recognizing that a defendant has a “due process right to a competent and impartial tribunal”
How later courts described this case
- recognizing that a defendant has a “due process right to a competent and impartial tribunal”
- holding that expert testimony must be based on scientific methods that are sufficiently established and accepted
- vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim
- “A petitioner cannot establish ineffective assistance by identifying additional evidence that could have been presented when that evidence is merely cumulative.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOEL DIAZ,
Petitioner,
v. Case No.: 2:14-cv-91-JES-MRM
SECRETARY, DOC,
Respondent.
OPINION AND ORDER
This cause is before the Court on a 28 U.S.C. § 2254 petition
for habeas corpus relief filed by Petitioner Joel Diaz
(“Petitioner” or “Diaz”). (Doc. 1, filed Feb. 14, 2014).1 Upon
consideration of the petition, the Court ordered Respondent to
show cause why the relief sought should not be granted. (Doc.
14). Thereafter, Diaz filed a response in compliance with this
Court’s instructions and with the Rules Governing Section 2254
Cases in the United States District Courts. (Doc. 26). Diaz
filed a reply, and the petition is ripe for review. (Doc. 31).
Upon consideration of the pleadings and the state court
record, the Court concludes that each of Diaz’s claims that were
not rendered moot by his resentencing must be dismissed as
procedurally barred or denied on the merits.
1 When he filed the petition in 2014, Diaz was a death row
inmate. (Doc. 1). On September 1, 2017, the state court re-
sentenced Diaz to life in prison, and he is no longer under a
sentence of death. (Doc. 64 at 1).
I. Background and Procedural History2
On November 18, 1997, a grand jury indicted Diaz for: (1)
the premeditated murder of Charles Shaw; (2) the attempted first-
degree murder of Lissa Shaw; and (3) the aggravated assault with
a firearm upon Roy Isakson. (Ex. A1 at 7–8). The Supreme Court
of Florida outlined the facts surrounding the crimes in its initial
opinion on direct appeal:
Diaz and Lissa Shaw dated for about two years.
During the second year of their relationship, they
lived in Diaz's home with Lissa's young daughter.
The relationship proved “rocky,” however, and
around August 1997 Lissa moved in with her parents,
Charles and Barbara Shaw. After she moved out,
Diaz tried to see her, but she refused all contact.
The two last spoke to each other in September 1997.
On October 6, Diaz purchased a Rossi .38 special
revolver from a local pawn shop. He was eager to
buy the gun, but because of a mandatory three-day
waiting period, could not take it with him. Three
days later, Diaz returned to the pawn shop to
retrieve the gun, but it could not be released to
him because his background check remained pending.
Diaz was irritated, and continued to call the shop
nearly every day until he was cleared. On October
16, Diaz finally was allowed to take the gun.
On October 27, Diaz asked his brother Jose, who was
living with him at the time, for a ride to a
friend's house the next morning. Sometime that
night or early the next morning, Diaz wrote a letter
to his brother, which the police later discovered
in his bedroom. It reads:
Jose [f]irst I want to apologize for using you
or to lieing to you to take me where you did
2 Only the background and procedural history necessary to
address the guilt-phase claims raised in Diaz’s habeas petition
are set forth below. The citations to exhibits are to those
provided to the Court in paper form on September 17, 2014.
I felt so bad but there was no other way.
Theres no way to explain what I have to do but
I have to confront the woman who betrayed me
and ask her why because not knowing is literly
[sic] killing me. What happens then is up to
her.
If what happen is what I predict than I want
you to tell our family that I love them so
much. Believe me I regret having to do this
and dieing knowing I broke my moms heart and
my makes it even harder but I cant go on like
this it's to much pain. Well I guess that all
theres to say I love you all.
Joel
P.S. Someone let my dad know just because we
werent close doesn't mean I don't love him
because I do.
At 5:30 a.m. on October 28, Diaz's brother and his
brother's girlfriend drove him to the entrance of
the Cross Creek Estates subdivision, where the
Shaws lived. Diaz carried his new gun, which was
loaded, and replacement ammunition in his pocket.
Diaz walked to the Shaws' house and waited outside
for about ten minutes.
At 6:30 a.m., Lissa Shaw left for work. She entered
her car, which was parked in the garage, started
the engine, and remotely opened the garage door.
She saw someone slip under the garage door, and
when she turned, Diaz stood at her window, pointing
the gun at her head. He told her to get out of the
car. She pleaded with him not to hurt her. When
she saw that “the situation was not going
anywhere,” she told him, “Okay, okay, hold on a
second, let me get my stuff,” and leaned down as if
retrieving personal items. She then shoved the gear
into reverse and stepped on the gas pedal. Diaz
started shooting. Lissa heard three shots, but did
not realize she had been hit. As she continued
backing out, the car struck an island behind the
driveway. She then put the car into forward drive.
As she drove away, she saw Diaz in the front yard
pointing the gun at her father, Charles Shaw.
Charles was about five feet from Diaz, pointing and
walking toward him. Lissa drove herself to the
hospital where it was discovered she had been shot
in the neck and shoulder.
Charles and Diaz then had some sort of
confrontation in the front yard and an altercation
in the garage, resulting in Diaz chasing Charles
into the master bedroom where Barbara was lying in
bed. A quadriplegic, Barbara could not move from
the bed.
As the two men moved through the house, Barbara
heard Charles saying, “Calm down, put it down, come
on, calm down, take it easy.” Barbara was able to
roll back to see Diaz standing in the bedroom with
a gun. He was standing on one side of a chest of
drawers, closer to the door, while Charles was
standing on the other side of the chest, closer to
the bathroom. Charles talked to Diaz, telling him
to calm down and put down the gun. Diaz held the
gun with two hands, pointing it straight at
Charles, about six to eight inches from Charles's
chest. Diaz pulled the trigger, but the gun, out
of ammunition, only clicked. Charles visibly
relaxed, but Diaz reloaded the gun. When Charles
realized Diaz was reloading, he ran into the
bathroom. Diaz followed. As Charles turned to face
him, Diaz fired three shots. Charles's knees
buckled, and he grabbed his midsection and fell
face first to the floor.
Diaz went back into the bedroom and stood beside
Barbara, holding the gun. Barbara screamed, “Why
did you do this?” Diaz answered that Charles
deserved to die. He stood in the bedroom from 30
seconds to a minute, then returned to the bathroom,
bent over Charles's body, extended his right arm,
and shot Charles again. He then moved his arm
left, which Barbara judged to be toward Charles's
head, and shot again. Diaz returned to the bedroom
and, according to Barbara, said, “If that bitch of
a daughter of yours, if I could have got her, I
wouldn't have had to kill your husband.”
Diaz remained in the house between 45 minutes and
an hour. He spent some of this time talking to
Barbara in the bedroom, where he passed the gun
from hand to hand and unloaded and loaded the gun
about three or four times. He remained in the
house until the police arrived and arrested him.1
FN1. At some point during the incident, a
neighbor walked up to the Shaw’s house. When
he approached, both the garage door and the
door leading from the garage to the inside of
the house were open. The man saw an
individual pacing back and forth inside the
home, and as he entered the garage, he called
out for Charles. Diaz then stepped into the
garage, pointed the gun at the man, and said,
“Get the f--- out of here.” The neighbor
returned to this house and called police.
The jury found Diaz guilty of the first-degree
murder of Charles Shaw, the attempted first-degree
murder of Lissa Shaw, and aggravated assault with
a firearm on the neighbor. After penalty phase
proceedings, the jury recommended a sentence of
death by a vote of nine to three. After a Spencer
hearing, the trial court found three aggravating
circumstances and five statutory mitigating
circumstances, and sentenced Diaz to death.
Diaz v. State, 860 So. 2d 960, 963–64 (Fla. 2003) (“Diaz I”)
(footnotes 2, 3, and 4 omitted). The jury found Diaz guilty as
charged. (Ex. A4 at 84–86). The trial court sentenced Diaz to
death for the murder of Charles Shaw, 151 months in prison for the
attempted murder of Lissa Shaw, and five years in prison for
aggravated assault of Roy Isakson. (Ex. A5 at 196–97).
Diaz raised four claims on direct appeal. (Ex. A13). In
Issue One, Diaz argued that the circumstantial evidence presented
at trial “tended to corroborate [Diaz’s] testimony that he was
struck in the face during an altercation with Mr. Shaw in the
garage just prior to the homicide.” (Ex. A13 at 45–54). Issues
Two and Three related to alleged errors in the penalty phase of
his trial. (Id. at 54–93). In Issue Four, Diaz argued that the
death sentence was disproportionate to his crime. (Id. at 93–96).
The Florida Supreme Court concluded that Diaz’s first claim—that
the circumstantial evidence corroborated his testimony that he
lost control after Charles Shaw struck him in the garage—was
essentially a claim that “this circumstantial evidence negates a
finding of the heinous, atrocious, or cruel (HAC) and cold,
calculated, and premeditated (CCP) aggravating factors and
therefore affects the proportionality of his death sentence.”
Diaz I, 860 So. 2d at 965 n.5. Therefore, the court “address[ed]
[Issue One] in the remaining issues.” Id.
The Florida Supreme Court found that the evidence did not
support a finding that the murder was especially heinous,
atrocious, or cruel, but concluded that the error was harmless,
given the other aggravating and mitigating circumstances. (Ex.
A15); Diaz I, 860 So. 2d at 965–68. In his motion for rehearing,
Diaz argued, for the first time, that Florida’s capital sentencing
scheme was unconstitutional under Ring v. Arizona, 536 U.S. 584
(2002). (Ex. A16). The Florida Supreme Court denied the motion
for rehearing. (Ex. A17). The United States Supreme Court denied
Diaz’s petition for writ of certiorari. (Ex. B3); Diaz v. Florida,
541 U.S. 1011 (2004).
Thereafter, Diaz filed a motion and an amended motion for
postconviction relief under Rule 3.851 of the Florida Rules of
Criminal Procedure (collectively, “Rule 3.851 Motion”). In his
Rule 3.851 Motion, Diaz raised fifteen claims and numerous
subclaims. (Ex. C84: 13387–426.) After conducting an evidentiary
hearing (Ex. C93–C96), the postconviction court denied the Rule
3.851 Motion in a written opinion. (Ex. C84 at 13384-426). State
v. Diaz, No. 97-CF-3305, 2011 WL 11709347 (Fla. Cir. Cr. Apr. 8,
2011). Diaz appealed (Ex. C103), and the Florida Supreme Court
denied all relief in a written opinion. (Ex. C108); Diaz v. State,
132 So. 3d 93 (Fla. 2013) (“Diaz II”).
Diaz, through appointed counsel, filed his federal petition
for writ of habeas corpus on February 14, 2014. (Doc. 1).
Subsequently, the Lee County State Circuit Court, in and for the
Twentieth Judicial Circuit, resentenced Diaz to life in prison.
(Doc. 63 at 1). Therefore, this Court can no longer grant Diaz
any relief on his penalty-phase claims, and those claims are now
moot. See Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039,
1052 n.8 (11th Cir. 2017) (recognizing that a claim regarding error
at the penalty phase of trial was moot after the petitioner was
resentenced to life in prison). However, Diaz, now proceeding pro
se, wishes to continue his challenges to the guilt-phase portion
of his trial. (Doc. 64 at 2).
II. Governing Legal Principles
A. The Antiterrorism Effective Death Penalty Act (“AEDPA”)
Under the AEDPA, federal habeas relief may not be granted
with respect to 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)(1)–(2). A state court’s summary rejection of
a claim, even without explanation, qualifies as an adjudication on
the merits and warrants deference. Ferguson v. Culliver, 527 F.3d
1144, 1146 (11th Cir. 2008) (citing Wright v. Moore, 278 F.3d 1245,
1253–54 (11th Cir. 2002)).
B. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established
a two-part test for determining whether a convicted person is
entitled to relief on the ground that his counsel rendered
ineffective assistance. 466 U.S. 668, 687–88 (1984). A
petitioner must establish that counsel’s performance was deficient
and fell below an objective standard of reasonableness and that
the deficient performance prejudiced the defense. Id.
The focus of inquiry under Strickland’s performance prong is
“reasonableness under prevailing professional norms.” Id. at 688.
In reviewing counsel’s performance, a court must adhere to a strong
presumption that “counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689 (citation
omitted). A court must “judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct,” applying a highly deferential
level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690). Proving
Strickland prejudice “requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687.
C. Exhaustion and Procedural Default
The AEDPA precludes federal courts, absent exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted all means of available relief under state law. 28 U.S.C.
§ 2254(b)(1). 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 upon and correct
alleged violations of its prisoners’ federal rights[.]” Duncan
v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404
U.S. 270, 275 (1971) (some internal quotation marks omitted)).
The petitioner must apprise the state court of the federal
constitutional issue, not just the underlying facts of the claim
or a similar state law claim. Snowden v. Singletary, 135 F.3d 732
(11th Cir. 1998). Under the similar doctrine of procedural
default, “a federal court will not review the merits of claims,
including constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state procedural
rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).
A petitioner can avoid the application of the exhaustion or
procedural default rules by establishing objective cause for
failing to properly raise the claim in state court and actual
prejudice from the alleged constitutional violation. Spencer v.
Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179–80 (11th Cir. 2010).
To show cause, 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). To show prejudice, a petitioner must
demonstrate a reasonable probability the outcome of the proceeding
would have differed. Crawford v. Head, 311 F.3d 1288, 1327–28
(11th Cir. 2002).
A second exception, known as the “fundamental miscarriage of
justice,” only occurs in an extraordinary case, where a
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]” Murray v. Carrier, 477 U.S.
478, 479–80 (1986).
III. Discussion
Diaz raises five separate grounds (and numerous subclaims)
for relief in his petition:
Ground I: Petitioner was deprived of his
Sixth Amendment right to the effective
assistance of counsel at trial rendering the
result of both the guilt and penalty phases
unreliable.
Ground II: The [Florida Supreme Court’s]
harmless error analysis [as it applied to the
heinous, atrocious, and cruel aggravator] was
contrary to and/or an unreasonable application
of clearly established Eighth and Fourteenth
Amendment jurisprudence as set forth by the
U.S. Supreme Court.
Ground III: Joel Diaz was deprived of his
constitutional right to a fair and impartial
jury due to juror misconduct and/or the
state’s failure to disclose material
information concerning the juror’s criminal
history.
Ground IV: Florida’s capital sentencing
statute violates the Sixth, Eighth, and
Fourteenth amendments under Ring v. Arizona.
Ground V: Joel Diaz is mentally
retarded/intellectually disabled, therefore
he is ineligible for execution under the
Eighth Amendment.
(Doc. 1 at 9–64). Upon review of the petition, the Court concludes
that Grounds II, IV, and V are moot because they are directed
solely towards errors in the penalty phase of Diaz’s trial.
Accordingly, the Court will address only Ground I (in part) and
Ground III of this petition.
A. Ground I (Ineffective Assistance of Counsel)
Diaz had at least three attorneys during his case. Assistant
Public Defender Ken Garber (“Garber”) was appointed to the case
shortly after his arrest. (Doc. 1 at 12). After Diaz filed a
motion to have Garber removed from the case, the trial court
appointed private attorney J. Franklin Porter (“Porter”) to
represent him. (Id. at 16). Private attorney Neil Potter
(“Potter”) was appointed to assist Porter, particularly in the
penalty phase of his trial. (Id. at 19).
When Diaz raised his ineffective assistance of counsel claims
in his Rule 3.851 Motion, the postconviction court found that his
specific allegations were undefined and difficult to address. The
court noted that the guilt phase and penalty-phase claims
“consist[] of a litany of complaints, which [Diaz] failed to
present in the form of separately defined and enumerated claims.”
(Ex. C84 at 13396, 13416). The court described Diaz’s arguments
regarding trial counsel’s trial preparation as “a jumbled list of
reasons that trial counsel was ineffective for failing to
adequately investigate and prepare.” (Id. at 13400). As noted
by Respondent, Diaz now exacerbates “this organizational
difficulty by combining his multitude of ineffective assistance of
guilt-phase claims with his ineffective assistance of penalty-
phase claims into a single claim.” (Doc. 26 at 38).
It is difficult to parse the specific ineffective assistance
claims that Diaz now attempts to raise in his section 2254 petition
and supporting memorandum. However, when it addressed Diaz’s
appeal of the postconviction court’s denial of his Rule 3.851
Motion, the Florida Supreme Court separated Diaz’s ineffective
assistance claims into five guilt-phase subclaims and eleven
penalty-phase subclaims. The Florida Supreme Court determined
that Diaz had alleged that Porter and Potter were ineffective
during the guilt phase of his trial for:
a. failing to subpoena an FDLE crime lab
analyst and being unable to get the
analyst's report admitted into
evidence;
b. failing to prepare psychologist Dr. Kling
to testify;
c. failing to object to Dr. Keown's
testimony and report regarding the
Anger Styles Quiz;
d. allowing Diaz to be examined by Dr. Keown
in the presence of law enforcement
and outside the presence of counsel;
and3
e. failing to interview potential witness
Melissa Plourde.
Diaz II, 132 So. 2d at 106. Each of these subclaims was addressed
and rejected by both the postconviction court and the Florida
Supreme Court. (Ex. C84); Diaz II. Accordingly, the subclaims are
exhausted. With the exception of subclaim (d), which appears to
have been abandoned, the Court will review these guilt-phase
subclaims separately to determine whether Diaz has demonstrated
entitlement to federal habeas corpus relief under 28 U.S.C. § 2254.
3 This subclaim was denied by the Florida Supreme Court on
the ground that Diaz “did not assert how his examination with Dr.
Keown would have gone differently had counsel been present or how
he was prejudiced as a result of counsel’s lack of presence at his
examination.” Diaz II, 132 So. 3d at 108. Diaz presents no
argument refuting the state court’s adjudication of this subclaim
in this federal habeas petition, supporting memorandum, or reply.
Accordingly, Diaz appears to have abandoned subclaim (d), and it
will not be further addressed in this Order.
1. Subclaims (a), (b), and (e)
In subclaims (a), (b), and (e), Diaz asserts that Porter
and/or Potter failed to conduct an adequate pre-trial
investigation. (Doc. 2 at 10). Diaz notes that Garber, his
initial defense attorney, “set the stage by beginning an extensive
investigation of both the crime and his client’s life history.”
(Id.) Garber had a psychologist appointed to evaluate Diaz and
asked the court to appoint mental health experts to help the legal
team and the jury “understand the Mexican American subculture in
Southwest Florida.” (Id. at 11). Diaz, however, did not trust
Garber and had him removed from the case. (Id.) Diaz now faults
his new attorneys (Porter and Potter) for failing to embrace
Garber’s strategy of focusing “on the particular characteristics
of the individual.” (Id.) Diaz asserts that Potter did little
investigation to show that he (Diaz) could not have formed the
heightened premeditation to commit first degree murder. (Id. at
11). Diaz argues that “[t]rial counsel failed to subpoena
witnesses, did not prepare defense witnesses for their testimony,
failed to keep out inadmissible and damaging evidence, and failed
to present a meaningful case in mitigation before the jury.” (Id.
at 11–12).
(a) Counsel was not ineffective for failing
to subpoena FDLE crime lab analyst Darren
Esposito or admit the FDLE report into
evidence.
In subclaim (a), Diaz urges that Garber had planned to call
FDLE analyst Darren Esposito as a witness to testify that Diaz’s
DNA was found in blood droplets throughout the victim’s home and
under Charles Shaw’s fingernails. (Doc. 1 at 13). Garber
believed that this evidence could support Diaz’s claim that: (1)
he was retreating when Charles Shaw hit him in the face; and (2)
he went to the home to try and understand why Lissa Shaw broke up
with him. (Id.) Diaz asserts that “Garber thought that getting
the FDLE report that showed that the blood droplets belonged to
Diaz was a positive development in the case. But [Diaz] saw it
differently; he was upset that Garber needed outside evidence
before he believed Diaz’s version as to how he ended up shooting
and killing Charles Shaw.” (Id. at 15–16). Diaz had Garber
removed from the case and the court appointed private attorney J.
Franklin Porter to represent him. (Id.) Garber sent a letter to
Porter “informing him that he had previously subpoenaed analyst
Darren Esposito for trial because the FDLE reports showed that
Joel Diaz had been in many areas of the Shaw home.” (Id. at 17).
Diaz asserts the following:
Porter’s intention was to establish a break
between Joel Diaz’s shooting at Lissa Shaw and
the subsequent physical confrontation with the
father, Charles Shaw; this is why he presented
the booking photo showing the mark on his
client’s face. However, when it came time to
show that it was Joel Diaz’s blood throughout
the home as well as his DNA under the
fingernails of the victim, he apparently
forgot to subpoena and make arrangements for
the FDLE analyst Darren Esposito to travel
from Tampa to Ft. Myers to testify. Instead,
Porter made a clumsy attempt to get the
results of the lab report into evidence
through crime scene technician Robert Walker.
However, the State objected based on hearsay
and “Frye.” Trial counsel was unsuccessful
in getting the information contained in the
FDLE reports before the jury.
(Doc. 1 at 21) (citations to the record omitted). Diaz raised
this claim in his Rule 3.851 Motion, and after holding an
evidentiary hearing, at which Porter and Potter testified, the
postconviction court rejected the claim on both Strickland prongs
as follows:
Defendant argues that the evidence of
Defendant’s DNA in blood droplets found in the
home was not presented to corroborate
Defendant’s story that the murder was not
premeditated, but was a result of a
confrontation with the victim. Defendant
contends that trial counsel should have
presented the report by FDLE lab analyst Agent
Esposito, and was ineffective for failing to
do so.
The record reflects that Mr. Porter did
question Agent Walker regarding the blood
droplet evidence he submitted to FDLE for
testing, and that the State objected to the
results of that testing and admission of the
report due to lack of foundation, with a
comment that it would also require a [Frye]
hearing. Ms. Gonzalez [the prosecutor]
testified during the evidentiary hearing that
she did not know why she made the objection.
Mr. Porter did not recall why Agent Esposito
was not called as a witness. Mr. Potter
testified at the evidentiary hearing that he
thought the DNA evidence was important at
first, but that it would have gone nowhere
because it only supported a self-defense
claim, and there was no self-defense in this
case. Mr. Potter believed that the defense did
not call Agent Esposito because he was listed
as a State witness, and they may have expected
to be able to cross-examine him, but the State
did not call him, and he was not present.
Based on the foregoing, the Court finds
counsel was not deficient. Even had counsel’s
performance somehow been deficient, Defendant
cannot show prejudice. The only testimony that
the victim struck Defendant is from Defendant
himself. However, Defendant did not shoot the
victim during this alleged fight. Defendant
shot the victim after the victim ran from
Defendant into his home and was cowering from
him in the bathroom. Even if the shooting had
been a result of the confrontation, Defendant
would not have been justified in using deadly
force to meet non-deadly force. The evidence
of Defendant’s blood in the home, even if
admitted, would not have corroborated his
defense, and there is no reasonable
probability that admission of this evidence
would have changed the outcome. Defendant has
failed to meet his burden as to either prong
of Strickland.
(Ex. C84 at 13408–09) (citations to the record omitted). Diaz
appealed the ruling, but the Florida Supreme Court affirmed,
specifically finding:
We agree with the postconviction court's
conclusion that Diaz's trial counsel did not
perform ineffectively when they failed to
admit the blood evidence, which would not have
corroborated a viable defense. The FDLE lab
report would have had minimal impact on Diaz's
insanity defense. The report would have merely
indicated that Diaz's blood was found in
various places throughout the Shaw home.
However, it would not have demonstrated that
Diaz's blood was found throughout the home
because of injuries inflicted upon him by
Charles Shaw or supported the idea that Diaz
was insane. Thus, Diaz is not entitled to
relief on this claim.
Diaz II, 132 So. 3d at 107. Diaz now urges that the state courts
“unreasonably focused on the FDLE lab report, instead of realizing
that the original plan was to have Esposito testify” and
unreasonably determined that the evidence would not have
demonstrated that Diaz’s blood was found in the Shaw’s home because
of injuries inflicted upon him by Charles Shaw. (Doc. 2 at 44).4
The Court finds that the Florida Supreme Court reasonably
applied Strickland to this claim when it concluded that Diaz failed
to establish guilt-phase prejudice from Porter’s failure to
introduce additional evidence suggesting that the victim had
struggled with Diaz in the garage. Diaz testified at trial that
he had struggled with Charles Shaw in the garage, and that Mr.
Shaw had “attacked” him while trying to wrestle the gun away from
him. (Ex. A10 at 618). Diaz stated that, after Mr. Shaw hit him,
4 Before addressing the specific claims rejected by the state
courts, Diaz complains that “the Florida Supreme Court separated
the numerous examples of substandard performance into subclaims
and addressed them individually in a superficial, piecemeal, and,
in some instances, absurd fashion without considering the totality
contrary to clearly established federal law.” (Doc. 2 at 13–14.)
Diaz seems to argue that the state courts incorrectly rejected his
guilt-phase claims on Strickland’s prejudice prong by looking only
at the effect of Porter’s errors on the verdict rather than on the
penalty because “[n]owhere in the Florida Supreme Court opinion
denying collateral relief is a recognition that the evidence
presented in the guilt phase with respect to planning and
premeditation was the same evidence upon which the State relied to
support the CCP aggravator.” (Id. at 14.) Any claim that the
state courts overlooked the effect of trial counsels’ errors on
the penalty phase of his trial was mooted by Diaz’s resentencing.
Therefore, this Court will consider only the possible effect of
trial counsel’s alleged errors on the outcome of the guilt-phase
portion of Diaz’s trial.
he “lost it” but Diaz did not shoot Mr. Shaw immediately because
he ran away. (Id. at 620). Diaz testified that he followed Mr.
Shaw into the bathroom and “emptied” his gun. (Id. at 624–625).
Barbara Shaw, who witnessed the shooting, testified that Diaz
followed her husband into the bedroom and attempted to shoot him,
but the gun did not fire. (Ex. A8 at 252). Diaz reloaded the gun
and followed Mr. Shaw into the bathroom where he shot him three
times. (Id. at 254). After shooting Mr. Shaw, Diaz left the
bathroom and spoke with Mrs. Shaw, telling her that her husband
deserved to die. (Id. at 254). A minute or two later, Diaz
returned to the bathroom and shot Mr. Shaw again. (Id. at 255).
Mrs. Shaw testified that Charles Shaw had made no overt movements
toward Diaz after he had followed him into the house. (Id. at
277–78).
At the evidentiary hearing on this claim, Porter stated that
the drops of blood found in the Shaw home would have proved only
that Diaz was bleeding and had been in those parts of the home.
(Ex. C95 at 454). Porter did not believe the drops would have
proved self-defense; rather, they would have shown only that Diaz
had gone to other portions of the house after killing Mr. Shaw.
(Id. at 464, 468). Neil Potter also testified at the evidentiary
hearing that, although the defense had subpoenaed Darren Esposito,
he had excused Esposito from testifying, presumably5 because
5 Potter could not “specifically remember” exactly why the
Esposito’s testimony “would have gone nowhere.” (Id. at 561–62).
Potter noted that “the only reason to bring that in would be to
propound the defense of self-defense, and there is no defense of
self-defense. So why drag the guy down here from Tampa to go
through that when, in fact, it wasn’t going to go anywhere[?]”
(Id. at 562).
Given the overwhelming evidence of Diaz’s guilt and defense
counsel’s evidentiary hearing testimony that there was no viable
self-defense argument to be made in this case, there was simply no
possibility of a different outcome at the guilt phase portion of
Diaz’s trial, even had defense counsel introduced evidence—whether
in the form of Esposito’s testimony or the FDLE lab report—to
corroborate Diaz’s testimony that he had struggled with the victim
in the garage before following him into the house, cornering him
in the bathroom, and killing him. Notably, Diaz does not now make
this argument. Rather, he complains that the FDLE evidence would
have been useful in the penalty phase of his trial, arguing that
“[w]hile [Esposito’s] testimony may not have provided a legal basis
for self-defense or insanity, the jury may well have considered
the fact of the physical confrontation in mitigation of the death
sentence—this possibility was never considered by the state
courts.” (Doc. 2 at 44) In his reply, Diaz notes:
defense had excused Esposito, but testified that “there had to be
a reason.” (Ex. C95 at 561).
Of course, the Petitioner agrees that this was
not a true self-defense case and that there
was no legal justification for the murder. He
has never argued otherwise. The point is that
the altercation in the garage was a break in
the action such that the heightened level of
premedication required for [the CCP
aggravator] could not possible be transferred.
The problem is that trial counsel only half
heartedly pursued this defense to the point
that they forgot to subpoena the one witness
who could corroborate their client’s version
of events.
(Doc. 31 at 10) (emphasis in original). Finally, Diaz concedes
that “[w]ith respect to prejudice, it is indeed unlikely that the
testimony from Esposito or the introduction of the color
photographs of the crime scene would have impacted the guilty
verdict.” (Id. at 39).
To the extent Diaz continues to urge prejudice at the guilt-
phase portion of trial from defense counsels’ alleged failure to
introduce additional evidence of a struggle between Diaz and
Charles Shaw, the Court finds that the state courts’ rejection of
this claim was neither contrary to Strickland nor based upon an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Accordingly,
subclaim(a) is denied. 28 U.S.C. § 2254(d).
(b) Counsel was not ineffective for failing
to better prepare Dr. Kling to testify at
the guilt-phase portion of Diaz’s trial.
Diaz asserts that trial counsel did not properly investigate
and prepare Dr. Paul Kling for his guilt-phase testimony in support
of the insanity defense. (Doc. 2 at 41–42). Psychologist Dr.
Paul Kling was appointed pre-trial to evaluate Diaz for competency
and sanity. (Doc. 1 at 6). Initially, Dr. Kling opined that Diaz
suffered from anxiety and depression, but was competent when he
killed Charles Shaw. (Id. at 14.) After obtaining more
information surrounding the events leading up to the crimes, Dr.
Kling changed his opinion and determined that Diaz was not
competent at the time of the killing. (Id. at 15). Dr. Kling
further found that the crimes were not premeditated. (Id.) Diaz
describes Dr. Kling’s testimony as follows:
Defense counsel put Dr. Paul Kling on the
stand to establish that Joel Diaz was not
guilty by reason of insanity at the time of
the crime. But because Porter did not spend
time preparing either himself or Dr. Kling
prior to trial, the mental health defense was
a disaster. In his second report, Dr. Kling
had opined that the crime was not
premeditated, and that Diaz met the criterion
to support a finding that the “capital offense
was committed while the defendant was under
the influence of extreme mental or emotional
disturbance.” Before Dr. Kling took the
stand, the prosecutor argued that it would not
be appropriate for him to discuss
premeditation or the mitigating factors
because those were matters for the jury to
determine. The judge rejected that argument
and ruled that Dr. Kling would be allowed to
opine on ultimate issues.
Just after Dr. Kling took the stand, the fire
alarm sounded and there was a thirty minute
break. Thereafter, Dr. Kling was unable to
explain what materials he reviewed that
prompted him to change his opinion. He did
not remember that he reviewed the defense
depositions that mentioned Diaz’s bizarre
behavior after the shooting before he issued
his first report, when he actually reviewed
the depositions seven months after the first
report. During cross examination, the State
pointed out that Dr. Kling was never provided
with adequate background information and that
he had forgotten key details. Dr. Kling did
not know or remember that Diaz had purchased
a gun before the shooting. Dr. Kling did not
remember that Diaz asked his brother for a
ride to the entrance of the gated-community
and then walked to the Shaw residence. Dr.
Kling could not recall the details regarding
the letter that Diaz had written to his
brother the night before the murder.
The prosecutor accused Dr. Kling of changing
his mind because the prior attorney, Ken
Garber, called him over and over again to get
a better answer. Even though the objection
to that question was sustained, there was no
motion to strike or motion for mistrial. The
prosecutor was ultimately able to gain the
advantage and lead Dr. Kling into telling the
jury that Joel Diaz suffered from an
“ungovernable temper.”
(Doc. 1 at 22–23) (citations to the record omitted). Diaz now
argues that “Dr. Kling’s credibility was destroyed, and defense
counsel did nothing to rehabilitate him.” (Doc. 2 at 42.)
Diaz raised this ineffective assistance claim in his Rule
3.851 Motion, and the postconviction court concluded that Diaz
failed to satisfy either Strickland prong because Diaz had not
specified how more preparation “would have changed Dr. Kling’s
truthful testimony[.]” (Ex. C84 at 13410). The postconviction
court noted that Dr. Kling testified at the evidentiary hearing
that, even if better prepared, he would not have testified
differently at trial. (Id.) The Florida Supreme Court agreed:
We agree with the postconviction court’s
conclusion that Diaz did not satisfy either
prong of Strickland. Dr. Kling's admission
during the evidentiary hearing that he “could
have done a better job” when he testified at
trial does not satisfy the deficient
performance prong. Dr. Kling's testimony at
the evidentiary hearing that the additional
information presented to him regarding Diaz
would not have changed his testimony indicates
that trial counsel gave Dr. Kling sufficient
information to evaluate Diaz.
Diaz II, 132 So. 3d at 107. The court further concluded that
Diaz’s allegations of prejudice were vague and conclusory. Id.
at 108. Diaz does not explain how the state courts’ adjudication
of this claim were contrary to Strickland or based upon an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.
A review of Dr. Kling’s testimony at trial and at the
evidentiary hearing supports the state courts’ conclusions. At
trial, Dr. Kling testified that he had initially determined that
Diaz was not legally insane at the time of the crime, but after
reviewing depositions of Lissa Shaw, Barbara Shaw, and Deborah
Wilson, he reached a different conclusion. (Ex. A-9 at 543) Dr.
Kling opined that Diaz was legally insane when he murdered Charles
Shaw and shot Lissa Shaw. (Id. at 547) The state vigorously
cross-examined Dr. Kling (id. at 547-67), and although he admitted
that he was unaware of certain facts surrounding the crimes, the
doctor did not change his opinion that Diaz was insane at the time
of the shootings. (Id. at 566). At the evidentiary hearing on
Diaz’s Rule 3.851 Motion, Dr. Kling testified that he had testified
truthfully at trial and still had not changed his mind about Diaz’s
sanity. (Ex. C96 at 657).
Supporting and underscoring the state courts’ determination
that Diaz cannot demonstrate Strickland prejudice from trial
counsel’s alleged failure to better prepare Dr. Kling to testify
is Porter’s admission at the evidentiary hearing that, even though
an insanity defense was “Mr. Diaz’s best and probably only chance
of success,” a favorable verdict would be difficult “[b]ecause the
facts of the case stunk. The doctors’ reports were not consistent.
But we did have one doctor that said that he was insane at the
time of the offense, and that was about the only thing that we had
to hang our hat on[.]” (Ex. C94 at 343).
Given Dr. Kling’s statement that he would have not testified
differently even if apprised of more facts and given Porter’s
comment on the weakness of Diaz’s self-defense argument, the state
courts did not unreasonably conclude that Diaz did not show
Strickland prejudice from Porter’s failure to better prepare Dr.
Kling to testify at trial. Nor has he shown that the state courts’
conclusions were based upon an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. Accordingly, Diaz is not entitled to federal habeas
relief on subclaim (b).
(e) Porter was not ineffective for failing
to interview Melissa Plourde before trial
or call her as a witness at trial.
Diaz asserts that trial counsel was constitutionally
ineffective for failing to interview his friend Melissa Plourde6
before trial because “she could have corroborated [Diaz’s] self
report about his state of mind prior to the offense.” (Doc. 2 at
40) Diaz asserts that, after he broke up with Lissa Shaw, he
“uncharacteristically quit his job and became more and more
depressed” and when “[Ms. Plourde] talked to him the night before
the crime, he sounded depressed and not like himself.” (Id.) Ms.
Plourde’s testimony “went directly to a state of mind defense and
would have been relevant in either the guilt or the penalty phase
of the trial.” (Id.)
Diaz raised this claim in his Rule 3.851 Motion, and the
postconviction court denied it on both Strickland prongs. The
postconviction court noted that Ms. Plourde testified at the Rule
3.851 evidentiary hearing to witnessing Diaz hit Lissa Shaw after
accosting her in the Western Auto parking lot. (Ex. C84 at 13407).
The court concluded that any testimony from this witness regarding
Diaz’s state of mind would have been cumulative to that of other
6 Melissa Plourde was known as Melissa McKemy at the time of
Diaz’s trial. (Ex. C97 at 192). The postconviction court
incorrectly refers to this witness as Melissa Forde. (Ex. C84 at
13407–408). To avoid confusion, this Court will exclusively use
the name “Melissa Plourde” or “Ms. Plourde” when referring to this
potential witness.
witnesses at trial, and that her “testimony regarding the Western
Auto incident would have been harmful” to Diaz. (Id. at 13408).
Moreover, Porter testified at the evidentiary hearing that he would
not have called Ms. Plourde as a witness ”if she had negative
testimony just because [Diaz] wanted her as a witness.” (Id.)
The Florida Supreme Court affirmed the postconviction court’s
ruling:
We agree with the postconviction court's
conclusion that trial counsel did not perform
ineffectively by failing to interview a
potential witness who would have provided
cumulative and harmful testimony. At the
evidentiary hearing Plourde testified that
Diaz was depressed following his break up with
Lissa Shaw and that he had quit his job. She
also testified about Diaz assaulting Lissa
Shaw in the parking lot of a Western Auto store
after their break up. Plourde said that while
she was driving with Diaz, he saw Lissa Shaw's
car pull into the parking lot of Western Auto
and he asked Plourde to pull in so he could
speak to Lissa Shaw. Plourde dropped Diaz off
and circled around the parking lot. When she
returned she saw Diaz hit Lissa Shaw.
This Court has “held that counsel does not
render ineffective assistance by failing to
present cumulative evidence.” Farina v.
State, 937 So.2d 612, 624 (Fla.2006). Further,
counsel is not ineffective for deciding not to
call a witness whose testimony will be harmful
to the defendant. See Johnston v. State, 63
So.3d 730, 741 (Fla. 2011). Here, Plourde's
testimony would have been both cumulative
regarding Diaz's depression and harmful
because she would have testified about the
domestic abuse.
Furthermore, Diaz would not have obtained a
more favorable result as a result of trial
counsel having interviewed Plourde.
Interviewing her would not have prevented her
testimony from being harmful to Diaz.
Accordingly, Diaz is not entitled to relief on
any of his guilt phase ineffective assistance
of counsel claims.
Diaz II, 132 So. 3d at 109. Diaz now argues that this finding was
not reasonable. (Doc. 2 at 41). He asserts that “instead of
addressing the failure to investigate, the state court conflated
the two prongs and accepted the prosecutor’s post hoc
rationalization as to why [Ms. Plourde’s] testimony may have been
negative.” (Doc. 2 at 40). Diaz argues that “[i]t is an
unreasonable application of Strickland to accept excuses for
failure to investigate offered in hindsight as strategic decision
making.” (Id.)
Diaz appears to misunderstand his burden under Strickland.
He cannot merely argue that Porter’s decision not to investigate
Ms. Plourde was unreasonable; he must demonstrate that no competent
counsel would have decided against using her as a witness.
Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000).
The Eleventh Circuit has explained:
The test 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. . . . 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). By
stating that “counsel is not ineffective for deciding not to call
a witness whose testimony will be harmful to the defendant,” the
state court implicitly determined that some reasonable, competent
counsel could have decided against presenting Ms. Plourde’s
testimony at trial because it would have been cumulative to
evidence already presented and/or potentially harmful. In other
words, it does not matter whether Porter strategically decided
against offering Ms. Plourde’s testimony—it matters only that some
competent counsel could have done so.
A review of the Rule 3.851 evidentiary hearing testimony
supports the state courts’ rejection of this claim. At the
hearing, Ms. Plourde testified that she spoke to Diaz the night
before the crimes and that “he sounded depressed and just
different. Not himself.” (Ex. C97 at 191). She thought he might
be suicidal. (Id.) She also testified that she saw Diaz hit
Lissa Shaw in a Western Auto parking lot some days before he killed
Charles Shaw. (Id. at 194). Porter testified at the hearing that
he could not recall whether he had spoken with Ms. Plourde prior
to trial. (Ex. C95 at 408). However, he stated that he would not
have called her as a witness if she had evidence that would have
been detrimental to Diaz. (Id. at 433–34).
Ms. Plourde’s testimony was unnecessary to show that Diaz was
depressed before the murder. He testified that he was depressed
after he and Lissa Shaw separated. (Ex. A9 at 582, 584). Diaz’s
brother testified at trial that Diaz was depressed about his break-
up with Lissa Shaw, and that he was depressed and quiet on the
morning of the murder. (Id. at 472–73, 489–90). Therefore, the
state courts reasonably concluded that Ms. Plourde’s testimony
regarding Diaz’s state of mind would have been cumulative to
testimony already presented. See Glock v. Moore, 195 F.3d 625,
636 (11th Cir. 1999) (finding that, “where much of the new evidence
that [petitioner] presents is merely repetitive and cumulative to
that which was presented at trial,” the petitioner could not show
prejudice); Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1324
n.7 (11th Cir. 2002) (“A petitioner cannot establish ineffective
assistance by identifying additional evidence that could have been
presented when that evidence is merely cumulative.”) Likewise,
reasonable competent counsel could have decided against offering
potentially damaging testimony about a previous altercation with
one of the victims that underscored Diaz’s violent tendencies.
See Jackson v. Sec’y, Dep’t of Corr., No. 19-11704-D, 2019 WL
8646045, at *1 (11th Cir. 2019) (counsel’s decision to avoid
potentially damaging evidence was “not outside the scope of what
a reasonable attorney would have done.”) (citing Chandler, 218
F.3d at 1313).
The state courts’ rejection of this claim was neither contrary
to Strickland nor based upon an unreasonable determination of the
facts. Diaz is not entitled to federal habeas relief on subclaim
(e).
2. Subclaim(c): Trial counsels’ failure to object to
Dr. Keown’s Anger Styles Quiz
Diaz suggests that Porter was constitutionally ineffective
for failing to conduct “research regarding the reliability or
validity of the Anger Styles Quiz prior to trial even though it
was his job to challenge the State’s evidence.” (Doc. 1 at 18).
Prior to trial, the circuit court appointed Psychiatrist Richard
Keown to evaluate Diaz. (Id. at 17–18). Porter obtained a copy
of Dr. Keown’s report which included the results of an “Anger
Styles Quiz” that the doctor had administered to Diaz. (Id. at
18). The report showed that Diaz “showed a strong tendency to
mask his anger” and “a pattern of harboring a great deal of
hatred.” (Id.) Dr, Keown’s report also stated that Lissa Shaw
described Diaz as very controlling and “threatening and physically
abusive as well as unpredictable in terms of when he might get
angry.” (Id. at 18).
Diaz raised this claim of ineffective assistance in his Rule
3.851 motion, and it was rejected by the postconviction court.
(Ex. C84 at 13404–405). The postconviction court noted that Diaz
had not alleged a basis for objecting to the results of Dr. Keown’s
report and failed to allege prejudice from the report. (Id. at
13404). Diaz appealed the postconviction court’s ruling, and the
Florida Supreme Court denied the claim as follows:
Diaz claims that trial counsel were
ineffective for failing to object to Dr.
Keown's testimony and report regarding the
Anger Styles Quiz. Diaz argues that the
postconviction court erred in concluding that
he did not allege the deficiency or prejudice
prong of Strickland in his motion. He further
argues that the court overlooked the argument
he made in his written closing argument,
submitted following the evidentiary hearing.
Diaz's allegations in his motion do not assert
on what basis reasonable counsel would have
objected to the admission of the evidence or
how he was prejudiced as a result, even though
he later argued that trial counsel should have
objected based on Frye. Even assuming that
Diaz presented a facially sufficient claim on
this issue, Diaz was not prejudiced by Dr.
Keown's testimony and report regarding the
Anger Styles Quiz because the evidence was not
inconsistent with the defense's theory. Diaz's
defense did not dispute that he shot his ex-
girlfriend and killed her father. Instead, the
defense attempted to demonstrate that Diaz was
insane and lacked the premeditation necessary
to be guilty of first-degree murder. In fact,
the defense presented similar testimony about
Diaz's temper from Dr. Kling. Accordingly,
Diaz is not entitled to relief on this claim
because he has failed to demonstrate the
prejudice prong of Strickland.
Diaz , 132 So. 3d at 108. Diaz argues that “[r]aising insanity
as a defense does not give the State’s expert a free license to
pontificate endlessly about the bad character of the accused.
Trial counsel’s failure to object was deficient.” (Doc. 2 at 45).
Diaz further claims that the testimony “ultimately operated as a
non-statutory aggravator pushing the jury toward a death
recommendation.” (Id.)
A review of the record supports the state courts’ conclusion
that Diaz cannot demonstrate Strickland prejudice at the guilt
phase of his trial from Porter’s failure to object to the admission
of the results of Dr. Keown’s Anger Styles Quiz. First, no expert
was necessary for the jury to conclude that Diaz had a very serious
anger problem; he shot his former girlfriend and murdered her
father. Moreover, Diaz testified that he “lost it” when Mr. Shaw
struggled with him in the garage after Diaz had shot at Lissa.
(Ex. A10 at 620).7 Next, Diaz’s own expert testified to Diaz’s
violent temper on cross-examination. (Ex. A9 at 572). When doing
so, his expert also testified that Diaz’s rage was consistent with
a finding of insanity on the day of the crime. Specifically, Dr.
Kling testified:
I think most people when something like this
happens and they’re extremely agitated and
enraged and out of control, they believe that
what they’re doing is correct; they justify
it. I mean, they think they’re doing the
right thing for whatever reason it may be. So
at that time, given his emotional state, I
think that he thought he was doing the right
thing or at least a necessary thing.
7 Diaz also contends that Counsel could have objected to the
report on the ground that it “contained irrelevant and damaging
information.” (Doc. 2 at 46). Specifically the report concluded
that “[Joel Diaz] could be threatening and physically abusive as
well as unpredictable in terms of when he might get angry.” (Doc.
2 at 46). Again, the jury had sufficient evidence from Diaz’s own
testimony and actions to reach this conclusion. No report was
necessary.
(Id. at 546). Finally, although Diaz now argues that the Anger
8
Styles Quiz would not pass a Frye challenge (Doc 2 at 45), this
argument is based upon mere speculation—Diaz provides no support
for the assertion. Hill v. Lockhart, 474 U.S. 52 (1985)
(conclusory allegations of ineffective assistance of counsel are
insufficient to raise a constitutional issue); Tejada v. Dugger,
941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or
unsupported allegations cannot support an ineffective assistance
of counsel claim).
The state courts reasonably concluded that Diaz has
demonstrated neither deficient performance nor Strickland
prejudice from trial counsel’s failure to object to the Anger
Styles Quiz. Nor has Diaz shown that the state courts’ conclusions
were based upon an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings.
Accordingly, he is not entitled to federal habeas relief on
subclaim(c).
B. Ground III (Juror Misconduct Claim)
Diaz claims that he was deprived of his constitutional right
to a fair and impartial jury due to juror misconduct and the
state’s failure to disclose material information concerning a
8 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (holding
that expert testimony must be based on scientific methods that are
sufficiently established and accepted).
juror’s background and criminal history. (Doc. 1 at 47).
Specifically, Diaz asserts that during the course of collateral
litigation, he discovered that the foreperson of his jury, Sherri
Smith Williams (“Williams”), failed to disclose during voir dire
that she had been arrested for domestic battery and that she “had
participated in rallies and parades for victims of domestic
violence.” (Doc. 2 at 70). He urges that, because Williams
served as a juror, he was deprived of his Sixth Amendment right to
a fair and impartial jury under Irwin v. Dowd, 366 U.S. 717, 721
(1961) or, alternatively, the state failed to disclose material
evidence, in violation of Brady v. Maryland, 373 U.S. 83, 87
(1963).
Diaz raised these claims for the first time in his Rule 3.851
Motion, and the postconviction court addressed their merits:9
Defendant argues that juror misconduct
rendered the outcome of his trial, and his
sentence, unreliable, and violated his due
process rights. Defendant argues that juror
foreperson, Sherri Smith Williams, concealed
relevant “personal and professional
experiences” during voir dire. Specifically,
he claims that Ms. Williams stated during voir
dire that she was a professor of criminal
justice at FGCU, she had been the victim of a
home invasion robbery and had sought an
injunction in the past. However, through
public records, Defendant subsequently
learned that Ms. Williams taught a domestic
violence course in 1998, she “has been a
9 When addressing Diaz’s Rule 3.851 Motion, the state argued
that a number of Diaz’s claims were procedurally barred. (Ex. C7
at 750–51). However, the state did not argue that Diaz’s juror
misconduct claim was procedurally barred. (Id. at 753–54).
domestic violence counselor,” she has
“participated in events on behalf of battered
women;” she interned for the department of
corrections in another state; she has been a
“Certified Domestic Violence Trainer for
Health Care Professionals;” and she failed to
disclose her 1999 arrest for domestic battery
or her completion of a diversion program.
Finally, Defendant argues that the State had
constructive knowledge of Ms. Williams’
arrest, such that the State’s failure to
disclose it constituted a Brady violation.
Information is considered concealed for
purposes of testing for juror misconduct due
to concealment of information where the
information is squarely asked for and not
provided. Wiggins v. Sadow, 925 So. 2d 1152
(Fla. 4th DCA 2006). In order to establish
juror concealment, the moving party must
demonstrate, among other things, that the voir
dire question was straightforward and not
reasonably susceptible to misinterpretation.
See Tran v. Smith, 823 So. 2d 210 (5th DCA
2002). A potential juror cannot and should
not conceal information on voir dire or fail
to answer questions completely, but where a
juror correctly answers a question, it is
counsel’s responsibility to inquire further if
more information is needed. Ottley v.
Kirchharr, 917 So. 2d 913 (Fla. 1st DCA 2005).
While the trial court urged the jurors to be
candid, the trial court did not require jurors
to offer information that was not asked for.
The panel was asked if anyone had been a victim
of a crime, if a family or friend had been
charged with a crime, and whether anyone had
sought a restraining order or injunction
against someone else. Neither the panel in
general, nor Ms. Williams in particular, were
asked if they had been arrested for any crimes
or if injunctions or restraining orders had
been taken out against them. Defendant has
not established that Ms. Williams concealed
information during questioning. She was not
required to volunteer information, and she
truthfully answered all questions she was
asked.
The Court is unable to find any portion of the
record in which Ms. Williams stated she could
not be neutral and unbiased. Defendant has
not established that the domestic violence
related information was material to Ms.
Williams’ service on the jury for a murder
trial. While the issue of domestic violence
between Defendant and his girlfriends was
raised at trial, any such episodes were
tangential to the jury’s determination of
whether Defendant murdered the victim, Mr.
Shaw. Defendant’s assertions that Ms.
Williams was biased against Defendant or had
some hidden agenda are mere speculation.
Defendant has failed to demonstrate that juror
misconduct occurred.
Defendant has failed to point to any specific
question(s) that Ms. Williams failed to answer
fully or truthfully. Instead, he appears to
argue that it was Ms. Williams’ responsibility
to offer unsolicited, additional information
about herself during voir dire and, when she
failed to do so, the State had an obligation
to inform the defense.
To establish a Brady violation, a defendant
must show: (1) evidence favorable to the
accused, because it is either exculpatory or
impeaching; (2) that the evidence was
suppressed by the State, either willfully or
inadvertently; and (3) that prejudice ensued.
Guzman v. State, 868 So. 2d 498, 508 (Fla.
2003).
At the evidentiary hearing, Maria Gonzalez,
who prosecuted this case, testified that she
and the defense got the jury list on the
morning of jury selection, as the jury panel
was brought in. She further testified that
she had no knowledge at that time that Ms.
Williams had been arrested for domestic
violence, had completed a diversion program
prior to jury selection in which the charges
were dropped, or any of the other information
subsequently discovered by current defense
counsel about Ms. Williams. Accordingly,
this testimony refutes Defendant’s
allegations that the State had knowledge of
this information. The State could not disclose
information it did not possess.
Even if the State is imputed with this
knowledge, these issues were not material to
Ms. Williams’ service on the jury for a murder
trial, the information Ms. Williams gave was
not false, the information was not favorable
to the Defendant, and there is no prejudice
since this information does not undermine
confidence in the outcome of the trial. See
Guzman, 868 So. 2d at 505-508. The Court
finds no . . . Brady violation[] occurred on
this issue.
(Ex. C84 at 13389–92(internal citations omitted) (reformatted for
readability)). On appeal, the Florida Supreme Court separated
Diaz’s juror misconduct claim into two categories: (1) juror
misconduct claims based on Williams’ failure to reveal allegedly
relevant information during voir dire; and (2) a Brady claim based
on the state’s alleged constructive knowledge of Williams’
criminal history and its failure to disclose it.
Instead of addressing Diaz’s juror misconduct claims on the
merits, the Florida Supreme Court concluded that they were
procedurally barred because Diaz could have raised any claims
related to Williams’ failure to disclose her arrest on direct
appeal instead of in the Rule 3.851 Motion. Diaz II, 132 So. 3d
at 105. Thus, the court concluded that “each of these claims is
now procedurally barred.” Id. (citing Troy v. State, 57 So. 3d
828, 838 (Fla. 2011); Vining v. State, 827 So. 2d 201, 216 (Fla.
2002)). Therefore, the Florida Supreme Court expressly rejected
Diaz’s juror misconduct claim on procedural grounds without
reaching the merits of those claims.
A state court’s rejection of a federal constitutional claim
on procedural grounds precludes federal review if the state
procedural ruling rests upon an “independent and adequate” state
ground. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).
Nothing suggests that the state court’s rejection of the juror
misconduct claim on procedural grounds was “arbitrary” or
“manifestly unfair.” See Judd, 250 F.3d at 1313. To the
contrary, Florida courts routinely require postconviction claims
of juror misconduct to be raised on direct appeal. See, e.g.,
Elledge v. State, 911 So. 2d 57, 77 n. 27 (Fla. 2005) (finding
Rule 3.851 claim of juror misconduct procedurally barred because
any substantive claim pertaining to juror misconduct “could have
and should have” been raised on direct appeal); Troy v. State, 57
So. 3d 828 (Fla. 2011) (citing Elledge for the proposition that
allegations of juror misconduct must be raised on direct appeal).
To show cause for the procedural default of this claim, Diaz
argues that “there is no evidence on the record that would
establish that trial counsel either knew, or could have known that
[Williams] lied and concealed information from the parties.”
(Doc. 2 at 72). However, in a different case, the Florida Supreme
Court recently explained this procedural ruling and expressly
found that Diaz could have easily discovered the alleged juror
misconduct with diligence and could have been raised on direct
appeal:
In Diaz, the undisclosed facts were the
juror’s history of domestic violence charges
and arrests, a restraining order issued
against the juror, and the fact that the juror
worked as a domestic violence counselor. Id.
at 104. These undisclosed facts were all
easily discoverable by trial counsel with
diligence, meaning the asserted misconduct
could have been raised on direct appeal.
Martin v. State, 322 So. 3d 25, 33 (Fla. 2021). The Court finds
that Diaz has not shown cause for his procedural default.
Diaz also cannot demonstrate the requisite prejudice to
excuse the default because he has not demonstrated a reasonable
probability that the outcome of the proceeding would have differed
had Williams volunteered information about her background.
Crawford, 311 F.3d at 1327–28. When asked at the evidentiary
hearing whether he would have struck Williams from the jury had he
known about her past, Porter merely stated that “[i]t would have
depended on the total makeup of the panel.” (Ex. C95 at 425).
Neil Potter stated that, in capital cases, “the more education you
can get on the jury, the better it is. Because they have a better
grasp of all these different legal concepts.” (Id. at 544).
Potter testified that he believed Professor Williams would be
“[m]ore liberal and someone who probably is going to have a better
grasp of the technicalities that are involved in a first degree
murder case.” (Id. at 546). Given Porter’s reluctance to say
that he would have removed Williams from the panel and Potter’s
desire to keep educated people such as Williams on the jury, Diaz
cannot demonstrate that defense counsel would have sought to remove
Williams from the panel, even had they known of her past. Finally,
the overwhelming evidence of Diaz’s guilt militates against a
finding of prejudice at the guilt phase of his trial—there is
simply no chance that Diaz would have been found not guilty of the
charges against him had a different juror been chosen. Diaz has
not demonstrated cause and prejudice for his procedural default
and it is clear that the fundamental miscarriage of justice
exception does not apply here. Therefore, Diaz’s juror misconduct
claim is dismissed as procedurally barred.
Even if not procedurally barred, this claim would fail on the
merits. See 28 U.S.C. § 2254(b)(2)(“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State.”) Due Process requires that a defendant have
“a jury capable and willing to decide the case solely on the
evidence before it[.]” Smith v. Phillips, 455 U.S. 213, 217
(1982); see also Peters v. Kiff, 407 U.S. 493, 501 (1972)
(recognizing that a defendant has a “due process right to a
competent and impartial tribunal”). The Supreme Court has held
“that an impartial jury consists of nothing more than ‘jurors who
will conscientiously apply the law and find the facts.’ ” Lockhart
v. McCree, 476 U.S. 162, 178 (1986) (quoting Wainwright v. Witt,
469 U.S. 412, 423 (1985)).
Diaz cites to McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 556 (1984) for the proposition that “[a] juror’s false
response during voir dire which results in the nondisclosure of
material information relevant to jury service justifies a new trial
as a matter of law.” (Doc. 2 at 77). This is not quite the
standard announced in McDonough. Rather, McDonough set forth a
two-prong test to determine when juror responses at voir dire
necessitate a new trial. The first prong of the McDonough test
requires a finding that the juror’s answers were dishonest. 464
U.S. at 555. Next, the Court must determine whether a correct
response would have provided a valid basis for a challenge for
cause. Id. at 556.
This claim fails on McDonough’s first prong. Diaz claims
that Williams “knew full well” that her failure to disclose her
arrest for domestic battery “could be cause for dismissal or the
basis for a peremptory challenge by the defense.” (Doc. 2 at 74).
Although he asserts that Williams “lied and concealed information
from the parties,” Diaz does not provide an affidavit from Williams
explaining her answers nor does he point to a single question that
Williams failed to answer truthfully, and the Court on its own
review finds none.10 During the introduction phase of voir dire,
the trial court asked the jurors how long they had lived in Lee
County, the type of work they and their family members did, whether
they had children, and whether they had ever sat on a jury. (Ex.
A7 at 29). Williams answered the judge’s questions as follows:
Sherry Smith Williams. I’m a college
professor. I teach at Florida Gulf Coast,
Criminology and Criminal Justice. I’ve been
in Lee County for five years. Prior to that,
I was a student at Florida State. I’m
divorced. I have not served on a jury, but
obviously I have been a witness to various
legal proceedings.
(Id. at 32) Williams affirmed that she would be able to “set
those things aside and serve as a juror in this case.” (Id.) The
judge asked whether any juror had been a victim of a crime, and
Williams stated that she was a victim of a home invasion, but
affirmed that it would not affect her ability to be objective and
impartial in this case. (Id. at 54). When asked whether any
prospective juror had family members involved in law enforcement,
Williams volunteered that she served on advisory committees with
10 Notably, in its order denying Diaz’s Rule 3.851 Motion, the
postconviction court explicitly determined that Ms. Williams did
not conceal information and “truthfully answered all questions she
was asked.” (Ex. C84 at 13390). Generally, factual
determinations from the state court are entitled to a presumption
of truth on federal habeas review. 28 U.S.C. § 2254(e)(1). While
it is unclear whether section 2254(e)(1)’s presumption still
applies after the Florida Supreme Court declined to address this
claim on the merits, the record supports the state court’s
findings, and the postconviction court’s factual conclusions
underscore and support those reached by this Court.
law enforcement and had a variety of students in law enforcement.
(Id. at 70). Williams volunteered that she had shot her gun at a
home invader. (Id. at 107). When asked whether she had ever been
in a relationship that did not work out, she replied, “obviously,
yes. I’m divorced.” (Id. at 120). She agreed, when asked that
there is both a “violent and nonviolent way of handling”
relationships. (Id. at 120) When asked about the death penalty,
Williams stated that she “would like to think I’m always neutral
and remain objective.” (Id. at 175).
Given that the record shows that Williams truthfully answered
the questions posed to her, Diaz has not stated a claim under
McDonough or any other clearly established federal law. Although
Diaz argues that the questions from the trial court and the
attorneys were designed to evoke additional responses from the
veniremen, he fails to provide evidence proving that Williams’
failure to affirmatively volunteer information regarding her
arrest, her volunteer activities, or her employment issues amounts
to concealment. Even if this claim was not procedurally barred,
it would fail on the merits.
Diaz fares no better on his claim that the state committed a
violation under Brady v. Maryland by withholding information on
Williams’ background. Under Brady, “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at 87. In Strickler v. Greene, the
United States Supreme Court explained that a Brady violation has
three essential elements: (1) the evidence must be favorable to
the accused; (2) it must have been suppressed by the government,
either willfully or inadvertently; and (3) the suppression must
have been material—it must have prejudiced the defense at trial.
Strickler, 527 U.S. 263, 281–82 (1999).
The Florida Supreme Court addressed Diaz’s Brady claim on the
merits and affirmed the postconviction court’s rejection as
follows:
Even assuming that the State had constructive
knowledge of Williams' arrest and restraining
order because she was enrolled in the State
Attorney's Office's pretrial diversion
program, Diaz has failed to demonstrate that
the evidence was favorable and that he was
prejudiced, as required by Brady. First, Diaz
has not shown that evidence related to juror
Williams' prior domestic violence arrest and
restraining order is favorable to him. It is
neither exculpatory nor impeaching.
Second, Diaz has failed to demonstrate that he
suffered prejudice. “The test for prejudice or
materiality under Brady is whether, had the
evidence been disclosed, there is a reasonable
probability of a different result, expressed
as a probability sufficient to undermine
confidence in the outcome of the
proceedings.” Guzman v. State, 868 So.2d
498, 508 (Fla. 2003). Diaz's claim that trial
counsel would have sought to strike Williams
for cause based on her arrest and restraining
order is not persuasive. Defense attorney
Potter testified at the evidentiary hearing
that he would not have challenged juror
Williams. He explained that the defense
wanted Williams on the jury because she was a
college professor. Additionally, Diaz has not
explained how Williams' presence on the jury
could have been prejudicial. In light of the
overwhelming evidence of Diaz's guilt in this
case, Diaz has not established that Williams'
presence on the jury undermines confidence in
the verdict or sentence. It was undisputed
that Diaz killed Charles Shaw and shot Lissa
Shaw, and the sentencing order stated that any
single aggravating factor in this case
outweighed all of Diaz's mitigation.
Accordingly, Diaz is not entitled to relief on
any of his jury related claims.
Diaz II, 132 So. 3d at 105–06. Diaz does not explain how the
state court’s adjudication of this claim was contrary to or based
upon an unreasonable application of Brady or Strickler.
Upon review of the record, this Court agrees with the Florida
Supreme Court that, even if constructive knowledge of Williams’
arrest could be imputed to the state, Diaz has not satisfied the
first or third Strickler prongs. The fact that Williams had been
arrested for domestic battery was neither exculpatory nor
impeaching. Likewise, the evidence was not material in the sense
that it would not have created a reasonable probability of a
different result either at the guilt or penalty phases of Diaz’s
trial. Strickler, 527 U.S. at 291. To the extent Diaz argues
that Williams could not be impartial because of her domestic
violence arrest, Diaz was charged with the murder of Charles Shaw
and the attempted murder of Lissa Shaw, not domestic battery.
Diaz has offered no support for his assertion that a person
convicted of an unrelated crime is per se foreclosed from jury
service. See also discussion supra (concluding that Diaz could
not show prejudice sufficient to excuse the procedural default of
his juror misconduct claims).
Even assuming, without finding, that Brady can apply to a
state’s alleged failure to offer information about a juror’s
background during voir dire, Diaz has not shown that the state
court’s adjudication of this claim was contrary to Brady or based
upon an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Diaz is not
entitled to relief on this claim
IV. Conclusion
Based on the foregoing, the Court concludes that Diaz is not
entitled to relief on the habeas claims presented here.
Petitioner’s penalty-phase claims are denied as moot. Petitioner’s
guilt-phase claims are procedurally defaulted or denied on the
merits. Any allegation not specifically addressed has been fully
considered and is denied on the merits.
Because the Court was able to resolve the petition on the
basis of the record, an evidentiary hearing is not warranted. See
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
Accordingly, it is ORDERED that:
1. The 28 U.S.C. § 2254 petition filed by Joel Diaz is
DENIED in part and DISMISSED in part as set forth above.
2. The Clerk is DIRECTED to enter judgment, deny any pending
motions as moot, terminate any deadlines, and close this
case.
Certificate of Appealability11
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 this
substantial showing, Petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Slack v. McDaniel, 529
U.S. 473, 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 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)).
When, as here, the district court has rejected a claim on
procedural grounds, the petitioner must show that “jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of
11 Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id.
reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484.
Upon consideration of the record as a whole, the Court will
deny a certificate of appealability. Because Diaz is not entitled
to a certificate of appealability, he is not entitled to appeal in
forma pauperis.
DONE AND ORDERED in Fort Myers, Florida on the 27th day
of September 2021.
& AKL Be.
JGHH E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
SA: FTMP-2
Copies furnished to:
Counsel of Record
Unrepresented Parties
49