# Walker v. Secretary, DOC (Lee County)

> District Court, M.D. Florida · October 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10111270

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10111270

## How later opinions describe it (automated extraction)

- 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.”
- concluding that a decision not to call a witness based on concern over the witness’s credibility was not deficient

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111270. Public record. Not legal advice.