Pollock v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBERT J. POLLOCK,

Applicant,

v. CASE NO. 8:21-cv-1665-SDM-CPT

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Pollock applies (Doc. 1) under 28 U.S.C. § 2254 for the writ of habeas corpus

and challenges his conviction for murder in the second degree, for which he is

imprisoned for thirty years. Numerous exhibits (“Respondent’s Exhibit”) support the

response. (Doc. 12) The respondent admits the application’s timeliness (Response at 2,

Doc. 12) but argues that some grounds are unexhausted and procedurally barred from

federal review.

I. BACKGROUND1

Based on information received from Larry Hummel, Tampa Police Department

Detective Eric Houston researched both a foreclosed residence and two possible

suspects (Robert Pollock and Dorsey France) regarding the disappearance of Nicki

1 This summary of the facts derives from Pollock’s brief on direct appeal. (Respondent’s Exhibit

28 at 1–2)

Hendriex. After unsuccessfully attempting to locate Hendriex, Detective Houston

spoke with Tamela Cagle and later decided to investigate the residence with the

permission of the bank that owned the property. At the residence Detective Houston

recovered a spent bullet from the bathroom and a K9 alerted on a slab of concrete in the

backyard. The detective later returned and, after the slab was broken apart, began

digging until he smelled what he believed to be the odor of a decomposing body. The

detective halted the dig until additional equipment could uncover and remove the body.

A medical examiner took the body to the medical examiner’s office, and a bullet was

removed from the head of the body during the autopsy. A fingerprint analysis

determined the body was Nicki Hendriex.

About one month later Pollock was arrested and charged with second degree

murder with a firearm based on Detective Houston’s conclusion that Pollock shot

Hendriex in the head after a confrontation in the bathroom and buried her in the

backyard. Detective Houston based these conclusions on statements from witnesses

who attested that Pollock had admitted to killing Hendriex.

A jury found Pollock guilty but the conviction was reversed and remanded after

the Second District Court of Appeal found Pollock’s appellate counsel was ineffective.

Pollock v. State, 64 So. 3d 695 (Fla. 2d DCA). At a re-trial a second jury found Pollock

guilty of second-degree murder with a firearm, and he was sentenced to the current

term of imprisonment of thirty years.

Pollock alleges twelve grounds for relief. The respondent argues that most of the

grounds are unexhausted and procedurally barred from federal review.

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that Grounds One through Five, Eight, and Ten through

Twelve are procedurally barred from federal review, primarily because Pollock failed to

fully exhaust his available state court remedies. An applicant must present each claim

to a state court before presenting the claim to a federal court. “[E]xhaustion of state

remedies requires that petitioners ‘fairly presen[t]’ federal claims to the state courts in

order to give the State the ‘opportunity to pass upon and correct’ alleged violations of

its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard

v. Connor, 404 U.S. 270, 275 (1971)); accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982)

(“A rigorously enforced total exhaustion rule will encourage state prisoners to seek full

relief first from the state courts, thus giving those courts the first opportunity to review

all claims of constitutional error.”). “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.” Baldwin v. Reese, 541 U.S. 27, 32 (2004)

(citing Duncan).

Grounds One through Five:

Pollock alleges that the trial court erred (1) by allowing both evidence of his

behavior and statements and evidence of his uncharged crimes (Grounds One and Two)

and (2) by denying motions for a judgment of acquittal and for a new trial (Grounds

Three and Four). Also, Pollock alleges that the post-conviction court erred by not

granting a new trial based on newly discovered evidence (Ground Five).

The respondent correctly argues that Pollock failed to “fairly present” these

grounds to the state courts because he failed to present each claim as a federal question,

that is, he failed to “federalize” the claims. Pollock presented claims similar to

Grounds One through Four on direct appeal and similar to Ground Five on the appeal

from the denial of post-conviction relief but he presented each claim as an abuse of

discretion under state law and not as the violation of a federally protected right. The

exhaustion requirement is not met if a defendant fails to alert the state appellate court

that the trial court allegedly violated a federally protected right. As Reese explains,

541 U.S. at 32, an applicant must alert the state court that he is raising a federal law

claim and not just a state law claim.

A litigant wishing to raise a federal issue can easily indicate the

federal law basis for his claim in a state-court petition or brief, for

example, by citing in conjunction with the claim the federal source

of law on which he relies or a case deciding such a claim on

federal grounds, or by simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support the federal

claim were before the state courts, or that a somewhat similar state-law claim was

made.” Anderson v. Harless, 459 U.S. 4, 6 (1982); see also Kelley v. Sec’y for Dep’t of Corr.,

377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a habeas

applicant to do more than scatter some makeshift needles in the haystack of the state

court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir.

1995) (“[T]he applicant must have fairly apprised the highest court of his state with the

appropriate jurisdiction of the federal rights which allegedly were violated.”). An

applicant must present to the state court the same claim presented to the federal court.

Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state prisoner to present the

state courts with the same claim he urges upon the federal courts.”). “[M]ere similarity

of claims is insufficient to exhaust.” Duncan, 513 U.S. at 366. Grounds One through

Five are unexhausted and not entitled to a review on the merits unless Pollock shows

entitlement to an exception to the exhaustion requirement, as discussed below.

Ground Eight:

Pollock alleges that trial counsel rendered ineffective assistance by not

impeaching Detective Houston with prior inconsistent statements. Pollock asserted this

claim in his amended Rule 3.850 motion (Respondent’s Exhibit 35 at 42–43), and the

post-conviction court summarily denied this claim (Respondent’s Exhibits 34 at 8 and

36 at 13–14) because Pollock failed to meet the prejudice requirement. Pollock did not

include this claim in his opening brief on the appeal from the denial of his motion for

post-conviction relief. Consequently, Pollock failed to “fairly present” this claim to the

state appellate court. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (“Boerckel’s

failure to present three of his federal habeas claims to the Illinois Supreme Court in a

timely fashion has resulted in a procedural default of those claims.”); Duest v. Dugger,

555 So. 2d 849, 851–52 (Fla. 1990) (“The purpose of an appellate brief is to present

arguments in support of the points on appeal[, and the failure to] further elucidate[ ] is

not suffic[ient] to preserve [an] issue[, which is] deemed to have been waived.”).

Ground Eight is unexhausted and not entitled to a review on the merits unless Pollock

shows entitlement to an exception to the exhaustion requirement, as discussed below.

Grounds Ten through Twelve:

Lastly, in his federal application Pollock alleges three grounds he has never

previously asserted. Pollock alleges (1) that the prosecutor both erroneously told the

jurors that France was a co-defendant and introduced evidence recovered from France’s

storage unit (Ground Ten) and (2) that trial counsel was ineffective for neither retaining

a ballistics expert witness nor “citing” a state witness as having acted as a government

informant (Grounds Eleven and Twelve). The respondent correctly asserts that these

grounds were never presented to a state court. In reply Pollock does not dispute the

respondent’s position but asserts his entitlement to review of these grounds as

authorized by Martinez v. Ryan, 566 U.S. 1 (2012). The applicability of Martinez is

discussed below in determining whether Pollock shows entitlement to an exception to

the exhaustion requirement.

* * * *

As determined above, Pollock procedurally defaulted Grounds One through Five

by not “federalizing” each ground in state court and Ground Eight by not raising it on

appeal. State procedural rules preclude Pollock from returning to state court to present

his federal claims in another appeal. See Fla. R. App. P. 9.140(b)(3). And Grounds

Ten through Twelve, which Pollock never presented to a state court, are deemed

procedurally defaulted. See Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (noting that if a

prisoner failed to present a federal claim to the state court and the state court would

dismiss the claim based on a procedural failure, the claim is technically exhausted

because, in the habeas context, “state-court remedies are . . . ‘exhausted’ when they are

no longer available, regardless of the reason for their unavailability.”) (quoting

Woodford v. Ngo, 548 U.S. 81, 92–93 (2006)); Snowden v. Singletary, 135 F.3d 732, 736

(11th Cir. 1998) (“[W]hen it is obvious that the unexhausted claims would be

procedurally barred in state court due to a state-law procedural default, we can forego

the needless ‘judicial ping-pong’ and just treat those claims now barred by state law as

no basis for federal habeas relief.”).

As a consequence, these grounds are barred from federal review absent a

showing of “actual cause and prejudice” or “manifest injustice.” See generally Coleman

v. Thompson, 501 U.S. 722, 747–51 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986).

The basis for “cause” must ordinarily reside in something external to the defense.

Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To show “prejudice,” the

applicant must show “not merely that the errors at his trial created the possibility of

prejudice, but that they worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.” Hollis v. Davis, 941 F.2d 1471,

1480 (11th Cir. 1991) (italics original) (quoting United States v. Frady, 456 U.S. 152, 170

(1982)).

Pollock argues that he shows “cause and prejudice” based on the negligence of

trial, appellate, and post-conviction counsel. Pollock must have exhausted the specific

claim that he argues excuses a procedural default, including whether counsel was

ineffective. “A showing of ineffective assistance of appellate counsel in failing to raise a

claim on direct appeal can constitute ‘cause’ so long as the ineffective assistance

‘occur[red] during a stage when a petitioner had a constitutional right to counsel’ and

the ineffective-assistance claim itself is ‘both exhausted and not procedurally

defaulted.’” Sealey v. Warden, Georgia Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir.

2020) (internal citations omitted); see also Edwards, v. Carpenter, 529 U.S. 446, 453 (2000)

(ruling that a federal habeas court is barred from considering a procedurally defaulted

“ineffective-assistance-of-counsel claim asserted as cause for the procedural default of

another claim” unless the applicant establishes “the cause-and-prejudice standard with

respect to” the ineffective assistance claim); Carrier, 477 U.S. at 488–89 (recognizing

that, if ineffective assistance of counsel is alleged as cause to excuse a procedural

default, the applicant must have presented the claim of ineffectiveness to the state

courts as an independent claim); Hill v. Jones, 81 F.3d 1015, 1030 (11th Cir. 1996)

(“[P]rocedurally defaulted claims of ineffective assistance cannot serve as cause to

excuse a default of a[nother] claim.”) (italics original)). Pollock never presented to the

state courts a claim of ineffective assistance of appellate counsel regarding the failure to

raise the direct appeal claims in Grounds One through Four, and he cannot argue

“cause” based on post-conviction appellate counsel’s (1) failing to “federalize” the

claim in Ground Five and (2) omitting the claim in Ground Eight because Pollock had

no right to counsel in a post-conviction appeal.

Alternatively, Pollock argues that, under Martinez, he shows “cause and

prejudice” based on the negligence of trial, appellate, and post-conviction counsel.

Pollock can rely on Martinez to establish cause for the procedural default of neither

Grounds One through Four (based on appellate counsel’s failure to “federalize” his

trial-court-error claims) nor Grounds Five and Eight (based on post-conviction

counsel’s omitting the claims on appeal) because Martinez applies only to a claim of

ineffective assistance of trial counsel –– not appellate counsel. Davila v. Davis, 582 U.S.

521, 531 (2017) (“In declining to expand the Martinez exception to the distinct context

of ineffective assistance of appellate counsel, we do no more than respect that

judgment.”). Additionally, Pollock’s claim in Ground Ten (that the prosecutor both

erroneously told the jurors that France was a co-defendant and introduced evidence

recovered from France’s storage unit) asserts no claim of ineffective assistance of trial

counsel. Consequently, the claim is beyond the reach of Martinez. On the other hand,

Grounds Eleven (trial counsel failed to retain a ballistics expert) and Twelve (trial

counsel failed to argue that a witness was a government informant) allege claims of

ineffective assistance of trial counsel. Affording his pro se papers a generous

interpretation, Pollock argues that post-conviction counsel provided ineffective

assistance by not asserting these two ineffective-assistance-of-trial-counsel claims. To

show entitlement to review under Martinez, Pollock must show that his claims are

“substantial,” which is a claim that has “some merit.” Martinez, 566 U.S. at 14.

Because the law governing ineffective assistance of counsel governs whether Pollock

can meet his burden of showing that his claims are “substantial,” Grounds Eleven and

Twelve are discussed further after the remaining grounds of ineffective assistance of

trial counsel.

As an alternative to showing “cause and prejudice,” Pollock must show that

dismissal of his procedurally defaulted grounds will result in a “fundamental

miscarriage of justice,” an especial difficulty because Pollock must demonstrate his

“actual innocence” of the crime of conviction. See Smith v. Murray, 477 U.S. 527, 537

(1986) (citing Murray v. Carrier, 477 U.S. at 496); see also Engle v. Isacc, 456 U.S. 107,

134–35 (1982). To meet the fundamental miscarriage of justice exception, Pollock must

show constitutional error coupled with “new reliable evidence — whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence — that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

This exception is not available unless “petitioner shows, as a factual matter, that he did

not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)

(denying a certificate of probable cause).

Pollock summarily asserts that he is “actually innocent” and that “fundamental

errors” have caused a “miscarriage of justice.” However, Pollock presents no “new

reliable evidence” that was both not presented at trial and shows he did not commit the

crime.

Pollock establishes neither “cause and prejudice” nor a “fundamental

miscarriage of justice.” Therefore, Grounds One through Five, Eight, and Ten are

procedurally barred from federal review and not entitled to a determination on the

merits. Whether Grounds Eleven and Twelve are entitled to a review on the merits

follows the discussion of Grounds Six, Seven, and Nine, which are entitled to a review

on the merits.

III. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.

1998). Section 2254(d), which creates a highly deferential standard for federal court

review of a state court adjudication, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim —

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

federal habeas court to grant a state prisoner’s application for a

writ of habeas corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ may issue only if

one of the following two conditions is satisfied — the state court

adjudication resulted in a decision that (1) “was contrary to . . .

clearly established Federal Law, as determined by the Supreme

Court of the United States” or (2) “involved an unreasonable

application of . . . clearly established Federal law, as determined

by the Supreme Court of the United States.” Under the “contrary

to” clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by this Court

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

than this Court has on a set of materially indistinguishable facts.

Under the “unreasonable application” clause, a federal habeas

court may grant the writ if the state court identifies the correct

governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s

case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “To meet that standard,

a prisoner must show far more than that the state court’s decision was ‘merely wrong’

or ‘even clear error.’” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (quoting Virginia v.

LeBlanc, 582 U.S. 91, 94 (2017)). “As a condition for obtaining habeas corpus from

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

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

well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see White v.

Woodall, 572 U.S. 415, 427 (2014) (“The critical point is that relief is available under

§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a

clearly established rule applies to a given set of facts that there could be no ‘fairminded

disagreement’ on the question . . . .”) (citing Richter); Woods v. Donald, 575 U.S. 312,

316 (2015) (“And an ‘unreasonable application of ’ those holdings must be objectively

unreasonable, not merely wrong; even clear error will not suffice.”) (citing Woodall,

572 U.S. at 419); accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the

objective reasonableness, not the correctness per se, of the state court decision that we

are to decide.”). The phrase “clearly established Federal law” encompasses only the

holdings of the United States Supreme Court “as of the time of the relevant state-court

decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in order

to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given

effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal court must

afford due deference to a state court’s decision. “AEDPA prevents defendants — and

federal courts — from using federal habeas corpus review as a vehicle to second-guess

the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010); see

also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,’ . . . and

‘highly deferential standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt’ . . . .”) (citations omitted).

When the last state court to decide a federal claim issues a reasoned and

explanatory opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 584 U.S.

122, 125 (2018) (“[A] federal habeas court simply reviews the specific reasons given by

the state court and defers to those reasons if they are reasonable.”). When the relevant

state-court decision is not accompanied with reasons for the decision, 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, 584 U.S. at 125. The State may contest “the

presumption by showing that the unexplained affirmance relied or most likely did rely

on different grounds than the lower state court’s decision . . . .” Wilson, 584 U.S. at

125.

In a per curiam decision without a written opinion the state appellate court on

direct appeal affirmed Pollock’s convictions and sentence. (Respondent’s Exhibit 31)

Similarly, in another per curiam decision without a written opinion the state appellate

court affirmed the denial of Pollock’s Rule 3.850 motion for post-conviction relief.

(Respondent’s Exhibit 42) The state appellate court’s per curiam affirmances warrant

deference under Section 2254(d)(1) because “the summary nature of a state court’s

decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,

1254 (11th Cir. 2002); see also Richter, 562 U.S. at 100 (“When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that

the state court adjudicated the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.”); Bishop v. Warden, 726 F. 3d 1243,

1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or “analysis”

and a “decision” or “ruling” and explaining that deference is accorded the state court’s

“decision” or “ruling” even absent an “opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the state court record:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on

the merits. Section 2254(d)(1) refers, in the past tense, to a state-

court adjudication that “resulted in” a decision that was contrary

to, or “involved” an unreasonable application of, established law.

This backward-looking language requires an examination of the

state-court decision at the time it was made. It follows that the

record under review is limited to the record in existence at that

same time, i.e., the record before the state court.

Pollock bears the burden of overcoming by clear and convincing evidence a state court’s

fact determination. “[A] determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

This presumption of correctness applies to a finding of fact but not to a mixed

determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001).

The state post-conviction court’s rejection of Pollock’s claims warrants deference in this

federal action. (Order Denying Motion for Post-Conviction Relief, Respondent’s

Exhibits 36 and 38) Pollock’s remaining grounds of ineffective assistance of counsel are

the same grounds that he presented to the state courts.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Pollock claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386

(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective

assistance of counsel claim, as Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),

explains:

The law regarding ineffective assistance of counsel claims is well

settled and well documented. In Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court

set forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

An applicant must prove both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its two

grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690.

Strickland requires that “in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance.” Strickland,

466 U.S. at 690.

Pollock must demonstrate that counsel’s alleged error prejudiced the defense

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

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden, Pollock 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.” Strickland, 466 U.S. at 694.

See Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1041–42 (11th Cir. 2022) (en

banc) (brackets original) (“Applying AEDPA to Strickland’s prejudice standard, we

must decide whether the state court’s conclusion that [counsel’s] performance . . .

didn’t prejudice [petitioner] — that there was no substantial likelihood of a different

result — was so obviously wrong that its error lies beyond any possibility for fairminded

disagreement.”) (internal quotation marks omitted).

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on investigation.”

466 U.S. at 690–91. As Dunn v. Reeves, 594 U.S. 731, 739 (2021) (italics original),

explains, deference is to both counsel’s and the state court’s decisions, recognizing that

counsel decides strategic options based on both limited resources and limited time.

[W]e owe deference to both Reeves’ counsel and the state court.

As to counsel, we have often explained that strategic decisions —

including whether to hire an expert — are entitled to a “strong

presumption” of reasonableness. Harrington v. Richter, 562 U.S. 86,

104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). Defense lawyers

have “limited” time and resources, and so must choose from

among “ ‘countless’ ” strategic options. Id., at 106–107, 131 S. Ct.

770. Such decisions are particularly difficult because certain tactics

carry the risk of “harm[ing] the defense” by undermining

credibility with the jury or distracting from more important issues.

Id., at 108, 131 S. Ct. 770.

And White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992), explains that Pollock

cannot meet his burden merely by showing that the avenue chosen by counsel proved

unsuccessful.

The test has nothing to do with what the best lawyers would have

done. Nor is the test even what most good lawyers would have

done. We ask only whether some reasonable lawyer at the trial

could have acted, in the circumstances, as defense counsel acted at

trial . . . . We are not interested in grading lawyers’ performances;

we are interested in whether the adversarial process at trial, in fact,

worked adequately.

Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the

obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable . . . . [T]he issue is not what is

possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Under Section 2254(d) Pollock must prove that the state court’s decision

“(1) [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) [was]

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

in the State court proceeding.” Sustaining a claim of ineffective assistance of counsel is

very difficult because “[t]he standards created by Strickland and § 2254(d) are both

‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter,

562 U.S. at 105; see also Reeves, 594 U.S. at 739 (“This analysis is ‘doubly deferential’

when, as here, a state court has decided that counsel performed adequately.”);

Pinholster, 563 U.S. 202 (An applicant must overcome this “‘doubly deferential’

standard of Strickland and the AEDPA.”); Nance v. Warden, Ga. Diag. Prison, 922 F.3d

1298, 1303 (11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which

an ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t of

Corr., 643 F.3d 907, 911 (11th Cir. 2011)); 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.”). “And in reviewing

the work of their peers, federal judges must begin with the ‘presumption that state

courts know and follow the law.’ Or, in more concrete terms, a federal court may grant

relief only if every ‘fairminded juris[t]’ would agree that every reasonable lawyer would

have made a different decision.” Reeves, 594 U.S. at 739–40 (quoting both Woodford v.

Visciotti, 537 U.S. 19, 24 (2002), and Richter, 562 U.S. at 101) (italics and brackets

original).

In summarily denying Pollock’s motion for post-conviction relief, the state court

recognized that Strickland governs a claim of ineffective assistance of counsel.

(Respondent’s Exhibit 34 at 2) Because the state court rejected the grounds based on

Strickland, Pollock cannot meet the “contrary to” test in Section 2254(d)(1). Pollock

instead must show that the state court unreasonably applied Strickland or unreasonably

determined the facts. In determining “reasonableness,” the statute limits federal review

to determining only “whether the state habeas court was objectively reasonable in its

Strickland inquiry,” not independently assessing whether counsel’s actions were

reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001). The

presumption of correctness and the highly deferential standard of review requires that

the analysis of each ground begin with the state court’s analysis.

Ground Six:

Pollock alleges that trial counsel was ineffective for not impeaching Tamila

Cagle, who was the main witness against him, with her many prior statements that

Pollock contends were inconsistent with her trial testimony. Pollock identifies eleven

statements during trial (labeled as A–K) that he contends were inconsistent with

twenty-nine prior statements. The response includes a detailed chart that aligns the

alleged inconsistent statements with Cagle’s trial testimony. (Doc. 12 at 23–25)

The post-conviction court thoroughly analyzed each alleged inconsistent

statement and summarily denied relief based on the statements labeled D–G and J–K.

(Respondent’s Exhibit 36 at 7–12) After considering the state’s response to the

remaining prior statements, the post-conviction court concurred with the respondent’s

argument that the statements were either not inconsistent or not prejudicial.

(Respondent’s Exhibit 38)2

As stated above, “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable,” Strickland,

466 U.S. at 690–91, and deference is afforded to both counsel’s and the state court’s

decisions. Reeves, 594 U.S. at 739. Counsel’s decision to cross-examine and his manner

of cross-examining are strategic decisions entitled to deference. Dorsey v. Chapman, 262

F.3d 1181, 1185–86 (11th Cir. 2001). The only question is whether counsel’s strategic

decision was “reasonable.” Minton v. Sec’y, Dep’t of Corr., 271 F. App’x 916, 918 (11th

2 The pages in the order are not numbered but are identified as pages 316–21 in EM/ECF.

Cir. 2008) (“The Supreme Court has ‘declined to articulate specific guidelines for

appropriate attorney conduct and instead has emphasized that the proper measure of

attorney performance remains simply reasonableness under prevailing professional

norms.’”) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003). The post-conviction

court’s determinations –– (1) that the few statements that were inconsistent were not

prejudicial and (2) that counsel’s strategic decisions regarding cross-examination were

reasonable –– are not an unreasonable application of Strickland. Consequently, Pollock

is not entitled to relief based on Ground Six.

Ground Seven:

Pollock alleges that trial counsel was ineffective for not introducing into evidence

recorded telephone calls by France while he was in jail, which calls implicated him as

the person who committed the murder. The post-conviction court determined that the

recordings of the telephone calls were inadmissible (Exhibit 38 at 322–23) (reference to

record omitted):

Defendant has not alleged any hearsay exception under which the

calls could have been admitted as evidence at trial. See

§ 90.804(2), Fla. Stat. Moreover, the content of the calls, as alleged

by Defendant, appears to be consistent with Ms. Cagle’s testimony

that Defendant killed the victim because, in part, of how the

victim treated Mr. France, and consistent [with] her testimony that

Mr. France knew the victim was dead because Defendant told her

the gunshot woke up Mr. France[,] and [that] Defendant and Mr.

France buried the victim’s body. Thus, even if the calls had been

admissible, the Court finds they would not have resulted in a

different outcome at trial as the calls support and are consistent

with Ms. Cagle’s trial testimony.

The post-conviction court determined that trial counsel was not ineffective

because the telephone calls were neither admissible nor prejudicial. Generally, a state’s

interpretation of its own laws or rules provides no basis for federal habeas corpus relief.

“We have repeatedly held that a state court’s interpretation of state law . . . binds a

federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see,

e.g., Estelle v. McGuire, 502 U.S. 62, 75 (1991) (stating that “our habeas powers [do not]

allow us to reverse [a] conviction based on a belief that the trial judge incorrectly

interpreted the” state’s evidence rules); Burgett v. Texas, 389 U.S. 109, 113–114 (1967)

(recognizing that a federal petition for the writ of habeas corpus permits only limited

authority to review a state court’s evidentiary ruling). Having determined that, because

the telephone calls were inadmissible, trial counsel’s performance was not deficient.

The state court reasonably applied Strickland in rejecting Pollock’s claim of ineffective

assistance of counsel based on the claim in Ground Seven.

Ground Nine:

Pollock alleges that trial counsel was ineffective for not objecting to Detective

Houston’s testifying as an expert witness regarding a “ricochet.” The response

accurately summarizes the relevant testimony as follows (Doc. 12 at 6) (references to

record omitted):

Houston testified that a spent bullet and pieces of decorative glass

of the same type as the glass found with the victim’s body were

found in the bathroom of the residence. A fired bullet was found

under the tub. Houston also observed a broken tile on the wall of

the bathroom and recovered a small metal fragment from the tile.

Houston opined that it was consistent with a ricochet of a bullet

being fired and embedding a portion of the bullet in the tile.

The post-conviction court denied relief under this claim as follows (Respondent’s

Exhibit 34 at 9–10) (references to record omitted):

In claim five, Defendant alleges ineffective assistance of counsel

for failing to object to the introduction of Eric Houston’s expert

testimony on ricochets when he was never listed as an expert

witness. He alleges the State introduced Detective Houston’s

expert testimony that a bullet had ricocheted in the bathroom

where the murder allegedly occurred. He alleges the State then

contended Walter Brois’s testimony about Defendant discussing

with him a defense based on “ricochet case law” meant Defendant

admitted the murder. Defendant alleges he was prejudiced because

the ricochet testimony was a feature of the case where the State

argued the discovery of two bullets demonstrated the shooter had

ill-will, spite, and hatred for the victim and corroborated Walter

Brois’s testimony. Defendant contends there is a reasonable

probability that but for counsel’s unprofessional errors the

outcome of the trial would have different.

The Court finds claim five to be without merit. First, the Court

finds Defendant is referencing . . . Detective Houston’s testimony

about potential ricochet . . . .

As to Detective Houston’s testimony about whether a bullet had

ricocheted, he testified his opinion was based on his experience

and observations. He testified he observed a metal fragment

imbedded in a tile above the bathtub and a spent bullet under the

tub. He testified that based on his own experience and

observations, the metal fragment imbedded in the wall was

consistent with a bullet ricocheting off the wall. Thus, as Detective

Houston’s testimony was based on his own observations and

experience, the Court finds counsel did not act deficiently for

failing to object.

The post-conviction court determined that trial counsel was not ineffective

because Detective Houston was testifying based on his own observations and

experiences, not as an expert witness. Consequently, because Ground Nine is based on

a faulty premise –– that Detective Houston testified as an expert witness –– the state

court reasonably applied Strickland in determining that trial counsel’s performance was

not deficient.

* * * *

Claims under Martinez:

As discussed above, Pollock asserts entitlement to review of the claims of

ineffective assistance of trial counsel alleged in Grounds Eleven and Twelve,

specifically, that trial counsel was ineffective for neither retaining a ballistics expert

witness nor “citing” a state witness as having acted as a government informant.

Martinez applies only if (1) a state requires a prisoner to raise a claim of ineffective

assistance of trial counsel in an initial review collateral proceeding, (2) the prisoner

failed to properly raise the ineffective assistance of trial counsel claim in his state initial

review collateral proceeding, (3) the prisoner did not have collateral counsel or his

collateral counsel was ineffective, and (4) the failure to excuse the procedural default

would result in the loss of a “substantial” claim of ineffective assistance of trial counsel.

Martinez, 566 U.S. at 14. Because he had the benefit of post-conviction counsel,

Pollock must show that post-conviction counsel was ineffective for not asserting these

two grounds. To show entitlement to review under Martinez, Pollock must show that

his claims are “substantial,” which are claims that have “some merit.” Martinez, 566

U.S. at 14.

Pollock must overcome not only the deference afforded to trial counsel’s strategic

decision but also that no competent post-conviction counsel would have omitted the

claims in Grounds Eleven and Twelve, as Hittson v. GDCP Warden, 759 F.3d 1210, 1263

(11th Cir. 2014) (italicized emphasis original), explains:

As we have explained, Strickland instructs courts to “indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance” — that counsel

“rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” 466 U.S. at

689–90, 104 S. Ct. at 2065–66. To overcome this presumption, a

petitioner must “establish that no competent counsel would have

taken the action that his counsel did take.” Chandler v. United

States, 218 F.3d 1305, 1315 (11th Cir.2000) (en banc).

Thus, to show that his habeas counsel failed to provide the level of

representation required by Strickland, Hittson must show more

than the mere fact they failed to raise potentially meritorious

claims; he must show that no competent counsel, in the exercise of

reasonable professional judgment, would have omitted those

claims. Even assuming that the underlying ineffective-assistance

claims are meritorious[,] Hittson has not established that his state

habeas counsel were incompetent for failing to raise them.

In Ground Eleven Pollock alleges that trial counsel should have retained a

ballistics expert, but he fails both to identify what testimony a ballistics expert could

provide and to show that there is a reasonable probability that such unknown testimony

would have produced a different outcome at trial. In short, the allegation is conclusory

and fails to meet Martinez’s minimal requirement that the claim is “substantial,” that is,

that the claim has “some merit.”

In Ground Twelve Pollock alleges that trial counsel was ineffective for not

“citing” that Walter Brois –– a jailhouse informant who testified against Pollock –– was

acting as a government informant. As discussed above, counsel’s decision on how to

cross-examine a witness is a strategic decision entitled to deference. Dorsey, 262 F.3d at

1185–86. Even if he could show that trial counsel performed deficiently by not eliciting

testimony that Brois was allegedly a “government informant,” Pollock cannot meet the

minimal requirement of showing prejudice. Brois testified that he has thirty-five felony

convictions, that he was serving a twenty-year sentence, and that he was then

challenging his sentence in a separate proceeding. (Respondent’s Exhibit 20 at 692)

Brois admitted on direct examination both that “the reason why you’re doing this is

because you’re hoping that you can mitigate your sentence” and that he filed a motion

for rehearing specifically so the judge could both consider his testimony against Pollock

and reconsider the denial of his motion to mitigate sentence. (Respondent’s Exhibit 20

at 690 and 692) On cross-examination Brois admitted (1) that “he was doing

everything that [he] can to have [his twenty-year sentence] reduced,” (2) that in the past

he had obtained information from a defendant in a death penalty case and provided

that information to the state, (3) that he had talked with Detective Houston “a few

times” and that the detective had testified on Brois’s behalf at a sentencing hearing, and

(4) that he hoped Detective Houston would testify for him at a future hearing.

(Respondent’s Exhibit 20 at 697–705) Trial counsel ensured that the jury knew that

Brois was testifying against Pollock in hopes of getting his sentence reduced. Whether

Brois was a “government informant” was an additional fact that, if true, was likely

insufficient to change the outcome. Consequently, even if the claim in Ground Twelve

meets the minimal showing that the claim is “substantial,” the claim fails on the merits.

V. CONCLUSION

Pollock fails to meet his burden to show that the state court’s decision was either

an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013), states:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires “a

state prisoner [to] 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 . . . beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. [86, 103] (2011). “If

this standard is difficult to meet” — and it is — “that is because it

was meant to be.” Id., at [102]. We will not lightly conclude that a

State’s criminal justice system has experienced the “extreme

malfunctio[n]” for which federal habeas relief is the remedy. Id., at

[103] (internal quotation marks omitted).

Pollock’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Pollock and CLOSE this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Pollock is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no entitlement to appeal a district court’s denial of

his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA.

Section 2253(c)(2) permits issuing a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” To merit a COA, Pollock must show

that reasonable jurists would find debatable both the merits of the underlying claims

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

McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir.

2001). Because he fails to show that reasonable jurists would “find debatable” either

the merits of the grounds or the procedural issues, Pollock is entitled to neither a COA

nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis 1s

DENIED. Pollock must obtain permission from the circuit court to appeal in forma

pauperts.

ORDERED in Tampa, Florida, on September 13, 2024.

STEVEND.MERRYDAY □□

UNITED STATES DISTRICT JUDGE

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