Opinion

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

Court: District Court, M.D. Florida
Filed: Jun 23, 2025
Cited by: 0 cases
Authority: More cited than 36.9%

“This Court has repeatedly held defects in state collateral proceedings do not provide a basis for habeas relief.”

How later courts described this case

“This Court has repeatedly held defects in state collateral proceedings do not provide a basis for habeas relief.”
holding errors of state law are not cognizable in federal habeas review
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
“We consider questions about the credibility and demeanor of a witness to be questions of fact.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BRIAN KEITH SMITH,

Petitioner,

v. Case No. 3:22-cv-647-MMH-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Brian Keith Smith, an inmate of the Florida penal system,

initiated this action on June 7, 2022,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Smith

challenges a 2012 state court (Duval County, Florida) judgment of conviction

for armed robbery. He raises eight grounds for relief. See id. at 6–21.2

Respondents submitted a memorandum in opposition to the Petition. See

Response to Petition for Writ of Habeas Corpus (Response; Doc. 5). They also

submitted exhibits. See Docs. 5-1 through 5-23. Smith did not file a brief in

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

reply, and briefing closed on July 19, 2023. See Order (Doc. 7). This action is

ripe for review.

II. Relevant Procedural History

On June 29, 2011, the State of Florida charged Smith by amended

information with one count of armed robbery at Atlantic Coast Bank. Doc. 5-1

at 41; see also id. at 20. Smith proceeded to a trial, and on December 15,

2011, a jury found Smith guilty of the single offense charged. Id. at 104. On

March 7, 2012, the trial court sentenced Smith to life in prison. Id. at 137–42.

On direct appeal, with the benefit of counsel, Smith filed an initial brief

arguing the trial court erred when it: (1) permitted the prosecutor to cross-

examine Smith about his presence in the courtroom; (2) overruled Smith’s

objection to Robin Fraley identifying him in photographs from Atlantic Coast

Bank when she was not present and not an eyewitness to the robbery; and (3)

failed to instruct the jury on an alibi defense. Doc. 5-3 at

2–48. The State filed an answer brief, Doc. 5-4 at 2–30, and Smith replied,

Doc. 5-5 at 2–12. The First District Court of Appeal (First DCA) per curiam

affirmed Smith’s conviction and sentence without a written opinion on

August 12, 2013, Doc. 5-6 at 4, and issued the mandate on August 28, 2013,

id. at 3.

On August 10, 2014, Smith filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 5-7 at 2–49.

Smith subsequently retained postconviction counsel and filed an amended

Rule 3.850 Motion, in which he alleged counsel was ineffective for failing to:

investigate and present witnesses to support Smith’s alibi (ground one);

request a jury instruction on an alibi defense (ground two); and request

independent DNA testing (ground three). Doc. 5-8 at 2–16. He also raised a

claim of cumulative error (ground four). Id. at 16–17. The postconviction

court conducted an evidentiary hearing, after which it denied relief on all

grounds. Doc. 5-10 at 2–7. On February 11, 2022, the First DCA per curiam

affirmed the denial of relief without a written opinion, Doc. 5-13 at 3–4, and

on March 11, 2022, it issued the mandate, id. at 2.

On November 29, 2016, through counsel, Smith filed a motion for DNA

testing pursuant to Florida Rule of Criminal Procedure 3.853. Doc. 5-14 at

2–25. The State responded. Doc. 5-15 at 14–26. The postconviction court

denied relief, adopting the State’s response. Id. at 2–4. The First DCA per

curiam affirmed the denial of relief without a written opinion on June 20,

2018, Doc. 5-18 at 3–4, and on July 11, 2018, it issued the mandate, id. at 2.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318–19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at

474. The pertinent facts of this case are fully developed in the record before

the Court. Because the Court can “adequately assess [Smith’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

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

V. Governing Legal Principles

A. Standard of Review

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

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

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

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala.

Dep’t of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “‘The purpose of AEDPA

is to ensure that federal habeas relief functions as a guard against extreme

malfunctions in the state criminal justice systems, and not as a means of

error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As

such, federal habeas review of final state court decisions is “greatly

circumscribed and highly deferential.” Id. (internal quotation marks omitted)

(quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).

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

court decision, if any, that adjudicated the claim on the merits. See Marshall

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

court need not issue a written opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See

Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United

States Supreme Court has instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 584 U.S. 122, 125 (2018). The presumption may be rebutted

by showing that the higher state court’s adjudication most likely relied on

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

persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 125–26, 132.

If the claim was “adjudicated on the merits” in state court, § 2254(d)

bars relitigation of the claim unless 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.” 28 U.S.C. § 2254(d);

Richter, 562 U.S. at 97–98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “if the state court identifies the correct

governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Titlow, 571

U.S. at 19. “Federal courts may grant habeas relief only when a state court

blundered in a manner so ‘well understood and comprehended in existing law’

and ‘was so lacking in justification’ that ‘there is no possibility fairminded

jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter, 562 U.S.

at 102–03). This standard is “meant to be” a “difficult” one to meet. Richter,

562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a

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

court remedies that are available for challenging his state conviction. See 28

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

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

court, either on direct appeal or on collateral review. Castille v. Peoples, 489

U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

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

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

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a

state prisoner must exhaust available state remedies,

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

“‘“opportunity to pass upon and correct” alleged

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

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

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

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

(1971)). To provide the State with the necessary

“opportunity,” the prisoner must “fairly present” his

claim in each appropriate state court (including a

state supreme court with powers of discretionary

review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 365–366, 115

S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S. 838, 845,

119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).

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

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

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

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are

guided by rules designed to ensure that state-court

judgments are accorded the finality and respect

necessary to preserve the integrity of legal

proceedings within our system of federalism. These

rules include the doctrine of procedural default,

under which a federal court will not review the

merits of claims, including constitutional claims, that

a state court declined to hear because the prisoner

failed to abide by a state procedural rule. See, e.g.,

Coleman,[3] supra, at 747–748, 111 S. Ct. 2546;

Sykes,[4] supra, at 84–85, 97 S. Ct. 2497. A state

court’s invocation of a procedural rule to deny a

prisoner’s claims precludes federal review of the

claims if, among other requisites, the state

procedural rule is a nonfederal ground adequate to

support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120,

1127–1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,

558 U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d

417 (2009). The doctrine barring procedurally

defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

prejudice from a violation of federal law. See

Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9–10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that

prevented [him] from raising the claim and which

cannot be fairly attributable to his own conduct.”

McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.

2639).[5] Under the prejudice prong, [a petitioner]

must show that “the errors at trial actually and

substantially disadvantaged his defense so that he

was denied fundamental fairness.” Id. at 1261

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

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

In the absence of a showing of cause and prejudice, a petitioner may

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

petitioner can establish that a fundamental miscarriage of justice, the

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

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

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

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

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

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

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

Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally,

“‘[t]o be credible,’ a claim of actual innocence must be based on reliable

evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559

(1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such evidence, in

most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

curiam) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct.

2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet

the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Strickland, 466

U.S. at 697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation

is a most deferential one.” Richter, 562 U.S. at ---,

131 S. Ct. at 788. But “[e]stablishing that a state

court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in

tandem, review is doubly so.” Id. (citations and

quotation marks omitted). “The question is not

whether a federal court believes the state court’s

determination under the Strickland standard was

incorrect but whether that determination was

unreasonable — a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that

counsel satisfied Strickland’s deferential standard,”

then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at ---,

131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference—this one to a state court’s decision—when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As

such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

In Ground One, Smith argues that the trial court erred when it allowed

the prosecutor to cross-examine him about his presence in the courtroom. See

Petition at 6. According to Smith, the prosecutor “improperly suggest[ed] to

[the] jury that [Smith’s] testimony was less credible” because “he was able to

change [and] choreograph his testimony.” Id.

The record reflects that the following exchange occurred when the

prosecutor cross-examined Smith at trial:

Q Okay, Mr. Smith, you said you have two felony

convictions, right?

A Yes, ma’am.

Q You’ve got more at stake in this trial than

anybody else, isn’t that right?

A Yes, ma’am

Q And you got to sit here and you got to listen to

every single witness that took the stand before

you took the stand, isn’t that right?

A Yes, ma’am.

Q And you had access –

[Defense Counsel]: Judge, I’m going to

object. He has a right to be here for his

trial.

The Court: He does, but I’ll overrule the

objection, though, she can ask the

question.

. . . .

Q You had access to the police reports, right?

A Yes, ma’am.

Q And you’ve had access to those for about seven

months, correct?

A Yes, ma’am.

Q Okay. You’ve had access to the depositions of

[Atlantic Coast Bank] Vice President Colleen

Mulligan, correct?

A Yes, ma’am.

Q And the bank tellers, correct?

A Yes, ma’am.

Q Your neighbor, correct?

A Yes, ma’am.

Q The officers that testified, correct?

A Yes, ma’am.

Q Video interview of you, correct?

A Yes, ma’am.

Q Your wife’s interviews, correct?

A Yes, ma’am.

Q And you’ve had seven months to think about

what it is you’re going to say here today,

correct?

A Yes, ma’am.

Doc. 5-2 at 259–60. Smith raised this claim on direct appeal, Doc. 5-3 at 26–

35; the State filed an answer brief, Doc. 5-4 at 11–15; and the First DCA per

curiam affirmed Smith’s conviction and sentence without a written opinion,

Doc. 5-6 at 4.

If the appellate court addressed the merits of this claim, the state

court’s adjudication is entitled to deference under AEDPA. After a review of

the record and the applicable law, the Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Therefore, Smith is not

entitled to relief on the basis of this claim.

Assuming arguendo the appellate court’s adjudication of this claim is

not entitled to deference, the claim is still without merit. When a defendant

testifies in his own defense, his credibility may be impeached and his

testimony assailed like any other witness. Portuondo v. Agard, 529 U.S. 61,

69 (2000). A prosecutor’s comments or questions calling the jury’s attention to

the fact that a defendant had the opportunity to hear other witnesses testify

and to tailor his testimony, does not unlawfully burden a defendant’s right to

be present at trial, to be confronted with witnesses, or to testify on his own

behalf, nor does it violate his right to due process. Id. Here, the prosecutor’s

line of questioning about Smith’s presence in the courtroom attempted to

challenge Smith’s credibility as a witness. It did not violate his right to due

process or to testify on his own behalf. Therefore, Smith is not entitled to

federal habeas relief on the claim in Ground One.

B. Ground Two

Next, Smith argues the trial court erred when it overruled counsel’s

objection to a witness, Robin Fraley, identifying Smith in photographs from

Atlantic Coast Bank even though she did not witness the robbery. See

Petition at 9. The record reflects that the State called Fraley, Smith’s across-

the-street neighbor, to testify at trial. Doc. 5-2 at 158. When the prosecutor

asked Fraley whether she had an opportunity to view photographs from the

robbery, counsel requested a sidebar conference. Id. at 160. The following

exchange occurred:

[Defense Counsel]: Your Honor, we’re – we’re

objecting to the State seeking to – basically it’s a

second identification, a show of photos to someone

who has no knowledge of the robbery, have h[er]

identify Mr. Smith as the person that was involved in

the robbery by someone who has absolutely no idea of

what happened there. It’s commenting on the

evidence, there’s no personal knowledge, it’s

bolstering an identification with a witness that isn’t a

witness at all.

The Court: Okay. I don’t know what her testimony is.

[The State]: Yes, Your Honor. Basically, she’s been

deposed, she’s been listed as a witness and they know

everything that she’s going to say. They know that

she identified him in the photos. The detective met

with her and she said, yes, that’s my neighbor, that’s

the one. She identifies the shirt that he’s wearing, it’s

one she’s seen him wear before. She will also say that

he decided to change his appearance around the time

of the robbery, his goatee that he wears. It’s

consistent with the photo so there are – we feel that

it’s relevant. We’re not trying to say she’s a witness to

the crime but she does help with identification with

detectives to the crime.

[Defense Counsel]: And we’re not objecting to the hair

cut or the shirt or anything like that. We’re objecting

to utilizing a non-witness to pose as a witness that he

was the robber in this case when she had – she has

any idea.

The Court: She can’t testify to that, obviously. All she

can testify –

[The State]: To the fact that she saw the same photo

that was put on the news release and that when she

saw it she believed that to be this defendant.

The Court: All right. I’m going to overrule the

objection.

Id. at 161–62. The prosecutor then showed Fraley photographs from the

robbery at Atlantic Coast Bank on April 22, 2011, and she identified the

individual in them as her neighbor, Smith. Id. at 162–64.

This trial court error claim is unexhausted because Smith did not

present the federal nature of this claim to the state court. On direct appeal,

Smith argued that the trial court erred under Florida law when it allowed

Fraley to identify Smith in the photographs. See Doc. 5-3 at 36–42. The State

filed an answer brief, Doc. 5-4 at 16–20, and the First DCA per curiam

affirmed Smith’s conviction and sentence without a written opinion, Doc. 5-6

at 4. When briefing this issue, however, Smith did not state or suggest that

he was raising a claim about a federal constitutional guarantee. Therefore,

insofar as Smith now raises a federal claim, the Court finds he failed to fairly

present the claim to the state court, which deprived the state court of a

meaningful opportunity to review the claim. Since future attempts to exhaust

the claim would be futile, it is procedurally defaulted. Smith has alleged

neither cause and prejudice nor a miscarriage of justice to overcome his

failure to exhaust. Accordingly, the claim in Ground Two is procedurally

barred.

Nevertheless, even if Smith properly exhausted this claim, he is still

not entitled to relief. If the appellate court addressed the merits of this claim,

the state court’s adjudication is entitled to deference under AEDPA. After a

review of the record and the applicable law, the Court concludes that the

state court’s adjudication of this claim was not contrary to clearly established

federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings.

Even assuming arguendo the trial court erroneously admitted Fraley’s

identification testimony, Smith is still not entitled to federal habeas relief.

“[A] federal constitutional error is harmless [on federal habeas review] unless

there is ‘actual prejudice,’ meaning that the error had a ‘substantial and

injurious effect or influence’ on the jury’s verdict.” Mansfield v. Sec’y, Dep’t of

Corr., 679 F.3d 1301, 1307 (11th Cir. 2012) (citing Brecht v. Abrahamson, 507

U.S. 619, 637 (1993)). Accordingly, “the erroneous admission of evidence is

likely to be harmless . . . where there is significant corroborating evidence or

where other evidence of guilt is overwhelming.” Id. at 1313 (citations

omitted). Here, three bank employee eyewitnesses identified Smith as the

perpetrator. Colleen Mulligan, the bank manager, identified Smith in the

courtroom, photographs of the robbery, and a photospread. Doc. 5-2 at 30, 48–

50, 52. Notably, the bank manager greeted Smith and escorted him into her

office where they had a discussion for approximately five minutes. Id. at 32–

33. According to the bank manager, Smith was behaving suspiciously, so she

paid attention to his features. Id. at 34.

Two tellers, Eileen McKay and Elizabeth Leighton, identified Smith in

the courtroom and a photospread. Id. at 73, 85–86, 96, 106–07. McKay saw

Smith’s eyes when he adjusted his sunglasses. Id. at 78–79. And Leighton

wrote down Smith’s description when he entered the bank because he was

behaving suspiciously. Id. at 98–99. In short, three reliable eyewitnesses

identified Smith as the perpetrator. Given their testimony, Fraley’s

identification was cumulative and did not significantly contribute to Smith’s

conviction. Therefore, Smith is not entitled to federal habeas relief on the

basis of the claim in Ground Two.

C. Ground Three

As Ground Three, Smith alleges the trial court committed fundamental

error when it failed to instruct the jury on his alibi defense.6 See Petition at

11. The claim in Ground Three is unexhausted because Smith did not present

the federal nature of it to the state court. On direct appeal, Smith argued

that the trial court’s refusal to instruct the jury on his alibi defense

constituted fundamental error under Florida law. See Doc. 5-3 at

43–47. The State filed an answer brief, Doc. 5-4 at 21–28, and the First DCA

per curiam affirmed Smith’s conviction and sentence without a written

opinion, Doc. 5-6 at 4. “[T]he fundamental error question is an issue of state

law, and state law is what the state courts say it is.” Pinkney v. Sec’y, Dept.

of Corr., 876 F.3d 1290, 1296 (11th Cir. 2017). And Smith did not present any

federal constitutional grounds in support of this claim on direct appeal.

6 Florida’s alibi jury instruction states:

An issue in this case is whether defendant was

present when the crime allegedly was committed.

If you have a reasonable doubt that the defendant

was present at the scene of the alleged crime, it is

your duty to find the defendant not guilty.

Fla. Std. Jury Instr. (Crim.) 3.6(i).

Therefore, to the extent Smith now raises a federal claim, the Court finds he

failed to fairly present the claim to the state court, which deprived the state

court of a meaningful opportunity to review the claim. Because future

attempts to exhaust the claim would be futile, the claim is procedurally

defaulted. Smith has alleged neither cause and prejudice nor a miscarriage of

justice to overcome his failure to exhaust. As such, the claim is procedurally