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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GEORGE SHRADER,

Petitioner,

v. Case No. 8:22-cv-1587-MSS-NHA

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

O R D E R

Shrader filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254

challenging his state court convictions for first-degree murder and aggravated sexual

battery. After reviewing the petition (Doc. 1), the response (Doc. 7), the reply

(Doc. 9), and the relevant state court record, the Court DENIES the petition.

PROCEDURAL HISTORY

A jury found Shrader guilty of first-degree murder and two counts of aggravated

sexual battery, and the trial judge sentenced Shrader to life with the eligibility for

parole after twenty-five years for the first-degree murder conviction and life without

parole for the two aggravated sexual battery convictions. (Doc. 8-1 at 1168–70)

Shrader appealed, and the state appellate court affirmed in a written en banc opinion.

(Doc. 8-1 at 1277–1333) The state supreme court denied review of the written opinion.

(Doc. 8-1 at 1492)

Shrader filed a petition alleging ineffective assistance of appellate counsel

(Doc. 8-1 at 1496–1508), and the state appellate court denied relief. (Doc. 8-1 at 1511)

Shrader filed a motion for post-conviction relief (Doc. 8-1 at 1513–21), the

post-conviction court denied relief (Doc. 8-1 at 1621–28), and the state appellate court

affirmed. (Doc. 8-1 at 1902) Shrader’s federal petition follows.

FACTS

The state appellate court’s written en banc opinion1 affirming Shrader’s

convictions and sentences summarized the evidence at trial as follows (Doc. 8-1 at

1278–82):

The evidence adduced at trial, viewed in the light most

favorable to the State, established the following facts: Three

decades ago in the early morning hours of January 27, 1986,

a law enforcement officer discovered the dead body of a

female victim lying in the middle of a dirt road. She had

been stabbed thirty-six times and was wearing only a

T-shirt. She lay in a pool of her own blood, and her body

was still warm to the touch despite it being bitterly cold that

morning. The officer noticed that there were signs of a

struggle in the area where the victim lay.

Crime scene technicians collected swabs from the victim’s

vagina and anus as part of a rape kit protocol. They also

collected soil samples containing drops of blood leading

away from her body. Those drops of blood did not belong

to the victim. The investigation went cold. In 2007, a cold

case committee consisting of current and former law

enforcement officers, representatives of the State Attorney’s

and Medical Examiner’s offices, and the Biology and

Forensics Division of Florida’s Department of Law

Enforcement recommended that the Hillsborough County

1 Nine state appellate court judges concurred in the written en banc opinion, three

judges concurred with a separate opinion, two judges concurred only in the result, and

one judge dissented. (Doc. 8-1 at 1294)

Sheriff’s Office re-open the case of the unsolved murder of

the victim described above. Three years later, a Florida

statewide DNA database yielded a match between the

DNA collected from the victim’s rape kit and Shrader’s

DNA.

The State brought Shrader to trial in 2013. During the

State’s case-in-chief, it presented physical evidence and the

testimony of seventeen witnesses. Sergeant Robert King of

the Hillsborough County Sheriff’s Office testified that he

discovered the victim’s dead body on the early morning of

January 27, 1986. The victim’s body lay in the middle of a

dirt road in an undeveloped peninsula in Hillsborough

County known as Whiskey Stump.

Sergeant King described that morning as “bitterly cold” and

the temperature as being in the “high twenties, low thirties.”

Despite the low temperature, the victim’s neck was warm to

the touch, and Sergeant King observed steam emanating

from the victim’s dead body. Moreover, the victim was not

dressed for cold weather. She was almost completely nude,

save for a yellow T-shirt. In fact, the victim was not dressed

in any of the clothing witnesses observed her wearing earlier

in the evening, when she was hitching a ride from an

establishment known as the Happy Days Lounge to another

establishment known as the East Side Lounge.

Sergeant King testified that when he observed the crime

scene, he saw “signs of what appeared to be a struggle right

there.” The State published photographs to the jury of the

crime scene and of the victim’s slain body. She had been

stabbed thirty-two times in the front, side, and back of her

body, and she was found lying in a large pool of her own

blood, which stained her bare buttocks and thighs. The

photographs also displayed four additional wounds — three

to her left upper arm and one to her right hand — which the

medical examiner testified were defensive in nature. The

State presented evidence demonstrating that Shrader’s

DNA matched not only blood drops leading away from the

victim’s body, but also semen found inside the victim’s

vagina and anus.

When cold case investigators Detective Chris Fox and

Special Agent James Noblitt interviewed Shrader on

January 31, 2011, and February 18, 2011, Shrader denied

ever knowing the victim and denied ever having been to

Whiskey Stump. And when they showed him a photograph

of the victim, Special Agent Noblitt noticed that Shrader

immediately looked away without even examining the

photo. At the conclusion of their second interview, Special

Agent Noblitt invited Shrader to call them if he remembered

being with the victim. Despite having repeatedly denied

knowing the victim throughout the interview, Shrader

responded that he would “meditate and think and see” if he

could “figure out what’s going on.”

The State further presented evidence that Shrader’s right

hand bore newly acquired cuts to his pinky and ring fingers

on January 27, 1986, which was the very same day that

Sergeant King had found the victim’s body. On that day,

Shrader had those cuts sutured at Tampa General Hospital,

and when he appeared at the Hillsborough County

Courthouse that day to have his fingerprints taken for an

unrelated matter, Shrader was unable to give any prints

from his right hand because of those recently sutured cuts.

Shrader told a doctor that he received the cuts while

working as a roofer. But when one of Shrader’s then-

roommates inquired as to how he cut his fingers, Shrader

told her a different story — that he injured his hand on a

nail sticking up from a banister at their apartment. The

roommate testified that she had never gotten more than a

scratch from the nail in question and that even her children

managed to avoid getting injured by the nail on the banister.

When Detective Fox and Special Agent Noblitt asked

Shrader in February 2011 about the cuts he received on his

right hand back in 1986, Shrader claimed that he cut his

hand on a knife while reaching into a dishwasher. But

Shrader’s roommate from that time would testify that they

did not even own a dishwasher and that, at any rate,

Shrader never washed dishes. And when the cold case

investigators asked Shrader where he received his sutures

back on January 27, 1986, Shrader responded: “At the

hospital.” But when asked which hospital, Shrader

hesitantly claimed that he did not recall. Shrader then

changed his story and claimed that he never received

sutures at all, before finally answering that he did not

remember one way or another.

STANDARDS OF REVIEW

AEDPA

Because Shrader filed his federal petition after the enactment of the

Antiterrorism and Effective Death Penalty Act, AEDPA governs his claims. Lindh v.

Murphy, 521 U.S. 320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

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.

A decision is “contrary to” clearly established federal law “if the state court

arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a

question of law or if the state court decides a case differently than [the U.S. Supreme

Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.

362, 413 (2000). A decision involves an unreasonable application of clearly

established federal law “if the state court identifies the correct governing legal

principle from [the U.S. Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. Clearly

established federal law refers to a holding of an opinion by the U.S. Supreme Court

at the time of the relevant state court decision. Williams, 529 U.S. at 412.

“[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 v. Cone, 535 U.S.

685, 693 (2002). A federal petitioner must show that the state court’s ruling was “so

lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility of fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011).

Ineffective Assistance of Counsel

Shrader asserts ineffective assistance of counsel — a difficult claim to sustain.

Strickland v. Washington, 466 U.S. 668, 687 (1984), requires a defendant to

demonstrate both deficient performance and prejudice:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.

“[T]here is no reason for a court . . . 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.” Strickland,

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

reasonableness of counsel’s challenged conduct on the facts of the particular case,

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

“An 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 demonstrate prejudice, the defendant

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

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

A reasonable probability is a “probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

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

466 U.S. at 690. A defendant cannot meet his burden by showing that the avenue

chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21

(11th Cir. 1992).

Because the standards under Strickland and AEDPA are both highly

deferential, “when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S.

at 105. “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.’” Nance v. Warden, Ga. Diag. Prison, 922

F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).

Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before

a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner

must (1) alert the state court to the federal nature of his claim and (2) give the state

court one full opportunity to resolve the federal claim by invoking one complete

round of the state’s established appellate review process. O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The state court must

have the first opportunity to review and correct any alleged violation of a federal

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

A federal court may stay a habeas case to allow a petitioner to return to state

court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005); Rose v. Lundy, 455

U.S. 509 (1982). If the state court would deny the claim on a state procedural ground,

the federal court instead denies the claim as procedurally defaulted. Snowden v.

Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991)). Also, a petitioner’s failure to comply with a state procedural

rule governing the proper presentation of a claim bars review of that claim on federal

habeas. Coleman, 501 U.S. at 729. “[A] state court’s rejection of a federal

constitutional claim on procedural grounds will only preclude federal review if the

state procedural ruling rests upon [an] ‘independent and adequate’ state ground.”

Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).

To excuse a procedural default on federal habeas, a petitioner must

demonstrate either (1) cause for the default and actual prejudice from the alleged

violation of federal law or (2) a miscarriage of justice. Maples v. Thomas, 565 U.S.

266, 280 (2012); House v. Bell, 547 U.S. 518, 536–37 (2006).

ANALYSIS

Ground One, Subclaim A

Shrader asserts that the trial judge violated his federal rights by denying a

motion for a mistrial after jurors read a newspaper article about the case. (Doc. 1 at

3, 8–12) Shrader asserts that the trial judge violated his rights under the Fifth, Sixth,

and Fourteenth Amendments. (Doc. 1 at 12)

The Respondent argues that Shrader failed to exhaust his remedies for a claim

based on a violation of the Fifth and Fourteenth Amendments. (Doc. 7 at 26–27)

However, in his brief on appeal, Shrader cited numerous opinions by the United

States Supreme Court and by federal circuit courts. (Doc. 8-1 at 1204–10)

Consequently, Shrader sufficiently alerted the state appellate court to the federal

nature of his claim. Lucas v. Sec’y, Dep’t Corrs., 682 F.3d 1342, 1352 (11th Cir. 2012)

(“To ‘fairly present’ a claim, the petitioner is not required to cite ‘book and verse on

the federal constitution.’”) (quoting Picard, 404 U.S. at 278).

The state appellate court affirmed the trial judge’s denial of the motion for a

mistrial as follows (Doc. 8-1 at 1294):

Shrader contends the trial court abused its discretion by

denying his motion for mistrial based on his allegation that

he was denied a fair trial because the jury had been tainted

by certain jurors possibly having been briefly exposed to a

newspaper article regarding Shrader. The record

demonstrates that the trial court thoroughly investigated

this allegation and supports the trial court’s factual finding

that the jury had not been tainted. Accordingly, we

conclude the trial court did not abuse its discretion in

denying the motion for mistrial. See England v. State, 940

So. 2d 389, 401–02 (Fla. 2006) (“A motion for a mistrial

should only be granted when an error is so prejudicial as

to vitiate the entire trial.” (citing Snipes v. State, 733 So. 2d

1000, 1005 (Fla. 1999)).

Whether a trial judge must grant a motion for a mistrial is an issue of state

law, and a federal court defers to a state court’s determination of state law. Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court

to reexamine state-court determinations on state-law questions.”).

“The Supreme Court has held that a defendant has the right to trial by an

impartial jury and that, ‘[i]n the constitutional sense, trial by jury in a criminal case

necessarily implies at the very least that the evidence developed against a defendant

shall come from the witness stand in a public courtroom where there is full judicial

protection of the defendant’s right of confrontation, of cross-examination, and of

counsel.’” Parker v. Head, 244 F.3d 831, 839 (11th Cir. 2001) (quoting Turner v.

Louisiana, 379 U.S. 466, 472–73 (1965)).

“To safeguard a defendant’s constitutional rights, the exposure of a jury to

extrinsic information has been ‘deemed presumptively prejudicial.’” Parker, 244 F.3d

at 839 (quoting Remmer v. United States, 347 U.S. 227, 229 (1954)). “To rebut a

presumption of prejudice, the government must show that the jurors’ consideration

of extrinsic evidence was harmless to the defendant.” Boyd v. Allen, 592 F.3d 1274,

1305 (11th Cir. 2010). “[A court] consider[s] the totality of the circumstances

surrounding the introduction of the extrinsic evidence to the jury, . . . includ[ing]: (1)

the nature of the extrinsic evidence; (2) the manner in which the information reached

the jury; (3) the factual findings in the trial court and the manner of the court’s inquiry

into the juror issues; and (4) the strength of the government’s case.” Boyd, 592 F.3d

at 1305.

On the morning of the second day of trial, the trial judge informed the parties

that the bailiff confiscated from a juror a newspaper that contained an article about

the case (Doc. 8-1 at 494–98):

[Trial judge:] Okay. Good morning. I see

Mr. Shrader and our counsel are

present. Do I understand our jury is

present?

[Bailiff:] I think we are missing a few.

[Trial judge:] I am going to raise one issue with you

because I believe as soon as anything

like this comes to the attention of any

of us, and certainly the judge, we put it

on the record.

I understand that in this morning’s

TBT2, there may have been an article

dealing with this case. I have not read

nor seen the article myself, but

I understand at least one member — is

it one?

2 The TBT is a free newspaper published by the Tampa Bay Times. (Doc. 8-1 at 500)

[Bailiff:] I don’t know.

[Trial judge:] I was advised, and you correct me if

I’m wrong, that one member of the jury

walked in carrying a TBT and that was

confiscated.

[Bailiff:] That was taken on the way in, and

when I stepped in, they had it open.

[Trial judge:] Let’s be very specific. Get whoever [ ]

it is in here who saw this because I need

to know what “they” means. Was it

one person, two people, who was it?

Ask Deputy Brock to step in.

[Bailiff:] Do you want me to bring that one juror

in?

[Trial judge:] Not yet. Right now, I’m trying to

provide counsel with information

about what I understand that I’ve been

advised, and I want to make sure I do

that accurately. Ask her to step in if she

is the one who observed this.

Hi.

[Deputy Brock:] Hi.

[Trial judge:] And, Deputy, I want to be accurate in

advising the jurors. Do I understand

that you observed a member of the jury

walk in, carrying in their hand a

newspaper called the TBT?

[Deputy Brock:] Yes, sir.

[Trial judge:] And you confiscated that?

[Deputy Brock:] Several.

[Trial judge:] Several, that they had in their hands?

[Deputy Brock:] Yes, sir.

[Trial judge:] When you walked in, did you see one

juror or more than one juror with it

open to the article?

[Deputy Brock:] They were standing around the table.

I’m not sure how many were staring at

it, but it was open on the table.

[Trial judge:] All right. Now, that said, I’ll hear from

counsel.

[Prosecutor:] May I inquire of the deputy?

[Trial judge:] Yes, go ahead. I want to make sure that

the facts are out here.

[Prosecutor:] Deputy, can you be clear whether the

paper that they were looking at was

open to the specific article dealing with

this trial or was it open to another

page?

[Deputy Brock:] No, there is an article of this trial. The

picture is from the trial as well.

[Prosecutor:] Was that what the paper was open to

when they were looking at it?

[Deputy Brock:] Yes.

[Prosecutor:] Thank you.

[Trial judge:] All right.

[Trial counsel:] May I?

[Trial judge:] Sure.

[Trial counsel:] How many were looking at it?

[Deputy Brock:] Like I said, they were standing around

the table. I can’t be sure how many

were actually looking at it before I got

there, but —

[Bailiff:] I would say there was maybe one or

two. One had it open, and they were

sitting there, and there was one or two

people looking, and as we walked in,

we said, did you read this article. They

said, no, we just saw it. They said we

didn’t read it, but we did see it.

[Trial judge:] Do we have a copy of what it is that

they quote “saw”?

[Bailiff:] I can get you one.3

[Prosecutor:] Can I ask the bailiff, Your Honor, —

[Trial judge:] — we’re going to let you ask questions,

but let’s wait just a second.

I’m being handed a copy of the paper

now. This, for the record, is commonly

handed out for free around the

courthouse. All right. I’m looking at it.

All right. Let’s go ahead. Have you had

a chance to see this?

[Trial counsel:] Not that one. I saw the mainstream

paper.

[Trial judge:] All counsel, take a copy of it. Just a

minute, Deputy Brock. We’re going to

ask any other questions we wish to ask.

All right. Now, are all of our jurors

back yet?

3 A copy of the newspaper article is in the appendix filed by the Respondent.

(Doc. 8-1 at 488)

[Bailiff:] Yes, sir.

[Prosecutor:] Deputy, can you identify specifically

what jurors were looking at this article?

[Bailiff:] I would have to look at the list here.

[Prosecutor:] And, Your Honor, for the record, this

article is online on their website, too,

[ ] and I read it last night.

[Trial judge:] Okay.

[Bailiff:] I believe it would be Karen Childs

Smith [who] was [ ] sitting at the table

with it open. I don’t know who was

over her shoulder. I just keyed in on the

article.

[Deputy Brock:] There was a group of them standing

around.

[Bailiff:] Right.

During the discussion between the trial judge and the parties, trial counsel

identified prejudicial language in the article (Doc. 8-1 at 499–500):

[Trial counsel:] I’m particularly concerned, and let me

make this a record, that the cut line of

the photograph in the Tampa Bay

Times, the little — the free newspaper

Your Honor referred to a minute ago,

has a cut line that says, convicted of

second-degree murder in 1986.

The prosecutor asked the bailiff additional questions about his observations

(Doc. 8-1 at 501):

[Prosecutor:] I just wanted to ask, you all mentioned

there [were] people standing around.

Did it appear to you that the people

standing around, the jurors standing

around, were they hovering behind this

female that was reading or had the

paper open in front of her? I just want

to be as specific for the record as we

can about that.

[Bailiff:] I would say there was one or two

behind them, and there were others on

the other side of the table who were

kind of looking at the newspaper

because she had it open.

[Prosecutor:] The people behind her, were they

looking at the newspaper?

[Bailiff:] It looks as though they were.

[Prosecutor:] Did it appear as you entered the room

that there [were] any discussions

occurring?

[Bailiff:] No.

The trial judge and the parties questioned each juror individually about the

newspaper article. Juror Ly, Juror O’Brien, and Juror Moore denied reading an

article about the case and denied observing any other person in the jury room with a

newspaper. (Doc. 8-1 at 509–10, 516–17) Juror Hill and Juror Lucas observed a juror

walk into the room with a newspaper but denied observing anyone read it because

the bailiff took the newspaper away. (Doc. 8-1 at 503–04, 515) Juror Rodriguez, Juror

Nunez, and Juror Cummings observed a newspaper on the table in the jury room but

denied observing anyone read it. (Doc. 8-1 at 505–06, 512–14) Juror Stenson

observed another juror walk into the room with a newspaper and a bailiff take the

newspaper away after instructing the jurors not to read it. (Doc. 8-1 at 520–21) Juror

Phelps heard that a newspaper was found in the jury room, denied hearing any juror

comment about the newspaper, and did not observe any juror read the newspaper

because the newspaper was confiscated. (Doc. 8-1 at 528–30)

Juror Davis stated that another juror told him not to read the newspaper

because the juror saw an article about the case. (Doc. 8-1 at 507–08) Juror Park

observed Juror Ward reading a newspaper, looking at a picture of Shrader in the

newspaper, and turning the page after commenting, “Oh, there’s something in here,”

and “Don’t look at page ten.” (Doc. 8-1 at 518–19) Juror Park denied that anyone

read or looked at the article about Shrader because the bailiff took the newspaper

away. (Doc. 8-1 at 518) Juror Childs Smith saw Juror Ward with a newspaper in the

jury room, saw out of the corner of her eye a picture in the newspaper, and observed

Juror Ward quickly close the newspaper. (Doc. 8-1 at 523–25) Juror Childs Smith

did not remember what the picture depicted, denied reading an article in the

newspaper, and stated that Juror Ward was only flipping through the newspaper.

(Doc. 8-1 at 523–25)

Juror Ward stated that he brought a newspaper into the jury room. (Doc. 8-1

at 525–26) Juror Ward stated that he observed a picture in the newspaper for about

three seconds but denied reading any text around the picture and stated that he turned

the page after looking at the picture. (Doc. 8-1 at 526–28) Juror Ward denied that he

told the other jurors anything and denied that he saw any other juror look at the

newspaper. (Doc. 8-1 at 526–28) At the end of trial, the trial judge discharged Juror

Ward as an alternate juror. (Doc. 8-1 at 1025–27)

Each juror denied that he or she had learned any fact that prevented him or

her from acting fairly and impartially in the case. (Doc. 8-1 at 503–06, 508–22,

524–25, 527–29)

During further questioning, Deputy Brock stated that, when she entered the

jury room, she saw the newspaper open but could not see anything on the page

because a juror closed the newspaper. (Doc. 8-1 at 531) The bailiff saw the newspaper

open to the page with the article about the case and heard a juror comment that the

jurors must not look at the article. (Doc. 8-1 at 531) The bailiff immediately took the

newspaper. (Doc. 8-1 at 531) The bailiff thought that Juror Childs Smith and Juror

Ward briefly looked at the article and that other jurors may have looked over their

shoulders. (Doc. 8-1 at 532) Deputy Brock confiscated two newspapers, and the

bailiff confiscated a third newspaper from the table in the jury room. (Doc. 8-1 at

533–34)

The trial judge denied the motion for a mistrial as follows (Doc. 8-1 at

535–36):

[Trial judge:] I’ve listened to what the deputies had

to say and what the jurors had to say.

Thank you.

The court is going to find that it

conducted a thorough inquiry of each

of these jurors individually. I’ve

allowed a thorough inquiry of the

deputies. The one thing that is clear is,

no, there is not evidence that they

actually read any reports or other —

the evidence suggests that they were in

there. There was a paper open

somewhere to a page, at some point

obviously to the page that had this

photo, that apparently they did exactly

what I told them. As soon as he saw the

picture, they stopped.

That is what the evidence indicates,

and the testimony from our deputies

here today, while it says they were in

the area and may have been looking

towards the paper, [it] is not

contradictory to what we’ve [heard]

from fourteen individuals who came in

and were subjected to full inquiry.

Accordingly, I’ll specifically find that

they have not, since the allegation is

that they have been tainted, they have

not been tainted. They have not been

privy to information that is going [to]

render them unable to be fair and

impartial in [the] discharge of their

duties here.

Accordingly, the motion for mistrial is

denied, and we will continue.

Juror Park observed Juror Ward look at the picture of Shrader in the

newspaper, turn the page, and comment, “Don’t look at page ten.” (Doc. 8-1 at

518–19) Juror Davis heard another juror advise not to read the newspaper because

the juror saw an article about the case. (Doc. 8-1 at 507–08) Juror Childs Smith saw

out of the corner of her eye a picture in the newspaper and observed Juror Ward

quickly close the newspaper. (Doc. 8-1 at 523–25) Juror Ward stated that he saw the

picture in the newspaper for about three seconds, did not read any text around the

picture, and turned the page after looking at the picture. (Doc. 8-1 at 526–28)

Deputy Brock stated that, when she entered the jury room, she saw the

newspaper opened to a particular page but did not see what the page depicted because

a juror immediately closed the newspaper. (Doc. 8-1 at 531) The bailiff stated that he

saw one juror with the newspaper open and a few jurors looking at the article about

the case, that he asked the jurors whether they had read the article, and that the jurors

responded that they saw the article but did not read it. (Doc. 8-1 at 496–97, 501, 532)

The bailiff immediately took the newspaper. (Doc. 8-1 at 531)

The trial judge’s determination of facts is presumed correct, and Shrader fails

to rebut the determination with clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). Because the unrebutted evidence demonstrates that the jurors saw an

article about the case but did not read the article and that the jurors did not learn any

fact that prevented them from acting fairly and impartially in the case, the

state appellate court did not unreasonably deny the claim. Parker, 244 F.3d at 839.

Ground One, Subclaim A is DENIED.

Ground One, Subclaim B and Ground Two

In subclaim B of Ground One, Shrader asserts that the trial judge violated his

federal rights by denying his motion for judgment of acquittal. (Doc. 1 at 3) In

Ground Two, Shrader further asserts that appellate counsel deficiently performed by

failing to federalize the sufficiency of the evidence claim on direct appeal. (Doc. 1 at

13–14)

Ground One, Subclaim B

Shrader asserts that the trial judge violated his federal rights by denying his

motion for judgment of acquittal. (Doc. 1 at 3) He contends that the prosecutor failed

to rebut a reasonable hypothesis of innocence that consensual sex occurred before

the victim was killed. (Doc. 1 at 12) He argues that the prosecutor therefore failed to

prove felony murder based on a sexual battery. (Doc. 1 at 12)

The Respondent asserts that Shrader failed to fairly present a federal claim to

the state court. (Doc. 7 at 31–33) In his brief on direct appeal, Shrader asserted that

at trial the prosecutor failed to rebut his reasonable hypothesis of innocence. (Doc.

8-1 at 1211–14) Shrader did not assert that the trial judge violated federal due process,

did not cite any federal court opinion or constitutional provision, did label the issue

“federal,” and cited only state court opinions. (Doc. 8-1 at 1211–14) Because Shrader

failed to alert the state appellate court to the federal nature of his claim, Shrader failed

to exhaust his remedies in state court. Kelley v. Sec’y, Dep’t Corrs., 377 F.3d 1317, 1345

(11th Cir. 2004) (“‘[T]he exhaustion doctrine requires a habeas applicant to do more

than scatter some makeshift needles in the haystack of the state court record. The

ground relied upon must be presented face-up and squarely; the federal question must

be plainly defined.’”) (citation omitted).

If Shrader returned to state court to raise the federal due process claim, the

state post-conviction court would deny the claim as procedurally defaulted. Fla. R.

Crim. P. 3.850(c) (“This rule does not authorize relief based on grounds that could

have or should have been raised at trial and, if properly preserved, on direct appeal

of the judgment and sentence.”). Consequently, the claim is procedurally defaulted

in federal court. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen

it is obvious that the unexhausted claims would be procedurally barred in state court

due to a state-law procedural default, we can forego the needless ‘judicial ping-pong’

and just treat those claims now barred by state law as no basis for federal habeas

relief.”).

Because Shrader fails to demonstrate either cause and prejudice or a

miscarriage of justice based on actual innocence, the claim is procedurally barred in

federal court. (Doc. 9 at 7–8) Maples, 565 U.S. at 280; House, 547 U.S. at 536–37.4

Even if Shrader fairly presented a federal claim, the claim is meritless. The

state appellate court affirmed the trial judge’s denial of the motion for a judgment of

acquittal as follows (Doc. 8-1 at 1285–94):

“In reviewing a motion for judgment of acquittal,

a de novo standard of review applies.” Starks v. State, 223

So. 3d 1045, 1048 (Fla. 2d DCA 2017) (quoting Pagan v.

State, 830 So. 2d 792, 803 (Fla. 2002)).5 “Generally,

a motion for judgment of acquittal should be denied ‘[i]f,

after viewing the evidence in the light most favorable to the

State, a rational trier of fact could find the existence of the

elements of the crime beyond a reasonable doubt.’”

Westbrooks v. State, 145 So. 3d 874, 877 (Fla. 2d DCA 2014)

(alteration in original) (quoting Pagan, 830 So. 2d at 803);

see also Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974) (“The

courts should not grant a motion for judgment of acquittal

unless the evidence is such that no view which the jury may

lawfully take of it favorable to the opposite party can be

4 Shrader contends that he fairly presented a federal claim by asserting in his ineffective

assistance of appellate counsel petition that appellate counsel deficiently performed by

not federalizing the sufficiency of the evidence claim. (Doc. 9 at 7–8) The Court

addresses that claim in Ground Two.

sustained under the law.” (emphasis added)). As our

supreme court has explained:

Where there is room for a difference of

opinion between reasonable men as to the

proof or facts from which an ultimate fact is

sought to be established, or where there is

room for such differences as to the inferences

which might be drawn from conceded facts,

the court should submit the case to the jury

for their finding, as it is their conclusion, in

such cases, that should prevail and not

primarily the views of the judge.

Lynch, 293 So. 2d at 45.6

5 The dissent suggests that the panel opinion

properly employed a de novo review of

Shrader’s motion for judgment of acquittal in

its panel decision. Although we agree that the

panel opinion stated that it was conducting a

de novo review of the denial of the motion for

judgment of acquittal, it conducted anything

but a proper review. The panel opinion failed

to explain that our de novo review must yield

an affirmance of a conviction if it is supported

by competent, substantial evidence. See Boyd

v. State, 910 So. 2d 167, 180 (Fla. 2005) (“We

assess a trial court’s ruling on a motion for

judgment of acquittal on a de novo standard of

review and affirm the conviction if it is

supported by competent, substantial

evidence.”).

6 The panel opinion also improperly set forth

the evidence in the light most favorable to

Shrader, not the State, contrary to settled case

law. See Pagan, 830 So. 2d at 803; Lynch, 293

So. 2d at 45; Starks, 223 So. 3d at 1049.

Instead of drawing all inferences in favor of

the State, the panel opinion attempted to

provide contrived examples as to how the

evidence “could have” boded in favor of

Shrader’s attorney’s argument in support of

the motion for judgment of acquittal; namely,

that the victim consented to sex with him

prior to her being killed. We note that

Shrader’s attorney’s argument in support of

the motion for judgment of acquittal is

inconsistent with Shrader’s prior statements

that he neither knew the victim nor had

visited Whiskey Stump. Shrader seemed to

change his version of events after he learned

that the investigating officers had DNA

evidence connecting him to the victim and

Whiskey Stump. This is but one of Shrader’s

many telling and retellings of his version of

events. Be that as it may, the panel opinion

posited that the “sexual activity between

them could have occurred well before the

infliction of the fatal injuries, and there is no

medical evidence to suggest that the victim

suffered any sexual trauma.” 41 Fla. L.

Weekly at D2082. It further dismissed

evidence of “Shrader’s apparent evasions

about his whereabouts and not remembering

the victim” as evidence of his commissions of

the alleged sexual batteries. Id. Again, the

panel opinion theorized, with no evidentiary

support, that “Mr. Shrader may have chosen

to give evasive answers to the investigators’

questions about such topics whether or not he

had committed the alleged sexual batteries.”

Id. at D2082–83 (emphasis added). The panel

opinion went on to dismiss the fact that the

victim’s slain body was discovered naked

from the waist down by theorizing that “the

killer or killers could have removed her

clothing after the stabbing for a variety of

reasons.” Id. at D2083. These are not views of

the evidence in the light most favorable to the

State.

As an initial matter, Shrader has maintained throughout

this appeal that the special circumstantial evidence

standard applies, even in light of our supreme court’s

Knight decision. Our supreme court has described the

circumstantial evidence standard as follows: “Where the

only proof of guilt is circumstantial, no matter how

strongly the evidence may suggest guilt[,] a conviction

cannot be sustained unless the evidence is inconsistent

with any reasonable hypothesis of innocence.” Knight, 186

So. 3d at 1009 (alteration in original) (quoting Jaramillo v.

State, 417 So. 2d 257, 257 (Fla. 1982)). In Knight, the

supreme court

expressly [held] that the circumstantial

evidence standard of review applies only

where all of the evidence of a defendant’s

guilt — i.e., the evidence tending to show that

the defendant committed or participated in

the crime — is circumstantial, not where any

particular element of a crime is demonstrated

exclusively by circumstantial evidence.

Id. at 1010 (emphasis added).

Firmly grounded in his position that the special

circumstantial evidence standard applies, Shrader argues

that because the State neglected to present sufficient

evidence inconsistent with what he contends is a

reasonable hypothesis of innocence, the jury’s convictions

for the two sexual battery charges and the felony murder

charge predicated upon those sexual battery charges must

be reversed. Specifically, he maintains that the State did

not produce sufficient evidence inconsistent with his

reasonable hypothesis of innocence that the sexual acts

upon the victim were consensual and that the killing

occurred sometime later. We reject his argument.

First, we note that Knight clarified that the general

judgment of acquittal standard, not the special

circumstantial evidence standard, applies where there is

evidence tending to show that the defendant committed or

participated in the crime. Here, the State did not present

wholly circumstantial evidence supporting Shrader’s guilt

for sexual battery with a deadly weapon or actual physical

force likely to cause serious personal injury. Under the

facts of this case, Shrader’s DNA found inside the victim

is direct evidence of Shrader’s participation in the crime of

sexual battery. Indeed, this is so because Shrader denied

even knowing the victim, let alone having sexual contact

with her. See § 794.011(1)(i) and (3), Fla. Stat.; Fla. Std.

Jur. Instr. (Crim.) 11.2, Sexual Battery. Specifically,

during Detective Fox and Special Agent Noblitt’s

interviews with Shrader, Shrader denied ever knowing the

victim and denied ever having been to Whiskey Stump.

This physical evidence is direct evidence that Shrader, at a

minimum, had sexual contact with the victim, whose slain

body was found at Whiskey Stump near droplets of

Shrader’s blood leading away from the victim’s body. Cf.

Lightbourne v. State, 438 So. 2d 380, 391 (Fla. 1983)

(determining that “[v]iable sperm and semen traces . . .

discovered in the victim’s vagina indicat[ed] sexual

relations at approximately the time of death” and therefore

supported a finding of sexual battery); Burkell v. State, 992

So. 2d 848, 854 (Fla. 4th DCA 2008) (“Footprints and

blood-DNA may operate as direct evidence for some

specific issues. For example, footprints may directly

establish a person was at a certain place in spite of denying

ever being there. Blood-DNA analysis may settle the

identity of the one contributing a specimen.”).7 Stated

another way, Shrader’s semen-DNA is direct evidence that

he had sexual contact with the victim, and his blood-DNA

evidence found near her deceased body is direct evidence

that he was present at Whiskey Stump.8

7 In cases where the defendant did not dispute

knowing the victim, unlike Shrader here,

DNA evidence has been categorized as

circumstantial evidence of guilt of a sexual

battery. See, e.g., Caylor v. State, 78 So. 3d 482,

494 (Fla. 2011) (treating semen matching

defendant’s DNA that was recovered from

inside deceased victim as circumstantial

evidence of sexual battery where defendant

did not dispute sexual encounter); Thomas v.

State, 894 So. 2d 126, 133 (Fla. 2004) (same).

8 Although we set forth the general judgment

of acquittal standard in the main text of this

opinion, we have set forth detailed facts in

this opinion to also support affirming the trial

court’s denial of Shrader’s motion for

judgment of acquittal under the special

circumstantial evidence standard. That is,

even assuming for the sake of argument that

the special circumstantial evidence applies,

the trial court’s denial of Shrader’s motion for

judgment of acquittal yielded no reversible

error because the State presented competent

evidence inconsistent with Shrader’s versions

of events. See McWatters v. State, 36 So. 3d

613, 633 (Fla. 2010). Indeed, we agree with

the dissent that the special circumstantial

evidence does not apply here. After careful

review of trial evidence viewed in the light

most favorable to the State, we have no pause

concluding that the State presented

competent evidence to rebut Shrader’s

hypothesis of innocence that he had

consensual sex with the victim prior to her

death.

A law enforcement officer discovered the victim’s “warm”

body on the “extremely, extremely bitterly cold” morning

of January 27, 1986, in an area called Whiskey Stump. The

victim was lying in the middle of a dirt road, in full view

of any passerby, surrounded by blood spatters. She had

been stabbed thirty-six times, was without the clothes she

was wearing earlier that night, and was wearing only a

yellow T-shirt. The assistant medical examiner who

analyzed the victim’s body opined that the victim was

probably killed where her body was found. It is undisputed

that semen containing Shrader’s DNA was found inside of

the victim’s vagina and anus. It is likewise undisputed that

blood found in the soil at the scene of the murder matched

Shrader’s DNA and that Shrader had cuts on his right hand

later that morning which prevented him from giving

fingerprints. The State presented testimony from an

investigating officer that prior to being confronted with

DNA evidence that he had sex with the victim, Shrader

not only denied that he and the victim had any sexual

contact but completely denied ever having met the victim

or otherwise knowing who she was. Clearly, the DNA

evidence left behind in his blood and semen contradicts

that version of events.

Shrader’s inconsistencies do not stop there. One of

Shrader’s then-roommates testified at trial that on the night

of the murder Shrader came home with a bleeding hand.

Shrader gave no fewer than three inconsistent accounts of

how he cut his hand on the night of the murder. The

roommate testified that Shrader first told her he had cut his

fingers on a nail sticking up from a banister outside of their

apartment. On the morning after the murder, Shrader

appeared in a courthouse in Hillsborough County for

reasons unrelated to the murder in this case. Shrader was

unable to have his right hand fingerprinted due to cuts on

his pinky, ring finger, and middle finger. Later that same

day, when Shrader went to have his fingers sutured at

Tampa General Hospital, he informed his attending doctor

that he had cut his hand while working as a roofer. After

the case was re-opened leading to this conviction, Shrader

was interviewed by two officers from the Florida

Department of Law Enforcement. In the course of the

interview, Shrader told the officers that he cut his hand on

a knife while reaching into a dishwasher. Shrader’s then-

roommate contradicted Shrader’s account by testifying

that Shrader never washed the dishes while they were

roommates and that they did not even own a dishwasher.

Indeed, whether Shrader’s multiple evasions revealed a

consciousness of guilt was for the jury to determine. See

Straight v. State, 397 So. 2d 903, 908 (Fla. 1981) (“When a

suspected person in any manner attempts to escape or

evade a threatened prosecution by flight, concealment,

resistance to lawful arrest, or other indications after the

fact of a desire to evade prosecution, such fact is

admissible, being relevant to the consciousness of guilt

which may be inferred . . . .” [ ]).

Taken together, the evidence more than supports the trial

court’s denial of Shrader’s motion for judgments of

acquittal. See McWatters v. State, 36 So. 3d 613, 634 (Fla.

2010) (holding that a jury could have reasonably inferred

that a murder victim did not consent to sex with defendant

where disturbed dirt was found surrounding her dead body

and where she had damaged undergarments; also holding

that a jury could have reasonably inferred that another of

the defendant’s murder victims did not consent to sex with

defendant where her body was found nude from the waist

down, her shirt and bathing suit top were pushed up into

the armpit area, her sandals were found approximately

twelve feet apart from one another, and her jeans were

found stained with grass or dirt); Williams v. State, 967 So.

2d 735, 755–56 (Fla. 2007) (holding that a jury could have

reasonably inferred lack of consent to sex where police

discovered the victim completely nude, found her blood-

stained shorts and panties under her bed, and found bite

marks on her breast and back and in the general area of her

groin); Fitzpatrick v. State, 900 So. 2d 495, 509 (Fla. 2005)

(determining evidence was sufficient to support conviction

of felony murder with sexual battery as the underlying

felony where a victim who had her throat slit “was found

naked with her bloody undergarment wrapped around her

waist near her breasts” and had suffered from a mix of

other physical injuries); Taylor v. State, 583 So. 2d 323, 329

(Fla. 1991) (holding that extensive physical injuries

suffered by victim were inconsistent with defendant’s

hypothesis that he briefly had consensual vaginal sex with

her followed by consensual oral sex), declined to follow on

other grounds by Brown v. State, 755 So. 2d 616 (Fla. 2000);

cf. State v. Ortiz, 766 So. 2d 1137, 1142–43 (Fla. 3d DCA

2000) (determining that a prima facie case for sexual

battery had been established where “victim was found

beaten and virtually nude in an isolated wooded area of a

park with her shirt pulled up around her head and her

shorts down around her ankles”).

The trial court did not err in denying Shrader’s motion for

judgment of acquittal. Our system of justice is based on a

jury making these factual determinations, not judges. This

is especially true where, as here, the disputed issue involves

consent, which our court has previously held falls squarely

within the province of the jury to decide. See State v.

Hudson, 397 So. 2d 426, 428 (Fla. 2d DCA 1981)

(“Questions of consent, force, resistance and fear are

particularly within the province of the jury to determine.”

[ ] (citing Berezovsky v. State, 335 So. 2d 592, 593 (Fla. 3d

DCA 1976)), rev’d in part on other grounds, 350 So. 2d 80

(Fla. 1977))). Our court has explained that because mental

intent is seldom proved by direct evidence, “the absence of

direct proof on the question of the defendant’s mental

intent should rarely, if ever, result in a judgment of

acquittal.” Wallace v. State, 764 So. 2d 758, 760 (Fla. 2d

DCA 2000) (quoting Ehrlich v. State, 742 So. 2d 447, 450–

51 (Fla. 4th DCA 1999)). The same logic applies to

circumstantial evidence of a victim’s consent to violent

contact — particularly where the victim is unavailable to

testify. See State v. Clyatt, 976 So. 2d 1182, 1184 (Fla. 5th

DCA 2008) (“We see no distinction between the use of

circumstantial evidence to prove state of mind in these

contexts and the State’s attempted use of circumstantial

evidence to prove the victim’s lack of consent in this

battery case.”).

Next, we reject the dissent’s suggestion that lack of

physical trauma to a victim’s vagina or rectum implies that

the victim necessarily consented to sexual activity. The

assistant medical examiner testified that “there was no

physical evidence of bruising, lacerations, or tearing in any

of the orifices, such as the vagina or rectum.” He then

clarified:

It doesn’t mean that sexual battery didn’t take

place. It just meant that there was no physical

evidence of bruising, lacerations, or tearing in

any of the orifices, such as the vagina or

rectum were left [sic]. And, of course, you

have many people who are raped in which

you don’t see the evidence of this type of

thing, but we didn’t see that in this case.

[ ]

The victim here falls into the latter category — those who

do not show evidence of sexual trauma. Viewing the

medical examiner’s testimony in the light most favorable

to the State, the medical examiner’s testimony shows

nothing more than that the victim of sexual battery here,

like “many” other victims of sexual batteries, was left

without bruising, lacerations, or tearing of her orifices. Our

court would necessarily need to weigh the medical

examiner’s testimony in favor of Shrader to conclude that

the sexual contact with the victim was consensual because

it did not leave bruising, lacerations, or tearing of the

victim’s orifices. No court should weigh the evidence in

such a manner when viewing the evidence in the light most

favorable to the State or the jury’s guilty verdict. See

Fitzpatrick, 900 So. 2d at 508; Bradford, 460 So. 2d at 930

(“We are not allowed to retry a case or reweigh the

conflicting evidence submitted to the jury.”). The trial

court followed the law and correctly denied Shrader’s

motion for judgment of acquittal. Cf. McKee v. State, 159

Fla. 794, 33 So. 2d 50, 52 (Fla. 1947) (“The trial court

refused to disturb the finding of the jury, and for this court

to do so would amount to a substitution of our judgment

for that of the jury, in an area where we would be little, if

any, short of judicial meddlers.”); Bradford, 460 So. 2d at

930 (“We must limit our concern to whether, after all

conflicts in the evidence and all reasonable inferences

derived therefrom have been resolved in favor of the

verdict, there is substantial, competent evidence to support

the verdict and judgment.”).

“[A] conviction based upon a record wholly devoid of any relevant evidence

of a crucial element of the offense charged is constitutionally infirm.” Jackson v.

Virginia, 443 U.S. 307, 314 (1979). “[T]he relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319 (italics in original). Under federal due process, a prosecutor

does not have “an affirmative duty to rule out every hypothesis except that of guilt

beyond a reasonable doubt.” Jackson, 443 U.S. at 326.

Shrader asserts that the prosecutor failed to prove that he committed a sexual

battery. (Doc. 1 at 3) He further asserts that, because the underlying felony for the

felony murder conviction was the sexual battery, the prosecutor also failed to prove

that he committed felony murder. (Doc. 1 at 3)

At trial, Deputy Robert King testified that, on January 27, 1986, he responded

to a call in the southern part of Hillsborough County about persons unlawfully

camping on private property. (Doc. 8-1 at 309–12) When he arrived, he discovered

the body of Sharon Moss. (Doc. 8-1 at 310, 319) The deputy observed stab wounds

on Moss’s body and steam rising from the wounds during the very cold morning.

(Doc. 8-1 at 316, 319) The deputy observed large amounts of blood around Moss’s

body. (Doc. 8-1 at 322–25)

A medical examiner testified that he went to the scene and observed Moss’s

body lying on its right side in the middle of the road. (Doc. 8-1 at 387–88) Moss wore

a T-shirt and no other clothes and suffered thirty-two stab wounds to the front, side,

and back of her body and head. (Doc. 8-1 at 389, 392–94) Also, Moss suffered

defensive-type wounds to her left arm and right hand. (Doc. 8-1 at 393–95) Some of

the wounds were two to three inches deep. (Doc. 8-1 at 396–97) The medical

examiner identified several wounds on Moss’s chest and back that penetrated vital

organs and would have by themselves caused Moss’s death. (Doc. 8-1 at 397–400)

The medical examiner testified that he could not state definitively whether the

stabbing occurred where the deputy found Moss’s body. (Doc. 8-1 at 401) However,

he opined that the stabbing likely occurred where the deputy found Moss’s body

because of the large amount of blood around her body. (Doc. 8-1 at 401) The medical

examiner opined that the cause of death was multiple stab wounds and the manner

of death was homicide. (Doc. 8-1 at 404) The medical examiner further opined that

Moss was conscious when the wounds were inflicted. (Doc. 8-1 at 408)

The medical examiner collected from Moss’s body oral, anal, and vaginal

swabs. (Doc. 8-1 at 405) The medical examiner testified that, even though he did not

observe any bruising, lacerations, or tearing in Moss’s vagina and anus, a person who

is raped does not always suffer a physical injury. (Doc. 8-1 at 409)

Twenty-one years after the deputy found Moss’s body, a homicide detective

re-opened the investigation of the case and submitted for DNA testing the oral, anal,

and vaginal swabs and soil samples that contained blood collected a few feet from

Moss’s body. (Doc. 8-1 at 342–47, 427, 429–40) A forensic analyst extracted eleven

of fifteen locations in a DNA profile from the vaginal and anal swabs (Doc. 8-1 at

857–58), fourteen out of fifteen locations in a DNA profile from one soil sample

(Doc. 8-1 at 858–59), and fifteen out of fifteen locations in a DNA profile from a

second soil sample. (Doc. 8-1 at 859)

A DNA profile from Shrader matched all eleven locations identified in the

DNA profile from the vaginal and anal swabs, matched all fourteen locations

identified in the DNA profile from one soil sample, and matched all fifteen locations

identified in the DNA profile from the second soil sample. (Doc. 8-1 at 868–74)

On January 27, 1986, the same day when the deputy found Moss’s body,

Shrader went to a county building for fingerprinting. (Doc. 8-1 at 580–81) An

employee at the county building was unable to obtain fingerprints from Shrader’s

right hand because his right hand was injured. (Doc. 8-1 at 581–82) That morning,

Shrader told his brother’s girlfriend that he injured his right hand on a nail on a

banister. (Doc. 8-1 at 571–72) A short time later in February, a doctor who treated

the injury observed that Shrader had cuts on his ring finger and little finger on his

right hand. (Doc. 8-1 at 597) Shrader told the doctor that he cut his hand while

working as a roofer. (Doc. 8-1 at 597) In 2011, during an interview with a detective

on the telephone, Shrader said that he had cut fingers on his right hand on a knife

while washing dishes at home. (Doc. 8-1 at 714, 716, 718) Shrader lived with his

brother and his brother’s girlfriend, and his brother’s girlfriend testified that Shrader

never washed the dishes. (Doc. 8-1 at 572–73)

In January of 2011, a detective showed Shrader a picture of Moss, told

Shrader her name, told him that she was murdered, and asked if he knew her. (Doc.

8-1 at 626–28) Shrader denied that he had ever seen her. (Doc. 8-1 at 629, 633)

Shrader told the detective that he used to drink alcohol in excess, did not remember

a person’s name well, and only remembered a person’s face. (Doc. 8-1 at 633–34)

About two or three weeks later, during a telephone call, Shrader told the

detective that he still did not remember anything. (Doc. 8-1 at 704, 717, 719–21)

Shrader denied that he had ever visited the area where the deputy found Moss’s body.

(Doc. 8-1 at 706) Shrader stated that Moss did not look familiar to him and that he

did not know her. (Doc. 8-1 at 707, 709, 716–18)

Viewed in the light most favorable to the prosecution, the evidence proved that

Shrader sexually battered Moss. A DNA profile from Shrader matched all eleven

locations identified in the DNA profile from the vaginal and anal swabs from Moss’s

body. (Doc. 8-1 at 857–58, 868–69) The forensic analyst testified that the probability

that the DNA profile matched another person was one in 5.2 quadrillion in the

Caucasian population. (Doc. 8-1 at 873) This unrefuted DNA evidence proved that

Shrader engaged in vaginal and anal sex with Moss.

On the day that the deputy found Moss’s body, Shrader suffered cuts on fingers

on his right hand. (Doc. 8-1 at 571–72) Shrader told a detective that he had cut his

fingers on a knife. (Doc. 8-1 at 714, 716, 718) Moss died after suffering thirty-two

knife wounds to her body and head. (Doc. 8-1 at 389, 392–94) A DNA profile from

drops of blood found near Moss’s body matched Shrader’s DNA profile. (Doc. 8-1

at 868–74) Viewed in the light most favorable to the prosecution, the evidence proved

that Shrader was at the scene where the deputy found Moss’s body, wielded a knife,

stabbed Moss with the knife, and cut himself.

Even though no bruising, lacerations, or tearing appeared in Moss’s vagina

and anus, the medical examiner opined that a person who is raped does not always

suffer a physical injury. (Doc. 8-1 at 409) The deputy found Moss in a secluded area.

She had been stabbed over thirty times. She was surrounded by blood, wearing only

a T-shirt, and no pants, underwear, or other clothes. (Doc. 8-1 at 389, 392–94)

Viewing this evidence in the light most favorable to the prosecution, a rational juror

could conclude that, while brandishing a knife and before killing her, Shrader

engaged in vaginal and anal sex with Moss without her consent. Coleman v. Johnson,

566 U.S. 650, 655 (2012) (“Jackson leaves juries broad discretion in deciding what

inferences to draw from the evidence presented at trial, requiring only that jurors

‘draw reasonable inferences from basic facts to ultimate facts.’”) (quoting Jackson,

443 U.S. at 319).

Shrader argues that the prosecutor failed to rebut a reasonable hypothesis of

innocence that any sexual acts occurred consensually before the victim was killed.

(Doc. 1 at 12) At the time of Shrader’s trial, Florida law required a prosecutor to

rebut a reasonable hypothesis of innocence if the evidence of a defendant’s guilt was

circumstantial. Knight v. State, 186 So. 3d 1005, 1009–10 (Fla. 2016).5 However,

under federal law, Florida’s circumstantial evidence standard does not apply. Preston

v. Sec’y, Fla. Dep’t Corrs., 785 F.3d 449, 463 (11th Cir. 2015) (“[T]he Florida rule and

the federal rule are significantly different. Under Jackson, the prosecution does not

have ‘an affirmative duty to rule out every hypothesis except that of guilt beyond a

reasonable doubt.’”) (quoting Jackson, 443 U.S. at 326).

Also, Shrader told the detective that he had never visited the area where the

deputy found Moss’s body and denied knowing Moss. (Doc. 8-1 at 629, 633,

706–07, 709, 716–18) Because Shrader did not testify or present any evidence that he

either knew Moss or engaged in consensual sex with her, the state appellate court

reasonably rejected a hypothesis of innocence based on consensual sex. State v.

Campbell, 157 So. 3d 346, 349 (Fla. 2d DCA 2015) (“‘The State is not required to

5 After Shrader’s convictions and sentences were final, Bush v. State, 295 So. 3d 179,

200–01 (Fla. 2020), abandoned the circumstantial evidence standard and adopted the

standard applied to a federal due process claim.

rebut a hypothesis of innocence that is unreasonable.’”) (quoting Westbrooks v. State,

145 So. 3d 874, 878 (Fla. 2d DCA 2014)).

Lastly, Williams v. State, 967 So. 2d 735, 756–57 (Fla. 2007), holds that a

prosecutor sufficiently proves felony murder based on a sexual battery if a rational

juror could conclude that both crimes occurred during the same criminal episode:

In cases involving felony murder with sexual battery as the

underlying felony, this Court has rejected claims by a

defendant that “the murder did not occur ‘during’ the

actual sexual battery” and has upheld a felony murder

conviction where the murder of one victim and the

subsequent kidnapping and sexual battery of another

victim “were part of the same criminal episode.” Roberts v.

State, 510 So. 2d 885, 888 (Fla. 1987) (citing Jefferson v.

State, 128 So. 2d 132, 137 (Fla. 1961) (“It is a homicide

committed during the perpetration of a felony, if the

homicide is part of the res gestae of the felony.”)). We have

further stated that “[n]either the passage of time nor

separation in space from the felonious act to the killing

precludes a felony murder conviction when it can be said

. . . that the killing is a predictable result of the felonious

transaction.” Stephens v. State, 787 So. 2d 747, 757 (Fla.

2001) (quoting Mills v. State, 407 So. 2d 218, 221 (Fla. 3d

DCA 1981)).

Because a rational juror could conclude that the sexual battery and the killing

of the victim occurred as part of one prolonged attack, the evidence sufficiently

proved felony murder. Williams, 967 So. 2d at 757. Consequently, the state appellate

court did not unreasonably deny Shrader’s federal due process claim.

In his reply, Shrader asserts that the state appellate court violated his federal

right to procedural due process by sua sponte issuing the en banc opinion without

notice or an opportunity to be heard. (Doc. 9 at 9–10) The argument, raised for the

first time on reply, is waived. Herring v. Sec’y, Dep’t Corrs., 397 F.3d 1338, 1342 (11th

Cir. 2005). Also, the docket of the case on direct appeal demonstrates that the state

appellate court directed the parties to submit supplemental briefs before vacating the

panel opinion and issuing the en banc opinion. (Doc. 8-1 at 1175–78) Also, Shrader

filed a petition for review of the en banc opinion in the Florida Supreme Court. (Doc.

8-1 at 1459–73) Because the state appellate court provided Shrader with an

opportunity to be heard both before and after the en banc opinion issued and because

Shrader fails to demonstrate that the state appellate court deprived him of any right,

the state court did not violate Shrader’s federal right to procedural due process. Club

Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1378 (11th Cir. 2019).

Ground One, Subclaim B is DENIED.

Ground Two

Shrader further asserts that appellate counsel deficiently performed by failing

to federalize the sufficiency of the evidence claim on direct appeal. (Doc. 1 at 13–14)

The state appellate court denied the claim in a decision without a written opinion.

(Doc. 8-1 at 1511) Shrader must demonstrate that there is no reasonable basis for the

denial of the claim. Harrington, 562 U.S. at 98 (“Where a state court’s decision is

unaccompanied by an explanation, the habeas petitioner’s burden still must be met

by showing there was no reasonable basis for the state court to deny relief.”).

In the brief on direct appeal, appellate counsel asserted that the trial judge

erroneously denied the motion for judgment of acquittal because the prosecutor

failed to rebut Shrader’s reasonable hypothesis of innocence. (Doc. 8-1 at 1211–14)

Appellate counsel did not argue that the trial judge violated federal due process, did

not cite any federal court opinion or constitutional provision, did not label the issue

“federal,” and cited only state court opinions. (Doc. 8-1 at 1211–14) Consequently,

appellate counsel failed to fairly present a federal claim. Kelley, 377 F.3d at 1345.

However, for the reasons explained above, a federal due process claim would

not have succeeded on direct appeal. Because Shrader fails to demonstrate both

deficient performance and prejudice under Strickland, the state appellate court did not

unreasonably deny the ineffective assistance of appellate counsel claim. Strickland,

466 U.S. at 694. Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017)

(“[A]n attorney will not be held to have performed deficiently for failing to perform

a futile act, one that would not have gotten his client any relief.”).

Ground Two is DENIED.

Ground Three

Shrader asserts that trial counsel deficiently performed by failing to object to

comments by the prosecutor during closing argument. (Doc. 1 at 15–17) The

post-conviction court denied the claim as follows (Doc. 8-1 at 1623–27) (state court

record citations omitted):

Defendant alleges ineffective assistance of counsel due to

his counsel Mr. Fraser’s failure to object to the State’s

comments during closing argument alluding to facts not in

evidence and facts which could not be reasonably inferred

from the evidence. He alleges that had his counsel objected

to these improper comments and either sought a curative

instruction or moved for a mistrial, there is a reasonable

probability that the jury would have found him not guilty

or guilty of a lesser offense. He, relying on pages 940 and

941 of the trial transcript, alleges that during closing

arguments, the prosecutor claimed, without objection, the

following:

[Prosecutor:] Sharon Moss was found unclothed

except for the T-shirt that was pulled

up around her neck. She was found

without any clothes. Her clothes were

not found there because the murder

happened contemporaneously with the

rape. This girl didn’t even have a

chance to put her panties back on.

There was the rape and the murder

occurring at the same time. There was

no separation in time.

However, Defendant alleges that these facts were

absolutely wrong and contrary to the evidence.

Defendant alleges that according to the State’s own

evidence, the latter detail was incorrect. He alleges that it

is true that one of the crime scene photographs depicted

the victim on her back with her T-shirt pulled above her

breast. He, relying on pages 297 through 303 of the trial

transcript, alleges that according to the other photographs

taken that day, as well as the testimony of the deputy who

discovered the body, the victim was not on her back when

she was found. He alleges that she laid on her side with her

face and chest turned down toward the ground. He alleges

that as depicted in the crime scene photographs, when the

victim was found, the tail of her T-shirt had crept up a few

inches from her waist, but the shirt otherwise fully covered

her torso. He further alleges that the shirt bore holes where

it had been penetrated by the assailant’s weapon because

the victim was stabbed through her shirt. He alleges that

the shirt could not have been pulled up around her neck

during the attack, and contrary to the prosecutor’s

assertion in closing argument, it was not found that way.

He alleges that during the crime scene investigation, the

victim was rolled onto her back, and her shirt was pulled

up, so that the wounds to her chest could be photographed.

Defendant maintains that his counsel should have objected

and either sought a curative instruction or moved for a

mistrial. He alleges that had his counsel objected and

prohibited the jury from hearing this false evidence, there

is a reasonable probability that the jury would have found

Defendant not guilty. He alleges counsel’s unprofessional

error in failing to object to this false, misleading evidence

led the jury to believe evidence that was not proven or

supported by the evidence. He alleges that counsel’s failure

to object left this error unpreserved for appellate review on

direct appeal.

In its prior order the Court found that “failure to preserve

issues for appeal does not show the necessary prejudice

under Strickland.” Strobridge v. State, 1 So. 3d 1240, 1242

(Fla. 4th DCA 2009). However, the Court found that

because he alleges that had his counsel objected and

prohibited the jury from hearing this false evidence, there

is a reasonable probability that the jury would have found

Defendant not guilty, Defendant’s allegations were facially

sufficient. The Court further found that it was unable to

conclusively refute the allegations from the record and

ordered the State to respond to this claim.

In its response, the State asserts that the comment in

question does not remotely rise to a level that would justify

a mistrial. The State, relying on Spencer v. State, 645 So. 2d

377, 383 (Fla. 1994), and Ford v. State, 802 So. 2d 1121

(Fla. 2001), asserts that a mistrial is only appropriate where

a statement is so prejudicial that it vitiates the entire trial.

The State asserts that a statement in closing argument that

arguably mischaracterizes the state of the victim’s undress

at the time her body was found would not have merited a

mistrial.

The State further asserts that in light of the overwhelming

evidence of Defendant’s guilt, the alleged

mischaracterization of the evidence in closing argument is

inconsequential. Specifically, the State relying on

numerous pages of the trial transcript, asserts that at the

trial, the State presented evidence which proved the

following:

The victim, Sharon Moss, had been stabbed a

total of thirty-two times to the front, side, and

back of the torso;

The autopsy was conducted by Dr. Charles

Diggs. Dr. Diggs opined that the cause of

death was multiple stab wounds with

perforations of both lungs and the heart;

Investigators observed apparent blood drops

in proximity to Ms. Moss’s body which they

believed could have been deposited due to

some injury to the perpetrator;

Evidence was presented which indicated that

it was not unusual for an individual who

inflicts multiple stab wounds to suffer some

injury to himself as a result;

Samples of the soil in which these apparent

blood drops were deposited were collected by

crime scene investigator Linda Watts;

The apparent blood in these soil samples was

a DNA match for Defendant;

The very morning the victim’s body was

discovered, Defendant was observed to have

a significant cut on his right hand;

Defendant provided various conflicting

accounts of how the injury occurred;

When Defendant was fingerprinted on an

unrelated matter on the morning the victim’s

body was discovered, the individual that was

processing Defendant was unable to obtain

fingerprints from Defendant’s right hand. The

print form reflected that there was an injury

to that hand;

Per witness Terry Albritton, the then-

girlfriend of Defendant’s brother, Defendant

stated that he cut his hand on an exposed nail;

Defendant received treatment from a doctor

in February of 1986 for those injuries to his

right hand and explained that he received the

injuries during employment as a roofer;

When discussing the injury to his hand with

investigators in 2011, Defendant stated that

he cut his hand washing dishes the night

before;

Per witness Albritton, with whom Defendant

resided with in January of 1986, Defendant

never washed dishes;

Defendant’s brother, David Bailey,

confirmed that Defendant was right-handed;

Defendant’s DNA was a match for the sperm

fraction from a vaginal swab collected from

the deceased victim; and

Defendant’s DNA was also matched to the

sperm fraction from an anal swab collected

from the deceased victim.

The State asserts that based on the record of the trial in this

case and the evidence of Defendant’s guilt presented at the

trial, there is no reasonable likelihood that Defendant

would have obtained an acquittal or a mistrial based on the

complained of statement in closing arguments. The State

requests that the court deny the motion.

After reviewing the allegations, the State’s response, the

court file, and the record, the court finds the State’s

response persuasive. The court finds that there was

overwhelming evidence of Defendant’s guilt presented at

trial, including apparent blood in the soil samples that were

a DNA match for Defendant, the cut on Defendant’s hand

on the morning the victim’s body was discovered,

Defendant’s DNA matched the sperm fraction from a

vaginal swab collected from the deceased victim, and

Defendant’s DNA matched the sperm fraction from an

anal swab collected from the deceased victim.

Consequently, the court finds Defendant cannot prove

prejudice because even if Mr. Fraser made the alleged

objection, requested a curative instruction, or made a

motion for mistrial, and the court sustained the objection

and granted the request for a curative instruction, it would

not have changed the outcome of the trial based on the

overwhelming evidence presented at trial. The court

further finds that even if Mr. Fraser had made the alleged

motion for mistrial, the court would have denied the

motion for mistrial as the State’s alleged comment during

closing argument did rise to the level of warranting a

mistrial. As such, no relief is warranted on the allegations

in Defendant’s motion.

During closing argument, the prosecutor told the jury (Doc. 8-1 at 967–68):

[Prosecutor:] Now, let’s talk about elements three

and four [of sexual battery] together.

Three, a deadly weapon or force likely

to cause serious personal injury was

used; and four, the act was done

without Sharon Moss’s consent.

Now, there’s clearly no question that a

deadly weapon was used, and I think

that you can safely infer from the

evidence that that deadly weapon was

some type of knife, and I would submit

to you that when viewed in light of the

fact of the way that the victim was

found here, that it proves a lack of

consent.

Sharon Moss was found unclothed

except for the T-shirt that was pulled

up around her neck. She was found

without any clothes. Her clothes were

not found there because the murder

happened contemporaneously with the

rape. This girl didn’t even have a

chance to put her panties back on.

There was the rape and the murder

occurring at the same time. There was

no separation in time.

“Prosecutors have wide latitude in closing argument ‘to review the evidence

and to explicate those inferences which may reasonably be drawn from the

evidence.’” Johnson v. State, 238 So. 3d 726, 739 (Fla. 2018) (citation omitted).

However, “[p]rosecutors are limited in closing argument by the rules of professional

conduct [which prohibit] ‘intentionally . . . misstat[ing] the evidence or mislead[ing]

the jury as to the inferences it may draw.’” Johnson, 238 So. 3d at 739 (citation

omitted). “A trial court should grant a mistrial only when the error is so prejudicial

that it vitiates the whole trial.” Loyd v. State, 379 So. 3d 1080, 1091–92 (Fla. 2023).

“This occurs when a prosecutor’s comments ‘deprive the defendant of a fair and

impartial trial, materially contribute to the [verdict], [are] so harmful or

fundamentally tainted as to require a new trial, or [are] so inflammatory that they

might have influenced the jury to reach a more severe verdict than that it would have

otherwise.’” Loyd, 379 So. 3d at 1092 (citation omitted).

At trial, the prosecutor introduced into evidence photographs of Moss’s body

taken by a crime scene investigator. (Doc. 8-1 at 315–16) The deputy who found

Moss’s body testified that the photographs depicted Moss’s body in the same

condition as when he found the body. (Doc. 8-1 at 316)

With the assistance of the photographs, the deputy described Moss’s body as

follows (Doc. 8-1 at 321–23):

[Prosecutor:] Sergeant, I’m going to show you what

has been marked — been entered into

evidence as State’s Exhibit A4. Can

you tell us what we’re looking at here,

Sergeant?

[Deputy:] This is the victim as I found her in the

middle of the road.

[Prosecutor:] And can you describe from looking at

this photograph how you approached

the victim’s body?

[Deputy:] I stepped in here to a certain point right

before the blood, and I leaned down

and put my hand into her neck area

and tried to find a pulse.

[Prosecutor:] Now, there’s obviously some blood

pooled around the body. Did you

observe what appeared to be any other

drops of blood outside of the

immediate proximity of the victim’s

body?

[Deputy:] At the time I didn’t do that. There was

blood everywhere. It was all over. All

I did was I made sure when I stepped,

I did not step in what I thought would

be evidence, blood or anything else.

I tried to step where there wasn’t any.

So, I had to look —

. . .

[Prosecutor:] Okay. I’m going to show you what has

been entered into evidence as State’s

Exhibit A6. And can you describe what

we’re seeing in this photograph?

[Deputy:] This is — so that would be west, east.

This would be the north side of the

roadway, looking back from behind

her.

[Prosecutor:] Now —

[Deputy:] This would be the area where I was

standing further this way, and then

I walked over and checked her.

[Prosecutor:] Now, as we see some blood at the

bottom of this picture —

[Deputy:] Uh-huh.

[Prosecutor:] — toward the rear of the victim —

[Deputy:] Yes, sir.

[Prosecutor:] — was that blood — is that blood

depicted as it appeared when you

approached the body?

[Deputy:] Yes, sir.

[Prosecutor:] And State’s Exhibit A8, can you

describe what we see in this

photograph, please?

[Deputy:] This would be her legs. She’s bent over.

So, this is pretty close to her, and it’s

looking down, right up almost above

her, I would think. I didn’t take this

picture, so I’m not sure.

The medical examiner testified that he visited the crime scene the morning

when the deputy found Moss’s body. (Doc. 8-1 at 385) With the assistance of a report

and the photographs, the medical examiner testified about his observations of the

Moss’s body as follows (Doc. 8-1 at 386–87):

[Prosecutor:] Could you describe [ ] the scene

because then I’m going to ask you to

describe your initial observations once

you arrived at the scene. Where was

the body found and then take us to the

position of the body and what have

you.

[Examiner:] Well, I would have to refer to the —

because I just don’t have any

independent recollection.

[Prosecutor:] Referring to the autopsy, would that

also — would that, specifically as to

[the] forensic investigation section of

the report, would that tell you the

location of the body and what have

you.

[Examiner:] Yeah, well, there was — yeah, the

scene investigation, yeah, I can refer to

that, and that will — that will tell me.

First of all, we found a Caucasian

female in her late twenties [ ] lying on

her right side.

[Prosecutor:] Is that also confirmed by the

photographs that you have for your

benefit, also, sir?

[Examiner:] Yes, it’s consistent with the

photographs that’s been provided to

me, yes.

[Prosecutor:] All right. And what about the location

of where the body was found?

[Examiner:] Well, once again, the location was

found out in the roadside in the first

stages of decomposition, clothing and

T-shirt, as a matter of fact, was lying in

the middle of the road, and that’s just

about all I can say about that right

now.

[Prosecutor:] Yeah. Do you recall regarding the

place as indicated in the report,

regarding the place of death, does that

assist you in describing specifically

regarding the location of that scene?

[Examiner:] When you say “place of death” —

[Prosecutor:] As indicated in the report itself.

[Examiner:] The place of death, she’s lying on the

right side in the middle of the road.

That is what the report itself said.

Now, the reason why I ask that

question, I’m not concluding that —

[Prosecutor:] Correct.

[Examiner:] — you know, she was killed there.

. . .

[Prosecutor:] You’ve described the victim as a white

female in her twenties or early twenties

or what have you.

[Examiner:] Yes.

[Prosecutor:] Could you further describe what, if

anything, that she was wearing?

[Examiner:] Yes. Once again, according to the

documents and the photos, she was

wearing a T-shirt.

[Prosecutor:] Anything else?

[Examiner:] That’s pretty much — that’s pretty

much what we see here.

The testimony by the deputy and by the medical examiner demonstrates that

the prosecutor accurately stated during closing that Moss “was found unclothed

except for the T-shirt.” (Doc. 8-1 at 967) However, the prosecutor inaccurately

described the T-shirt as “pulled up around [Moss’s] neck.” (Doc. 8-1 at 967)

If trial counsel had objected to the comment for misstating the evidence, the

trial judge would have sustained the objection. Johnson, 238 So. 3d at 739. However,

Shrader cannot demonstrate a reasonable probability that the outcome at trial would

have changed if trial counsel had successfully objected. Strickland, 466 U.S. at 649.

Even though the prosecutor mischaracterized the evidence by describing

Moss’s T-shirt as “pulled up around her neck,” the jury saw during trial the

photographs of Moss. The photographs depicted Moss’s body in the same condition

as when the deputy found the body. (Doc. 8-1 at 316) The jurors could observe

themselves how the T-shirt appeared on Moss when the deputy discovered her body.

Also, the prosecutor did not argue that Shrader strangled Moss with the T-shirt. The

prosecutor argued that the jury could reasonably infer from the lack of clothing on

Moss that she did not consent to sex with Shrader and that the sexual battery and the

killing occurred during the same criminal episode.

Before jury selection, opening statements, and closing argument, the trial

judge instructed the jury that argument by an attorney is not evidence. (Doc. 8-1 at

38, 280, 958) During the final charge, the trial judge instructed the jury that “[the]

case must be decided only upon the evidence that [the jury] [had] heard from the

testimony of the witnesses and [had] seen in the form of the exhibits in evidence and

[the] instructions.” (Doc. 8-1 at 1016) A reviewing court presumes that a juror

follows the trial judge’s instructions in a criminal case. Samia v. United States, 599

U.S. 635, 646 (2023).

Lastly, the prosecutor did not repeat his misstatement about Moss’s T-shirt

pulled around her neck. Unrebutted evidence at trial proved that DNA profiles from

vaginal and anal swabs from Moss’s body and from blood drops near Moss’s body

matched Shrader’s DNA profile. Moss suffered thirty-two knife wounds. The

morning of the murder, the girlfriend of Shrader’s brother observed several cuts on

Shrader’s fingers. Shrader told a detective that he cut his fingers on a knife. This

evidence was sufficient to support a jury verdict that Moss did not consent to sex

with Shrader. Even if the trial judge had sustained an objection to the prosecutor’s

isolated comment about Moss’s T-shirt, Shrader cannot demonstrate a reasonable

probability that the trial judge would have granted a motion for mistrial, instead of

giving the jury a curative instruction, or that the outcome at trial would have

changed. Strickland, 466 U.S. at 694. Johnson v. Alabama, 256 F.3d 1156, 1185 (11th

Cir. 2001); Duren v. Hopper, 161 F.3d 655, 663 (11th Cir. 1998).

Ground Three is DENIED.

Accordingly, Shrader’s petition (Doc. 1) is DENIED. The Clerk is

DIRECTED to enter a judgment against Shrader and CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS

Because Shrader neither makes a substantial showing of the denial of a

constitutional right nor demonstrates that reasonable jurists would find debatable

both the merits of the underlying claims and the procedural issues that he seeks to

raise, a certificate of appealability and leave to appeal in forma pauperis are DENIED.

28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on August 26,2025.

Tf AK

MARYS. SORIVEN

UNITED STATES DISTRICT JUDGE

52