Smith v. Secretary, Department of Corrections (Pinellas County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TROY SMITH

Petitioner,

v. Case No. 8:18-cv-2597-CEH-AAS

SECRETARY, Department of Corrections,

Respondent.

/

O R D E R

This cause comes before the Court on Troy Smith’s petition for the writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 1) Smith challenges his state

convictions for capital sexual battery and lewd or lascivious molestation. The

Respondent concedes the petition’s timeliness. Upon consideration of the petition

(Doc. 1), the response (Doc. 7), and the reply (Doc. 11), and in accordance with the

Rules Governing Section 2254 Cases in the United States District Courts, the

petition will be DENIED.

Facts1

1 This factual summary derives from Smith’s brief on direct appeal and the record.

(Respondent’s Exhibits 4 and 7)

The minor victim lived with her mother, her siblings, and Smith. On multiple

occasions when the victim was between seven and nine years old, Smith touched the

victim with his hands, penis, and mouth and both orally and anally penetrated the

victim with his penis. Smith told the victim to not tell her mother about the abuse.

The victim kept a journal that was discovered by a teacher at school in which the

victim alleged that her “dad raped her.” The teacher called the police who went to

the victim’s home to speak to her about the allegations. The victim did not disclose

to the police what Smith had done to her because she did not want her mother to

know. The victim subsequently wrote a note to her mother and told her what

happened. When the mother confronted Smith with the note, Smith admitted to

sexually abusing the victim.

Detective Scott Gore investigated the victim’s allegations. Smith went to the

police station and admitted in a recorded interview that he inappropriately touched

the victim and that there was “anal penetration” and “some oral activity.” Smith also

wrote a note at the police station in which he admitted to anal penetration and oral

sex with the victim. Smith was arrested and charged in a second amended

Information with capital sexual battery and lewd or lascivious molestation. A jury

convicted Smith of both crimes and he was sentenced to concurrent terms of life

imprisonment. The state appellate court affirmed both Smith’s convictions and

sentences and the denial of his state Rule 3.850 motion for post-conviction relief.

(Respondent’s Exhibits 9 and 13)

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210

(11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates

a highly deferential standard for federal court review of a state court adjudication,

states in pertinent part:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim —

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

or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States; or

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

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for

a writ of habeas corpus with respect to claims adjudicated on

the merits in state court. Under § 2254(d)(1), the writ may

issue only if one of the following two conditions is satisfied - -

the state-court adjudication resulted in a decision that (1) “was

contrary to . . . clearly established Federal Law, as determined

by the Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.”

Under the “contrary to” clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law or if the state

court decides a case differently than this 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 this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.

2001) (“It is the objective reasonableness, not the correctness per se, of the state

court decision that we are to decide.”). 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, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

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

are given effect to the extent possible under law.” Cone, 535 U.S. at 693. A federal

court must afford due deference to a state court’s decision. “AEDPA prevents

defendants—and federal courts—from using federal habeas corpus review as a

vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,

559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of

the doubt’ . . . .”) (citations omitted).

In a per curiam decision without a written opinion, the state appellate court

on direct appeal affirmed Smith’s convictions and sentences. (Respondent’s Exhibit

9) In another per curiam decision the state appellate court affirmed the denial of

Smith’s Rule 3.850 motion.2 The state appellate court’s affirmance warrants

deference under Section 2254(d)(1) because “the summary nature of a state court’s

decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d

2 The record includes a copy of the mandate issued in Smith’s appeal of the denial of his

Rule 3.850 motion, but no copy of the order affirming the denial. (Respondent’s Exhibit 13) The

Court takes judicial notice of the state appellate court’s docket in case number 2D18–0206 which

shows that the per curiam decision affirming the denial of Smith’s Rule 3.850 motion was

docketed on August 3, 2018. See online docket for the Florida Second District Court of Appeal at:

http://onlinedocketsdca.flcourts.org

1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert.

denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S.

at 99 (“When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on

the merits in the absence of any indication or state-law procedural principles to the

contrary.”).

Review of the state court decision is limited to the record that was before the

state court.

We hold that review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the

merits. Section 2254(d)(1) refers, in the past tense, to a state-

court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

examination of the state-court decision at the time it was made.

It follows that the record under review is limited to the record

in existence at that same time, i.e., the record before the state

court.

Pinholster, 563 U.S. at 181–82. Smith bears the burden of overcoming by clear and

convincing evidence a state court factual determination. “[A] determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

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

convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness

applies to a finding of fact but not to a mixed determination of law and fact. Parker

v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

Standard for Ineffective Assistance of Counsel

Smith claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46

F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),

explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective

assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing

ineffective assistance of counsel claims. According to

Strickland, first, the defendant must show that counsel’s

performance was deficient. This requires showing that counsel

made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing

that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable. Strickland, 466

U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice.

Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective

assistance claim . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying

Strickland, we are free to dispose of ineffectiveness claims on either of its two

grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.” 466

U.S. at 690. Strickland requires that “in light of all the circumstances, the identified

acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690.

Smith must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

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

judgment.” 466 U.S. at 691. To meet this burden, Smith must show “a reasonable

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

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. Smith cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

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). Accord Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial

lawyers, in every case, could have done something more or something different. So,

omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent

or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting

Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Under 28 U.S.C. § 2254(d) Smith must prove that the state court’s decision

was “(1) . . . contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States or

(2) . . . based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and §

2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (a

petitioner must overcome this “‘doubly deferential’ standard of Strickland and [the]

AEDPA”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)

(“Double deference is doubly difficult for a petitioner to overcome, and it will be a

rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.”), and

Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we

must view Pooler’s ineffective counsel claim—which is governed by the deferential

Strickland test—through the lens of AEDPA deference, the resulting standard of

review is ‘doubly deferential.’”), cert. denied, 134 S. Ct. 191 (2013).

Ground One

Smith contends that his trial counsel rendered ineffective assistance by not

investigating and presenting “evidence that would have strengthened the defense and

impeached two State witnesses.” (Doc. 1 at 13) Smith alleges that when the

victim’s mother, Carolyn Smith (“Carolyn”), was asked at trial if anyone had shared

with her specific details about what Smith said to the police, she responded,

“No . . . . [b]ut at the same time . . admits to being on the phone with the defendant

for more than two hours after he spoke to the police.” (Id.) According to Smith, he

asked his trial counsel “multiple times” to retrieve text messages that he sent to

Carolyn to prove that he had told her everything he had said to the police and that

she and the victim changed their story to match the story that Smith gave to the

police. Smith claims that the victim told Detective Scott Gore that she was abused

when she was ten to twelve years old but he told the police that the victim was eight

to nine years old when the abuse occurred. Smith alleges that the day after he gave

his statement to the police the victim changed her story to allege that the abuse

occurred when she was eight to nine years old. He argues that “[t]he only way the

victim could have known what the defendant had told police is to have [Carolyn] tell

her what to say.” (Id. at 14) Smith claims Carolyn coerced him into talking to the

police and that the text messages “would have backed up the defendant’s story that

he gave a confession to take the heat off his family at the urging of his wife.” (Id.

at 15) Smith further claims that this evidence about his alleged false confession

could have been used to impeach both the victim and Carolyn and that trial counsel’s

alleged failure to investigate this evidence was unreasonable. Smith alleges that his

trial counsel failed to narrow down the timeframe in which the abuse occurred and

that “[a] simple statement of particulars could have led to the defendant not being

charged at all.” (Id. at 18)

The state post-conviction court rejected this ground in Smith’s Rule 3.850

motion as follows (Respondent’s Exhibit 12, Order Denying Defendant’s Motion for

Postconviction Relief at 4–5) (court’s record citations omitted):

Defendant alleges that counsel was ineffective for failing to

investigate telephone records between Defendant and

[REDACTED]. Defendant essentially claims that

[REDACTED] pressured him into giving a false confession to

law enforcement and appears to allege that she fed him details

to tell the investigating detective. Defendant contends that

these records would have impeached [REDACTED]’s

credibility and supported Defendant’s trial testimony that his

confession was false.

When alleging that counsel was ineffective for failing to

impeach a witness, the defendant must allege which portions

of the witness’s testimony counsel could have impeached and

how the failure to do so impacted the trial. Mohr v. State, 17

So. 3d 1249, 1249 (Fla. 2d DCA 2009). Any party may attack

the credibility of a witness by introducing a witness’s prior

statement that is inconsistent with the witness’s trial testimony.

See § 90.608(1), Fla. Stat. [REDACTED] testified that she and

Defendant texted and spoke throughout the day that he was

questioned by Detective Gore. Detective Gore also testified

that [REDACTED] and Defendant were in contact with one

another and Defendant was observed texting and talking on the

phone after his interview. Because [REDACTED] admitted to

communicating with Defendant throughout the day, defense

counsel could not have used phone call records to impeach her

on the issue of whether they exchanged phone calls. See

Calhoun v. State, 502 So. 2d 1364, 1365 (Fla. 2d DCA 1987)

(explaining that a witness cannot be impeached if he or she

does not make a statement that is actually inconsistent with a

prior statement). Additionally, even if admissible, phone call

records could not have established the content of the

conversations. As for any substantive text messages that may

have been retrieved, Defendant does not specify what

statements [REDACTED] conveyed in those messages that

could have been used to impeach her. He only states, in vague

and conclusory fashion, that [REDACTED] was well aware of

everything going on and being said by the Defendant.

However, even if defense counsel failed to adequately

investigate the content of the text messages, Defendant cannot

establish the prejudice alleged. Defendant contends that this

evidence would have proven that [REDACTED] coerced

him to talk to the police. However, this directly contradicts

Defendant’s unequivocal, sworn trial testimony that he

spoke to Detective Gore voluntarily, that no one told him

what to say to Detective Gore, and that he made up the

details of his false confession because he wanted the police to

leave his family alone. Additionally, there was testimony that

[REDACTED] knew at least some of the details of the victim’s

allegations before Defendant was questioned because the

victim wrote her a note about the abuse, which [REDACTED]

showed to Defendant. Thus, the jury did hear evidence that

[REDACTED] may have been privy to some details of the

offense and, nevertheless, found Defendant guilty.

Considering these facts and circumstances, the Court finds that

Defendant fails to establish a reasonable probability that

counsel’s failure to investigate and impeach [REDACTED]

with phone and text message records undermines the court’s

confidence in the outcome of the proceeding. This claim is

therefore denied.

Smith provides no evidence to support his allegations that the text messages

would have either “strengthened the defense and impeached two State witnesses” or

“would have proved Ms. Smith was feeding the victim details to tell the police.”

(Doc. 1 at 13; Doc. 11 at 5) A ground for relief based on speculation is insufficient

to support a claim of ineffective assistance of counsel. See Aldrich v. Wainwright,

777 F.2d 630, 636 (11th Cir. 1985) (“Speculation is insufficient to carry the burden

of a habeas corpus petitioner as to what evidence could have been revealed by further

investigation.”). Moreover, as the state post-conviction court noted, Smith’s trial

testimony belies his contention that Carolyn coerced him into talking to the police.

Smith testified at trial that he voluntarily arranged to meet with Detective Gore, that

he admitted to abusing the victim because he “just wanted them to leave his family

alone,” that all of his statements to Detective Gore were lies, and that he “just made

up” facts. (Respondent’s Exhibit 4, trial transcript at 484–505) Smith does not

demonstrate that the result of the trial would have been different if his trial counsel

had obtained the records and attempted to impeach either Carolyn or the victim.

Consequently, Smith fails to establish that the state court either unreasonably applied

Strickland or unreasonably determined the facts by rejecting this ground of

ineffective assistance of counsel. See 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Two

Smith contends that (1) his rights under the Fifth, Sixth, and Fourteenth

Amendments were violated when the State “knowingly” commented on his right to

remain silent during voir dire and (2) his trial counsel rendered ineffective assistance

by not requesting a curative instruction or moving for a mistrial based on the

prosecutor’s allegedly improper comments.

The record shows that during questioning by the court during voir dire

prospective juror Thomas responded to the court’s inquiry as follows (Respondent’s

Exhibit 4, trial transcript at 54–55):

THE COURT: Okay. Folks, other than what we talked about

here, are all of you telling me that you could be fair and

impartial—other than what we talked about, anybody have any

other reason why you couldn’t be fair and impartial other than

what we talked about? Yes, ma’am. Who is that?

PROPSECTIVE JUROR THOMAS: Thomas. In a case like

this would the victim be present? Because I feel like I would

be—

. . . .

THE COURT: Stand up, ma’am, please. You’re saying what

now?

PROSPECTIVE JUROR THOMAS: I just had a question.

Like, in a case like this, would the victim be present? Because

I feel like I would need to hear both parts of the story from each

person. That’s my question.

THE COURT: You want to hear both sides of the story?

PROSEPCTIVE JUROR THOMAS: Yeah, not just on paper.

Each individual.

THE COURT: Okay. Thank you, ma’am. . . .

Later during voir dire the prosecutor inquired of the venire as follows

(Respondent’s Exhibit 4, trial transcript at 92–93):

[PROSECUTOR]: All right. You all agree, obviously, the

Defense has no burden to prove anything in this case. Do you

all agree with that?

PROSPECTIVE JURY PANEL: Yes.

[PROSECUTOR]: They can sit here and read the newspaper,

read the comics, do the crossword puzzle. I know they are not

going to do that but you agree they have to prove nothing in

this case. You all agree to that; is that correct?

I know, Ms. Thomas, you asked as far as wanting to hear both

sides of the case. Obviously, the State has to present witnesses

and testimony to prove the elements beyond a reasonable

doubt. Now, obviously, the Defendant has a right to remain

silent. He does not have to testify if he does not choose so. Is

that going to cause a problem for you if he chooses to exercise

his constitutional right to remain silent?

Trial counsel objected to the prosecutor’s question and argued (Id. at 93–94):

[COUNSEL]: Judge, I’m going to object to this line of

questioning.

THE COURT: Approach the bench.

(WHEREUPON A SIDEBAR CONFERENCE WAS HAD

OUTSIDE THE HEARING OF THE JURY AS FOLLOWS):

[COUNSEL]: We object to the State getting this line of

questioning. The State can’t ask the jurors about the

defendant’s right to remain silent. It’s the defendant’s right and

province to ask potential jurors, if they so choose, that the

defendant has the right to remain silent.

THE COURT: State?

[PROSECUTOR]: Your Honor, I think I have every right to go

into it. Obviously, part of the law is to make sure they follow

the law that he has the right to remain silent whether he chooses

to testify or not. She, obviously, said she has to hear both sides

of the story. So I need to make sure that she follows the right

that the defendant has.

[COUNSEL]: There is case law directly on point. I’ve never

come across the State trying to ask the question. I can certainly

try to pull up real quickly, Judge, if you prefer.

[PROSECUTOR]: The case law actually says—

THE COURT: I know what the case law says. I’ve never seen

a juror come up saying I need to hear both sides as if she

anticipated the issue. I’m going to sustain the objection. Don’t

go into—for whatever it’s worth, don’t go into it. I assume

somebody is going to have to go into it.

Smith argues that “[t]he prosecutor’s remarks here were to demean the

defendant’s role at trial” and that “[t]his happening during voir dire had an impact

on the entire trial and had a coercive effect on the defendant’s choice to testify.”

(Doc. 1 at 21) Smith asserts in his reply that, despite the court’s instructions, “the

jurors had already expressed a desire to hear both sides of the story and the comments

further prompted the jury to consider the Petitioner’s silence in evaluating the case.”

(Doc. 11 at 7)

The state post-conviction court rejected this ground in Smith’s Rule 3.850

motion as follows (Respondent’s Exhibit 12, Order Denying Defendant’s Motion for

Postconviction Relief at 4–5) (court’s record citations omitted):

Defendant alleges that counsel was ineffective for failing to

move for a mistrial or request a curative instruction after the

State improperly commented on Defendant’s right to remain

silent during voir dire. Defendant asserts that he was

prejudiced because the comment called undue attention to his

right to remain silent and coerced Defendant into testifying.

It is axiomatic that it is improper for the State to comment on

a criminal defendant’s constitutional right to remain silent. See

Fla. R. Crim. P. 3.250; Marston v. State, 136 So. 3d 563, 570

(Fla. 2014); Rodriguez v. State, 753 So. 2d 29, 39 (Fla. 2000)

(“[W]e strongly caution prosecutors against making comments

that may be interpreted as comments on the defendant’s failure

to testify or that impermissibly suggest a burden on the

defendant to prove his or her innocence.”). In voir dire, “it is a

defendant’s prerogative—not the prosecutor’s—to first broach

with potential jurors the sensitive area of not taking the witness

stand.” Varona v. State, 674 So. 2d 823, 825 (Fla. 4th DCA

1996). Improper comments are subject to a harmless error

analysis, but are considered “high risk errors because there is a

substantial likelihood that meaningful comments will vitiate

the right to a fair trial.” State v. DiGuilio, 491 So. 2d 1129,

1136 (Fla. 1986).

The record reflects that, during voir dire, the State questioned

a prospective juror about her comment regarding wanting to

hear “both sides” of the case. The State asked the juror if it

would cause a problem for her if the defendant chose to

remain silent. Defense counsel objected and the court

sustained the objection after a discussion at the bench. The

circumstances surrounding the prosecutor’s comment in

the instant case are similar to the comments addressed in

Rosa v. State, 696 So. 2d 1299, 1301 (Fla. 3d DCA 1997), and

Grieve v. State, 731 So. 2d 84 (Fla. 4th DCA 1999). In Rosa, a

juror indicated that she wanted to hear “both sides of the story.”

696 So. 2d at 1300. In response, the prosecutor stated: “The

Judge is going to instruct you that it’s the Defendant’s

Constitutional right that he doesn’t have to say anything.” Id.

The trial court overruled defense counsel’s objection to the

comment. Id. Defense counsel later questioned the jurors about

the defendant’s right to remain silent. Id. In Grieve, the

prosecutor also referenced the trial judge’s instruction on the

defendant’s right to remain silent, in direct response to a juror’s

statement that he would “probably have to hear from the

defense” about what occurred. 731 So. 2d at 84. The Grieve

and Rosa Courts both held that the comments did not vitiate

the fairness of the trials and were distinguishable from cases

where a prosecutor, without prompting, comments on a

defendant’s silence. Id.; Rosa, 696 So. 2d at 1301.

In this case, the prosecutor’s comment, though not framed as a

reference to the standard jury instruction, was in direct

response to a juror’s statement and did not misstate the law.

Defendant ultimately testified and the State introduced post-

Miranda admissions. Under these circumstances, the Court

finds that any error was harmless and Defendant fails to

establish either that counsel was ineffective for failing to move

for a mistrial or curative instruction, or that Defendant was

prejudiced thereby.

The Fifth Amendment “forbids either comment by the prosecution on the

accused’s silence or instructions by the court that such silence is evidence of guilt.”

Griffin v. California, 380 U.S. 609 (1965). “Griffin prohibits the judge and

prosecutor from suggesting to the jury that it may treat the defendant’s silence as

substantive evidence of guilt.” Baxter v. Palmigiano, 425 U.S. 308, 319 (1976). An

improper prosecutorial remark compels habeas corpus relief only if the remark is so

egregious that the proceeding is rendered fundamentally unfair. See United States

v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly

overturned on the basis of a prosecutor’s comments standing alone, for the

statements or conduct must be viewed in context; only by doing so can it be

determined whether the prosecutor’s conduct affected the fairness of the trial.”).

“[I]t is not enough that the prosecutors’ remarks were undesirable or even

universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). See

also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process

analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not

the culpability of the prosecutor.”). Darden, 477 U.S. at 181, teaches:

The relevant question is whether the prosecutors’ comments

“so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, [643] . . . (1974). Moreover, the

appropriate standard of review in a petition for the writ of

habeas corpus is “the narrow one of due process, and not the

broad exercise of supervisory power.” Id., at 642 . . . .

Accord Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986) (en banc) (“If a

reviewing court is confident that, absent the improper remarks, the jury’s decision

would have been no different, the proceeding cannot be said to have been

fundamentally unfair.”), cert. denied, 480 U.S. 911 (1987).

The record shows that later in voir dire during trial counsel’s questioning of

the venire the trial judge clarified the law on Smith’s right to remain silent

(Respondent’s Exhibit 4, trial transcript at 149–51):

[COUNSEL]: . . . . [The prosecutor] talked about it that Mr.

Smith has the right to remain silent. Everybody probably heard

it. Has anybody not heard that, the defendant has the right to

remain silent? Ms. Ayoub? . . . .

Okay. Have you ever heard the phrase the defendant has the

right to remain silent?

PROSPECTIVE JUOR AYOUB: Yes.

[COUNSEL]: Okay. And that sort of goes along with the

burden of proof, right? They have to prove him guilty whether

or not Mr. Smith testifies at all, right? Would that bother you

if Mr. Smith didn’t testify today?

. . . .

PROSPECTIVE JUROR AYOUB: You can’t prove a

negative.

[COUNSEL]: Okay. So you can’t prove a negative. I

understand what you’re saying. Does anybody disagree? Yes,

ma’am, Ms. Thomas? Tell me what you think.

PROSPECTIVE JUROR THOMAS: I disagree. I feel like

when people speak about something, it brings out their

demeanor and actions. And I feel like I would not be able to

correctly decide whether they were innocent or guilty unless I

heard their voice, how they were acting, their facial

expressions. I can read people. To me, by them not speaking,

it makes them seem more guilty because they don’t want to

give up their expressions or how they react about the situation.

To me, it’s just more towards guilty. If the girl didn’t want to

speak, it means she was trying to hide something.

. . . .

THE COURT: Let me interrupt before we get to far down this

road. Folks, the law of our country, the fundamental law of

our country is—and I’ll read [to] you from part of the

standard jury instruction. In every criminal proceeding the

defendant has the absolute right to remain silent. At no

time is it the duty of the defendant to prove his innocence.

From the exercise of a defendant’s right to remain silent, a jury

is not permitted to draw any inference of guilt. And the fact

that a defendant did not take the witness stand must not

influence your verdict in any manner whatsoever.

Now, folks, the question becomes can you follow the law or

are you so caught up in your own ideas that you disregard the

law. The fact is that a defendant has the absolute right to remain

silent. The fact that somebody may want to hear from him,

quite frankly, is beside the point. The question is whether you

can follow the law or not or whether you can’t. [3]

In this case, the prosecutor’s comments, even if improper, neither rendered

the trial fundamentally unfair nor infected the trial with such unfairness that the

resulting convictions amount to a denial of due process. See Tucker, 802 F.2d at

1296. The record shows that counsel objected when the prosecutor began this line

of questioning and that the trial court clarified the law for the venire. Smith fails to

show that the result of the trial would have been different if counsel had either

requested a curative instruction or moved for a mistrial. See Portuondo v. Agard,

529 U.S. 61, 67 (2000) (noting that when a jury has been instructed that the

defendant's silence at trial cannot be taken as an implication of his guilt, “it is

reasonable enough to expect a jury to comply with that instruction, since . . . the

inference of guilt from silence is not always ‘natural or irresistible’”). Consequently,

Smith cannot meet his burden of proving that the state court either unreasonably

3 During jury selection prospective juror Thomas was stricken for cause and did not serve

on the jury. (Respondent’s Exhibit 4, trial transcript at 178–79)

applied Strickland or unreasonably determined the facts by rejecting this ground of

ineffective assistance of counsel. See 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Three

Smith alleges that his Sixth and Fourteenth Amendment rights were violated

“when the State willfully suppressed impeaching evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963) . . . .” (Doc. 1 at 23) Smith asserts that during the

trial when the prosecutor disclosed to the court that “we’ve read the rest of [the

victim’s] journal and the whole journal isn’t in evidence,” counsel objected “and

then reversed his course knowing that he just heard the State say they read the whole

journal . . . .” (Doc. 1 at 25–26) Smith contends that his trial counsel rendered

ineffective assistance by withdrawing the objection and that “[h]ad counsel carried

through with his objection we could have possibly seen the entire journal and had it

available to use at trial.” (Id. at 26) Smith argues that “the State’s Brady violation

hampered the defense” and “[t]rial counsel’s ineffective objection and unreasonable

reversal of that objection prevented the defendant from very important and material

information that would have led to a different trial outcome.” (Doc. 1 at 28)

The state post-conviction court rejected this ground in Smith’s Rule 3.850

motion as follows (Respondent’s Exhibit 12, Order Denying Defendant’s Motion for

Postconviction Relief at 7–8) (court’s record citation omitted):

First, Defendant alleges that the State committed a Brady

[FN2] violation by withholding the contents of the victim’s

journal. Defendant claims that the State only disclosed a

portion of the journal and argues that the additional journal

entries would have contained impeachment evidence.

Defendant claims the State’s failure to disclose this

information prejudiced the outcome of his trial because the

journal would have supported his version of events and

supported his theory that the victim's journal entries actually

referred to one [REDACTED] as the perpetrator. Defendant

also appears to claim that trial counsel was ineffective for

failing to raise a discovery violation.

2. Brady v. Maryland, 373 U.S. 83 (1963).

To establish a Brady violation, the movant must show that (1)

the evidence was favorable to the defendant, either because it

is exculpatory or impeaching, (2) the evidence was willfully or

inadvertently suppressed by the State, and (3) there is a

reasonable probability that the result of the proceeding would

have been different had the evidence been disclosed. Wickham

v. State, 124 So. 3d 841, 851 (Fla. 2013). Defendant’s claim is

refuted by the record. Detective Gore testified at his deposition

that he retrieved the victim’s journal from [REDACTED] and

submitted it as evidence. It is thus apparent from the record that

counsel knew that the journal was being held as evidence and

could have reviewed it. Defendant cannot establish that the

State suppressed evidence that counsel was, in fact, put on

notice of. Additionally, Defendant’s claim that the other

portions of the journal would have supported his defense is

entirely speculative. All of Defendant’s specific arguments

about the journal pertain to things the victim wrote on the pages

that were entered into evidence. He claims that the victim’s

entries on those pages conflict with her trial testimony, but

does not explain how any other pages in the journal are relevant

or would have established a defense. This aspect of

Defendant’s claim is denied.

Defendant’s ineffective assistance of counsel claim for failing

to raise a discovery violation also is without merit. If a

defendant discovers before the conclusion of a trial that

the State failed to disclose exculpatory information to the

defense, the trial court must conduct a Richardson [FN3]

hearing to determine (1) whether a violation occurred, (2)

whether the violation was inadvertent or willful, trivial or

substantial, and (3) whether the defendant’s trial strategy

would have been materially different had the violation not

occurred. See Sinclair v. State, 657 So. 2d 1138, 1140 (Fla.

1995); Taylor v. State, 62 So. 3d 1101, 1112 (Fla. 2011).

Information that counsel is aware of cannot constitute a

discovery violation. It is clear from the record that counsel

knew about the journal and either chose not to investigate it, or

reviewed it and determined that the other portions of the

journal were not relevant or helpful to Defendant. In either

event, counsel was not ineffective for failing to make a baseless

request for a Richardson hearing. This claim is denied.

3. Richardson v. State, 246 So. 2d 771, 775 (Fla.

1971).

Brady v. Maryland, 737 U.S. 83, 87 (1963), holds that “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.” To establish a Brady violation, a

petitioner must show that (1) the evidence is favorable to the accused, either because

it is exculpatory or it is impeaching; (2) the evidence was suppressed by the State,

either willfully or inadvertently; and (3) the evidence is material. Banks v. Dretke,

540 U.S. 668, 691 (2004). Suppressed evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” United States v. Bagley, 473

U.S. 667, 682 (1985).

The record supports the state post-conviction court’s rejection of this ground.

In his April 2010 deposition—taken nearly two years before the January 2012 trial—

Detective Scott Gore testified that once he learned that the school resource officer

had the victim’s journal, he went to the school, retrieved the journal, and entered it

into evidence. (Respondent’s Exhibit 1) Thus, even assuming arguendo that the

additional pages of the journal included evidence that was either exculpatory or

impeaching, Smith cannot show that the State either willfully or inadvertently

suppressed this evidence. See Banks, 540 U.S. at 691. Smith is not entitled to relief

on his Brady claim.

Smith likewise fails to substantiate his ineffective assistance of counsel claim.

The State introduced into evidence at trial a two-page excerpt of the victim’s journal.

(Respondent’s Exhibit 4, trial transcript at 332–33) During trial counsel’s closing

argument the State objected to counsel’s reference to the victim’s journal as follows

(Respondent’s Exhibit 4, trial transcript at 551–53):

[COUNSEL]: No one read the rest of the journal. That doesn’t

make any sense. This is it, State’s Exhibit 1. You guys get to

read this. You guys get to bring it into the jury room. You get

to read everything that any of us has ever read. Detective Gore

different [sic] read any other part of this journal. [The

prosecutor] has never read any other part of this journal.

[PROSECUTOR]: Objection, Your Honor. May we approach?

THE COURT: Yes.

(WHEREUPON A SIDEBAR CONFERENCE WAS HAD

OUTSIDE THE HEARING OF THE JURY AS FOLLOWS):

[PROSECUTOR]: Obviously, I’m not a State witness. And

we’ve read the rest of the journal and the whole entire journal

isn’t in evidence. So I think it’s incredibly and completely

inappropriate argument. Not only is he misstating the facts—

because Gore indicated that he did look at the journal and this

was the only entry, obviously, that was relevant to the case.

[COUNSEL]: Okay. Well, if there is a whole other journal,

I’ve never seen it and that’s a discovery violation. I’m not

complaining about it. Detective Gore said nobody read any

other part of the journal. This is all that’s been given to me.

This is all that—yeah, no one has ever read any other parts of

the journal. I think the teacher pulled it out and gave it to the

police.

THE COURT: To the extent that you said that [the prosecutor]

here hasn’t read it, that is beyond the evidence.

[COUNSEL]: I agree.

THE COURT: There is no evidence as to what—she’s not a

witness. There’s no evidence about what she’s read or hasn’t

read. So that argument is inappropriate because you’re arguing

outside of the evidence. The objection is sustained as to that

point. Proceed.

Smith argues that if “counsel had carried through with his objection[,] we

could have possibly seen the entire journal and had it available to use at trial.”

(Doc. 1 at 26) Smith’s allegation is speculative. Moreover, Smith does not show

that he had a viable discovery violation that his trial counsel failed to pursue. Even

assuming that counsel performed deficiently by not asserting a discovery violation,

Smith cannot show prejudice as Strickland requires. Smith presents no evidence

establishing the contents of the remaining pages of the journal and, consequently,

cannot show that the outcome of his trial would have been different if counsel had

further pursued the objection as he suggests counsel should have done. Smith fails

to establish that the state court either unreasonably applied Strickland or

unreasonably determined the facts by rejecting this claim of ineffective assistance of

counsel. See 28 U.S.C. § 2254(d)(1), (d)(2). Accordingly, Ground Three warrants

no relief.

Ground Four

Smith contends that his trial counsel rendered ineffective assistance by not

requesting a statement of particulars from the State. Smith argues that “[t]he State

had information that should have been used to narrow the timeframe”4 in which the

crimes occurred and that inconsistencies in both the victim’s statements and her

mother’s statements about when the abuse occurred could have been used to impeach

their trial testimony. Smith asserts that during different interviews with the

prosecutor and the police the victim gave different ages and different dates about

when the abuse occurred and that “counsel never discovered any of this information

that was in the State’s possession.” (Doc. 11 at 12) Smith alleges that “[t]here is no

reasonable trial strategy counsel could have had in allowing such a broad timeframe”

to be charged in the second amended Information and that a statement of particulars

4 The second amended Information alleged that the crimes occurred between October 13,

2004, and February 1, 2008. (Respondent’s Exhibit 3)

“could have led to a completely different trial strategy or a dismissal of the charges

all together.” (Doc. 1 at 34)

The state post-conviction court rejected this ground in Smith’s Rule 3.850

motion as follows (Respondent’s Exhibit 12, Order Denying Defendant’s Motion for

Postconviction Relief at 9–10) (court’s record citations omitted):

Defendant alleges that counsel was ineffective for failing to

request a statement of particulars pursuant to Florida Rule of

Criminal Procedure 3.140. Specifically, Defendant contends

that the information was vague regarding the dates of the

alleged offenses, which limited his ability to prepare a defense.

Defendant argues that he would have been found not guilty if

he had been able to tailor a defense to more specific dates.

Rule 3.140(d)(3) requires that each count of an indictment or

information contain “allegations stating as definitely as

possible the time and place of the commission of the offense

charged in the act or transaction . . . [.]” Subsection (n) allows

the defendant to move for a statement of particulars when the

information fails to inform the defendant of the particulars of

the offense sufficiently to enable the defendant to prepare a

defense. Where an information alleges a lengthy period of time

and the State can demonstrate that it has exhausted all

reasonable means of narrowing the time frame, the burden

shifts to the defendant to demonstrate that the defense will be

prejudiced. See Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla.

1993). Due to the nature of cases that allege ongoing sexual

abuse of a child, prosecutors are given latitude in alleging the

date ranges for such offenses. See id. When a victim is unable

to specify dates in a case of ongoing abuse, it is permissible to

allege that the charged offenses occurred on one or more

occasions within a specified date range. See State v. Generazio,

691 So. 2d 609, 611 (Fla. 4th DCA 1997); Whittingham v.

State, 974 So. 2d 616, 618–19 (Fla. 4th DCA 2008).

Count One of the State’s Second Amended Felony

Information alleged capital sexual battery, on one or more

occasions, between October 1, 2005, and January 31, 2008.

Count Two alleged lewd or lascivious molestation, on one or

more occasions, for the same date range as count one.

Defendant claims his defense was prejudiced because the date

range was insufficiently narrow. However, it is apparent from

the pretrial record that the victim alleged multiple instances of

sexual contact when she was a young child; years before the

abuse was reported to law enforcement. Defendant’s own

inculpatory statements to police corroborate part of the alleged

time frame.

The facts and circumstances of the case therefore supported an

information that alleged a date range of abuse. See

Whittingham, 974 So. 2d at 618–19. Furthermore, defense

counsel deposed the victim about the timeline of the alleged

offenses and therefore was on notice of the time frame of the

allegations that the State would question her about at trial.

Defendant alleges that he may have been able to establish an

alibi or some other defense, but the court finds this allegation

speculative and conclusory. See Easterly v. State, 22 So. 3d

807 (Fla. 1st DCA 2009) (finding that the defendant could not

establish prejudice for State’s failure to furnish statement of

particulars for ongoing sexual abuse where the defendant knew

which events the State would question the victim about and did

not argue that he had an alibi defense or other defense for

which a narrowed timeframe would be advantageous). In sum,

Defendant fails to establish that counsel was ineffective for

failing to move for a statement of particulars or that he was

prejudiced by counsel’s failure to do so. This claim therefore

is denied.

“The purpose of a bill of particulars is merely to give the defendant notice of

the particular acts relied upon by the state to establish the crime charged, that the

defendant may be fully advised of the nature and cause of the accusation against

him, and that he may have an opportunity to prepare his defense.” Middleton v.

State, 74 Fla. 234 (1917). Florida Rule of Criminal Procedure 3.140(d)(3) requires

that “[e]ach count of an indictment or information on which the defendant is to be

tried shall contain allegations stating as definitely as possible the time and place of

the commission of the offense charged in the act or transaction or on 2 or more acts

or transactions connected together . . . .” Counsel may move for a statement of

particulars if “the indictment or information on which the defendant is to be tried

fails to inform the defendant of the particulars of the offense sufficiently to enable

the defendant to prepare a defense.” Fla. R. Crim. P. 3.140(n).

Smith speculatively asserts that counsel “never discovered any of this

information that was in the State’s possession” about the victim’s differing

statements on the dates and ages. However, Smith presents no evidence showing

that counsel was unaware of this information.5 The second amended Information,

filed in January 2011—more than one year before the trial—charged Smith with

crimes alleged to have occurred between October 13, 2004, and February 1, 2008.

(Respondent’s Exhibit 3) Smith does not show that the second amended Information

failed to place him on notice to “enable [him] to prepare a defense.”6 Fla. R. Crim.

P. 3.140(n). Accordingly, he does not establish how a statement of particulars was

5 As the state post-conviction court noted, trial counsel deposed the victim in 2010, nearly

two years before the trial. In her deposition the victim averred that the abuse happened “nine to

ten times in between one to two months.” (Respondent’s Exhibit 2 at 21) The victim’s age and

certain other identifying information is redacted in the excerpt of the victim’s deposition filed in

this case. (Respondent’s Exhibit 2)

6 In support of his petition Smith attaches excerpts of what appears to be several different

police reports or investigation notes or interviews. (Doc. 1 at 42–57) Smith does not include cover

pages or complete copies of any of these documents. Consequently, the Court cannot discern

whether the attachments are what Smith purports them to be.

necessary. Smith cannot meet his burden of proving that the state court either

unreasonably applied Strickland or unreasonably determined the facts by rejecting

this ground. See 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Five

Smith contends that his trial counsel rendered ineffective assistance by not

investigating or presenting an expert witness to testify about the victim’s mental

health. Smith claims that the victim’s deposition revealed that the victim was seeing

a psychiatrist and taking medication for bi-polar disorder as Smith had allegedly told

counsel. Smith argues that “counsel never contacted her doctor to find out how the

victim’s mental and emotional state may affect her ability to be truthful” and that

counsel “never asked about the victim’s medication for bipolar disorder and how

that would affect her testimony.” (Doc. 1 at 36) He further argues that on “[t]he day

of trial, counsel made no challenge to the victim’s competency and provided no type

of mental health expert to testify about the victim’s inability to separate truth from

fantasy, whether the victim was susceptible to psychological transference, or

manipulative coaching from an adult.” (Id. at 37–38) Smith alleges that “counsel’s

ineffectiveness denied [him] the chance to present evidence of any sort, including

by proffer and cross-examination, regarding the victim’s long history of mental

illness” and that if counsel had “done what was asked of him by the defendant, [the]

trial would have been much different.” (Id. at 39, 41)

The state post-conviction court rejected this ground in Smith’s Rule 3.850

motion as follows (Respondent’s Exhibit 12, Order Denying Defendant’s Motion for

Postconviction Relief at 11–13) (court’s record citations omitted):

Defendant alleges that counsel was ineffective for failing to

retain an expert witness regarding the victim’s mental illness.

Defendant claims that the outcome of the trial would have been

different because the expert would have explained how the

victim’s mental illness affected her state of mind and

established that the victim was not credible.

Defense counsel is not necessarily ineffective for failing to

consult an expert. See Atkins v. Dugger, 541 So. 2d 1165, 1166

(Fla. 1989) (“One tactic available to counsel is to present

expert testimony. However, it is by no means the only tactic,

nor is it required.”). To successfully state a claim for

postconviction relief, the defendant must explain how the

expert witness’s testimony would have created a reasonable

probability of a different outcome under the specific facts and

circumstances of the case. See Braddy v. State, 219 So. 3d 803,

823–24 (Fla. 2017). A witness’s mental capacity may be

attacked if the lack of capacity relates to the witness’s capacity

at the time of the occurrence of the facts about which the

witness is testifying, or the witness’s capacity at the time of

trial. See § 90.608(4), Fla. Stat.; Tullis v. State, 556 So. 2d

1165, 1167 (Fla. 3d DCA 1990) (trial court properly excluded

cross examination of witness’s delusions, where delusions

were not contemporaneous with the events in question or

affecting the witness’s ability to testify at the time of trial);

Clark v. State, 379 So. 2d 97, 102 (Fla. 1979) (trial court

properly sustained objection to questioning about whether

State’s witness had ever been treated by psychiatrist or

psychologist because defendant did not show that an

affirmative answer to the inquiry would in any way affect the

truth or falsity of the witness’s testimony). Evidence of a

witness’s deficient mental ability may be established by expert

testimony and is admissible to impeach the witness if it

suggests that the witness’s emotional condition affects his or

her ability to tell the truth. See Hawkins v. State, 326 So. 2d

229,231 (Fla. 2d DCA 1976); see also Trainor v. State, 768

So. 2d 1123, 1124 (Fla. 2d DCA 2000). An alleged victim may

not be ordered to undergo a psychological evaluation unless

there is “strong and compelling evidence” that denial of an

examination could amount of a denial of due process. State v.

Coe, 521 So. 2d 373, 374 (Fla. 2dDCA 1988) (quoting Dinkins

v. State, 244 So. 2d 148, 150 (Fla. 4th DCA 1971)). The mere

fact that a victim has a mental illness, however, is insufficient

to compel a psychological evaluation. See Simmons v. State,

683 So. 2d 1101, 1105 (Fla. 1st DCA 1996); State v. Camejo,

641 So. 2d 109, 113 (Fla. 5th DCA 1994).

The victim mentioned in her deposition that she received

treatment at some point for bipolar disorder and was taking

medication. At trial, the State moved in limine to exclude any

mention of the victim’s mental health diagnosis as irrelevant

and prejudicial. Defense counsel argued that it was relevant to

her ability to testify truthfully. The Court indicated that such

evidence would not be admitted unless its probative value

outweighed the danger of unfair prejudice, but allowed

Defendant to proffer the testimony. Defense counsel ultimately

proffered some testimony about the victim’s lack of

cooperation with the pretrial proceedings, but did not proffer

testimony regarding the victim’s mental illness.[7]

The Court finds Defendant’s claim speculative, conclusory,

and insufficient to establish a claim for postconviction relief.

To the extent he alleges that counsel should have hired an

expert to examine the victim, he fails to establish that counsel

had strong and compelling evidence sufficient to move for the

victim to submit to such an examination. Establishing that the

victim was undergoing treatment for bipolar disorder, in and of

itself, would not have been sufficient to compel a

psychological evaluation. To the extent Defendant claims that

an expert could have established from existing medical records

that the victim’s bipolar disorder affected her ability either to

accurately perceive the events at the time the offenses allegedly

occurred or accurately relay them at the time of trial, his

allegation is entirely speculative. Pure speculation cannot

establish postconviction relief. See Maharaj v. State, 778 So.

2d 944, 951 (Fla. 2000). Defendant’s claim is insufficient to

7 See Respondent’s Exhibit 4, trial transcript at 252–67.

establish that counsel was ineffective for failing to call an

expert or that the outcome of the trial was prejudiced. This

claim is therefore denied.

“Complaints of uncalled witnesses are not favored, because the presentation

of testimonial evidence is a matter of trial strategy and because allegations of what

a witness would have testified are largely speculative.” Buckelew v. United States,

575 F.2d 515, 521 (5th Cir. 1978)8 (citations omitted). See also Sullivan v. Deloach,

459 F.3d 1097, 1109 (11th Cir. 2006) (“Th[e] prejudice burden is heavy where the

petitioner alleges ineffective assistance in failing to call a witness because ‘often

allegations of what a witness would have testified to are largely speculative.’”)

(quoting United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)). Tactical

decisions within the range of reasonable professional competence are not subject to

collateral attack unless a decision was so “patently unreasonable that no competent

attorney would have chosen it.” Adams v. Wainwright, 709 F.2d 1443, 1445 (11th

Cir. 1983). In assessing a lawyer's performance, “[c]ourts must ‘indulge [the] strong

presumption’ that counsel’s performance was reasonable and that counsel made all

significant decisions in the exercise of reasonable professional judgment.”

Chandler, 218 F.3d at 1314. Trial counsel must decide which strategic and tactical

option to pursue. See, e.g., Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099

8 Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued

before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc).

(11th Cir. 2007) (“Even if counsel’s decision . . . appears to have been unwise in

retrospect, the decision will be held to have been ineffective assistance only if it was

so patently unreasonable that no competent attorney would have chosen it.”); Waters

v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“[W]hich witnesses, if

any, to call, and when to call them, is the epitome of a strategic decision.”). A habeas

petitioner must overcome the presumption that counsel’s conduct was a matter of

strategy. Strickland, 466 U.S. at 689. A defendant’s disagreement with counsel’s

tactics or strategy will not support a claim of ineffective assistance of counsel.

Smith’s unsupported contention that counsel should have called an unnamed

expert to testify, without more, is insufficient to warrant relief. See, e.g., Bray v.

Quarterman, 265 F. App’x 296, 298 (5th Cir. 2008) (“To prevail on [a claim of

ineffective assistance of counsel for failing to call a witness], the petitioner must

name the witness, demonstrate that the witness was available to testify and would

have done so, set out the content of the witness’s proposed testimony, and show that

the testimony would have been favorable to a particular defense.”); United States v.

Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a

putative witness must generally be presented in the form of actual testimony by the

witness or an affidavit. A defendant cannot simply state that the testimony would

have been favorable; self-serving speculation will not sustain an ineffective

assistance claim.”) (footnotes omitted). “[M]ere speculation that missing witnesses

would have been helpful is insufficient to meet the petitioner's burden of proof.”

Streeter v. United States, 335 F. App’x 859, 864 (11th Cir. 2009).9

Smith fails to show that the outcome of his trial would have been different if

trial counsel had called an unnamed expert witness to testify about the victim’s

mental health. See Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001)

(holding that the petitioner did not establish ineffective assistance of counsel based

on defense counsel’s failure to call an expert witness because the petitioner failed to

show that counsel’s decision was so patently unreasonable that no competent

attorney would have chosen that strategy), cert. denied, 535 U.S. 1000 (2002).

Because Smith fails to show prejudice, his ground of ineffective assistance of

counsel warrants no relief. Smith cannot meet his burden of proving that the state

court either unreasonably applied Strickland or unreasonably determined the facts

by rejecting this ground. See 28 U.S.C. § 2254(d)(1), (d)(2).

Accordingly, Smith’s petition for the writ of habeas corpus (Doc. 1) is

DENIED. The Clerk shall enter a judgment against Smith and CLOSE this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

9 “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2

IT IS FURTHER ORDERED that Smith is not entitled to a certificate of

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

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

district court must first issue a certificate of appealability (“COA”). Section

2253(c)(2) limits the issuing of a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” To merit a certificate of

appealability, Smith must show that reasonable jurists would find debatable both (1)

the merits of the underlying claims and (2) the procedural issues he seeks to raise.

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.

Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that

reasonable jurists would debate either the merits of the claims or the procedural

issues, Smith is entitled to neither a certificate of appealability nor leave to appeal

in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in

forma pauperis is DENIED. Smith must obtain permission from the circuit court to

appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida this 21st day of March, 2022.

Chakene Pdards Mo TDA pl ell

Charlene Edwards Honeywell

United States District Judge

37

Copies furnished to:

All parties of record including unrepresented parties if any