McCallister v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KENNETH R. McCALLISTER,

Petitioner,

v. Case No. 3:20-cv-444-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Kenneth R. McCallister, an inmate of the Florida penal

system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus

by a Person in State Custody under 28 U.S.C. § 2254. Doc. 1. He challenges a

state court (Duval County, Florida) judgment of conviction for armed trespass

and armed robbery of a Dollar General Store on September 10, 2015. Petitioner

is serving a twenty-five year term of incarceration for the armed robbery and a

concurrent five-year term of incarceration for the armed trespass. Respondents

filed a Response. See Doc. 9 (Resp.).1 Petitioner then filed a Reply. See Doc. 14.

This case is ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

1 Filed with the Response are several exhibits. See Doc. 10. The Court cites the

exhibits as “Resp. Ex.”

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060

(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

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

States,” or “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). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to seeking federal habeas review. Before bringing

a § 2254 habeas action in federal court, a petitioner must exhaust all state court

remedies available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

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

also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel

applies to the state collateral review process as well as the direct appeal

process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies,

28 U.S.C. § 2254(b)(1), thereby giving the State the

“ ‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor,

404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)).

To provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default, which raises a potential bar to federal habeas

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

Procedural defaults may be excused at times. Even though a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[3] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

Without a showing of cause and prejudice, a petitioner may receive

consideration on the merits of a procedurally defaulted claim if the petitioner

can establish that a fundamental miscarriage of justice, the continued

incarceration of one who is actually innocent, otherwise would result. The

Eleventh Circuit has explained:

3 Murray v. Carrier, 477 U.S. 478 (1986).

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496, 106 S. Ct. at 2649. “This exception is

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “ ‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup,

513 U.S. at 324.

C. Ineffective Assistance of Trial and Appellate Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

This two-part Strickland standard also governs a claim of ineffective

assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287

(11th Cir. 2016). When considering deficient performance by appellate counsel,

a court must presume counsel’s performance was

“within the wide range of reasonable professional

assistance.” Id. at 689, 104 S. Ct. 2052. Appellate

counsel has no duty to raise every non-frivolous issue

and may reasonably weed out weaker (albeit

meritorious) arguments. See Philmore v. McNeil,

575 F.3d 1251, 1264 (11th Cir. 2009). “Generally, only

when ignored issues are clearly stronger than those

presented, will the presumption of effective

assistance of counsel be overcome.” Smith v. Robbins,

528 U.S. 259, 288 (2000) (quoting Gray v. Greer,

800 F.2d 644, 646 (7th Cir.1986)); see also Burger v.

Kemp, 483 U.S. 776, 784 (1987) (finding no ineffective

assistance of counsel when the failure to raise a

particular issue had “a sound strategic basis”).

Id.; see also Owen v. Sec’y, Dep't of Corr., 568 F.3d 894, 915 (11th Cir. 2009)

(“failing to raise or adequately pursue [meritless issues on appeal] cannot

constitute ineffective assistance of counsel”). To satisfy the prejudice prong of

an ineffective assistance of appellate counsel claim, a petitioner must show a

reasonable probability that “but for the deficient performance, the outcome of

the appeal would have been different.” Black v. United States, 373 F.3d 1140,

1142 (11th Cir. 2004); see also Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th

Cir. 2009) (prejudice results only if “the neglected claim would have a

reasonable probability of success on appeal”).

For both claims of ineffective assistance of trial counsel and appellate

counsel, there is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If

there is “any reasonable argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

III. Analysis

A. Ground One

Petitioner alleges counsel erred by failing to object to introduction of the

Doller General Store’s surveillance videotape for lack of foundation and

authentication. Doc. 1 at 10. Petitioner claims witness Daryl Simmons was

improperly allowed to authenticate the video “without first testifying to

enumerated factors to determine its reliability.” Doc. 1 at 10. Citing Wagner v.

State, 707 So. 2d 827 (Fla. 1st DCA 1998), Petitioner claims that authentication

of the video required the trial court to take into account five enumerated factors

related to the “reliability of the process that yielded the [video]” and that

Mr. Williams did not give testimony to satisfy those factors. Doc. 1 at 11–12.

Thus, he contends, because the video “was a crucial, critical, and highly

significant factor in the [S]tate[’]s case . . . , [it] had substantial and injurious

effect or influence in determining the jury’s verdict.” Doc. 1 at 12. He claims

that, had counsel timely objected, the trial court would have ruled the video

inadmissible, the State “would have lost a critical piece of evidence,” and there

is a reasonable probability that the outcome of the trial would have been

different. Doc. 1 at 12.

However, while Petitioner quotes language from the trial court’s denial of

his amended motion for post-conviction relief filed under Florida Rule of

Criminal Procedure 3.850, see Doc. 1 at 10, Petitioner did not raise this specific

claim in that motion. See Resp. Ex. 5. Instead, the language Petitioner quotes

is from the trial court’s denial of ground one of that motion, in which Petitioner

alleged that counsel improperly failed to object to the introduction of suppressed

testimony. Resp. Ex. 5 at 48–49; Resp. Ex. 6 at 4. In that claim, Petitioner

challenged Mr. Simmons’ authentication (without objection by trial counsel) of

the surveillance video on the basis that Mr. Simmons’ testimony was to be

suppressed.

Petitioner did not raise the specific argument he now asserts — that

Mr. Simmons’ testimony was insufficient under Florida law to authenticate the

surveillance video and that counsel should have objected on that basis.

Consequently, Petitioner defaulted this claim. See Kelley v. Sec’y, Dep’t of Corr.,

377 F.3d 1317, 1344 (11th Cir. 2004) (“[T]he prohibition against raising

nonexhausted claims in federal court extends not only to broad legal theories of

relief, but also to the specific assertions of fact that might support relief.”).

Petitioner cites the Supreme Court’s holding in Martinez v. Ryan,

566 U.S. 1 (2012), in attempt to overcome the default. In that case, the Supreme

Court explained:

Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-

review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in

the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.

Id. at 17.

To demonstrate that a defaulted claim of ineffective assistance of counsel

is “substantial,” a petitioner “must demonstrate that the claim has some merit.”

Id. at 14. Conversely, a petitioner’s claim is “insubstantial” if “it does not have

any merit or . . . is wholly without factual support.” Id. at 16. Ultimately, “[t]he

substantiality of the ineffective-assistance-of-trial-counsel claim . . . [is]

analyzed under the familiar framework set out in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984 ).” Ayestas v. Davis,

138 S. Ct. 1080, 1096 (2018). Petitioner does not satisfy that standard here.

Although the question before the Court is one of ineffective assistance of

counsel, the issue that underlies Ground One — whether or not the surveillance

video was properly authenticated — is a question of state law. See Sims v.

Singletary, 155 F.3d 1297, 1312 (11th Cir. 1998).4 The state courts’ decision on

that issue binds this Court. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[I]t

is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the Constitution, laws,

or treaties of the United States.”).

Although the trial court was not presented with the argument now

furthered by Petitioner, the trial court ultimately determined that

Mr. Simmons could properly authenticate the video. Thus, Petitioner has not

shown that counsel erred by failing to object.

Moreover, even if counsel erred (which the Court does not decide),

Petitioner has not shown prejudice. He claims Mr. Simmons’ testimony and the

trial court’s decision regarding authentication should have involved

consideration of factors including “[e]vidence establishing the time and date of

the [video],” “evidence of editing or tampering,” evidence of “[t]he operating

condition and capability of the equipment producing [the video] as it relates to

the accuracy and reliability of the [video],” evidence of “the preparation, testing,

operation, and security of the equipment used to produce the [video], including

4 Even if erroneous, in order to obtain habeas relief, a Petitioner must show that the

evidentiary ruling “had [a] substantial and injurious effect or influence in determining

the jury’s verdict.” Sims, 155 F.3d ar 1312 (quoting Brecht v. Abrahamson, 507 U.S.

619, 623 (1993)).

the security of the product itself,” and “[t]estimony identifying the relevant

participants depicted in the [video].” Doc. 1 at 11–12; Doc. 14 at 7. But

Petitioner does not argue or demonstrate, for example, that the video had the

wrong date or time, that there was evidence of editing or tampering, or that the

video equipment operated in a manner that produced an inaccurate, unreliable,

or unsecure recording. Accordingly, Petitioner has not shown that the

surveillance video would be inadmissible after testimony regarding those

factors and has not shown that admission of the video affected the fundamental

fairness of the trial.

As Petitioner has not shown deficient performance by counsel or

prejudice, he has not demonstrated that his claim is “substantial” under

Martinez. Ground One is therefore denied because it remains procedurally

defaulted and barred from federal habeas review.

B. Ground Two

Petitioner asserts that counsel “failed to discover reverse Williams[5] Rule

evidence” because “the [S]tate with[held] exculpatory Brady[6] material in

5 Under the Williams rule, evidence of collateral crimes is admissible “[i]f found to be

relevant for any purpose save that of showing bad character or propensity.” Williams

v. State, 110 So. 2d 654, 662 (Fla. 1959). “ ‘Reverse Williams rule’ evidence is evidence

of a crime committed by another person that a defendant offers to show his or her

innocence of the instant crime.” McDuffie v. State, 970 So. 2d 312, 324 n.2 (Fla. 2007).

6 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the

prosecution of evidence favorable to an accused upon request violates due process

violation of due process of law.” Doc. 1 at 13. Specifically, Petitioner claims the

State withheld “investigative reports by [the] Jacksonville Sheriff’s Office in

connection with robberies of other Dollar [G]eneral Store[]s during the time

frame in which [P]etitioner was accused of committing his Dollar General Store

robbery.” Doc. 1 at 13.

Petitioner asserted the reverse Williams rule argument (that “the facts of

the ongoing robberies of the Dollar General Stores were similar enough to to

facts of [his] case to make it relevant to his defense” and that counsel erred by

failing to investigate and discover it) in his amended Rule 3.850 motion, Doc. 1

at 15; Resp. Ex. 5 at 50, and on appeal of the denial of that motion, Resp. Ex.

29 at 17–24. Thus, that claim is exhausted.

In denying the claim, the trial court explained:

Defendant maintains counsel was ineffective for

failing to investigate and discover “Williams Rule

evidence.” Defendant asserts after he was arrested as

the perpetrator of the robbery of Dollar General on

September 10, 2015, Jacksonville Sheriff's Office

(“JSO”) was still sending out bulletins that Dollar

General Store robberies were still occurring and that

they were the same type of robberies with the same

perpetrator description as the one for which Defendant

was arrested. Defendant states this evidence was

presented at his sentencing hearing, but not at trial

and that if counsel had found and presented this

information, the jury would have acquitted him.

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.”).

Initially, this Court notes this evidence is not

“Williams Rule evidence,” which would be evidence of

his other similar bad acts or crimes. Rather, the way

these allegations are made indicate he believes this to

be exculpatory evidence. This Court finds this

“evidence” was presented at sentencing through a

letter from Defendant’s sister. (Ex. F.) The robbery

suspect did not match the same description as given

for Defendant’s robbery. While both suspects were

black males, the perpetrator of the ongoing robberies

wore a fake beard or mask during each of the robberies

and used duct tape or electrical tape to disguise his

face. (Ex. F.) Defendant, on the other hand, was

described as covering his face with a hat and a bright

green scarf-type clothing. (Ex. D at 236, 238, 260, 271.)

It would have been up to the judge to determine

whether he thought the suspect description was

similar enough to make this evidence relevant.[7]

Even assuming arguendo that the trial court

would have allowed the evidence and counsel

presented such testimony, this Court finds no

reasonable probability the result of the proceeding

would have been different considering the evidence

presented against Defendant at trial. Two

eyewitnesses from Dollar General identified

Defendant as the suspect at a show up that day as well

as during the trial and both testified they were sure

Defendant was the perpetrator. (Ex. D at 234-35, 247,

255, 259, 276-77, 277-78, 283-84, 284-285.)

Additionally, there was surveillance video the jury

viewed to use their own judgment of whether

7 To the extent Petitioner claims the trial court used the wrong standard by

considering the evidence as Williams rule evidence rather than reverse Williams rule

evidence, Doc. 14 at 10–12, the argument is meritless. The trial court did not mention

the words “reverse Williams rule.” Nonetheless, after first concluding the evidence was

not Williams rule evidence, the trial court considered whether evidence of crimes

committed by the other suspect could support Petitioner’s claim of innocence as to the

September 10, 2015 Dollar General Store robbery. Resp. Ex. 6 at 4–5. Thus, the trial

court indeed considered Petitioner’s reverse Williams rule argument. See supra n.5

(defining reverse Williams rule evidence).

Defendant could have been the perpetrator. (Ex. D at

220-25, 237-41, 266-68.) One of the witnesses to the

robbery left the store when it began, waited in his

truck, and followed Defendant once he left the store.

(Ex. D at 261-63, 271.) That witness testified

Defendant got on a silver bike, which he followed until

he lost sight of Defendant, at which time police

continued the search in that area as the witness had

been relaying Defendant’s position on a 911 call. (Ex.

D at 263-64, 271-75.) Police saw Defendant on his bike,

lost sight of him after he spotted police and turned in

a different direction, and ultimately located Defendant

in a shed within a backyard. (Ex. D at 292-96, 301,

305-12, 319-20, 335-36, 336-37, 354, 380-81, 383-88,

392-93, 394-95.) Defendant had cash in his pocket

when apprehended. (Ex. D at 396-97.) The police also

found the bike next to the fence in the backyard and a

gun wrapped in a towel in the shed, both of which had

Defendant's DNA on when tested. (Ex. D at 308, 310-

11, 402, 475-76.) Two of the witnesses testified that the

gun found looked like it was the same gun used in the

robbery. (Ex. D at 218, 229-30, 254.) The homeowner

of the property Defendant was found on verified that

he had no permission or authority to be on her

property or in her shed, and also verified the bike and

the gun found did not belong to her or her husband.

(Ex. D at 445-49.) Accordingly, this Court denies

Ground Two.

Resp. Ex. 6 at 4–6. Florida’s First District Court of Appeal (“First DCA”)

affirmed the denial, per curiam. Resp. Ex. 31 at 3; McCallister v. State, 291

So.3d 1229 (Fla. 1st DCA Feb. 20, 2020) (table).

The state courts’ decisions were not contrary to or an unreasonable

application of federal law or based on an unreasonable determination of the

facts. Although Petitioner claims that “the evidence could have been used to

show another person . . . was the perpetrator of the robbery for which [he] was

accused,” the record does not support that claim. As the trial court noted, the

other armed suspect wore a fake beard or mask and used duct tape or electrical

tape to disguise his face. Resp. Ex. 6 at 155. Those identifying details do not

match the description of the suspect in the armed robbery for which Petitioner

was charged, who was described as wearing a winter hat that he pulled down

over his face, a bright green shirt, and a florouescent green scarf or other item

of clothing around his neck. Resp. Ex. 6 at 58, 60, 70, 78.

As explained with regard to Ground One, the admissibility of evidence is

a matter of state law. The trial court determined that the identified reverse

Williams rule evidence did not match the facts of Petitioner’s case, which was

not an unreasonable determination of the facts, and implied the evidence would

not be admissible. Thus, counsel did not err by failing to investigate or obtain

that evidence.

Further, the trial court’s summary of the evidence admitted at trial is

supported by the record. Given the evidence admitted against Petitioner, there

is no reasonable probability that the reverse Williams rule evidence would have

affected the outcome of the trial. Therefore, Petitioner cannot demonstrate the

requisite prejudice under Strickland, and his reverse Williams rule claim is

denied.

As for his Brady claim, Petitioner concedes that he did not raise it as part

of his ineffective assistance of counsel claim in his amended Rule 3.850 motion.

Doc. 1 at 15. Instead, he contends that the claim was sufficiently presented to

the state court when he appealed the denial of that motion and that the First

DCA’s decision is presumed to be a decision on the merits. Doc. 14 at 12.

Generally, “[w]hen 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.” Harrington v. Richter, 562 U.S. 86,

99 (2011). But here, such “state-law procedural principles” are present. Under

longstanding Florida law, “an appellate court will not consider an issue unless

it was presented to the lower court.” Steinhorst v. State, 412 So. 2d 332, 338

(Fla. 1982).

Although the First DCA issued a decision without a written explanation,

this Court “may not assume that had the [First DCA] issued an opinion, it would

have ignored its own procedural rules and reached the merits of this case.”

Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993). Thus, this Court concludes

that the First DCA rejected Petitioner’s Brady claim because he failed to raise

it in the lower court.

This rejection rests on an independent and adequate state procedural

ground and renders the claim defaulted. See Coleman v. Thompson, 501 U.S.

722, 729 (1991) (“This Court will not review a question of federal law decided

by a state court if the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.”);

Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (“[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.”); Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999) (“[W]here

the state court correctly applies a procedural default principle of state law to

arrive at the conclusion that the petitioner’s federal claims are barred, . . . the

federal court [must] respect the state court’s decision.”).

Nonetheless, Petitioner may overcome the default by demonstrating

cause and prejudice or the fundamental miscarriage of justice. See Coleman,

501 U.S. at 750. As with Ground One, Petitioner contends that Martinez applies

to supply the requisite cause and prejudice. Doc. 1 at 15.

In order to establish a violation of Brady v. Maryland, 373 U.S. 83 (1963),

Petitioner must “prove . . . (1) that the evidence was favorable to the defendant,

either because it is exculpatory or impeaching; (2) that the prosecution

suppressed the evidence, either willfully or inadvertently; and (3) that the

suppression of the evidence resulted in prejudice to the defendant.” Rimmer v.

Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1054 (11th Cir. 2017) (citing Turner v.

United States, 137 S.Ct. 1885, 1893 (2017); Banks v. Dretke, 540 U.S. 668, 691

(2004); Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).

As noted above, the evidence was not exculpatory because the description

of the other robbery suspect did not match the description of the robber in the

case for which Petitioner was prosecuted.

Petitioner also argues that the undisclosed information about the other

robbery suspect “could have been used to directly impeach the identification

testimony of Tammy Fine, Daryl Simmons, and Scott Martin based on the fact

that[,] at the show up identification[,] [P]etitioner[’]s physical appearance was

completely different from the previous descriptions given by these witnesses at

the time of the robbery.” However, Petitioner does not explain how information

about a different suspect is relevant to the witnesses’ allegedly changing

descriptions about the perpetrator of the robbery for which Petitioner was

prosecuted. Even if it were relevant, as explained above, Petitioner cannot

demonstrate prejudice given the other evidence admitted against him at trial.

Consequently, Petitioner has not established that his Brady claim is

substantial under Martinez, and that claim remains procedurally defaulted and

barred from federal habeas review. Accordingly, Ground Two is denied.

C. Ground Three

Petitioner argues his appellate counsel filed only an Anders8 brief and

“failed to challenge . . . the trial court’s ruling on his motion to suppress

identification testimony based on the fact that the witnesses[’] testimony was

premised upon an inherently suggestive police procedure that the police

aggravated at the confrontation of the show up, rendering the identification

testimony unreliable” and depriving him of a fair trial. Doc. 1 at 18. Petitioner

argues that showup identifications are inherently suggestive and that the only

witness to see the suspect’s face before the supect covered it with a ski mask,

sunglasses, a hat, and a scarf was Tammy Fine. Thus, “it was completely

impossible for the[] [other] three witnesses to make a full facial ID of

8 In Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court set forth the

following procedure for court-appointed counsel to pursue an appeal requested by his

client when counsel has determined there is no merit to the appeal:

[I]f counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission

to withdraw. That request must, however, be accompanied by a brief

referring to anything in the record that might arguably support the

appeal. A copy of counsel's brief should be furnished the indigent and

time allowed him to raise any points that he chooses; the court — not

counsel — then proceeds, after a full examination of all the proceedings,

to decide whether the case is wholly frivolous. If it so finds it may grant

counsel’s request to withdraw and dismiss the appeal insofar as federal

requirements are concerned, or proceed to a decision on the merits, if

state law so requires. On the other hand, if it finds any of the legal points

arguable on their merits (and therefore not frivolous) it must, prior to

decision, afford the indigent the assistance of counsel to argue the

appeal.

[P]etitioner prior to the show up.” Doc. 1 at 20. Moreover, while the witnesses

identified him as “wearing various colored articles of clothing at the time of the

robbery, . . . at the time of the show up identification, [P]etitioner was shirtless

and only wearing a pair of grey shorts.” Doc. 1 at 20.

Petitioner contends that,

because the witnesses could not . . . identify him . . .

based on faces alone if they had to, nor could these

witnesses identify [him] from the clothing he was

wearing at the show up, it only stands to reason by

logical extension[] that these witness[es’]

identification of [him] was based . . . on an inherently

suggestive procedure employed by the police that was

so suggestive, that in fact, gave rise to the substantial

likelihood o[f] irreparable misidentification.

Doc. 1 at 20. Petitioner cites several circumstances he believes demonstrate that

the showup identification was unduly suggestive, including: (1) that

Mr. Simmons “heard a customer state that ‘the police had got the guy;’ ” (2) that

Ms. Andrews knew Mr. Martin identified Petitioner as the suspect, and at the

showup she observed Petitioner in handcuffs and surrounded by deputies;

(3) Ms. Fine heard over the police radio that the robber had been caught and

“she knew that the suspect in custody was the same person that robbed the

store based on police dispatch communications;” and (4) Mr. Martin testified

that the suspect looked different at the showup location than when he was

inside the Dollar General Store. Doc. 1 at 22.

Petitioner concedes that he did not exhaust this claim. Doc. 1 at 19.

Nonetheless, citing Coleman v. Thompson, 501 U.S. 722 (1991), Petitioner

claims he can show cause and prejudice for the default. Doc. 1 at 19. He argues

only the merits of his claim, however, and fails to explain any external factor

that prevented him from raising this claim of ineffective assistance of appellate

counsel in the state courts.

Instead, in his Reply, Petitioner urges that Martinez should apply to

supply cause and prejudice. Doc. 14 at 16–18. His argument warrants no relief.

The Eleventh Circuit has explained that, “[b]y its own emphatic terms, the

Supreme Court’s decision in Martinez is limited to claims of ineffective

assistance of trial counsel that are otherwise procedurally barred due to the

ineffective assistance of post-conviction counsel.” Gore v. Crews, 720 F. 3d 811,

816 (11th Cir. 2013) (emphasis added). Martinez, therefore, does not apply to

claims of ineffective assistance of appellate counsel that are procedurally barred

due to the lack of or ineffective assistance of post-conviction counsel, and does

not provide cause for the default of this claim.

Consequently, Ground Three is procedurally barred from federal habeas

review and is denied.

Accordingly, it is ORDERED AND ADJUDGED that:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

with prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.?

DONE AND ORDERED at Jacksonville, Florida, this 5th day of July,

2023.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

C: Kenneth R. McCallister, #J57705

Counsel of record

9 The Court should issue a certificate of appealability only if Petitioner makes

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To make this substantial showing, Petitioner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable

or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

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