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

> District Court, M.D. Florida · July 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10113298

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113298

## How later opinions describe it (automated extraction)

- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”

## Opinion text

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.
25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113298. Public record. Not legal advice.