# Galloway

> District Court, M.D. Florida · February 9, 2026

URL: https://www.frixlaw.com/law-library/cases/11315406

## Case

- **Full name:** Ricardo Depadra Galloway v. Secretary, Florida Department of Corrections
- **Court:** District Court, M.D. Florida
- **Decided:** February 9, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11315406

## How later opinions describe it (automated extraction)

- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process”
- finding that a pro se litigant abandoned an issue that was not raised in his initial brief as the court does “not address arguments raised for the first time in a pro se litigant’s reply brief”
- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RICARDO DEPADRA GALLOWAY,

Petitioner,
v. Case No. 3:23-cv-364-JEP-MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_____________________________________
ORDER
THIS CAUSE is before the Court on Petitioner’s pro se Petition for Writ
of Habeas Corpus by a Person in State Custody Under 28 U.S.C. § 2254

(“Petition,” Doc. 1), Respondent’s Response to the Petition (Doc. 9), and
Petitioner’s Reply (Doc. 24) thereto.1 Upon review, no evidentiary proceedings
are warranted in this Court.2 For the reasons set forth below, the Petition is
denied.

1 For purposes of reference to pleadings and exhibits, the Court will cite the
document numbers and page numbers assigned by the Court’s electronic docketing
system.
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 Corrs., 834 F.3d
1299, 1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corrs., 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
I. PROCEDURAL HISTORY
On September 14, 2015, the State of Florida filed an information in

Duval County Circuit Court case number 2015-CF-7252,3 charging Ricardo
Depadra Galloway (“Galloway”) with attempted murder in the second degree
(count one), attempted armed robbery (count two), and possession of a firearm
by a convicted felon (count three), based on events that occurred on June 7,

2014. (Doc. 9-1 at 40). After a two-day trial, on October 19, 2016, the jury found
Galloway guilty as charged on all counts. (Id. at 112–13, 146; Doc. 9-2 at 563–
64, 573–74). On December 2, 2016, the trial court sentenced Galloway to a term
of life in prison as a Habitual Felony Offender (“HFO”), with a thirty-year

mandatory minimum as a Prison Releasee Reoffender (“PRR”) and a twenty-
five-year mandatory minimum for discharging a firearm, as to count one; a
term of thirty years in prison as an HFO, with a fifteen-year mandatory
minimum as a PRR and a twenty-five-year mandatory minimum for

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.
3 The Court takes judicial notice of Petitioner’s state court dockets. See Paez v.
Sec’y, Fla. Dep’t of Corrs., 947 F.3d 649, 651–52 (11th Cir. 2020) (holding that a
district court may take judicial notice of online state court docket sheets in ruling on
a petition for writ of habeas corpus).
2
discharging a firearm, as to count two; and a term of twenty-five years in prison
as an HFO, with a three-year mandatory minimum for discharging a firearm,

as to count three. (Doc. 9-1 at 179–89, 337–39). The same day, the trial court
denied Galloway’s motion for a new trial. (Id. at 190–92, 308). Through counsel,
Galloway appealed his convictions and sentences to Florida’s First District
Court of Appeal (“First DCA”). (Id. at 224; Docs. 9-3, 9-4, 9-5). The First DCA

per curiam affirmed the convictions without a written opinion on September
20, 2017, see Galloway v. State, 234 So. 3d 666 (table) (Fla. 1st DCA 2017), and
issued the mandate on October 11, 2017. (Doc. 9-6).
On December 4, 2017,4 Galloway filed a pro se motion to correct illegal

sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which the
trial court dismissed on September 24, 2020. (Doc. 9-7; Doc. 9-8 at 2–4).
Meanwhile, on March 30, 2018, Galloway had filed a pro se petition for writ of
habeas corpus alleging ineffective assistance of appellate counsel, which the

First DCA per curiam “denied on the merits” without a written opinion on May
11, 2018, see Galloway v. State, 244 So. 3d 1198 (Fla. 1st DCA 2018), and
denied rehearing on June 18, 2018.5 (Doc. 9-9 at 2–12; Docs. 9-10, 9-11, 9-12).

4 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
5 According to the docket sheet in case number 1D18-1403, Galloway filed a
notice to invoke the discretionary jurisdiction of the Florida Supreme Court on July
20, 2018, which was dismissed on July 25, 2018.
3
On June 25, 2018, Galloway filed a pro se motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850, raising ten grounds for

relief. (Doc. 9-13). Subsequently, the Sichta Firm entered a notice of
appearance and moved to stay Galloway’s Rule 3.850 proceedings, which the
trial court granted on December 5, 2018. (See Docs. 396, 398 in No. 2015-CF-
7252). Then, the trial court struck the pending Rule 3.850 motions and granted

leave to file a single motion. (See Doc. 400 in No. 2015-CF-7252). On March 18,
2019, Galloway filed his counseled amended Rule 3.850 motion, raising five
grounds for relief. (Doc. 9-14). After holding an evidentiary hearing on May 28,
2021,6 the trial court denied the amended Rule 3.850 motion on September 1,

2021. (Docs. 9-15, 9-16). The First DCA per curiam affirmed the denial without
a written opinion on October 13, 2022, see Galloway v. State, 348 So. 3d 494
(table) (Fla. 1st DCA 2022), and issued the mandate on October 31, 2022. (Docs.
9-17, 9-18, 9-19, 9-20). On March 26, 2023, Galloway timely filed his Petition

in this Court.7 (Doc. 1).

6 The State’s response to the amended Rule 3.850 motion and the parties’ post-
hearing briefs are not part of the record in this Court. (See Docs. 411, 583, 584, 585
in No. 2015-CF-7252).
7 Respondent concedes, and this Court finds based on a review of the state court
dockets, that this action is timely. (Doc. 9 at 5).
4
II. LEGAL STANDARD
A. AEDPA

Pursuant to the Antiterrorism Effective Death Penalty Act (“AEDPA”),
a federal court may not grant federal habeas relief with respect to a claim
adjudicated on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). The phrase “clearly established Federal law” encompasses
only the holdings of the United States Supreme Court “as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state
court decisions; the ‘contrary to’ and ‘unreasonable application’ clauses
articulate independent considerations a federal court must consider.” Maharaj
v. Sec’y for Dep’t of Corrs., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning
of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker
v. Head:
Under the “contrary to” clause, a federal court may grant the writ
if the state court arrives at a conclusion opposite to that reached
by [the United States Supreme Court] on a question of law or if the
state court decides a case differently than [the United States
5
Supreme 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 [the United States Supreme
Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.

244 F.3d 831, 835 (11th Cir. 2001) (quoting Williams, 529 U.S. at 412–13).
Even if the federal court concludes that the state court applied federal law
incorrectly, habeas relief is appropriate only if that application was “objectively
unreasonable.”8 Id. (quotation omitted).
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas
corpus if the state court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). However, the state court’s “determination
of a factual issue . . . shall be presumed correct,” and the habeas petitioner
“shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Parker, 244 F.3d at 835–
36.

8 In considering the “unreasonable application inquiry,” the Court must
determine “whether the state court’s application of clearly established federal law
was objectively unreasonable.” Williams, 529 U.S. at 409. Whether a state court’s
decision was an unreasonable application of law must be assessed in light of the
record before the state court. Holland v. Jackson, 542 U.S. 649, 652 (2004); see also
Bell v. Cone, 535 U.S. 685, 697 n.4 (2002) (declining to consider evidence not
presented to the state court in determining whether the state court’s decision was
contrary to federal law).
6
B. Exhaustion and Procedural Default
Before bringing a § 2254 habeas action in federal court, a state prisoner

must exhaust all state court remedies that are available for challenging his
conviction. See 28 U.S.C. § 2254(b)(1)(A). To do so, he must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust their claims, “state
prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process,” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999),

thereby alerting the appropriate state court to “the federal nature of the
claim[s],” Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also Pope v. Rich, 358
F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the state
collateral review process as well as the direct appeal process”).

A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default, which raises a potential bar to federal habeas
review. Under the doctrine of procedural default:
[A] federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear because
the prisoner failed to abide by a state procedural rule. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 747–748 (1991); Wainwright
v. Sykes, 433 U.S. 72, 84–85 (1977). A state court’s invocation of a
procedural rule to deny a prisoner’s claims precludes federal
7
review of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support the
judgment and the rule is firmly established and consistently
followed. See, e.g., Walker v. Martin, 562 U.S. 307, 316 (2011);
Beard v. Kindler, 558 U.S. 53, 60–61 (2009). The doctrine barring
procedurally defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice from a
violation of federal law. See Coleman, 501 U.S. at 750.

Martinez v. Ryan, 566 U.S. 1, 9–10 (2012) (internal citations modified).
“To show cause, the petitioner must demonstrate ‘some objective factor
external to the defense’ that impeded his effort to raise the claim properly in
state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). Once cause is established, “the
petitioner also must show actual prejudice from the alleged constitutional
violation.” Id. (citing Sykes, 433 U.S. at 84). “[I]n order to show prejudice, a
petitioner must demonstrate that ‘the errors at trial actually and substantially
disadvantaged his defense so that he was denied fundamental fairness.’” Id.
(quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992)).
In the absence of a showing of cause and prejudice, a petitioner may still
receive consideration on the merits of a procedurally defaulted claim if he can
show that a fundamental miscarriage of justice would occur:
“[I]n an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually innocent,
a federal habeas court may grant the writ even in the absence of a
showing of cause for the procedural default.” Carrier, 477 U.S. at
8
496. “This exception is exceedingly narrow in scope,” however, and
requires proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard,
a petitioner must ‘show that it is more likely than not that no reasonable juror
would have convicted him’ of the underlying offense.” Johnson, 256 F.3d at
1171 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.
C. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court of
the United States established a two-part test for determining whether a

convicted person is entitled to relief on the ground that his counsel rendered
ineffective assistance: (1) whether counsel’s performance was deficient and
“fell below an objective standard of reasonableness”; and (2) whether the
deficient performance prejudiced the defense. Id. at 687–88. A court must

adhere to a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Id. at 689–90. “Thus, a court

9
deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of

the time of counsel’s conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497
(11th Cir. 1989).
As observed by the Eleventh Circuit:
[The test for ineffective assistance of counsel] has nothing to do
with what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial. Courts also should
at the start presume effectiveness and should always avoid second
guessing with the benefit of hindsight. Strickland encourages
reviewing courts to allow lawyers broad discretion to represent
their clients by pursuing their own strategy. We are not interested
in grading lawyers’ performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992) (citation omitted).
Under those rules and presumptions, “the cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance of counsel are few
and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
III. DISCUSSION
A. Ground One
In Ground One, Galloway alleges he was deprived of a fair trial when the
trial court allowed the State, over defense counsel’s objection, to ask Detective
Joseph Stronko on redirect about his post-arrest interview with Galloway,
10
which exceeded the scope of cross-examination. (Doc. 1 at 7; see also Doc. 24 at
8–99). Galloway presented this claim as issue one in his direct appeal initial

brief, but only in the context of state law. (Doc. 9-3 at 15–17). Galloway made
no argument or reference to the United States Constitution or any decision by
the United States Supreme Court. (See id.) Because he did not fairly present
the federal nature of his claim, he deprived the state court of a meaningful

opportunity to review the claim. See Baldwin, 541 U.S. at 29. Since future
attempts to exhaust this claim would be futile, the claim is procedurally
defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). Therefore,
Ground One is denied.

B. Ground Two
In Ground Two, Galloway alleges he was deprived of a fair trial when
the trial court denied his motions for judgment of acquittal challenging the
sufficiency of the evidence as to counts one through three of the information.

(Doc. 1 at 9–12; see also Doc. 24 at 10–14). Galloway presented this claim as

9 To the extent Galloway attempts to raise new claims in his Reply as to any of
the alleged grounds, such claims are not properly before the Court. See Rule 2(c),
Rules Governing Section 2254 Cases (“The petition must: (1) specify all the grounds
for relief available to the petitioner . . . .”); Herring v. Sec’y, Dep’t of Corrs., 397 F.3d
1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised
for the first time in a reply brief are not properly before a reviewing court.’”)
(collecting cases); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(finding that a pro se litigant abandoned an issue that was not raised in his initial
brief as the court does “not address arguments raised for the first time in a pro se
litigant’s reply brief”).
11
issue two in his direct appeal initial brief, but only in the context of state law.
(Doc. 9-3 at 18–21). Galloway made no argument or reference to the United

States Constitution or any decision by the United States Supreme Court. (See
id.) Because he did not fairly present the federal nature of his claim, he
deprived the state court of a meaningful opportunity to review it. See Baldwin,
541 U.S. at 29. Since future attempts to exhaust this claim would be futile, the

claim is procedurally defaulted. Bailey, 172 F.3d at 1303. Therefore, Ground
Two is denied.
C. Ground Three
In Ground Three, Galloway alleges he was deprived of a fair trial when

the trial court allowed the State to introduce his booking photo over defense
counsel’s objection. (Doc. 1 at 14; see also Doc. 24 at 15–16). Galloway presented
this claim as issue three in his direct appeal initial brief, but only in the context
of state law. (Doc. 9-3 at 22–23). Galloway made no argument or reference to

the United States Constitution or any decision by the United States Supreme
Court. (See id.) Because he did not fairly present the federal nature of his
claim, he deprived the state court of a meaningful opportunity to review it. See
Baldwin, 541 U.S. at 29. Since future attempts to exhaust this claim would be

futile, the claim is procedurally defaulted. Bailey, 172 F.3d at 1303. Therefore,
Ground Three is denied.

12
D. Ground Four
In Ground Four, Galloway alleges his trial counsel was ineffective for

failing to file a motion to suppress the State witnesses’ out-of-court
identifications of Galloway, where the suggestive police procedure led to “an
irreparable likelihood of misidentification” and prejudiced the outcome of the
proceedings. (Doc. 1 at 16–19; see also Doc. 24 at 17–20).

Galloway raised this claim in ground one of his amended Rule 3.850
motion. (Doc. 9-14 at 9–16; see also Doc. 9-17 at 25–37). After holding an
evidentiary hearing, the trial court denied the claim as follows:
In Ground One of his motion, [Galloway] argues Defense Counsel
should have filed a motion to suppress allegedly improper out-of-
court identifications of [Galloway]. [Galloway] maintains the photo
lineup procedure that officers used in this case was unduly
suggestive and that if only Defense Counsel had filed a motion to
suppress, the trial court would have excluded the victims’ out-of-
court identifications of [Galloway] from evidence.

The First District Court of Appeal has summarized the law
governing the admissibility of out-of-court identifications:

Use of an identification obtained through
unnecessarily suggestive procedures violates a
defendant’s due process rights. Perry v. New
Hampshire, 565 U.S. 228, 232 (2012). But a suggestive
pre-trial identification is admissible if “despite its
suggestive aspects, the out-of-court identification
possesses certain features of reliability.” Grant v.
State, 390 So. 2d 341, 343 (Fla. 1980) (citing Manson
v. Brathwaite, 432 U.S. 98, 110 (1977)). The
admissibility of an out-of-court identification is
controlled by a two-part test that requires the court to
13
determine “(1) whether the police used an
unnecessarily suggestive procedure to obtain the out-
of-court identification; and (2) if so, considering all the
circumstances, whether the suggestive procedure gave
rise to a substantial likelihood of irreparable
misidentification.” Id.

Lynch v. State, 260 So. 3d 1166, 1170 (Fla. 1st DCA 2018).

Here, [Galloway] notes that the victims reported their assailant
had a neck tattoo. [Galloway] alleges that of the six men pictured
in the photospread that officers presented to the victims, only one
had a neck tattoo ([Galloway]). As such, [Galloway] posits that the
photo lineup was improperly suggestive, and that Defense Counsel
should have moved to exclude the resulting out-of-court
identifications from evidence because of the substantial likelihood
of irreparable misidentification.

Defense Counsel made these precise misidentification arguments
to the jury, as she maintained that the victims’ out-of-court
identifications carried scant probative value. As part of her
argument, Defense Counsel emphasized that [Galloway’s] picture
was the only one in the lineup that clearly displayed a neck tattoo.
She also noted that Heather [McAllister] and Ismael Aviles
initially selected the photo of a person who could not have been the
shooter. Thus, the jury knew all about the shortcomings of the
witness’ [sic] out-of-court identifications at the time that it found
[Galloway] guilty as charged.

Moreover, at the evidentiary hearing, Defense Counsel testified
that she did not file a pre-trial motion to suppress because she did
not expect to prevail on such a motion. She did not think the
motion was an “obvious slam dunk” legally, in part because
[Galloway] was not technically the only member of the photo
lineup with a neck tattoo (Defense Counsel noted that one other
member of the lineup also had a neck tattoo, although it was not
clearly visible). Instead, Defense Counsel thought the better
strategy was to present her arguments about the unreliability of
the identifications to the jury. She explained that while her
arguments about the identifications may not have carried the day
14
legally on a motion to suppress, she thought she could persuade
the jury to effectively discredit the identifications. The Florida
Supreme Court has held that such “strategic decisions do not
constitute ineffective assistance of counsel if alternative courses
have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.” Occhicone v.
State, 768 So. 2d 1037, 1048 (Fla. 2000). This is in keeping with
. . . the Strickland standard, which provides that “[j]udicial
scrutiny of counsel’s performance must be highly deferential.”
Strickland, 466 U.S. at 589.

Defense Counsel provided a reasonable strategic basis for her
decision not to file a pre-trial motion to suppress the out-of-court
identifications. Therefore, [Galloway’s] claim fails to demonstrate
deficiency under Strickland. As for Strickland’s prejudice prong,
[Galloway] did not demonstrate that there is a reasonable
probability the Court would have granted the motion to suppress
had Defense Counsel filed it. See Whitted v. State, 992 So. 2d 352,
353 (Fla. 4th DCA 2008) (“Counsel was not ineffective for failing to
file a motion sure to be denied.”). Furthermore, as the Court noted
above, Defense Counsel’s efforts throughout the trial and during
closing argument ensured the jury knew all about the weaknesses
of the out-of-court identifications in this case.

(Doc. 9-16 at 8–10 (record citations omitted)). The First DCA per curiam
affirmed the denial of the claim without a written opinion. (Doc. 9-20).
Because the First DCA affirmed without a written opinion, the Court
presumes the affirmance was based on the trial court’s findings. See Wilson v.
Sellers, 584 U.S. 122, 125–26 (2018) (holding that where the relevant state
court decision on the merits does not provide any rationale for its decision, “the
federal court should ‘look through’ the unexplained decision to the last related
state-court decision that does provide a relevant rationale” and “should then
15
presume that the unexplained decision adopted the same reasoning”). As the
trial court decided the claim on the merits, the Court addresses it in accordance

with the deferential standard for federal court review of state court
adjudications. Upon thorough review of the record and the applicable law, the
Court concludes that the state court’s adjudication of the claim was not
contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an
unreasonable determination of the facts in light of the evidence presented.
(See, e.g., Doc. 9-15 at 14–19).
Notably, the trial court determined that counsel’s decision to attack the

witnesses’ out-of-court identifications during the trial, rather than in a pre-
trial motion to suppress, was strategic. Indeed, trial counsel testified at the
evidentiary hearing that she could have filed a pre-trial motion to suppress the
witnesses’ photo identifications based on the arguments she made at the trial,

but “[i]t wasn’t a good move to do that.” (Id. at 17). Counsel explained:
[T]here are certain scenarios where it’s better to put information
in front of a jury, in front of six folks who are not involved in the
criminal justice system, who have . . . no knowledge of how messed
up some things are, and make the argument [at the] trial instead
of filing it pretrial when the State has an opportunity to try to
clean up any of those mistakes in a hearing.

And, frankly, I wasn’t certain that we were going to be meritorious
in it, so it wasn’t worth putting those arguments and putting all of
that information on blast prior. It was a much better trial strategy
16
to attack it [at the] trial in front of people who aren’t familiar with
photo spreads and how the criminal justice system works and stuff
like that.

So it was very much a trial strategy to argue that [at the] trial . . .

There were two people [who] had a tattoo in the photo spreads, so
it wasn’t an obvious slam dunk from the photo spread and it was
better to put it in front of people who were not familiar with the
criminal justice system.

(Id. at 17–19; see also id. at 14–15 (“[F]rankly, there are two [persons in the
photo lineup who] have a neck tattoo. But the tattoos don’t show up very well
on the photo spread at all . . . .”)).
As the Eleventh Circuit instructs:
Inquiries into strategic or tactical decisions challenged as
ineffective assistance of counsel involve both a factual and a legal
component. The question of whether an attorney’s actions were
actually the product of a tactical or strategic decision is an issue of
fact, and a state court’s decision concerning that issue is
presumptively correct. By contrast, the question of whether the
strategic or tactical decision is reasonable enough to fall within the
wide range of professional competence is an issue of law not one of
fact, so we decide it de novo.

Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998). Here, Galloway
has not provided clear and convincing evidence to overcome the trial court’s
factual determination that counsel’s decision was strategic, and, therefore, the
Court presumes that determination to be correct. See 28 U.S.C. § 2254(e)(1)
(stating that “a determination of a factual issue made by a State court shall be
presumed to be correct” and the petitioner has “the burden of rebutting the
17
presumption of correctness by clear and convincing evidence”). Moreover,
Galloway has failed to demonstrate that no reasonable attorney would have

adopted the same strategy as his trial counsel. See White, 972 F.2d at 1220
(“The [Strickland] test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would have done. We
ask only whether some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted at trial.”). “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” Schoenwetter
v. State, 46 So. 3d 535, 555 (Fla. 2010) (citing Wiggins v. Smith, 539 U.S. 510,
521 (2003)). Because Galloway has not shown that his trial counsel’s decision
was so “patently unreasonable that no competent attorney would have chosen

it,” counsel’s strategic decision is not subject to collateral attack. Adams v.
Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). Therefore, Ground Four is
denied.10

10 Galloway’s claim is based in part on the testimony of Dr. Brian S. Cahill,
who opined at the evidentiary hearing that the photo lineup in Galloway’s case was
biased. (Doc. 9-15 at 73). However, Dr. Cahill acknowledged on cross-examination
that all six photographs in the lineup included African-American males with
relatively similar, short haircuts; with similar facial characteristics, such as nose and

18
E. Ground Five
In Ground Five, Galloway alleges his trial counsel was ineffective for

failing to consult and present an eyewitness identification expert either at a
suppression hearing or at the trial to support the defense theory of mistaken
identity, which prejudiced the outcome of the proceedings. (Doc. 1 at 21–22; see
also Doc. 24 at 20–32).

Galloway raised this claim in ground four of his amended Rule 3.850
motion. (Doc. 9-14 at 29–35; see also Doc. 9-17 at 38–43). The trial court
addressed the claim as follows:
In Ground Four, [Galloway] argues Defense Counsel should have
presented an eyewitness identification expert. [Galloway] avers
that such an expert would have helped the jury understand the
potential shortcomings of eyewitness identification.

The Court notes that failing to retain an expert witness does not
ipso facto render a lawyer deficient. See Harrington v. Richter, 562
U.S. 86, 111 (2011) (“Strickland does not enact Newton’s third law
for the presentation of evidence, requiring for every prosecution
expert an equal and opposite expert from the defense.”).
Furthermore, “a defendant does not establish that his attorney
performed deficiently in failing to retain a defense expert when
defense counsel ‘rigorously challenged the state’s expert.’” Johnson
v. State, 247 So. 3d 689, 696 (Fla. 1st DCA 2018) (quoting Crain v.
State, 78 So. 3d 1025, 1040 (Fla. 2011)).

Relevant to the specific type of expert that [Galloway] references
in Ground Four, the Florida Supreme Court has stated:

lip shapes and styles; with similar facial hair; and with “a shadow cast on the necks
in most of the pictures, making the neck almost difficult to see.” (Id. at 80–81).
19
Expert testimony should be excluded when the facts
testified to are of such nature as not to require any
special knowledge or experience in order for the jury
to form its conclusions. We hold that a jury is fully
capable of assessing a witness’ ability to perceive and
remember, given the assistance of cross-examination
and cautionary instructions, without the aid of expert
testimony. We find no abuse of discretion in the trial
court’s refusal to allow this witness to testify about the
reliability of eyewitness identification.

McMullen v. State, 714 So. 2d 368, 371 (Fla. 1998) (internal
quotation omitted).

Thus, while expert testimony on the reliability of eyewitness
identification is not per se inadmissible, it need not be admitted to
establish general eyewitness identification issues and the common
factors that could lead to a false identification. See Pietri v. State,
935 So. 2d 85, 85–86 (Fla. 5th DCA 2006). Instead, the trial court
should only admit such testimony when a particular identification
will require “special knowledge” for a jury to evaluate. See Jones v.
State, 197 So. 3d 1085, 1091 (Fla. 2d DCA 2015); see also Mills v.
Redwing Carriers, Inc., 127 So. 2d 453, 456 (Fla. 2d DCA 1961)
(“Consequently the opinion of an expert should be excluded where
the facts testified to are of a kind that do not require any special
knowledge or experience in order to form a conclusion, or are of
such character that they may be presumed to be within the
common experience of all men moving in ordinary walks of life.”).
When making that “special knowledge” determination, the trial
court should consider certain case-specific factors, including time
lapse, witness stress, potential issues with cross-racial
identification, unconscious transference, and the presence of
weapons. Jones, 197 So. 3d at 1091.[11]

11 In Jones, the court held that the trial court abused its discretion to exclude
the expert’s testimony “because of the presence of numerous factors impacting the
issue of identification,” including: (1) the two-year time lapse between the date of the
offense and the date of the identification; (2) the high stress experienced by the
witness; (3) the different races of the witness and the suspect; (4) the possibility of
unconscious transference; and (5) the fact that the suspect had a weapon during the

20
At the evidentiary hearing, Defense Counsel testified that she did
not think the identification issues in this case were beyond the ken
of the jury. Based on the record and the law, the Court agrees.
Defense Counsel was not ineffective for failing to present an expert
witness who could not have offered admissible testimony. And
even if the Court had permitted the hypothetical expert witness to
testify, there is no reasonable probability that the testimony
[Galloway] describes would have changed the result of his trial.

Finally, during his colloquy with the Court at trial, [Galloway]
swore there were no additional witnesses he wished to call or
evidence he wished to present. Accepting [Galloway’s] allegations
in Ground Four [would] contradict his sworn assertions to the
Court. [Galloway] may not obtain postconviction relief in that
manner. See Kelley v. State, 109 So. 3d 811, 812–13 (Fla. 1st DCA
2013) (“A rule 3.850 motion cannot be used to go behind
representations the defendant made to the trial court, and the
court may summarily deny postconviction claims that are refuted
by such representations.”); Henry v. State, 920 So. 2d 1245, 1246
(Fla. 5th DCA 2006) (“Defendants are bound by the statements
made by them under oath . . . .”). For these reasons, the Court
denies Ground Four of [Galloway’s] motion.

(Doc. 9-16 at 11–13 (record citations omitted)). The First DCA per curiam
affirmed the denial of the claim without a written opinion. (Doc. 9-20).
The Court presumes the affirmance was based on the trial court’s
findings and addresses the claim in accordance with the deferential standard
for federal court review of state court adjudications. See Wilson, 584 U.S. at

entire incident. 197 So. 3d at 1091–93. However, the court in Jones declined to decide
“whether the presence of a lesser number of factors [would] compel[] the same
outcome,” and ultimately concluded that the trial court’s error in excluding the
expert’s testimony was harmless considering other evidence of defendant’s guilt. Id.
at 1093–94.
21
125–26. At the evidentiary hearing, trial counsel testified that she did not
consult with or present testimony from an eyewitness identification expert

because she believed the factors affecting eyewitness identification reliability,
such as those listed in the jury instructions (see Doc. 9-1 at 136; Doc. 9-15 at
15), were “all fairly common sense” and within the average juror’s
understanding.12 (Doc. 9-15 at 20). The trial court agreed that expert testimony

on the reliability of eyewitness identification was unnecessary and would have
been inadmissible in Galloway’s case. See McMullen, 714 So. 2d at 372
(reaffirming the court’s prior holding that “the admissibility of expert
testimony regarding the reliability of eyewitness testimony is left to the sound

discretion of the trial judge” and that “the trial judge, in considering the
admissibility of this type of evidence, must evaluate whether the evidence will
assist the trier of fact in understanding the evidence or in determining a fact

12 Galloway’s expert at the evidentiary hearing, Dr. Cahill, conceded that trial
counsel had presented testimony and argument to the jury about some of the factors
affecting eyewitness identification. (See Doc. 9-2 at 259–60, 275–80; Doc. 9-15 at 16,
18–19, 56–57). In any event, from the five factors listed in Jones, 197 So. 3d at 1091,
it appears that only the second and the third factors could have impacted the
witnesses’ identification in this case, because the fourth factor seems to be
inapplicable, the time lapse between the date of the offense and the date of the
identification was only five days, and the perpetrator’s weapon was hidden from the
witnesses’ view until he used it near the end of the incident. (See Doc. 9-2 at 189–97,
202–05, 215, 229–36, 240–41, 248–53, 257–60, 265–67, 269, 271–75, 279–80, 300–04,
309, 360–66).
22
in issue”13); see also United States v. Holloway, 971 F.2d 675, 679 (11th Cir.
1992) (finding that in accordance with Eleventh Circuit precedent, the trial

court did not abuse its discretion in refusing to admit the testimony of an
expert in eyewitness identification). Upon thorough review of the record and
the applicable law, the Court concludes that the trial court’s adjudication of
the claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented. Therefore, Ground Five is denied.
F. Ground Six

In Ground Six, Galloway alleges his trial counsel was ineffective for
failing to object to the testimony of Thomas Howell and Emily Varan, which
bolstered the reliability of the inculpatory forensic evidence, prejudicing the
outcome of the proceedings. (Doc. 1 at 25–29; see also Doc. 24 at 32–37).

Specifically, Galloway argues that counsel should have objected to Mr. Howell’s
testimony below:
[Cross-examination:]

13 In so holding, the court rejected “the modern trend” that defendant “urge[d]
[the court] to follow” despite “the overwhelming view to the contrary.” McMullen, 714
So. 2d at 372.
23
Q And you said that you use a magnifying glass and you go
back and forth. So[,] the match is your personal judgment as to
whether things line up, right?

A Well, I try to get both the ink print and latent print side by
side. That way[,] [I] put the magnifier over the top of both[,] and
then look for point one and go to point two. I look at it myself. And
then[,] I also give it to another examiner to be verified, and what
that means, they agree with my results.

Q Okay. But it’s your call, right, if it’s a match? It’s not
something that’s done by someone else or by [a] computer
program? It’s something that you decide, right?

A The first identification is done by me, yes.

***

[Redirect:]

Q As you stated, sir, the first identification is done by you,
correct?

A Yes, sir, it is.

Q And then[,] in order for your opinion to be published, it has
to be verified by a second person?

A That is correct.

Q So it’s not just your personal judgment, it’s also another
person double-checking you as well, correct?

A Yes, . . . sir.
. . . .

Q Final question. As you stated before, all your prints here
were verified, otherwise you would not have published your
opinion, correct?

24
A That is correct.

(Doc. 9-2 at 397–400).14
In addition, Galloway argues that trial counsel should have objected to
Ms. Varan’s testimony below:
Q Do DNA analysts in the Jacksonville lab undergo proficiency
testing?

A Yes.

Q What is proficiency testing?

A Proficiency testing is another requirement that was decided
in the 90s in order to do DNA testing and to make sure everyone
was competent. A DNA analyst was required to undergo
proficiency testing twice a year. So[,] basically every six months[,]
I am given an independent test from a company that provides them
and it’s casework samples I receive in the lab on a normal basis.
It’s a set of unknowns and a set of known standards[,] and I
perform DNA testing on these items, get my results, write up a
report[,] and submit it for technical and administrative review[,]
and then it goes to the private company that lets me know that I
passed.

Q And you stated you yourself have done those tests, correct?

A Yes.

14 Galloway also points out that during closing arguments, the State
improperly relied on Mr. Howell’s verification testimony, as follows:
[Mr. Howell] compares over ten points on a fingerprint to make sure
they’re the exact same distance away from each other, the same length,
the same spiral. And if even one of those points is off, not him. [Mr.
Howell] won’t make that determination. The determinations are also
verified by another person and he won’t even release those results unless
they’re verified.
(Doc. 9-2 at 503–04).
25
Q And approximately how many DNA tests have you
performed in your 20 plus years with the Florida Department of
Law Enforcement?

A It would be in the thousands. I don’t have an exact number,
but it would be safe to say it’s in the thousands.

Q And are your examinations and results reviewed in every
case?

A Every case. My data that I compile is reviewed by one
analyst to make sure they agree with my information. Once I write
up a report and submit that[,] it’s reviewed by another qualified
analyst in the section[—]technically reviewed that all my
documentation is in the file[,] [and it is] correct and checked[—]and
then it goes through another set of eyes, the administrative review,
which is a supervisor and we have two in our sections [sic], because
our section is pretty large. One of them has to review [it] to release
it for it to go out of the lab.

(Id. at 411–12).
Galloway raised this claim in ground two of his amended Rule 3.850
motion. (Doc. 9-14 at 17–22; see also Doc. 9-17 at 44–51). At the evidentiary
hearing, Galloway’s trial counsel testified in pertinent part as follows:
Q So did you want [Mr. Howell] to testify that another analyst
had confirmed his result?

A No, ma’am.

Q Did you object to that answer?

A No. . . . [W]hen you object to a witness that you’re currently
crossing, it looks like you don’t have control of that witness, and I
did not want to do that. Mr. Howell’s credentials were very poor,
and I wanted to make it look like I was in complete control of Mr.
Howell and his pitiful credentials. . . .
26
Q Did . . . the confirmation analyst testify in Mr. Galloway’s
trial?

A No, ma’am.

Q Are you familiar with the line of Florida cases indicating
that it’s improper for an expert to testify about what another non-
testifying expert -- or that another non-testifying expert verified
the result?

A I am now.

Q Were you in 2015?

A Not that I remember.

Q And does this pose a confrontation clause issue?

A Based on how that played out, I would argue that that’s
actually not hearsay. . . .

***

Q . . . Did . . . the defense object to [Ms. Varan’s] testimony?

A No, ma’am, I did not. And Mr. Gropper was crossing this
witness.

Q Did the witness’ [sic] testimony that their findings had been
confirmed by another analyst help your case?

A . . . With the information that we had regarding Mr.
Galloway’s case, we have used the fact that the DNA analyst was
credentialed and that the lab was credentialed to help attack the
fingerprint and the core credentials of how the fingerprint process
works. . . . And we really wanted to highlight that it’s just some
guy with a little bit of training from a long time ago looking at it
with a magnifying glass. So it wouldn’t have been something we
27
would have objected to because we were trying to use that to help
discredit the fingerprint.

Q . . . Can you think of any strategic reason for not objecting to
the FDLE analyst’s testimony, that her work was reviewed by at
least one other qualified analyst?

A Yes, because we were trying to build up her credentials to
attack Mr. Howell’s lack of credentials. We were using one against
the other. Which [sic] I know we’re not going on the expert for the
fingerprint, which was the same reason why we wouldn’t have
gotten a fingerprint expert. We did not want to lend any more
credibility to the fingerprint.

(Doc. 9-15 at 25–29).
With the benefit of the evidentiary hearing, the trial court addressed the
claim as follows:
In Ground Two, [Galloway] claims Defense Counsel should have
objected when the State’s fingerprint and DNA experts bolstered
their own testimony. [Galloway] takes issue with the portions of
testimony in which these experts noted that, for their opinions to
be published, a second person within their organization had to
verify their conclusions.

At the evidentiary hearing, Defense Counsel explained that she
did not object to the portions of the testimony at issue because she
was focused on attacking the State’s fingerprint and DNA experts
in other ways. Specifically, she attacked the fingerprint expert’s
credentials, process, and findings[,] and she objected to his
designation as an expert witness. Likewise, her co-counsel
attacked the DNA expert’s process and findings. Defense Counsel
believed she succeeded in illuminating the weaknesses in the
experts’ testimony. Defense Counsel’s hearing testimony
demonstrated a reasonable strategic basis for not objecting in the
manner that [Galloway] now advocates.

28
More importantly, even if Defense Counsel should have objected to
the testimony at issue, the Court finds there is no reasonable
probability that the outcome of [Galloway’s] trial turned on that
testimony. Indeed, the truly inculpatory portions of the experts’
testimony were their ultimate conclusions about the presence of
[Galloway’s] DNA on the crime scene cigarette and his fingerprints
on [Pass’s] car (not their comments about a laboratory peer review
process). Because there is no reasonable probability that Defense
Counsel’s failure to object changed the result of [Galloway’s] trial,
[Galloway] cannot demonstrate the prejudice that Strickland
demands. As such, the Court denies Ground Two of [Galloway’s]
motion.

(Doc. 9-16 at 10–11 (record citations omitted)). The First DCA per curiam
affirmed the denial of the claim without a written opinion. (Doc. 9-20).
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record and the applicable law, the Court concludes that the trial
court’s adjudication of the claim was not contrary to or an unreasonable
application of Strickland, and was not based on an unreasonable
determination of the facts in light of the evidence presented. (See, e.g., Doc. 9-
2 at 381–84, 391–98, 400–01, 425–36, 517–20). As the trial court found, there
was no reasonable probability that but for counsel’s errors, the result of the
proceeding would have been different. See Paul v. State, 407 So. 3d 468, 482
(Fla. 4th DCA 2025) (finding that “[t]he DNA expert’s bolstering of her
testimony by mentioning a peer review was a minor blip in the trial” where
defense counsel did not contest that defendant’s DNA was found on the firearm
29
and instead “argued its insignificance by suggesting that it did not prove
[defendant] was the shooter,” and where three eyewitnesses identified

defendant as the shooter, which distinguished the case from Miller v. State,
127 So. 3d 580, 586 (Fla. 4th DCA 2012), in which “the handwriting experts’
testimony was essentially the only evidence tying the defendant to the scene
of the crime”). Therefore, Ground Six is denied.

G. Ground Seven
In Ground Seven, Galloway alleges that the cumulative effect of trial
counsel’s errors deprived him of a fair trial. (Doc. 1 at 32; see also Doc. 24 at
37–39). Galloway raised this claim as ground five in his amended Rule 3.850

motion. (Doc. 9-14 at 35–36; see also Doc. 9-17 at 51–52). The trial court denied
the claim as follows:
In Ground Five, [Galloway] claims cumulative error. “Claims of
cumulative error do not warrant relief where each individual claim
of error is either ‘meritless, procedurally barred, or [does] not meet
the Strickland standard for ineffective assistance of counsel.’”
Schoenwetter, 46 So. 3d at 562 (quoting Israel v. State, 985 So. 2d
510, 520 (Fla. 2008)). Because [Galloway’s] previous claims do not
meet the Strickland standard for ineffective assistance of counsel,
[Galloway’s] claim of cumulative error does not warrant relief.
Accordingly, the Court denies Ground Five of [Galloway’s] motion.

(Doc. 9-16 at 13–14 (internal citations modified)). The First DCA per curiam
affirmed the denial of the claim without a written opinion. (Doc. 9-20).
30
The Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court finds that the state
court’s decision to deny Galloway’s claim was neither contrary to nor an
unreasonable application of federal law, and it was not based on an
unreasonable determination of the facts given the evidence presented to the

state court. See 28 U.S.C. § 2254(d).
Nevertheless, even if the state court’s adjudication were not entitled to
deference, this claim still must be denied for the reasons that follow. As the
United States Supreme Court has not yet held that distinct constitutional

claims can be cumulated to grant habeas relief, the judgment of the state court
cannot contravene § 2254(d). See, e.g. Wright v. Van Patten, 552 U.S. 120, 126
(2008) (“Because our cases give no clear answer to the question presented . . . ,
it cannot be said that the state court unreasonabl[y] appli[ed] clearly

established Federal law.” (internal quotation marks and citations omitted)).
However, even if the claim of cumulative error were cognizable for federal
habeas review, it must still be denied because each individual claim that
Galloway raises is “either meritless, procedurally barred, or [does] not meet

the Strickland standard for ineffective assistance of counsel.” Schoenwetter, 46
So. 3d at 562; see also Morris v. Sec’y, Dep’t of Corrs., 677 F.3d 1117, 1132 n.3

31
(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. For our purposes, it is enough to say that Morris’s cumulative
error claim clearly fails in light of the absence of any individual errors to

accumulate.”). Therefore, Ground Seven is denied.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. The Petition (Doc. 1) is DENIED and this action is DISMISSED
WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment dismissing this action
with prejudice, terminate any pending motions, and close the file.
3. If Petitioner appeals this Order, the Court denies a certificate of
appealability.15 Because the Court has determined that a certificate of

appealability is not warranted, the Clerk of the Court shall terminate from the

15 The court should issue a certificate of appealability only if a petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make this substantial showing, a petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong,” 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)). Upon due
consideration of the record as a whole, this Court denies a certificate of appealability.
32
pending motions report any motion to proceed on appeal as a pauper that may
be filed in this case. Such termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 9th day of
February, 2026.

JORDAN E. PRATT
UNITED STATES DISTRICT JUDGE

Jax-11 1/5
C:
Ricardo Depadra Galloway, #125823
Counsel of Record

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11315406. Public record. Not legal advice.