Walker v. Secretary, DOC (Lee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ELDRIDGE WALKER, JR.,

Petitioner,

v. Case No. 2:20-cv-813-JES-KCD

SECRETARY, DOC,

Respondent.

OPINION AND ORDER

This case is before the Court on a 28 U.S.C. § 2254 petition

for writ of habeas corpus filed by Eldridge Walker, Jr. (“Walker”

or “Petitioner”), a prisoner of the Florida Department of

Corrections. (Doc. 1). Respondent, Secretary of the Florida

Department of Corrections (“Respondent”), filed a response in

opposition to the petition (Doc. 8), and Walker filed a reply and

amended reply. (Doc. 11; Doc. 12).

After carefully reviewing the parties’ briefs and the entire

state-court record, the Court finds that Walker is not entitled to

federal habeas corpus relief. Further, because the Court was able

to resolve all claims on the record, an evidentiary hearing is not

warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

I. Background and Procedural History

On May 21, 2014, the State of Florida charged Walker by

amended information with one count of robbery. (Doc. 8-2 at 18–

19). A jury found him guilty as charged. (Id. at 341). The

trial court sentenced Walker as a habitual violent felony offender

to fifteen years in prison. (Id. at 362–63, 368–74). Florida’s

Second District Court of Appeal (“Second DCA”) affirmed per curiam

without a written opinion. (Id. at 378).

Thereafter, Walker filed a petition alleging ineffective

assistance of appellate counsel, which the Second DCA denied.

(Doc. 8-2 at 419, 466). Walker then filed a motion under Rule

3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850

Motion”). (Id. at 468). The postconviction court summarily

denied three grounds as conclusively refuted by the record, denied

a fourth ground with leave to amend as insufficiently pleaded, and

granted a hearing on one ground. (Doc. 8-2 at 756–64). The

postconviction court summarily denied Walker’s amended ground.

(Id. at 989–993). After holding an evidentiary hearing on the

remaining claim (id. at 1032–85), the postconviction court entered

a final order denying relief. (Id. at 1087–90). The Second DCA

affirmed per curiam without a written opinion. (Doc. 8-2 at 1093).

Walker filed this petition on October 7, 2020. (Doc. 1 at

13).1

1 Under the “mailbox rule,” a pleading is considered filed by an

inmate on the date it was delivered to prison authorities for

mailing, which—absent contrary evidence—is the date it was signed.

Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

In this case, the petition was stamped as provided to Desoto

Correctional Institution for mailing on October 7, 2020. (Doc. 1

at 13.)

II. Governing Legal Standards

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). In this context, clearly established

federal law consists of the governing legal principles, and not

the dicta, set forth in the decisions of the United States Supreme

Court at the time the state court issued its decision. White v.

Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S. 70,

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

A decision is contrary to clearly established federal law if

the state court either: (1) applied a rule that contradicts the

governing law set forth by Supreme Court precedent; or (2) reached

a different result from the Supreme Court when faced with

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

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

A state court decision involves an unreasonable application

of the Supreme Court’s precedents if the state court correctly

identifies the governing legal principle, but applies it to the

facts of the petitioner’s case in an objectively unreasonable

manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state

court either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson v. Moore, 234 F.3d 526, 531

(11th Cir. 2000) (quoting Williams, 529 U.S. at 406).

The standard for relief under 28 U.S.C. § 2254(d) is both

mandatory and difficult to meet. To demonstrate entitlement to

federal habeas relief, the petitioner must show that the state

court’s ruling was “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” White, 572 U.S. at 420

(quotation marks omitted). Moreover, when reviewing a section

2254(d) claim, a federal court must presume that any “determination

of a factual issue made by a State court” is correct, and the

petitioner bears “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e).

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). Generally, in the case of a silent affirmance,

a federal habeas court will “look through” the unreasoned opinion

and presume that the affirmance rests upon the specific reasons

given by the last court to provide a reasoned opinion. See Ylst

v. Nunnemaker, 501 U.S. 797, 806 (1991); Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018). However, the presumption that the

appellate court relied on the same reasoning as the lower court

can be rebutted “by evidence of, for instance, an alternative

ground that was argued [by the state] or that is clear in the

record” showing an alternative likely basis for the silent

affirmance. Sellers, 138 S. Ct. at 1196.

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. This is a

“doubly deferential” standard of review that gives both the state

court and the petitioner’s attorney the benefit of the doubt.

Burt v. Titlow, 571 U.S. 12, 15 (2013).

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 presume 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.” 466 U.S. at 687. When evaluating an ineffective

assistance of counsel claim, “a court need not determine whether

counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.”

Strickland, 466 U.S. at 697.

III. Discussion

To better understand Walker’s claims, a summary of pertinent

facts—as recounted in the state’s brief on direct appeal—follows:

On December 1, 2013, Mr. Raphael Galety, the robbery

victim in this case, was driving down Broadway Avenue

between Unity Avenue and Moreno Avenue in Ft. Myers at

approximately 6:30 p.m. A dog runs out into the street,

and Mr. Galety’s car hits the dog. The dog runs back

to the house from where it came. Mr. Galety calls 911 to

report the accident. Mr. Galety testified that he was

told to pull the car off the road and park it. Mr.

Galety testified that he got out of his car to find out

what happened to the dog when he was approached by Walker

and another man that Mr. Galety described as “Spanish

dude.”

According to Mr. Galety, Walker demanded money. Mr.

Galety tells Walker, he has no money. Mr. Galety

testified that Walker hits him in the face. Mr. Galety

then gets hit by the “Spanish dude”. Mr. Galety testified

that he tried to stand up but he got hit again while

Walker continued demanding money from him. Mr. Galety

testified that when he stood up, his wallet was not in

his pocket and his cell phone was missing. Mr. Galety

testified that he was scared that they were going to

hurt him.

. . .

Detective[s] then obtained a search warrant and returned

to search [Walker’s] residence for Mr. Galety’s

property. Detective Pooser testified that he found Mr.

Galety’s credit cards, identification card and cell

phone inside the kitchen/dining room cabinet of the

home.

(Doc. 8-2 at 406–07 (internal citations to the record omitted and

slight alterations made for clarity)).

Walker now raises five claims (Grounds One through Five) of

ineffective assistance of trial counsel (“Counsel”) and one claim

of trial court error (Ground Six). Respondent concedes that each

claim was exhausted in state court. (Doc. 8 at 8).2 For the

ineffective assistance claims raised in Walker’s Rule 3.850 Motion

and rejected by the postconviction court, this Court will “look

through” the Second DCA’s silent affirmance and consider the lower

2 “An application for a writ of habeas corpus on behalf of a

person in [State custody] shall not be granted unless . . . the

applicant has exhausted the remedies available in the courts of

the State.” 28 U.S.C. § 2254(b)(1)(A). Because Respondent

concedes exhaustion and the Court’s independent review of the

record supports a conclusion that each of Walker’s claims was fully

exhausted in state court, this Court will not further address the

issue of exhaustion in this Order.

court’s rationale for denying those claims. See Sellers, 138 S.

Ct. at 1192.

Walker exhausted Ground Six by raising it on direct appeal.

The Second DCA affirmed Walker’s conviction without a written

opinion. A state court’s denial of a claim raised on direct appeal

does not require a written opinion from the state appellate court

to be entitled to section 2254(d) deference. See Harrington v.

Richter, 562 U.S. 86, 98 (2011). Rather, in the case of a silent

affirmance, “a habeas court must determine what arguments or

theories . . . could have supported the state court’s decision;

and then it must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent

with the holding in a prior [Supreme Court decision].” Id. at 102

(emphasis added). Therefore, for Ground Six, this Court will

consider whether Walker has met his burden of showing “no

reasonable basis for the state court to deny relief.” Id.

A. Ground One

Walker asserts that Counsel was ineffective for failing to

call Feron Alexander as a defense witness at his trial. (Doc. 1

at 4.) He claims that Ms. Alexander would have testified that she

took the victim’s property and brought it into her house for

safekeeping. (Id.) Walker claims that, since the crime of

robbery (as opposed to battery) was predicated on the taking of

the victim’s property, Ms. Alexander’s testimony would have shown

that she (Ms. Alexander) was acting as a good Samaritan by picking

up the victim’s phone and wallet contents, and as a result, Walker

could not be guilty of robbery. (Id.)

The postconviction court rejected this claim when Walker

raised it in his Rule 3.850 Motion. (Doc. 8-2 at 991–92.) The

court first denied it on Strickland’s prejudice prong because the

substance of Ms. Alexander’s testimony was admitted through the

testimony of Detective Downs. (Id.) The postconviction court

noted that “[w]hen asked about Ms. Alexander, Detective Downs

stated that Ms. Alexander told him exactly what the Defendant

believes she would have said: that she picked up the victim’s cell

phone and wallet and brought them inside for safekeeping.” (Id.)

The court next noted that Counsel could not be ineffective for

failing to offer testimony that could have opened the door to

damaging evidence. (Id. at 993.) The court found that Ms.

Alexander’s stated reason for taking the victim’s property could

have been challenged because she “took the contents of the wallet

and cell phone while the victim was present; she could have

immediately returned the wallet, with its contents intact, and the

cell phone to the victim.” (Id. at 992).

The postconviction court’s conclusions are fully supported by

the record. At trial, Detective Downs testified that Ms.

Alexander told him she took the victim’s cell phone and wallet

contents inside her house for safekeeping. (Doc. 8-2 at 280–83).

Thus, the jury was well aware of Ms. Alexander’s purported reasons

for taking the victim’s property. It is not ineffective

assistance to not present “redundant evidence.” Waters v. Thomas,

46 F.3d 1506, 1512 (11th Cir. 1995); see also Van Poyck v. Florida

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.”).

Also, the postconviction court reasonably concluded that Ms.

Alexander’s testimony could be damaging to the defense. The

victim testified that Ms. Alexander, along with Walker and another

(“Spanish”) man, yelled at him and asked for money. (Doc. 8-2 at

170). He testified that after Walker and the Spanish man hit him,

he fell to the ground, and when he tried to stand up “the black

girl [later identified as Ms. Alexander] swing – hit me again.”

(Id. at 171). He said all three people (including Ms. Alexander)

punched him in the face. (Id. at 179). He saw that Ms. Alexander

was holding his phone, and when he asked her to give it back, she

refused. (Id. at 172, 184). Given the victim’s testimony

regarding Ms. Alexander’s participation in the crime and her

refusal to return Petitioner’s phone when asked to do so, the

postconviction court reasonably concluded that her stated reasons

for taking the wallet’s contents and the victim’s cell phone could

have been challenged by the prosecution. And because the jury was

given a “principal” jury instruction, see discussion Ground Six

infra, Ms. Alexander’s culpable actions could have been damaging

to Petitioner’s theory of defense. See Gaskin v. Sec'y, Dep't of

Corr., 494 F.3d 997, 1004 (11th Cir. 2007) (denying ineffective

assistance claim and stating “the fact remains that . . . further

evidence would have opened the door to damaging personal history

evidence”); Everett v. State, 54 So. 3d 464, 474 (Fla. 2010)

(concluding that a decision not to call a witness based on concern

over the witness’s credibility was not deficient).

The state courts’ rejection of Ground One was neither contrary

to, or based upon an unreasonable application of, Strickland. Nor

was it based on an unreasonable determination of the facts in light

of the evidence presented at trial. Walker is not entitled to

federal habeas corpus relief on Ground One. 28 U.S.C. § 2254(d).

B. Ground Two

Walker asserts that Counsel was ineffective for advising him

to reject a favorable plea offer. (Doc. 1 at 5.) He claims that,

prior to trial, he was offered a ten-year plea deal, but rejected

it because Counsel told him that “even if he lost in trial he would

only be subjected to a maximum of five years” because there was no

proof of robbery, and battery carried only a five-year sentence.

(Id.)

The postconviction court held an evidentiary hearing on this

claim at which Counsel and Walker both testified. (Doc. 8-2 at

1032). After the hearing, the postconviction court denied the

ground. (Id. at 1088–89). The court summarized the witnesses’

testimony and concluded that “[h]aving had the benefit of the

testimony at the hearing, and of observing the demeanor of the

witnesses, this Court finds trial counsel credible and that

Defendant was not misadvised to reject the plea offer.” (Id. at

1089). The state court’s credibility determination is a finding

of fact, entitled to a presumption of correctness that Walker must

rebut with clear and convincing evidence. Consalvo v. Sec’y,

Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“We consider

questions about the credibility and demeanor of a witness to be

questions of fact.”); 28 U.S.C. § 2254(e)(1) (On habeas review,

“[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.”).

The record supports the state courts’ rejection of this claim.

At the evidentiary hearing, Walker testified that Counsel advised

him that the state had offered ten years in prison in exchange for

a plea to attempted robbery. (Doc. 8-2 at 1041–42). He also

testified that Counsel told him, based on the evidence, she thought

he would be convicted of battery, not robbery, which carried a

maximum sentence of five years. (Id. at 1042–43). Walker said

that he felt that Counsel was “leading [him] on that she was going

to win and [he] was going to be found guilty of a lesser included

offense and that was the battery.” (Id. at 1045). He admitted

that she did not make a recommendation to Walker on the offer.

(Id. at 1042).

In contrast to Walker’s testimony, Counsel testified that

after she read the discovery, including the depositions, she was

“convinced that [the state] had good witnesses and that they had

a solid case.” (Doc. 8-2 at 1064–65). She said that she provided

copies of the witness depositions to Walker because she was “trying

to persuade him to take the ten year . . .plea deal that the State

had offered to him. I explained that if he were found guilty that

he would have at least fifteen years.” (Id. at 1067). She

specifically testified that she never advised him to go to trial.

(Id. 1174).

Walker now argues that Counsel’s testimony at the evidentiary

hearing was not credible because—although she testified that she

felt the state had a solid case—she filed a motion after his trial

in which she argued that “the complaining witness could not

identify who took his wallet and that the evidence of the case

doesn’t meet the elements of robbery.” (Doc. 1 at 6). This

argument is insufficient to rebut the state courts’ credibility

determination. That Counsel advocated for her client and filed a

motion for a new trial after he was found guilty does not suggest

that she actually advised him to go to trial in the first place.

The postconviction court conducted an evidentiary hearing at which

Counsel and Walker provided incompatible testimony. The court

resolved the conflicts in favor of Counsel and determined that

she, not Walker, was the more credible witness. This Court will

not redetermine witness credibility when the testimony and

demeanor of those witnesses has been observed in state court, but

not here. See Consalvo, 664 F.3d at 845 (“Determining the

credibility of witnesses is the province and function of the state

courts, not a federal court engaging in habeas review.”).

The state courts determined the facts, and reasonably applied

federal law to those facts when it concluded that he was not

misadvised to reject the State’s plea offer. Walker is not

entitled to federal habeas relief on Ground Two. 28 U.S.C. §

2254(d).

C. Ground Three

Walker asserts that Counsel was ineffective for failing to

investigate and depose witness Toya Johnson. (Doc. 1 at 7). He

asserts that Ms. Johnson would have testified that Walker’s

altercation with the victim “was a mere battery and during the

battery Feron Alexander picked up the complaining witness[‘s]

property on her own free will.” (Id.) The postconviction court

denied this claim on Strickland’s prejudice prong. The court

explained that “had Ms. Johnson actually testified, her testimony

would have been that she did not witness the robbery that the

Defendant committed, but witnessed a completely separate theft

committed by Ms. Alexander.” (Doc. 8-2 at 991). But, noted the

court, “[t]he testimony that [Walker] claims should have been

introduced would have been contradicted by the evidence found at

the scene and the other testimony given. Ms. Johnson’s proposed

testimony, therefore, could not have changed the result of

[Walker’s] trial.” (Id.)

Walker argues, without explanation, that the state courts’

rejection of this claim was unreasonable. (Doc. 1 at 7).

However, “Strickland places the burden on [the petitioner], not

the State, to show a ‘reasonable probability’ that the result would

have been different” had Counsel performed as Walker now argues

she should have. Wong v. Belmontes, 558 U.S. 15, 27 (2009)

(quoting Strickland, 466 U.S. at 694). And here, Walker only

speculates that Ms. Johnson’s testimony would have resulted in a

different outcome at trial. See Johnson v. Alabama, 256 F.3d

1156, 1187 (11th Cir. 2001) (“Johnson offers only speculation that

the missing witnesses would have been helpful. This kind of

speculation is ‘insufficient to carry the burden of a habeas corpus

petitioner.’”) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636

(11th Cir. 1985)); Jones v. State, 845 So. 2d 55, 64 (Fla. 2003)

(“Postconviction relief cannot be based on speculative

assertions.”). Moreover, Walker has not offered Ms. Johnson’s

sworn testimony detailing what she would have said if deposed or

called to testify at trial. See 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 on affidavit. A defendant cannot

simply state that the testimony would have been favorable; self-

serving speculation will not sustain an ineffective assistance

claim.”). Without such a showing, Walker cannot demonstrate

Strickland prejudice.

The Florida state courts reasonably concluded that Walker did

not show Strickland prejudice from Counsel’s failure to call Ms.

Johnson as a witness at trial. Therefore, the state courts’

rejection of this claim was neither contrary to, nor based upon an

unreasonable application of, Strickland and was not based upon an

unreasonable determination of the facts in light of the evidence

presented in state court. 28 U.S.C. § 2254(d). Walker is not

entitled to federal habeas relief on Ground Three.

D. Ground Four

Walker asserts that Counsel was ineffective for failing “to

investigate and assert” that the taking of the victim’s property

was an afterthought and therefore constituted a theft and not a

robbery. (Doc. 1 at 8). He asserts that after the victim hit the

dog, “the owners are furious and an argument ensues.” (Id.)

Walker asserts that he was friends with the owner of the dog and

“proceeded to get in a physical altercation with the complaining

witness” during which the victim’s wallet fell from his pocket and

was retrieved by Ms. Alexander. (Id.) He asserts that Ms.

Alexander took the wallet as an afterthought and “trial counsel

should have requested a special jury instruction with regards to

the taking of the property being an afterthought to the initial

incident.” (Id.)

Walker raised this claim in his Rule 3.850 Motion, and the

postconviction court rejected it. (Doc. 8-2 at 477–78). First,

the court noted that when the jury instructions were read, the

court actually did provide an afterthought instruction. (Id. at

763). The court concluded that standard jury instructions are

preferred over special instructions and that had Counsel requested

a special instruction on afterthought, “such a request would have

been denied.” (Id.)

It is unclear what Walker asserts Counsel could have done

differently. During opening statement, Counsel told the jury that

“this was not a robbery,” but was, instead “a request by another

person, not [Walker], to help with the hospital bills.” (Doc. 8-

2 at 160). During closing, she argued that there was nothing to

connect Walker to the wallet or the cell phone. (Id. at 305).

She also pointed out that “Feron Alexander admitted [to the police]

that she picked the cell phone up.” (Id. at 305–06). Counsel

argued that “there’s no evidence presented by the State that Mr.

Walker ever obtained any of these documents, cell phone, or wallet.

So I submit to you that the State has not proven its case.” (Id.

at 307.)

As argued by Counsel, Detective Downs testified at trial that

Ms. Alexander admitted taking the victim’s cell phone and wallet

contents. (Doc. 8-2 at 280–83). Therefore, it would have been

illogical for Counsel to argue that Walker took those items as an

“afterthought” to battering the victim. And, as noted by the

postconviction court, the trial court did provide an afterthought

instruction to the jury, instructing that “[i]f you find that the

taking of the property occurred as an afterthought to the use of

force or violence against the victim, the taking does not

constitute a robbery, but may still constitute theft.” (Id. at

313). To the extent Walker wanted a different, or special,

afterthought jury instruction, the state court (and by its silent

affirmance, the Second DCA) already said what would have happened

if such had been requested; the request would have been denied.

State courts, not federal courts sitting in habeas review, are the

final arbiters of state law. See Agan v. Vaughn, 119 F.3d 1538,

1549 (11th Cir. 1997) (noting that it is a fundamental principle

that “state courts are the final arbiters of state law, and federal

habeas courts should not second-guess them on such matters.”).

The state courts reasonably concluded that Walker

demonstrated neither deficient performance nor resulting prejudice

from Counsel’s failure to present a better afterthought defense.

Walker is not entitled to federal habeas corpus relief on Ground

Four.

E. Ground Five

Walker asserts that Counsel was ineffective for failing to

object to the prosecutor’s statement in closing argument that

Walker was a “cheerleader” in the incident and was, therefore,

guilty as a principal. (Doc. 1 at 9). Walker appears to base

Ground Five on a portion of the prosecutor’s closing argument where

he explained the “principal” jury instruction:

Now, when you read this [principal] instruction, if all

Mr. Walker did was stand on the sidewalk watching him

and cheered them on, and say, get him, guys, get him.

Even then he’s a principal. Even then the Statute says

he’s just as guilty as everyone else. But we know that

in this case, he went far, far beyond that.

(Doc. 8-2 at 296). The postconviction court rejected this claim

on Strickland’s performance prong, noting that it was evident that

the state was merely relaying and explaining to the jury a portion

of the standard instruction for principals. (Id. at 758). The

court noted that “[i]f [Walker’s] counsel had objected to this

statement, such an objection would have been overruled.” (Id.

(citing Bertolotti v. State, 476 So. 2d 130 (Fla. 1985))).

Walker does not explain how the state court’s rejection of

Ground Five entitles him to relief under section 2254(d). Under

Florida law, the “role of the attorney in closing argument is to

assist the jury in analyzing, evaluating, and applying the

evidence.” Cardona v. State, 185 So. 3d 514, 520 (Fla. 2016)

(internal quotation marks omitted). Notably, the prosecutor did

not argue (as Walker appears to believe) that Walker was a

cheerleader while the victim was robbed. Rather, he explained

that, even if Walker had merely encouraged the other robbers, he

could be found guilty as a principal. And this argument was

permissible in this case because the trial court instructed the

jury on principal liability. (Doc. 8-2 at 316). See Marman v.

State, 814 So.2d 1158, 1159 (Fla. 2d DCA 2002) (“If an instruction

is given to the jury, counsel must be given an opportunity to

address the jury on the matter.”); Seckington v. State, 424 So. 2d

194, 195 (Fla. 5th DCA 1983) (“One of the purposes of closing

arguments is to give the attorneys the opportunity to tie together

for the jury the law and the facts so that the jury can give the

proper legal weight to the evidence in reaching its verdict.”).

Because the prosecutor’s statement was allowed under Florida

law, the postconviction court reasonably concluded that Counsel

had no grounds on which to object, and as a result, Walker cannot

demonstrate deficient performance under Strickland. Walker is not

entitled to habeas corpus relief on Ground Five.

F. Ground Six

Walker asserts that the evidence against him was insufficient

to support his conviction for robbery. (Doc. 1 at 10). At the

close of the state’s case-in-chief, Walker moved for a judgment of

acquittal based upon insufficiency of the evidence. (Doc. 8-2 at

284). In his motion for a new trial, Walker again argued that the

evidence was insufficient to support a robbery conviction. (Doc.

8-2 at 343–44). He made the argument a third time on direct

appeal. (Id. at 381). At each turn, Walker’s arguments were

rejected by the state courts.

The Due Process Clause of the Fourteenth Amendment requires

the state to prove each element of the offense charged beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315 (1979).

Under Jackson, federal courts must look to state law for the

substantive elements of the offense, but to federal law for the

determination of whether the evidence was sufficient under the Due

Process Clause. Coleman v. Johnson, 566 U.S. 650 (2012). For

federal due process review, “[t]he [only] relevant question is

whether after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319.

Under Florida law:

“Robbery” means the taking of money or other

property which may be the subject of larceny

from the person or custody of another, with

intent to either permanently or temporarily

deprive the person or the owner of the money

or other property, when in the course of the

taking there is the use of force, violence,

assault, or putting in fear.

Fla. Stat. § 812.13 (2014). In addition to instructing the jury

on the elements of robbery (Doc. 8-2 at 312–13), the trial court

read the principal instruction and told the jury that under the

principal theory, Walker could be “treated as if he had done all

the things that the other person or persons did if [he] had a

conscious intent that the criminal act be done . . . [and] did

some act or said some words, which was intended to and which did

incite, cause, encourage, assist, or advise the other person or

persons to actually commit the crime.” (Id. at 316–17).

At trial, the victim testified that he hit a dog with his

Jeep. (Doc. 8-2 at 164). Worried about the dog, he stopped his

car, called 9-1-1, and got out of his car to check on the dog’s

welfare. (Id. at 165–66). He was approached by Walker and

another man. (Id. at 166). Walker accused the victim of hitting

his dog. (Id. at 167, 168). Walker, the other man, and

eventually, a female, demanded money from the victim. (Id. at

169, 170). When the victim said he did not have money and that

he had called the police, Walker said, “He’s a fucking immigrant.

They don’t have papers. They don’t call the police. They got the

money.” (Id. at 170). Walker then punched the victim in the

face. (Id. at 170–71.) The other man also punched the victim,

causing him to fall to the ground where both men and the female,

kicked and punched him, all the while demanding money. (Id. at

171.) While being beaten, the victim felt someone remove his

wallet from his pocket. (Id. at 172). After the attack ceased,

the victim stood up and realized that his phone and wallet were

missing. (Id. at 171–72). Walker noticed that the female was

holding his phone, but when he demanded it back, she refused.

(Id. at 172). After beating him and taking his phone and wallet,

Walker and the female ran back to their house. (Id. at 173.) The

victim testified that he was scared and attempted to run into the

street to stop someone. (Doc. 8-2 at 179–80). When the police

went into Walker’s house, they found the contents of the victim’s

wallet, including his children’s social security cards, a Visa

debit card, and the victim’s Florida driver’s license. (Id. at

218). See also discussion supra Grounds One, Four, and Five.

Given this evidence, a rational trier of fact could have found

beyond a reasonable doubt that Walker committed the robbery (by

using force to deprive the victim of his wallet and cell phone),

either as an active participant or as a principal. It does not

matter that the state did not prove that Walker, as opposed to one

of the other robbers, was the person who removed the victim’s

wallet from his pocket.

Walker has not demonstrated that the state courts’ rejection

of his insufficient evidence claims violated due process under

Jackson. Nor has he shown that the rejections were based upon an

unreasonable determination of the facts in light of the evidence

presented at trial. Walker is not entitled to federal habeas

corpus relief on Ground Six. 28 U.S.C. § 2254(d).

IV. Conclusion

Based on the foregoing, Walker is not entitled to relief on

the habeas claims presented here. No allegation not specifically

addressed has been found to warrant habeas relief.

Accordingly, it is ordered that:

1. The 28 U.S.C. § 2254 petition filed by Eldridge Walker,

Jr. is DENIED.

2. The Clerk is DIRECTED to enter judgment in favor of

Respondent and against Walker, deny any pending motions

as moot, terminate any deadlines, and close this case.

Certificate of Appealability3

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 or circuit

justice or judge 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, a

petitioner “must demonstrate that reasonable jurists would find

3 Under 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.”

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 are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003).

Upon consideration of the record, the Court declines to issue

a COA. Because Walker is not entitled to a COA, he is not entitled

to appeal in forma pauperis.

DONE AND ORDERED in Fort Myers, Florida on October 26, 2022.

VAY ee DH

JOHN E. STEELE

3q IOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

Copies to: Eldridge Walker, Jr., Counsel of Record