FITZSIMMONS

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL FITZSIMMONS,

Petitioner,

v. Case No. 4:25-cv-86-TKW-MJF

RICKY D. DIXON,

Respondent.

_______________________________/

REPORT AND RECOMMENDATION

Michael Fitzsimmons has filed a second amended petition for writ

of habeas corpus under 28 U.S.C. § 2254. Doc. 16. Respondent (“the

State”) answered and provided relevant portions of the state-court

record. Docs. 30, 31. Fitzsimmons replied. Doc. 38. The undersigned

concludes that no evidentiary hearing is required, and that Fitzsimmons

is not entitled to habeas relief.

BACKGROUND AND PROCEDURAL HISTORY

Over a three-year period or longer, Fitzsimmons sexually abused a

young girl (L.G.) in Woodville, Florida. L.G. disclosed the abuse in 2014

when she was eleven years old. The abuse included Fitzsimmons licking

L.G.’s vagina, forcing L.G. to touch and masturbate Fitzsimmons’s penis,

and Fitzsimmons touching L.G.’s vagina with his fingers. Fitzsimmons

was a longtime friend of L.G.’s family. The abuse occurred in

Fitzsimmons’s house and in Fitzsimmons’s trailer next to the house

(which Fitzsimmons moved into shortly after L.G.’s family began renting

Fitzsimmons’s house in early 2012). See Doc. 31-3, Exs. 11, 12 (Trial Tr.).1

In Leon County Circuit Court Case No. 2017-CF-581, Fitsimmons

was convicted of one count of sexual battery on a child younger than

twelve years old by defendant eighteen years or older (Count 1), and two

counts of lewd or lascivious molestation (Counts 6 and 8). Doc. 31-2, Ex.

4 (Verdict); Doc. 31-2, Ex. 5 (J. & Sentence). The trial court sentenced

Fitzsimmons to imprisonment for life on each count to run concurrently.

Doc. 31-2, Ex. 5. On November 25, 2020, the Florida First District Court

of Appeal (“First DCA”) affirmed in a written opinion. Fitzsimmons v.

State, 309 So. 3d 261 (Fla. 1st DCA 2020) (copy at Doc. 31-3, Ex. 18). The

1 The State charged Fitzsimmons with eight counts of sexual abuse

against two child victims (L.G. and her sister M.G.). Doc. 31-2, Ex. 3.

Three charges involved abuse of L.G. (Counts 1, 6 and 8). The charges

were severed according to victim, and the cases proceeded independently.

See Doc. 31-3, Exs. 11, 12 (Trial Tr.). The prosecutor defined the specific

conduct underlying each of the three counts involving L.G. in opening

statements. See Doc. 31-3, Ex. 11 at 27 in ECF. The conduct also was

described in the charging document. Doc. 31-2, Ex. 3.

Supreme Court of Florida declined to accept jurisdiction. Fitzsimmons v.

State, 2023 WL 3337459, at *1 (Fla. May 10, 2023) (copy at Doc. 31-4, Ex.

24).

On July 1, 2021, Fitzsimmons filed a pro se motion for

postconviction relief under Florida Rule of Criminal Procedure 3.850.

Doc. 31-4, Ex. 26. The state circuit court dismissed the motion with leave

to amend. Doc. 31-4, Ex. 27.

Fitzsimmons filed an amended Rule 3.850 motion on August 18,

2021. Doc. 31-4, Ex. 28. The amended motion raised five claims with sub-

claims. Id. The state court set the motion for an evidentiary hearing and

denied Fitzsimmons’s motion to appoint postconviction counsel. Doc. 31-

5, Exs. 31, 32.

At the evidentiary hearing, Fitzsimmons testified but did not call

any witnesses or submit any evidence. Doc. 31-4, Ex. 29. The State

presented the testimony of Fitzsimmons’s trial counsel, Daren Shippy,

id., and admitted several exhibits. Doc. 31-5, Exs. 33–40; Doc. 31-6, Exs.

41–42. At the close of the hearing, the state court denied relief on all

claims and stated its reasoning on the record. Doc. 31-4, Ex. 29 at 417–

23 in ECF.2 A subsequent written denied Fitzsimmons’s amended Rule

3.850 “for the reasons stated on the record in open Court.” Doc. 31-5, Ex.

30. The First DCA per curiam affirmed without written opinion.

Fitzsimmons v. State, 386 So. 3d 121 (Fla. 1st DCA May 6, 2024) (Table)

(copy at Doc. 31-6, Ex. 49). The mandate issued June 12, 2024. Doc. 31-

6, Ex. 50.

On November 1, 2024, Fitzsimmons filed a pro se petition in the

First DCA alleging ineffective assistance of postconviction appellate

counsel. Doc. 31-7, Ex. 51. The First DCA dismissed the petition on July

23, 2025, citing Gilbert v. State, 315 So. 3d 791 (Fla. 1st DCA 2021) (“As

Florida Rule of Appellate Procedure 9.141(d) does not provide a vehicle

to challenge postconviction appellate counsel’s effectiveness, the petition

is dismissed.”). See Fitzsimmons v. State, 2025 WL 2054378, at *1 (Fla.

1st DCA July 23, 2025) (copy at Doc. 31-7, Ex. 52).

Fitzsimmons filed his initial federal habeas petition on February

24, 2025. Doc. 1. Fitzsimmons’s second amended petition raises eleven

claims: ten claims of ineffective assistance of trial counsel (including a

2 Citations to page numbers of an exhibit are to the numbers assigned by

this court’s Electronic Case Filing system (“ECF”).

claim of cumulative error), and one claim regarding the state court’s

failure to appoint counsel to assist Fitzsimmons at the postconviction

evidentiary hearing. Doc. 16.

The State asserts that: (1) several claims are procedurally defaulted

and, in any event, are without merit; and (2) the exhausted claims fail

under 28 U.S.C. § 2254(d)’s demanding standard for habeas relief. Doc.

30.

FEDERAL HABEAS EXHAUSTION REQUIREMENT

Section 2254 “requires state prisoners to ‘exhaust the remedies

available in the courts of the State’ before seeking federal habeas relief.”

Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (alteration adopted) (quoting

28 U.S.C. § 2254(b)(1)(A)). “To satisfy the exhaustion requirement, the

petitioner must have fairly presented the substance of his federal claim”

to the state’s highest court, either on direct appeal or on collateral review.

Picard v. Connor, 404 U.S. 270, 277–78 (1971); Castille v. Peoples, 489

U.S. 346, 351 (1989).

A petitioner “fairly” presents the substance of his federal claim to

the state courts when he describes the claim “such that the reasonable

reader would understand each claim’s particular legal basis and specific

factual foundation.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1135

(11th Cir. 2022) (quoting Kelley v. Sec’y Dep’t of Corr., 377 F.3d 1317,

1344–45 (11th Cir. 2004)). “‘[A] habeas petitioner may not present

instances of ineffective assistance of counsel in his federal petition that

the state court has not evaluated previously.’” Ogle v. Johnson, 488 F.3d

1364, 1369 (11th Cir. 2007) (quoting Footman v. Singletary, 978 F.2d

1207, 1211 (11th Cir. 1992)); see also Jackson v. Herring, 42 F.3d 1350,

1355 (11th Cir. 1995).

“Allowing a habeas petitioner to allege a single instance of

ineffective assistance in his state post-conviction proceedings and then

proceed to federal court to allege additional instances would be contrary

to the state’s ‘full and fair opportunity to address the claim on the merits.’

The state would never have the benefit of evaluating the claim using a

fully developed set of facts. This would not be the ‘serious and

meaningful’ exhaustion of claims that Congress intended.” Footman, 978

F.2d at 1211. “Thus, the prohibition against raising nonexhausted claims

in federal court extends not only to broad legal theories of relief, but also

to the specific assertions of fact that might support relief.” Kelley, 377

F.3d at 1344.

When a petitioner fails to exhaust his federal claim and the state

court remedy no longer is available, that failure to exhaust is a

procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 839–40 (1999);

see also Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). A petitioner

seeking to overcome a procedural default must “demonstrate cause for

the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claim[ ] will result

in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.

722, 750 (1991); Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1352–53

(11th Cir. 2012).

SECTION 2254 STANDARD OF REVIEW

A federal court “shall not” grant a habeas corpus petition on any

claim that was adjudicated on the merits in state court unless the state

court’s decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court.”

28 U.S.C. § 2254(d)(1). The Supreme Court explained the framework for

§ 2254 review in Williams v. Taylor, 529 U.S. 362 (2000). Justice

O’Connor described the appropriate test:

Under the “contrary to” clause, a federal habeas court

may grant the writ if the state court arrives at a conclusion

opposite to that reached by this Court on a question of law or

if the state court decides a case differently than this Court has

on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may

grant the writ if the state court identifies the correct

governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the

prisoner’s case.

Williams, 529 U.S. at 412–13 (O’Connor, J., concurring).3 In applying the

“unreasonable application” clause, the federal court defers to the state

court’s reasoning unless the state court’s application of the governing

legal principle was “objectively unreasonable” in light of the record before

the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542

U.S. 649, 652 (2004).

Section 2254(d) also allows habeas relief for a claim adjudicated on

the merits in state court when that adjudication “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. §

3 Unless otherwise noted, references to Supreme Court’s Williams case

are to the majority holding, written by Justice Stevens for the Court

(joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in

parts I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and

Justice O’Connor for the Court (joined by Justices Rehnquist, Kennedy,

Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at

403–13).

2254(d)(2). As with the “unreasonable application” clause of § 2254(d)(1),

the federal court applies an objective test. See Miller-El v. Cockrell, 537

U.S. 322, 340 (2003).

“The question under AEDPA is not whether a federal court believes

the state court’s determination was incorrect but whether that

determination was unreasonable—a substantially higher threshold.”

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S.

at 410). AEDPA also requires federal courts to “presume the correctness

of state courts’ factual findings unless applicants rebut this presumption

with ‘clear and convincing evidence.’” Landrigan, 550 U.S. at 473–74

(quoting 28 U.S.C. § 2254(e)(1)).

FEDERAL LAW REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL

The Supreme Court follows a two-pronged test for evaluating

claims of ineffective assistance of counsel. The petitioner must show (1)

his counsel’s performance was constitutionally deficient, and (2) the

deficient performance prejudiced him. Strickland v. Washington, 466

U.S. 668, 687 (1984). “First, petitioner must show that ‘counsel’s

representation fell below an objective standard of reasonableness.’

Second, petitioner must show that ‘there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’” Darden v. Wainwright, 477 U.S. 168, 184 (1986)

(quoting Strickland, 466 U.S. at 694).

The inquiry under Strickland’s performance prong is “whether

counsel’s assistance was reasonable considering all the circumstances.”

Strickland, 466 U.S. at 688. Trial counsel is “strongly presumed to have

rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. The burden to

overcome that presumption and to show that counsel’s performance was

deficient “rests squarely on the defendant.” Burt v. Titlow, 571 U.S. 12,

22–23 (2013).

Strickland’s prejudice prong requires a defendant to establish a

“reasonable probability” of a different trial outcome. See Strickland, 466

U.S. at 694. A reasonable probability is one that sufficiently undermines

confidence in the outcome. Id. at 694. “The likelihood of a different result

must be substantial, not just conceivable.” Harrington v. Richter, 562

U.S. 86, 112 (2011).

“Surmounting Strickland’s high bar is never an easy task.” Padilla

v. Kentucky, 559 U.S. 356, 371 (2010). “Establishing that a state court’s

application of Strickland was unreasonable under § 2254(d) is all the

more difficult.” Richter, 562 U.S. at 105 (citations omitted).

DISCUSSION

Ground One “Ineffective Assistance of Trial Counsel

Violating the 5th, 6th & 14th Constitutional

Amendments” Doc. 16 at 9.

Fitzsimmons alleges that his trial counsel, Daren Shippy, was

ineffective for “fail[ing] to investigate and present Petitioner’s Erectile

Dysfunction (‘E.D.’) medical records” and failing to call an ED expert to

testify at trial. Doc. 16 at 9. The parties agree that Fitzsimmons

presented this claim to the state courts in a sub-claim of “Ground One” of

his amended Rule 3.850 motion and postconviction appeal. Doc. 16 at 9;

Doc. 30 at 9.

A. The State Court’s Decision

The state circuit court denied relief on this claim as follows:

Ground one, the Court will best describe as -- well, I

guess, the title -- ineffective assistance of counsel which is a

list of grievances or second guessing that the defendant would

provide in this case.

The defendant has failed to show evidence of ineffective

assistance of counsel. And, even had he shown evidence of

ineffective assistance, he has failed to show any prejudice in

this case.

Specifically, Mr. Daren Shippy in this case, the court

finds was effective in that the Court has the very detailed

notes that have been redacted. Obviously, the redacted

portions, the Court don’t [sic] know what they say. Those

aren’t relevant to the alleged ineffectiveness. And so Mr.

Shippy did not disclose them, still maintaining the protection

of his client confidences.

However, in those notes and in Mr. Shippy’s testimony,

he talks about the number of witnesses that he talked to,

things he discussed with the defendant regarding the pros

and cons of calling certain witnesses.

The Court will note that he made some strategic

decisions regarding the case. Specifically, which witnesses to

call and what to bring out. And the Court is not here to second

guess those decisions.

. . . .

The Court will note, as it is in evidence, I am the same

trial judge that tried this case. But, even if I weren’t, looking

at the record, the defense called three separate witnesses to

include the -- the brother of the victim and the -- the defense

showed inconsistent statements.

What ultimately this came down to is a jury of members

of the population of this community made a factual decision.

And, ultimately, that is one this defendant did not agree with.

This Court is not going to second guess that absent

appropriate evidence before the Court which there is none.

Accordingly, I find that Mr. Shippy’s performance, not

only was it not ineffective under Strickland, the Court finds it

to be highly commendable for the immense amount of work

put into this very difficult case by Mr. Shippy.

And, again, even -- even had there been some

ineffectiveness, this Court finds that -- that there is no

prejudice to the defendant.

Accordingly, for the reasons stated orally on the record,

I’m going to deny your motion, Mr. Fitsimmons. . . .

Doc. 31-4, Ex. 30 at 420–23. The First DCA affirmed without explanation.

The First DCA’s summary affirmance is an “adjudication on the

merits” of Fitzsimmons’s claim and, therefore, is reviewed under §

2254(d)’s deferential standard. See Richter, 562 U.S. at 99. Because the

First DCA’s decision is unexplained, this court presumes that the First

DCA rejected Fitzsimmons’s claim for the reasons articulated by the state

circuit court. See Wilson v. Sellers, 584 U.S. 122, 125 (2018).

B. Fitzsimmons Is Not Entitled to Habeas Relief

The First DCA’s decision is not “contrary to” clearly established

federal law, because the state court identified and applied the Strickland

standard. See Williams, 529 U.S. at 405-06 (interpreting § 2254(d)(1)). To

obtain habeas relief, therefore, Fitzsimmons must show that the state

court’s decision involved an unreasonable application of the Strickland

standard or was based on an unreasonable determination of facts in light

of the evidence in the state-court record. Fitzsimmons fails to make either

showing.

This court defers to the state court’s factual findings, including its

findings that (1) Attorney Shippy’s evidentiary hearing testimony was

credible and (2) Shippy made a strategic decision to not offer evidence of

Fitzsimmons’s erectile dysfunction. The state court’s factual findings are

amply supported by the state-court record. Fitzsimmons has not rebutted

any finding with clear and convincing evidence to the contrary. Consalvo

v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011); 28 U.S.C. §

2254(e)(1).

Shippy testified that he had been practicing law since 1985. Doc.

31-4, Ex. 29 at 383. Prior to his appointment to Fitzsimmons’s case,

Shippy had tried several capital sexual battery cases. Id. at 384. Shippy

met with Fitzsimmons nine times over the thirteen-month period Shippy

represented Fitzsimmons. Id. at 386. Shippy took contemporaneous,

accurate notes at every meeting. Id. at 385. Shippy’s notes were admitted

into evidence at the postconviction evidentiary hearing. Doc. 31-6, Ex. 42.

Pursuant to Shippy’s policy, Shippy’s initial meeting with

Fitzsimmons involved a comprehensive discussion of: (1) the charges, (2)

the maximum possible sentences, (3) the probable cause affidavit, (4) the

specific allegations against Fitzsimmons, (5) Fitzsimmons’s response to

those allegations, and (6) any potential witnesses Fitzsimmons believed

to be relevant. Doc. 31-4, Ex. 29 at 384–85, 388; Doc. 31-6, Ex. 42 at 7.

As to evidence of Fitzsimmons’s erectile dysfunction, Shippy

testified—and his notes reflect—that Shippy and Fitzsimmons discussed

the relevance of Fitzsimmons’s medical records, including Fitzsimmons’s

treatment for erectile dysfunction. Doc. 31-4, Ex. 29 at 389–90. Shippy’s

meeting notes state:

Explained to D that I do not intend to use records because

even though they document ED, they also document that D

was prescribed medication for that diagnosis, which could be

interpreted that D wanted sexual contact and was taking

steps to be able to do so. D agrees that this is a possible

interpretation, so we agree to not use the records at trial.

Doc. 31-6, Ex. 42 at 12.

“Because advocacy is an art and not a science, and because the

adversary system requires deference to counsel’s informed decisions,

strategic choices must be respected in these circumstances if they are

based on professional judgment.” Strickland, 466 U.S. at 681. The state

court respected Shippy’s strategic decision—grounded in professional

judgment—to not present evidence of Fitzsimmons’s erectile dysfunction

and treatment. The state court’s deference was not an unreasonable

application of Strickland. See Chandler v. United States, 218 F.3d 1305,

1316 (11th Cir. 2000) (“When courts are examining the performance of

an experienced trial counsel, the presumption that his conduct was

reasonable is even stronger.”); Day v. Sec’y, Fla. Dep’t of Corr., 859 F.

App’x 875, 879 (11th Cir. 2021) (“It is clearly established that strategic

choices made after thorough investigation of law and facts relevant to

plausible options are “‘virtually unchallengeable.’” (quoting Strickland,

466 U.S. at 690)).

Fitzsimmons has not met § 2254(d)’s high bar for habeas relief.

Thus, Ground One must be denied.

Ground Two “Ineffective Assistance of Trial Counsel

Violating the 5th, 6th & 14th Constitutional

Amendments” Doc. 16 at 11.

Fitzsimmons alleges that Shippy was ineffective because Shippy

failed to “present relevant evidence” of criminal cases against two other

individuals: Donald Graves (L.G.’s father) and Mike Brown (“Wheelchair

Mike).” Doc. 16 at 11 (identifying State v. Graves, Leon County Circuit

Court Case No. 2016-CF-3264). Fitzsimmons contends that Shippy

should have used evidence of those criminal cases “to confront . . . L.G.”

Id.

The parties agree that Fitzsimmons presented this claim to the

state courts in a sub-claim of “Ground One” of his amended Rule 3.850

motion and postconviction appeal. Doc. 16 at 11; Doc. 30 at 9–10.

A. The State Court’s Decision

The state circuit court denied this claim for the reasons quoted in

Ground One above, and with these additional remarks:

The Court finds that much of the -- many of the

questions and areas wanting to be probed into by Mr.

Fitzsimmons would likely be inadmissible at trial. Whereas,

even if there was some marginal relevance, that that

relevance would be substantially outweighed under the rule

for evidence 403.

They would -- it would be substantially outweighed by

the danger of confusion and unfair prejudice to the State in

that it would be a trial within a trial regarding allegations of

Wheelchair Mike and Don -- and Don Graves as to M.G. and

what occurred in M.G.’s cases that don’t involve this

defendant. And, accordingly, even any marginal relevance

that there may have been, the court would have excluded that.

Doc. 31-4, Ex. 30 at 421, 422 in ECF. The First DCA affirmed without

explanation.

The First DCA’s summary affirmance is an “adjudication on the

merits” of Fitzsimmons’s claim and, therefore, is reviewed under §

2254(d)’s deferential standard. Richter, 562 U.S. at 99. Because the First

DCA’s decision is unexplained, this court presumes that the First DCA

rejected Fitzsimmons’s claim for the reasons articulated by the state

circuit court. Wilson, 584 U.S. at 125.

B. Fitzsimmons Is Not Entitled to Habeas Relief

The First DCA’s decision is not “contrary to” clearly established

federal law, because the state court identified and applied the Strickland

standard. See Doc. 31-4, Ex. 29 at 423. To obtain habeas relief,

Fitzsimmons must show that the state court’s decision involved an

unreasonable application of the Strickland standard or was based on an

unreasonable determination of facts in light of the evidence in the state-

court record. Fitzsimmons fails to make either showing.

Again, this court defers to the state court’s factual findings,

including its findings that Shippy’s testimony was credible and that

Shippy made a strategic decision to not offer evidence of the criminal

cases against Donald Graves and “Wheelchair Mike”. The state court’s

findings are amply supported by the state-court record. Fitzsimmons has

not rebutted any factual finding with clear and convincing evidence to

the contrary. Consalvo, 664 F.3d at 845; 28 U.S.C. § 2254(e)(1).

Shippy testified at the state-court evidentiary hearing that he

deposed both L.G. and her sister M.G. Doc. 31-4, Ex. 29 at 399. M.G. was

the victim identified in Counts 2, 3, 4, 5 and 7 of the charging document.

Id.; see also Doc. 31-2, Ex. 3. Shippy explained how the information he

learned during these depositions led him to decide not to present evidence

about Donald Graves and “Wheelchair Mike”:

A [Shippy] Well, I didn’t always take depositions of child

victim witnesses. One of the things that was of interest in the

case, based upon my conversations with Mr. Fitzsimmons,

was the issue concerning Wheelchair Mike. In part, because

of the similarity of the first names.

And, in advance of taking the deposition, I filed with the

court a motion to allow me to ask specific questions. Because

I was trying to figure out if there was an argument to be made

that the allegations involving Wheelchair Mike overlapped in

any way, shape or form with the allegations made against Mr.

Fitzsimmons.

If they had, I felt there was perhaps a possibility that

we could make an argument related to Wheelchair Mike that

might be of benefit to Mr. Fitzsimmons.

Ultimately, what I learned in L.G.’s deposition is there

was absolutely no overlap between those two which then put

Mr. Wheelchair Mike on the sidelines. And I never felt that

Don Graves’ case was relevant in way, shape or form. . . .

Q [the State] With the Don Graves’ case that was because

Ms. L.G. was not alleged to have been molested?

A She was not the victim in that case. M.G. was.

. . . .

Q And, as to Wheelchair Mike and anything to do with Don

Graves, did you feel that the jury hearing other possible

molestations would maybe give the victim in this case more

sympathy?

A Yeah. One of the things you’re trying to avoid is any

more sympathy than them coming in and looking and

testifying in a manner that they do. So, yes. But Don Graves,

I couldn’t make that relevant. There just simply was nothing

in that to make that case relevant.

But Wheelchair Mike, based upon when the allegations

occurred, couldn’t make it relevant as well. . . .

Doc. 31-4, Ex. 29 at 399–400, 407–08; see also Doc. 31-6, Ex. 42 at 26

(Shippy Notes); Doc. 31-5, Ex. 39 (L.G. Dep.).

Given the fact that (1) Shippy made a reasoned tactical decision not

to present the evidence at issue and (2) the state court determined as a

matter of state law that evidence about Wheelchair Mike and the

criminal case against Graves involving M.G. would not have been

admissible, a fairminded jurist could agree with the state court’s

conclusion that Fitzsimmons failed to establish a Strickland violation.

See Chandler, 218 F.3d at 1316; Pinkney v. Sec’y, Dep’t of Corr., 876 F.3d

1290, 1295, 1297 (11th Cir. 2017); Callahan v. Campbell, 427 F.3d 897,

932 (11th Cir. 2005). Thus, Fitzsimmons is not entitled to habeas relief

on Ground Two.

Ground Three “Ineffective Assistance of Trial Counsel

Violating the 5th, 6th & 14th Constitutional

Amendments” Doc. 16 at 11.

Fitzsimmons alleges that Shippy was ineffective for failing to cross-

examine Fitzsimmons’s son, Caleb Fitzsimmons. Doc. 16 at 13. Caleb was

a State’s witness. Doc. 31-3, Ex. 11 at 58–59. Fitzsimmons asserts that

he presented this claim to the state courts in his Rule 3.850 proceeding.

Doc. 16 at 13–14. In state court, Fitzsimmons alleged that Shippy should

have asked Caleb about statements L.G. made to Caleb concerning (1)

L.G. being molested by Wheelchair Mike and (2) M.G. being molested by

Wheelchair Mike and Donald Graves. Doc. 31-4, Ex. 28 at 212 (“Ground

1(c)”).

The State agrees that Fitzsimmons presented this claim to the state

courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion.

Doc. 30 at 10. The State argues, though, that this sub-claim is

unexhausted and procedurally defaulted because Fitzsimmons “fail[ed]

to present any evidence in support of the claim at his rule 3.850

evidentiary hearing” even though Fitzsimmons had the burden of proof.

Id. The State equates Fitzsimmons’s failure to satisfy his burden of proof

as “effectively abandon[ing] the claim in state court, thus depriving the

state courts ‘one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review

process.’” Id. at 11 (quoting O’Sullivan, 526 U.S. at 845).

A. The State Courts Rejected This Claim on the Merits

The state circuit court did not deem this sub-claim abandoned. Doc.

31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground

One” in its entirety because Fitzsimmons “failed to show evidence of

ineffective assistance of counsel” and “failed to show any prejudice in this

case.” Id. at 420–21. The state circuit court also found, as detailed above,

that Shippy was not ineffective for deciding not to question witnesses or

introduce evidence about L.G.’s alleged abuse by Wheelchair Mike and

M.G.’s abuse by Donald Graves. Id. at 421–23.

Fitzsimmons also raised this claim in his postconviction appeal.

Doc. 31-6, Ex. 46 at 373–74. In response, the State argued that the

postconviction court’s ruling at the conclusion of the evidentiary hearing

resolved all of Fitzsimmons’s claims, and that the postconviction court

did not err in denying any of the ineffective-assistance sub-claims. Doc.

31-6, Ex. 47. The First DCA summarily affirmed.

The Eleventh Circuit has deemed a claim abandoned during a Rule

3.850 proceeding when (1) the petitioner affirmatively stated at the Rule

3.850 evidentiary hearing that he was not moving forward with the claim;

(2) the state postconviction court confirmed on the record that the

petitioner was abandoning the claim; and (3) the state postconviction

court “specifically found that the claim was abandoned.” See Campbell v.

Jones, 2017 WL 4127621, at *4 (11th Cir. Mar. 9, 2017). Those

circumstances are not present here.

In comparison, the Eleventh Circuit has deemed a claim to have

been adjudicated on the merits when the state court determined that the

petitioner failed to sufficiently plead or prove facts that establish a

Strickland violation. See Mashburn v. Comm’r, Ala. Dep’t of Corr., 80

F.4th 1292, 1301 (11th Cir. 2023); Owen v. Sec’y for Dep’t of Corr., 568

F.3d 894, 913 (11th Cir. 2009). That is what happened here. The First

DCA’s summary affirmance is an “adjudication on the merits” of

Fitzsimmons’s claim and, therefore, is reviewed under § 2254(d)’s

deferential standard. See Richter, 562 U.S. at 99.

B. Fitzsimmons Is Not Entitled to Habeas Relief

This claim involves the same issue addressed in Ground Two—

Shippy’s failure to question a witness (here, Caleb) about L.G.’s

purported statements concerning L.G.’s abuse by Wheelchair Mike and

M.G.’s abuse by Donald Graves. For the reasons outlined above, the state

court’s rejection of this claim was not contrary to Strickland, did not

involve an unreasonable application of Strickland, and was not based on

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

state-court record. See discussion supra Ground Two, Section B.

It also bears noting that L.G. made statements to Caleb not only

about abuse by Wheelchair Mike, but also about abuse by Petitioner

Fitzsimmons. See Doc. 31-2, Ex. 10 at 92–103 (Mot. Hr’g Tr., Caleb

Fitzsimmons Test.). L.G. told Caleb that she did not want to be alone

with Fitzsimmons because Fitzsimmons had touched L.G.

inappropriately. Id.

Shippy addressed L.G.’s statements to Caleb at the postconviction

evidentiary hearing. Shippy testified that prior to trial the State filed a

Notice of Intent to Introduce Child Hearsay which included the

statements L.G. made to Caleb. See Doc. 31-4, Ex. 29 at 393–96. Shippy

made a strategic decision to object on the ground that the probative value

of L.G.’s statements to Caleb was substantially outweighed by the danger

of unfair prejudice to Fitzsimmons, confusion of the issues, and

misleading the jury. Id.; see also Doc. 31-5, Ex. 33 (Def.’s Obj. to Child

Hearsay Statements). The trial court granted the defense motion and

ruled that L.G.’s statements to Caleb were inadmissible. Doc. 31-4, Ex.

29 at 395–96; see also Doc. 31-5, Ex. 35 (Order).

At trial, this was the extent of Caleb’s testimony:

Q [Prosecutor] And at some point back in February 2017,

was there -- did your girlfriend bring something to your

attention that was concerning to her about L.G.?

A [Caleb Fitzsimmons] Yes, she did.

Q Based on that, did you also -- without saying what was

said, did you also have a brief conversation with L.G.?

A Yes, I did.

Q And at that point, what did you do with that

information?

A I went to the police with it.

Doc. 31-3, Ex. 11 at 59.

Had Shippy asked Caleb to describe what L.G. told Caleb about

Wheelchair Mike, Shippy would have defied the trial court’s order and

opened the door to the State asking Caleb to describe L.G.’s inculpatory

statements about Petitioner Fitzsimmons. Thus, Shippy was not

unreasonable for declining to cross-examine Caleb about the prior

statements.

Additionally, at the postconviction evidentiary hearing Shippy

testified that he strategically chose what questions to ask and what not

to ask the State’s witnesses:

Q [the State] Is it fair to say that you put a lot of work into

Mr. Fitzsimmons’ case?

A [Shippy] I put a tremendous amount of work into Mr.

Fitzsimmons’ case.

Q The questions you asked, I know, the defendant, in his

motion talks a lot of specifics about what questions that he

wanted you to ask.

Instead of going one-by-one, I think I’m going to

generally just ask you. The questions that you chose to ask

during trial, did you feel like they were appropriate and

legally sound and that you did the best with what you could

with the evidence before you?

A Absolutely. The -- and so the strategy is to take what’s

the most possible evidence that could be introduced in a case

by reviewing it, shrinking it down to as little possible evidence

as you can. And then determining what witnesses are likely

to say. How to cross-examine them to establish what it is you

want to accomplish in your theme of the case[,] or the

witnesses who can help you. . . .

Doc. 31-4, Ex. 29 at 406–07.

Lastly, Fitzsimmons’s claim is based on speculation about how

Caleb would have answered the questions Fitzsimmons proposed. See

Doc. 31-4, Ex. 28 at 212 (Fitzsimmons’s proposed questions); McKiver v.

Sec’y, Florida Dep't of Corr., 991 F.3d 1357, 1365 (11th Cir. 2021) (“[W]e

have held that a petitioner’s own assertions about whether and how a

witness would have testified are usually not enough to establish

prejudice from the failure to interview or call that witness.”).

All of the foregoing underscores the reasonableness of the state

court’s determination that Fitzsimmons failed to establish a Strickland

violation regarding Shippy’s decision to not cross-examine Caleb.

Fitzsimmons is not entitled to habeas relief on Ground Three.

Ground Four “Ineffective Assistance of Trial Counsel

Violating the 5th, 6th & 14th Constitutional

Amendments” Doc. 16 at 15.

Fitzsimmons claims that Shippy was ineffective for “fail[ing] to

present an Alibi Defense.” Doc. 16 at 15. In particular, Fitzsimmons

alleges that Shippy should have (1) “more adequately cross-exam[ed]”

witness Kathy Varnum, and (2) obtained Fitzsimmons’s “bank and phone

records.” Doc. 16 at 15. To clarify, Kathy Varnum was a defense witness,

not a prosecution witness. See Doc. 31-3, Ex. 11 at 132. Fitzsimmons’s

memorandum explains that the proposed questions and records would

have established that Fitzsimmons was in south Florida and not

Woodville between June 2011 and January 2012. Doc. 16-1 at 4.

Fitzsimmons argues that this information would have created reasonable

doubt about the veracity of L.G.’s allegations. Id. Fitzsimmons maintains

that he presented this claim to the state courts in his Rule 3.850

proceeding. Doc. 16 at 16.

The State agrees that Fitzsimmons raised the allegation about

Shippy’s questioning of Varnum in Fitzsimmons’s amended Rule 3.850

motion as Ground 1(g). Doc. 30 at 13. The State argues, though, that this

sub-claim is unexhausted and procedurally defaulted because

Fitzsimmons failed to present any evidence in support of the claim at the

Rule 3.850 evidentiary hearing. Id. at 13–14, 17.

As to the allegation about Shippy failing to present evidence to

support an “alibi” defense, the State asserts that Fitzsimmons’s

allegations are procedurally defaulted because Fitzsimmons’s Rule 3.850

motion did not put the state court on notice of this specific factual basis.

Doc. 30 at 14–17.

A. The State Courts Rejected This Claim on the Merits

Fitzsimmons’s allegations regarding Shippy’s questioning of Kathy

Varnum are exhausted for the reasons discussed above. See discussion

supra Ground Three, Section A. Fitzsimmons’s failure to present

evidence on this issue at the Rule 3.850 evidentiary hearing did not

constitute abandonment.

Fitzsimmons’s allegations regarding an “alibi defense” were raised

in Fitzsimmons’s amended Rule 3.850 motion, albeit using different

terminology. In his Rule 3.850 motion, Fitzsimmons faulted Shippy for

failing to challenge the “timeline” of the sexual abuse. Doc. 31-4, Ex. 28

at 221–22. For example, in Ground One, sub-claim (h), Fitzsimmons

alleged that Shippy should have presented evidence and testimony that

Fitzsimmons left his job in Woodville “in mid to late 2011” to go “down

south” and then returned to Woodville “shortly after” L.G.’s family moved

into Fitzsimmons’s Woodville home “beginning of 2012.” Id.; see also Doc.

16-1 at 4 (Pet’r’s Mem. alleging that “between June 2011 thru Jan 2012

Petitioner was down South Florida.”).

The state circuit court denied “Ground One” in its entirety because

Shippy’s “strategic decisions” about “which witnesses to call and what to

bring out” were reasonable; Fitzsimmons “failed to show evidence of

ineffective assistance of counsel”; and Fitzsimmons “failed to show any

prejudice in this case.” Id. at 420–21, 423. The First DCA summarily

affirmed. The First DCA’s summary affirmance is an “adjudication on the

merits” of Fitzsimmons’s claim and, therefore, is reviewed under §

2254(d)’s deferential standard. See Richter, 562 U.S. at 99.

B. Fitzsimmons Is Not Entitled to Habeas Relief

1. Varnum Questioning

The state court reasonably applied Strickland when it rejected

Fitzsimmons’s claim that Shippy was deficient for failing to ask Kathy

Varnum certain questions. See Doc. 31-4, Ex. 28 at 219–20. Shippy did,

in fact, ask Varnum questions about her observations of Fitzsimmons and

L.G. together, and whether she observed any improper touching.

Fitzsimmons’s allegations about how Varnum would have answered

additional questions is purely speculative. See Doc. 31-4, Ex. 28 at 220–

21 (Fitzsimmons’s proposed questions).

2. Timeline/Alibi Evidence

For context, Fitzsimmons was charged in Counts 1, 6 and 8 with

sexually abusing L.G. on various occasions over a five-year period:

“[b]etween September 3, 2009 and December 31, 2014.” Doc. 31-2, Ex. 3.

Attorney Shippy testified that he met with Fitzsimmons and asked

Fitzsimmons where Fitzsimmons lived during the relevant period and

with whom. See Doc. 31-4, Ex. 29 at 389; see also Doc. 31-6, Ex. 42 at 10–

11 (Shippy Notes). Shippy’s strategy was to find witnesses who lived with

Fitzsimmons or L.G.’s family who could testify to matters such as lack of

opportunity, L.G.’s behavior around Fitzsimmons and vice versa. Doc. 31-

4, Ex. 29 at 390–92, 407; see also Doc. 31-6, Ex. 42 at 7, 10. Shippy

developed three witnesses who were favorable to the defense: (1) Kathy

Varnum (Fitzsimmons’s former girlfriend who retired from the Florida

Department of Corrections and lived with Fitzsimmons in his trailer in

Woodville from 2012 to 2014); (2) L.G.’s brother Joe; and (3) L.G.’s aunt

Lisa (Donald Graves’s sister who was close to L.G. and who lived with

L.G.’s family in Fitzsimmons’s home from late 2012 to early 2013, and

lived with Fitzsimmons in his trailer starting in 2015). Doc. 31-3, Ex. 11

at 133–53 (Trial Tr.).

A fairminded jurist could agree with the state court’s decision that

Fitzsimmons failed to establish deficient performance and prejudice

arising from Shippy’s failure to establish—through defense witnesses

and documentary sources—that Fitzsimmons was absent from Woodville

for a brief, 8-month period (according to Fitzsimmons) from June 2011 to

January 2012. That evidence would not have undermined confidence in

the jury’s verdict that Fitzsimmons sexually abused L.G. during the time

Fitzsimmons admittedly lived in Woodville.

For the reasons set forth above, Fitzsimmons is not entitled to

habeas relief on Ground Four.

Ground Five “Trial Counsel’s Ineffectiveness. Counsel’s

performance was deficient when he failed to

advise Petitioner to testify in violation of the

5th, 6th & 14th U.S. Const Amendment” Doc.

16 at 22.

Fitzsimmons alleges that Attorney Shippy was ineffective for (1)

failing to affirmatively advise Fitzsimmons to testify and (2) failing to

discuss “the pros and cons” of Fitzsimmons testifying. Doc. 16 at 22; Doc.

16-1 at 5. Fitzsimmons details what his proposed testimony would have

been. Doc. 16-1 at 5.

The State asserts that Fitzsimmons presented the state courts with

only one aspect of this claim—Shippy’s alleged failure to discuss “the pros

and cons” of Fitzsimmons testifying. Doc. 30 at 17. The allegation that

Shippy was ineffective for failing to affirmatively advise Fitzsimmons to

testify is procedurally defaulted. Id. at 17–19.

A. Fitzsimmons Exhausted Only His Claim that Counsel

Failed to Discuss the “Pros and Cons” of Testifying

Fitzsimmons’s amended Rule 3.850 motion asserted only that

Shippy failed to discuss the “pros and cons” of Fitzsimmons testifying.

Doc. 31-4, Ex. 28 at 225. Fitzsimmons did not include the separate

allegation that Shippy should have affirmatively advised Fitzsimmons to

testify, nor did Fitzsimmons detail what his testimony would have been.

Id. As a result, the state circuit did not consider the latter factual

assertions in ruling on “Ground One” of Weathersbee’s amended Rule

3.850 motion. See Doc. 31-4, Ex. 29 at 416. Fitzsimmons, therefore,

procedurally defaulted the failure-to-affirmatively-advise-to-testify

claim. See Jackson, 42 F.3d at 1355; Kelley, 377 F.3d at 1344–50; see also,

e.g., Wardell v. Sec’y, Fla. Dep’t of Corr., 692 F. App’x 578, 580–81 (11th

Cir. 2017).

B. The State Court’s Decision

Fitzsimmons raised the failure-to-advise-about-pros-and-cons”

claim as Ground One, subclaim 1(j) of his amended Rule 3.850 motion.

The state circuit court denied relief on Ground One for these reasons:

The defendant has failed to show evidence of ineffective

assistance of counsel. And, even had he shown evidence of

ineffective assistance, he has failed to show any prejudice in

this case.

Specifically, Mr. Daren Shippy in this case, the court

finds was effective. . . .

Doc. 31-4, Ex. 29 at 421. The state court’s decision was based on Shippy’s

testimony (which the state court found credible) and Shippy’s notes. Id.

at 420–23. The First DCA affirmed without explanation.

The First DCA’s summary affirmance is an “adjudication on the

merits” of Fitzsimmons’s claim and, therefore, is reviewed under §

2254(d)’s deferential standard. Richter, 562 U.S. at 99. Because the First

DCA’s decision is unexplained, this court presumes that the First DCA

rejected Fitzsimmons’s claim for the reasons articulated by the state

circuit court. Wilson, 584 U.S. at 125.

C. Fitzsimmons Is Not Entitled to Habeas Relief

The First DCA’s decision is not “contrary to” clearly established

federal law, because the state court identified and applied the Strickland

standard. See Doc. 31-4, Ex. 29 at 423. To obtain habeas relief, therefore,

Fitzsimmons must show that the state court’s decision involved an

unreasonable application of the Strickland standard or was based on an

unreasonable determination of facts in light of the evidence in the state-

court record. Fitzsimmons fails to make either showing.

Shippy testified—and his notes reflect—that Shippy discussed the

pros and cons of Fitzsimmons testifying. Doc. 31-4, Ex. 29 at 388–89, 392;

see also Doc. 31-6, Ex. 42 at 14, 18, 24, 26 (Shippy notes). Fitzsimmons

“made a point” of telling Shippy that “he does not do well under pressure.”

Doc. 31-4, Ex. 29 at 388–89. That signaled to Shippy that Fitzsimmons

might not do well testifying and being cross-examined. Id.

Shippy talked to Fitzsimmons “at least three times specifically

about the right to testify and that it was entirely his decision.” Id. at 392.

Shippy and Fitzsimmons discussed Fitzsimmons’s criminal history:

[Shippy] He [Fitzsimmons] specifically asked me how much

of his criminal history would come into evidence. And I told

him generally, if he answered the question truthfully, it would

simply be the number of times you’ve been convicted of a

felony.

I said there are times, I’ve seen it happen, you can open

the door and – by saying certain things. And then if the State

feels that they’ve got something they can introduce to impeach

you with then what would have been not admissible becomes

admissible.

And that’s why we talked in detail about his criminal

history and how that may play out. Because he did have a

criminal history that was what you would call relevant to the

allegations in this case.

Q [the State] Because one of his – one of his prior criminal

history actually did include something of a sexual nature?

A Yes. There was a carnal knowledge.

Id. at 392; see also Doc. 31-6, Ex. 42 at 14, 18, 24, 26 (Shippy notes).

Shippy also explained to Fitzsimmons that “if [Fitzsimmons] wants his

story told, then that weighs in favor of him testifying.” Doc. 31-6, Ex. 42

at 14. Fitzsimmons decided that he would make the decision about

testifying “after hearing and seeing all of the evidence.” Id.

Just before trial, Shippy “went through again with client how it is

his decision and my thoughts as to how he might consider making that

decision.” Doc. 31-6, Ex. 42 at 24. Shippy explained that Fitzsimmons was

“no different from any other witness and that the process is a Q&A

format.” Id.

Based on Shippy’s testimony and notes, a fairminded jurist could

agree with the state court’s decision that Fitzsimmons failed to establish

deficient performance under Strickland with regard to advice about the

pros and cons of testifying. Fitzsimmons, therefore, is not entitled to

relief on Ground Five.

Ground Six “Trial Counsel’s Ineffectiveness by failing to

object to the State providing a leading

question to Deputy Zimba, that elicited

inadmissible speculation, in violation of

Federal Due Process.” Doc. 16 at 22.

Fitzsimmons alleges that Shippy was ineffective for not objecting to

a “leading” question during the prosecutor’s re-direct of Deputy Zimba.

Doc. 16 at 22; Doc. 16-1 at 5. On direct examination, Zimba testified that

when he was getting preliminary information from L.G., L.G. told Zimba

that Fitzsimmons’s sexual abuse started when L.G. was eight years old

and continued until she was eleven. Doc. 31-3, Ex. 11 at 74. L.G. also

wrote a sworn statement for Zimba. Id. at 75. In the sworn statement,

L.G. stated that Fitzsimmons’s sexual abuse started when she was six

years old through age eleven. Id.

Shippy cross-examined Zimba on that discrepancy:

Q [Shippy] When you spoke with L.G., she told you it began

when she was eight; right?

A [Zimba] Yes, sir.

Q When she wrote her statement, she wrote that it started

when she was six; right?

A That’s what it’s stating. I don’t -- clarifying, I don’t know

if that was an error on my notes or something maybe she told

me differently. I’m not sure on that.

Q But your memory: She told you it started when she was

eight; right?

A Yes, sir.

Id. at 76. Shippy also questioned Zimba about L.G.’s verbal statement

that the abuse stopped in 2014, compared to her written statement that

the abuse stopped sometime in 2015. Id. at 77–78.

On re-direct, the prosecutor asked Zimba:

Q When you’re doing a report, that is after you leave the

scene; right?

A Yes.

Q And you’re doing a report based on the notes that you

have created?

A Yeah. Based on -- when I go to a scene, I -- based off

memory and my notepad. I have to write down what I feel is

pertinent to the case, what they tell me. And then when I’m

done, I discard it because I don’t need it anymore. Once it’s

documented, I have no further need to keep it.

Q So you don’t do -- you don’t review, like, a body-worn

camera or something and then write your report?

A No.

Q So is it possible that she -- that eight years old thing was

a mistake?

A It’s possible, yeah.

Q And then when it says that it had occurred, you know,

approximately -- it stopped almost two years ago, when she’s

writing this statement, it was February 2017, so two years ago

could have been 2015 or 2014. The end of 2014 would still be

approximately two years ago; right?

A Yeah. She didn’t have exact dates.

Id. at 78–79.

Fitzsimmons alleges that the prosecutor’s “is it possible” question

was objectionable under the Florida Evidence Code, Fla. Stat. § 90.612(3),

because it was “leading” and called for speculation. Doc. 16-1 at 5.

Fitzsimmons faults Attorney Shippy for failing to object.

The parties agree that Fitzsimmons presented this claim to the

state courts in a sub-claim of “Ground One” of his amended Rule 3.850

motion and postconviction appeal. Doc. 16 at 22; Doc. 30 at 19.

A. The State Court’s Decision

Fitzsimmons raised this allegation as Ground 1(e) of his amended

Rule 3.850 motion. Doc. 31-4, Ex. 28 at 214–15. The state circuit court

denied relief for the reasons quoted in Ground One above, namely,

because Shippy made reasonable strategic decisions during the course of

witness interrogation, and Fitzsimmons failed to establish prejudice from

Shippy’s failure to object. See quoted text supra Ground One, Section B.

The First DCA affirmed without explanation.

The First DCA’s summary affirmance is an “adjudication on the

merits” of Fitzsimmons’s claim and, therefore, is reviewed under §

2254(d)’s deferential standard. Richter, 562 U.S. at 99. Because the First

DCA’s decision is unexplained, this court presumes that the First DCA

rejected Fitzsimmons’s claim for the reasons articulated by the state

circuit court. Wilson, 584 U.S. at 125.

B. Fitzsimmons Is Not Entitled to Habeas Relief

The First DCA’s decision is not “contrary to” clearly established

federal law, because the state court identified and applied the Strickland

standard. Doc. 31-4, Ex. 29 at 423. The First DCA’s decision also was not

an unreasonable application of the Strickland standard.

The trial transcript establishes that during cross-examination of

Deputy Zimba, Shippy successfully emphasized the discrepancies

between L.G.’s verbal and written statements to Zimba. Although Shippy

did not object to the prosecutor’s redirect, Shippy did, during closing

argument, re-emphasize the inconsistencies brought out during Zimba’s

cross-examination. See Doc. 31-3, Ex. 12 at 241–42. Also, Shippy testified

at the postconviction evidentiary hearing that his actions during the

examination of witnesses were strategic decisions. Doc. 31-4, Ex. 29 at

406–07.

Based on the state-court record, a fairminded jurist could agree

with the state court’s conclusion that Fitzsimmons failed to show that (1)

no reasonable attorney would have chosen Shippy’s strategy, and (2) but-

for Shippy’s failure to object to the “is it possible” question on redirect,

there is a reasonable probability the jury’s verdict would have been

different. Zimba’s answer on redirect was essentially the same as his

testimony on cross-examination—that the discrepancy between L.G.’s

verbal and written statements could have been due to an error in Zimba’s

note-taking.

Because Fitzsimmons fails to meet § 2254(d)’s high bar for habeas

relief, Ground Six must be denied.

Ground Seven “Trial Counsel’s Ineffectiveness by not

requesting the proper Impeachment Jury

Instructions in violation of Federal Due

Process.” Doc. 16 at 22.

Fitzsimmons alleges that Shippy was ineffective for failing to

request this jury instruction: “that prior inconsistent statements were

only to be considered as being relevant to the credibility of the witness

impeached and could not be taken as proof or evidence of the defendant’s

guilt.” Doc. 16-1 at 6.

The State agrees that Fitzsimmons presented this claim to the state

courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,

namely Ground 1(k). Doc. 30 at 20. The State argues, though, that this

sub-claim is unexhausted and procedurally defaulted because

Fitzsimmons abandoned it by not presenting evidence in support of the

claim at his Rule 3.850 evidentiary hearing. Id.

A. The State Courts Rejected This Claim on the Merits

The state circuit court did not deem this sub-claim abandoned. Doc.

31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground

One” in its entirety because Fitzsimmons “failed to show evidence of

ineffective assistance of counsel” and “failed to show any prejudice in this

case.” Id. at 420–21, 423. The First DCA summarily affirmed.

Fitzsimmons’s failure to present evidence on this issue at the Rule 3.850

evidentiary hearing did not constitute abandonment. See discussion

supra Ground Three, Section A.

B. Fitzsimmons Is Not Entitled to Habeas Relief

The state court’s rejection of this claim was neither contrary to, nor

an unreasonable application of, the Strickland standard. At trial, Shippy

advocated for the court to give the very instruction Fitzsimmons now

proposes: that L.G.’s prior inconsistent statements were only to be

considered as relevant to her credibility and could not be taken as proof

or evidence of Fitzsimmons’s guilt. See Doc. 31-3, Ex. 12 at 209–10 (Trial

Tr.). The trial court ultimately gave the instruction Shippy requested. Id.

at 210–11. The final jury instruction read:

The evidence that a witness may have made a prior

statement that is inconsistent with her testimony in court

should be considered only for the purpose of weighing the

credibility of the witness’s testimony and should not be

considered as evidence of proof of the truth of the prior

statement or for any other purpose.

Doc. 31-3, Ex. 12 at 221; see also Fl. St. Cr. J. Inst. 2.13 (same).

Because the record establishes that Shippy requested—and the

trial court gave—the very instruction Fitzsimmons says counsel should

have requested, Fitzsimmons’s ineffective-assistance claim was properly

denied. Fitzsimmons is not entitled to habeas relief on Ground Seven.

Ground Eight “Trial Counsel’s Ineffectiveness by not

calling an expert child psychologist to testify

at trial, in violation of Federal Due Process.”

Doc. 16 at 22.

Fitzsimmons alleges that Shippy was ineffective for failing to find

and call a child psychologist to testify about the fact that when L.G.

disclosed abuse by Wheelchair Mike, L.G. did not also disclose abuse by

Fitzsimmons. Doc. 16 at 22; Doc. 16-1 at 6.

The State agrees that Fitzsimmons presented this claim to the state

courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,

namely Ground 1(m). Doc. 30 at 21. The State argues that this sub-claim

is unexhausted and procedurally defaulted because Fitzsimmons

abandoned it by not presenting evidence in support of the claim at his

Rule 3.850 evidentiary hearing. Id.

A. The State Courts Rejected This Claim on the Merits

The state circuit court did not deem this sub-claim abandoned. Doc.

31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground

One” in its entirety. Id. The First DCA summarily affirmed.

Fitzsimmons’s failure to present evidence on this issue at the Rule 3.850

evidentiary hearing did not constitute abandonment. See discussion

supra Ground Three, Section A.

B. Fitzsimmons Is Not Entitled to Habeas Relief

The state court’s rejection of this claim was neither contrary to, nor

an unreasonable application of, the Strickland standard. Shippy testified

at the postconviction evidentiary hearing that he made a strategic

decision to narrow the evidence in the case to exclude any mention of

L.G.’s allegations of abuse by Wheelchair Mike. Doc. 31-4, Ex. 29 at 408.

Shippy felt that “there certainly would have been sympathy to the jury

that, oh my gosh, this happened before to her. Under the allegations

happening by Mr. Fitzsimmons that could have gone both ways.” Id. The

state court determined, reasonably, that Shippy’s decisions about which

witnesses to call were reasonable strategic decisions. See Waters v.

Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (“Which witnesses, if any,

to call, and when to call them, is the epitome of a strategic decision, and

it is one that we will seldom, if ever, second guess.”)

The state court also reasonably applied Strickland’s prejudice

prong. At the state postconviction evidentiary hearing, Fitzsimmons did

not call or submit written testimony from a child psychologist.

Fitzsimmons merely made conclusory allegations in his motion of what

he thought a child psychologist could have said. That is precisely the kind

of allegation that the Eleventh Circuit has held to be inadequate to

establish a Strickland violation. McKiver, 991 F.3d 1357 at 1366;

Sullivan v. DeLoach, 459 F.3d 1097, 1108-09 (11th Cir. 2006); Johnson v.

Alabama, 256 F.3d 1156, 1186–87 (11th Cir. 2001) (when a petitioner

“offers only speculation that the missing witnesses would have been

helpful,” instead of providing evidence in support of the claim, the

petitioner has failed to carry his burden to prove ineffective assistance);

see also Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848, 852 (11th Cir.

2016) (denying as speculative ineffective-assistance claim arising from

counsel’s failure to call expert witness).

The state court’s decision was not contrary to or an unreasonable

application of the Strickland standard. Fitzsimmons, therefore, is not

entitled to habeas relief on Ground Eight.

Ground Nine “Counsel failed to have Petitioner’s

computer analyzed by an Expert in violation

of Federal Due Process.” Doc. 16 at 22.

This claim arises from L.G.’s statements during a CPT interview. A

redacted version of the CPT interview was played for the jury. Doc. 31-3,

Ex. 11 at 87–119. At one point, L.G. said:

L.G.: I remember one time he [Fitzsimmons] tried to make me

watch a video of two teen-agers on his computer.

MS. SPOTTS [CPT interviewer]: Tell me more about that.

L.G.: The video was going and he was trying to make me

watch it, but I wouldn’t look at it. And he kept trying to turn

my head and said that he knew you wanted -- that I wanted

to watch it, and I didn’t.

MS. SPOTTS: Okay. You said it was a video of two teen-

agers?

L.G.: Uh-huh.

MS. SPOTTS: How do you know that it was two teen-agers?

L.G.: Because I watched him type it in.

MS. SPOTTS: What did he type in?

L.G.: The teen-age -- the P word that I don’t like.

MS. SPOTTS: The P word? What’s the P word?

L.G.: I’ll say the letters but I’m not saying the actual word.

MS. SPOTTS: Okay.

L.G.: P-o-r-n.

Id. at 113.

Fitzsimmons asserts that Shippy was ineffective for “fail[ing] to

have the computer analyzed by an expert, that would reflected [sic] that

the computer ‘Never’ had Porn on it.” Doc. 16 at 7. Fitzsimmons alleges

that counsel’s error prejudiced him because it allowed L.G.’s statements

to go “unchallenged.” Id.

The State agrees that Fitzsimmons presented this claim to the state

courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,

namely Ground 1(f). Doc. 30 at 22. The State argues, though, that this

sub-claim is unexhausted and procedurally defaulted because

Fitzsimmons abandoned it by not presenting evidence in support of the

claim at his Rule 3.850 evidentiary hearing. Id.

A. The State Courts Rejected This Claim on the Merits

The state circuit court did not deem this sub-claim abandoned. Doc.

31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground

One” in its entirety because Fitzsimmons “failed to show evidence of

ineffective assistance of counsel” and “failed to show any prejudice in this

case.” Id. at 420–21, 423. The First DCA summarily affirmed.

Fitzsimmons’s failure to present evidence on this issue at the Rule 3.850

evidentiary hearing did not constitute abandonment. See discussion

supra Ground Three, Section A.

B. Fitzsimmons Is Not Entitled to Habeas Relief

This claim fails for the same reasons Fitzsimmons’s prior claim

about an uncalled expert (a child psychologist) fails. See discussion supra

Ground Eight, Section B. Fitzsimmons offers nothing more than

conclusory, speculative allegations about how a forensic computer

analyst would have testified. Because Fitzsimmons did not provide a

computer expert’s opinion at the Rule 3.850 evidentiary hearing,

Fitzsimmons failed to establish that expert testimony on the contents

and search history of the computer would have been favorable to the

defense, much less that there was a reasonable probability of it changing

the outcome of the trial. See McKiver, 991 F.3d at 1366.

The state court’s rejection of this claim was not contrary to, or an

unreasonable application of the Strickland standard. Thus, Fitzsimmons

is not entitled to habeas relief on Ground Nine.

Ground Ten “Counsel’s Ineffectiveness amounts to

Cumulative error, in violation of the right to

have a fair trial.” Doc. 16 at 22.

Fitzsimmons alleges that the cumulative effect of counsel’s errors

in Grounds One through Nine deprived Fitzsimmons of a fair trial. Doc.

16 at 22; Doc. 16-1 at 7.

The State agrees that Fitzsimmons presented this claim to the state

courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,

namely Ground 1(n). Doc. 30 at 24. The State argues that this sub-claim

is unexhausted and procedurally defaulted because Fitzsimmons

abandoned it by not presenting evidence in support of the claim at his

Rule 3.850 evidentiary hearing. Id.

A. The State Courts Rejected This Claim on the Merits

The state circuit court did not deem this sub-claim abandoned. Doc.

31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground

One” in its entirety because Fitzsimmons “failed to show evidence of

ineffective assistance of counsel” and “failed to show any prejudice in this

case.” Id. at 420–21. The First DCA summarily affirmed. Fitzsimmons’s

failure to present evidence on this issue at the Rule 3.850 evidentiary

hearing did not constitute abandonment. See discussion supra Ground

Three, Section A.

B. Fitzsimmons Is Not Entitled to Habeas Relief

The Eleventh Circuit has questioned whether a claim of cumulative

error ever can provide a basis for federal habeas relief. See Morris v. Sec’y,

Dep’t of Corr., 677 F.3d 1117, 1132 & n.3 (11th Cir. 2012) (“We need not

determine today whether, under the current state of Supreme Court

precedent, cumulative error claims reviewed through the lens of AEDPA

can ever succeed in showing that the state court’s decision on the merits

was contrary to or an unreasonable application of clearly established

law.”). Although the Supreme Court has not addressed the applicability

of the cumulative-error doctrine in the context of ineffective-assistance

claims, the Court has held that “there is generally no basis for finding a

Sixth Amendment violation unless the accused can show how specific

errors of counsel undermined the reliability of the finding of guilt.”

United States v. Cronic, 466 U.S. 648, 659 n.26 (1984) (citations omitted).

Fitzsimmons has not shown that the alleged errors of trial counsel

discussed above undermine the reliability of the jury’s finding of guilt. In

light of Cronic and the absence of Supreme Court precedent applying the

cumulative-error doctrine to claims of ineffective assistance of counsel,

the state court’s rejection of Fitzsimmons’s claim was neither contrary to,

nor an unreasonable application of, clearly established federal law.

Fitzsimmons is not entitled to habeas relief on Ground Ten.

Ground Eleven “The State PCR Court Abused its discretion

by denying Appointment of Counsel for the

state court hearing in violation of federal

Due Process and the right to effective

Assistance of Counsel.” Doc. 16 at 22.

Fitzsimmons’s final claim is that the state postconviction court’s

denial of Fitzsimmons’s request for postconviction counsel violated

Fitzsimmons’s constitutional rights. Doc. 16 at 22; Doc. 16-1 at 7–8.

The parties agree that Fitzsimmons exhausted this claim by

requesting counsel for the evidentiary hearing and appealing the state

circuit court’s denial of that request. Doc. 16 at 22; Doc. 30 at 25. The

State asserts that this claim must be denied because (1) the First DCA’s

decision was not contrary to or an unreasonable application of clearly

established federal law; and (2) there is no federal constitutional right to

postconviction counsel. Doc. 30 at 86–92.

“There is no constitutional right to an attorney in state post-

conviction proceedings.” Coleman, 501 U.S. at 752 (citing Pennsylvania

v. Finley, 481 U.S. 551 (1987)); see also Lambrix v. Sec’y, Fla. Dep’t of

Corr., 756 F.3d 1246, 1263 (11th Cir. 2014) (“Longstanding U.S. Supreme

Court precedent holds that a habeas petitioner cannot assert a viable,

freestanding claim for the denial of the effective assistance of state

collateral counsel in post-conviction proceedings.”); Chavez v. Sec’y, Fla.

Dep’t of Corr., 742 F.3d 940, 944 (11th Cir. 2014).

Because Fitzsimmons’s claim provides no basis for federal habeas

relief, Ground Eleven must be denied.

A CERTIFICATE OF APPEALABILITY IS NOT WARRANTED

Rule 11(a) of the Rules Governing Section 2254 Cases in the United

States District Courts provides: “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the

applicant.” If a certificate is issued, “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must

still be filed, even if the court issues a certificate of appealability. See 28

U.S.C. § 2254 Rule 11(b).

“[Section] 2253(c) permits the issuance of a COA only where a

petitioner has made a ‘substantial showing of the denial of a

constitutional right.’” Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. §

2253(c)). “At the COA stage, the only question is whether the applicant

has shown that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed

further.” Buck v. Davis, 580 U.S. 100, 115 (2017). “When the district court

denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the

prisoner shows, at least, 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 v. McDaniel, 529

U.S. 473, 484 (2000) (emphasis added). Here, Petitioner has not made the

requisite demonstration. Accordingly, the court should deny a certificate

of appealability in its final order.

“Before entering the final order, the court may direct the parties to

submit arguments on whether a certificate should issue.” 28 U.S.C. §

2254 Rule 11(a). If there is an objection to this recommendation, the

relevant party shall file such an objection with the District Court.

CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. DENY the second amended petition for writ of habeas corpus,

Doc. 16.

2. DENY a certificate of appealability.

3. DIRECT the clerk of court to close this case file.

At Panama City, Florida, this 5th day of February, 2026.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to a magistrate

judge to make recommendations regarding dispositive

matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to

these proposed findings and recommendations must be

filed within fourteen days of the date of the report and

recommendation. Any different deadline that may

appear on the electronic docket is for the court’s

internal use only. A party must serve a copy of any

objections on all other parties. A party who fails to

object to this report and recommendation waives the

right to challenge on appeal the District Court’s order

based on unobjected-to factual and legal conclusions.

See 11th Cir. R. 3-1; 28 U.S.C. § 636.