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

> District Court, M.D. Florida · June 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11082403

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11082403

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.
2
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.

3
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.

4
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
5
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
6
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,
7
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
8
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).
9
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).
10
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).
11
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.

12
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
13
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
14
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

15
[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?

16
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.
17
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
18
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
19
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.

20
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.

21
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
22
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.

23
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).

24
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

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.
“State court jury instructions ordinarily comprise issues of state law
and are not subject to federal habeas corpus review absent fundamental
unfairness.” Jones v. Kemp, 794 F.2d 1536, 1540 (11th Cir. 1986). On federal

habeas review, to establish fundamental unfairness, the petitioner must
25
demonstrate “the error ‘so infected the entire trial that the resulting
conviction violates due process.’” Jacobs v. Singletary, 952 F.2d 1282, 1290

(11th Cir. 1992) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
Moreover, “[a]n omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Kibbe, 431 U.S. at 155.
Here, while the trial court did not instruct the jury on Smith’s alibi

defense because counsel never requested the specific instruction, the trial
court’s charge correctly stated the law and encompassed Smith’s defense. The
jury was properly instructed as to the elements of armed robbery, the burden
of proof in a criminal case, and the evaluation of evidence. Doc. 5-1 at 111–12,

116–17. Specifically, the trial court instructed the jury that “the State has the
burden of proving the crime with which the defendant is charged was
committed and the defendant is the person who committed the crime.” Id. at
116 (emphasis added). And the jury was instructed that they should find

Smith not guilty of the crime charged if the State had not proved the case
beyond a reasonable doubt. Id.
Review of the record also reveals that Smith presented an alibi defense
at trial. During opening statements and closing arguments, the defense

argued that Smith was misidentified as the perpetrator because he was home
26
with his wife and children at the time of the bank robbery. Doc. 5-2 at 26–28,
471–93. Both Smith and his wife testified that he could not have committed

the robbery because, after Smith picked his wife up at Bed, Bath and Beyond
around 3:30 p.m., they drove to the beach to pick up the children and
returned home. Id. at 192–95, 247–51.
Based on the trial court’s instructions, the jury knew that it should find

Smith not guilty if there was any reasonable doubt he was the person who
committed the robbery. And Smith had the opportunity to present evidence in
support of his alibi; however, the jury rejected his defense. As such, the
failure to specifically instruct on Smith’s alibi defense did not render his trial

fundamentally unfair. Therefore, he is not entitled to federal habeas relief on
the basis of the claim in Ground Three.
D. Ground Four
As Ground Four, Smith merely alleges “Motion for DNA Testing.”

Petition at 13. He further asserts that he “met all requirements and should’ve
been approved.” Id. The record shows that Smith through counsel filed a Rule
3.853 motion for DNA testing. Doc. 5-14 at 2–25. In the Rule 3.853 motion, he
sought additional, more advanced DNA testing of swabs from the crime scene

that previous testing failed to produce a DNA profile. See generally id. The
27
State responded. Doc. 5-15 at 14–26. The postconviction court adopted the
State’s response and denied relief. Id. at 2–4.

Pursuant to Rule 3.853, a movant can file a motion for postconviction
DNA testing. Fla. R. Crim. P. 3.853(a). “If the movant is successful, those
procedures culminate only in ‘the results of the DNA testing ordered by the
court [being] provided in writing to the court, the movant, and the

prosecuting authority.’” Brown v. Sec’y for Dep’t of Corr., 530 F.3d 1335, 1337
(11th Cir. 2008) (citing Fla. R. Crim. P. 3.853 and § 925.11(2)(i), Fla. Stat.).
As such, “a Rule 3.853 proceeding involves an application for discovery only,
pursuant to which the court lacks authority to order relief from the movant’s

sentence or conviction based on the DNA test results.” Id. Because DNA
testing would not change the fact or duration of Smith’s detention, he is not
entitled to federal habeas relief. See Skinner v. Switzer, 562 U.S. 521, 534
(2011). Moreover, any defect in the Rule 3.853 proceeding would not provide a

basis for federal habeas relief. See Carroll v. Sec’y, Dep’t of Corr., 574 F.3d
1354, 1365 (11th Cir. 2009) (“This Court has repeatedly held defects in state
collateral proceedings do not provide a basis for habeas relief.”).
To the extent Smith argues that the postconviction court erred when it

denied his Rule 3.853 Motion, this claim is not cognizable in a federal habeas
28
petition because it is a matter of state law. See Swarthout v. Cooke, 562 U.S.
216, 219 (2011) (holding errors of state law are not cognizable in federal

habeas review). The Court also notes that there is no substantive due process
right to postconviction access to DNA evidence, see Dist. Att’y’s Off. for Third
Jud. Dist. v. Osborne, 557 U.S. 52, 72 (2009), and Smith has not asserted any
federal constitutional violation in Ground Four. Therefore, his request for

DNA testing rests solely on state law and is not cognizable in a federal
habeas petition. Based on the above, relief on the claim in Ground Four is
due to be denied.
E. Ground Five

In Ground Five, Smith contends counsel was ineffective when he failed
to investigate and present witnesses at trial. See Petition at 14. According to
Smith, counsel knew about “several witnesses at the beach the day the
robbery occurred” but counsel never interviewed these witnesses. Id.

Smith raised a substantially similar claim in his amended Rule 3.850
motion. Doc. 5-8 at 6–11. Following an evidentiary hearing, the
postconviction court denied relief, stating in pertinent part:

Defendant and his wife testified at trial, and both
gave similar timelines regarding the day of the
robbery. Defendant picked his wife up after work at
29
approximately 3:30 p.m. They drove to the beach to
pick up their children at approximately 4:00 p.m.
They returned home sometime around 4:15 p.m. to
4:30 p.m. On cross-examination, the State argued
Defendant was biased because he did not want to go
[to] jail and his wife was biased because she loved her
husband and did not want their children to lose their
father. The State reiterated these arguments during
closing.
Because Defendant alleged non-biased witnesses
should have been investigated and called in order to
support his defense, this Court held an evidentiary
hearing to resolve Ground One. Defendant only
produced one witness—Susan McLaroy. She had an
incomplete memory of the day in question: she
remembered Defendant coming over, and she
remembered him leaving to pick up his wife, but she
had no memory of when Defendant returned or left.
Based upon her testimony, there is no reasonable
probability the ultimate outcome of Defendant’s trial
would have been different had counsel called her as a
witness.
Defendant also testified, and he claimed that he had
given counsel names and information critical to an
alibi defense. Counsel gave conflicting testimony and
had no notes or recollection of Defendant providing
him with a way to contact any additional witnesses.
Had information been provided, counsel would have
investigated it. This Court finds counsel’s testimony
more credible on this point.

Doc. 5-10 at 3–4 (record citations omitted). The First DCA per curiam
affirmed the postconviction court’s order without a written opinion. Doc. 5-13
at 3–4. For purposes of analysis, the Court will assume that Smith
30
sufficiently exhausted the claim in state court and that the claim is properly
before this Court.7

To the extent that the First DCA decided this claim on the merits,8 the
Court applies the deferential standard for federal court review of state court
adjudications. 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.
Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, Smiths ineffectiveness claim is without merit
because the record supports the postconviction court’s findings. The

postconviction court made a factual determination when it chose to credit the
testimony of Smith’s trial counsel. See Consalvo v. Sec’y for Dep’t of Corr.,

7 See Response at 33 (arguing Smith raised a similar, but not the same, claim
in his amended Rule 3.850 motion).
8 Throughout this Order, in looking through the appellate court’s per curiam
affirmance to the circuit court’s “relevant rationale,” the Court presumes that the
appellate court “adopted the same reasoning.” Wilson, 584 U.S. at 125.
31
664 F.3d 842, 845 (11th Cir. 2011) (“We consider questions about the
credibility and demeanor of a witness to be questions of fact.”). Therefore, the

Court must presume the finding is correct unless Smith can rebut the
presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Here, Smith has not rebutted the postconviction court’s credibility
finding by clear and convincing evidence. The postconviction court credited

counsel’s testimony that: (1) he had no notes or recollection of Smith
providing him with any information about additional witnesses, and (2) if
Smith had provided him with this information, counsel would have
investigated it. The postconviction court’s factual finding refutes the claim

regarding counsel’s alleged deficiency in failing to investigate and call
witnesses. Given the postconviction court’s credibility determination, Smith’s
claim is wholly unsupported, and therefore fails. Accordingly, Smith is not
entitled to federal habeas relief as to the claim in Ground Five.

F. Ground Six
Next, Smith asserts that counsel was ineffective when he failed to
request a jury instruction on Smith’s alibi defense. See Petition at 17. Smith
raised a substantially similar claim in his amended Rule 3.850 motion. Doc.

32
5-8 at 11–13. Following an evidentiary hearing, the postconviction court
denied relief, stating:

At the evidentiary hearing, counsel could not recall
why he did not request an alibi instruction when he
had argued alibi to the jury. Relying upon several
cases, Defendant argues this establishes that counsel
was ineffective. However, this Court finds all of the
cases distinguishable.

The first line of cases involves direct appeals where a
trial court refused to give an alibi instruction when
sufficient evidence of alibi had been presented at
trial. E.g., Watson v. State, 200 So. 2d 270 (Fla. 2d
DCA 1967); Hudson v. State, 381 So. 2d 344 (1980);
Davis v. State, 254 So. 2d 221 (1971). In the instant
case, no one disputes that Defendant would have
been entitled to an alibi instruction had counsel
requested one, so these cases have little bearing on
the matter at hand.
The second line of cases involves postconviction
claims where counsel either failed to object to the
given instructions or failed to request an instruction.
E.g., Platt v. State, 697 So. 2d 989 (Fla. 4th DCA
1997); Cabrera v. State, 766 So. 2d 1131 (Fla. 2d DCA
2000). However, the instructions in these cases either
established the basis for a defense or would have
provided an alternative avenue for acquittal. Platt,
697 So. 2d at 991; Cabrera, 766 So. 2d at 1134.
The standard alibi jury instruction provides as
follows: “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
33
crime, it is your duty to find the defendant not
guilty.” Fla. Std. Jury Instr. (Crim.) 3.6(i). The State
presented evidence that Defendant walked into a
bank and committed a robbery, and Defendant
presented evidence that he had been at home at the
time. By finding Defendant guilty, the jury
necessarily found that Defendant was present at the
scene of the crime. Accordingly, Defendant cannot
demonstrate he was prejudiced by counsel’s failure to
request the instruction, so he is not entitled to relief
on Ground Two.

Doc. 5-10 at 4–5. The First DCA per curiam affirmed the postconviction
court’s order without a written opinion. Doc. 5-13 at 3–4.
To the extent that the First DCA decided this claim on the merits, the
Court applies the deferential standard for federal court review of state court
adjudications. 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 state court’s adjudication of this claim is not
entitled to deference, Smith’s ineffectiveness claim is still without merit. As
34
the Court observed in Ground Three, supra, the trial court properly
instructed the jury on the elements of the crime charged, the burden of proof,

and the evaluation of evidence. Moreover, at trial, Smith and his wife
testified that he was at home with his family when the robbery occurred. In
contrast, the State presented the testimony of three eyewitnesses who
identified Smith as the perpetrator.

Given the instructions and evidence presented, the jury was aware that
if it found the defense witnesses credible, it should acquit Smith of the
offense charged. The jury clearly rejected Smith’s alibi defense and instead
credited the testimony of the State witnesses. As such, Smith has not shown

a reasonable probability exists that the outcome of the case would have been
different if counsel had requested a specific alibi instruction. Accordingly,
relief on the claim in Ground Six is due to be denied.
G. Ground Seven

As Ground Seven, Smith alleges counsel was ineffective when he failed
“to conduct DNA testing.” Petition at 19. He argues that counsel should have
sought independent DNA testing of swabs from the crime scene after tests by
the Florida Department of Law Enforcement crime lab did not produce a

DNA profile. Id.; see also Doc. 5-8 at 14–16.
35
Smith raised a substantially similar claim in his amended Rule 3.850
motion. Doc. 5-8 at 14–16. The postconviction court denied relief, stating in

pertinent part:
Any claim that additional DNA testing would have
exonerated Defendant is speculative. Bertonatti v.
State, 251 So. 3d 237, 243 (Fla. 3d DCA 2018).
Defendant previously moved to have this evidence
tested pursuant to Florida Rule of Criminal
Procedure 3.853. This Court denied his motion on the
merits, and the First District Court of Appeal
affirmed. Accordingly, Defendant is not entitled to
relief on Ground Three.

Doc. 5-10 at 6 (emphasis in original) (record citations omitted). The First
DCA per curiam affirmed the postconviction court’s order without a written
opinion. Doc. 5-13 at 3–4.
To the extent that the First DCA decided this claim on the merits, the
Court applies the deferential standard for federal court review of state court
adjudications. 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
36
proceedings. Therefore, Smith is not entitled to relief on the basis of this
claim.

Assuming arguendo the state court’s adjudication of this claim is not
entitled to deference, Smith’s ineffectiveness claim is still without merit
because his allegations are facially insufficient to support a claim of
ineffective assistance of counsel. Vague, conclusory, speculative, or

unsupported claims cannot establish an ineffective assistance of counsel
claim. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991). More than
mere conceivability is required to establish prejudice; indeed, the likelihood of
a different result must be substantial, not just conceivable. Jenkins v.

Comm., Ala. Dep’t of Corr., 963 F.3d 1248, 1264 (11th Cir. 2020). The Court
finds this claim is conclusory and speculative because Smith merely alleges,
without support, that independent DNA testing would produce exculpatory
results. As such, it does not entitle Smith to federal habeas relief. Therefore,

the Court will deny relief as to Ground Seven.
H. Ground Eight
Last, in Ground Eight, Smith argues that the cumulative impact of
counsel’s errors prejudiced him at trial. See Petition at 21. Where all

individual claims are meritless, the claim of cumulative error is also without
37
merit. See Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir.
2012). Because each of Smith’s individual claims lack merit, his claim of

cumulative error fails. Accordingly, relief on the claim in Ground Eight is due
to be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Smith seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not warranted. The
Court should issue a certificate of appealability only if the petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, Smith “must demonstrate that
reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,
282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the
issues presented were ‘adequate to deserve encouragement to proceed
further,’” Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Where a district court has rejected a petitioner’s constitutional claims
on the merits, the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
38
wrong. See Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show that “jurists

of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id.
Upon consideration of the record as a whole, the Court will deny a certificate

of appealability.
Therefore, it is now ORDERED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Smith appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the Court has determined that a

certificate of appealability is not warranted, the Clerk shall terminate from
the pending motions report any motion to proceed on appeal as a pauper that
may be filed in this case. Such termination shall serve as a denial of the
motion.

39
4. The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 20th day of
June, 2025.

MARCIA MORALES HOWARD
United States District Judge

Jax-9 6/11
C: Brian Keith Smith, #124505
Counsel of record

40

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11082403. Public record. Not legal advice.