. 50-51). He was convicted as charged (id., docket p. 401) and

sentenced to life in prison on the murder conviction, and 30 years in prison (concurrent)

on the aggravated child abuse conviction (Doc. 12-3, Ex. 1, docket pp. 146-49). The

convictions and sentences were affirmed on appeal (Doc. 12-4, Ex. 5).

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Petitioner filed a motion, supplemental motion, and amended motion under Rule

3.850, Fla.R.Crim.P., alleging twelve grounds for relief (Doc. 12-4, Exs. 7-9). The state

post-conviction court denied nine claims, reserved ruling on one claim (Ground Ten),

and directed the State to respond to the remaining two claims (Grounds Two and

Eleven) (Doc. 12-4, Ex. 10, docket pp. 495-526). After the State responded (Doc. 12-6,

Ex. 11), the state post-conviction court continued to reserve ruling on Ground Ten and

ordered an evidentiary hearing on Grounds Two and Eleven (Id., Ex. 12). After the

evidentiary hearing (id., Ex. 13), Grounds Two and Ten were denied, and Ground

Eleven was dismissed with prejudice (Doc. 12-7, Ex. 14). The denial of the Rule 3.850

motion was affirmed on appeal (Id., Ex. 17).

Petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance

of appellate counsel on direct appeal (Doc. 12-7, Ex. 21). The petition was denied (Id.,

Ex. 23).

Finally, Petitioner filed his federal habeas petition in this Court alleging seven

grounds for relief (Doc. 1).

II. GOVERNING LEGAL PRINCIPLES

Because Petitioner filed his petition after April 24, 1996, this case is governed by

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353

F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard

of review of state habeas judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir.

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2001), 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,

693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the

federal habeas court’s evaluation of state-court rulings is highly deferential and that

state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Under the AEDPA, habeas relief may not be granted regarding a claim

adjudicated on the merits in state court 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.

28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only

the holdings of the United States Supreme Court “as of the time of the relevant state-

court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

“[S]ection 2254(d)(1) provides two separate bases for reviewing state court

decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent

considerations a federal court must consider.” Maharaj v. Secretary for Dep’t. of Corr., 432

F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the

Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the “contrary to” clause, a federal court may grant the writ if the state

court arrives at a conclusion opposite to that reached by [the United States

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Supreme Court] on a question of law or if the state court decides a case differently

than [the United States Supreme Court] has on a set of materially

indistinguishable facts. Under the ‘unreasonable application’ clause, a federal

habeas court may grant the writ if the state court identifies the correct governing

legal principle from [the United States Supreme Court’s] decisions but

unreasonably applies that principle to the facts of the prisoner’s case.

If the federal court concludes that the state court applied federal law incorrectly, habeas

relief is appropriate only if that application was “objectively unreasonable.” Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if

the state court’s decision “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” A determination of a

factual issue made by a state court, however, shall be presumed correct, and the habeas

petitioner shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984), established a two-part test for determining whether a convicted person is entitled

to relief on the ground that his counsel rendered ineffective assistance: (1) whether

counsel’s performance was deficient and “fell below an objective standard of

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

at 687-88. A court must adhere to a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Id. at 689-90. “Thus, a

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

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

conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective

assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test

even what most good lawyers would have done. We ask only whether some

reasonable lawyer at the trial could have acted, in the circumstances, as defense

counsel acted at trial. Courts also should at the start presume effectiveness and

should always avoid second guessing with the benefit of hindsight. Strickland

encourages reviewing courts to allow lawyers broad discretion to represent their

clients by pursuing their own strategy. We are not interested in grading lawyers’

performances; we are interested in whether the adversarial process at trial, in fact,

worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under

those rules and presumptions, “the cases in which habeas petitioners can properly

prevail on the ground of ineffective assistance of counsel are few and far between.”

Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

Claims that appellate counsel provided ineffective assistance are also

analyzed under the two-part test in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000);

Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir.1991). To establish a claim, Petitioner

must show that appellate counsel’s performance was objectively unreasonable, and there

is a reasonable probability that, but for this performance, Petitioner would have

prevailed on his appeal. Robbins, 528 U.S. at 285–86.

C. Exhaustion of State Remedies and Procedural Default

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Before a district court can grant habeas relief to a state prisoner under § 2254, the

petitioner must exhaust all state court remedies available for challenging his conviction,

either on direct appeal or in a state post-conviction motion. See § 2254(b)(1)(A);

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state

courts an opportunity to act on his claims before he presents those claims to a federal

court in a habeas petition.”). A state prisoner “‘must give the state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the

State’s established appellate review process,’ including review by the state’s court of last

resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-

59 (11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845.)

To exhaust a claim, a petitioner must make the state court aware of both the legal

and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.

1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t]

federal claims to the state courts in order to give the State the opportunity to pass on and

correct alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513

U.S. 364, 365 (1995)). A federal habeas petitioner “shall not be deemed to have

exhausted the remedies available in the courts of the State...if he has the right under the

law of the State to raise, by any available procedure, the question presented.” Pruitt, 348

F.3d at 1358. The prohibition against raising an unexhausted claim in federal court

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extends to both the broad legal theory of relief and the specific factual contention that

supports relief. Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement of exhausting state remedies as a prerequisite to federal review is

satisfied if the petitioner “fairly presents” his claim in each appropriate state court and

alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v.

Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court

“by citing in conjunction with the claim the federal source of law on which he relies or a

case deciding such claim on federal grounds, or simply by labeling the claim ‘federal.’”

Baldwin v. Reese, 541 U.S. 27, 32 (2004).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default

which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner

“must demonstrate that some objective factor external to the defense impeded the effort

to raise the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir.

1999). see also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner

must demonstrate not only that the errors at his trial created the possibility of prejudice

but that they worked to his actual and substantial disadvantage and infected the entire

trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982).

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The petitioner must show at least a reasonable probability of a different outcome.

Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

Alternatively, a petitioner may obtain federal habeas review of a procedurally

defaulted claim if review is necessary to correct a fundamental miscarriage of justice.

Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A

fundamental miscarriage of justice occurs in an extraordinary case where a

constitutional violation has probably resulted in the conviction of someone who is

actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). “‘[A]ctual innocence’ means

factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,

623 (1998). To meet this standard, a petitioner must show a reasonable likelihood of

acquittal absent the constitutional error. Schlup, 513 U.S. at 327.

III. ANALYSIS

GROUND ONE: THE TRIAL COURT ERRED IN DENYING PETITIONER'S

MOTION FOR JUDGMENT OF ACUITTAL [sic] WHERE THE EVIDENCE

WAS CIRCUMSATNTIAL [sic] AND THE STATE FAILED TO PRESENT

EVIDENCE EXCLUDING A REASONABLE HYPOTHESIS OF INNOCENCE.

(Doc. 1, p. 3)

Petitioner contends the trial court erred in denying his motion for judgment of

acquittal because the evidence presented was purely circumstantial and failed to

eliminate all reasonable hypotheses of innocence. He asserts there was no direct

evidence he killed the victim, and the State’s expert conceded that the “blunt impact” to

the victim’s stomach could have been caused by another child jumping onto the victim.

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He argues a judgment of acquittal was appropriate because the State’s expert witness

established a reasonable hypothesis of innocence.

Respondent contends to the extent the claim attempts to assert a denial of federal

due process, Petitioner failed to exhaust it in state court, because he failed to present it

as a federal claim on direct appeal of his conviction, and the claim is now procedurally

defaulted (Doc. 11, pp. 14-17). Respondent additionally contends even if Ground One

was not procedurally defaulted, it is without merit (Id., pp. 17-25).

The state court record demonstrates that in Petitioner’s brief on direct appeal, he

argued the trial court erred by denying his motion for judgment of acquittal because the

evidence failed to satisfy Florida’s circumstantial evidence rule (Doc. 12-4, Ex. 2, docket

pp. 281-89). He framed his claim of trial court error in terms of state law without

making any reference to federal law. In the body of his argument, he made no reference

to the United States Constitution or federal law, and he cited no federal cases (Id.).

Nothing in Petitioner’s brief put the state court on notice that the issue was presented as

a federal due process claim. Petitioner’s claim of trial court error regarding the denial of

the motion for judgment of acquittal was not fairly presented to the state court as a

federal constitutional claim and therefore is unexhausted. See, e.g., Pearson v. Sec’y, Dep’t

of Corr., 273 F. App’x 847, 850 (11th Cir.2008) (petitioner’s federal sufficiency of

evidence claim was not exhausted where petitioner cited exclusively to Florida cases in

state court and addressed Florida law in all of his substantive arguments, even though

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Florida courts assess sufficiency of evidence under standard identical to federal

standard).

Now, any further attempt at exhaustion in the state courts would be futile,

because Petitioner’s claim would be procedurally barred under Florida law. See

Rodriquez v. State, 919 So.2d 1252, 1262 n. 7 (Fla.2005) (holding that issues were

procedurally barred because they should have been, but were not, raised on direct

appeal); v. State, 445 So.2d 323, 325 (Fla.1983) (“Issues which either were or could have

been litigated at trial and upon direct appeal are not cognizable through collateral

attack.”). Because Petitioner cannot return to state court to exhaust a federal claim in a

second direct appeal, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138.

Petitioner has not established that an exception applies to overcome the default.

The claim likewise warrants no relief on the merits because it presents only an

issue of state law based upon Florida’s circumstantial evidence rule, which is not

cognizable in federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have

stated many times that ‘federal habeas corpus relief does not lie for errors of state law.’”)

(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). And to the extent he attempts to

present a federal due process violation claim based on the State’s failure to prove each

element of the offense (Doc. 1, p. 4), the claim warrants no relief because Petitioner fails

to identify which element of which offense the State failed to prove. See Tejada v. Duggar,

941 F.2d 1551, 1559 (11th Cir.1991) (habeas petitioner is not entitled to evidentiary

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hearing when claims are “merely conclusory allegations unsupported by specifics”

(internal quotation marks omitted)). Ground One is therefore denied.

GROUND TWO: THE TRIAL COURT ERRED BY ADMITTING TESTIMONY

RELATING TO OLD INJURIES NOT ATTRIBUTED TO THE PETITIONER

THAT DID NOT CONTIBUTE [sic] TO THE VICTIM’S DEATH (Doc. 1, p. 4)

Petitioner alleges the victim had injuries to her skull and brain that did not

contribute to her death and were suffered before the time of her death. According to

Petitioner, defense counsel’s pre-trial motion in limine was granted prohibiting any

reference to these injuries. But the trial court allowed the State to: 1) question its expert

medical witness about those injuries; and 2) enter into evidence a photograph of those

injuries. Petitioner contends admitting that evidence violated his due process rights. He

argues the evidence was irrelevant and prejudicial because there was no clear and

convincing evidence: 1) he caused those injuries; and 2) those injuries contributed to the

death of the victim.

Respondent contends the claim is unexhausted and procedurally barred (Doc. 11,

pp. 25-26). The Court agrees. Petitioner raised the issue on direct appeal (Doc. 12-4, Ex.

2, docket pp. 289-92) but neither labeled the issue “federal,” nor cited the federal

constitution or a case deciding a similar claim on federal law. Reese, 541 U.S. at 32.

Rather, he solely argued the evidence was irrelevant and inadmissible under Florida law

(Id.).

If Petitioner returned to state court to raise the claim, the state court would deny

the claim as procedurally defaulted. Fla. R. Crim. P. 3.850(c) (“This rule does not

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authorize relief based on grounds that could have or should have been raised at trial

and, if properly preserved, on direct appeal of the judgment and sentence.”). Petitioner

has not established that an exception applies to overcome the default. Accordingly,

because Ground Two is unexhausted and procedurally barred from federal review, it

warrants no relief. Snowden, 135 F.3d at 736.

GROUND THREE: THE STATE OF FLORIDA VIOLATED THE

PETITIONER’S CONSTITUTIONAL RIGHTS WHEN THE PROSECUTOR

IMPROPERLY COMMENTED ON THE PETITIONER’S RIGHT TO REMAIN

SILENT AND IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE

PETITIONER (Doc. 1, p. 6)

Petitioner contends his rights to due process under the Fifth and Fourteenth

Amendments were violated when, during closing arguments, the prosecutor made

improper comments that violated Petitioner’s right to remain silent and shifted the

burden of proof to him. He argues that the prosecutor improperly commented on his

right to remain silent in stating:

. . .Now, is there any evidence in this case that Keyondre Lee caused these

injuries? Is there one piece of evidence? Did the defendant when he walked

in, did he say: They were playing and I think he may have jumped on her.

Or I think he may have done this to her. When he walked in there I

separated them. When I walked in there she told me he jumped on me.

Anything like that from the defendant’s mouth?....

(Doc. 1, p. 6).

Respondent contends the claim is unexhausted and procedurally barred

(Doc. 11, pp. 30-31). The Court agrees. Petitioner raised the issue on direct

appeal (Doc. 12-4, Ex. 2, docket p. 299) but neither labeled the issue “federal,”

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nor cited the federal constitution or a case deciding a similar claim on federal law.

Reese, 541 U.S. at 32. He therefore failed to alert the state court of the federal

nature of the claim.

If Petitioner returned to state court to raise the federal claim, the state court

would deny the claim as procedurally defaulted. Fla. R. Crim. P. 3.850(c) (“This

rule does not authorize relief based on grounds that could have or should have

been raised at trial and, if properly preserved, on direct appeal of the judgment

and sentence.”). Petitioner has not established that an exception applies to

overcome the default.

Moreover, the State argued both that the claim was not preserved for

appellate review because it was never raised in the trial court and was without

merit (Doc. 12-4, Ex. 3, docket pp. 353-55). The appellate court affirmed

Petitioner’s convictions without a written opinion (Id., Ex. 5). Therefore, this

claim is procedurally barred from federal habeas review because it was

procedurally defaulted in the state appellate court, having not been properly

preserved for review.

In Florida, “[f]or an issue to be preserved for appeal, it must be presented

to the lower court, and the specific legal argument or ground to be argued on

appeal must be part of that presentation.” Doorbal v. State, 983 So. 2d 464, 492

(Fla. 2008). Petitioner did not present the argument he makes here, and that he

made in the state appellate court, to the state trial court (see Doc. 12-4, Ex. 1,

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docket pp. 163-64). The state appellate court affirmed without opinion and this

Court “may not assume that had the state court issued an opinion, it would have

ignored its own procedural rules and reached the merits of this [issue]. In fact, the

most reasonable assumption is that had the state court ruled, it would have

enforced the procedural bar.” Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993).

“[C]onsistent with the longstanding requirement that habeas petitioners

must exhaust available state remedies before seeking relief in federal court,” the

Supreme Court has held that, “when a petitioner fails to raise his federal claims in

compliance with relevant state procedural rules, the state court's refusal to

adjudicate the claim ordinarily qualifies as an independent and adequate state

ground for denying federal review.” Cone v. Bell, 556 U.S. 449, 465 (2009).

Because Petitioner failed to present his claim to the state trial court, the denial of

the claim by the state appellate court is presumed to rest on the independent and

adequate state ground of lack of preservation, and therefore this claim is

procedurally defaulted.

Petitioner fails to demonstrate cause for the default and prejudice. And he

cannot meet the “fundamental miscarriage of justice” exception because he

presents no “new reliable evidence” that he is actually innocent. Schlup, 513 U.S.

at 327. Because Petitioner satisfies neither exception to procedural default,

Ground Three is procedurally barred from federal review.

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Even if Ground Three were not procedurally barred, it would fail on the

merits. The prosecutor’s comments were proper, considering defense counsel

argued the victim’s brother could have caused the fatal injuries (Doc. 12-4, Ex. 1,

docket p. 128, 135-37). See United States v. Hiett, 581 F.2d 1199, 1204 (5th

Cir.1978) (a “prosecutor, as an advocate, is entitled to make a fair response to the

arguments of defense counsel.”). Moreover, the prosecutor’s comments referred

to Petitioner’s failure to inform medical personnel at the hospital how the victim

sustained her injuries, not his silence after he was arrested (Doc. 12-4, Ex. 1,

docket pp. 163-67). A prosecutor may comment during closing argument on a

defendant’s prearrest pre-Miranda1 silence. See United States v. Rivera, 944 F.2d

1563, 1567–68 (11th Cir.1991) (holding that the Government may comment on a

defendant’s silence if it occurred before he is arrested and given his Miranda

warnings).

Ground Three is unexhausted and procedurally barred from federal review.

Moreover, the claim is without merit. Accordingly, Ground Three warrants no

relief.

GROUND FOUR: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE

OF THE PETITIONER’S PRIOR FELONY RECORD VILOTATING [sic] HIS

CONSTITUTIONAL RIGHT TO A FAIR TRIAL (Doc. 1, pp. 7-8)

1 Established in Miranda v. Arizona, 384 U.S. 436 (1966), the Fifth Amendment right to remain

silent is intended to operate prophylactically to protect a defendant from making self-

incriminating statements during his arrest or interrogation that might be used against him in the

course of subsequent legal proceedings. Id. at 478-79.

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Petitioner contends his rights under the Fifth, Sixth, and Fourteenth

Amendments were violated when the state trial court admitted evidence of his prior

felony record. His prior record, he argues, was erroneously admitted under Section

90.806(1), Fla. Stat. He further argues the prejudice caused to him by admission of his

prior record far outweighed the probative value of the evidence.

Respondent argues Ground Four is unexhausted, procedurally barred, and merits

no relief because it is actually a state-law claim not cognizable on federal habeas review

(Doc. 11, pp. 34-38). The Court agrees.

In Issue V of his Initial Brief on direct appeal, Petitioner argued that admission of

his felony record was erroneous under Florida law, specifically Sections 90.806(1) and

90.403, Fla. Stat. (Doc. 12-4, Ex. 2, docket pp. 300-07). He neither labeled the issue

“federal,” nor cited the federal constitution or a case deciding a similar claim on federal

law (Id.). He failed to alert the state appellate court he was alleging a denial of due

process and fair trial claim under the Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution. Accordingly, he failed to exhaust the federal nature of this

claim.

If Petitioner returned to state court to raise the federal claim, the state court

would deny the claim as procedurally defaulted. Fla. R. Crim. P. 3.850(c) (“This rule

does not authorize relief based on grounds that could have or should have been raised at

trial and, if properly preserved, on direct appeal of the judgment and sentence.”).

Petitioner has not established that an exception applies to overcome the default.

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To the extent Petitioner asserts in Ground Four that the state trial court erred

under Florida law in admitting his prior felony record, this is a state law issue that is not

cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)

(federal habeas relief is available to correct constitutional errors). It is not the province of

this Court to review the state trial court’s evidentiary rulings under state law, even if

Petitioner couches his claim as a denial of federal due process. See Branan v. Booth, 861

F.2d 1507, 1508 (11th Cir. 1988) (per curiam) (quoting Willeford v. Estelle, 538 F.2d 1194,

1198 (5th Cir. 1976) (“This limitation on federal habeas review is of equal force when a

petition, which actually involves state law issues, is ‘couched in terms of equal

protection and due process.’”).

Petitioner’s federal due process claim is procedurally barred from review. And his

challenge to the state court’s evidentiary ruling under Florida law is not cognizable on

federal habeas review. Ground Four therefore warrants no relief.

GROUND FIVE: APPELLATE COUNSEL RENDERED INEFFECTIVE

ASSISTANCE FOR FAILING TO ARGUE THAT THE EVIDENCE USED TO

CONVICT THE PETITIONER WAS INSUFFICIENT TO SUPPORT A

CONVICTION OF FIRST DEGREE MURDER OF A CHILD AND

AGGRAVATED CHILD ABUSE (Doc. 1, p. 9).

Petitioner contends his appellate attorney was ineffective in failing to argue on

direct appeal the evidence was insufficient to support the convictions for first-degree

murder and aggravated child abuse. Specifically, he argues there was no evidence he

struck the victim and caused her death.

17

This claim warrants no relief for a few reasons. First, the claim is procedurally

barred from review because the specific claim Petitioner presents here was not presented

to the state court. Although Petitioner argued, in a vague and general manner, in his

state petition for writ of habeas corpus that appellate counsel was ineffective in failing to

raise a claim of insufficiency of the evidence, he failed to specifically argue there was no

evidence showing he struck the victim and caused her death (Doc. 12-7, Ex. 21, docket

pp. 408-11).

To exhaust state remedies under 28 U.S.C. § 2254(b), (c), “the substance of a

federal habeas corpus claim must first be presented to the state courts.” Picard, 404 U.S.

at 275-75. Therefore, “where the factual bases underlying [a] petitioner’s federal claim

are significantly different from those underlying his state claim,” state remedies are

unexhausted. Burns v. Estelle, 695 F.2d 847, 850 (5th Cir.1983) (citation omitted). The

factual basis of Petitioner’s claim is different in his federal petition than in his state

petition alleging ineffective assistance of appellate counsel. For the first time he argues

there was insufficient evidence showing he struck and killed the victim.

He therefore “has not exhausted his state remedies regarding his claim of ineffective

assistance of counsel because the factual details forming the basis of his present claim

(failure to argue on appeal there was insufficient evidence he stuck and caused the death

of the victim) were not presented to the state court when he raised the issue there.” Id. at

849. The present claim of ineffective assistance of appellate counsel is materially broader

than the one he presented to the state court. Consequently, his claim is unexhausted.

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The unexhausted claim is procedurally barred because it was not presented to the

state court and would be barred if it now was presented there. See Fla.R.App.P.

9.141(c)(4)(B) (stating that “[a] petition alleging ineffective assistance of appellate

counsel shall not be filed more than 2 years after the conviction becomes final on direct

review unless it alleges under oath with a specific factual basis that the petitioner was

affirmatively misled about the results of the appeal by counsel.”). Since Petitioner has

not established cause to excuse his default, the claim is procedurally barred from review.

Second, appellate counsel was not ineffective in failing to argue there was

insufficient evidence showing Petitioner struck and caused the death of the victim

because the issue was not preserved for appeal. In Florida, “in order for an argument to

be cognizable on appeal, it must be the specific contention asserted as the legal ground

for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332, 338

(Fla.1982). Florida appellate courts decline to review the denial of a motion for

judgment of acquittal where the motion failed to make the specific argument raised on

appeal. See e.g., Woods v. State, 733 So.2d 980, 984–85 (Fla.1999) (rejecting the appeal of

the denial of a motion for judgment of acquittal that failed to set forth “the specific

grounds upon which the motion was based”).

During trial, defense counsel’s motion for judgment of acquittal advanced only

the argument that the evidence before the trial court was purely circumstantial and

failed to eliminate all reasonable hypotheses of innocence (Doc. 12-4, Ex. 1, docket pp.

57-76). Never did defense counsel argue there was insufficient evidence showing

19

Petitioner struck the victim and caused her death (Id.). Consequently, that issue was not

preserved for appeal. See Vargas v. State, 845 So.2d 220, 221 (Fla. 2d DCA 2003) (finding

that while a motion for judgment of acquittal arguably preserved the issue of the

defendant’s identity as the murderer, it was insufficient to preserve the issue of

premeditation). Therefore, appellate counsel cannot be deemed ineffective for failing to

raise the issue on appeal. Farina v. Sec’y, Fla. Dep’t of Corr., 536 F. App’x 966, 974 (11th

Cir. 2013) (“[A]ppellate counsel cannot be ineffective under Florida law for failing to

raise an unpreserved error[.]”).2

Third and finally, Petitioner cannot demonstrate prejudice because had appellate

counsel raised this claim on direct appeal, it would not have succeeded. Petitioner was

convicted of first-degree felony murder and aggravated child abuse. To prove the crime

of first-degree felony murder, the State had to prove these three elements beyond a

reasonable doubt: 1) the victim is dead; 2) the victim’s death occurred as a consequence

of and while Petitioner was engaged in the commission of the felony of aggravated child

abuse or the felony of attempted aggravated child abuse; and 3) Petitioner is the person

who actually killed the victim (Doc. 12-4, Ex. 1, docket p. 192). To prove the crime of

aggravated child abuse, the State had to prove these two elements beyond a reasonable

doubt: (1) Petitioner knowingly or willfully committed child abuse upon the victim, and

(2) the victim was under the age of 18 years (Id., docket p. 196). “The term willfully

2 Appellate counsel raised the preserved issue that the trial court erred in denying the motion for judgment of acquittal

because the State failed to eliminate all reasonable hypotheses of innocence (Doc. 12-4, Ex. 2, docket pp. 281-88).

20

means knowingly, intentionally and purposely. Child abuse means the intentional

infliction of physical injury or the commission of an intentional act that could

reasonably be expect to result in physical injury to a child.” (Id.).

The evidence was sufficient to support Petitioner’s aggravated child abuse and

first-degree murder convictions because the trial testimony of the State witnesses

provided evidence from which a reasonable jury could find him guilty of both offenses

beyond a reasonable doubt. The victim’s mother testified the victim was “two and a

half” years old at the time of the offenses (Doc. 12-3, Ex. 1, docket p. 697). She further

testified that when she was at the hospital, she saw the deceased victim had blood in her

nose and bruises on her face, including one that appeared to be finger marks, that were

not present when she left the victim with Petitioner and her four-year-old son to go to

work earlier that night (Id., docket pp. 717-18, 775-76).

Dr. Lee testified the victim had multiple bruises or abrasions on her face, ear,

arms, and lower back (Id., docket pp. 805-08). She testified several injuries were

consistent with a slap or blow that occurred near the time of the victim’s death (Id.,

docket pp. 808-16). The victim also had a fracture to the back of her skull (Id., docket

pp. 830-31). And the injuries to the victim’s lungs, liver, and heart were caused, in Dr.

Lee’s opinion, by a blunt impact to the front of the victim (Id., docket pp. 817-23). In

Dr. Lee’s opinion, the injuries were consistent with an adult foot stomping on the victim

while she was lying on a flat surface and not from a fall in the bathtub (Id., docket pp.

831-33). Moreover, she did not believe that a small child such as the victim’s brother

21

could have caused the injuries (Id., docket pp. 875-91). Finally, Dr. Lee testified that the

cause of death was a blunt impact to the victim’s torso by another person that tore the

victim’s heart and vena cava (Id., docket p. 799).

Considering the above testimony, there was direct evidence the victim was under

the age of 18 when she died from a blow to her torso. And there was circumstantial

evidence the victim was physically abused by Petitioner and died because Petitioner

intentionally struck her in a manner that could reasonably be expected to injure her.

Therefore, there was sufficient evidence supporting the convictions. See, e.g., Caban v.

State, 892 So. 2d 1204 (Fla. 5th DCA 2005), cause dismissed, 909 So. 2d 861 (Fla. 2005)

(affirming felony murder and aggravated child abuse convictions based on

circumstantial evidence inconsistent with defendant’s theories of innocence).

Accordingly, appellate counsel was not ineffective in failing to argue there was

insufficient evidence to support the convictions.

Petitioner has failed to demonstrate the state appellate court’s denial of this claim

was contrary to Strickland or based on an unreasonable application of the facts.

Accordingly, Ground Five warrants no federal habeas relief.

GROUND SIX: TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE

FOR [sic] ABANDONING HIS MOTION FOR A JUDGMENT OF ACQITTAL

[sic] AND A MOTION FOR A NEW TRIAL BY FILING A NOTICE OF APPEAL

WHILE THE MOTIONS WERE STILL PENDING DIVESTING THE TRIAL

COURT OF JURIDICTION [sic] TO RULE ON THE MOTIONS (Doc. 1, p. 10).

Petitioner contends trial counsel was ineffective because she filed a notice of

appeal before the trial court ruled on Petitioner’s motion for new trial or renewed

22

motion for judgment of acquittal. He asserts he was prejudiced because the notice of

appeal divested the trial court of jurisdiction to entertain the motion, and therefore he

was deprived an opportunity for an acquittal or new trial. He implicitly argues the

motion would have been granted based on the weight of the evidence that supported his

theory that the victim died from a fall while she and her brother were playing in or near

the bathtub (Doc. 1, p. 10). Specifically, he states his theory was supported by the

victim’s mother’s testimony that it was not unusual for the victim and her brother to

play rough and to play in the bathtub or shower (Id.).

A similar claim was raised in state court in Ground Seven of Petitioner’s Rule

3.850 motion (Doc. 12-4, Ex. 7, docket pp. 395-97). In denying the claim, the state post-

conviction court stated:

In ground seven of his Motions, Defendant alleges ineffective

assistance of counsel for abandoning Motion for New Trial and Judgment

of Acquittal. Specifically, Defendant contends that counsel had moved for

a new trial and judgment of acquittal, and that doing so would have tolled

the time period for filing a notice of appeal, but that counsel then filed a

notice of appeal, effectively abandoning the motions pending before the

trial court. Defendant contends that the trial court was obligated to

relinquish jurisdiction to the appellate court and could not rule on the

merits of his claims, as evidenced by the court's Order Dismissing Motion

for New Trial and Judgment of Acquittal. Defendant contends that, but for

counsel's deficiency, the result of the proceeding would have been different

and "defendant would have been discharged from all charges," and asserts

that the abandonment of this motion resulted in "depriving the appellate

court an opportunity to review and reverse this cause."

A review of the record reflects that, on April 28, 2010, defense

counsel filed "Defendant's Notice of Hearing," asserting that it was

providing notice to the State of a motion hearing scheduled for May 14,

2014 [sic] on "Defendant's motion for new trial or renewed motion for

23

judgment of acquittal, previously filed on April 26, 2010." (See Defendant's

Notice of Hearing," attached). In court on May 14, 2010, the parties

discussed this matter as follows:

THE COURT: Let's call Robert James Bradwell, Jr. He is present, is he?

DEF. COUNSEL: Your Honor, I have been told he has been shipped.

THE COURT: He's been shipped out. Okay.

DEF. COUNSEL: Since there's no testimony taken, I'll waive his presence

for purposes of this hearing. This is a Motion for New Trial and Motion for

Judgment of Acquittal.

THE COURT: Okay. May I see the original, please?

THE CLERK: Judge, it hasn't been filed yet.

THE COURT: Did you file it with the clerk?

DEF. COUNSEL: The original has not been filed?

THE CLERK: No, ma'am.

DEF. COUNSEL: It was filed on April 26th.

THE COURT: I received my copy April 24, it looks like.

THE CLERK: I received a notice of hearing without the motion on April

28th.

DEF. COUNSEL: Do you have your copy, Judge?

THE COURT: Yes, ma'am.

DEF. COUNSEL: I will make sure that they get another copy.

THE COURT: The clerk says the notice was filed but not the motion itself.

DEF. COUNSEL: Well, we had to file the motion because we were

running up on the ten days and we couldn't get a date from your office. So

24

we did file the motion without a notice of hearing date, once we got the

hearing date in order to toll the time. Once we got the hearing date we

refiled it.

THE COURT: Okay. Assuming that it was filed-

DEF. COUNSEL: Does the State have a copy?

THE STATE: The State has a copy.

THE COURT: Go ahead.

DEF. COUNSEL: Judge, I will make sure that the clerk's office gets a copy

of the motion, I apologize.

THE COURT: Go ahead, counsel.

DEF, COUNSEL: Ready, Judge?

THE COURT: Yes, ma'am.

DEF. COUNSEL: May I proceed?

THE COURT: Yes, ma'am.

(See Transcript, May 14, 2010, pp. 2-3, attached). The trial court then heard

argument from both defense counsel and the State on the motion for new

trial and renewed motion for judgment of acquittal. (See Transcript, May

14, 2010, pp. 4-17, attached). On May 17, 2010, the Office of the Public

Defender filed a letter to the Clerk of Court, outlining as follows:

On Friday, May 14, 2010, a motion regarding the above-

referenced case was heard by the Honorable William Fuente.

At that hearing, it was brought to the attention of Assistant

Public Defender Theda James that, although Judge Fuente

and the Assistant State Attorney both had copies of the

motion previously filed, the Clerk did not have the original

25

motion in the file. To this end, I have enclosed another

original of the Defendant's Motion for New Trial or Renewed

Motion for Judgment of Acquittal, which was previously filed

on April 26, 2010. Attached to this motion is a Notice of

Filing, also dated April 26, 2010.

I believe the confusion is due to the fact that at the time

of filing this time-sensitive motion, we had not yet received a

hearing date. Subsequent to filing the motion, a hearing date

was assigned and a Notice of Hearing for the motion was filed

separately. I apologize for any inconvenience this may have

caused you.

(See Letter to the Clerk of Court, attached). Attached to that Letter and also

filed on May 17, 2010, was "Defendant's Notice of Filing Defendant's

Motion for New Trial or Renewed Motion for Judgment of Acquittal" and

"Defendant's Motion for New Trial or Renewed Motion for Judgment of

Acquittal." (See Notice and Motion, attached). On May 20, 2010, defense

counsel filed "Defendant's Notice of Appeal" in this case. (See Notice of

Appeal, attached). On May 27, 2010, the trial court entered an order in

which it dismissed the motion for new trial or renewed motion for

judgment of acquittal as follows:

Prior to this Court rendering a ruling, Defendant filed a notice

of appeal on 20 March 2010 appealing the final judgment and

sentence. [] The motion is deemed abandoned. The Court is

without jurisdiction to rule on the motion. See Fla.R.App.P.

9.020(h)(3) ("If such a motion or motions have been filed and

a notice of appeal is filed before the filing of a signed written

order disposing of all such motions, all motions filed by the

appealing party that are pending at the same time shall be

deemed abandoned and the final order shall be deemed

rendered by the filing of the notice of appeal..."); Wilson v.

State, 814 So. 2d 1203 (Fla. 2d DCA 2002) (defendant, by

filing his notice of appeal, divested the trial court of

jurisdiction to enter any further rulings). The instant motion

must be dismissed.

(See "Order Dismissing Motion for New Trial," attached) (alteration in

original).

26

The Court notes that, as outlined in the trial court's May 27, 2010,

Order, at the time of Defendant's trial, the filing of a notice of appeal prior

to the filing of the signed written order disposing of a pending motion for

new trial constituted an abandonment of that pending motion. See Fla. R.

App. P. 9.020(h)(3) (2009). As such, defense counsel was deficient in filing

the notice of appeal before the entry of a signed written order disposing of

the motion for new trial, as such deprived the trial court of jurisdiction to

rule on that motion. However, the Court finds that Defendant was not

prejudiced as a result, as there is not a reasonable probability that the

outcome of Defendant's trial would have been different but for counsel's

deficiency. More specifically, the Court finds that, even if the trial court

had jurisdiction to address "Defendant's Motion for New Trial or Renewed

Motion for Judgment of Acquittal" on the merits, after review of that

Motion, the arguments raised at the May 14, 2010, hearing thereon, and

the testimony and evidence presented at trial, this Court does not believe

nor find there to be a reasonably probability that the trial court would have

granted a new trial or judgment of acquittal. (See "Defendant's Motion for

New Trial or Renewed Motion for Judgment of Acquittal;" Transcript,

May 14, 2010, pp. 4-17; Transcript, April 13, 2010, pp. 316-569;

Transcript, April 14, 2010, pp. 582-726, 752-789, attached). Additionally,

to any extent Defendant is alleging that counsel's deficiency resulted in the

failure to preserve a matter for appeal, the Court notes that no relief is

warranted on this claim. See Strobridge v. State, l So. 3d 1240, 1242 (Fla. 4th

DCA 2009) (explaining that "[t]he prejudice in counsel's deficient

performance is assessed based upon its effect on the results at trial, not on

its effect on appeal," and that the "[f]ailure to preserve issues

for appeal does not show the necessary prejudice under Strickland [v.

Washington, 466 U.S. 668 (1984)]"). As Defendant cannot show prejudice

as a result of counsel's deficiency as alleged in ground seven, ground seven

of Defendant's Motions for Post-Conviction Relief must be denied.

(Doc. 12-4, Ex. 10, docket pp. 509-13) (footnote omitted).

Under Florida law, a motion for new trial provides a “safety valve” when

technically sufficient evidence proves the criminal offense, but the weight of the

evidence does not appear to support the verdict. See State v. Shearod, 992 So. 2d 900, 904

(Fla. 2d DCA 2008). The weight of the evidence standard used to evaluate a motion for

27

new trial tests whether a greater amount of credible evidence supports one side of an

issue or the other. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981); Geibel v. State, 817

So. 2d 1042, 1044 (Fla. 2d DCA 2002).

The record demonstrates the greater amount of credible evidence would have

supported the verdict finding Petitioner guilty and the motion would have been denied.

Although there was evidence that the victim’s brother said the victim was playing and

fell in the bathtub (see Doc. 12-3, Ex. 1, docket pp. 582, 589, 616, 625, 762), there was

no evidence that the alleged fall caused the victim’s extensive injuries. Dr. Lee’s opinion

was the injuries to the victim’s internal organs that caused her death were not caused by

a fall in a bathtub (Id., docket p. 831). Rather, in her opinion the injuries were inflicted

by another person (Id., docket p. 799). The trial court used Dr. Lee’s opinion to find that

Petitioner’s hypothesis that the victim’s injuries were caused by a fall in the bathtub was

not reasonable and to deny Petitioner’s motion for judgment of acquittal (Doc. 12-4, Ex.

1, docket pp. 80-81).

Petitioner cannot show prejudice because he fails to demonstrate a reasonable

probability exists that if counsel had not filed a notice of appeal, the trial judge would

have granted the motion for a new trial or renewed motion for judgment of acquittal.

Because he fails to meet his burden of proving that the state court either unreasonably

applied Strickland or unreasonably determined the facts in denying his ground of

ineffective assistance of counsel, Petitioner is not entitled to federal habeas relief on

Ground Six.

28

GROUND SEVEN: TRIAL COUNSEL RENDERED INEFFFECTIVE

ASSISTANCE FOR FAILING TO CALL DR. MARK SHUMAN, A FORENSIC

PATHOLOGIST AS AN EXPERT TO TESTIFY THAT THE VICITM’S [sic]

CAUSE OF DEATH WAS NOT FROM AN INJURY TO THE HEART AS THE

STATE PRESENTED (Doc. 1, pp. 11-12).

Petitioner contends counsel was ineffective in failing to call Dr. Mark Shuman to

testify at trial. Dr. Shuman was a forensic pathologist with whom defense counsel

consulted regarding the victim’s cause of death. According to Petitioner, Dr. Shuman

would have testified that the injury to the victim’s head, rather than to the victim’s heart,

was the cause of death, and that the injury to the victim’s heart was consistent with

medical personnel vigorously compressing the victim’s chest during CPR. Petitioner

argues this testimony contradicted the State’s expert’s opinion as to the cause of death

and supported his theory of defense that the victim died from a head injury sustained

when she hit her head after she fell in the bathtub. He opines that had Dr. Shuman

testified, the jury would have found him not guilty of either charge.

This claim was raised in state court in Ground Two of Petitioner’s Rule 3.850

motion (Doc. 12-4, Ex. 7, docket pp. 381-83). In denying the claim after an evidentiary

hearing, the state post-conviction court stated:

29

In ground two of his Motions, Defendant alleges ineffective

assistance of counsel for failure to call Dr. Shuman as an expert witness.

Specifically, Defendant contends that his trial counsel, Ms. James, had

"made contact with Dr. Mark Shuman, Forensic Pathologist and listed him

as an expert witness on behalf of the defendant, but then failed to call Dr.

Shuman to testify, rendering her performance deficient." Defendant

contends that Dr. Shuman "would have testified that in his opinion the

victim's cause of death was not the injury to the heart. The injury looks

more like the artifact of resuscitation efforts. The cause of death could be

an acute head injury. The head injury would be consistent with the fall and

the child going to sleep and not waking up." Defendant asserts further that

"Dr. Shuman was and is now available to testify and would be willing to

testify to these facts," and that "[h]ad counsel called Dr. Shuman to testify

his testimony would have contradicted the state's expert, cast reasonable

doubt on the jury and changed the outcome of the trial." In his

"Supplemental Authority," Defendant argues that

trial counsel failed to present certain medical evidence during

trial and [s]he failed to call a particular expert medical

examiner to testify. In the present case, Dr. Shuman would

have verified that the victim's cause of death was more likely

an acute head injury consistent with a fall, which was

consistent with the Defendant's defense that the child

accidentally fell while playing in the bathtub and this

evidence would have contradicted the State's theory of death.

Dr. Shuman's testimony was also crucial because his opinion

of the medical examiner's report that the cause of death was

blunt impacts to the torso with lacerations of the heart and

inferior vena cava was more likely the results of unsuccessful

CPR efforts. Lastly, the Defendant was prejudiced by trial

counsel's deficient performance because, had this evidence

been presented to the jury, there is a reasonable probability

that the Defendant would have been acquitted of First Degree

Felony Murder and Aggravated Child Abuse, and instead

found guilty of Manslaughter or Not Guilty.

In its October 7, 2015 Order, the Court outlined that Ms. James was

clearly aware of this witness as a potential defense expert in this case, and

that the scheduling of this potential witness's deposition had been discussed

on the record. The Court then found this allegation to be facially sufficient,

30

and noted that, although an evidentiary hearing may be warranted on this

claim, it must first order the State to respond.

In its October 20, 2015 Response, the State asserted that it deposed

Dr. Shuman on March 10, 2010, and that his deposition testimony -

attached as an exhibit to the State's Response - supports that Ms. James's

decision not to ultimately call this witness at trial was most likely a

strategic one. The State acknowledged, however, that "the deposition is not

a part of the record and, as such, cannot be the basis for summarily refuting

the defendant's claim. As such, the State agree[d] with the Court that an

evidentiary hearing may be warranted on this claim."

At the May 6, 2016 evidentiary hearing, Defendant testified that

before he went to trial, Ms. James told him that she had retained Dr.

Shuman as an expert witness but never elaborated on the details of his

expert opinion regarding Defendant's defense or the victim's cause of

death. See EH Transcript, pp. 8-9, attached. He also testified that she did

not tell him that she did not intend on calling Dr. Shuman as a witness

until trial and that she did not explain her reasoning for precluding him. See

EH Transcript, pp. 17-18, attached. He stated that he had no idea prior to

trial what Dr. Shuman would potentially testify to and that he did not see

Dr. Shuman's deposition testimony until he was in prison - after he had

been convicted. See EH Transcript, pp. 8-9, 18, attached. Had he seen the

deposition earlier, Defendant asserted he would have wanted Dr. Shuman

to testify at trial. See EH transcript, p. 18, attached.

Through the deposition transcript, Defendant testified, he learned

that Dr. Shuman believed the cause of death was a brain hemorrhage and

bad CPR efforts - which was consistent with his theory of defense and

inconsistent with the State's theory that the victim died by blunt force

trauma to the chest area. See EH transcript, pp. 10-11, attached. He

proceeded to explain his version of events:

It was - like, I was outside talking to Mr. Grant and the kids

was in the bathroom and my oldest son came out and said

that she fell by playing - or hit her head and fell in the

bathroom. They was [sic] in there playing. So I jumped up

and ran in the house and she had like a nosebleed and I put

pressure on her nose to stop the nosebleed and she was fine.

Then I guess they went in there and went to bed and

31

when I went back in to feed them she was very unresponsive,

so I took her to the hospital.

See EH Transcript, p. 12, attached. He clarified that he never saw the

victim fall in the tub, but that his four-year-old son told him what

happened. See EH Transcript, p. 13, attached. In addition, he testified that

he and his girlfriend were present when CPR was conducted on the victim

at the hospital, and it looked to them that "they was pressing so hard on

her" and his girlfriend [the victim's mother] "told one of the nurses that that

ain't a way you administer CPR on a baby. They was pressing like they

was doing CPR on an adult." See EH Transcript, pp. 13-14, attached.

Ms. James also testified at the evidentiary hearing. She outlined her

extensive trial experience - including as an assistant public defender since

1993 - which centers primarily on capital death penalty cases and "baby

cases," like the one at hand. See EH Transcript, pp. 40-41, attached. With

respect to Defendant's case, she testified that she exhausted two expert

witnesses before she got to Dr. Shuman. See EH Transcript, p. 42, attached.

Specifically, she retained Dr. Brian Woodruff, a neurologist, and Dr.

Ronald Wright, a pathologist, both of whom gave her unfavorable

opinions. See EH Transcript, p. 42, attached. She then consulted with Dr.

Shuman, providing him immediately with Defendant's version of events.

See EH Transcript, p. 43, attached.

On November 24, 2009, Dr. Shuman told her after he had reviewed

the material she had sent him that "he believed the medical examiner got

the cause of death wrong." The victim had a contusion to her head,

including a break of the skull bone, but she also had an injury to her heart,

her liver, and other internal organs. See EH Transcript, p. 44, attached. The

medical examiner, Dr. Jacqueline Lee, opined that the cause of death was

blunt trauma to the torso. See EH Transcript, p. 44, attached. Dr. Shuman

initially disagreed with her theory, positing that the victim's head injury

was so severe that it - not injury to the chest - was actually the cause of

death. See EH Transcript, p. 44, attached. He also believed the head injury

could have been caused by a fall and that, consistent with Defendant's

story, she could have gone to sleep and not woken up. See EH Transcript,

p. 43, attached. In addition, Dr. Shuman opined that the injuries to the

victim's internal organs and the torso may have been caused by incorrect

CPR. See EH Transcript, p. 44, attached.

32

After Dr. Shuman gave Ms. James his initial impression, he asked to

review the histological slides; on February 4, 2010, after he had reviewed

the slides, he informed her that his opinion had not changed. See EH

Transcript, p. 43, attached. Ms. James proceeded to list Dr. Shuman as a

witness, and the State deposed him on March 10, 2010. He began his

testimony in a manner that aligned with Defendant's statements to law

enforcement. See EH Transcript, pp. 45-46, attached. However, as the

deposition progressed, he started to relay "bad facts" that were not

favorable to Defendant's case. See EH Transcript, p. 46, attached. Dr.

Shuman ultimately opined that he was leaning toward homicide as a

manner of death - an opinion inconsistent with what Ms. James was

prepared for. See EH Transcript, p. 46, attached. Moreover, Dr. Shuman

testified that he was suspicious of old injuries to the victim's head and

stated that he was suspicious of Defendant's version of events. See EH

Transcript, p. 47, attached.

Immediately after the deposition, Ms. James resolved that she would

not call Dr. Shuman as a witness at trial. See EH Transcript, p. 48,

attached. On the same day, she went to the jail and advised Defendant of

what had transpired and eventually sent him a copy of Dr. Shuman's

deposition testimony. See EH Transcript, p. 48, attached. Moreover, she

explained to him the alternate theory she was going to use at trial since

they no longer had an expert witness to rely on. See EH Transcript, p. 48,

attached. In particular, she intended to use the medical examiner's (Dr.

Lee's) testimony to support their theory of defense; during her deposition,

she gave Ms. James enough to create another reasonable explanation for

the victim's injuries. See EH Transcript, p. 48, attached. Though Dr. Lee

did not believe the victim's head injuries caused her death, the things

she said in her deposition and at trial were consistent with Defendant's

theory - that the victim's injuries to the chest could have been caused by

another child jumping on her. See EH Transcript, p. 48., attached. Ms.

James emphasized that she used the State's own expert to support her

theory of defense, that this argument formed the thrust of her closing

argument, and that she succeeded in moving the Court to read a non-

standard circumstantial evidence jury instruction to the jury to help solidify

the defense. See EH Transcript, pp. 49-50, attached.

Ms. James concluded her testimony on direct examination by stating

that her decision not to call Dr. Shuman was a strategic one[.] See EH

Transcript, p. 51, attached. In fact, had she known Dr. Shuman was going

to testify at his deposition in a manner unfavorable to Defendant's theory

33

of defense, she never would have listed him as a witness. See EH

Transcript, p. 47, attached. She once again clarified that Defendant

immediately knew of her decision not to call Dr. Shuman and that he

received a copy of the deposition transcript prior to trial. See EH

Transcript, p. 51, attached.

After Defendant's 3.850 counsel cross examined Ms. James about

the particulars of Dr. Shuman's deposition testimony in contrast to Dr.

Lee's deposition and trial testimony, Ms. James expressed her belief that

Dr. Shuman could not have been rehabilitated as a witness because he

called into question Defendant's credibility. See EH Transcript, pp. 52-65,

attached. She knew he was not going to be a good witness because he did

not believe anything about the case. See EH Transcript, p. 65, attached. She

also believed it would hurt Defendant's case more to put on an expert that

clearly would not have been a friendly expert. See EH Transcript, p. 68,

attached. In addition, she knew the State could impeach Dr. Shuman with

his deposition testimony at trial even if he backed off of his unfavorable

opinion. See EH Transcript, pp. 75-76, attached.

After considering both Defendant's and Ms. James's testimony at the

evidentiary hearing, the Court finds Ms. James's testimony to be more

credible than that of Defendant. In particular, the Court finds convincing

her testimony that she kept Defendant updated on the progress of the case,

particularly with regard to Dr. Shuman's deposition testimony and her

decision not to call him at trial. Defendant has thus failed to establish any

deficiency on counsel's part in this respect. More importantly, having

considered Ms. James's testimony in light of Dr. Shuman's below described

deposition testimony, the Court finds Ms. James's decision not to call Dr.

Shuman at trial constituted reasonable trial strategy.

At his deposition, Dr. Shuman indicated that his understanding of

Defendant's version of events - as conveyed to him by Ms. James - was that

the victim's four-year-old brother reported that his sister fell in the bathtub;

Defendant examined her for injuries, found nothing significant, and put

her to bed. See State's Exhibit 1, p. 10, attached. She was later found to be

unresponsive and taken to the hospital, where she was pronounced dead a

few hours later. See State's Exhibit 1, p. 10, attached.

When asked initially what conclusion he had reached as to the

victim's cause of death, Dr. Shuman expressed his belief it was a blunt head

injury. See State's Exhibit 1, pp. 16-18, attached. He testified that the victim

34

had a fracture on the back of her skull with a large bruise in the scalp,

contusions of the brain, and a swollen brain. See State's Exhibit 1, p. 19,

attached. He also indicated that the injuries the medical examiner

attributed to the cause of death appeared to have been caused by the CPR.

See State's Exhibit 1, p. 19, attached. In particular, he expressed his

belief that the victim was already essentially dead when she was admitted

to the hospital and that all the CPR caused the internal injuries of the

internal organs of the chest and abdomen. See State's Exhibit 1, pp. 19-20,

attached. The implication of this testimony was that Dr. Lee inaccurately

identified the cause of death.

The State proceeded to question Dr. Shuman at great length about

the various head injuries the child victim had sustained, how they could

have contributed to her death, and the timeline of the injuries as relative to

the victim's death. See State's Exhibit 1, pp. 22-64, attached. The State

asked Dr. Shuman if the victim could have suffered the blunt force trauma

to her head by sitting in a tub or on a tile floor and then falling backwards

(as it appeared Defendant's theory of the case was). See State's Exhibit l, pp.

65-66, attached. Dr. Shuman responded that this scenario was "unlikely."

See State's Exhibit 1, p: 65, attached. Dr. Shuman at some point noted that

if the chest and abdominal injuries were "real" - i.e. not caused by the CPR

- then they would have definitely been part of the cause of death. See State's

Exhibit 1, pp. 70-71, attached. The State inquired why Dr. Shuman

thought the chest injuries were caused by CPR: he acknowledged it was

"rare" and "unusual" for children to suffer injuries from CPR, but he

opined that based on how much he believed the victim had bled into her

abdomen, the bleeding was surely the result of CPR. See State's Exhibit I,

pp. 74-78, attached.

The State continued to question Dr. Shuman about how he

determined the chest injuries were caused by CPR as opposed to by some

other means that led to the victim's death. See State's Exhibit 1, pp. 78-90,

attached. Dr. Shuman eventually conceded that blood clots in the victim's

abdominal area indicated that the abdominal injuries were caused prior to

death - and not as the result of CPR (which, in turn, would tend to indicate

that the abdominal injuries contributed to the death). See State's Exhibit l,

pp. 89-90, attached. He also testified that he had never seen injuries to a

child from CPR of this extent. See State's Exhibit 1, p. 94, attached.

Towards the end of the deposition, the following exchange

transpired between Dr. Shuman and the State:

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THE STATE: Doctor, since your opinion is that that was

caused by CPR - or I'm sorry - from injury to the brain, would

your opinion be that this manner of death is homicide or that

it's accident or it's undetermined?

DR. SHUMAN: Actually, I kind of lean towards homicide,

You know, while this type of injury could occur as described

with a fall, there are other things about this. You know,

there's multiple bruises. There's [sic] multiple old contusions

in the brain. And, frankly, there is no corroboration with the

story. If the story as given had corroboration with the child's

older sibling, which I apparently wasn't able to be gotten any

kind of information from him, or even by the neighbor, and

though he gives a similar story, it's not the same, you know,

it's not consistent enough in my mind to think that - you

know, for me to take it as credible. I'm leaning towards

homicide, especially because of all the other things going

on.

THE STATE: When you say all the other things going on,

what do you mean by that?

DR. SHUMAN: I mean, you know, I've never seen a child

with old brain contusions. You know, there are a lot of other

bruises on her body that while could have innocuous, you

know, meanings, they bring up - they raise a suspicion. So,

you know, having old injuries like the old contusions, having

multiple bruises that you have raises the suspicion. And, you

know, the story not being able to be corroborated makes me -

I don't know if I can believe it. So, you know, I am - and then,

you know, in children we usually default to homicide when

we don't know what the cause is. You know, if we have a

head injury in an adult like this, we would default to accident

and say that the person probably fell. In a child we usually

default to homicide because somebody is supposed to be

caring for them and should know what happened. So usually

we default towards homicide. But I think there's too much

here and I'm leaning towards homicide.

See State's Exhibit 1, pp. 104-06, attached.

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Under Strickland, "[a] fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the

time." Schoenwetter v. State, 46 So. 3d 535, 553 (Fla 2010) (quoting

Strickland, 466 U.S. at 689). "The defendant carries the burden to overcome

the presumption that, under the circumstances, the challenged action might

be considered sound trial strategy." Id. (internal quotation marks omitted).

"Strategic decisions do not constitute ineffective assistance of counsel if

alternative courses have been considered and rejected and counsel's

decision was reasonable under the norms of professional conduct." Id.

(quoting Occhione v. State, 768 So. 2d 1037, 1048 (Fla. 2000)).

The progression of Dr. Shuman's deposition testimony, which cast

doubt on Defendant's theory of the case and culminated in his explicit

assertion that he believed the victim died as the result of a homicide,

rendered him an unfavorable defense witness. Given that the State would

have been able to impeach Dr. Shuman with his deposition testimony at

trial - even if Ms. James succeeded in getting him to reconsider the opinion

he proffered at the conclusion of his deposition - it was reasonable for her

to conclude that his expert opinion would do more harm than good. It

was also reasonable of her to determine that Dr. Shuman could not be

sufficiently rehabilitated after he called Defendant's credibility into

question. It follows, then, that her decision not to call him at trial was

reasonable.

The Court's assessment of Ms. James's performance is bolstered by

her testimony regarding the seemingly well-thought-out approach she

ultimately took to mounting a defense on Defendant's behalf. Faced with

the reality that Dr. Shuman's testimony would operate to Defendant's

detriment at trial, she found a way to rely on the State's own witness to

provide another reasonable explanation for the child's death - one that was

consistent with Defendant's version of events. In particular, she built a

theory of defense based on the circumstantial nature of the case and Dr.

Lee's deposition testimony that the victim's injuries to the chest could have

been caused by another child jumping on her. See Trial Transcript, pp. 834-

61, attached. Ms. James's decision not to call Dr. Shuman was a strategic

decision that was certainly reasonable under the circumstances of the case -

particularly in light of the other avenues of defense she had at her disposal -

and under the norms of the profession. Defendant has failed to meet his

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burden under Strickland, and ground two must be denied. See

Schoenwetter, 46 So. 3d at 553.

(Doc. 12-7, Ex. 14, docket pp. 5-15) (footnote omitted).

Petitioner fails to show the state post-conviction court unreasonably applied

Strickland in finding counsel made a reasonable strategic decision to not call Dr.

Shuman. That decision clearly was a matter of trial strategy (Doc. 12-6, Ex. 13, docket

p. 428). “Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second guess.” Waters v.

Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). See also Blanco v. Singletary, 943 F.2d 1477,

1495 (11th Cir. 1991) (“The decision as to which witnesses to call is an aspect of trial

tactics that is normally entrusted to counsel.”). A tactical decision amounts to ineffective

assistance “only if it was ‘so patently unreasonable that no competent attorney would

have chosen it.’” Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007)

(quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)).

The reasonableness of defense counsel’s decision is supported by the evidentiary

hearing testimony, and Dr. Shuman’s deposition testimony, discussed in the state post-

conviction court’s order. Although Dr. Shuman initially gave counsel a “favorable

opinion” regarding the cause of death (id., docket p. 420-21), much of his testimony

during his deposition was “not favorable” to the defense (Id., docket p. 423). For

example, Dr. Shuman’s testimony that in his opinion the victim’s death was a homicide

(caused by another person), rather than accidental (such as a fall in the bathtub), was

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very unfavorable (Doc. 12-7, Ex. 14, docket pp. 218-19). Moreover, he testified that he

believed Petitioner’s account of the events was not credible (Id., docket pp. 219-21).

Finally, although Dr. Shuman initially testified that in his opinion the injury to the head

caused the victim’s death, and the internal injuries to the victim’s heart, liver, and

abdomen were caused by CPR after the victim died, he conceded he had never seen or

heard of a child sustaining such extensive injuries from CPR, the injuries were

consistent with someone stomping his foot down on the victim as she was lying on the

floor, the internal injuries caused the victim’s death if they were not sustained during

CPR, and the blood clots found near those injuries suggested they were not caused by

the CPR (Id., docket pp. 184-85, 199, 204, 210).

After Dr. Shuman’s unfavorable deposition, counsel decided to not call him as a

witness and instead use an alternative theory: the victim’s brother caused the injuries by

jumping on the victim (Doc. 12-6, Ex. 13, docket pp. 424-25). Petitioner fails to

demonstrate this strategic decision was unreasonable. See Chandler v. United States, 218

F.3d 1305, 1318 (11th Cir. 2000) (“[C]ounsel's reliance on particular lines of defense to

the exclusion of others-whether or not he investigated those other defenses-is a matter of

strategy and is not ineffective unless the petitioner can prove the chosen course, in itself,

was unreasonable.”). The alternative theory was supported by the State’s expert, Dr.

Lee, who conceded that the victim’s injuries could have been caused by another child

jumping on the victim, and the victim’s mother’s testimony that the victim and the

victim’s brother often played rough with each other (Id., docket p. 425). This Court

39

cannot conclude that no competent counsel would have taken the action that defense

counsel did. See Chandler, 218 F.3d at 1315 (to establish that trial counsel was

constitutionally ineffective, a petitioner must show that “no competent counsel would

have taken the action that his counsel did take.”).

Petitioner has failed to demonstrate the state courts’ denial of this claim was an

unreasonable application of Strickland or based on an unreasonable determination of the

facts. Accordingly, Ground Seven warrants no relief.

It is therefore ORDERED that:

1. The Petition for Wnt of Habeas Corpus (Doc. 1) is DENIED.

2. The Clerk of the Court is directed to enter judgment accordingly and close this

case.

3. This Court should grant an application for a Certificate of Appealability only if

Petitioner makes “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). He cannot make this showing. Accordingly, a Certificate of

Appealability is DENIED. And because Petitioner is not entitled to a Certificate of

Appealability, he may not proceed on appeal in forma pauperis.

ORDERED in Tampa, Florida on August 31, 2021.

Chakene Pdards Mo TDA pl ell

Charlene Edwards Honeywell

United States District Judge

Copies to: Petitioner, pro se

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Counsel of Record

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