Callaway v. Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANTONIO DANTE CALLAWAY,

Petitioner,

v. Case No. 8:20-cv-561-MSS-CPT

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

O R D E R

Callaway petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges

his state court convictions for first-degree murder and attempted robbery. (Doc. 1 at 1) After

reviewing the petition (Doc. 1), the response (Doc. 10), and the appendix containing the

relevant state court record (Doc. 11), the Court DENIES the petition.

PROCEDURAL HISTORY

A jury found Callaway guilty of first-degree murder and attempted robbery. (Doc.

11-2 at 126–27) The trial court sentenced Callaway to life in prison for the murder conviction

and a concurrent twenty-five years for the attempted robbery conviction. (Doc. 11-2 at

140–47) Callaway appealed, and the state appellate court affirmed. (Doc. 11-4 at 74)

Callaway filed a petition alleging ineffective assistance of appellate counsel (Doc.

11-4 at 78–86), and the state appellate court denied relief. (Doc. 11-4 at 91) He moved for

post-conviction relief (Doc. 11-4 at 105–75), the post-conviction court denied relief without

an evidentiary hearing (Doc. 11-4 at 176–79), and the state appellate court affirmed. (Doc.

11-5 at 75) Callaway’s federal petition follows.

FACTS

On November 11, 2012, Chamira Brown drove Callaway, Ethan Lucas, and Jalesa

Dixon to a flea market. (Doc. 11-3 at 381–83) While riding in the car, Callaway asked Lucas

if he could borrow Lucas’s mobile telephone but Lucas’s telephone did not work. (Doc. 11-3

at 383–84) Dixon offered Callaway her telephone, but Callaway declined because he was

“trying to come across a lick.” (Doc. 11-3 at 384) Dixon understood a “lick” to mean a scam

or a robbery. (Doc. 11-3 at 384, 494, 512) Callaway asked Dixon if she knew Andrea Barnett

and described Barnett as an overweight female with dreadlocks who wore a silver necklace

with three stars and went to their high school. (Doc. 11-3 at 387–88) Dixon had seen a girl

who wore that necklace but did not know her name. (Doc. 11-3 at 388) Dixon thought that

Callaway and Lucas intended to rob Barnett. (Doc. 11-3 at 389)

During the ride to the flea market, Brown asked Callaway and Lucas for money for

gasoline. (Doc. 11-3 at 389–90, 404–05) Callaway and Lucas pawned jewelry at the flea

market and gave Brown five or ten dollars. (Doc. 11-3 at 405–06) Callaway and Lucas told

Brown that they would give her more money the next day because they “got a lick set up.”

(Doc. 11-3 at 406–08)

The next day, on November 12, 2012, a friend picked up Barnett from her home to

drive her to school. (Doc. 11-3 at 199–200, 239–40) Barnett asked her friend to drop her off a

short distance before they arrived at school. (Doc. 11-3 at 241–42) Barnett exited the car,

crossed the street, and walked towards a trail. (Doc. 11-3 at 242)

Terrell Eaton, who knew Callaway and his family for twenty years, rode his bicycle to

work that morning, saw a male standing on the trail, saw a young, tall, overweight female

walking towards the trail, and saw Callaway at a bridge right next to the trail. (Doc. 11-3 at

69–76, 92) About fifteen minutes after seeing Callaway, Eaton heard “crackle pop” sounds.

(Doc. 11-3 at 77–78, 86, 89–91) A detective showed Eaton a photograph of Barnett, and Eaton

identified Barnett as the female he saw walking towards the trail. (Doc. 11-3 at 111)

A neighbor, who lived close to the trail, was standing on her porch, heard gunshots,

and saw two males running away from the bridge. (Doc. 11-3 at 172–76) A second neighbor,

who lived close to the trail, heard the gunshots, and saw Callaway, a male named Chris

Forrester, and a third male she could not identify outside her bedroom window ten minutes

later. (Doc. 11-3 at 121–26, 563) The second neighbor knew Callaway by his nickname,

“Dunt” and recognized Callaway because her cousin was Callaway’s friend. (Doc. 11-3 at

124, 126) Sherrick Forrester, Chris Forrester’s older brother, lived close to the trail, heard the

gunshots while he was lifting weights with Chris, and saw Callaway and Lucas fifteen minutes

later. (Doc. 11-3 at 160–61) Because the Forrester brothers heard the gunshots and saw

helicopters flying in the air, they told Callaway and Lucas to leave. (Doc. 11-3 at 162)

A school resource officer found Barnett unresponsive with gunshot wounds in her

stomach. (Doc. 11-3 at 215, 221–22, 248–51) A crime scene technician found fifty-five grams

of marijuana in Barnett’s purse. (Doc. 11-3 at 17, 20, 373) Barnett was wearing the necklace

with the star pendant. (Doc. 11-3 at 48, 202) A medical examiner conducted an autopsy of

Barnett and identified three fatal gunshot wounds and a fourth non-fatal gunshot wound.

(Doc. 11-3 at 335–37) A firearm analyst examined bullets collected from the autopsy and

cartridges collected from the crime scene and opined that one 0.32-caliber firearm fired two

bullets and a second 0.38-caliber firearm fired four bullets. (Doc. 11-3 at 282–86)

Records from a mobile telephone service provider showed text messages from

someone named “Dunt,” Callaway’s nickname, to Barnett’s mobile telephone on November

11, 2012, the day before the shooting. (Doc. 11-3 at 483, 489) A narcotics police officer opined

that the sender and the recipient of the text messages used code words to arrange a sale of

marijuana. (Doc. 11-3 at 497–99) Cell site data showed Lucas’s mobile telephone near the

crime scene at the time of the shooting. (Doc. 11-3 at 546, 549–52, 569–71)

YSTR DNA from a swab of a baseball hat collected from the crime scene contained a

mixture of at least two individuals that could match Ethan Lucas or his male relative. (Doc.

11-3 at 362) One in every 1,156 males in the general population could have contributed to the

mixture. (Doc. 11-3 at 362) YSTR DNA from a second swab of the hat contained a mixture

of at least three individuals and a major profile that matched Lucas or his male relative. (Doc.

11-3 at 362) One in every 6,249 males in the general population could have contributed to the

mixture. (Doc. 11-3 at 363) A DNA analyst excluded Callaway’s DNA from the first swab

and could neither include nor exclude his DNA from the second swab. (Doc. 11-3 at 364–65)

On November 12, 2012, after waiving his constitutional rights, Callaway told a

detective that he spent the night at Lucas’s home the evening before and returned to his own

home that morning at 5:30 A.M. (Doc. 11-3 at 505–07) Callaway claimed that he intended to

go to school but did not attend because his stomach was upset and said that he returned to

Lucas’s home at 7:10 A.M. (Doc. 11-3 at 506–09) Callaway claimed that he and Lucas

remained at Lucas’s home for the rest of the day. (Doc. 11-3 at 509–10) Callaway admitted

that he knew Barnett and often spent time with her but denied recently communicating with

her. (Doc. 11-3 at 510)

Lucas’s mother testified that Callaway spent the night at her home on November 11,

2012. (Doc. 11-3 at 142–43, 446) The following morning, Lucas’s mother dropped Callaway

off near where he lived so that he could attend school. (Doc. 11-3 at 143) She confirmed that

Lucas and Callaway were good friends. (Doc. 11-3 at 141–42)

During the defense case-in-chief, Callaway’s girlfriend testified that she spent the night

with Callaway at Lucas’s home on November 11, 2012. (Doc. 11-3 at 592–93) His girlfriend

denied that Callaway and Lucas were close friends who spent a lot of time together. (Doc.

11-3 at 592–93) A detective testified that the neighborhood where Callaway lived was three

or four hundred feet from the crime scene. (Doc. 11-3 at 599) The detective searched a garage

converted into an apartment where Callaway stayed and found no evidence related to the

murder. (Doc. 11-3 at 599–600)

STANDARDS OF REVIEW

AEDPA

Because Callaway filed his federal petition after the enactment of the Antiterrorism

and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S.

320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

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.

A decision is “contrary to” clearly established federal law “if the state court arrives

at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law

or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A

decision involves an unreasonable application of clearly established federal law “if the state

court identifies the correct governing legal principle from [the U.S. Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion

by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529

U.S. at 412.

“[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.” Bell v. Cone, 535 U.S. 685, 694

(2002). A federal 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 of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011).

Ineffective Assistance of Counsel

Callaway asserts ineffective assistance of counsel — a difficult claim to sustain.

Strickland v. Washington, 466 U.S. 668, 687 (1984), explains:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court . . . to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[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.” Strickland, 466 U.S. at 690.

“An 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.”

Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a

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

proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability

is a “probability sufficient to undermine confidence in the outcome.” Strickland, 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.” Strickland, 466 U.S. at

690–91. A defendant cannot meet his burden by showing that the avenue chosen by counsel

was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).

Because the standards under Strickland and AEDPA are both highly deferential,

“when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105. “Given the

double deference due, it is 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.’” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019)

(citation omitted).

In a decision without a written opinion, the state appellate court affirmed the order

denying Callaway post-conviction relief. (Doc. 11-5 at 75) A federal court “‘look[s] through’

the unexplained decision to the last related state-court decision that does provide a relevant

rationale [and] presume[s] that the unexplained decision adopted the same reasoning.”

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). Because the post-conviction court provided

reasons for denying Callaway’s claims in a written order (Doc. 11-4 at 176–79), this Court

evaluates those reasons under Section 2254(d).

Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before

a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must

(1) alert the state court to the federal nature of his claim and (2) give the state court one full

opportunity to resolve the federal claim by invoking one complete round of the state’s

established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard

v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review

and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a

petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);

Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on a state

procedural ground, the federal court denies the claim as procedurally barred. Snowden v.

Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722,

735 n.1 (1991)).

Also, “a state court’s rejection of a federal constitutional claim on procedural

grounds will [ ] preclude federal review if the state procedural ruling rests upon [an]

‘independent and adequate’ state ground.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.

2001) (citing Coleman, 501 U.S. at 729–30). A state court’s procedural ruling rests on an

independent and adequate state ground if (1) the last state court rendering a judgment in the

case clearly and expressly relies on a state procedural rule to resolve the federal claim

without reaching the merits of the claim, (2) the state court’s decision rests solidly on state

law grounds and is not intertwined with an interpretation of federal law, and (3) the state

procedural rule is not applied in an “arbitrary or unprecedented fashion,” or in a “manifestly

unfair” manner. Judd, 250 F.3d at 1313 (citing Card v. Dugger, 911 F.2d 1494, 1516–17 (11th

Cir. 1990)).

To excuse a procedural bar on federal habeas, a petitioner must demonstrate either

(1) cause for the default and actual prejudice from the alleged violation of federal law or (2)

a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547 U.S.

518, 536–37 (2006).

ANALYSIS

Ground One

Callaway asserts that trial counsel was ineffective for not moving to dismiss the

indictment. (Doc. 1 at 15) He contends that the indictment, which charged first-degree

murder, failed to allege premeditation. (Doc. 1 at 15) The post-conviction court denied the

claim as follows (Doc. 11-4 at 177) (state court record citations omitted):

[Defendant] alleges ineffective assistance of counsel for failing

“to properly object or move to dismiss the fatally defective

indictment filed by the State in the present case.” Specifically,

the Defendant alleges trial counsel should have challenged the

indictment as it failed to allege the murder was perpetrated with

premeditation.

. . .

The indictment charged the Defendant with having committed

first-degree felony murder. “It is well established that the

commission of a homicide in conjunction with the intent to

commit a felony supplants the premeditation or malice

aforethought classically required in a first-degree murder

prosecution.” De Loach v. State, 388 So. 2d 31 (Fla. 3d DCA

1980). Trial counsel would have no grounds to have objected

for the lack of alleging premeditation.

Whether the indictment adequately alleged first-degree murder is an issue of state

law, and a state court’s determination of state law receives deference in federal court.

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s

interpretation of state law . . . binds a federal court sitting in habeas corpus.”).

The indictment alleged that Callaway committed first-degree felony murder as

follows (Doc. 11-2 at 30) (bolding added):

The Grand Jurors of the State of Florida, empaneled and sworn

to inquire and true presentment make in and for the County of

Polk and State of Florida, upon their oath do present that

ANTONIO DONTE CALLAWAY on the 12th day of

November, Two Thousand and Twelve, in the County and

State aforesaid, while engaged in the perpetration of or the

attempt to perpetrate a robbery, unlawfully did kill a human

being, to wit: Alicia D. Barnett, by shooting the said Alicia D.

Barnett with a firearm, and during the commission of said

offense the said ANTONIO DONTE CALLAWAY discharged

a firearm and as a result of said discharge, death or great bodily

harm was inflicted upon Alicia D. Barnett in violation of

Sections 782.04, 777.011, and 775.087, Florida Statutes,

contrary to the form of the Statutes, in such cases made and

provided and against the peace and dignity of the State of

Florida.

The elements of first-degree felony murder are: (1) the victim is dead, (2) the

defendant caused the death of the victim while engaged in the commission of a felony or

the attempt to commit a felony, and (3) the defendant was the person who actually killed

the victim. Fla. Std. (Crim.) Jury Instr. 7.3; § 782.04(1)(a)(2), Fla. Stat. (“The unlawful

killing of a human being . . . [w]hen committed by a person engaged in the perpetration of,

or in the attempt to perpetrate, any [enumerated felony] is murder in the first degree and

constitutes a capital felony, punishable as provided in section 775.082.”).

“In order to prove first-degree felony murder the state need not prove premeditation

or a specific intent to kill but must prove that the accused entertained the mental element

required to convict on the underlying felony.” Gurganus v. State, 451 So. 2d 817, 822 (Fla.

1984). “[P]remeditation is ‘presumed by law from the accused’s perpetration of a violent

felony. In such a case, the offense remains premeditated murder; only an element of it is

deemed proven by evidence of the accused’s felonious conduct.’” Vasil v. State, 374 So. 2d

465, 467 (Fla. 1979) (citation omitted).

Because the indictment alleged each element of first-degree felony murder and

tracked the language of the statute for the crime, a motion to dismiss would not have

succeeded, and the post-conviction court did not unreasonably deny the claim. Meders v.

Warden, Ga. Diag. Prison, 911 F.3d 1335, 1354 (11th Cir. 2019) (“It is not ineffective

assistance of counsel to fail to make an objection that is not due to be sustained.”);

Lightbourne v. State, 438 So. 2d 380, 384 (Fla. 1983) (“The instant indictment tracked the

statute and adequately placed the defendant on notice that he was charged with first-degree

murder resulting from any one or a combination of the three specific methods in the

indictment.”).

Ground One is DENIED.

Ground Two

Callaway asserts that the prosecutor violated his federal rights by failing to allege in

the indictment that Callaway committed the murder with premeditation. (Doc. 1 at 16) He

contends that the indictment failed to allege a crime. (Doc. 1 at 16)

The Respondent asserts that the claim is procedurally defaulted because Callaway

failed to present the claim before trial and on direct appeal. (Doc. 10 at 14–17) See Fla. R.

Crim. P. 3.850 (“This rule does not authorize relief based on grounds that could have or

should have been raised at trial and, if properly preserved, on direct appeal of the judgment

and sentence.”). Callaway presented the claim in his motion for post-conviction relief (Doc.

11-4 at 113–15), and the post-conviction court denied the claim on the merits. (Doc. 11-4 at

177) Also, Callaway presented the claim in his brief on post-conviction appeal (Doc. 11-5

at 60–61), and the state appellate court summarily affirmed without a written opinion. (Doc.

11-5 at 75) On post-conviction appeal, the State of Florida did not alert the state appellate

court to the procedural bar. (Doc. 11-5 at 72) This Court presumes that the state appellate

court reviewed the merits of the claim. Wilson, 138 S. Ct. at 1192. Consequently, Callaway

is entitled to a review of the merits of his claim on federal habeas. Ylst v. Nunnemaker, 501

U.S. 797, 801 (1991) (“If the last state court to be presented with a particular federal claim

reaches the merits, it removes any bar to federal-court review that might otherwise have

been available.”).

The post-conviction court denied the claim as follows (Doc. 11-4 at 177):

Defendant’s [ ] claim alleges that the trial court lacked

jurisdiction to enter the judgment or impose a sentence, as a

direct result of the allegedly defective indictment. This claim is

based upon the same flawed reasoning as [the claim] above, and

for the reasons stated therein, [this claim] is denied.

The post-conviction court refers to the ruling on the claim that Callaway presents in Ground

One of his federal petition.

“‘The sufficiency of a state indictment is an issue on federal habeas corpus only if the

indictment was so deficient that the convicting court was deprived of jurisdiction.’” Sneed v.

Fla. Dep’t Corrs., 496 F. App’x 20, 23 (11th Cir. 2012) (quoting Heath v. Jones, 863 F.2d 815,

821 (11th Cir. 1989)). The indictment in Callaway’s case alleged each element of first-degree

felony murder and tracked the language in the statute. (Doc. 11-2 at 30) Fla. Std. (Crim.)

Jury Instr. 7.3; § 782.04(1)(a)(2), Fla. Stat. The indictment further identified the county

where the defendant committed the crime, the date when the defendant committed the

crime, the underlying felony that the defendant engaged in when he killed the victim, the

name of the victim, and the type of weapon that the defendant used to kill the victim. (Doc.

11-2 at 30) These allegations supported the trial court’s jurisdiction over the felony

prosecution in Polk County, Florida. § 26.012(2)(d), Fla. Stat. (“Circuit courts shall have

exclusive original jurisdiction: Of all felonies and of all misdemeanors arising out of the same

circumstances as a felony which is also charged . . . .”).

Because the indictment was not “so deficient that the convicting court was deprived

of jurisdiction,” the post-conviction court did not unreasonably deny the claim. Heath, 863

F.2d at 821. Hamling v. United States, 418 U.S. 87, 117 (1974) (“It is generally sufficient that

an indictment set forth the offense in the words of the statute itself, as long as ‘those words

of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth

all the elements necessary to constitute the offence intended to be punished.’”) (citation

omitted). DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) (“Examination of

the Information upon which petitioners were charged and prosecuted reveals that it

adequately incorporates the elements of grand larceny by fraudulent misrepresentation in

the language of each count.”).

Ground Two is DENIED.

Ground Three

Callaway asserts that the circumstantial evidence presented by the prosecutor at trial

failed to prove his guilt (“Trial Claim”), and trial counsel was ineffective for not moving for

a judgment of acquittal. (“Ineffective Assistance of Counsel Claim”) (Doc. 1 at 17)

Trial Claim

Callaway asserts that the circumstantial evidence presented by the prosecutor at trial

failed to prove his guilt. (Doc. 1 at 17) The Respondent asserts that the claim is procedurally

defaulted because the post-conviction court denied the claim on an independent and

adequate state ground. (Doc. 10 at 20–21) The post-conviction court denied the claim as

follows (Doc. 11-4 at 178) (state court record citations omitted):

[Defendant] alleges the “conviction [was] obtained in violation

[ ] of the Defendant’s constitutional rights to proper due process

where it is readily apparent that the jury’s verdict is contrary to

the law and weight of the evidence in this case.” This claim is

merely a challenge to the sufficiency of the evidence presented

at trial. Fla. R. Crim. P. 3.850(c) states: “[t]his rule does not

authorize relief based on grounds that could have or should

have been raised at trial and, if properly preserved, on direct

appeal of the judgment and sentence.” This claim is not

cognizable pursuant to rule 3.850. See also Childers v. State, 782

So. 2d 946 (Fla. 4th DCA 2001); Rasheed v. State, 449 So. 2d 981

(Fla. 1st DCA 1984).

Because “the procedural requirements of Florida’s Rule 3.850 constitute independent

and adequate state grounds,” the claim is procedurally defaulted on federal habeas. LeCroy

v. Sec’y, Fla. Dep’t Corrs., 421 F.3d 1237, 1260 n.25 (11th Cir. 2005) (citing Whiddon v. Dugger,

894 F.2d 1266, 1267–68 (11th Cir. 1990)). Also, even though trial counsel moved for a

judgment of acquittal at trial and argued that the circumstantial evidence did not prove his

guilt (Doc. 11-3 at 582–83, 607), Callaway did not assert on direct appeal that the lack of

competent, substantial evidence proving his guilt at trial violated his federal right to due

process. (Doc. 11-4 at 33–46) If Callaway returned to state court to present the claim, the

post-conviction court would deny the claim as procedurally barred. Fla. R. Crim. P.

3.850(c). Consequently, the claim is procedurally defaulted on federal habeas. Snowden, 135

F.3d at 736. Because Callaway fails to demonstrate that either cause and prejudice or a

miscarriage of justice excuses the procedural default, the claim is procedurally barred from

federal review. Maples, 565 U.S. at 280; House, 547 U.S. at 536–37.

Ineffective Assistance of Counsel Claim

Callaway asserts that trial counsel was ineffective for not moving for a judgment of

acquittal. (Doc. 1 at 17) He contends that the only evidence that proved his guilt was his

statement that he intended to commit a “lick.” (Doc. 1 at 17) The post-conviction court

denied the claim as follows (Doc. 11-4 at 178–79) (state court record citations omitted):

[Defendant] alleges trial counsel was ineffective for failing to

file an adequate motion for judgment of acquittal. The

Defendant avers trial counsel failed to move for a judgment of

acquittal “based on the insufficient proof of the elements with

the underlying felony for count one and two.” Defendant

further asserts there was no evidence that he attempted to rob

the victim. Defendant’s claim lacks specifics as to what trial

counsel should have argued. However, trial counsel did in fact

make the very arguments the Defendant now advances trial

counsel failed to make. Trial counsel stated the evidence was

insufficient to show the Defendant was committing a robbery

and that the evidence only established he was near the crime

scene. The State summarized facts presented at trial which

established [that] the evidence show[ed that] the Defendant

committed the crimes alleged. The Court then ruled providing

the evidence it found establish[ing] each element. The

Defendant does not allege any argument trial counsel failed to

make which would have changed this ruling.

At the end of the prosecution’s case-in-chief, trial counsel moved for judgment of

acquittal as follows (Doc. 11-3 at 582–83):

[Trial counsel:] Yes, Judge. Judge, as to murder in the first

degree, the defense would ask the court to

enter a judgment of acquittal as to the

State’s . . . charge that Alicia Barnett was

killed as a consequence of [ ] trying — or

while Antonio Donte Callaway was

attempting to commit a robbery. [W]e

would assert to the court that the evidence

as to Mr. Callaway in terms of actually

committing a robbery is not enough and

not sufficient for this court to send it to the

jury. The testimony and evidence [are]

that he was near the bridge — being near

the bridge. It is not suspicious, as Mr.

Callaway lived in Carefree Cove, and that

is a place where it is expected that he

would be. The State’s alternative [theory]

was that Ms. Barnett was killed by a

person other than — I’m sorry, killed by a

person other than Antonio Callaway and

that he [was] a principal in the

commission of the attempted robbery.

[W]e would also assert that the connection

as to another person killing Ms. Barnett

and the — and the act of Mr. Callaway

being a principal is conjecture and that

sufficient proof has not been elicited.

The trial court denied the motion after determining that the evidence sufficiently

proved Callaway’s guilt (Doc. 11-3 at 586–89):

[Trial court:] All right. The court does find that the State

has at this time, at the very least, laid out

a prima facie case as to both counts, felony

murder in the first degree, and also

attempted armed robbery. The State has,

in the light most favorable to the State,

presented at least a prima facie case as to

the elements of [the] crimes in order for

. . . this matter to go on to the jury.

Specifically, as to the murder in the first

degree as to whether Mr. Callaway was

the person that actually killed Alicia

Barnett, I have heard evidence that he had

a motivation to do it just [ ] days before.

We have heard witnesses under oath that

testified that he talked about doing a lick,

the lick being a robbery, saying that the

person — the victim of the lick was a

heavy-set girl who had dreads. He told the

people allegedly that they knew her as

Alicia. There has also been testimony that

the morning of the robbery he was seen

within five or ten feet of where her body

ultimately lay, just a couple of minutes

before gunshots rang out. There was also

testimony that he was seen running

shortly after the gunshots through the

neighborhood. Ms. Haynes testified to

that, that she saw him running and

essentially coming to a stop just outside

her window. There has been testimony

that he denied being at the scene, but

clearly the cell phone evidence puts him

close to the scene.

Furthermore, regarding the principal

theory, that the State is also pursuing, I

have heard testimony that Ethan Lucas

and Mr. Callaway in the backseat of the

car, while riding around with some of the

witnesses [who] testified, both talked

about doing a lick on Alicia. They both

had motive to rob her.

Furthermore, there was testimony that

there [was] a hat at the scene that was

recovered, a New Jersey Devils hat, that

puts Mr. Lucas potentially at the scene.

His DNA is the DNA from the hat, [it] is

inclusive of Mr. Lucas. There was also

testimony that there was another male

along with — from Mr. Eaton. Mr. Eaton

testified there was another male at the

scene or close to the scene, [whom] he was

not able to make out, but only that a male

and the defendant and Ms. Barnett were

present at the scene. The New Jersey

Devils hat has DNA inclusive of Ethan

Lucas. And both Mr. Lucas and the

defendant had motivation in this matter.

The State has shown motive, as this was a

robbery, and they had talked about

committing a robbery the day before.

Once again, shortly before — just a couple

minutes before shots rang out, an

unidentified male, the defendant, and the

victim were seen within close proximity,

specifically the defendant was close to

both the unidentified male and also the

victim, and ultimately he was seen

running from the scene. So the State has,

in the light most favorable to the State,

laid a prima facie case under both theories

as to circumstantially [ ] killing the victim,

and also under the principal theory, in

particular, as far as furthering the

commission of a crime, there is a cell

phone in evidence, that Mr. Callaway,

going under the nickname of Dunt, lured

the victim to the scene, ultimately to rob

her, and ultimately where she died.

So, [viewing the evidence in] the light

most favorable to the State, the court is

going to deny the defense’s motion for

judgment of acquittal at this time as to all

counts, and the matter will proceed to the

jury.

At the end of the defense’s case-in-chief, trial counsel renewed the motion for

judgment of acquittal (Doc. 11-3 at 607), and the trial court denied the renewed motion as

follows (Doc. 11-3 at 608–10):

[Trial court:] All right. The court maintains based on its

earlier reasons that it put on the record

that the State has shown a prima facie case

in the light most favorable to the State as

far as first-degree felony murder is

concerned, and also as to attempted

robbery. They have shown in [the] light

most favorable to the State that Alicia

Barnett is deceased. They have also [ ]

shown that this was done during the

attempted commission of a robbery. There

has been testimony that both Mr. Lucas

and Mr. Callaway stated that they were

going to do a lick on Alicia the following

day, that would have been Sunday, they

were going to do it Monday, that it was

Alicia Barnett. And also there has been

testimony — there has been at least

circumstantial evidence that the defendant

is the person that actually committed the

homicide. The circumstantial evidence

being that he was seen within five or ten

feet of where the body ultimately laid. Just

a couple minutes before gunshot rang out,

he was seen running very shortly

thereafter. He was also on a cell phone —

evidence that shows that he — in the light

most favorable to the State — lured Ms.

Barnett to the scene in order to do a drug

transaction, presumably to rob her of her

drugs. The State has shown that there is

circumstantial evidence that he

committed the homicide.

Also, the alternative theory is the principal

theory. There was testimony that Ethan

Lucas also talked about doing the lick on

Alicia, the robbery. There has been

testimony that there was an unknown

male seen on the bike path about the same

time Mr. Callaway was seen on the bike

path within feet of where the victim

ultimately lay, minutes before gunshots

rang out. A ball [ ] cap — a New Jersey

Devils ball cap was found at the scene,

[which contained] DNA [ ] inclusive of

Mr. Lucas. And under the principal theory

in the light most favorable to the State,

[an] argument can be made that it was Mr.

Callaway that lured her to the scene via

text messaging. So in the light most

favorable to the State, the State has shown

the necessary elements [ ] that the

defendant actually committed the

homicide or that he was a principal to it.

As far as the robbery is concerned, there

has been testimony that they were there to

attempt a robbery, that [ ] a lick was going

to be done the following day. There was

testimony that Ms. Barnett was carrying

[ ] about two [ounces] of cannabis with a

street value of anywhere from — I believe

it was per ounce, $200.00 to $500.00.

There has been testimony she had

approximately two ounces on her. There

has also been testimony that the defendant

lured her to the scene via text messaging

in order to consummate the drug

transaction. There has also been

testimony that he was going to do a lick on

Alicia the following day. So in the light

most favorable to the State, that State has,

likewise, shown the elements to attempted

robbery.

Because the record refutes the claim that trial counsel was ineffective for not moving

for a judgment of acquittal and an expanded motion for judgment of acquittal would not

have succeeded, the post-conviction court did not unreasonably apply Strickland. Meders,

911 F.3d at 1354. Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (“In moving for a

judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced,

but also admits every conclusion favorable to the adverse party that a jury might fairly and

reasonably infer from the evidence.’”) (citation omitted); Chamberlain v. State, 881 So. 2d

1087, 1104 (Fla. 2004) (“‘Where there is room for a difference of opinion between

reasonable men as to the proof of facts from which the ultimate fact is sought to be

established, or where there is room for such differences as to the inference which might be

drawn from conceded facts, the Court should submit the case to the jury for their finding,

as it is their conclusion, in such cases, that should prevail and not primarily the views of the

judge.’”) (citation omitted).

Ground Three is DENIED.

Ground Four

Callaway asserts that the prosecutor violated his federal rights by presenting false

testimony at trial. (Doc. 1 at 18) The Respondent asserts that the claim is procedurally

defaulted because Callaway failed to cite Giglio v. United States, 405 U.S. 150 (1972) or other

federal authority in his motion for post-conviction relief. (Doc. 10 at 21–24) In his motion,

Callaway asserted that “his conviction was illegally obtained from the perjured statements

and testimony of the State’s two [ ] key witnesses against him in this case.” (Doc. 11-4 at

119) Giglio applies to a false testimony claim in a Florida court, and a Giglio claim is

cognizable in a motion for post-conviction relief. Jimenez v. State, 265 So. 3d 462, 479 (Fla.

2018). Robinson v. State, 65 So. 3d 75, 76 (Fla. 2d DCA 2011) (“Although such a claim is

occasionally made on direct appeal, a Giglio violation is typically raised in a postconviction

motion because these violations are usually discovered after the trial is over.”) (citations and

footnotes omitted).

The post-conviction court denied the claim as follows (Doc. 11-4 at 178) (state court

record citations omitted):

[Defendant] alleges his conviction was “. . . obtained by

perjured statements and testimony of the State’s key witnesses

against Defendant in this case.” The Defendant alleges [that] a

detective conspired with Chamira Brown to falsely implicate

the Defendant in this case, and further that Ms. Brown had

motive to lie to deflect law enforcement investigation from

another individual, and for reward money offered by Crime

Stoppers. The Defendant attaches excerpts of transcripts from

an interview between detectives and Ms. Brown, and Ms.

Brown’s testimony at trial. None of the transcripts attached, nor

the Defendant’s claim, actually asserts any perjured statement

was made. Rather, the Defendant merely alleges Ms. Brown

had motive to fabricate her statement and testimony. The

Defendant further claims the jury would have reached a

different verdict had they been presented [with] this

information, but as the excerpts of the transcript show, trial

counsel did cross-examine Ms. Brown as to these facts, and they

were therefore known to the jury.

“‘[I]n order to prevail on a Giglio claim, a petitioner must establish [1] that the

prosecutor knowingly used perjured testimony or failed to correct what he subsequently

learned was false testimony, and [2] that the falsehood was material.’” Raleigh v. Sec’y, Fla.

Dep’t Corrs., 827 F.3d 938, 949 (11th Cir. 2016) (quoting Ventura v. Att’y Gen., Fla., 419 F.3d

1269, 1277 (11th Cir. 2005)). “A falsehood is material if there is ‘any reasonable likelihood’

that it could have affected the result.” Raleigh, 827 F.3d at 949.

Detective Tommy Ray and Sergeant Mitch Meadows interviewed Brown. (Doc. 11-4

at 133) The prosecutor did not present false testimony by either the detective or the sergeant

because neither testified at trial. (Docs. 11-2 at 155–63)

At trial, on cross-examination, Chamira Brown admitted that she spoke with the

detective and the sergeant about the crime because she expected to receive money from

Crime Stoppers (Doc. 11-4 at 141–42):

[Trial counsel:] Now, Ms. Brown, when you initially

talked to the police, you just really didn’t

cooperate with them at all, right?

[Brown:] No, ma’am.

[Trial counsel:] Okay. And later on, you decided to

cooperate with them for a couple of

reasons, right?

[Brown:] Yes, ma’am.

[Trial counsel:] One of those reasons was that you were

expecting perhaps to get some money

from Crime Stoppers?

[Brown:] That’s what they said, but, sure, yes,

ma’am.

[Trial counsel:] And the police were looking — in your

mind, you thought the police were looking

at somebody that was close to you as a

suspect for the case, right?

[Brown:] Yes, ma’am.

[Trial counsel:] And who was that?

[Brown:] Chris Forrester.

[Trial counsel:] So you wanted them to focus their

attention somewhere else rather than to

Chris Forrester, is that right?

[Brown:] Yes, ma’am.

[Trial counsel:] And you were close to Chris?

[Brown:] Yeah, I was close to Chris, like I was close

to the rest of them.

[Trial counsel:] Well, you said that you knew Ethan and

you knew Mr. Callaway and you have

known them a long time, but didn’t you

describe your closeness to Chris Forrester

as —

[Brown:] Something like a brother.

[Trial counsel:] Yeah, something like a brother.

[Brown:] Yes, I did.

[Trial counsel:] Okay. So you didn’t want to police to

continue their focus on Mr. Forrester, is

that right?

[Brown:] Yes, ma’am.

[Trial counsel:] And that’s why a month and a half later

you talked to them?

[Brown:] Yes, ma’am.

[Trial counsel:] And you were, of course, hoping to get

reward money?

[Brown:] Yes, ma’am.

On re-direct examination, Brown testified that she never received any money from Crime

Stoppers. (Doc. 11-4 at 143)

To support his Giglio claim, Callaway attached to his motion for post-conviction

relief a transcript of an interview by detectives of Brown. (Doc. 11-4 at 133–37) The

transcript shows that the detectives promised Brown that she could remain anonymous and

receive money from Crime Stoppers if the information that she provided proved truthful.

(Doc. 11-4 at 134–137) During the interview, Brown denied that Christopher Forrester

participated in the crime. (Doc. 11-4 at 135) At the end of the interview, the detectives gave

Brown the telephone number for Crime Stoppers. (Doc. 11-4 at 136–37) Callaway presented

no evidence that Brown received money from Crime Stoppers.

Because Brown accurately testified at trial that she spoke to the detectives because

she wanted to receive money from Crime Stoppers and wanted to divert the detective’s

investigation away from Forrester (Doc. 11-4 at 141–42), and trial counsel cross-examined

Brown concerning her bias, the post-conviction court did not unreasonably apply Giglio.

Smith v. Sec’y, Dep’t Corrs., 572 F.3d 1327, 1335 (11th Cir. 2009) (“Accurate statements do

not violate the Giglio rule.”); Maharaj v. Sec’y, Dep’t Corrs., 432 F.3d 1292, 1314 (11th Cir.

2005) (“[E]ven if Maharaj had established that Butler’s testimony was false (which he did

not), the falsehood was not material. Butler was thoroughly and vigorously cross-examined

about the inconsistencies in his accounts, and Maharaj’s counsel elicited testimony from

Butler that he had lied under oath.”).

Ground Four is DENIED.

Accordingly, it is ORDERED that Callaway’s petition (Doc. 1) is DENIED. The

Clerk is DIRECTED to enter a judgment against Callaway and CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS

Because Callaway neither makes a substantial showing of the denial of a

constitutional right nor demonstrates that reasonable jurists would find debatable both the

merits of the underlying claims and the procedural issues that he seeks to raise, a certificate

of appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).

Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on March 22, 2023, _,

MARYS. SORIVEN

UNITED STATES DISTRICT JUDGE

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