McGurk v. Secretary, Department of Corrections (Sarasota County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DENNIS PATRICK MCGURK

Petitioner,

v. Case No. 8:19-cv-2854-CEH-MRM

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

O R D E R

This cause comes before the Court on Dennis Patrick McGurk’s amended

petition for the writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 6) McGurk

challenges his three state convictions for lewd or lascivious molestation by a person 18

years of age or older upon a child 12–16 years of age. Upon consideration of the

amended petition (Doc. 6), the response (Doc. 9), and the reply (Doc. 10), and in

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

the petition will be DENIED.

Procedural background

McGurk was charged in a second amended information with three counts of

lewd or lascivious molestation by a person over 18 years of age upon a child1 12 years

1 The victim in this case was M.J.W.

of age or older but less than 16 years of age and one count of attempted sexual battery

on a person 12 or older but less than 18 by a person in familial/custodial authority.

(Doc. 9-2, Ex. 20) A jury convicted McGurk of the three counts of lewd or lascivious

molestation but acquitted him of the attempted sexual battery. (Doc. 9-4, Ex. 27)

McGurk was sentenced to consecutive terms of fifteen years imprisonment on each

count, for a total of forty-five years imprisonment. (Doc. 9-4, Ex. 31) The state

appellate court affirmed McGurk’s convictions and sentences and affirmed the denial

of his amended state Rule 3.850 motion for post-conviction relief. (Doc. 9-4, Exs. 35,

57) The state appellate court also denied each of McGurk’s two motions to correct an

illegal sentence. (Doc. 9-3, Exs. 37–40)

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

affirmed McGurk’s convictions and sentences. (Doc. 9-4, Ex. 35) In another per

curiam decision without a written opinion the state appellate court affirmed the denial

of McGurk’s amended Rule 3.850 motion for post-conviction relief. (Doc. 9-4, Ex.

57) The state appellate court’s affirmances warrant 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 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 now 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. McGurk 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

McGurk 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, [f]irst, 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.

McGurk 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, McGurk 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. McGurk 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) McGurk 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 One2

McGurk alleges that he was interviewed in March 2001—approximately eight

years before the crimes for which he stands convicted in the underlying state criminal

case3—by Detective Chris Iorrio about allegations of sexual misconduct in a separate

unrelated case against a different minor victim, M.F.4, and that the interview was

videotaped. McGurk contends that “the Government destroyed exculpatory evidence

(DVD recording) w[h]ich allowed detectives to give fraudulent testimony w[h]ich

affected the jury.” (Doc. 6 at 5)5 McGurk asserts that during the interview detectives

were advised about M.F’s mother’s connection to “mob boss” Joe Watts, against

whom McGurk testified as a witness in a separate federal case in New York. McGurk

argues that the Government destroyed the DVD recording of the interview before the

2 In his original federal petition McGurk presented four grounds for relief. (Doc. 1) Because

the petition failed to include supporting facts for each ground, the petition was dismissed without

prejudice with permission to file an amended petition. (Doc. 5) McGurk complied and filed an

amended federal petition in which he presents only two grounds for relief. (Doc. 6) In the response to

the amended federal petition the Respondent inadvertently responded to the four grounds in the

original petition. (Doc. 9) Although the Respondent addresses Grounds Three and Four from the

original petition, those grounds are not before this Court in the amended petition and will not be

addressed.

3 The second amended Information charged McGurk with committing the crimes against

victim M.J.W. between March 14, 2009, and March 13, 2013. (Doc. 9-2, Ex. 20)

4 M.F. testified at trial as a Williams Rule witness. (Doc. 9-3, Ex. 25 at 348–97)

5 The page numbers of the exhibits cited in this Order are those assigned by CM/ECF.

trial and that Detective Hallisey gave false testimony at trial about the content of the

interview. McGurk argues that without the DVD he “was denied due process of

cross-exam[in]ing Det[ective] Chris Hallisey.” (Id.)

McGurk avers that he exhausted this ground in the state court in his Rule 3.850

motion. (Doc. 6 at 6) The facts that McGurk alleges in Ground One of the amended

federal petition in support of his due process claim are the same facts that he presented

to the state post-conviction court in his amended Rule 3.850 motion to support a claim

of ineffective assistance of trial counsel. (Doc. 9-4, Ex. 46 at 228–31) In the amended

Rule 3.850 motion McGurk alleged that his trial counsel rendered ineffective

assistance by not questioning Detective Hallisey about why he was testifying about the

2001 interview instead of Detective Iorrio, whom he alleges actually conducted the

interview. (Doc. 9-4, Ex. 46 at 230) McGurk further asserted that counsel rendered

ineffective assistance by (1) not questioning Detective Hallisey about whether he

remembered McGurk telling him that he had been subpoenaed to testify in a federal

trial as a witness against Joe Watts, (2) not following his instructions to question

Detective Hallisey as suggested, and (3) not following his instruction to subpoena

Detective Iorrio to testify at trial. (Id. at 230–31) McGurk did not present a separate

substantive claim alleging a due process violation in the amended Rule 3.850 motion.

To the extent that McGurk presents in the amended federal petition the same ground

of ineffective assistance of counsel based on a due process violation that he avers he

presented and exhausted in the state court, he cannot obtain relief.6

The state post-conviction court denied this ground as follows (Doc. 9-4, Ex. 47

at 240–42) (footnotes omitted) (emphasis in original):

Defendant first claims that trial counsel was ineffective for

failing to challenge former detective Christopher Hallisey’s

account of an interview he conducted with Defendant in

2001 with respect to the allegations involving M.F.

Defendant claims that the charges against him were

fabricated in retaliation for his testifying against organized

crime figure Joe Watts in a federal case. Defendant alleges

that the 2001 interview was actually conducted by a

different detective, whom Defendant advised about this

alleged set-up, including that Defendant had been

subpoenaed to testify against Watts. Defendant argues that

trial counsel’s failure to question Hallisey during a pre-trial

hearing about this issue “allowed the Court to block

[Defendant’s] only defense” and left “no reason for

[Defendant] to testify at trial.” It is unclear whether this

argument is premised on the defense excluding Hallisey’s

testimony at trial or being permitted to present evidence

related to the alleged set-up by organized crime figures, so

both issues will be addressed.

a. Excluding Hallisey’s Testimony

On February 20, 2015, the Court held a hearing on a

number of pre-trial motions. Trial counsel argued that the

case against Defendant involving M.F. should be dismissed

because the recording of the 2001 interview with Defendant

was subsequently destroyed; alternatively, counsel sought

to suppress any evidence of Defendant’s statements during

the interview. Hallisey testified that during the interview,

Defendant initially denied the allegations involving M.F.,

then admitted that he acted inappropriately before stating

6 McGurk attached to his federal petition a copy of the state post-conviction court’s order in

which the court denied the ground as alleging the ineffective assistance of trial counsel, not as a

substantive due process claim. (Doc. 6-1)

that he would not admit guilt without an attorney present.

The State decided not to bring any charges after the

interview, and pursuant to an evidence disposal request

issued by law enforcement and approved by the State

Attorney’s Office, the recording of the interview was

destroyed approximately 12 years after it was created.

To warrant exclusion of Hallisey’s testimony, Defendant

would have to satisfy the test espoused in Arizona v.

Youngblood, 488 U.S. 51 (1988), as to when the failure to

preserve evidence constitutes a denial of due process.

Armstrong v. State, 73 So. 3d 155, 172–73 (Fla. 2011). Based

on Hallisey’s hearing testimony discussed above, the

recording of the interview was only potentially useful at

best, and Defendant would have to establish that law

enforcement destroyed the recording in bad faith to warrant

exclusion of Hallisey’s testimony. See State v. Bennett, 111

So. 3d 943, 945 (Fla. 2d DCA 2013). Based on the decline

to file charges, the twelve years elapsed between the

investigation and the destruction, and the adherence to

standard department policy regarding evidence destruction,

the Court finds no bad faith on the part of law enforcement

or the prosecutor. Further, the Court finds no reasonable

probability that questioning Hallisey about whether

Defendant discussed his federal trial subpoena would have

materially affected this analysis.

Also at the February 20, 2015, hearing, the parties argued a

motion in limine filed by the State seeking to exclude

evidence related to the M.F.’s mother working for one of

Watts’[s] alleged associates or having been responsible for

false accusations against Defendant. Trial counsel

explained that Defendant had testified in a federal case

against Watts, that Watts had some association with M.F.’s

mother’s workplace, and that the defense should be allowed

to present this evidence to argue that the charges against

Defendant were fabricated. The Court ultimately excluded

these matters from trial, finding their probative value was

substantially outweighed by the danger of unfair prejudice

and confusion of the issues. Because the trial judge, being

apprised of the factual backdrop of the proposed defense

involving a set-up by organized crime figures, excluded

such evidence on the grounds of a § 90.403, Fla. Stat.,

balancing test, the Court finds no reasonable probability

that questioning Hallisey about whether Defendant

mentioned his federal subpoena would have materially

affected the outcome of the trial.

To the extent that McGurk presents a federal due process claim based on the

State’s destruction of allegedly exculpatory evidence, he cannot obtain relief. “In order

to show that the loss of evidence by the government constitutes a denial of due process,

the defendant must show that the evidence was likely to significantly contribute to his

defense.” United States v. Brown, 9 F.3d 907, 910 (11th Cir. 1993) (citing California v.

Trombetta, 467 U.S. 479, 488 (1984)). Arizona v. Youngblood, 488 U.S. 51, 58 (1988),

holds that “unless a criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute a denial of due

process of law.” United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006),

explains:

“In order to show that the loss of evidence by the

government constitutes a denial of due process, the

defendant must show that the evidence was likely to

significantly contribute to his defense. California v.

Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81

L.Ed.2d 413 (1984).” United States v. Brown, 9 F.3d 907, 910

(11th Cir. 1993) . . . . “[F]ailure to preserve this ‘potentially

useful evidence’ does not violate the due process clause

‘unless a criminal defendant can show bad faith on the part

of the police’” Illinois v. Fisher, 540 U.S. 544, 547–48, 124

S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004), quoting Arizona

v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102

L.Ed.2d 281 (1988).

See also Davis v. Sellers, 940 F.3d 1175, 1187 (11th Cir. 2019) (“Additionally, ‘the failure

to preserve . . . ‘potentially useful evidence’ does not violate due process ‘unless a

criminal defendant can show bad faith on the part of the police.’”). A determination

of bad faith by the police “must necessarily turn on the police’s knowledge of the

exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood,

488 U.S. at n.*. No due process violation results if the evidence is only “potentially

useful,” and the actions of the police could “at worst be described as negligent.” Id.

As the state post-conviction court noted, the evidence was developed in a

separate unrelated twelve-year-old case in which no charges were filed against

McGurk. During a pretrial hearing on McGurk’s motion in limine to exclude evidence

related to the destroyed recordings, Detective Hallisey testified to his recollection of

the recorded interviews. (Doc. 9-2, Ex. 13 at 204–21) McGurk cites no specific

portion of Detective Hallisey’s testimony that he claims was “false” nor does he

present evidence to support his contention that the recordings included exculpatory

evidence. Both Art Jackson, the felony division chief for the State Attorney’s Office,

and Lisa Lanham, the manager of the Property and Evidence section at the Sarasota

County Sheriff’s Office, testified at the pretrial hearing about the procedure utilized in

disposing of the recordings. (Id. at 247–68) McGurk neither cites a portion of their

testimony nor presents any evidence demonstrating that the destruction of the

evidence resulted from anything other than routine procedure. Because McGurk fails

to show that the evidence would have been exculpatory and that the destruction of the

evidence was motivated by bad faith, he cannot establish a federal due process

violation.7 Youngblood, 488 at 58; Revolorio-Ramo, 468 F.3d at 774.

As to a claim of ineffective assistance of counsel, McGurk presents no evidence

to demonstrate either that his trial counsel performed deficiently or that the outcome

of his trial would have been different if counsel had either questioned Detective

Hallisey as he suggested or subpoenaed Detective Iorrio to testify. The state

post-conviction court neither unreasonably applied controlling Supreme Court

precedent nor unreasonably determined the facts by rejecting this ground. See

28 U.S.C. § 2254(d)(1), (d)(2).

Ground Two

McGurk contends that his trial counsel rendered ineffective assistance by (1) not

“turn[ing] in evidence w[h]ich he had in his possession (such as the subpoena for Mr.

McGurk to appear at the trial of U.S. v. Joe Watts, July 5, 2001, in Brooklyn fed[eral]

court,[)]” (2) not interviewing “his family friend Jerry Fragomeni, whom the McGurks

alleged orch[e]started the set-up by Beverly Fleck and her daughter [M.F.],”8 (3) failing

7 In his federal petition McGurk alleges that without the recording of the 2001 interview, he

was “denied due process of cross-examining” Detective Hallisey. (Doc. 6 at 5) McGurk did not present

this due process claim to the state post-conviction court in his Rule 3.850 motion. To the extent that

this allegation can be construed as a separate claim for relief, the claim is unexhausted and

procedurally defaulted. McGurk cannot obtain relief because he satisfies neither the cause and

prejudice exception nor the fundamental miscarriage of justice exception to overcome the default. See

Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

8 Before the trial the State moved to exclude, inter alia, “any and all references [M.F.’s mother]

Beverly Fleck’s former employer Dominick Fragomeni as ‘having been associated with an organized

crime figure’ and/or ‘having been at least partly responsible for the Defendant being falsely accused

of a sexual offense in 2001.’” (Doc. 9-2, Ex. 8 at 90) During the pretrial hearing on the motion,

McGurk’s counsel argued that M.F.’s mother “had a motive to try and discredit” McGurk based on

to interview Patrick O’Hara, and (4) abandoning McGurk’s only defense. (Doc. 6 at

7–8) McGurk alleges that O’Hara and his brother were approached by “mob

associates” in an “attempt to intimidate federal witnesses” and that the intimidation

attempt was interrupted by F.B.I. agent Bill Heckel. McGurk argues that “Pat

O’Hara’s description of Joey’s crew would have matched [his wife] Rosa McGurk’s

description of the three wise guys who came to the McGurks’ home to intimidate

[petitioner]” and that “Mrs. McGurk would have testified that Joe[] [Watts]’s crew

was led by John Gotti’s body guard, Tony Milano, who was the Uncle of Rosa Milano

McGurk.” (Id. at 8) McGurk claims that, without these witnesses, his trial counsel

“failed to properly apprise Judge Krug of the factual backdrop of the proposed

defense,” which resulted in the judge granting the State’s motion in limine and in trial

counsel abandoning McGurk’s only defense. (Id.)

The state post-conviction court denied this ground as follows (Doc. 9-4, Ex. 47

at 242–43):

Defendant next claims that trial counsel was ineffective for

failing to present further evidence in opposition to the

State’s motion in limine discussed above. In brief summary,

Defendant alleges that M.F. was at his home when a U.S.

Attorney and F.B.I agents arrived at his home for a meeting

that resulted in Defendant being subpoenaed to testify in the

federal case against Watts. This information was relayed by

M.F. to her mother, then to her mother’s boss, and finally

to Watts’[s] criminal organization. After this, Defendant’s

wife had several encounters with men attempting to

her affair with Fragomeni’s son. (Doc. 9-2, Ex. 13 at 103–04) The judge granted the State’s motion in

limine as to Fragomeni’s alleged association with organized crime, finding that “the probative value

of this evidence is substantially outweighed by the danger of unfair prejudice and confusion of the

issues.” (Doc. 9-2, Ex. 18 at 438)

intimidate her and Defendant, and the men told her that her

boss had informed them about Defendant testifying in the

federal trial. Defendant further alleges that the same men

engaged in similar intimidation tactics against another man

who would have testified, and his encounter was witnessed

by the F.B.I.

While Defendant alleges that his wife would have testified

to unspecified “sensitive information” that she had, he does

not allege that she had personal knowledge or would

otherwise be competent to testify to all of the matters

alleged in this claim, particularly the encounter with federal

law enforcement or the chain of conversations relaying this

to Watts’[s] criminal organization. Moreover, while the

allegations in this claim offer more particulars about

Defendant’s experience with Watts and other alleged

organized crime figures than was offered by counsel at the

hearing, none of these details makes the matter more

probative with respect to the particular allegations of child

sex abuse against M.F., nor do they substantially mitigate

the danger of unfair prejudice and confusion of the issues.

As discussed above, the Court excluded evidence related to

this organized crime theory of defense on the basis that its

probative value was substantially outweighed by the danger

of unfair prejudice and confusion of the issues. Even if true

and proven, the additional facts alleged in this claim do not

substantially affect the relevant considerations made by the

trial judge when granting the motion in limine. The Court

therefore finds no reasonable probability that the outcome

of the trial would have been different had trial counsel

presented and argued these matters during the pre-trial

hearing.

First, McGurk fails to demonstrate that counsel performed deficiently by not

“turning in” the subpoena related to McGurk’s appearance at a separate federal trial

in New York against Joe Watts. The state court determined that evidence related to

the organized crime theory of defense was unduly prejudicial. Even if counsel had

“turned in” this evidence as McGurk suggests, he establishes no reasonable probability

that introduction of the subpoena would have altered the outcome of the pre-trial

hearing or resulted in the state court allowing him to proceed at trial with the organized

crime theory.

Second, McGurk’s unsupported contention that counsel should have

interviewed both Fragomeni and O’Hara, without more, is insufficient to warrant

relief. See, e.g., 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); Tejada v. Dugger, 941 F.2d 1551,

1559 (11th Cir. 1991) (recognizing that vague, conclusory, or unsupported claims

cannot support an ineffective assistance of counsel claim). “[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

McGurk fails to present an affidavit or any other statement from either Fragomeni10

or O’Hara demonstrating that either witness would have provided the information

McGurk suggests he would have if counsel had interviewed them. Consequently,

McGurk’s contention that either witness could have provided evidence to support his

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

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

10 The record shows that during the pretrial hearing on the State’s motion in limine McGurk’s

counsel acknowledged that at the time of the hearing, Fragomeni was deceased and unable to testify.

(Doc. 9-2, Ex. 13 at 297)

defense is speculative. McGurk fails to show a reasonable probability exists that, if

counsel had interviewed these witnesses and presented their testimony at the pretrial

hearing, the judge would have denied the State’s motion in limine and allowed McGurk

to proceed with the organized crime theory of defense. Consequently, because he fails

to establish prejudice, McGurk cannot show that he was denied a theory of defense as

a result of ineffective assistance by his counsel. The state courts’ rejection of this

ground is neither contrary to, or an unreasonable application of, Strickland nor was the

ruling based on an unreasonable determination of the facts in light of the evidence

presented in the state court. See 28 U.S.C. § 2254(d)(1), (d)(2). Ground Two warrants

no relief.

Accordingly, McGurk’s amended petition for the writ of habeas corpus (Doc.

6) is DENIED. The Clerk is directed to enter a judgment against McGurk and CLOSE

this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

IT IS FURTHER ORDERED that McGurk 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, McGurk

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, McGurk 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. McGurk must obtain permission from the circuit court to appeal

in forma pauperis.

DONE and ORDERED in Tampa, Florida this 22nd day of December 2022.

C} Qemre Chiards Ho TDs pl vel □□

Charlene Edwards Honeywell

United States District Judge

20