Smith v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

OSCAR WESLEY SMITH,

Applicant,

v. CASE NO. 8:13-cv-1920-SDM-CPT

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

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

and challenges his conviction for second-degree murder, for which he was sentenced

to life imprisonment. Numerous exhibits (“Respondent’s Exhibit __”) support the

response. (Doc. 20) The respondent concedes both the application’s timeliness and

the exhaustion of state remedies. (Doc. 11 at 6–7)

I. BACKGROUND1

Smith was convicted of murdering a homeless woman on a country road in

Ruskin, Florida. The victim was last seen alive around 10:00 p.m. on July 26, 2006,

when several witnesses saw her walking alone near Interstate 75. Approximately

forty-five minutes later, a woman drove down 33rd Street in Ruskin and noticed “a

truck stopped with its lights on and doors open and nobody inside.” (Respondent’s

1 This summary of the facts derives from the trial transcript. (Respondent’s Exhibit 1)

Exhibit 1 at 205) Soon after, another woman drove past the same truck. She saw a

man “looking around on the ground for something” in front of the headlights.

(Respondent’s Exhibit 1 at 210) The truck belonged to Smith.

Around 11:00 p.m., Smith flagged down a passing motorist on 33rd Street.

He told the motorist (James Lilley) that “he saw a lady get out of a vehicle and a

gentleman beat her with some object” as she ran “into the woods.” (Respondent’s

Exhibit 1 at 215) Lilley called 911. Before law enforcement arrived, Smith told

Lilley that “he believed he had found her.” (Respondent’s Exhibit 1 at 218)

Five minutes later, a sheriff’s deputy arrived. Smith directed the deputy to the

victim, who was “tucked in a fetal position” in an “area that was mostly bush [with]

some small trees.” (Respondent’s Exhibit 1 at 236) The deputy believed the victim

might be alive and in need of medical assistance. He asked Smith and another

bystander (Sammy Zipperer) to help him “pull her from the underbrush.”

(Respondent’s Exhibit 1 at 238) The three dragged the victim approximately fifteen

feet; Smith held “her right leg by the ankle or thereabouts.” (Respondent’s Exhibit 1

at 239) By this time, the victim was dead. She had suffered “skull fractures and

brain laceration” from several blows to the back of her head. (Respondent’s Exhibit

1 at 374)

Shortly after moving the body, the deputy found the murder weapon — an

Estwing framing hammer with a broken claw. At the time of the murder, Smith

worked in construction. His employer, Brian Leniton, testified that Smith owned an

Estwing framing hammer, that Leniton had broken one of its claws during a job

three months before the murder, and that the murder weapon looked like Smith’s

broken hammer. Maria Rodriguez, a co-worker, testified that she had seen the

broken hammer in the bed of Smith’s truck hours before the murder. According to

her, the hammer was identical to the murder weapon. DNA from the murder

weapon matched Smith’s DNA, but the statistical significance of the match was

low.2

Law enforcement recovered fingernail clippings from the victim’s right hand.

Smith had left DNA on the “underside” of the clippings. (Respondent’s Exhibit 1

at 413, 423) This match was far “more statistically significant than the one . . . from

the hammer.” (Respondent’s Exhibit 1 at 425) The likelihood of finding another

match on the clippings was “one in 3 trillion Caucasians, one in 2.4 trillion African

Americans, and one in 1.3 trillion Southeastern Hispanics.” (Respondent’s Exhibit 1

at 423) The prosecution’s DNA expert testified that “DNA underneath fingernails

[did not] typically happen by casual contact.” (Respondent’s Exhibit 1 at 424)

Instead, “more physical or forceful contact” was necessary. (Respondent’s Exhibit 1

at 424) The morning after the murder, Smith had “scratch marks” on his arms and

legs. (Respondent’s Exhibit 1 at 321–22)

Smith was arrested and charged with first-degree murder. (Respondent’s

Exhibit 1 at 14) The case went to trial. Smith argued that his “actions on the night

of July 26, 2006, were those of a good Samaritan.” (Respondent’s Exhibit 1 at 161)

2 The “estimated frequency” of the “DNA profile” on the hammer was “one in 23

Caucasians, one in 38 African Americans, and one in 33 Southeastern Hispanics.” (Respondent’s

Exhibit 1 at 410–11)

The jury found him guilty of the lesser-included offense of second-degree murder.

(Respondent’s Exhibit 1 at 560) He received a sentence of life imprisonment.

(Respondent’s Exhibit 1 at 67) The appellate court affirmed the conviction without a

written opinion. Smith v. State, 986 So. 2d 610 (Fla. 2d DCA 2008). Smith

unsuccessfully moved for post-conviction relief under Florida Rule of Criminal

Procedure 3.850. (Respondent’s Exhibit 3) This federal habeas application

followed. (Doc. 1)

II. STANDARD OF REVIEW

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

governs this proceeding. Wilcox v. Fla. 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

aclpapimlicsa atidojnu dfoicra ate wd roitn o tfh hea mbeearist sc oinrp sutas twe ictohu rrets. p Uecnt dtoer §

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). “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 . . . .”); 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. “[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 explains its decision in a

reasoned 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, 138 S. Ct.

1188, 1192 (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, 138 S. Ct. at 1192.

In per curiam decisions without written opinions, the appellate court affirmed

Smith’s conviction and affirmed the denial of his Rule 3.850 motion for post-

conviction relief. The appellate court’s per curiam decisions 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.”), and 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 record that was before the state court:

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

tehxaistt tehnec ere acto trhda ut nsadmere r etivmieew, i .ies. ,l itmheit eredc toor dth bee rfeocroe rtdh ein s tate

court.

Smith 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).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Smith 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) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims

is well settled and well documented. In Strickland v.

Washington, 466 U.S. 668 (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

t“hcaotu cnosueln”s eglu waraasn nteoetd f uthnec tdioenfeinngd aanst t bhye the

Sixth Amendment. Second, the defendant

must show that the deficient performance

prejudiced the defense. This requires

showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a

trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 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.” 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.” 466 U.S. at 690.

Smith 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, Smith 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.” 466 U.S. at 694.

Smith cannot meet his burden by showing that the avenue chosen by counsel

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

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.” Strickland, 466 U.S. at 690–91.

Sustaining a claim of ineffective assistance of counsel under Section 2254(d) 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 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

Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

In determining “reasonableness,” Section 2254(d) authorizes determining only

“whether the state habeas court was objectively reasonable in its Strickland inquiry”

and not independently assessing whether counsel’s actions were reasonable. Putman

v. Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001). The presumption of correctness

and the highly deferential standard of review require that the analysis of each ground

begin with the state court’s analysis.

Ground One:

Smith contends that trial counsel provided ineffective assistance by failing to

investigate “similar crimes.” (Doc. 1 at 5) According to Smith, the trial court

“advised” counsel during a pre-trial hearing that he “might want to look into” two

“separate murders similar to [Smith’s] case.” (Doc. 1 at 5–6) The court allegedly

stated that it had learned of these murders from “the newspaper.” (Doc. 1 at 5)

Smith alleges that had counsel “investigated the matter,” a reasonable probability

exists that “evidence would have been found exonerating [him] of the crime at bar.”

(Doc. 1 at 6)

The post-conviction court held an evidentiary hearing on this claim. The

parties stated that they could not locate a transcript of the pre-trial hearing.3

(Respondent’s Exhibit 3 at 690) The prosecutor recalled, however, that the trial

court had made an “offhand comment” about similar crimes during a “disposition

hearing[ ].” (Respondent’s Exhibit 3 at 688) Counsel likewise remembered “an off

the cuff remark from the bench,” but neither he nor the prosecutor could provide

additional information about the court’s remarks. (Respondent’s Exhibit 3 at 689)

Smith testified that the court had described “at least two” similar crimes involving

“homeless women and . . . a hammer.” (Respondent’s Exhibit 3 at 741) One crime

took place “in Orlando.” (Respondent’s Exhibit 3 at 741) Smith could not

“remember” where the other crime occurred. (Respondent’s Exhibit 3 at 741)

3 The record before the federal district court does not contain a transcript of the pre-trial

hearing.

Finally, the lead detective on Smith’s case testified that he was unaware of any “prior

similar cases.” (Respondent’s Exhibit 3 at 733)

The post-conviction court rejected Smith’s claim for lack of “prejudice.”

(Respondent’s Exhibit 3 at 601) The court explained that Smith had “failed to

present any evidence of similar crimes that [counsel] should have investigated.”

(Respondent’s Exhibit 3 at 600–01) Therefore, Smith could not “establish prejudice”

because he merely “speculate[d] that the outcome of the trial would have been

different had counsel investigated these alleged similar crimes.” (Respondent’s

Exhibit 3 at 601)

The rejection of this claim was reasonable. According to Smith, counsel could

have used the “similar crimes” to argue that an alternative suspect killed the victim.

(Doc. 1 at 6–8) A defendant may “introduce evidence of similar crimes committed

by another person (rather than the defendant) to show that the defendant did not

commit the offense for which he or she is being tried.” Newby v. State, 272 So. 3d

862, 869 (Fla. 2d DCA 2019). But such evidence must meet a “strict standard of

similarity.” Newby, 272 So. 3d at 870. The defendant must show “a unique or

‘fingerprint’ type of connection between the crime being tried and the other act

sought to be proved.” Newby, 272 So. 3d at 871. “[A] mere general similarity will

not render the similar facts legally relevant to show identity.” Peek v. State, 488 So.

2d 52, 55 (Fla. 1986).

Smith fails to establish “a close similarity of facts” between the alleged similar

crimes and his case. State v. Savino, 567 So. 2d 892, 894 (Fla. 1990). The record

contains almost no information about the prior cases. Smith asserted at the

evidentiary hearing that the victims “were homeless women and that a hammer had

been involved.” (Respondent’s Exhibit 3 at 741) But he provided no information

about the circumstances of those cases — for example, whether the perpetrator knew

the victim, whether the victim was discovered on the side of the road, whether the

killing took place at night, whether the perpetrator left the murder weapon at the

scene, or whether the perpetrator robbed or sexually assaulted the victim. Without

additional details about the crimes, “[t]he purported similarities are too general and

commonplace to establish the ‘unique or fingerprint type’ of similarity that is

required for admission of [collateral act] evidence.” Peterson v. State, No. 1D2023-

2589, 2025 WL 15049, at *1 (Fla. 1st DCA Jan. 2, 2025); see also Eliakim v. State, 884

So. 2d 57, 61 (Fla. 4th DCA 2004) (finding that “‘similar crimes’ evidence was too

general in nature and devoid of a close similarity of facts . . . to satisfy [the] relevancy

requirement”).

Thus, Smith fails to establish that the alleged similar crimes would have been

admitted at trial. For that reason, the post-conviction court correctly found no

prejudice from counsel’s failure to investigate the prior cases. See Reed v. Sec’y, Fla.

Dep’t of Corr., 767 F.3d 1252, 1261 (11th Cir. 2014) (“The prejudice prong requires

the petitioner to establish a reasonable probability that, but for counsel’s errors, the

outcome at trial would have been different.”).

Ground Two:

Smith faults trial counsel for not moving to suppress “the DNA evidence.”

(Doc. 1 at 10) According to Smith, the DNA evidence was inadmissible because the

“crime scene” was “altered” and “contaminat[ed]” when he and another bystander

helped move the victim’s body. (Doc. 1 at 11) Smith maintains that a motion to

suppress had a “reasonable probability” of success. (Doc. 1 at 11)

The post-conviction court found that counsel was not “ineffective for failing to

file a motion to suppress.” (Respondent’s Exhibit 3 at 405) According to the court,

the “record” did not “establish that the crime scene was contaminated or altered

when [Smith] assisted [the deputy] with removing the victim’s body from the

underbrush.” (Respondent’s Exhibit 3 at 405) As the court pointed out, the “DNA

in question was found underneath the victim’s fingernails.” (Respondent’s Exhibit 3

at 404) Only “forceful contact initiated by the victim . . . would result in [Smith’s]

DNA under [her] fingernails,” and the victim “was not capable of . . . forceful

physical contact” when she was pulled from the underbrush. (Respondent’s Exhibit

3 at 404) Moreover, Smith “was not near the victim’s arms,” and he “had scratches”

on his arms and legs. (Respondent’s Exhibit 3 at 405) The court concluded that

because the crime scene was not “contaminated or altered,” no “valid basis existed

to suppress the [DNA] evidence.” (Respondent’s Exhibit 3 at 405)

This ruling was reasonable. “[A]lthough the issue of ineffective assistance . . .

is one of constitutional dimension,” a court “must defer to the state’s construction of

its own law when the validity of the [ineffective assistance] claim . . . turns on state

law.” Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). The post-

conviction court found that a motion to suppress the DNA evidence would have

failed because the crime scene was not “contaminated or altered.” (Respondent’s

Exhibit 3 at 405) “Whether a motion to suppress the [DNA evidence] based on

tampering would succeed is an issue of state law.” Zayas-Acosta v. Sec’y, Dep’t of Corr.,

No. 8:20-cv-2793-SDM-AAS, 2024 WL 987606, at *17 (M.D. Fla. Mar. 7, 2024).

Therefore, the post-conviction court “already has told us how the issue[ ] would have

been resolved under Florida state law had [counsel] done what [Smith] argues he

should have done.” Herring v. Sec’y Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir.

2005).

Because the post-conviction court “authoritatively decided as a matter of

[Florida] law” that the DNA evidence was admissible, the remainder of the analysis

is straightforward. Calhoun v. Warden, Baldwin State Prison, 92 F.4th 1338, 1351 (11th

Cir. 2024). “A lawyer cannot be deficient for failing to raise a meritless claim.”

Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). As a result, the post-

conviction court reasonably concluded that counsel was not deficient for failing to

file a meritless motion to suppress.

Ground Three:

Smith contends that trial counsel provided ineffective assistance by failing to

call Sammy Zipperer as a witness at trial. (Doc. 1 at 16) As noted above, Zipperer

and Smith helped a sheriff’s deputy move the victim’s body from the underbrush.

Zipperer allegedly would have testified that Smith “came in contact with and

handled the victim’s right arm.” (Doc. 1 at 17) By contrast, both the deputy and

another bystander (James Lilley) testified at trial that Smith touched only the victim’s

ankle. (Respondent’s Exhibit 1 at 220, 239) According to Smith, Zipperer’s

testimony would have supported his “defense of actual innocence” by showing that

his DNA was transferred to the victim’s fingernails when he helped move her body.

(Doc. 1 at 16–17) Smith speculates, for example, that the victim’s fingertips may

have “landed on top of [his] bare feet” when he “let[ ] go” of her arm to “grab [her]

leg.” (Respondent’s Exhibit 3 at 534)

The post-conviction court rejected this claim for lack of prejudice. As the

court noted, the prosecution’s DNA expert “testified that DNA underneath

fingernails typically does not happen by casual contact but usually requires a more

physical or forceful contact.” (Respondent’s Exhibit 3 at 546) Thus, according to

the court, “even if [ ] Zipperer had testified that he saw [Smith] touching the victim’s

arm and leg areas, [his] testimony would not have refuted [the DNA expert’s]

testimony that a DNA transfer underneath a person’s fingernail does not usually

happen by such casual contact.” (Respondent’s Exhibit 3 at 547) Also, the court

rejected as “speculat[ive]” Smith’s “explanations as to why his DNA was under the

victim’s fingernails.” (Respondent’s Exhibit 3 at 547)

The post-conviction court reasonably found no prejudice from the failure to

call Zipperer at trial. “The prejudice prong requires the petitioner to establish a

reasonable probability that, but for counsel’s errors, the outcome at trial would have

been different.” Reed, 767 F.3d at 1261. “It is not enough for the [petitioner] to

show that the errors had some conceivable effect on the outcome of the proceeding.”

Strickland, 466 U.S. at 693. Instead, “counsel’s errors [must be] so serious as to

deprive the [petitioner] of a fair trial, a trial whose result is reliable.” Strickland, 466

U.S. at 687. “Applying AEDPA to Strickland’s prejudice standard, [the federal

district court] 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.” Mungin v. Sec’y, Fla. Dep’t of Corr., 89

F.4th 1308, 1317 (11th Cir. 2024).

Smith cannot meet this demanding standard. A fairminded jurist could

conclude that Zipperer’s proposed testimony would not have created a “reasonable

probability” of a different verdict. Reed, 767 F.3d at 1261. Even if Zipperer had

stated that Smith “handled” the victim’s arm, the jury still would have heard (1) the

DNA expert’s testimony that “a DNA transfer underneath a person’s fingernail does

not usually happen by such casual contact” and (2) the lead detective’s testimony

that Smith had scratch marks on his arms and legs. (Respondent’s Exhibit 3 at 547)

In these circumstances, a fairminded jurist could find that Zipperer’s proposed

testimony would “have had an isolated, trivial effect” on “the entire evidentiary

picture.” Strickland, 466 U.S. at 696. Therefore, the post-conviction court acted

reasonably in rejecting this claim.

Grounds Four and Five:

In ground four, Smith faults trial counsel for failing to hire a “crime scene

specialist.” (Doc. 1 at 21) According to Smith, this “specialist” would have testified

(1) that Smith “could not be the perpetrator” because he had no “bruise[s]” or

“fracture[s]” on his hands, (2) that the “blood found on” the murder weapon was

“consistent with blood splatter,” yet “no blood was found on [Smith’s] hands or

clothing,” and (3) that “forensic science” proves Smith’s DNA could have been

transferred to the victim’s fingernails through his “involvement in moving the body.”

(Doc. 1 at 22–23)

In ground five, Smith contends that counsel should have hired an “auto

mechanic” to testify that his truck “regularly overheat[ed]” and had a malfunctioning

“dome light.” (Doc. 1 at 27–28) This testimony allegedly would have (1) supported

Smith’s assertion that he “was forced to pull off the side of the road as a result of his

truck overheating” and (2) rebutted testimony from a state witness who said she had

seen Smith’s “truck stopped with its lights on and doors open and nobody inside.”

(Doc. 1 at 27; Respondent’s Exhibit 1 at 205)

The post-conviction court rejected grounds four and five for similar reasons.

The court explained that Smith “failed to present any evidence from a crime scene

specialist” or “an automobile mechanic” at the evidentiary hearing. (Respondent’s

Exhibit 3 at 595, 598) Therefore, Smith could only “speculate that the outcome of

the trial would have been different had counsel presented some unknown testimony

from an automobile mechanic” or a “crime scene specialist.” (Respondent’s Exhibit

3 at 595, 598) For that reason, the court concluded that Smith “failed to establish

prejudice.” (Respondent’s Exhibit 3 at 595, 598)

The post-conviction court reasonably found no prejudice. Smith never

identified any experts who could have provided the testimony he describes. Nor did

he show that any crime scene specialist or mechanic “had actually reviewed the

evidence in his case.” Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848, 852 (11th Cir.

2016). “Without some specificity as to the proposed expert[s’] testimony, any

assertion that [experts] would testify consistently with [Smith’s] claims [was] mere

speculation and [did] not entitle him to [ ] relief.” Finch, 643 F. App’x at 852. Thus,

the post-conviction court reasonably concluded that Smith’s speculative allegations

were insufficient to establish prejudice. See, e.g., Holt v. Sec’y, Fla. Dep’t of Corr., 489

F. App’x 336, 338 (11th Cir. 2012) (state court reasonably rejected ineffective

assistance claim based on failure to retain expert because “[i]t [was] speculative that

an expert witness would in fact have testified” favorably to the defense); Jimenez v.

Sec’y, Dep’t of Corr., No. 8:19-cv-684-MSS-AEP, 2021 WL 5416150, at *9 (M.D. Fla.

Nov. 19, 2021) (“[I]n his post-conviction motion, [petitioner] neither identified an

expert who could have testified [favorably to the defense] nor presented an affidavit

or testimony to substantiate that testimony. Because [petitioner’s] ineffective

assistance of counsel claim was speculative, the state court did not unreasonably

deny the claim.”).

Ground Six:

Smith faults trial counsel for failing to “fully and properly impeach” the

sheriff’s deputy who responded to the crime scene. (Doc. 1 at 32) The deputy

allegedly lied about Smith’s “statements.” (Doc. 1 at 33) At the crime scene, Smith

told the deputy that he had seen the victim exit a “dark-colored car” followed by the

perpetrator. (Doc. 1 at 32–33) At trial, however, the deputy denied that Smith had

made this statement. (Doc. 1 at 33) Also, Smith claims that the deputy’s “initial

report” did not “include” his statement about the “dark-colored car.” (Doc. 1 at 33)

Finally, Smith contends that the deputy refused to “acknowledge his mistakes and

failure to follow protocol” at the crime scene. (Doc. 1 at 33) Smith alleges that

counsel provided ineffective assistance by failing to bring out these facts on cross-

examination. (Doc. 1 at 33)

The post-conviction court held that “the record refute[d] [Smith’s] claim.”

(Respondent’s Exhibit 3 at 212) The court noted that “defense counsel properly

impeached [the deputy] about the inconsistencies of his deposition testimony and his

trial testimony.” (Respondent’s Exhibit 3 at 212) Moreover, “defense counsel . . .

elicited testimony from [the deputy] that he did not include all of the statements

made by [Smith] at the crime [scene] in the police report.” (Respondent’s Exhibit 3

at 212) The court pointed out that counsel “used these inconsistencies” in closing

argument “to cast doubt on [the deputy’s] testimony.” (Respondent’s Exhibit 3

at 212) Therefore, the court concluded that “counsel properly impeached” the

deputy. (Respondent’s Exhibit 3 at 212)

The rejection of this claim was reasonable. To prevail on his assertion of

ineffective assistance, Smith must “show that no reasonable jurist could find that his

counsel’s performance fell within the wide range of reasonable professional

conduct.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir. 2020). Smith

cannot meet this burden. Counsel impeached the deputy’s testimony about Smith’s

statements at the crime scene. The deputy initially testified that Smith “never told”

him that he had seen the victim “get out of a car and [get] beaten by a man.”

(Respondent’s Exhibit 1 at 249) Counsel responded by reading the deputy’s

deposition testimony: “I remember and recall [Smith] telling me that he observed a

car stop, a woman get out, a man come around the car, [and] the woman get out

running to the area of where she was at.” (Respondent’s Exhibit 1 at 249–50)

Also, counsel got the deputy to admit that he did not include any of Smith’s

statements in his report. Counsel asked, “Am I correct . . . [that] nowhere in your

report did you include any of the statements made to you at the scene by Oscar

Smith?” (Respondent’s Exhibit 1 at 251) The deputy responded, “You’re correct,”

admitted that he had made “an oversight,” and confirmed that he “now” recalled

that Smith made the statements described in his deposition. (Respondent’s Exhibit 1

at 251) Moreover, the deputy conceded that “in hindsight” he “should not have

moved [the victim’s] body when [he] saw it.” (Respondent’s Exhibit 1 at 263)

During closing argument, counsel drew on his cross-examination to argue that the

deputy was “not a very credible witness.” (Respondent’s Exhibit 1 at 513)

In short, counsel vigorously impeached the deputy and used the admissions he

obtained to undermine the deputy’s credibility. In these circumstances, a reasonable

jurist could conclude that counsel’s conduct did not “amount[ ] to incompetence

under prevailing professional norms.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248

(11th Cir. 2014). Therefore, the post-conviction court reasonably rejected Smith’s

assertion of ineffective assistance.4

Ground Seven:

Smith contends that trial counsel rendered ineffective assistance by failing to

move for a mistrial “based on a sleeping juror.” (Doc. 1 at 35) During cross-

examination of the lead detective, the prosecutor approached the bench to inform the

court that “the juror in the green shirt was nodding off.” (Respondent’s Exhibit 1

at 344) The prosecutor noted that the juror had just “woke[n] up,” but he was “not

sure how long that had been going on.” (Respondent’s Exhibit 1 at 344) The court

asked defense counsel whether he would “be much longer with” the detective.

(Respondent’s Exhibit 1 at 344) Counsel responded, “A few minutes, not super

long.” (Respondent’s Exhibit 1 at 344) The cross-examination resumed, and the

matter of the sleeping juror did not come up again.

Smith argues that counsel should have moved for a mistrial because the juror

“was asleep and therefore [in]attentive to a critical and material portion of the trial.”

4 Smith contends that counsel could have called Sammy Zipperer to show that he “handle[d]

the victim’s right arm.” (Doc. 1 at 33) This assertion is addressed above in the discussion of ground

three.

(Doc. 1 at 36) According to Smith, “no person found to be sleeping could be said to

have the mindset necessary to render a fair and impartial verdict.” (Doc. 1 at 36)

The post-conviction court took testimony on this claim at the evidentiary

hearing. Counsel testified that he declined to move for a mistrial for “two reasons.”

(Respondent’s Exhibit 3 at 682) First, he “believed that mistrials only benefit the

state” by allowing “a chance to correct any errors” and by “eliminat[ing] the element

of . . . surprise.” (Respondent’s Exhibit 3 at 682) Moreover, counsel “believed that

the case was going well for [ ] Smith, considering the evidence with which we had to

deal.” (Respondent’s Exhibit 3 at 682) Therefore, counsel “wasn’t anxious to see

this re-tried.” (Respondent’s Exhibit 3 at 682) Second, counsel explained that he

might have moved for a mistrial if the juror had displayed “major inattentiveness” or

“had been out for a long time.” (Respondent’s Exhibit 3 at 683) But he could not

“recall anything that [ ]rose to that level,” and he did not “want[ ] to wipe out the

whole trial just because . . . someone may have been nodding off.” (Respondent’s

Exhibit 3 at 683)

The post-conviction court held that counsel was not “deficient” for failing to

move for a mistrial. (Respondent’s Exhibit 3 at 603) The court found “credible”

counsel’s “testimony regarding his belief that mistrials only benefit the state and that

the trial up to that point was going well for [Smith].” (Respondent’s Exhibit 3

at 603) Thus, the court concluded that counsel “made a sound strategic decision not

to pursue a mistrial based on the fact that a juror was allegedly nodding or falling

asleep.” (Respondent’s Exhibit 3 at 603)

This ruling was reasonable. “[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Strickland, 466 U.S. at 690. A strategic choice “will be held to

have been ineffective assistance only if it was so patently unreasonable that no

competent attorney would have chosen it.” Dingle v. Sec’y for Dep’t of Corr., 480 F.3d

1092, 1099 (11th Cir. 2007). “Because Strickland allows for a range of strategic

choices by trial counsel, so too is there considerable leeway for state courts to

determine the reasonableness of those choices.” Franks, 975 F.3d at 1176. Thus,

Smith must “show that no reasonable jurist could find that his counsel’s performance

fell within the wide range of reasonable professional conduct.” Franks, 975 F.3d

at 1176.

Smith cannot make this showing. Counsel declined to move for a mistrial

because he believed that “mistrials only benefit the state” and Smith’s trial “was

going well.” (Respondent’s Exhibit 3 at 682) This assessment was reasonable.

Counsel had obtained several key admissions by the time the sleeping juror was

brought to the court’s attention. For example, the jury had learned that no blood,

“tissue,” or “gore” was found on the clothes Smith wore at the crime scene, that

nothing in Smith’s trailer “connect[ed]” him to the victim, and that during his four

interviews with law enforcement, Smith repeatedly denied killing the victim.

(Respondent’s Exhibit 1 at 338–42) Consequently, a fairminded jurist could

conclude that “[some] competent counsel would have taken the action that [Smith’s]

counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000); see

also Cutaio v. Crews, No. 3:11-cv-538-LAC-EMT, 2013 WL 1278965, at *20, *26

(N.D. Fla. Mar. 4, 2013) (no deficient performance for failing to move for mistrial

based on sleeping juror because, among other things, “[a] mistrial, if granted, would

have wiped the slate clean, jeopardizing the victories the defendant had obtained”),

adopted by 2013 WL 1248241 (N.D. Fla. Mar. 27, 2013).

Ground Eight:

Smith faults trial counsel for failing to request a Frye5 hearing to challenge

“discrepancies” in the “DNA test results.” (Doc. 1 at 40) As noted above, testing at

the Florida Department of Law Enforcement (“FDLE”) revealed a statistically

insignificant amount of Smith’s DNA on the murder weapon. (Respondent’s Exhibit

1 at 410–11) Smith alleges that after this test was performed, law enforcement sent

the DNA sample from the murder weapon to ReliaGene Corporation for further

testing. (Doc. 1 at 40) ReliaGene’s test “yielded inconclusive results.” (Doc. 1

at 41) Smith argues that counsel should have requested a Frye hearing to determine

whether the FDLE “followed appropriate [testing] procedures.” (Doc. 1 at 41)

Also, Smith points to alleged “inconsistencies” in the DNA results from the

victim’s fingernail clippings. (Doc. 1 at 41) The prosecution’s DNA expert testified

that the first time she tested the fingernail clippings, “there wasn’t enough DNA” to

“fully determine the DNA profile of the foreign contributor.” (Respondent’s Exhibit

5 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the time of Smith’s trial, Frye

governed the admission of expert testimony in Florida state court. See DeLisle v. Crane Co., 258 So.

3d 1219, 1227 (Fla. 2018) (“Following our repeated affirmations of the Frye rule, in 2013 the

Legislature amended section 90.702 to incorporate Daubert in the Florida Rules of Evidence.”).

1 at 443) She therefore asked law enforcement to re-submit the samples so that she

could obtain “more DNA.” (Respondent’s Exhibit 1 at 443–44) When she ran the

test again, she found a match between the DNA profile on the fingernail clippings

and Smith’s DNA. (Respondent’s Exhibit 1 at 423) According to Smith, counsel

should have requested a Frye hearing to challenge these allegedly inconsistent results.

(Doc. 1 at 41-42)

The post-conviction court found that counsel was not “ineffective for failing to

. . . request a Frye hearing.” (Respondent’s Exhibit 3 at 205) The court first

discussed the DNA testing of the murder weapon. The court cited trial testimony

from the prosecution’s DNA expert, who explained that “the testing done by

ReliaGene was different [from] the testing performed at the FDLE laboratory.”

(Respondent’s Exhibit 3 at 203) Specifically, ReliaGene used a “specific Y

chromosome DNA test,” while the FDLE used a “different technique” involving

“short tandem repeat[s].” (Respondent’s Exhibit 3 at 203–04) ReliaGene and the

FDLE thus did not reach “inconsistent conclusions.” (Respondent’s Exhibit 3

at 204) Moreover, the court pointed out that “short tandem repeat” analysis “is the

standard used in the forensic community, that the FDLE is an accredited

laboratory,” and that the prosecution’s DNA expert said she “followed all of the

standard procedures.” (Respondent’s Exhibit 3 at 204 n.6) Therefore, the court held

that Smith was not entitled to a Frye hearing “regarding this issue” and counsel was

not deficient for failing to request one. (Respondent’s Exhibit 3 at 204)

The court likewise found that Smith was not entitled to a Frye hearing on the

DNA results from the fingernail clippings. (Respondent’s Exhibit 3 at 205) The

court noted that the “two tests were conducted solely because insufficient DNA

amounts were used for the first test.” (Respondent’s Exhibit 3 at 205) Furthermore,

the “tests did not produce inconsistent results.” (Respondent’s Exhibit 3 at 205)

Instead, as the court explained, “the first test was inconclusive because the DNA

mixture was not large enough and [ ] the second test involved a larger mixture.”

(Respondent’s Exhibit 3 at 205) The court thus held that counsel was not deficient

“for failing to . . . request a Frye hearing where there were no inconsistent test

results.” (Respondent’s Exhibit 3 at 205)

These rulings were reasonable. Smith’s ineffective assistance claim “turns on

[an issue of] state law” — whether he was entitled to a Frye hearing on the DNA

results from the murder weapon and the fingernail clippings. Pinkney, 876 F.3d

at 1295. The post-conviction court found that Smith was not entitled to a Frye

hearing. (Respondent’s Exhibit 3 at 204–05) That determination is binding on

federal habeas review. See Walker v. Sec’y, Dep’t of Corr., No. 8:05-cv-1539-EAK-

MAP, 2007 WL 1747181, at *10 (M.D. Fla. June 18, 2007) (“The state decision in

[petitioner’s] case settles that as a matter of state law, the trial court was not obliged

to conduct a Frye hearing before the state adduced testimony.”). Therefore, the post-

conviction court reasonably concluded that counsel did not provide ineffective

assistance by failing to make a meritless request for a Frye hearing. See Knight v.

Jones, No. 17-61921-CIV, 2018 WL 11656388, at *13 (S.D. Fla. Apr. 30, 2018)

(“[T]he state court determined the Petitioner did not show . . . deficient performance

because any Frye request would have proven fruitless. Accepting as true the state

court’s determination regarding the fruitlessness of a Frye hearing, this analysis is the

correct application of the first prong of Strickland.”), aff’d sub nom. Knight v. Fla. Dep’t

of Corr., 936 F.3d 1322 (11th Cir. 2019).

Ground Nine:

Smith faults trial counsel for failing to present evidence about “paint splatter”

on the murder weapon. (Doc. 1 at 45–46) As noted above, the murder weapon was

an Estwing framing hammer with a broken claw. Smith owned an Estwing framing

hammer, and his employer broke one of its claws three months before the murder.

Maria Rodriguez, a co-worker, testified that she had seen Smith’s broken hammer in

the bed of his truck hours before the murder. According to Rodriguez, she retrieved

the hammer from the truck and “brought it” to Smith. (Respondent’s Exhibit 1

at 299) Also, she testified that she “thought” she had spilled “some Behr paint” on

the hammer. (Respondent’s Exhibit 1 at 306) Rodriguez claimed that the hammer

was identical to the murder weapon.

Smith notes that the FDLE compared “paint samples taken from the job that

[he] and [ ] Rodriguez worked” with “small droplets of paint” from the murder

weapon. (Doc. 1 at 46) The FDLE concluded that the “white paint spots” on the

murder weapon “did not originate from” the samples taken from the job site.

(Respondent’s Exhibit 3 at 126) According to Smith, counsel provided ineffective

assistance by failing to present “this important fact” at trial. (Doc. 1 at 46)

The post-conviction court heard testimony on this claim at the evidentiary

hearing. Counsel acknowledged that Rodriguez “thought . . . she may have spilled

paint” on Smith’s broken hammer. (Respondent’s Exhibit 3 at 706) Also, counsel

conceded that the “paint” from the job site “didn’t match” the paint samples taken

from the murder weapon. (Respondent’s Exhibit 3 at 707) Counsel believed,

however, that the absence of a match “was a minor point, considering the other

evidence the [murder weapon] did contain” — that is, the broken claw.

(Respondent’s Exhibit 3 at 706) As counsel explained, Rodriguez recognized the

murder weapon as Smith’s broken hammer because of this “unusual” characteristic.

(Respondent’s Exhibit 3 at 713) And Rodriguez “had no bias, interest, [or] motive in

testifying,” nor had she “fall[en] out with” Smith. (Respondent’s Exhibit 3 at 713)

The post-conviction court rejected this claim because Smith “failed to establish

deficient conduct.” (Respondent’s Exhibit 3 at 592) According to the court, counsel

“did not call an expert to testify that the paint on the hammer did not match the

paint from the [job site] because [ ] Rodriguez only [said] that she thought she spilled

paint on the hammer.” (Respondent’s Exhibit 3 at 591) Moreover, “the paint on the

hammer was a minor issue compared with the other evidence that the hammer

belonged to [Smith] — mainly the fact that the hammer was unique in that it only

had one claw.” (Respondent’s Exhibit 3 at 591) Therefore, the court concluded that

counsel “made a sound strategic decision not to pursue expert testimony on the paint

identification at [Smith’s] trial.” (Respondent’s Exhibit 3 at 591)

The rejection of this claim was reasonable. “The [Strickland] 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.” White, 972 F.2d at 1220. “[A] petitioner must

establish that no competent counsel would have taken the action that his counsel did

take.” Chandler, 218 F.3d at 1315. Smith cannot meet this standard. Rodriguez

testified only that she thought she had spilled paint on Smith’s broken hammer. As

counsel explained, she “didn’t say absolutely there was paint spilled on it.”

(Respondent’s Exhibit 3 at 706–07) Thus, a fairminded jurist could conclude that

some “competent counsel” would refrain from presenting evidence that the paint on

the murder weapon did not match paint samples from the job site. Chandler, 218

F.3d at 1315.

Furthermore, “Strickland permits attorneys to choose between viable avenues

of defense.” LeCroy v. United States, 739 F.3d 1297, 1313 (11th Cir. 2014).

Consequently, “attorneys are not ineffective for making a reasonable choice to take

one avenue to the exclusion of another.” LeCroy, 739 F.3d at 1313. Counsel

vigorously argued in closing that the murder weapon was not “Oscar Smith’s

hammer.” (Respondent’s Exhibit 1 at 504) He pointed out that the “left prong” of

the murder weapon was broken, yet Smith’s employer was equivocal about whether

he had broken the right or left prong of Smith’s hammer. (Respondent’s Exhibit 1

at 504) Counsel argued that if Smith had killed the victim, he must have “grip[ped]

[the hammer] pretty tightly to swing it.” (Respondent’s Exhibit 1 at 508) Yet, as

counsel noted, the DNA evidence linking Smith to the murder weapon was weak,

and “tens of millions of people in the world . . . would have that same DNA.”

(Respondent’s Exhibit 1 at 507) Finally, counsel noted that law enforcement never

tried to determine whether Rodriguez left DNA on the murder weapon. This was

“important,” counsel explained, because Rodriguez claimed to have “handled”

Smith’s hammer “hours before the murder.” (Respondent’s Exhibit 1 at 508) A

fairminded jurist could conclude that this defense strategy “fell within the wide range

of reasonable professional conduct.” Franks, 975 F.3d at 1176.

Ground Ten:

Smith faults trial counsel for not moving to compel the production of “all

scientific documentation authenticating” the DNA results in his case. (Doc. 1 at 50–

51) Alternatively, he argues that counsel should have requested a Richardson6

hearing to address the prosecution’s alleged failure to produce this material. (Doc. 1

at 50–51) According to Smith, the “scientific documentation” — “graphs” of

“chromosome[s]” — would have supplied “exculpatory evidence essential to

properly prepare for trial and assist the jury with its comprehension of the DNA

evidence.” (Doc. 1 at 50–51)

Even under de novo review, this claim fails. See Berghuis v. Thompkins, 560 U.S.

370, 390 (2010) (“Courts can . . . deny writs of habeas corpus under § 2254 by

engaging in de novo review . . . because a habeas petitioner will not be entitled to a

writ of habeas corpus if his or her claim is rejected on de novo review.”). Counsel

6 Richardson v. State, 246 So.2d 771 (Fla. 1971). In Florida, a Richardson hearing addresses

discovery violations and non-compliance with discovery requests. See Andres v. State, 254 So. 3d 283,

293 (Fla. 2018).

testified at the evidentiary hearing that he hired an expert to “see if [the defense]

could challenge” the prosecution’s DNA evidence. (Respondent’s Exhibit 3 at 703)

Counsel explained that “[a]ny time we have DNA in a murder case we’re . . . almost

always [going to] have our own expert examine it.” (Respondent’s Exhibit 3 at 703)

The expert in Smith’s case received the results from the FDLE and ReliaGene and

“confirmed what both . . . found regarding the DNA.” (Respondent’s Exhibit 3

at 723; see also Respondent’s Exhibit 3 at 703–04) Smith now complains that counsel

did not obtain additional “scientific documentation,” but he fails to explain how

counsel could have known this material was necessary to test the DNA results.

(Doc. 1 at 50–51) Indeed, the defense expert informed counsel that those results

were “accurate.” (Respondent’s Exhibit 3 at 703) Therefore, counsel plainly acted

“within the wide range of reasonable professional conduct” in handling the DNA

evidence.7 Franks, 975 F.3d at 1176.

Ground Eleven:

Smith faults trial counsel for not moving to dismiss the indictment. (Doc. 1

at 53) According to Smith, the prosecution’s “theory” of the case “cannot stand”

because he “could have” left DNA under the victim’s fingernails when he “mov[ed]

7 Smith asserts that “computer-generated graphs” would have helped the jury understand the

DNA evidence, but he fails to explain how graphs would have accomplished that task. (Doc. 1

at 50–51)

[her] body.” (Doc. 1 at 54) Smith argues that the case likely “would not have gone

to trial” had “counsel moved for a dismissal” on this basis.8 (Doc. 1 at 54)

The post-conviction court held that “the record refute[d] [this] claim.”

(Respondent’s Exhibit 3 at 201) The court cited testimony from the prosecution’s

DNA expert, who explained that “DNA underneath fingernails does not typically

happen by casual contact, but rather by a ‘more physical or forceful contact.’”

(Respondent’s Exhibit 3 at 201 (citation omitted)) According to the court, counsel

had no basis to “file a motion to dismiss [because] there was expert testimony as to

. . . how the DNA was obtained and why it was unlikely that casual contact caused

the DNA transfer.” (Respondent’s Exhibit 3 at 201–02) Therefore, counsel “was not

deficient.” (Respondent’s Exhibit 3 at 201–02)

The rejection of this claim was reasonable. Smith’s allegation of ineffective

assistance “turns on [an issue of] state law” — whether a motion to dismiss the

indictment for lack of evidence would have succeeded. Pinkney, 876 F.3d at 1295.

The post-conviction court “authoritatively decided as a matter of [Florida] law” that

the proposed motion would have failed. Calhoun, 92 F.4th at 1351. “A lawyer

cannot be deficient for failing to raise a meritless claim.” Freeman, 536 F.3d at 1233.

Thus, the post-conviction court correctly concluded that counsel was not deficient for

failing to move to dismiss the indictment. See Garcia v. Sec’y, Dep’t of Corr., No. 8:17-

cv-2374-KKM-AAS, 2021 WL 1516070, at *7 (M.D. Fla. Apr. 16, 2021) (“Because

8 Under Florida law, a motion to dismiss an indictment “is analogous to a motion for

summary judgment in a civil case.” State v. Petagine, 290 So. 3d 991, 993 (Fla. 1st DCA 2020). The

motion must be denied if “the state shows the barest prima facie case.” Petagine, 290 So. 3d at 994.

the state court has determined that a motion to dismiss would not have been granted,

this Court cannot reevaluate [the] motion’s chance of success under Florida law.”),

aff’d, No. 21-12461, 2023 WL 5927136 (11th Cir. Sept. 12, 2023).

Ground Twelve:

Smith asserts that trial counsel rendered ineffective assistance by advising him

not to testify at trial. (Doc. 1 at 56) According to Smith, counsel told him that “the

state failed to prove its case beyond a reasonable doubt,” that “he did not need to

testify,” and that testifying “would harm the defense.” (Doc. 1 at 56) Smith argues

that had counsel not “misadvised” him, the jury “would have heard the facts” — that

he was a good Samaritan who witnessed the murder and tried to help. (Doc. 1 at 57)

The post-conviction court heard testimony on this claim at the evidentiary

hearing. Counsel explained that he advised Smith not to testify for several reasons.

(Respondent’s Exhibit 3 at 685) First, Smith had a “prior felony conviction that

could be brought up to impeach him.” (Respondent’s Exhibit 3 at 684) Second,

during a meeting at the county jail, Smith had “told us spontaneously that he may

have done this murder.” (Respondent’s Exhibit 3 at 684) Counsel did not “want

him possibly blurting that out” at trial. (Respondent’s Exhibit 3 at 684) Third,

counsel “felt there were certain things . . . that [Smith] would have to be cross-

examined about if he testified that he could not answer.” (Respondent’s Exhibit 3

at 725) Specifically, counsel was “afraid” that the prosecution would ask “how his

DNA got under the victim’s nails.” (Respondent’s Exhibit 3 at 686) Counsel

explained that a defense expert had received “Smith’s version [of events] and said

there’s no way that [his] DNA got under the nails of the victim if [he] was telling the

truth.” (Respondent’s Exhibit 3 at 686)

Even under de novo review, Smith’s assertion of ineffective assistance lacks

merit. “A criminal defendant has a fundamental constitutional right to choose

whether to testify in his own defense.” United States v. Anderson, 1 F.4th 1244, 1253

(11th Cir. 2021). “Where the defendant claims a violation of his right to testify by

defense counsel, the essence of the claim is that the action or inaction of the attorney

deprived the defendant of the ability to choose whether or not to testify in his own

behalf.” United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992). “Defense

counsel bears the primary responsibility for advising the defendant of his right to

testify or not to testify, the strategic implications of each choice, and that it is

ultimately for the defendant himself to decide.” Teague, 953 F.2d at 1533.

“Moreover, if counsel believes that it would be unwise for the defendant to testify,

counsel may, and indeed should, advise the client in the strongest possible terms not

to testify.” Teague, 953 F.2d at 1533. The touchstone of the analysis is whether

“counsel’s performance fell below an objective standard of reasonableness.” Teague,

953 F.2d at 1534.

Counsel acted reasonably when he advised Smith not to testify. Several

strategic considerations supported this advice. If Smith had testified at trial, the

prosecution likely would have impeached him with his prior felony conviction.

“There are good tactical reasons why it may not be best for the defendant to testify in

some circumstances,” including “if the defendant might be prejudiced by revelation

of [a] prior conviction[ ].” Teague, 953 F.2d at 1533 n.9; see also Brown v. Sec’y, Dep’t of

Corr., No. 8:09-cv-934-SDM-AEP, 2012 WL 2936167, at *6 (M.D. Fla. July 18,

2012) (“[P]reventing the disclosure of prior convictions that would prejudice the

defendant is a sensible reason for advising against a defendant testifying.”).

Furthermore, Smith “spontaneously” told defense counsel “that he may have

done this murder.” (Respondent’s Exhibit 3 at 684) Thus, counsel reasonably feared

that Smith “might get up there . . . and say . . . maybe I did do this.” (Respondent’s

Exhibit 3 at 685) As counsel explained, “that would’ve been the end right there.”

(Respondent’s Exhibit 3 at 685) In these circumstances, counsel did not provide

ineffective assistance by advising Smith not to testify. Cf. United States v. Bland, 23

F.3d 403, 403 (4th Cir. 1994) (holding that counsel “did not render deficient

representation in advising [defendant] not to testify” because he had “confessed his

guilt to counsel”).

Lastly, counsel reasonably believed that Smith would face a damaging cross-

examination if he testified. “The tactical decision to advise [Smith] against testifying

because of the dangerous cross-examination that could ensue . . . cannot be a sound

basis for a claim of ineffective assistance of counsel.” Maharaj v. Sec’y for Dep’t of

Corr., 432 F.3d 1292, 1319 (11th Cir. 2005).

Ground Thirteen:

Smith argues that the prosecution committed misconduct during closing

argument. (Doc. 1 at 60) According to him, the prosecution (1) “improperly

bolstered the credibility” of James Lilley (the motorist Smith flagged down),

(2) “improperly ridiculed the defense theory of acquittal,” and (3) shifted the burden

of proof to Smith. (Doc. 1 at 60–62) The appellate court rejected this claim in a per

curiam decision without a written opinion. Smith v. State, 986 So. 2d 610 (Fla. 2d

DCA 2008). Consequently, Smith must show that the state court’s decision

possessed “no reasonable basis.” Richter, 562 U.S. at 98. He cannot meet his

burden.

“The reversal of a conviction . . . is warranted when improper comments by a

prosecutor have so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Parker, 244 F.3d at 838. “To find prosecutorial

misconduct, a two-pronged test must be met: (1) the remarks must be improper, and

(2) the remarks must prejudicially affect the substantial rights of the defendant.”

United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). “A prosecutor’s

remarks, suggestions, insinuations, and assertions are improper when they are

calculated to mislead or inflame the jury’s passions.” United States v. Azmat, 805 F.3d

1018, 1044 (11th Cir. 2015). “Substantial rights are prejudiced when there is a

reasonable probability . . . that, but for the remarks, the outcome of the trial would

have been different.” United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017).

First, the prosecution did not improperly bolster Lilley’s credibility. As noted

above, Lilley observed Smith and another bystander assist the deputy in moving the

victim’s body. Lilley testified that Smith touched only the victim’s ankle.

(Respondent’s Exhibit 1 at 220) During closing argument, the prosecution

contended that the crime scene was not “contaminated” because Smith never

touched the victim’s hands. (Respondent’s Exhibit 1 at 546) The prosecution

supported this argument by citing Lilley’s testimony (Respondent’s Exhibit 1 at 546–

47):

Who is independent in this situation? James Lilley, the

good Samaritan. He stuck around. He didn’t know what

the heck was going on, but he knew this guy was acting

strange and nervous and telling me to call 911. James

Lilley, well, I’m not going to come out of my truck until

law enforcement comes. James Lilley, who is like I’m not

the type of person who touches dead bodies. James Lilley

is completely independent of this entire investigation; he

took the stand and told you [Smith] pulled her out by the

ankles. There is no evidence to suggest whatsoever that

her arms were ever touched.

These remarks did not constitute improper bolstering. “A prosecutor’s

remarks are improper if they attempt to bolster the credibility of a witness based on

the government’s reputation or through alluding to evidence not admitted at trial.”

United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009). “To determine if the

government improperly vouched for a witness, the court must decide whether a jury

could reasonably believe that the prosecutor was indicating a personal belief in the

witness’[s] credibility.” Lopez, 590 F.3d at 1256. “This prohibition against vouching

does not, however, forbid prosecutors from arguing credibility; rather, it forbids

arguing credibility based on the reputation of the government office or on evidence

not before the jury.” Lopez, 590 F.3d at 1256.

The challenged remarks did not “amount to an explicit, personal guarantee of

credibility, such as assuring the jury that the prosecution would not have brought the

case unless the defendant was actually guilty.” United States v. Hernandez, 921 F.2d

1569, 1573 (11th Cir. 1991). Instead, the remarks invited the jury to find Lilley

credible “based on [his] behavior on the stand and the evidence admitted.” United

States v. Hope, 608 F. App’x 831, 841 (11th Cir. 2015). “[A]n attorney is allowed to

argue . . . credibility of witnesses or any other relevant issue so long as the argument

is based on the evidence.” Miller v. State, 926 So. 2d 1243, 1254–55 (Fla. 2006).

Second, the prosecution did not “improperly ridicule[ ] the defense theory of

acquittal.” (Doc. 1 at 61) The prosecution argued that Smith’s “version of events

[was] not reasonable” (Respondent’s Exhibit 1 at 493–94, 533):

Oscar Smith wants you to believe poor, poor me. I am the

victim of this horrible circumstance.

I’m the most unfortunate man in America because as I’m

driving my broken-down truck for a leisurely drive late at

night, I happen upon a domestic dispute. This little black

car comes peeling around the corner, a woman jumps out,

a man, ironically looking very similar to myself, . . . just

happens to be chasing this woman and kills her, and then

she runs into the woods and it just so happens that the

murder weapon here, the hammer that is used, what a

coincidence. Oh, my gosh, it’s the exact same hammer . . .

that I use too, in my construction job. And it’s a

coincidence that this hammer, this murder weapon is

broken in the exact same manner as my hammer was

broken just months ago.

And ladies and gentlemen . . . gosh darn it, it is just a

coincidence that the one location, the one location of

DNA that’s foreign to the victim that’s found on this

ironically strikingly similar hammer to the one that I own,

well, gosh it matches me. I’m just the victim of

unfortunate circumstances.

It almost sounds like a Hollywood movie, but it’s not.

Using common sense, using rationality, comparing the

defendant’s statement to the other evidence that has been

presented in this case, ladies and gentlemen, his version of

elovgeinctasl .i s not reasonable. His version of events is not

. . .

The story that the defendant voluntarily stuck around the

scene to tell is unbelievable. And I’m not using that

adjective to describe some great meal, some unbelievable

meal you just had[.] I mean, seriously, it is not believable.

You should not believe the things that Oscar Smith said.

These remarks were not improper. “The proper exercise of closing argument

is to review the evidence and to explicate those inferences which may reasonably be

drawn from the evidence.” Silvia v. State, 60 So. 3d 959, 977 (Fla. 2011). Here, the

prosecutor appropriately “comment[ed] on the evidence and express[ed] the

conclusions he [believed] the jury should draw from the evidence.” Crenshaw v. Sec’y,

Fla. Dep’t of Corr., No. 16-17735-D, 2017 WL 6761058, at *6 (11th Cir. Oct. 18,

2017). A prosecutor is not limited to “flat, robotic recitations of ‘just the facts.’”

Diaz v. State, 797 So. 2d 1286, 1287 (Fla. 4th DCA 2001). To the contrary, closing

argument “is a time for robust [and] vigorous challenging . . . of an opponent’s

ideas.” Diaz, 797 So. 2d at 1287.

Third, the prosecution did not shift the burden of proof to Smith. During

closing arguments, “prosecutors must refrain from making burden-shifting arguments

which suggest that the defendant has an obligation to produce any evidence or to

prove innocence.” United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). That

did not happen here. Smith complains that the prosecution (1) tried to explain the

absence of blood on his clothes by describing his “filthy paint-spattered body,” (2)

argued that any uncertainty about which prong of the hammer was broken did not

“definitive[ly]” prove Smith “did not . . . kill” the victim, and (3) maintained that

“there [was no] innocent reason why . . . Smith should have his DNA lodged

underneath” the victim’s fingernails. (Respondent’s Exhibit 1 at 530, 532–33, 547)

None of these remarks “suggest[ed] that [Smith] ha[d] an obligation to produce any

evidence or to prove innocence.” Simon, 964 F.2d at 1086.

Even if the challenged remarks did shift the burden of proof, Smith is entitled

to no relief because the remarks did not “so infect[ ] the trial with unfairness as to

make the resulting conviction a denial of due process.” Darden v. Wainwright, 477

U.S. 168, 181 (1986). After closing arguments, the court instructed the jury (1) that

the presumption of innocence “stay[ed] with [Smith] through each stage of this trial

and as to each material allegation of the indictment until it [was] overcome by the

evidence to the exclusion of and beyond a reasonable doubt,” (2) that the

prosecution had “the burden of proving that the crime with which [Smith was]

charged was committed and that he [was] the person who committed the crime,” and

(3) that Smith “was not required to present evidence or prove

anything.” (Respondent’s Exhibit 3 at 549) “[J]urors are presumed to follow the

court’s instructions.” Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir. 2001). Thus, a

reasonable jurist could conclude that any potential prejudice from the prosecution’s

remarks was “cured by [the] court’s instruction regarding the burden of proof.”

Simon, 964 F.2d at 1087; see also United States v. Zitron, 810 F.3d 1253, 1259–60 (11th

Cir. 2016) (“[T]he court’s instruction that [defendant] did ‘not have to prove his

innocence or produce any evidence at all’ and that the government had to ‘prove

guilt beyond a reasonable doubt’ cured any prejudice that may have resulted from

[the potentially burden-shifting] comments.”).

IV. CONCLUSION

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

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

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Smith fails to demonstrate either a substantial showing of the denial

of a constitutional right or that reasonable jurists would debate both the merits of the

grounds and the procedural issues, a certificate of appealability and leave to appeal in

forma pauperis ace DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

478 (2000). Smith must obtain permission from the court of appeals to appeal in

forma pauperis.

ORDERED in Tampa, Florida, on February 11, 2025.

ATADWN Argel

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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