Tyler v. Secretary, Department of Corrections (Desoto)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

EARON LASHAWN TYLER,

Petitioner,

v. Case No. 2:24-cv-363-JLB-NPM

SECRETARY, DEPARTMENT OF

CORRECTIONS,

Respondent.

/

ORDER

This cause is before the Court on the amended pro se 28 U.S.C. § 2254

petition for habeas corpus relief filed by Earon Lashawn Tyler (Petitioner), a

prisoner of the Florida Department of Corrections serving a life sentence for

murder. (Doc. 2.) At the Court’s direction (Doc. 11), Respondent filed a response

(Doc. 16), and Petitioner filed a counseled reply. (Doc. 25.)

Upon careful consideration of the pleadings, the state court record, and the

entire file, the Court concludes that none of Petitioner’s claims entitles him to

federal habeas corpus relief. Because the Court was able to resolve the petition on

the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550

U.S. 465, 474 (2007).

I. Background and Procedural History

This case involves the December 11, 1995 robbery of a supermarket that

resulted in the shooting death of the store’s owner. (See Doc. 16-2 at 16–17.) A

jury convicted Petitioner of first-degree murder and attempted robbery with a

firearm. (Doc. 16-3 at 2–3.) The trial court sentenced Petitioner to life in prison

without the possibility of parole on the murder charge and to a consecutive term of

five years’ imprisonment on the attempted robbery charge. (Doc. 16-2 at 729; Doc.

16-3 at 5–14.) Florida’s Second District Court of Appeal (Second DCA) affirmed the

convictions and sentences without a written opinion. (Doc. 16-3 at 118.)

Thereafter, Petitioner filed a state petition for writ of habeas corpus alleging

ineffective assistance of appellate counsel. (Doc. 16-3 at 126–42.) The Second

DCA denied the petition without a written opinion. (Id. at 317.) Petitioner then

filed a motion and an amended motion for postconviction relief under Rule 3.850 of

the Florida Rules of Criminal Procedure (collectively, Rule 3.850 Motion). (Id. at

319–61.) The postconviction court denied all claims without holding an evidentiary

hearing. (Id. at 377–88.) In a written opinion, the Second DCA reversed, in part,

the postconviction court’s ruling on four grounds and remanded for a hearing on

those claims. Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001); (Doc. 16-3 at 402–

05.) Following an evidentiary hearing, the postconviction court denied the

remaining four claims. (Doc. 16-4 at 2–4.) The Second DCA affirmed without a

written opinion. (Id. at 106.)

On May 5, 2003, Petitioner filed another Rule 3.850 Motion alleging newly

discovered evidence. (Doc. 16-4 at 110–16.) The postconviction court denied the

claim (id. at 118–21), and the Second DCA affirmed without a written opinion. (Id.

at 201.)

Petitioner filed his first 28 U.S.C. § 2254 petition in this Court on June 23,

2004. (Doc. 16-4 at 211–52, MDFL Case No. 2:04-cv-340-JES-SPC.) District

Judge John E. Steele denied the petition in a thorough 43-page order. (Id. at 336–

78.) Both this Court and the Eleventh Circuit denied Petitioner a certificate of

appealability. (Id. at 384–87.)1 On March 18, 2019, Petitioner sought leave to file

a second or successive federal habeas petition. (Id. at 1058–63.) The Eleventh

Circuit denied the application. (Id. at 1140–43.)

On October 10, 2020, Petitioner filed a motion to correct an illegal sentence in

state court. (Doc. 16-4 at 1178–1235.) The state stipulated to the entry of an

order vacating the original sentence and resentencing Petitioner de novo. (Id. at

1237–38.) On June 21, 2021, the state court orally pronounced a sentence of life in

prison on Petitioner’s murder conviction and a consecutive sentence of 46.75 months

in prison on the attempted robbery count. (Id. at 1247–48, 1252–60.)

Petitioner provided his pro se amended petition for habeas corpus relief to

prison officials on April 24, 2024. (Doc. 2.)2

1 In the fifteen years between 2004 and 2019, Petitioner filed numerous

postconviction motions in state court, which were either denied or dismissed. (See

Doc. 16-4 at 389–405, 416–20, 424–36, 440–41, 476–79, 781–83, 792–831, 861–70,

1009–24.) Except where relevant to the Court’s review of this petition, these

pleadings will not be further discussed.

2 Generally, the date of prisoner’s filing is the date the pro se prisoner

delivers his document to the prison official for mailing. Houston v. Lack, 487 U.S.

266, 275 (1988).

II. Governing Legal Principles

A. The Antiterrorism Effective Death Penalty Act (AEDPA)

Under the AEDPA, federal habeas relief may not be granted with respect to a

claim adjudicated on the merits in state court 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.

28 U.S.C. § 2254(d)(1)–(2). In this context, “clearly established federal law”

consists of the governing legal principles, and not the dicta, set forth in the

decisions of the United States Supreme Court at the time the state court issued its

decision. White v. Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S.

70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

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

either: (1) applied a rule that contradicts the governing law set forth by Supreme

Court case law; or (2) reached a different result from the Supreme Court when faced

with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th

Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A decision involves an

unreasonable application of clearly established law if the state court correctly

identifies the governing legal principle, but applies it to the facts of the petitioner’s

case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134

(2005), or “if the state court either unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context where it should

apply.” Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000) (quoting Williams,

529 U.S. at 406).

The section 2254(d) standard is both mandatory and difficult to meet. To

demonstrate entitlement to federal habeas relief, the 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 for fairminded

disagreement.” White, 572 U.S. at 420 (quoting Harrington v. Richter, 562 U.S. 86,

103 (2011)). Moreover, when reviewing a claim under section 2254(d), a federal

court must presume that any “determination of a factual issue made by a State

court” is correct, and the petitioner bears “the burden of rebutting the presumption

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

A state court’s summary rejection of a claim, even without explanation,

qualifies as an adjudication on the merits, warranting deference. Ferguson v.

Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Generally, in the case of a silent

affirmance, a federal habeas court will “look through” the unreasoned opinion and

presume that the affirmance rests upon the specific reasons given by the last court

to provide a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991);

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). However, the presumption that the

appellate court relied on the same reasoning as the lower court can be rebutted “by

evidence of, for instance, an alternative ground that was argued [by the state] or

that is clear in the record” showing an alternative likely basis for the silent

affirmance. Sellers, 138 S. Ct. at 1196.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part test

for determining whether a convicted person is entitled to relief on the ground that

his counsel rendered ineffective assistance. 466 U.S. 668, 687–88 (1984). A

petitioner must establish that counsel’s performance was deficient and fell below an

objective standard of reasonableness and that the deficient performance prejudiced

the defense. Id. A showing on only one prong will not support an ineffective

assistance claim. Id. at 687 (“Unless a defendant makes both showings, it cannot

be said that the conviction . . . resulted from a breakdown in the adversary process

that renders the result unreliable.”).

The focus of inquiry under Strickland’s performance prong is “reasonableness

under prevailing professional norms.” Id. at 688. In reviewing counsel’s

performance, a court must adhere to the presumption that “counsel’s conduct falls

within the wide range of reasonable professional assistance[.]” Id. at 689 (citation

omitted). A court 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,”

applying a highly deferential level of judicial scrutiny. Roe v. Flores-Ortega, 528

U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). Proving Strickland

prejudice “requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at

687.

C. Exhaustion and Procedural Default

The AEDPA precludes federal courts, absent exceptional circumstances, from

granting habeas relief unless a petitioner has exhausted all means of available

relief under state law. 28 U.S.C. § 2254(b)(1). Exhaustion of state remedies

requires that the state prisoner “fairly presen[t] federal claims to the state courts in

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

its prisoners’ federal rights[.]” Duncan v. Henry, 513 U.S. 364, 365 (1995). The

petitioner must apprise the state court of the federal constitutional issue, not just

the underlying facts of the claim or a similar state law claim. Snowden v.

Singletary, 135 F.3d 732, 735–36 (11th Cir. 1998). Under the similar doctrine of

procedural default, “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.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

A petitioner can avoid the application of the exhaustion or procedural default

rules by establishing objective cause for failing to properly raise the claim in state

court and actual prejudice from the alleged constitutional violation. Spencer v.

Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a

petitioner “must demonstrate that some objective factor external to the defense

impeded the effort to raise the claim properly in state court.” Wright v. Hopper,

169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, a petitioner must

demonstrate a reasonable probability that the outcome of the proceeding would

have differed. Crawford v. Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).

A second exception, known as the “fundamental miscarriage of justice,” only

occurs in an extraordinary case, where a “constitutional violation has probably

resulted in the conviction of one who is actually innocent[.]” Murray v. Carrier,

477 U.S. 478, 496 (1986).

III. Discussion

On December 11, 1995, two black men—one brandishing a firearm—entered

a small convenience store in Nocatee, Florida. (Doc. 16-2 at 287.) One of the men

demanded money at gunpoint from the store’s owners, Ricky and Maria Hernandez.

(Id.) In the process of the robbery, the man with the gun fatally shot Ricky

Hernandez, who returned fire at least five times before he collapsed. (Id. at 287,

290–91.) The shooter, severely wounded, attempted to crawl from the store. (Id.

at 202–03.) The other robber fled and was never captured. (Id. at 291.) In his

order on Petitioner’s first section 2254 motion, Judge Steele summarized the

evidence adduced at trial as follows:

The murder victim’s wife testified that Tyler, the man found

lying near the front door of the store, was the man who came

into the store, robbed them and shot her husband to death. The

murder victim’s daughter also testified that the person who had

crawled to the front of the store, Tyler, was the man who came

into the store, robbed them and shot her father to death. The

victim’s cousin, Jorge Esparza, testified that he was allowed by

the gunmen to leave the store, unharmed, before the victim was

shot. He further testified that Tyler, whom he identified in

court, was the man lying on the floor when he returned to the

store. Another customer at the store, Elodio Mejia, testified

that the shirt that was worn by Tyler at the time of the murder,

was “just like” the one he saw the gunman wearing when he

entered the store to rob it. He described the gunman as

wearing dark clothing and wearing something red tied around

his face, covering the front of his face from his nose down. He

further testified that one of the robbers entered the kitchen with

him and two other people, Janet Hernandez and Jorge Esparza,

while the other robber remained in the main part of the store.

When Mr. Mejia exited the kitchen, he then exited the store

through the front door; when he returned shortly after the

shooting because he heard Mrs. Hernandez’ screams for help, he

saw “[a] man laying on the floor in front of the door.” At the

physical location of the shooting, directly in front of the counter

where the shots were fired, a trail of blood [led] away from the

counter toward the door where Tyler was found resting.

Petitioner was bleeding and the trail of blood directed to him.

During a search of the store, a mask and a red bandana was

found under an ice machine a few feet from the location where

Tyler was found bleeding from gunshot wounds. Lieutenant

Sam Williamson of the DeSoto County Sheriff’s Office discovered

the bandana while investigating the crime scene. He was

advised that the gunman had been wearing “something red”

covering his face and searched the area where Tyler had been

lying. There were bloody red drag marks on the floor leading to

the area near the ice machine. A photograph of the bandana

under the ice machine was admitted into evidence and published

to the jury. The evidence adduced at trial showed that there

was a bloody trail starting near the store counter where the

robber had engaged in a shootout with the murder victim.

Where the blood trail began was near where the murder weapon

was found. The trail then led to the area near the ice machine

where the bandana was found, and then toward the front door

where Tyler was laying when police arrived. Elodio Mejia, who

had been eating in the supermarket/restaurant, observed the

two black men when they entered the supermarket. He

testified at trial the man carrying the gun was wearing the

dark-colored shirt and “had something tied around the bottom of

his nose down on his face.” He said the object covering the

robber’s face was the color red. Mr. Mejia testified that the red

color of the object on the man’s face was “just like” the red in the

photograph of the bandana recovered from the scene.

James Osterhout, who worked as a paramedic/firefighter for

DeSoto County Fire and Rescue Department, was a first

responder at the scene of the supermarket. Osterhout started

patient care on Tyler, who was located inside the doorway.

Osterhout recalled immediately placing Tyler on a back board,

placing him inside the ambulance to render care, and asking

him a series of questions. He asked Petitioner if he had been

robbing the store. Osterhout testified that Petitioner nodded

his head affirmatively, looking Osterhout in the eye. Osterhout

noted that he assessed Petitioner’s level of alertness as

orientated as to person, place and time, and this was reflected

on the standard state E.M.T. form. Osterhout, as the lead

paramedic, testified that he completed the report on a standard

state form indicating that the “patient with multiple gunshot

wounds was complaining of pain to his abdomen, states he was

robbing the store.” A videotaped deposition of James Osterhout

was played to the jury.

The murder weapon was also recovered from the scene of the

crime. The murder victim, Enrique Hernandez, used a 9

millimeter pistol in his defense during the robbery. The

perpetrator was carrying a .357 revolver. The revolver was

found on the floor under a shelf near the counter where the

robber and victim exchanged gunfire. A photograph of the

revolver was admitted as evidence at trial and published to the

jury.

(Doc. 16-4 at 338–41 (citations to the record omitted).)

In his current habeas petition, Petitioner raises thirteen claims of ineffective

assistance of trial counsel Jon Weiffenbach (Counsel) and one claim alleging

cumulative error. (Doc. 2.) As noted, this case is almost thirty years old, and

Petitioner admits that most of the ineffective assistance of counsel (IAC) claims now

raised were neither developed nor exhausted in state court. (Doc. 25 at 1–3.)

However, he argues that his failure to exhaust his IAC claims should be excused

under the Supreme Court’s holding in Martinez v. Ryan, 566 U.S. 1 (2012). (Id.)

In Martinez, the Supreme Court held that:

[A] procedural default will not bar a federal habeas court

from hearing a substantial claim of ineffective assistance

[of counsel] at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that

proceeding was ineffective.

Id. at 17. “[T]o show that an underlying ineffective-assistance-of-counsel claim is

‘substantial,’ a petitioner must establish that ‘jurists of reason would find it

debatable.’ ” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1368 (11th Cir.

2021) (quoting Hittson v. GDCP Warden, 759 F.3d 1210, 1269–70 (11th Cir. 2014)).

When first decided, Martinez appeared to open a wide gateway for the development

of defaulted IAC claims in federal court. However, the Supreme Court has since

substantially narrowed the case’s scope for habeas petitioners. In Shinn v.

Ramirez, 142 S. Ct. 1718 (2022), the Court expressly rejected a petitioner’s request

to interpret Martinez as allowing petitioners to expand the state court record to

develop defaulted IAC claims in federal habeas court. Id. at 1737–38. The Court

determined that “under § 2254(e)(2), a federal habeas court may not conduct an

evidentiary hearing or otherwise consider evidence beyond the state-court record

based on ineffective assistance of state postconviction counsel.” Id. at 1734.3

Therefore, unless the newly raised IAC claims are based on a new rule of

constitutional law (not applicable here) or based on a factual predicate that could

not have been previously discovered with diligence (also not applicable here),

Petitioner may not bring in new evidence to support his unexhausted IAC claims

and must rely solely on the state court record. Likewise, Petitioner may not bring

3 Section 2254(e)(2) provides that if the petitioner did not develop the factual

basis of the claim in state court, this Court may not hold an evidentiary hearing on

the claim unless the claim relies on “new rule of constitutional law, made

retroactive to cases on collateral review” or “a factual predicate that could not have

been previously discovered through the exercise of due diligence[.]” 28 U.S.C. §

2254(e)(2).

in new evidence to support any claims that were exhausted in state court. See

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review [under §

2254(d)(1)] is limited to the record that was before the state court that adjudicated

the claim on the merits”).

Respondent filed a response to the petition. (Doc. 16.) Before addressing

Petitioner’s individual claims on the merits, Respondent argues that this petition

should be dismissed because Petitioner filed a 28 U.S.C. § 2254 federal habeas

petition in 2003, which was considered and denied on the merits by this Court.

Respondent notes that all the claims raised in the current petition could have (and

should have) been raised in his 2003 petition and argues:

Therefore, under principles of res judicata and/or abuse of the

writ, [Petitioner] should not be permitted to raise them now.

Res judicata precludes a party from raising claims that were or

could have been raised in a prior proceeding. See Lucky Brand

Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S. Ct. 1589,

1594–95 (2020). Abuse of the writ occurs when a petitioner

raises a claim in a later petition that he failed to raise in a prior

petition “through inexcusable neglect.” McCleskey v. Zant, 499

U.S. 467, 489 (1991).

(Id. at 9.) Respondent acknowledges two points that do not support this argument.

First, Respondent notes that the United States Supreme Court has found that “ ‘res

judicata is inapplicable in habeas proceedings.’ ” (Id. at 10 (quoting Sanders v.

United States, 373 U.S. 1, 8 (1963) and Fay v. Noia, 372 U.S. 391, 423 (1963)).)

But, Respondent explains, subsequent to Sanders and Fay, “[C]ongress evinced an

intent to respect the finality of state court convictions and apply res judicata

principles to federal habeas proceedings.” (Doc. 16 at 10 (citing Jones v. Hendrix,

599 U.S. 465, 491 (2023) (“AEDPA’s second-or-successive restrictions . . . ‘constitute

a modified res judicata rule[.]’ ”(quoting Felker v. Turpin, 518 U.S. 651, 664

(1996)))).) Next, Respondent acknowledges that language in Magwood v.

Patterson, 561 U.S. 320 (2010) suggests that “post-AEDPA, traditional abuse of the

writ principles no longer apply to federal habeas petitions.” (Doc. 16 at 10.)

However, Respondent argues that the relevant language in Magwood is mere dicta

because it was not necessary to the outcome in that case. While both arguments

are reasonable, they do not carry the day.

Generally, a prisoner may not file a second or successive section 2254 petition

in the district court without first obtaining authorization from a federal court of

appeals. See 28 U.S.C. § 2244(b)(3)(A). District courts lack jurisdiction to

consider the merits of second or successive section 2254 petitions filed without such

authorization. Lambrix v. Sec’y, Dep’t of Corr., 872 F.3d 1170, 1180 (11th Cir.

2017). However, in Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1280–81

(11th Cir. 2014), the Eleventh Circuit held that a petitioner may challenge his

undisturbed conviction in a successive section 2254 petition without running afoul

of section 2244(b)(3)(A) when a state imposed a new sentence that resulted in a new

judgment. In short, the Eleventh Circuit did not find a successive petition to be an

abuse of the writ or barred by res judicata when a new sentence resulted in a new

judgment—even when the successive petition attacked only the conviction itself.

And here, it appears that when the state court resentenced Petitioner, it vacated

the original sentence and created a new judgment. (See Doc. 16-4 at 1237, 1240–

42, 1252.) And while circuit courts are split on the issue of whether a resentencing

that results in an intervening new judgment obviates the requirement under section

2244(b)(3)(A) for a petitioner to obtain prior authorization from the circuit court

before filing a successive section 2254 petition,4 this Court may not ignore or

overrule the precedent from the Eleventh Circuit, which clearly states that such

authorization is not required. In short, even if this Court agreed with the Third,

Seventh and Tenth Circuits on this issue,5 the structure of the federal judicial

system requires lower courts to faithfully apply legal precedent established by

supervisory appellate courts, which, for this district court, is the rule set forth by

the Eleventh Circuit in Insignares. See e.g., Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this

Court has direct application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its own

decisions”). Likewise, even if the language in Magwood regarding abuse of the writ

principles is not binding on this Court (as Respondent argues), the Magwood dicta

4 Circuit courts are split on whether a mere resentencing constitutes an

intervening new judgment when the petitioner collaterally attacks his underlying

conviction. The Second, Fourth, Six, Ninth, and Eleventh Circuits all conclude

that a petition that results in a new judgment after resentencing and challenges an

undisturbed conviction is not second or successive. See Johnson v. United States,

623 F.3d 41, 46 (2d Cir. 2010); In re Gray, 850 F.3d 139, 141–42 (4th Cir. 2017);

King v. Morgan, 807 F.3d 154, 158 (6th Cir. 2015); Wentzell v. Neven, 674 F.3d

1124, 1127–28 (9th Cir. 2012); Insignares, 755 F.3d at 1281. The Third, Seventh

and Tenth Circuits have held otherwise. See Romansky v. Superintendent Greene

SCI, 933 F.3d 293, 300 (3d Cir. 2019), Suggs v. United States, 705 F.3d 279, 282–83

(7th Cir. 2013); Pendergast v. Clements, 699 F.3d 1182, 1186–88 (10th Cir. 2012).

5 The undersigned expresses no opinion on the matter.

still provides guidance on whether abuse of the writ principles apply here. See

Peterson v. BMI Refractories, 124 F.3d 1386, 1392 (11th Cir. 1997) (“[D]icta from

the Supreme Court is not something to be lightly cast aside.”). Thus, the Court will

review Petitioner’s second 28 U.S.C. § 2254 petition to determine whether he is

entitled to federal habeas corpus relief without first requiring him to obtain

permission from the Eleventh Circuit.

With these considerations in mind, the Court reviews each of Petitioner’s

claims.6

A. Claim One (A)

Petitioner asserts that “Counsel was ineffective for not moving the court to

place limits on the aggressive, constant, and intrusive presence of the news media

in the courtroom during [his] trial.” (Doc. 2 at 8.) Petitioner asserts that his trial

was “held in an uneventful small rural town” and “attracted a large number of

spectators and news-people.” (Id.) He asserts that Fox News had cameras in the

courtroom, one of which was aimed at the jury. (Id.) Petitioner alleges that the

“jurors were frequently distracted by seeing their faces televised.” (Id.) After two

days, the prosecution objected to the news crew taking pictures of the jury and the

evidence. (Id. at 9.) Petitioner asserts that “Fox News still continued televising

the jury and trial proceedings, but with less frequency.” (Id.) Petitioner contends

6 Petitioner raises three grounds for relief, with Grounds One and Two

containing multiple sub-grounds alleging ineffective assistance of counsel. To

avoid confusion, the Court will mimic Petitioner’s numbering system.

that, since the jury was not sequestered, they saw themselves on television when

they returned home each evening and felt pressured to find him guilty. (Id.)

The only record evidence of media presence surrounding Petitioner’s trial is

the following brief discussion between the prosecutor and the trial court regarding

the media:

Q. Your Honor, we have a television crew and reporters in here

taking pictures of the jury and evidence of the decedent, and

I don’t think it is a good idea. And I object to their taking

pictures of the jurors, and object to their taking pictures of

evidence as it’s been met.

A. They’ve been doing it all afternoon.

Q. I never noticed. The State would move for a quick recess

and ask the bailiff to ask them to come to chambers and ask

them not to take pictures of the evidence or the jury.

(Doc. 16-2 at 481–82.) The trial court then called Fox News to the stand and had a

brief discussion off the record. (Id. at 482.) Petitioner asserts that Fox News

continued to record the trial (albeit less frequently) and that Counsel should have

objected and “moved for a mistrial on the ground that the jury had been irreparably

damaged by being constantly televised.” (Doc. 2 at 9.)

The Court need not consider the performance prong of Strickland because

Petitioner has not demonstrated prejudice from the media presence in the

courtroom. Although he speculates that the jurors went home every night,

watched themselves on television, and felt pressured by “family, friends, and

neighbors” to find him guilty, Petitioner does not direct the Court to any record

evidence to support these assertions. In short, he does not present evidence that a

single juror was inclined to find him guilty as a result of the media presence. See

Chandler v. Florida, 449 U.S. 560, 581 (1981) (“To demonstrate prejudice in a

specific case a defendant must show something more than juror awareness that the

trial is such as to attract the attention of broadcasters”). “Strickland places the

burden on the defendant, not the State, to show a ‘reasonable probability’ that the

result would have been different” had Counsel performed as Petitioner now argues

he should have. Wong v. Belmontes, 558 U.S. 15, 27 (2009) (quoting Strickland,

466 U.S. at 694). Petitioner cannot meet this burden with mere speculation. See

Hill v. Lockhart, 474 U.S. 52, 60 (1985) (explaining that conclusory allegations of

ineffective assistance of counsel are insufficient to prove Strickland prejudice);

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (same).

Because Petitioner cannot demonstrate Strickland prejudice, Ground One (A)

is not substantial, and Petitioner’s default of this claim is not excused under

Martinez. Thus, Ground One (A) is dismissed as unexhausted and procedurally

barred from consideration. Alternatively, the claim is denied on the merits. See

28 U.S.C. § 2254(b)(2)(“ An application for a writ of habeas corpus may be denied on

the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.”).

B. Ground One (B) and Ground One (C)

Petitioner frames Ground One (B) and Ground One (C) as follows: At the

beginning of jury selection, Counsel advised the judge that there had been a news

article about the case in that day’s newspaper. (Doc. 2 at 9.) The judge asked the

prospective jurors if they had read the story. (Id.) Four jurors answered

affirmatively. (Id.) The judge called these four prospective jurors into chambers

at the same time and questioned them about the article. (Id.) Two of the jurors,

Ruth Blanton and Rebecca Mattson, were ultimately selected to serve. (Id. at 10.)

Petitioner asserts that Juror Mattson admitted to reading the entire article. (Doc.

2 at 11.) Due to the Juror reading the article, Petitioner claims that Juror Mattson

“was too familiar with the specifics of the case to be a fair and impartial juror.”

(Id.) He asserts that Juror Blanton was tainted from hearing the details of the

case from the other prospective jurors. (Id.) He notes that “[a]lthough Blanton

and Mattson said they could put aside the opinion of the article that Tyler was

unquestionably guilty, it is unrealistic to assume these jurors could erase the

prejudicial impact of the article from their minds.7 Counsel’s deficient performance

in not moving to strike jurors Blanton and Mattson [Ground One (B)] and in not

moving for individual sequestered voir dire [ Ground One (C)] deprived Tyler of his

right to a fair and impartial jury.” (Doc. 2 at 11.)

A criminal defendant has a right to an impartial jury, and a prospective juror

who lacks impartiality must be excused for cause. See Ross v. Oklahoma, 487 U.S.

81, 85–86 (1988). To exclude a prospective juror for cause, a party “must

demonstrate that the juror in question exhibited actual bias by showing either an

express admission of bias or facts demonstrating such a close connection to the

7 Notably, although Petitioner asserts that “[t]he article portrayed [him] as a

dangerous career criminal and highlighted in a detailed table that [he] had been

arrested 20 times and convicted of crimes 5 times” (Doc. 2 at 11), the record does not

contain a copy of the article at issue here. The only description of the article is the

one from Counsel when he informed the court that there was an article in the

newspaper that “wasn’t so bad, except towards the end, started talking about his

priors.” (Doc. 16-2 at 106.)

present case that bias must be presumed.” United States v. Chandler, 996 F.2d

1073, 1102 (11th Cir. 1993) (emphasis added); see also Smith v. Phillips, 455 U.S.

209, 215 (1982). The burden is on the challenger to show the prospective juror has

sufficient actual bias to raise the presumption of partiality. Irvin v. Dowd, 366

U.S. 717, 723 (1961).

Under Florida law, the test for determining juror competency is “whether the

juror can lay aside any bias or prejudice and render his verdict solely upon the

evidence presented and the instructions on the law given to him by the court.”

Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). In an unpublished opinion, the

Eleventh Circuit has clarified what a petitioner must show to prove Strickland

prejudice resulting from juror bias on postconviction review:

In the post-conviction context . . . Florida has an actual bias

requirement. See Carratelli v. State, 961 So. 2d 312, 323 (Fla.

2007). “[W]here a postconviction motion alleges that trial

counsel was ineffective for failing to raise or preserve a cause

challenge, the defendant must demonstrate that a juror was

actually biased.” Id. at 324 (emphasis added). To meet the

actual bias standard, “the defendant must demonstrate that the

juror in question was not impartial—i.e., that the juror was

biased against the defendant, and the evidence of bias must be

plain on the face of the record. ” Id.

Fennell v. Sec’y, Fla. Dep’t of Corr., 582 F. App’x 828, 832 (11th Cir. 2014). While

Petitioner argues that the jurors’ exposure to the news article automatically

disqualified them, he presents no evidence that an “actually biased” juror served on

his jury. When questioned by the court, Jurors Blanton and Mattson said that

they did not remember details from the article and said that they could be open-

minded and fair. (Doc. 16-2 at 129–30, 131–33.) Moreover, all the jurors took an

oath to be fair and impartial. (Id. at 267.) “Jurors are presumed to follow the law

as instructed by the trial court and to comply with their oaths.” Fennel, 582 F.

App’x at 834. Even if Jurors Blanton and Mattson learned some details about the

case or Petitioner’s criminal history from the articles or from the court’s questions

to other jurors, the Supreme Court has explained that “juror impartiality . . . does

not require [juror] ignorance.” Skilling v. United States, 561 U.S. 358, 381 (2010)

(emphases in original) (citing Irvin v. Dowd, 366 U.S. 717, 722 (1961) (Jurors are

not required to be “totally ignorant of the facts and issues involved”; “scarcely any of

those best qualified to serve as jurors will not have formed some impression or

opinion as to the merits of the case.”)); Reynolds v. United States, 98 U.S. 145, 155–

156 (1879) (“[E]very case of public interest is almost, as a matter of necessity,

brought to the attention of all the intelligent people in the vicinity, and scarcely any

one can be found among those best fitted for jurors who has not read or heard of it,

and who has not some impression or some opinion in respect to its merits.”). With

no evidence that Jurors Blanton or Mattson were actually biased by their exposure

to a news article, we must presume that they followed the trial judge’s instructions

and were fair and impartial during deliberations.

Because Petitioner cannot demonstrate Strickland prejudice, Grounds One

(B) and One (C) are not substantial, and Petitioner’s default of these claims is not

excused under Martinez. Thus, Grounds One (B) and One (C) are dismissed as

unexhausted and procedurally barred from consideration. Alternatively, the

claims are denied on the merits. 28 U.S.C. § 2254(b)(2).

C. Ground One (D) and Ground One (E)

In Ground One (D), Petitioner asserts that Counsel was ineffective for “not

objecting to the prosecutor’s peremptory strike of Sandra Lewis, a black juror, on

the ground the prosecutor’s race neutral reason for striking her was a pretext.”

(Doc. 2 at 11.) In Ground One (E), he asserts that Counsel “was ineffective for not

investigating the prosecutor’s race neutral reason for striking Sandra Lewis, a black

juror, where the investigation would have revealed the reason was false.” (Id.)

During voir dire, the state questioned potential juror Sandra Lewis. Ms.

Lewis said that her son had been both a suspect and a victim in state cases. (Doc.

16-2 at 163.) When asked, Ms. Lewis affirmed that she could be a fair juror for

both the state and the defense despite her son's involvement in the criminal justice

system. (Id. at 163–64.) Ms. Lewis also affirmed that law enforcement treated

her son well when he violated his probation by being out past curfew. (Id. at 174.)

The state later used a peremptory challenge to strike Ms. Lewis. (Doc. 16-2 at

228.) Counsel objected and asked for the basis for striking her. (Id.) The

prosecutor explained:

Judge, Ms. Lewis was, in fact, in my office with her son. He

was charged with a felony and a misdemeanor. He was also the

victim on an alleged lewd and assault on an adult, wherein he

was – he was supposedly having sex with an adult female.

Contrary to what she has said, I am very uncomfortable with

Ms. Lewis serving on a jury, because I know that she was

displeased with the disposition of that case. And I feel,

basically that I would prefer to have her not serve as a juror in

this case.

(Id. at 228–29.) The trial court accepted the state’s explanation as race-neutral.

(Id. at 229.) Petitioner complains that, had the prosecutor truly believed that Ms.

Lewis was unhappy with the outcome of her son’s case, he would have asked her

different questions during voir dire. (Doc. 2 at 12.) Petitioner argues (without

directing the Court to any record evidence that supports his argument) that a

different assistant state attorney had handled Ms. Lewis’s son’s case and that her

son had gotten “a great plea deal that involved no incarceration.” (Id.) He asserts

that, had Counsel investigated the matter, he “would have been able to file a motion

for a new trial on the ground the prosecutor falsely told the court that Mr. Lewis

‘was displeased with the disposition’ of her son’s case.” (Id. at 13.)

In Batson v. Kentucky, 476 U.S. 79, 96–97 (1986), the Supreme Court held

that peremptory challenges cannot be used to exclude members of racial minorities

from a jury. In considering a claim of ineffective assistance of counsel for failing to

raise a Batson objection, the Eleventh Circuit has recognized that state courts must

consider all relevant circumstances to determine whether the State had a valid,

race-neutral reason for its challenge to a black juror. See Lee v. Commissioner,

Ala. Dep’t of Corr., 726 F.3d 1172, 1224–25 (11th Cir. 2013) (recognizing that a

court should consider “the totality of all other relevant circumstances” when

reviewing a Batson claim). If the record shows that the state had a race-neutral

reason for its challenge, defense counsel will not be deemed deficient for failing to

raise a Batson objection, nor can the petitioner demonstrate prejudice. See West v.

Secretary for Dept. of Corrections, 151 F. App'x 820, 824 (11th Cir. 2005). And

entanglement with the justice system by a prospective juror or her relatives has

been found to withstand Batson scrutiny. See West, 151 F. App'x at 824

(prospective juror’s prior arrest was a race-neutral reason for challenge); Miller–El

v. Cockrell, 537 U.S. 322, 351 (2003) (prospective juror’s brother’s convictions for

drug offenses was a race-neutral reason for striking the juror); United States v.

Alston, 895 F.2d 1362, 1367 (11th Cir. 1990) (prior involvement with drug offenses

was race-neutral reason for challenge); Lee 726 F.3d at 1227 (that prospective

juror’s family member had been arrested and charged with a property crime was a

race-neutral reason for challenge).

Petitioner offers nothing to suggest that no competent defense attorney would

have believed the state’s explanation for using a peremptory strike on Ms. Lewis

and decided against further investigation. See Payne v. Allen, 539 F.3d 1297, 1317

(11th Cir. 2008) (explaining that the “test for reasonableness” is whether counsel’s

performance fell within the “wide range” of professionally competent assistance).

As explained above, a family member’s entanglement with the justice system is

routinely deemed a race-neutral reason for exercising a peremptory strike. The

argument offered by Petitioner does not satisfy Strickland’s performance prong.

Next, even if Petitioner could establish that Counsel’s performance was

deficient, a successful Batson claim does not require automatic reversal on

collateral review. Price v. Sec’y, Fla. Dep’t of Corr., 548 F, App’x 573, 576 (11th

Cir. 2013). To the contrary, “the law of this circuit [is] that an ineffective

assistance of counsel claim based on the failure to object to a structural error at

trial requires proof of prejudice.” Purvis v. Crosby, 451 F.3d 734, 742 (11th Cir.

2006). And to establish prejudice from Counsel’s failure to challenge the

prosecutor’s strike of Ms. Lewis, Petitioner must show that a biased juror served on

his jury or that the outcome of his trial would have been different with a different

juror sitting on his jury. See Purvis, 451 F.3d at 739; Sneed v. Fla. Dep’t of Corr.,

496 F. App’x. 20, 27 (11th Cir. 2012) (“Sneed has not shown that, had counsel

objected, his challenge would have been successful, nor is it clear that the second

prospective black juror being on the jury would have carried a reasonable

probability of changing the outcome of the trial.”) (citation omitted); Mobley v. Sec’y,

Fla. Dep’t of Corr., 825 F. App’x 651, 655 (11th Cir. 2020) (finding that the

petitioner could not demonstrate Strickland prejudice because “Mobley did not

attempt to establish that a juror placed on the jury despite his Batson challenge

was actually biased against him”).

Here, having conducted a thorough review of the record, there is no evidence

that a black juror would have seen the overwhelming evidence against Petitioner

any differently than the white jurors.8 While the victim in this case was Hispanic

8 The evidence against Petitioner was significant. In an order denying one

of Petitioner’s numerous postconviction motions, the postconviction court listed

eight pieces of “significant testimony and evidence admitted during the trial

indicating that [Petitioner] was the perpetrator” of the crime:

1. He was shot eight times;

2. He was found at the end of a trail of blood in front

of the counter;

and Petitioner is black, race did not play a significant role at trial. Significantly,

Petitioner does not attempt to show otherwise, focusing instead on Strickland’s

performance prong and arguing that a thorough investigation would have led to a

reversal and a new trial. (Doc. 2 at 13.)

In sum, Petitioner offers no evidence showing deficient performance or

suggesting that a biased juror sat on his jury. Thus, Grounds One (D) and One (E)

are not substantial, and Petitioner’s default of these claims is not excused under

Martinez. Thus, these grounds are dismissed as unexhausted and procedurally

barred. Alternatively, the claims are denied on the merits. 28 U.S.C. § 2254(b)(2).

3. He admitted to the treating paramedic that he “was

robbing the store”;

4. All of the eyewitnesses described the person shot by

the store owner (who was the murder victim) as a

person wearing a purple shirt;

5. The Defendant was wearing a purple shirt, and

that shirt was removed by paramedics;

6. The victim's daughter stated that the person who

shot the victim fell down in the store after he

himself had been shot, and then dragged himself to

the door; the Defendant was found at the door of

the store;

7. After he heard gunfire in the store, another witness

came out and saw the person who had entered the

store with a gun lying on the floor near the front

door;

8. Another witness saw "the man in the purple shirt"

exchange gunfire with the victim.

(Doc. 16-4 at 483 (citations to the record omitted).)

D. Ground One (F)

Petitioner asserts that Counsel was ineffective for failing to move for a

mistrial “when the prosecutor delayed until the day after jury selection was over” to

strike the only remaining black juror on his jury. (Doc. 2 at 13.) While

recognizing that Juror Morris Johnwell had not disclosed his prior arrests during

voir dire, Petitioner argues that the prosecution unfairly delayed removing him

from the jury. (Id. at 13–14.) Petitioner asserts that he wanted “to have at least

one black person on the jury” and that he “could have used [his remaining

peremptory challenges] to reach additional blacks in the jury venire who were in

line to be seated.” (Id. at 14.)

Petitioner notes that, on the morning of trial (and after the jury had been

chosen), the state moved to strike juror Morris Johnwell. (Doc. 16-2 at 275.) The

prosecutor explained that Mr. Johnwell had not raised his hand when the panel was

asked whether anyone had been arrested on either a misdemeanor or a felony.

(Id.) After Mr. Johnwell was selected for the jury, the State Attorney’s Office

discovered that he had been arrested (but not convicted) on five drug-related

charges. (Id. at 276.) Counsel argued that there was no evidence that Mr.

Johnwell deliberately tried to mislead the court. (Id.) Counsel further argued

that the defense had “elected not to exercise additional peremptory challenges [it]

had available . . . based solely, strictly on the fact that [it was] concerned about Mr.

Johnwell no longer being part of the jury panel.” (Id. at 280.) The prosecutor

countered that “Mr. Johnwell was less than candid with this Court and whether it

was deliberate or whether he misunderstood it, we feel that his lack of response to

the question is prejudicial to the State’s case.” (Id. at 278.) The prosecution

pointed out that even if Mr. Johnwell had been confused about the question, “he

wasn’t paying attention and if you’re not paying attention, that certainly is reason

that this Court could find at the recommendation of the State to strike him for race

neutral reasons.” (Id. at 280.) The prosecutor also pointed out that, like the

defense, the State had not used all its peremptory challenges. (Id.) The trial court

granted the State’s motion and replaced Mr. Johnwell with an alternate juror. (Id.

at 285.)

Counsel objected to Mr. Johnwell’s replacement with an alternate juror, so he

cannot be deemed ineffective in that regard. (Id. at 277, 279.) But Petitioner

argues that Counsel should have moved for a mistrial when Mr. Johnwell was

replaced because he (Petitioner) wanted him on his panel and had not used all his

peremptory challenges. (See id. at 280.) Petitioner cannot demonstrate that he

suffered prejudice from Mr. Johnwell’s removal because a motion for mistrial would

not have been granted.

As a general rule, “[t]he conduct of jurors is the responsibility of the court and

the court is allowed discretion in dealing with any problems that arise.” Orosz v.

State, 389 S.2d 1199, 1200 (Fla. 1st DCA 1980); see also Jennings v. State, 512 So.

2d 169, 173 (Fla. 1987) (“The trial judge has broad discretion in deciding whether a

juror may sit.”). Mr. Johnwell lied (even if inadvertently) about his criminal

history during the jury selection process, and the state court properly removed him

from the panel. “ ‘A juror who falsely misrepresents his interest or situation, or

conceals a material fact relevant to the controversy, is guilty of misconduct[.]’ ” De

La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla.1995) (quoting Loftin v. Wilson, 67

So.2d 185 (Fla.1953)); see also Minnis v. Jackson, 330 So. 2d 847, 848 (Fla. 3d DCA

1976) (“The well established rule is that the failure of a juror to honestly answer

material questions propounded to him on voir dire examination constitutes bad

faith requiring his disqualification from serving on the jury in the case.”). Thus, “a

juror’s concealment of material information during voir dire provides good cause for

removal of that juror mid-trial and substitution with an alternate juror.” Nicholas

v. State, 47 So. 3d 297, 303 (Fla. 2d DCA 2010).

Because Mr. Johnwell’s dishonest answers disqualified him from serving on

the jury in this case, Counsel was not ineffective for failing to move for a mistrial

after he was removed from the panel because a mistrial would not have been

granted. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (defense

counsel is not ineffective for failing to raise issues that “clearly lack merit”).

Ground One (F) satisfies neither Strickland prong, and the claim is not

substantial. Thus, Petitioner’s failure to exhaust this claim is not excused under

Martinez. Ground One (F) is dismissed as unexhausted and procedurally barred.

Alternatively, the claim is denied on the merits. 28 U.S.C. § 2254(b)(2).

E. Ground One (G)

Petitioner asserts that Counsel was ineffective for not explaining what is

necessary to impose the death penalty when advising him of the State’s offer not to

seek the death penalty in exchange for waiving a 12-person jury. (Doc. 2 at 14.)

He admits that he waived a 12-person jury (both in open court and by writing) but

argues that the waiver wasn’t knowing and voluntary because “counsel did not

advise [him] of all that’s required to actually impose the death penalty.” (Id.)

Specifically, Petitioner claims that he believed that the death penalty would be

automatic if convicted. (Id. at 15.)

Counsel’s advice to waive a 12-person jury in exchange for the state not to

seek the death penalty was clearly a strategic decision. The Eleventh Circuit has

addressed this issue in the context of a habeas IAC claim and determined that this

exchange is a reasonable trial strategy. Cabberiza v. Moore, 217 F.3d 1329, 1334

n.10 (11th Cir. 2000) (“Because Florida provides six additional jurors by right to a

defendant charged in a capital case, it is a common practice of defense attorneys to

trade a waiver of twelve jurors for an agreement by the State not to seek the death

penalty. We have previously held that such a strategic decision by defense counsel

does not constitute ineffective assistance of counsel.” (citing Chateloin v. Singletary,

89 F.3d 749, 752–53 (11th Cir. 1996))). Moreover, to demonstrate prejudice from a

six-person jury, Petitioner must show “a reasonable probability that an acquittal or

hung jury would have resulted had [his] counsel insisted on twelve jurors.”

Cabberiza, 217 F.3d at 1334. Petitioner has not made the required showing.

Indeed, “[t]he Supreme Court itself has said that ‘neither currently available

evidence nor theory suggests that the 12-man jury is necessarily more

advantageous to the defendant than a jury composed of fewer members.’ ” Id. at

1335 (quoting Williams v. Florida, 399 U.S. 78, 101-02 (1970)). Accordingly, any

“claim of prejudice is entirely speculative because [Petitioner] relies entirely on the

mere possibility at least one of the six additional jurors would have voted to acquit

him.” Joseph v. Sec’y, Fla. Dep’t of Corr., No. 3:15-cv-1363-MMH-JRK, 2018 WL

5024180, at *14 (M.D. Fla. Oct. 17, 2018).

Petitioner has shown neither deficient performance nor Strickland prejudice

from Counsel’s recommendation that Petitioner waive a 12-person jury. Thus,

Ground One (G) is not substantial, and Petitioner’s default of this claim is not

excused under Martinez. Ground One (G) is dismissed as unexhausted and

procedurally barred from consideration. Alternatively, the claim is denied on the

merits. 28 U.S.C. § 2254(b)(2).

F. Ground Two (A)

Petitioner asserts that Counsel was ineffective for failing to file a motion

asserting that Petitioner’s grave medical condition rendered his confession to the

treating Emergency Medical Technician (EMT) involuntary and unreliable. (Doc. 2

at 18.) He concedes that Counsel sought to suppress his confession on the grounds

that it was not admissible under the physician-patient privilege, but argues that

“Counsel did not seek to suppress [his] confession on the due process ground [that]

it was involuntary because of [Petitioner’s] medical condition. Had counsel done

so, the trial court would have suppressed [his] confession.” (Id. at 19.)

The record clearly refutes Petitioner’s factual allegations. A review of

Counsel’s motion to suppress shows that, while Counsel did indeed argue that “the

doctor/patient privilege” should extend to cases “where the Defendant is gravely ill

and has a high likelihood of dying,” he also moved to suppress Petitioner’s

confession on the ground that Petitioner could not make rational decisions

immediately after the shooting due to his grave medical condition. (Doc. 16-2 at

84–86.) Specifically, in the written motion, Counsel argued inter alia that:

[Petitioner] was discovered on the floor of a convenience store …

with approximately 11 bullet holes in him;

When the EMTs reached Petitioner, he “was in grave condition”

and needed immediate emergency care to prevent him from

“dying at the scene.”

He was placed in the back of an emergency vehicle where an

oxygen mask was placed over his face.

While providing treatment, emergency personnel inquired about

Petitioner’s reasons for being at the convenience store and his

possible involvement in the robbery.

While being questioned, as a result of Petitioner’s “grave

physical condition,” Petitioner “was not able to make rational

decisions and believed it was necessary to fully cooperate with

the questioning” to ensure he did not die on the way to the

hospital.

Petitioner was not aware that his statements could be used

against him because he thought the questions were for ensuring

proper treatment.

Petitioner’s “condition was such that [he] could not fully

appreciate the nature of the inquiries nor provide necessary

rational responses.”

Petitioner’s “condition was such that [he] cannot defend against

the alleged statement as he does not recall a great deal of what

transpired during the initial treatment by EMS.”

(Doc. 16-2 at 84–85.) Counsel argued the motion in court prior to trial, providing

three reasons for Petitioner’s confession to be suppressed:

We are asking that statement by Earon be suppressed for a

number of reasons. Number one, we believe there should be a

privilege provided to an individual being treated, especially

somebody in grave condition, because obviously, there is some

significant importance allowing a person to be treated freely of

communication between themselves, and the patient be able to

provide honest answers and not be concerned about whether or

not to respond a certain way, and having to be concerned that

this information may potentially be used against them later on

for incriminating purposes in the trial.

Secondly, we think it should be suppressed as a result of the

fact, obviously, it’s because of his condition. He was not in any

kind of a position to make a legal decision, what answer he

should provide, what answer he should not provide. Although

[he was not] dealing with a law enforcement officer, he's dealing

with someone familiar with crime scenes, somebody familiar

with how the process works. It should not [have] been viewed

by the fact an individual may potentially be going -- answering

questions he believes he has to answer in order to secure the

necessary treatment to preclude him from dying and then later

on find out that these statements are going to be used against

him.

The last reason we have is that because, again, of the grave

condition of Earon at the time this inquiry was made, not only

was it not necessarily a rational response that can be relied

upon as being necessarily truthful or accurate, but also he

remembers very little about what occurred from the time they

were transporting him from the convenience store to the

hospital for treatment. And as a result, he was not able to a

give us a great deal in attempting to cross-examine his

witnesses in attempts to impeach the witnesses as to reliability,

credibility, and/or the accuracy of the statements that was

supposed to have been made by them.

(Doc. 16-2 at 96–97.) In short, Counsel made the very arguments regarding

Petitioner’s grave medical condition that Petitioner now asserts he should have

made. That the trial court denied the motion to suppress on the ground that there

was no privilege (Doc. 16-2 at 99) does not change the fact that Counsel made the

argument in the first place.

Ground Two (A) fails to satisfy Strickland’s performance prong. Thus, the

claim is not substantial, and Petitioner’s default is not excused under Martinez.

Ground Two (A) is dismissed as unexhausted and procedurally barred from

consideration. Alternatively, the claim is denied on the merits. 28 U.S.C. §

2254(b)(2).

G. Ground Two (B) and Ground Two (C)

In Ground Two (B), Petitioner asserts that Counsel was ineffective for failing

to request “an on-the-record waiver showing whether [he] made a knowing,

voluntary, and intelligent decision to relinquish his right to be present at the

deposition to perpetuate [EMT] Osterhout’s video testimony.” (Doc. 2 at 19.) In

Ground Two (C), Petitioner asserts that Counsel was ineffective for failing to move

to exclude EMT Osterhout’s testimony on the ground that there was no on-the-

record waiver of Petitioner’s right to be present at his deposition. (Id. at 20.)

Petitioner argues that “[a]t no time before Osterhout’s video deposition did

counsel visit [Petitioner] in jail and confer with [him] about whether he wanted to

attend the deposition. Counsel never informed [Petitioner] he had the right to be

present at the deposition.” (Doc. 2 at 20.) Petitioner raised a similar claim in his

first (amended) Rule 3.850 Motion, where he argued that he did not waive his right

to be present at Mr. Osterhout’s deposition. (Doc. 16-3 at 368.) The postconviction

court held an evidentiary hearing on the claim. At the hearing, Petitioner testified

that he did not waive his presence at the video deposition. (Id. at 430.) However,

the State questioned Counsel about whether Petitioner had waived his right to be at

Mr. Osterhout’s deposition:

Q. Mr. Tyler's third claim was that you waived Mr. Tyler's

presence without his permission in regards to the deposition

to perpetuate testimony; did you discuss with Mr. Tyler the

motion to perpetuate testimony?

A. Yeah. They had a - - I think it was a paramedic, Osterhout or

something like that, that was going to be testifying at the

trial, and he had been brought in to testify. He was working

for IBM at the time, no longer employed with EMS, and was

going to have to return to work or something, wasn't going to

be available for when the trial took place.

I had already previously taken his deposition, so I explained

to Earon they were going to be doing a deposition which

would be videotaped for purposes of being presented at trial,

which in essence I didn't use the term, I don’t think,

perpetuate testimony, but I explained to him that this would

be in lieu of his appearing, and that because of that, he's got

the right to confront witnesses, he could be present if he

desired to do so, if he did not want to be present he did not

have to be there for it, I could explain to him what the person

testified to, and that it would be his decision to make.

Q. Did he make a decision?

A. Yeah, he told me he didn’t want to be there.

Q. Did he tell you why he didn’t want to be there?

A. He didn’t go into detail about why, he said basically he didn’t

see no reason for him to be there.

Q. Did Mr. Tyler make a knowing waiver of what he was doing?

A. Yeah, he understood exactly what we were talking about, we

sat and had a conversation about it.

Q. Therefore it was an intelligent waiver?

A. He understood completely what was going on, said he didn’t

need to be there.

Q. You didn’t threaten him, coerce him or anything to get him to

say he’s not going to be there?

A. No. Every time anything was done during the course of the

trial, Earon and I would discuss in detail what his options

were. I gave him copies of everything, explained what we

were doing at all times. Earon was completely aware of

every aspect of what transpired, and he said he didn’t need to

be there.

Q. Did you threaten Mr. Tyler so he’d waive his presence?

A. No.

Q. Was his waiver a verbal response or did he speak to you and

say he didn’t want to be there?

A. We had a discussion, he said he didn’t want to be there.

(Id. at 498–500.) After the hearing, the postconviction court found Counsel’s

testimony more credible than Petitioner’s and concluded that Petitioner had waived

his right to be present at EMT Osterhout’s video deposition. (Doc. 16-4 at 2.)

A federal habeas court has “no license to redetermine credibility of witnesses

whose demeanor has been observed by the state trial court, but not by them.”

Marshall v. Lonberger, 459 U.S. 422, 434 (1983); see also Consalvo v. Sec’y, Dep’t of

Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“Determining the credibility of witnesses

is the province and function of the state courts, not a federal court engaging in

habeas review.”). Thus, this Court accepts that Petitioner told Counsel that he

waived his right to be present at Mr. Osterhout’s video deposition. And under both

Florida law and the Constitution, Petitioner’s discussion with Counsel on this issue

was sufficient to protect his rights. See State v. Singletary, 549 So. 2d 996, 997

(Fla. 1989) (“During the course of a criminal trial, defense counsel necessarily

makes many tactical decisions and procedural decisions which impact upon his

client. It is impractical and unnecessary to require an on-the-record waiver by the

defendant to anything but those rights which go to the very heart of the

adjudicatory process, such as the right to a lawyer.”); Wainwright v. Sykes, 433 U.S.

72, 93 (1977) (Burger, C.J., concurring) (“The trial process simply does not permit

the type of frequent and protracted interruptions which would be necessary if it

were required that clients give knowing and intelligent approval to each of the

myriad tactical decisions as a trial proceeds.” (footnote omitted)). Counsel was not

ineffective for failing to do more than ensure that Petitioner waived his right to

attend Mr. Osterhout’s deposition. And given that Petitioner waived his right to

attend, it is difficult to see how he was prejudiced from the lack of an on-the-record

waiver of his right to be there.

Petitioner has satisfied neither Strickland prong, and this claim is not

substantial. Thus, Petitioner’s default of these claims is not excused under

Martinez. Grounds Two (B) and Two (C) are dismissed as unexhausted and

procedurally barred from consideration. Alternatively, the claims are denied on

the merits. 28 U.S.C. § 2254(b)(2).9

H. Ground Two (D) and Ground Two (E)

In Ground Two (D), Petitioner asserts that “Counsel was ineffective for not

calling paramedics Sally Platt and David Dixon as witnesses to refute Osterhout’s

testimony that Tyler had confessed to robbing the store.” (Doc. 2 at 21.) In

Ground Two (E), Petitioner asserts that Counsel was ineffective for “not eliciting on

9 If Grounds Two (B) and Two (C) were intended to challenge the

postconviction court’s rejection of Ground Three in Petitioner’s Rule 3.850 Motion

(and the subsequent silent affirmance by the Second DCA (Doc. 16-5 at 106)), he is

not entitled to relief. The Court concludes that the state postconviction court’s

rejection of the claim on the ground that “Petitioner waived his appearance [at EMT

Osterhout’s deposition] and chose not to attend” (Doc. 16-4 at 2–3) was neither

contrary to clearly established federal law nor based upon an unreasonable

determination of the facts in light of the evidence presented at the evidentiary

hearing. 28 U.S.C. § 2254(d).

cross-examinations of paramedic Clayton Boggess and Deputy Sam Williamson

testimony that would refute Osterhout’s deposition that [Petitioner] had confessed

to robbing the store.” (Id. at 21–22.) Petitioner asserts that the other witnesses

would have testified that Petitioner was “thrashing around” in the ambulance and

did not witness his confession to EMT Osterhout. (Id. at 22–23.)

EMT Osterhout’s video deposition was played at the trial. (Doc. 16-2 at 361–

63.) Mr. Osterhout testified that—to ensure his and his partner’s safety—he asked

a “series of questions to the patient,” including whether Petitioner had been

“robbing the store.” (Doc. 16-2 at 58.) Petitioner answered affirmatively with “a

nod of the head, looking [Mr. Osterhout] in the eye, indicating to me that, in fact, he

was.” (Doc. 16-2 at 58.) Mr. Osterhout testified that Petitioner appeared to

understand the question “very clearly.” (Id. at 59.) Mr. Osterhout said that

nobody was in the back of the ambulance with them during these questions. (Id. at

59–60.)

In his first Rule 3.850 motion, Petitioner argued that Counsel was

constitutionally ineffective for failing to call David Dixon. Sally Platt, and Clayton

Boggess as defense witnesses to refute Osterhout’s testimony regarding Petitioner’s

confession. (Doc. 16-3 at 373.) The postconviction court denied the claim after an

evidentiary hearing. (Doc. 16-4 at 3–4.) The court noted that after consideration

of the overwhelming evidence of Petitioner’s guilt, Counsel’s “strategic decision not

to highlight Petitioner’s statement to E.M.T. Osterhout [was] quite understandable

and would not have changed the jury verdict of this case[.]” (Id. at 4.) The Second

DCA affirmed without a written opinion. (Id. at 106.) The Court’s review of the

record supports the state courts’ rejection of this claim.10

At the evidentiary hearing on Petitioner’s Rule 3.850 Motion, the state

questioned Counsel about why he chose not to call EMT Dixon to impeach Mr.

Osterhout’s testimony:

Q. [Petitioner’s] last claim is you failed to call Mr. Dixon to

impeach the testimony of Osterhout with the testimony of

Mr. Dixon; can you tell us today why you didn’t call Mr.

Dixon to testify?

A. The worse part about the case, as I said, is from [Petitioner]

being found at the scene and obviously the run report that

was written by Osterhout which he said that Earon had

admitted to being involved in the robbery.

I don’t remember exactly what the terminology was as far as

whether or not he was indicating Earon had said that he had

committed the robbery or was there when the robbery took

place, but there was a statement on the run report to the fact

that Osterhout had discussed with Earon the robbery.

And here it is, “States he has pain in abdomen, he was

robbing the store,” according to the deposition and statement

of Osterhout, I guess it was for his safety and for anybody

else, he wanted to find out, you know, what, if any,

involvement Earon had, whether he had weapons on him, et

cetera, and interviewed him.

When Osterhout was questioned, he indicated that when the

statement was made by [Petitioner] to him it was about the

time that he had put the oxygen mask on. He’d either taken

10 Petitioner raised a similar claim in his first section 2254 petition, and

Judge Steele denied the claim on the ground that “the trial court’s [rejection of the

claim] [was] not contrary to or an unreasonable application of federal law, nor is it

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

State court. The state court correctly applied the Strickland standard to

Petitioner’s ineffective assistance of counsel claim and found counsel’s decisions did

not prejudice Petitioner in light of the ‘overwhelming’ evidence presented to the

jury.” (Doc. 16-4 at 357.)

it off or somehow had the ability to communicate with Earon

when Earon either made the statement or acknowledged to

the paramedic he was somehow involved.

There was also a deposition that had been taken, I don’t

know, a year or so earlier, of Dixon, wherein Dixon indicated

he got there later, got there afterwards, but that he had gone

to where the deceased was first and that it was, in fact,

Osterhout who had taken care of Earon. I asked Osterhout

whether anybody else was present at the time that Earon

made the statement, he said, no, it was just Earon and

himself.

Quite frankly, I considered this to be pretty incriminating.

Obviously, I did not want to make this the highlight of the

trial by getting into an argument. If I recall correctly, Dixon

signed this statement as well.

The other problem too, is that if -- you know, we were hoping

to try to make something of the fact that maybe because of

his injury, his concern for his well-being and his health, et

cetera, that there may have been some miscommunication, et

cetera, on the run report. It indicates, I guess, the Glasgow

index that he was a 15, which indicates that he was very

alert and aware, understood what was going on.

I didn't have Dixon come in, who signed the report, and

emphasized again that it was a fact he had testified that he

was incoherent when he made contact with him, but again,

he had signed the run report indicating that he was a 15 on

the Glasgow scale, and he was oriented times three, which

meant that he was perfectly aware what was going on. I did

not, again, want to get into making this thing the highlight of

the trial.

Q. So basically what you had is you had testimony of one

witness who said he was alone when the statement was

made, and Mr. Dixon didn’t arrive or wasn’t there the whole

time?

A. Well, Dixon stated in the end of his deposition that he got

there later, which suggested to me that probably what

happened is the statement had been made by the time he got

there, given Osterhout had already said that statement was

made to him when he was alone. And I knew that if I called

him as a witness, Mr. Collins would have had an opportunity

to question Dixon about the run report and we would have

gone through the whole thing again. I felt like it was not

worth risking, I didn't know what Dixon was going to say

when confronted with that in trial, it was better off moving

on.

(Doc. 16-3 at 500–03.) It is clear from this exchange that Counsel made a strategic

decision not to draw attention to Petitioner’s confession by questioning other EMTs

or law enforcement about what they witnessed. “[A] court should be highly

deferential to those choices made by defense counsel in the conduct of a trial that

are arguably dictated by a reasonable trial strategy.” Devier v. Zant, 3 F.3d 1445,

1450 (11th Cir. 1993). Counsel’s reasoning concerning EMT Dixon applies equally

to the other witnesses named in these grounds. Namely, Counsel did not want to

draw attention to Petitioner’s confession by arguing with the EMTs or law

enforcement officers at trial about what they did not hear. Given that Mr.

Osterhout specifically testified that nobody else was present when he asked

Petitioner if he was robbing the store, questioning other witnesses about Petitioner

thrashing about or arguing with them about whether Mr. Osterhout was alone with

Petitioner long enough to elicit a confession would not have impeached Mr.

Osterhout’s testimony; to the contrary, it would have served little purpose other

than calling attention to the confession. Thus, Counsel’s strategic decision not to

call Sally Platt, David Dixon, Clayton Boggess, or Sam Williamson to testify that

they did not hear or otherwise witness the confession was not unreasonable and was

certainly not an error “so serious that counsel was not functioning as the counsel

guaranteed the defendant by the Sixth Amendment.” Strickland 466 U.S. at 687

(internal quotation marks omitted). To the extent this claim was exhausted, the

state court’s rejection of the claim was neither contrary to clearly established

federal law nor based upon an unreasonable determination of the facts. As to

Petitioner’s unexhausted claims, none are substantial, and Petitioner’s default of

these claims is not excused under Martinez. Petitioner is not entitled to federal

habeas relief on Ground Two (D).

I. Ground Two (F)

Petitioner asserts that Counsel was constitutionally ineffective for allowing a

videotape of EMT Osterbout’s deposition to go to the jury room. (Doc. 2 at 26.)

He asserts that because they could watch the video as much as they wanted, the

jury had greater access to Mr. Osterbout’s testimony than to that of the other

witnesses. (Id.) Petitioner argues that Rule 3.400(a)(4) of the Florida Rules of

Criminal Procedure prohibits depositions from being taken to a jury room, and that

the jury may have watched the deposition and used it to inform their decision to

find Petitioner guilty. (Doc. 25 at 22.)

Respondent argues that Petitioner cannot demonstrate Strickland prejudice

from the presence of the video in the jury room because “there is nothing in the

record to indicate that the jurors viewed the videotape during their deliberations.”

(Doc. 16 at 47.) Indeed, Petitioner provides no evidence that the jury watched the

video or that, even if they did, hearing Mr. Osterhout’s testimony a second time

changed the outcome of the trial. In short, Petitioner merely speculates that the

jury’s access to the video could have changed the outcome of his trial. Petitioner

counters that Respondent only speculates that the jury did not watch or base its

opinion on the deposition video. (Doc. 25 at 22.) However, this argument relies

on a mistaken understanding of the burden of proof on habeas review. As noted,

in an ineffective assistance claim, Petitioner, not the state, has the burden to show

a reasonable probability that the result would have been different if Counsel had

objected to the deposition video being placed into evidence. See Wong, 558 U.S. at

27. And here, we simply do not know whether the jury viewed the video in the

deliberation room or whether it had any influence on their decision to find

Petitioner guilty.11 And “when we do not know[,] the party with the burden

loses[.]” Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006).

On this record, Petitioner cannot demonstrate Strickland prejudice. Thus,

Ground Two (F) is not substantial, and Petitioner’s default of this claim is not

excused under Martinez. Thus, Ground Two (F) is dismissed as unexhausted and

procedurally barred from consideration. Alternatively, the claim is denied on the

merits. See 28 U.S.C. § 2254(b)(2).

J. Ground Three

Petitioner asserts that he was denied a fair trial due to the cumulative

prejudice of Counsel’s deficient performance. (Doc. 2 at 31.) Petitioner has not

established prejudice as to any individual claim or the collective effect of any

deficient performance on the trial. See Morris v. Sec’y, Dep’t of Corr., 677 F.3d

11 In light of the overwhelming evidence of Petitioner’s guilt, including

eyewitness testimony and the deposition video that was already played at trial, it is

difficult to see how the presence of the deposition video—even if viewed a second

time—had any effect on the verdict. See also discussion supra at Part III(D) at

footnote 8.

1117, 1132 (11th Cir. 2012) (rejecting claim of cumulative error since “none of

[Petitioner’s] individual claims of error or prejudice have any merit, and therefore

we have nothing to accumulate”).

In all events, absent Supreme Court precedent applying the cumulative error

doctrine to IAC claims, the state court’s denial of the claim was not contrary to, or

an unreasonable application of, clearly established federal law. See Forrest v. Fla.

Dep’t of Corr., 342 F. App’x 560, 565 (11th Cir. 2009). Petitioner is not entitled to

federal habeas relief on Ground Three.

IV. Conclusion

Based on the foregoing, Petitioner is not entitled to relief on any habeas claim

presented here.

Accordingly, it is ORDERED that:

1. Each claim in the amended 28 U.S.C. § 2254 petition filed by Earon

LaShawn Tyler is either dismissed as unexhausted, denied on the merits, or both.

Thus, the petition is DENIED.

2. The Clerk is DIRECTED to enter judgment in favor of Respondent

and against Petitioner, deny any pending motions as moot, terminate any

deadlines, and close this case.

Certificate of Appealability12

12 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the

United States District Courts, the “district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.”

A prisoner seeking a writ of habeas corpus has no absolute entitlement to

appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(_). Rather, a

district court or circuit justice or judge must first issue a certificate of appealability

(COA). “A [COA] may issue... only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, a petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong, Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 327 (2003). When, as here, 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.” Slack, 529 U.S. at 484.

Upon consideration of the record, the Court declines to issue a COA.

Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma

pauperis.

DONE AND ORDERED in Fort Myers, Florida on September 9, 2025.

Sed. Pb ben

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record