Melady v. Secretary, Department of Corrections (Pasco County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KYLE MELADY,

Petitioner,

v. Case No. 8:21-cv-213-TPB-TGW

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________/

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Kyle Melady, a Florida prisoner, timely filed a counseled petition for

writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Having considered the

petition, Respondent’s response in opposition (Doc. 8), and Melady’s reply

(Doc. 9), the Court DENIES the petition.1

Procedural History

Following a jury trial, Melady was convicted of one count of burglary of

an occupied dwelling. (Doc. 8-2, Ex. 16.) After finding that he qualified as a

violent career criminal, the state trial court sentenced Melady to a

mandatory term of thirty years’ imprisonment. (Id., Ex. 18, at 7-8.) The state

appellate court per curiam affirmed the conviction and sentence. Melady v.

1 Melady has also filed a motion for discovery. (Doc. 17.) For the reasons explained below,

that motion is denied as well.

State, 236 So. 3d 1052 (Fla. 2d DCA 2017). Melady subsequently moved for

postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 8-

2, Ex. 28.) The state postconviction court rejected Melady’s claims, and the

state appellate court per curiam affirmed the denial of relief. (Id., Exs. 29, 33,

37; Melady v. State, 321 So. 3d 184 (Fla. 2d DCA 2020).) Melady separately

filed a petition alleging ineffective assistance of appellate counsel. (Doc. 8-2,

Ex. 44.) The state appellate court denied relief. (Id., Ex. 47.) This federal

habeas petition followed. (Doc. 1.)

Factual Background2

On the morning of July 27, 2015, Mandy Griffith was eating breakfast

with her two children at her house in New Port Richey, Florida. (Doc. 8-2, Ex.

14, at 119-20.) Around 9:30 a.m., she was “startled” by “repeated knocks at

the door and repeated doorbell rings.” (Id. at 120-21.) Because she was not

expecting anyone, Griffith did not answer the door. (Id. at 121.) Once the

knocking and ringing stopped, she took her children to their rooms so that

she could look outside. (Id. at 121-22.) Griffith returned to the kitchen, looked

out the window, and saw a man in her backyard. (Id. at 122.)

As Griffith walked toward the front door, she noticed that the man had

entered her screened-in patio and was crouching by the sliding glass door.

2 This factual summary is based on the trial transcript.

(Id. at 123.) Griffith heard “cracking” and saw the man trying to “break the

door” with a crowbar. (Id. at 124.) Standing “six to eight feet” from the man,

Griffith screamed, “[W]hat are you doing?” (Id.) She made eye contact with

the man and looked at him for “[m]aybe three seconds”—enough time to get

“[a] good look.” (Id. at 125.) The man ran around to the front of the house, got

in a “small silver compact car,” and drove away. (Id. at 125-26.) Griffith

called 911, and the police arrived. (Id. at 126.)

Two days later, law enforcement met with Griffith in her house and

provided her with “three piles” of photographic lineups. (Id. at 132-33.) She

went through each pile of photographs twice, identifying Melady as the

burglar. (Id. at 133-34.) Griffith later testified that she was “one hundred

percent sure” Melady was the perpetrator. (Id. at 135.) The police officer who

conducted the lineup testified that, when Griffith identified Melady, “[s]he

was pointing, she started shaking[,] her eyes got real wide[,] and she sa[id]

that’s him.” (Id. at 177.) Griffith subsequently made an in-court identification

of Melady. (Id. at 136-37.)

Melady testified at trial. He admitted to having seventeen prior felony

convictions, but he denied burglarizing Griffith’s house. (Id. at 194-95.)

Standards of Review

AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs

this proceeding. Carroll v. Sec’y, DOC, 1354 F.3d 1354, 1364 (11th Cir. 2009).

Habeas relief can be granted only if a petitioner is in custody “in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

Section 2254(d) provides that federal habeas relief cannot be granted on a

claim adjudicated on the merits in state court unless the state court’s

adjudication:

(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 Supreme] Court

on a question of law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable facts.” Williams

v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an “unreasonable

application” of clearly established federal law “if the state court identifies the

correct governing legal principle from [the Supreme] Court’s decisions but

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

AEDPA was meant “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, 693 (2002). Accordingly, “[t]he focus . . . is on

whether the state court’s application of clearly established federal law is

objectively unreasonable, and . . . an unreasonable application is different

from an incorrect one.” Id. at 694; see also Harrington v. Richter, 562 U.S. 86,

103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.”).

The state appellate court affirmed Melady’s conviction and sentence, as

well as the denial of postconviction relief, without discussion. These decisions

warrant deference under § 2254(d)(1) because “the summary nature of a state

court’s decision does not lessen the deference that it is due.” Wright v. Moore,

278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a

silent affirmance, “the federal court should ‘look through’ the unexplained

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

rationale” and “presume that the unexplained decision adopted the same

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

Ineffective Assistance of Counsel

Melady alleges ineffective assistance of trial and appellate counsel.

Ineffective assistance of counsel claims are analyzed under the test

established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland

requires a showing of deficient performance by counsel and resulting

prejudice. Id. at 687. Deficient performance is established if, “in light of all

the circumstances, the identified acts or omissions [of counsel] were outside

the wide range of professionally competent assistance.” Id. at 690. However,

“counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment.” Id.

Melady must show that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Id. at 691. To demonstrate prejudice, Melady

must show “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

The Strickland standard applies to claims of ineffective assistance of

appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v.

Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish a claim of

ineffective assistance of appellate counsel, Melady must show that appellate

counsel’s performance was objectively unreasonable, and that there is a

reasonable probability that, but for this performance, he would have

prevailed on his appeal. Robbins, 528 U.S. at 285-86.

Obtaining relief on a claim of ineffective assistance of counsel is

difficult on federal habeas review because “[t]he standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply

in tandem, review is doubly so.” Richter, 562 U.S. at 105 (internal quotation

and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252,

1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the

lens of AEDPA deference, the resulting standard of review is doubly

deferential.”) (internal quotation and citation omitted). “The question [on

federal habeas review of an ineffective assistance claim] ‘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) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

Exhaustion of State Remedies; Procedural Default

A federal habeas petitioner must exhaust his claims by raising them in

state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A);

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must

give the state courts an opportunity to act on his claims before he presents

those claims to a federal court in a habeas petition.”). The exhaustion

requirement is satisfied if the petitioner fairly presents his claim in each

appropriate state court and alerts that court to the federal nature of the

claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that “[i]f the petitioner has

failed to exhaust state remedies that are no longer available, that failure is a

procedural default which will bar federal habeas relief, unless either the

cause and prejudice or the fundamental miscarriage of justice exception is

established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001); see also

Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (stating that

unexhausted claims that “would now be procedurally barred in state court

due to a state-law procedural default” provide no basis for federal habeas

relief).

A petitioner shows cause for a procedural default when he

demonstrates “that some objective factor external to the defense impeded the

effort to raise the claim properly in the state court.” Wright v. Hopper, 169

F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates prejudice by

showing that “there is at least a reasonable probability that the result of the

proceeding would have been different” absent the constitutional violation.

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental

miscarriage of justice’ occurs in an extraordinary case, where a constitutional

violation has resulted in the conviction of someone who is actually innocent.”

Id.

Discussion

Ground One

Melady contends that appellate counsel was ineffective for failing to

raise two alleged constitutional violations. (Doc. 1 at 9-13.) First, he argues

that appellate counsel should have raised a Giglio3 claim based on Griffith’s

allegedly false testimony about “her prior crimes of theft and dishonesty.” (Id.

at 12-13.) Second, Melady faults appellate counsel for failing to argue that

the trial court relied on “false information” “when it sentenced [him] as a

[v]iolent [c]areer [c]riminal and imposed a 30-year sentence.”4 (Doc. 9 at 7; see

3 Giglio v. United States, 405 U.S. 150 (1972).

4 In the heading for Ground One, Melady asserts that appellate counsel failed to raise

“numerous issues” on direct appeal. (Doc. 1 at 9.) But the only issues identified in Ground

One are the alleged Giglio violation and the trial court’s alleged consideration of false

information at sentencing. (Id. at 9-13; see also Doc. 9 at 3-7.) Accordingly, the Court

considers only whether appellate counsel was ineffective for failing to raise these two

issues. Regardless, Melady fails to establish that the state court acted unreasonably in

rejecting any of his claims of ineffective assistance of appellate counsel.

also Doc. 1 at 12.) Melady separately argues that appellate counsel had an

“obvious conflict of interest” because he also represented Melady at trial.

(Doc. 1 at 9.) For that reason, Melady says, appellate counsel “should not

have agreed to do the appeal.” (Id.) The Court considers each claim in turn.

The Alleged Giglio Violation

During a break in jury selection, Melady’s trial counsel informed the

court that he had spoken to “a private investigator” over the weekend and

discovered that Griffith, the victim, “ha[d] what [counsel] consider[ed] two

qualified misdemeanors from Ohio from a [long] time ago.” (Doc. 8-2, Ex. 14,

at 55.) Counsel explained that the convictions were for passing “worthless

checks,” and that he intended to “elicit information” from Griffith about her

“two prior misdemeanors.” (Id.) Counsel also stated that he had not obtained

“the judgment[s] and sentences” for the convictions. (Id.) The court ultimately

ruled that counsel “could ask” Griffith about the convictions, but that if she

said she had “no prior crimes of dishonesty or false statement,” counsel would

be “stuck with the answer.” (Id. at 113.)

On cross-examination, counsel asked Griffith whether she had “ever

been convicted of a crime involving dishonesty or false statement.” (Id. at

139.) Griffith answered, “No.” (Id.) Neither side objected, and the

examination continued. (Id.)

In his federal habeas petition, Melady argues that the prosecution

committed a Giglio violation by “allow[ing] Griffith to lie on the stand about

her prior crimes of theft and dishonesty.” (Doc. 1 at 12.) Thus, according to

Melady, appellate counsel was ineffective for failing to raise the alleged

Giglio violation on direct appeal. (Id. at 12-13.) Melady asserted this

ineffective-assistance claim in his petition alleging ineffective assistance of

appellate counsel. (Doc. 8-2, Ex. 44, at 18-20.) The state appellate court

rejected the claim without explanation. (Id., Ex. 47.)

Because the final state-court decision “is unaccompanied by an

explanation,” Melady must show that “there was no reasonable basis for the

state court to deny relief.” Richter, 562 U.S. at 98. He cannot do so. “[T]o

determine whether [Melady] has shown ineffective appellate counsel, [the

Court] must determine whether [he] has shown underlying meritorious . . .

claims.” Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008). “Appellate

counsel is not ineffective for failing to raise claims reasonably considered to

be without merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.

2000); see also Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013)

(“It is . . . crystal clear that there can be no showing of actual prejudice from

an appellate attorney’s failure to raise a meritless claim.”).

Melady’s Giglio claim is meritless, so appellate counsel was not

ineffective for failing to pursue it. “To establish a Giglio claim, a habeas

petitioner must prove: (1) the prosecutor knowingly used perjured testimony

or failed to correct what he subsequently learned was false testimony; and (2)

such use was material, i.e., that there is any reasonable likelihood that the

false testimony could . . . have affected the judgment.” Guzman v. Sec’y, Dep’t

of Corr., 663 F.3d 1336, 1348 (11th Cir. 2011). The petitioner “must identify

evidence the government withheld that would have revealed the falsity of the

testimony.” United States v. Stein, 846 F.3d 1135, 1147 (11th Cir. 2017)

(emphasis added); see also Ford v. Hall, 546 F.3d 1326, 1331 (11th Cir. 2008)

(“Giglio error . . . occurs when the undisclosed evidence demonstrates that

the prosecution’s case included perjured testimony and that the prosecution

knew, or should have known, of the perjury.” (emphasis added)).

Here, “there was no Giglio violation because there was no undisclosed

evidence.” Shuler v. Sec’y, Fla. Dep’t of Corr., 610 F. App’x 856, 858 (11th Cir.

2015). Melady’s trial counsel was aware of the information that supposedly

“revealed the falsity of [Griffith’s] testimony”—namely, her two prior

convictions for passing worthless checks. Stein, 846 F.3d at 1147. Moreover,

there is no indication that, before counsel raised the matter at trial, the

prosecution knew of Griffith’s prior convictions. Because the information in

question “was not suppressed,” Melady’s “Giglio claim based on [Griffith’s]

alleged lies about [her prior convictions] fails.” Hammond v. Hall, 586 F.3d

1289, 1309 (11th Cir. 2009); see also Rentas v. Fla. Att’y Gen. & Sec’y, No.

2:15-cv-751-JES-MRM, 2017 WL 11637307, at *5 (M.D. Fla. July 27, 2017)

(“Claim One fails at the outset because a Giglio analysis presupposes that the

evidence at issue was withheld from the defense.”). And because the Giglio

claim lacks merit, appellate counsel was not ineffective for failing to raise it

on direct appeal.

The Alleged Sentencing Error

As noted above, the trial court sentenced Melady as a violent career

criminal to a mandatory term of thirty years in prison. (Doc. 8-2, Ex. 18, at 7-

8.) “[T]o be sentenced as a violent career criminal, a defendant must have

been previously incarcerated in state or federal prison, must have been

convicted three times as an adult of certain violent felonies (listed in the

statute), and must have committed another such offense within” five years of

his release from prison for a qualifying felony. Clines v. State, 912 So. 2d 550,

553 (Fla. 2005). Burglary is a qualifying offense under the statute. Fla. Stat.

§§ 775.084(1)(d)(1), 776.08; see also Fisher v. State, 129 So. 3d 468, 468 (Fla.

2d DCA 2014) (noting that “[b]urglary” is a qualifying felony for purposes of

the violent-career-criminal statute).

The trial court adjudicated Melady a violent career criminal based on

“well more than three qualifying felonies,” including at least seven prior

burglary convictions. (Doc. 8-2, Ex. 18, at 3-4, 8.) Because the jury in this case

convicted Melady of burglary of an occupied dwelling (a second-degree

felony), the court was required to sentence him to “a term of years not

exceeding 40, with a mandatory minimum term of 30 years’ imprisonment.”5

Fla. Stat. § 775.084(4)(d)(2). The court ultimately imposed a sentence of

thirty years in prison. (Doc. 8-2, Ex. 18, at 7.) It also declined to “give

[Melady] a supersedeas bond” pending appeal, explaining that he had

previously “been to prison for this very same crime”—that is, burglary of an

occupied dwelling. (Id. at 8-9.)

Melady contends that the court relied on “false information” when it

“sentenced [him] as a [v]iolent [c]areer [c]riminal and imposed a 30-year

sentence.” (Doc. 9 at 6-7.) He claims that his sentencing scoresheet

incorrectly stated that he had a prior conviction for burglary of a dwelling

when, in fact, the conviction was for burglary of a structure. (Id. at 6.)

According to Melady, the court “took into consideration” his “erroneous [prior

conviction] for burglary of a dwelling” “as an impermissible sentencing

factor.” (Id.) Melady maintains that appellate counsel was ineffective for

failing to raise this issue in a “motion . . . to preserve [] sentencing errors.”

(Id. at 5.)

5 A trial court “has the discretion not to sentence a defendant as a violent career criminal if

it determines that such a sentence is not necessary for the protection of the public.”

Williams v. State, 249 So. 3d 721, 722 (Fla. 5th DCA 2018). This exception was not at issue

in Melady’s case.

The state appellate court rejected Melady’s ineffective-assistance claim

without explanation. (Doc. 8-2, Ex. 47.) Thus, Melady must show that “there

was no reasonable basis for the state court to deny relief.” Richter, 562 U.S.

at 98. He cannot meet his burden because the underlying sentencing-error

claim lacks merit, and appellate counsel “cannot be deficient for failing to

raise a meritless claim.” Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir.

2008).

“A defendant has a due process right . . . not to be sentenced based on

false or unreliable information.” United States v. Ghertler, 605 F.3d 1256,

1269 (11th Cir. 2010); see also Roberts v. United States, 445 U.S. 552, 556

(1980) (“We have . . . sustained due process objections to sentences imposed

on the basis of misinformation of constitutional magnitude.”). “To prevail on a

challenge to a sentence based on the consideration of such information, a

defendant must show (1) that the challenged evidence is materially false or

unreliable and (2) that it actually served as the basis for the sentence.”

Ghertler, 605 F.3d at 1269. The defendant must make “a convincing showing

that the introduction of specific constitutionally infirm evidence had an

ascertainable and dramatic impact on the sentencing authority.” United

States v. Sjeklocha, 114 F.3d 1085, 1089 (11th Cir. 1997) (internal quotation

marks omitted).

The Court assumes, without deciding, that Melady’s scoresheet

mistakenly listed one of his prior convictions for burglary of a structure as

burglary of a dwelling. Even so, Melady cannot show that this allegedly false

information “actually served as the basis for [his] sentence.” Ghertler, 605

F.3d at 1269. As noted above, Melady received a mandatory thirty-year

sentence based on his designation as a violent career criminal. That

designation would have remained the same even if his scoresheet had not

contained the allegedly false information. Indeed, Melady had at least seven

prior burglary convictions—well over the three qualifying felonies required to

sustain a violent-career-criminal designation. (Doc. 8-2, Ex. 18, at 3-4, 8.)

Moreover, “convictions for burglary of an unoccupied structure qualify for

sentencing as a violent career criminal.” Ubilla v. State, 8 So. 3d 1200, 1201

(Fla. 3d DCA 2009). That means that, even if the conviction in question had

been properly listed as burglary of a structure, it still would have counted

toward Melady’s violent-career-criminal designation.

Thus, because Melady’s mandatory thirty-year sentence was not

affected by the allegedly false information in his scoresheet, that information

did not have “an ascertainable and dramatic impact on the sentencing

authority.” Sjeklocha, 114 F.3d at 1089 (internal quotation marks omitted).

Appellate counsel was not ineffective for failing to raise this meritless claim

of sentencing error.

The Alleged Conflict of Interest

As noted above, the same lawyer represented Melady at trial and on

direct appeal. (Doc. 8-2, Ex. 14, at 2; id., Ex. 22, at 1.) Melady contends that

this was an “obvious conflict of interest” because it required counsel to “take

responsibility for his own mistakes” on direct appeal. (Doc. 1 at 12.) Thus,

according to Melady, appellate counsel was ineffective and “should not have

agreed to do the appeal.” (Id. at 9.)

Respondent correctly contends that this claim is unexhausted and

procedurally defaulted. (Doc. 8 at 16.) A petitioner “must give the state courts

an opportunity to act on his claims before he presents those claims to a

federal court in a habeas petition.” O’Sullivan, 526 U.S. at 842. Melady never

raised his conflict-of-interest claim in state court. It is therefore unexhausted.

Melady cannot return to state court to present his unexhausted claim

in a second, untimely petition alleging ineffective assistance of appellate

counsel. See Fla. R. App. P. 9.141(d)(5) (“[A] petition alleging ineffective

assistance of appellate counsel on direct review must not be filed more than 2

years after the judgment and sentence become final on direct review. . . .”). As

a result, the claim is procedurally defaulted. See Bailey v. Nagle, 172 F.3d

1299, 1303 (11th Cir. 1999) (“[I]f the petitioner simply never raised a claim in

state court, and it is obvious that the unexhausted claim would now be

procedurally barred due to a state-law procedural default, the federal court

may foreclose the petitioner’s filing in state court; the exhaustion

requirement and procedural default principles combine to mandate

dismissal.”). And because Melady has not shown that an exception applies to

overcome the default, the claim is barred from federal habeas review.

Even if Melady had exhausted his conflict-of-interest claim, he would

not be entitled to relief because it fails on the merits. Strickland applies to

claims of “ineffective assistance of appellate counsel based on an alleged

conflict arising from the same counsel representing the [d]efendant both at

trial and on appeal.” Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005). As

explained above, the two claims that Melady believes appellate counsel

should have raised—the alleged Giglio violation and the alleged sentencing

error—lacked merit. “Appellate counsel is not ineffective for failing to raise

claims reasonably considered to be without merit.” Nyhuis, 211 F.3d at 1344

(internal quotation marks omitted). Thus, even if Melady had not defaulted

his conflict-of-interest claim, it would not warrant federal habeas relief.

Ground Two

Melady contends that his “pretrial [c]ourt-appointed counsel” was

ineffective for failing to seek suppression of the victim’s in-court and out-of-

court identifications. (Doc. 1 at 13-14.) Melady was initially represented by

appointed counsel. Shortly before trial, he retained private counsel, who

proceeded to represent him at trial and on direct appeal. (Doc. 8-2, Ex. 14, at

7-11.) On the first day of trial, counsel moved to suppress the victim’s “out-of-

court photo pack identification,” arguing that (1) the victim “identified

[Melady] [based] on a three [] second visual,” (2) Melady’s photograph was

“the FIRST photo out of all the photos” shown to the victim, (3) after the

identification, law enforcement improperly “advised the [v]ictim that she had

picked the correct photo,” and (4) the victim subsequently “viewed [Melady]

on the Pasco Sheriff’s Office Facebook” page. (Id., Ex. 13, at 1-2.) Counsel

argued that “[a]ny in-court identification would also be tainted” for the same

reasons. (Id. at 1.)

After the prosecution rested, the trial court orally denied Melady’s

motion to suppress. (Id., Ex. 14, at 178-79.) The court held that the victim

had a “significant” opportunity to “view the suspect at the time of the crime.”

(Id. at 179.) The court explained that, although the victim had only “three

seconds” to view the suspect, “it was a very long three seconds in that

witness’s life based on the [c]ourt’s view of her testimony.” (Id.) The court also

found that the victim’s “degree of attention was high” and “she was focused

right at the suspect.” (Id.) In addition, the court noted that the victim

“seemed very clear that [Melady] was the person that did this,” and that she

made the identification only two days after “the crime and confrontation”—

“not a long time for purposes of that identification.” (Id.) Accordingly, the

court found “no reason to suppress the identification from the photo lineup or

any reason to suppress the in-court identification.”6 (Id.)

In his federal habeas petition, Melady does not dispute that trial

counsel moved to suppress the victim’s out-of-court and in-court

identifications. Instead, he argues that his pretrial, appointed counsel was

ineffective for (1) failing to “raise[] the [identification] issue pretrial” and (2)

failing to “obtain the necessary documentation and elicit the necessary

testimony in pretrial depositions to ferret out the issues for a proper pretrial

presentation to the trial court.” (Doc. 1 at 14.) Melady also contends that

counsel should have sought “the aid of an expert on eyewitness testimony or

on eyewitness identification to testify either pretrial or at trial about the

inherent unreliability of identification, especially when the identifying

witness observed the perpetrator for less than 5 seconds, under stress and

through a door.” (Id. at 14-15.)

The state postconviction court rejected Melady’s ineffective-assistance

claim as “meritless and refuted by the record.” (Doc. 8-2, Ex. 29, at 3.) The

court held that, “[t]o the extent [Melady] claim[ed] his appointed counsel

failed to file a motion to suppress,” he was not “prejudiced” because “his hired

6 The court separately rejected Melady’s argument that the in-court identification must be

suppressed because, before trial began, the prosecutor allegedly “brought [the victim] into

the courtroom” and “pointed [Melady] out [to her] at that point.” (Doc. 8-2, Ex. 14, at 137-

38, 179; id., Ex. 15, at 207.)

counsel filed a motion to suppress both [the] in court and out of court

identification[s] of [him], on the very basis [he] claim[ed] that counsel should

have filed such a motion.” (Id.) Moreover, as just noted, the trial court denied

Melady’s request to suppress the identifications, thus refuting his assertion

“that the motion would have been successful.” (Id.)

The rejection of this claim was reasonable.7 Specifically, Melady failed

to establish a “reasonable probability that the outcome of his suppression

[motion] . . . would have been different” if pretrial counsel had taken the

steps he identifies. Waldrip v. Humphrey, 532 F. App’x 878, 886 (11th Cir.

2013) (internal quotation marks omitted). As noted above, Melady contends

that pretrial counsel failed to “obtain the necessary documentation and elicit

the necessary testimony in pretrial depositions to ferret out the issues for a

proper pretrial presentation to the trial court.” (Doc. 1 at 14.) But Melady

provides no specifics about the “documentation” or “testimony” that he

believes pretrial counsel should have obtained. Nor does he explain how

further investigation would have bolstered his efforts to suppress the

identifications. Simply put, Melady’s “[c]onclusory allegations of ineffective

assistance are insufficient.” Wilson v. United States, 962 F.2d 996, 998 (11th

7 Respondent contends that Melady did not exhaust his claim concerning counsel’s alleged

failure to seek suppression of the in-court identification. (Doc. 8 at 20-21.) The Court need

not decide whether this claim is procedurally defaulted because it fails on the merits. See

Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip over the

procedural default analysis if a claim would fail on the merits in any event.”).

Cir. 1992); see also Philpot v. United States, No. 20-CR-60086-RAR, 2023 WL

4560878, at *6 (S.D. Fla. July 17, 2023) (holding that “[m]ovant [] failed to

show that his defense counsel was ineffective in failing to prepare for his

suppression hearing” because there was “no evidence that additional

investigation would have uncovered evidence” that could have affected

outcome of motion to suppress); Savery v. Sec’y, Dep’t of Corr., No. 6:09-cv-

810-GAP-DAB, 2010 WL 4683773, at *12 (M.D. Fla. Nov. 10, 2010) (“To the

extent that Petitioner alleges that counsel should have discovered additional

exculpatory evidence, this claim is conclusory and cannot maintain a claim

for ineffective assistance of counsel.”).

Melady also failed to establish “a reasonable probability that, but for

counsel’s [failure to hire an expert on eyewitness identifications], the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. The

burden of establishing prejudice under Strickland “is particularly heavy

where the petitioner alleges ineffective assistance in failing to call a witness

because often allegations of what a witness would have testified to are largely

speculative.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1365 (11th

Cir. 2021) (internal quotation marks omitted). For that reason, “a petitioner’s

own assertions about whether and how a witness would have testified are

usually not enough to establish prejudice from the failure to interview or call

that witness.” Id.

Here, Melady simply asserts, without explanation, that “it was

incumbent on [c]ounsel to seek the aid of an expert on eyewitness testimony

or on eyewitness identification to testify either pretrial or at trial about the

inherent unreliability of identification.” (Doc. 1 at 14.) Melady provides no

additional information about the substance of the proposed expert testimony.

And he offers no basis to conclude that an expert would testify that the

victim’s identification in this case was unreliable. “Without some specificity

as to the proposed expert’s testimony, any assertion that an expert would

testify consistently with [Melady’s] claims is mere speculation and does not

entitle him to habeas relief.” Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848,

852 (11th Cir. 2016). Accordingly, Melady failed to establish that counsel was

ineffective for failing to retain an expert witness. See Holt v. Sec’y, Fla. Dep’t

of Corr., 489 F. App’x 336, 338 (11th Cir. 2012) (holding that state court

reasonably rejected Strickland claim because “[i]t [was] speculative that an

expert witness would in fact have testified” the way petitioner wanted);

Moore v. Sec’y, Fla. Dep’t of Corr., No. 3:06-cv-127-MMH, 2022 WL 4133198,

at *23 (M.D. Fla. Sept. 12, 2022) (“[Petitioner’s] claim about the testimony of

expert witnesses is speculative because he does not specify the substance of

the proposed experts’ testimony, and he presumes the experts would have

testified favorably to the defense.”).

For all these reasons, Ground Two is denied.8

Ground Three

Melady contends that pretrial counsel was ineffective for failing to

“properly advise” him about the prosecution’s “initial plea offers.” (Doc. 1 at

15.) Specifically, he alleges that during his arraignment, the prosecutor

“offered to resolve the pending matters” for a prison term of “44.4 months.”

(Id. at 16.) According to Melady, had counsel “informed [him] of the pros and

cons of the plea” offer, he “would have received a 44.4-month sentence, not a

360-month sentence.” (Id. at 18.) Melady also faults counsel for not “making

any formal written plea offers before trial.” (Id. at 15.)

During the arraignment, the prosecutor indicated that “right now,” the

“bottom of the guidelines [for Melady] was 44.4” months. (Doc. 8-2, Ex. 3, at

5.) The prosecutor clarified that he had said “right now” because Melady

“qualif[ied] for habitual offender” in light of his “prior burglary convictions,”

and might “qualify for other enhancements” as well. (Id. at 5-6.) The trial

court then asked, “The brass tacks today if he wanted to resolve it, it’s 48

months?” (Id.) The prosecutor answered, “44.4.” (Id.) After outlining Melady’s

options at this stage of the proceedings, the court indicated that “we need to

8 Melady appears to fault the state postconviction court for rejecting Grounds Two and

Three “without a response from the State or a hearing.” (Doc. 1 at 13, 15.) It is well

established, however, that “an alleged defect in a collateral proceeding does not state a

basis for habeas relief.” Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004).

get a trial set because it doesn’t seem like there’s any way to resolve the

case.” (Id. at 7.) Melady told the court that he was “not guilty on this

burglary” and offered to “take a polygraph test” to prove his innocence. (Id. at

8.)

At the first pretrial hearing, the prosecutor reiterated that Melady

“score[d] 44.4 months, the bottom of the guidelines.” (Id., Ex. 5, at 3.) The

State subsequently filed a notice of enhanced penalty, stating that Melady

qualified as a habitual felony offender and violent career criminal. (Id., Ex.

6.) At a subsequent pretrial hearing, the court asked the State “what [it was]

seeking in Mr. Melady’s case if he wanted to resolve it.” (Id., Ex. 9, at 3.) The

prosecutor responded, “Judge, he’s an HO and VCC. At this time there has

not been a written offer made.” (Id.)

At the final pretrial hearing, the court asked the State whether it was

“willing to make any deals today.” (Id., Ex. 12, at 12.) The prosecutor said,

“No, Your Honor.” (Id.) Melady subsequently claimed that he had told counsel

“multiple times” that he would “take . . . two years here and end it,” but that

counsel “never told the State” about his offer. (Id. at 13.) The court

responded:

Well, probably because [counsel] realized that somebody

designated as a violent career criminal by the State of Florida

would never get a two-year disposition from the State of Florida.

Like you have a better chance of winning the Power Ball lottery

than you do getting them to agree to a two-year DOC sentence on

a 30-year felony VCC designation.

And I know that based on 20 years of being here in the Sixth

Circuit. And as do[] pretty much all the attorneys here know that

[the State Attorney] would never agree to that. I’m not saying it’s

not right or wrong. It doesn’t matter. I just know that he wouldn’t

agree to it, and he has to sign off on that, and he simply wouldn’t

do that, based on 20 years of watching this.

(Id. at 13-14.) The prosecutor confirmed that the State Attorney would have

to approve any plea deal for less than the thirty-year mandatory minimum.

(Id. at 14.) He also stated that any offer “would probably be 10 to 15” given

that Melady had “done five years DOC before” and had “multiple burglaries

in his past.” (Id. at 14-15.) The court indicated that trial would begin “on

Monday” and asked Melady whether he had “any questions.” (Id. at 15.)

Melady said he did not. (Id. at 16.)

As noted above, Melady claims that counsel was ineffective for failing

to “properly advise” him concerning the prosecution’s “initial plea offers.”

(Doc. 1 at 15.) He contends that “[t]he record is abundantly clear” that he

received a “44-month offer” at his arraignment, and that but for counsel’s

deficient performance, “he would have accepted the 44-month offer . . . rather

than risk a 30-year sentence.” (Doc. 9 at 10-11.) He also claims that counsel

was ineffective for “not making any formal written plea offers before trial.”

(Doc. 1 at 15.)

The state postconviction court rejected this claim, finding that Melady

failed to establish that he “rejected a plea offer based on misadvice.” (Doc. 8-

2, Ex. 29, at 5.) The court explained that, to prevail on this claim, Melady was

required to “demonstrate a reasonable probability” that “(1) he [] would have

accepted the offer had counsel advised [him] correctly, (2) the prosecutor

would not have withdrawn the offer, (3) the court would have accepted the

offer, and (4) the conviction or sentence, or both, under the offer’s terms

would have been less severe than under the judgment and sentence that in

fact were imposed.” (Id. (citing Alcorn v. State, 121 So. 3d 419, 422 (Fla.

2013).)

The court found that Melady failed to satisfy the second prong of this

test—namely, that “the prosecutor would not have withdrawn the offer.” (Id.)

According to the court, “there was never a written offer from the State, and

during multiple pretrial hearings the State appeared to waver on its

certainty regarding its ability to offer the bottom of the guidelines based upon

[Melady’s] criminal history.” (Id.) Citing the transcript of the final pretrial

hearing, the court found that “not only had the State not formally extended []

[a 44-month] offer, but also, if ever such an offer was extended in passing, not

formally or finalized, it would have certainly been withdrawn by the State.”

(Id. at 6.)

The rejection of this claim was reasonable. “[C]laims of ineffective

assistance of counsel in the plea bargain context are governed by the two-part

test set forth in Strickland.” Missouri v. Frye, 566 U.S. 134, 140 (2012). To

establish prejudice in the context of a failed plea bargain, the petitioner must

show that, “but for the ineffective assistance of counsel, a reasonable

probability existed that: (1) the plea offer would have been presented to the

court (i.e. the [petitioner] would have accepted the plea and the prosecution

would not have withdrawn it in light of intervening circumstances); (2) the

court would have accepted its terms; and (3) under the offer’s terms, the

conviction or sentence, or both, would have been less severe than under the

judgment and sentence that were, in fact, imposed.” Carmichael v. United

States, 966 F.3d 1250, 1259 (11th Cir. 2020).

Even assuming that the State made a 44-month offer during the

arraignment, Melady cannot show “a reasonable probability that the

prosecution would have adhered to” that offer. Frye, 566 U.S. at 150. Florida

law “authorizes the prosecutor to withdraw a plea offer at any time before it

is formally accepted by the trial judge.” Alcorn, 121 So. 3d at 430; see also

Mitchell v. State, 197 So. 3d 1271, 1273 (Fla. 2d DCA 2016) (“In Florida, trial

courts and prosecutors have the discretion to withdraw a plea offer.”). At the

final pretrial hearing, the prosecutor represented that (1) the State Attorney

would have to approve any plea offer for less than the thirty-year mandatory

minimum, and (2) such an offer “would probably be [for] 10 to 15 [years]” in

light of Melady’s criminal history. (Doc. 8-2, Ex. 12, at 14-15.) There is no

indication that the State Attorney approved a 44-month offer in Melady’s

case. Thus, the state postconviction court reasonably concluded that, to the

extent such an offer ever existed, “it would have certainly been withdrawn by

the State.” (Id. at 6; see also Diep Vu Ho v. United States, No. 19-12321-F,

2019 WL 9096027, at *1 (11th Cir. Dec. 3, 2019) (rejecting ineffective-

assistance claim because defendant “failed to show that, even if [the

government] had [made a favorable plea offer], [it] would not have withdrawn

the plea, as it was an ‘enormous, and random, departure—not only from his

proper guideline sentencing range—but also from [the U.S. Attorney’s

Office’s] practice’”); Preston v. Sec’y, Dep’t of Corr., No. 17-14618-H, 2018 WL

8061783, at *4 (11th Cir. Nov. 16, 2018) (“[T]he five-year offer to which

[petitioner] referred was an informal offer, and had not been approved by the

state prosecutor’s supervisor, and, therefore, [petitioner] could not show that

there was a reasonable probability that the five-year offer would have been

presented to the court.”).)

Because Melady failed to establish prejudice, the state postconviction

court reasonably rejected his ineffective-assistance claim. Ground Three is

denied.9

Ground Four

Melady contends that pretrial counsel was ineffective for failing to “file

[a] proper notice of alibi.” (Doc. 1 at 19.) In his Rule 3.850 motion, Melady

elaborated on this claim, alleging that two potential alibi witnesses—

Kimberly Larson and Melady’s sister, Kayle Melady—“would have testified to

[Melady] being at a location other than the victim’s alleged address.” (Doc. 8-

2, Ex. 28, at 13.) According to Melady, counsel’s failure to file a notice of alibi

precluded him from calling these two witnesses and “forced [him] to testify to

advance his [d]efense.” (Doc. 1 at 19.)

The state postconviction court rejected this ineffective-assistance claim.

As for Kayle Melady, the court noted that counsel “spoke on the record about

his decision not to call” her at trial. (Doc. 8-2, Ex. 29, at 4.) Specifically,

counsel stated that, although Melady sometimes “stayed” at Kayle’s house,

she could not “identify a certain date other than she knew he was there a day

to remove her washer and dryer.” (Id., Ex. 14, at 181.) Thus, counsel

9 To the extent that Melady faults counsel for not making an unspecified “formal written”

plea offer, his claim fails because he does not show that “the outcome of the plea process

would have been different” had counsel made an offer. Lafler v. Cooper, 566 U.S. 156, 163

(2012).

“worried” that if he called Kayle, the jury would think he was “trying to pull a

fast one over them.” (Id. at 183.) The state postconviction court “interpret[ed]

th[ese] statement[s] as counsel making a strategic decision not to call Kayle

Melady, even had the appropriate paperwork been previously filed.” (Id., Ex.

29, at 4.) Thus, the court concluded that counsel was not ineffective “for

fail[ing] to call and investigate this witness.” (Id.)

As for Kimberly Larson, the court found that, based on her deposition

testimony, she “would not have provided exculpatory evidence.” (Id., Ex. 33,

at 4.) In her deposition, Larson testified that she did not know anything

about Melady’s whereabouts on the day of the burglary. (Id., Ex. 11, at 5.)

She also stated, “I don’t know nothing about this case.” (Id. at 7.) Based on

this testimony, the court found that Melady had not “demonstrated that

counsel was deficient” for failing to call Larson at trial. (Id., Ex. 33, at 4.)

The state postconviction court acted reasonably in rejecting this claim.

“Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that [courts] will seldom, if ever, second

guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995); see also Ball v.

United States, 271 F. App’x 880, 884 (11th Cir. 2008) (“Trial counsel’s

decisions with regard to [defendant’s] alibi witnesses were quintessential

trial strategy.”). “[T]o show that counsel’s performance was unreasonable, the

petitioner must establish that no competent counsel would have taken the

action that his counsel did take.” Grayson v. Thompson, 257 F.3d 1194, 1216

(11th Cir. 2001). “Even if many reasonable lawyers would not have done as

defense counsel did at trial, no relief can be granted on ineffectiveness

grounds unless it is shown that no reasonable lawyer, in the circumstances,

would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

The state postconviction court reasonably concluded that counsel was

not deficient for failing to file a notice of alibi or otherwise pursue an alibi

defense. As the court explained, the two proposed alibi witnesses—Larson

and Kayle Melady—would not have been able to provide alibis for Melady.

Thus, counsel was not ineffective for failing to take steps to present their

testimony at trial. See Rizo v. United States, 662 F. App’x 901, 914 (11th Cir.

2016) (“[I]t was not unreasonable for [counsel] to conclude pursuit of a

potential alibi defense would likely be fruitless[.]”).

Ground Four is denied.

Ground Five

Melady raises a freestanding claim of actual innocence, arguing that

the “full brea[d]th” of his defense would establish “that [he] was someplace

else at the time of the alleged crime.” (Doc. 1 at 20-21.) Eleventh Circuit

“precedent forecloses habeas relief based on a prisoner’s assertion that he is

actually innocent of the crime of conviction absent an independent

constitutional violation occurring in the underlying state criminal

proceeding.” Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019)

(internal quotation marks omitted); see also Cunningham v. Dist. Attorney’s

Office, 592 F.3d 1237, 1273 (11th Cir. 2010) (“[An] assertion of actual

innocence, by itself, is not enough.”). Because Melady fails to establish “an

independent constitutional claim, his freestanding actual innocence claim is

not cognizable” on federal habeas review. Collins v. Sec’y, Dep’t of Corr., 809

F. App’x 694, 696 (11th Cir. 2020). Thus, Ground Five is denied.10

Motion for Discovery

Finally, Melady has filed a motion for discovery, seeking permission to

“issue subpoenas for records from Facebook, Google, and Yahoo and any other

follow up subpoenas required to obtain IP address information.” (Doc. 17 at 1-

2.) Melady contends that the requested subpoenas would help “identify

certain internet activities [he] was engaged in at the time the alleged incident

occurred.” (Id. at 1.) According to Melady, this evidence would be “vital to the

[] pending actual innocence claim [] in this matter.” (Id.)

“A habeas petitioner, unlike the usual civil litigant in federal court, is

not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley,

10 In his reply, Melady raises for the first time a claim of cumulative error. (Doc. 9 at 12.)

The Court “need not consider [] new claims raised for the first time in” Melady’s reply.

Foreman v. Sec’y, Fla. Dep’t of Corr., No. 3:19-cv-575-TJC-JBT, 2022 WL 3282652, at *13

(M.D. Fla. Aug. 11, 2022). Regardless, the cumulative-error claim fails because none of

Melady’s “individual claims of error” has “any merit.” Morris v. Sec’y, Dep’t of Corr., 677

F.3d 1117, 1132 (11th Cir. 2012).

520 U.S. 899, 904 (1997). Still, “[a] judge may, for good cause, authorize a

party to conduct discovery under the Federal Rules of Civil Procedure and

may limit the extent of discovery.” Rule 6(a), Rules Governing § 2254 Cases.

Good cause may be established where “specific allegations before the court

show reason to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520

U.S. at 908-09.

Melady is not entitled to the requested discovery. According to Melady,

the subpoenas would allow him to support his “pending actual innocence

claim.” (Doc. 17 at 1.) But, as noted above, this Court cannot grant “habeas

relief based on a prisoner’s assertion that he is actually innocent of the crime

of conviction absent an independent constitutional violation occurring in the

underlying state criminal proceeding.” Raulerson, 928 F.3d at 1004 (internal

quotation marks omitted). Thus, “[t]here is no good cause to allow for

discovery, because even if evidence of actual innocence is found, it would not

provide [Melady] relief due to the fact he has failed to establish an

independent constitutional violation in his underlying state court

proceedings.” Roundtree v. Inch, No. 19-61208-CV, 2020 WL 8458863, at *11

(S.D. Fla. Nov. 25, 2020), adopted by 2021 WL 266280 (S.D. Fla. Jan. 27,

2021); see also Braswell v. Phillips, No. 2:19-cv-02362-TLP-TMP, 2022 WL

696812, at *12 (W.D. Tenn. Mar. 8, 2022) (“Because a freestanding claim of

actual innocence is not cognizable, Petitioner has no basis to obtain discovery

to support such a claim.”). For this reason, the request to conduct discovery is

denied.11

Conclusion

Accordingly, it is ORDERED that Melady’s petition (Doc. 1) is

DENIED. Melady’s motion for discovery (Doc. 17) is also DENIED. The

CLERK is directed to enter judgment against Melady and to CLOSE this

case.

It is further ORDERED that Melady is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. 28 U.S.C.

§ 2253(c)(1). Rather, a court must first issue a certificate of appealability. To

obtain a certificate of appealability, Melady must show that reasonable

jurists would find debatable both (1) the merits of the underlying claims and

(2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Melady has not made the requisite

11 Melady seeks an evidentiary hearing on his claims. The Court concludes that an

evidentiary hearing is not warranted. See Schriro, 550 U.S. at 474 (stating 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”); Landers v. Warden, 776 F.3d

1288, 1295 (11th Cir. 2015) (“[B]efore a habeas petitioner may be entitled to a federal

evidentiary hearing on a claim that has been adjudicated by the state court, he must

demonstrate a clearly established federal-law error or an unreasonable determination of

fact on the part of the state court, based solely on the state court record.”).

showing. Accordingly, a certificate of appealability is DENIED. Leave to

appeal in forma pauperis is DENIED. Melady must obtain permission from

the circuit court to appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida, this 14th day of November,

2028.

TOM BARBER

UNITED STATES DISTRICT JUDGE

36