King

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANDREW KING,

Petitioner,

v. Case No. 3:22-cv-1148-TJC-MCR

SECRETARY OF THE FLORIDA

DEPARTMENT OF CORRECTIONS

and THE FLORIDA ATTORNEY

GENERAL,

Respondents.

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding pro se on

a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1) with

exhibits (Docs. 1-1 to 1-8). Petitioner challenges a state court (Duval County,

Florida) judgment of conviction for first-degree murder and armed burglary. He

is serving a life sentence. Doc. 1 at 2. Respondents filed a Response (Doc. 5) with

exhibits (Docs. 6, 7, 8).1 Petitioner filed a Reply (Doc. 9). This case is ripe for

1 The Court will cite exhibits by document and page number as assigned by the Court’s

electronic case management system.

review.2

II. Governing Legal Principles

A. Standard Under § 2254

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

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

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

2016) (explaining AEDPA deference), abrogation in part on other grounds

recognized by Smith v. Comm’r, Ala. Dep’t of Corr., 67 F.4th 1335, 1348 (11th

Cir. 2023). “The purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice

systems, and not as a means of error correction.” Id. (quoting Greene v. Fisher,

565 U.S. 34, 38 (2011)).

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

decision, if any, that adjudicated the petitioner’s claims on the merits. Marshall

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

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th

Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

need not issue an opinion explaining its rationale for the state court’s decision

to qualify as an adjudication on the merits. Harrington v. Richter, 562 U.S. 86,

100 (2011). When the state court’s adjudication on the merits is unaccompanied

by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

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

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 584 U.S. 122, 125-26 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003)). The Supreme Court has repeatedly

instructed lower federal courts that an unreasonable

application of law requires more than mere error or

even clear error. See, e.g., Mitchell v. Esparza, 540 U.S.

12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of

clear error fails to give proper deference to state courts

by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362,

410 (2000) (“[A]n unreasonable application of federal

law is different from an incorrect application of federal

law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified) (emphasis in original).

B. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,

466 U.S. 668, 687 (1984)). To establish ineffective assistance, a person must

show that: (1) counsel’s performance was outside the wide range of reasonable,

professional assistance; and (2) counsel’s deficient performance prejudiced the

challenger in that there is a reasonable probability that the outcome of the

proceeding would have been different absent counsel’s deficient performance.

Strickland, 466 U.S. at 687.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland, “If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable—a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks

omitted). If there is “any reasonable argument that counsel satisfied

Strickland’s deferential standard,” then a federal court may not disturb a state-

court decision denying the claim. Richter, 562 U.S. at 105. As such,

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

Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a ‘strong

presumption’ that counsel’s representation was ‘within the wide range of

reasonable professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822

F.3d 1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When

this presumption is combined with § 2254(d), the result is double deference to

the state court ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at

105).

III. Factual Background and Procedural History

This case arises from the murder of Felicia Burney and her full-term,

unborn child. In April 2010, Burney moved to Jacksonville to live in a house

rented by Danielle Butler, Petitioner’s on-again, off-again girlfriend. State v.

King, 325 So. 3d 313, 315-16 (Fla. 1st DCA 2021). The house was “about 700

square feet.” Id. at 316. Butler “had a full-time day job,” was “attending night

classes to become a medical assistant,” and was the primary caregiver for her

two-year-old son.3 Id. Butler allowed Burney to live in the house rent-free “in

exchange for babysitting and housekeeping services during the many hours a

day when [Butler] was at work or school.” Id.

3 Petitioner is not the biological father of Butler’s child. Doc. 6-13 at 18.

Soon after Burney began living in the house, Petitioner moved in. Id.

Burney and Petitioner had a “contentious relationship.” Id. She “did not like

[Petitioner], was often rude and malicious toward him, and tried to convince

[Butler] to leave him.” Id. Petitioner eventually demanded that Butler “choose

between him and [Burney],” because “he would not stay while [Burney] was

living” in the house. Id. Presented with this “ultimatum,” Butler chose Burney.

Id. Petitioner left to live with his mother “only five blocks away.” Id.

One month before the murder, on May 12, 2010, Petitioner went to

Butler’s house “armed with a claw hammer and demanded entry.” Id. at 317.

He was upset because Butler had refused to “return his laptop.” Id. at 316.

Inside the house were Butler, Butler’s son, Burney, and a man Petitioner

mistakenly believed was “another of [Butler’s] boyfriends.” Id. at 317. When

entry was refused, Petitioner “flew into a rage, kicked through the wooden panel

at the bottom of the front door,” and broke “the glass in the front door, sticking

his head through the opening.” Id. The police were called. Id. Petitioner waited

for law enforcement “without fleeing” and “admitted guilt.” Id. He was convicted

of “criminal mischief” and ordered to “stay away from the residence,” but he and

Butler soon “resumed their intimate relationship.” Id.

On the evening of June 7, 2010, Burney called Butler at school and told

her that her son “had received a large number of ant bites and needed to go to

the hospital.” Id. Butler went home, picked up her son and Burney, and drove

to the emergency room. Id. Burney “insisted on stopping to eat first, which

irritated” Butler. Id. After several hours of waiting to be seen at the hospital,

Butler’s son “seemed better,” so the three went home shortly after 11:00 p.m.

Id. At 1:05 a.m., Burney called a friend because “she wanted to leave

Jacksonville and go back home to Palatka.” Id.

Shortly before 1:00 a.m., Petitioner learned that Butler “had sent a

topless picture of herself to another previous boyfriend.” Id. This led to “an

exchange of tense texting and phone calls between” Petitioner and Butler. Id.

Petitioner called Butler a “lying b*tch” and said, “The only reason you had me

around was to use me to do the things you didn’t want to do.” Doc. 6-20 at 56.

Around 3:26 a.m., Petitioner texted Butler that he would leave his keys to her

house at the end of her driveway, “so that I don’t get accused of something I

didn’t do.” King, 325 So. 3d at 317. Petitioner also said he was “already walking

through the neighborhood.” Id. Butler checked the driveway and did not find

any keys. Id.

Around 4:00 a.m., Butler went to sleep in her bedroom. Id. at 318. She

woke around 10:00 a.m. “even though it was a workday and she had set multiple

alarms on her phone to ensure that she got up on time.” Id. Butler noticed that

“her phone and glasses had been moved and were not within reach where she

had put them.” Id. She also saw “two pieces of yellow rope on her bedroom floor”

and “part of one of her t-shirts on the bed pillow next to hers.” Id. Butler found

her phone and glasses in the living room, then used the phone to take pictures

of the rope and her torn t-shirt. Id.

Butler called out to Burney, who was “sleeping on her left side at her

usual place on a love seat in the living room.” Id. Burney did not respond, which

Butler later said was “normal” for her. Id. Butler then checked on her son; he

was still asleep. Id. Apparently unbeknownst to Butler, Burney had been “killed

by multiple stab wounds.” Id. at 320. The first wound penetrated behind

Burney’s right ear, “nearly severing [her] spinal column” and “render[ing] her

unable to defend herself or to call out, except for perhaps a brief sound or two.”

Id. Another wound penetrated the back of Burney’s right arm and entered her

lung, “severing major arteries.” Id. The injuries led to the death of Burney’s full-

term baby girl, who was “perfectly normal and would have lived if her mother

had not first died.” Id. at 320-31. Butler claimed that she checked on Burney

“without realizing that [she] was dead, and without noticing [her] visible

injuries and blood.” Id. at 318.

At 10:25 a.m., approximately twenty-five minutes after waking up, Butler

called her aunt and said that Petitioner “was trying to scare her.” Id. At her

aunt’s suggestion, Butler went outside to check her car. Id. She saw that “the

landline phone wire was cut and the cable was unhooked.” Id. Petitioner “used

to work for a cable company and had installed her cable for her.” Id. at 318-19.

Butler also discovered that the “outside laundry room door at the back of the

house was ajar,” that the “door from the laundry room into the kitchen was also

open,” and that Petitioner’s house keys “were on the dryer.” Id. at 319.

Butler went back through the kitchen into the living room, where her son

was “asking [Burney] to turn on” the television. Id. Butler claimed that she “saw

something dark coming from [Burney’s] mouth, which she thought was drool or

food, because [Burney] often ate pudding or candy before falling asleep.” Id.

Butler removed the covers from Burney and finally saw that she “appeared to

be dead.” Id. Butler phoned her aunt, who told her to call 911, which she did at

10:50 a.m. Id.

Law enforcement arrived and searched the house, finding (among other

things) yellow rope in the master bedroom and “the sheath of a fish fillet knife

on the top bunk in the boy’s room next to a sippy cup.” Id. According to the

medical examiner, Burney’s stab wounds came from a “blade consistent with

that of a fish fillet knife.” Id. at 320. Petitioner’s mother later told police that “a

fish fillet knife was missing from her house,” and she “identified the knife

sheath found at the murder scene as the one missing from her house.” Id. She

also said the rope from the murder scene “looked like one that had been on her

front porch just recently but had gone missing.” Id. Petitioner “was the major

contributor to the DNA on the knife sheath and the rope, while none of [Butler’s]

DNA could be identified on those items.” Id.

Petitioner’s mother saw him at her house at 1:00 a.m. on the morning of

the murder, but he was gone by 3:30 a.m. “when she got up to make coffee.” Id.

at 318. When she left the house around 5:00 a.m., Petitioner was asleep on the

couch. Id. But when she returned at 8:00 a.m., he was gone again. Id. She called

him at 8:19 a.m., and he arrived at the house two or three minutes later. Id. He

asked to “use her washing machine to wash some of his clothes—something she

testified he had never done before.” Id.

A jailhouse informant claimed that Petitioner “confessed in full to him,

including details not available to the public.” Id. According to the informant,

Petitioner said that he entered the house through the back door, stabbed

Burney to death in the living room, began making his way to Butler’s bedroom,

but then “got paranoid and left the house.” Doc. 6-15 at 96.

Petitioner was charged with two counts of first-degree murder for killing

Burney and her unborn child. Doc. 6-2 at 70. He was also charged with armed

burglary. Id. at 70-71. In the first trial, the prosecution sought the death

penalty. Doc. 6-1 at 17. The trial ended with a hung jury. King, 325 So. 3d

at 315. The prosecution waived the death penalty before the second trial, which

also ended with a hung jury. Id.; Doc. 6-1 at 9. The jury in the third trial found

Petitioner guilty as charged, and he received three consecutive sentences of life

imprisonment. King, 325 So. 3d at 314-15. Petitioner’s defense at all three trials

was that Butler “committed the murder and staged the scene to frame him.” Id.

at 315.

The First District Court of Appeal (First DCA) affirmed the convictions

without a written opinion. King v. State, 156 So. 3d 1080 (Fla. 1st DCA 2015).

Petitioner sought postconviction relief under Florida Rule of Criminal

Procedure 3.850. Doc. 7-8 at 491. Following an evidentiary hearing, the

postconviction court granted relief on one claim: that “trial counsel was

ineffective for failing to introduce evidence of a ‘temperature discrepancy’

between the inside and outside of the house where the murder occurred.” King,

325 So. 3d at 315. The First DCA reversed in a lengthy opinion, holding that

Petitioner “did not demonstrate either deficient performance or prejudice.” Id.

This federal habeas petition followed. Doc. 1.

IV. Analysis

In his sole ground for federal habeas relief, Petitioner renews his claim

that trial counsel should have advanced a “temperature discrepancy” argument.

Doc. 1-1 at 5-15. On the morning of the murder, Butler allegedly went to sleep

at 4:00 a.m., woke around 10:00 a.m., and called 911 to report Burney’s death

at 10:50 a.m. Id. at 318-19. When police arrived minutes later, the back door of

the house “was open far enough that a person could walk through it.” Id. at 321.

According to Petitioner, the temperature inside the house was 70 degrees, and

the temperature outside was between 75 and 78 degrees. Doc. 7-8 at 518.

Moreover, a photograph of a thermostat inside the house “show[ed] a digital

display, with the number ‘79’ in large digits filling most of the screen.” King,

325 So. 3d at 321.

Petitioner contends that the temperature discrepancy, along with the

thermostat picture, supports his defense that Butler staged the scene to “frame”

him for Burney’s murder. Doc. 9 at 12. The argument runs as follows. If, as

Butler alleged, the back door of the house had been open for several hours before

she woke at 10:00 a.m., and if the outside temperature was 75 to 78 degrees,

then the house should have been warmer than 70 degrees when the police

arrived. Id. at 14. According to Petitioner, however, it was only 70 degrees inside

the house when law enforcement showed up. Id. Petitioner thus infers that

Butler opened the back door shortly before the police arrived and tried to warm

the house by setting the thermostat to 79 degrees. Id. This was allegedly done

so that the interior temperature would appear consistent with Butler’s account.

Id. Petitioner argues that counsel should have used the temperature

discrepancy to bolster his “primary defense” that Butler framed him for the

murder. Doc. 1 at 7.

A. The First DCA’s Decision

The First DCA rejected Petitioner’s ineffective-assistance claim, holding

that he failed to “demonstrate either deficient performance or prejudice.” King,

325 So. 3d at 315. According to the court, counsel was not deficient because “the

thermostat picture and argument about the temperature discrepancy lack[ed]

a legally sufficient evidentiary basis.” Id. at 325. First, there was insufficient

“factual foundation” for Petitioner’s assertion that the interior of the house was

70 degrees when the police arrived on the morning of June 8, 2010. Id. at 324.

The 70-degree figure came exclusively from the lead detective, who testified

that she responded to the scene at 12:22 p.m. on June 8, but “did not enter the

house that day.” Id. at 321 (emphasis in original). To be sure, the detective

stated “that her written report (which was not itself entered into evidence)

indicated the inside temperature was 70 degrees and the outside temperature

was between 75 and 78 degrees.” Id. But, as the court noted, the detective did

not “explain when the temperature readings were made or by whom, given that

she did not enter the house until the following day, June 9,” and “there was no

evidence about how someone arrived at these temperatures; i.e., whether by

subjective estimate or through some objective measurement.” Id. Because the

detective “was not in the house on the only relevant day, and there was no

evidence of where the 70-degree number came from, her testimony was not

competent to establish that inside temperature as fact.” Id. at 324. Thus, “no

factual foundation supported the conclusion that it was 70 degrees inside the

house when law enforcement arrived.” Id.

Next, the court noted that “the remaining record evidence established

only that it was hot inside the house.” Id. at 325. Specifically, “[a]nother

detective, an evidence technician, testified that it was in the 90s outside and

hot inside the house as they were taking photographs and collecting evidence.”

Id. Moreover, “no evidence or argument addressed other related issues about

the weather the night before and the morning of the murder, nor the effect of

other potentially relevant factors such as shading and insulation and the open

back door.” Id. Simply put, defense counsel “did not have sufficient competent,

substantial evidence to establish the inside temperature, so there was no

foundation for a ‘temperature discrepancy’ argument.” Id.

The court found that the thermostat picture did not “provide the

necessary competent, substantial evidence, because it [was] inconclusive.” Id.

Petitioner “assumed, without supporting evidence, that the thermostat picture

meant that the system had been set so that the air conditioning would not come

on until the inside temperature reached 79 degrees.” Id. at 322. This would be

consistent with the theory that Butler tried to warm the house by setting the

thermostat to 79 degrees. But another possibility was that “79” indicated “the

temperature inside the house.” Id. at 325. Indeed, the thermostat picture

“show[ed] that the word ‘temp’ [was] aligned with the ‘79,’ suggesting ‘79’

indicate[d] the temperature in the house.” Id. The problem for Petitioner was

that “[n]o evidence of any kind, from a fact or expert witness, established how

the thermostat worked and what the display indicated.” Id. In the court’s view,

“[t]he lack of definitive evidence establishing the significance of the ‘79’ on the

thermostat display, particularly in light of incompetent or inconclusive evidence

about inside and outdoor temperatures, reduce[d] the picture of the thermostat

to the status of inconclusive at best.” Id.

Thus, because the thermostat picture “was inconclusive and other

evidence necessary to develop the temperature-discrepancy defense was not

competent or was nonexistent, counsel [was] not deficient for failing to argue

this theory in opening or closing.” Id. at 326.

The court also addressed the prejudice prong. Id. It found no “‘reasonable

probability’ that the result would have been different if defense counsel had

been able to, and did, argue the temperature discrepancy at trial.” Id. According

to the court, “[e]ven without [the] argument about the possible temperature

discrepancy,” the jury heard “substantial evidence supporting [Petitioner’s]

defensive theory that [Butler] was the perpetrator.” Id. at 327. In particular,

Butler “was on scene and alone with [Burney]; she had a very difficult several

weeks and days leading up to the day of the murder; she was likely sleep-

deprived and exhausted; and she had just been caught two-timing [Petitioner],

resulting in a drawn-out confrontation and argument by text and telephone into

the early morning hours.” Id. at 326. Moreover, Butler “had a history of conflict

with [Burney] and knew [Burney] wanted to move back to Palatka, which would

leave her without a free caretaker for her young son.” Id. Based on this evidence,

the jury “readily could have concluded that [Butler] killed [Burney] in a fit of

anger and frustration.” Id.

In addition, “the defense presented substantial physical evidence casting

doubt on [Butler’s] innocence.” Id. As the court noted, Burney lay dead “with

her face and right arm uncovered within only a few feet of [Butler’s] bedroom

door.” Id. Despite being “inches away” from Burney at times, Butler allegedly

did not notice that she was dead for “fifty minutes.” Id. Moreover, Butler said

that she “noticed something dark running out of [Burney’s] mouth, which she

thought was pudding or candy, but did not mention noticing a gaping and bloody

stab wound on [Burney’s] upward-facing, and uncovered, right cheek; nor the

stab wound on the exposed right arm.” Id. When Butler “finally called 911, she

described the rope and t-shirt first before disclosing that [Burney] was dead,”

and “[s]he wasted no time in identifying [Petitioner] as the perpetrator.” Id.

Butler also “told the 911 operator she found her cell phone in the laundry room,

but testified later that she found it on the kitchen table in the dining area.” Id.

at 326-27.

Likewise, the court found that “[t]he defense ably demonstrated that the

physical evidence at the scene appeared to have been staged.” Id. at 327. For

example, counsel established that Butler’s cellphone pictures “did not match

evidence technicians’ photos of the interior.” Id. Additionally, Butler “claimed a

sippy cup was on her nightstand when she woke up but had not been there when

she went to bed.” Id. When the police arrived, however, “a sippy cup was on the

top bunk bed in her son’s room immediately beside and aligned parallel to the

knife sheath, exactly as if someone carrying both items set them there to pick

up a child.” Id. Thus, given the “substantial evidence supporting [Petitioner’s]

defensive theory that [Butler] was the perpetrator,” the court found no

“reasonable probability” that “the result of the trial would have been different

if defense counsel had presented argument that there was a temperature

discrepancy.” Id.

Finally, the court noted that “the State presented substantial evidence of

[Petitioner’s] guilt.” Id. The court pointed to (1) “voluminous witness testimony

and records of text messages and phone calls demonstrating both [Petitioner’s]

fixation on [Butler] and very strong dislike and resentment of [Burney]”; (2)

Petitioner’s “recent rage-fueled criminal-mischief break-in”; (3) the

“communications on the night of the murder,” which “showed that [Petitioner]

was again hurt and angry”; (4) the existence of “two gaps of time during which

[Petitioner] could have walked the short distance to [Butler’s] house and

committed the murder”; (5) the admission by Petitioner’s mother that the knife

sheath and the yellow rope “came from her house,” where Petitioner lived; (6)

the match between Petitioner’s DNA and the DNA found on the sheath and the

rope; and (7) the testimony of the jailhouse informant, who “provided very

detailed information corroborating several facts of the murder that would not

have been available to the public.” Id.

B. Federal Habeas Review of the First DCA’s Decision

To obtain federal habeas relief, Petitioner must establish that the First

DCA’s decision “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Richter, 562 U.S. at 103. This requires showing “far

more than that the state court’s decision was merely wrong or even clear error.”

Shinn v. Kayer, 592 U.S. 111, 118 (2020). Instead, Petitioner must demonstrate

that the state court “blunder[ed] so badly that every fairminded jurist would

disagree” with the decision. Mays v. Hines, 592 U.S. 385, 392 (2021). Put

differently, “if some fairminded jurists could agree with the state court’s

decision, although others might disagree, federal habeas relief must be denied.”

Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011). “If this standard is

difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

Petitioner is not entitled to relief. A fairminded jurist could agree with

the First DCA’s rejection of his ineffective-assistance claim. Start with the

finding that counsel performed adequately. “Courts must ‘indulge [the] strong

presumption’ that counsel’s performance was reasonable and that counsel

‘made all significant decisions in the exercise of reasonable professional

judgment.’” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000)

(quoting Strickland, 466 U.S. at 689-90). “The pivotal question is whether the

state court’s application of the Strickland standard was unreasonable,” which

is “different from asking whether defense counsel’s performance fell below

Strickland’s standard.” Richter, 562 U.S. at 101. Thus, to prevail on his

ineffective-assistance claim, Petitioner “show that no reasonable jurist could

find that his counsel’s performance fell within the wide range of reasonable

professional conduct.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.

2020).

Petitioner cannot satisfy this demanding standard. The First DCA held

that counsel was not deficient for failing to advance the temperature-

discrepancy theory because “[t]he available evidence about the thermostat and

the inside and outside temperatures was inconclusive at best.” King, 325 So. 3d

at 326. A fairminded jurist could agree with that conclusion. The temperature-

discrepancy argument rests on the premise that the interior of the house was

70 degrees when the police arrived. But that premise lacks a “factual

foundation,” as the First DCA explained. Id. at 324. The 70-degree figure “came

exclusively from the lead detective’s report, but she testified that she did not

enter the house until the next day.” Id. Moreover, “there was no evidence of

where the 70-degree number came from,” and “no other evidence established

the inside temperature that day.” Id. Likewise, the thermostat picture was

“inconclusive” because it was unclear whether the thermostat was “set to” 79

degrees or the temperature inside the house was 79 degrees. Id. at 325.

On this record, a fairminded jurist could agree that, because the “evidence

necessary to develop the temperature-discrepancy defense was not competent

or was nonexistent, counsel [was] not deficient for failing to argue this theory

in opening or closing.” Id. at 326. Indeed, the Supreme Court “has never

required defense counsel to pursue every claim or defense, regardless of its

merit, viability, or realistic chance for success.” Knowles, 556 U.S. at 123. In

sum, Petitioner cannot show that the First DCA’s ruling on the performance

prong “was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.” Richter, 562 U.S. at 103.

Nor did the First DCA act unreasonably in finding no prejudice. “The

prejudice prong requires the petitioner to establish a reasonable probability

that, but for counsel’s errors, the outcome at trial would have been different.”

Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 1261 (11th Cir. 2014). “It is not

enough for the [petitioner] to show that the errors had some conceivable effect

on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Instead,

“counsel’s errors [must be] so serious as to deprive the [petitioner] of a fair trial,

a trial whose result is reliable.” Id. at 687. “Applying AEDPA to Strickland’s

prejudice standard, [this Court] must decide whether the state court’s

conclusion that [counsel’s] performance . . . didn’t prejudice [Petitioner]—that

there was no substantial likelihood of a different result—was so obviously

wrong that its error lies beyond any possibility for fairminded disagreement.”

Mungin v. Sec’y, Fla. Dep’t of Corr., 89 F.4th 1308, 1317 (11th Cir. 2024).

Once again, Petitioner cannot meet his burden. A fairminded jurist could

agree with the First DCA that there is no “reasonably probability” the result

would have been different “if defense counsel had been able to, and did, argue

the temperature discrepancy at trial.” King, 325 So. 3d at 326. Petitioner

asserts that the temperature discrepancy, along with the thermostat picture,

supports his defense that Butler staged the scene to “frame” him for Burney’s

murder. Doc. 9 at 12. But even without the temperature-discrepancy argument,

counsel “presented substantial physical evidence casting doubt on [Burney’s]

innocence” and “ably demonstrated” that the murder scene “appeared to have

been staged.” King, 325 So. 3d at 326-27. Butler “had a history of conflict with

[Burney] and knew [Burney] wanted to move back to Palatka, which would

leave her without a free caretaker for her young son.” Id. at 326. Butler “was on

scene and alone with” Burney on the morning of the murder. Id. And despite

being “inches away” from Burney at times, Butler allegedly did not notice that

she was dead for “fifty minutes” after waking up. Id. Moreover, Butler’s

cellphone pictures “did not match evidence technicians’ photos of the interior,”

and law enforcement found “a sippy cup . . . on the top bunk bed in her son’s

room immediately beside and aligned parallel to the knife sheath, exactly as if

someone carrying both items set them there to pick up a child.” Id.

As the First DCA explained, “[e]ven without defense counsel’s argument

about the possible temperature discrepancy, all of this [was] substantial

evidence supporting [Petitioner’s] defensive theory that [Butler] was the

perpetrator.” Id. Additionally, the temperature-discrepancy theory was “not

supported by competent evidence,” so a fairminded jurist could conclude that it

would not have aided Petitioner’s defense. Id. at 326. On this record, the Court

cannot say that the First DCA’s finding of no prejudice “was so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Richter, 562

U.S. at 103; see also Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1324 n.7

(11th Cir. 2002) (“A petitioner cannot establish ineffective assistance by

identifying additional evidence that could have been presented when that

evidence is merely cumulative.”).

C. Petitioner’s Arguments Against AEDPA Deference

Petitioner argues that the First DCA’s decision is not entitled to AEDPA

deference because it is “mired by unreasonable factual determinations.” Doc. 1-

1 at 4. To show that a state court’s adjudication of a claim was based on an

unreasonable determination of the facts, a petitioner must demonstrate (1) that

particular factual determinations were wrong, by clear and convincing

evidence; and (2) that the state court’s decision “taken as a whole” constitutes

an “unreasonable determination of the facts” and is “based on” that

determination. Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th

Cir. 2022). Thus, a federal court cannot grant relief “even if some of the state

court’s individual factual findings were erroneous—so long as the decision,

taken as a whole, doesn’t constitute an unreasonable determination of the facts

and isn’t based on any such determination.” Id.

Petitioner fails to show that the First DCA’s decision was “based on” an

“unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). First,

Petitioner contends that the court erroneously found an insufficient “factual

foundation” for the 70-degree inside temperature. Doc. 1-1 at 5. As noted above,

that figure “came exclusively from the lead detective’s report, but she testified

that she did not enter the house until the next day.” King, 325 So. 3d at 324.

According to Petitioner, the Jacksonville Sheriff’s Office required the detective

to “swear[] to personal knowledge” of the facts in her report. Doc. 1-1 at 6. Thus,

Petitioner argues, the detective necessarily had “personal knowledge” of the

temperature inside the house when law enforcement arrived. Id. But Petitioner

himself concedes that the “record does not make clear how the temperature was

recorded.” Id. And, as the court pointed out, “there was no evidence of where

the 70-degree number came from,” and “no other evidence established the inside

temperature that day.” King, 325 So. 3d at 324. Therefore, Petitioner has not

rebutted by clear and convincing evidence the court’s finding that “no factual

foundation supported the conclusion that it was 70 degrees inside the house

when law enforcement arrived.” Id.

Second, Petitioner contends that the First DCA erred in relying on

“evidence previously deemed inadmissible.” Doc. 1-1 at 9. The court noted that,

one month before the murder, Petitioner went to Butler’s house “armed with a

claw hammer and demanded entry.” King, 325 So. 3d at 317. Petitioner claims

that during a pretrial hearing, any “evidence of a hammer [was] precluded from

mention at trial.” Doc. 1-1 at 8. That is incorrect. In fact, the trial court

prohibited the prosecution from “introducing any evidence that [Petitioner]

threw a hammer at Felicia Burney.” Doc. 6-5 at 127-28. The court expressly

allowed the prosecution to present “evidence relating to all other circumstances

relating to the [criminal-mischief] incident . . . , including the fact that

[Petitioner] possessed a hammer.” Id. at 128 (emphasis added). The First DCA

never mentioned the allegation that Petitioner threw a hammer at Burney.

Thus, it did not rely on “evidence previously deemed inadmissible.”4 Doc. 1-1

at 9.

Third, Petitioner argues that the phrase “at the relevant time” is

ambiguous in the following passage from the First DCA’s opinion: “[I]n light of

4 The First DCA stated that Petitioner “used the hammer to break the glass in the

front door.” King, 325 So. 3d at 317. None of the witnesses to the incident testified that

the evidence of [Petitioner’s] guilt and the competent testimony that it was hot

inside the house at the relevant time, we cannot conclude that there is a

reasonable probability that arguing a temperature discrepancy to the jury

would have produced an acquittal.” King, 325 So. 3d at 327. This sentence is

not ambiguous. The court was referring to the testimony of Karen Smith, an

evidence technician who helped process the scene. Smith testified that on the

morning of June 8, 2010, she arrived at Butler’s house. Doc. 6-14 at 82-83.

According to Smith, “[it] was hot, we were sweating, [and] so we were probably

changing [gloves] a lot more often than we normally would.” Id. at 119. Thus,

context makes clear that the “relevant time” was the morning of June 8, 2010—

that is, the morning Burney’s body was discovered.

Fourth, Petitioner challenges the First DCA’s assertion that “[t]he

timelines established two gaps of time during which [he] could have walked the

short distance to [Butler’s] house and committed the murder.” King, 325 So. 3d

at 327. This statement is not clearly erroneous. The murder likely occurred

between 4:00 a.m. and 8:00 a.m. on June 8, 2010. Id. at 316. Petitioner’s mother

saw him at her house at 1:00 a.m., but he was gone by 3:30 a.m. “when she got

up to make coffee.” Id. at 318. When she left the house around 5:00 a.m.,

Petitioner used the hammer to break the glass. Petitioner himself told the police that

he broke the glass with a “stick.” Doc. 6-15 at 10. Regardless, there is no basis to

conclude that the First DCA’s ultimate decision hinged on whether Petitioner used a

stick or a hammer to break the glass. Pye, 50 F.4th at 1035.

Petitioner was asleep on the couch. Id. She returned at 8:00 a.m. to find him

gone again. Id. She called him at 8:19 a.m., and he arrived at the house two or

three minutes later. Id. Thus, as the court pointed out, two gaps of time existed

during which Petitioner could have killed Burney: one between 3:30 a.m. and

5:00 a.m., and the other between 5:00 a.m. and 8:00 a.m.

Fifth, Petitioner argues that the First DCA misstated the record when it

noted his “desire to wash laundry” on the morning of the murder. Doc. 1-1 at 10-

11. As explained above, Petitioner arrived at his mother’s house around 8:20

a.m. The court stated that when he entered the house, Petitioner “asked to use

[his mother’s] washing machine to wash some of his clothes—something she

testified he had never done before.” King, 325 So. 3d at 318. This statement is

accurate. Petitioner’s mother testified that he “asked [her] to start [the washing

machine] up for him,” and that he had never washed clothes in “that particular

washing machine” before. Doc. 6-16 at 130. Petitioner separately contends that

his desire to do laundry “is not indicative of wrongdoing.” Doc. 1-1 at 11. But a

fairminded jurist could find it inculpatory. And “[i]f reasonable minds reviewing

the record might disagree about the finding in question, [a federal habeas court]

must yield to the state court’s factual determination.” Nejad v. Att’y Gen., State

of Ga., 830 F.3d 1280, 1289 (11th Cir. 2016).

Sixth, Petitioner contends that the First DCA erroneously stated that his

“first two trials were death penalty trials that resulted in hung juries.” Doc. 1-

1 at 6. Specifically, the court wrote that “[i]n the first two trials, the State sought

the death penalty, and the trials ended with hung juries. To avoid a twelve-

person capital jury in the third trial, [Petitioner] asked the State to drop the

death penalty claim, and the State did.” King, 325 So. 3d at 315. As Petitioner

points out, the prosecution waived the death penalty before the second trial, not

the third. Doc. 6-1 at 9. Thus, contrary to the First DCA’s statement, both the

second and third trials were non-capital.

Petitioner has identified a factual error in the First DCA’s opinion, but

that does not necessarily strip it of AEDPA deference. As noted above, AEDPA

deference applies “even if some of the state court’s individual factual findings

were erroneous—so long as the decision, taken as a whole, doesn’t constitute an

unreasonable determination of the facts and isn’t based on any such

determination.” Pye, 50 F.4th at 1035. That is the case here. The First DCA’s

ultimate decision—that Petitioner failed to establish deficient performance or

prejudice under Strickland—did not turn on whether Petitioner’s first two trials

were capital or non-capital. Indeed, it did not even mention the first two trials

in its discussion of the performance and prejudice prongs. King, 325 So. 3d

at 325-28. Thus, there is no basis to conclude that the First DCA’s “factual

mistake had any meaningful effect on [its] decision.”5 O’Quinn v. Spiller, 806

5 Petitioner separately takes issue with the First DCA’s statement that “[h]is DNA

was the only identifiable DNA on both the rope pieces and the knife sheath.” King, 325

F.3d 974, 978 (7th Cir. 2015); see also Byrd v. Workman, 645 F.3d 1159, 1172

(10th Cir. 2011) (finding that AEDPA deference applied because petitioner

could not “show that the decision—i.e., the overall Strickland determination of

the court—was based on—i.e., rests upon—an unreasonable determination of

the facts” (internal quotation marks omitted)).

Petitioner is not entitled to federal habeas relief.6

Accordingly, it is

ORDERED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

with prejudice.

2. If Petitioner appeals, the Court denies a certificate of appealability.

Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any

So. 3d at 327. According to Petitioner, this statement is inaccurate because “the rope

contain[ed]” Burney’s DNA as well as his own. Doc. 1-1 at 12. True, the prosecution’s

DNA expert testified that Burney was a “possible contributor[]” to one section of the

rope. Doc. 6-16 at 184. But even assuming this rendered the First DCA’s statement

inaccurate, Petitioner fails to show that this minor discrepancy had “any meaningful

effect on [the court’s] decision.” O’Quinn, 806 F.3d at 978.

6 Even if AEDPA deference did not apply, Petitioner would not be entitled to relief

because his ineffective-assistance claim would fail under de novo review for the

reasons set forth above. See Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1109-

10 (11th Cir. 2012) (“Courts can . . . deny writs of habeas corpus under § 2254 by

engaging in de novo review when it is unclear whether AEDPA deference applies,

because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her

claim is rejected on de novo review.” (emphasis omitted)).

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.’

3. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 4th day of

February, 2026.

te Cirmthg g. Corrig on

Ww. TIMOTHY J. CORRIGAN

Senior United States District Judge

TpaP-2

C:

Andrew King, #J51219

Counsel of Record

7 The Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make this substantial showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong, Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

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