The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KENNETH WAYNE STODDARD,
Petitioner,
v. CASE NO. 8:23-cv-358-JLB-NHA
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
________________________________/
ORDER
Before the Court is the 28 U.S.C. § 2254 petition for habeas corpus relief
filed, through counsel, by Kenneth Wayne Stoddard (Petitioner). (Doc. 1).
Petitioner is a prisoner of the Florida Department of Corrections serving an
aggregate sentence of sixty-five years in prison for aggravated manslaughter of a
child under the age of eighteen by culpable negligence, aggravated child abuse, and
tampering with evidence. (Id.). At the Court’s direction (Doc. 3), Respondent filed
a response (Doc. 6).
Upon careful consideration of the pleadings, the state court record, and the
entire file, the Court concludes that Petitioner is not entitled to federal habeas
corpus relief.1
I. Background and Procedural History
In July of 2012, Petitioner’s eleven-year-old daughter, M.S., moved from her
mother’s home to Petitioner’s and his wife, Misty Stoddard’s (Misty), home. (Doc.
6-2 at 1090, 1104).2 M.S. had autism that caused her to have behavioral issues like
tantrums and hitting herself. (Id. at 1425, 1455–56, 1576, 1657, 1660). M.S.’s
behavior caused stress in the home, and both Petitioner and Misty frequently
screamed at her. (Id. at 1428–30). Eventually, both Petitioner and Misty would tie
M.S. to a wooden board when it was time for her to sleep. (Id. at 1435–37, 1458–
59). While M.S. was tied to the board, both Petitioner and Misty would put duct
tape over her face and mouth. (Id. at 1438–39). They also put a helmet on M.S.’s
head and tied it down to the board. (Id. at 1440–41). At times, Misty would put a
sock in M.S.’s mouth, then cover her mouth with duct tape. (Id. at 1441).
On the night of December 12, 2012, M.S. suffocated and was rushed to the
hospital, where she remained brain-dead until she passed away on December 17,
2012. (Id. at 1687, 1730–32, 1888). While M.S. was still in the hospital, Petitioner
went home and, with his stepson, Jeremy Eastman’s assistance, disposed of the
wooden board in the woods near their home. (Id. at 1448–49).
1 Because the Court was able to resolve the petition on the record, an evidentiary
hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
2 For purposes of reference to pleadings and exhibits, the Court will cite the
document page numbers assigned by the Court’s electronic docketing system.
A jury convicted Petitioner of aggravated manslaughter of a child under 18 by
culpable negligence, aggravated child abuse, and tampering with evidence. (Id. at
22–23).3 The trial court sentenced Petitioner to 65 years in prison. (Id. at 25–30).
Florida’s Second District Court of Appeal (Second DCA) affirmed the convictions
and sentences without prejudice to Petitioner pursuing his claims of ineffective
assistance of trial counsel in a motion for postconviction relief. (Id. at 165–66).
Thereafter, Petitioner, through counsel, filed a motion, and subsequently, an
amended motion, for postconviction relief under Rule 3.850 of the Florida Rules of
Criminal Procedure (collectively, Rule 3.850 Motion). (Id. at 170–278, 307–27).
The postconviction court denied the Rule 3.850 Motion without an evidentiary
hearing. (Id. at 528–55). The Second DCA affirmed without a written opinion. (Id.
at 563).
Petitioner, through counsel, timely filed the petition for habeas corpus relief
before the Court for its consideration. (Doc. 1).
II. Governing Legal Principles
A. The Antiterrorism Effective Death Penalty Act (AEDPA)
Under the AEDPA, federal habeas relief may not be granted with respect to a
claim adjudicated on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
3 Misty Stoddard was tried separately and convicted of felony murder. See
Stoddard v. State, 185 So. 3d 696, 697 (Fla. 2d DCA 2016).
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). In this context, “clearly established federal law”
consists of the governing legal principles, and not the dicta, set forth in the
decisions of the United States Supreme Court at the time the state court issued its
decision. White v. Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S.
70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision is contrary to clearly established federal law if the state court
either: (1) applied a rule that contradicts the governing law set forth by Supreme
Court case law; or (2) reached a different result from the Supreme Court when
faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155
(11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A decision involves an
unreasonable application of clearly established law if the state court correctly
identifies the governing legal principle, but applies it to the facts of the petitioner’s
case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134
(2005), or “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.” Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000) (quoting Williams,
529 U.S. at 406).
The section 2254(d) standard is both mandatory and difficult to meet. To
demonstrate entitlement to federal habeas relief, the petitioner must show that the
state court’s ruling was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” White, 572 U.S. at 420 (quoting Harrington v. Richter, 562 U.S. 86,
103 (2011)). Moreover, when reviewing a claim under section 2254(d), a federal
court must presume that any “determination of a factual issue made by a State
court” is correct, and the petitioner bears “the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e).
A state court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits, warranting deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Generally, in the case of a silent
affirmance, a federal habeas court will “look through” the unreasoned opinion and
presume that the affirmance rests upon the specific reasons given by the last court
to provide a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991);
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). However, the presumption that the
appellate court relied on the same reasoning as the lower court can be rebutted “by
evidence of, for instance, an alternative ground that was argued [by the state] or
that is clear in the record” showing an alternative likely basis for the silent
affirmance. Sellers, 138 S. Ct. at 1196.
B. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part test
for determining whether a convicted person is entitled to relief on the ground that
his counsel rendered ineffective assistance. 466 U.S. 668, 687–88 (1984). A
petitioner must establish that counsel’s performance was deficient and fell below an
objective standard of reasonableness and that the deficient performance prejudiced
the defense. Id. A showing on only one prong will not support an ineffective
assistance claim. Id. at 687 (“Unless a defendant makes both showings, it cannot
be said that the conviction . . . resulted from a breakdown in the adversary process
that renders the result unreliable.”).
The focus of inquiry under Strickland’s performance prong is “reasonableness
under prevailing professional norms.” Id. at 688. In reviewing counsel’s
performance, a court must adhere to the presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance[.]” Id. at 689 (citation
omitted). A court must “judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct,”
applying a highly deferential level of judicial scrutiny. Roe v. Flores-Ortega, 528
U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). Proving Strickland
prejudice “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687.
III. Discussion
“CLAIM I – BECAUSE PETITIONER WAS NOT TRIED BEFORE AN
IMPARTIAL, UNBIASED JURY, AND THE STATE COURT’S DECISION
OTHERWISE WAS CONTRARY TO CLEARLY-ESTABLISHED
FEDERAL CONSTITUTIONAL LAW AND AN UNREASONABLE
DETERMINATION OF THE FACTS IN LIGHT OF THE RECORD, THIS
COURT SHOULD GRANT THE INSTANT HABEAS CORPUS PETITION”
Petitioner contends that he was denied a fair trial because his jury was not
impartial. Specifically, he contends that he was denied a fair trial by an impartial
jury because Jurors 11 and 12 should have been struck for cause during jury
selection. Petitioner’s claim is procedurally barred because: (1) trial counsel
neglected to move to strike Juror 11 in the first instance, making his claim
procedurally defaulted in Florida state court, and (2) Petitioner failed to include in
his argument on direct appeal to the Second DCA that he did not have an impartial
jury because Juror 12 was not struck for cause.
He first contends that Juror #11’s comment that he “wouldn’t want to see
another Casey Anthony case” shows “that Juror # 11 already formed an opinion
that Stoddard was guilty[,] and he would not want to see another person who was
responsible for the death of their own child be found not guilty.”4 (Doc. 1 at 21).
Petitioner also argues that Juror #11 was not impartial because he “had some
knowledge about the case due to a relationship with a court reporter who had
4 The “Casey Anthony” case was a high-profile case in Florida where the defendant,
Casey Anthony, was accused of being responsible for the death of her young daughter and
was found not guilty.
performed some work on the case, [and] had several strong opinions regarding
treatment of children . . . .” (Id. at 23).
Second, Petitioner also asserts Juror #12 was biased against him and should
have been dismissed for cause. Specifically, he contends that Juror #12 “indicated
that he had prior knowledge of the facts of the case from reading about the co-
defendant, Misty Stoddard’s, trial . . . .” (Id. at 7). Petitioner also contends that the
following discussion between Juror #12 and the trial court reveals that Juror #12
was unable to be impartial:
PROSPECTIVE JUROR 12: We’re talking about an issue of two
different people here, and it’s very closely related, and it’s really
difficult for me to separate one from the other.
THE COURT: What two people are you talking about, [R.D.]?
PROSPECTIVE JUROR 12: I’m talking about [M.S.] and Kenneth
Stoddard.
THE COURT: You’re talking about the victim, [M.S.], and the
defendant, Mr. Stoddard?
PROSPECTIVE JUROR 12: Yes. In talking about those, it’s really
difficult for me to separate the one from the other, although basically
that is what we’re doing here. We’re not – there’s nothing that can
be done for [M.S.] at this point, nothing is going to bring her back.
And we are trying to find some justice for Kenneth Stoddard,
whatever that is. And my personal concern is whether or not I
can look at the evidence and forget about where she is at this
point, and still be fair and impartial as far as what the evidence
proves. It’s not that I don’t think I can do it. I can do it,
although I think that it will be very emotional.
(Id. at 8) (emphasis in original).
Respondent argues that this claim is procedurally barred. (Doc. 6 at 13).
The Court agrees. First, to the extent that Petitioner contends here that he was
denied a fair trial because Juror #12 was not impartial, Petitioner failed to present
that claim to the state appellate court. In the substantive denial of a fair trial
claim that Petitioner raised in his Initial Brief on direct appeal, he asserted that he
was denied a fair trial only because the trial court failed to dismiss Juror #11 for
cause. (Doc. 6-2 at 72–75). Thus, to the extent here Petitioner contends that he
was denied a fair trial because Juror #12 was not dismissed for cause, he never
presented an issue with Juror 12’s purported partiality to the state appellate court,
and it is thus deemed procedurally defaulted. See Snowden v. Singletary, 135 F.3d
732, 736 (11th Cir. 1998) (“[W]hen it is obvious that the unexhausted claims would
be procedurally barred in state court due to a state-law procedural default, we can
forego the needless ‘judicial ping-pong’ and just treat those claims now barred by
state law as no basis for federal habeas relief.”).5
Second, the Court agrees with Respondent (see Doc. 6 at 13) that Petitioner’s
claim that he was denied a fair trial because the state court failed to dismiss Juror
#11 for cause is procedurally barred because it was never presented in the trial
court in the first instance. In Florida, “to preserve challenges for cause to
prospective jurors, the defendant must ‘object to the jurors, show that he or she has
5 Petitioner concedes in his habeas petition that “the trial court’s refusal to remove
Juror #12 for cause was not preserved for appellate review.” (Doc. 1 at 28, ¶ 118).
exhausted all peremptory challenges and requested more that were denied, and
identify a specific juror that he or she would have excused if possible.’” Matarranz
v. State, 133 So. 3d 473, 482 (Fla. 2013) (quoting Kearse v. State, 770 So. 2d 1119,
1128 (Fla. 2000)). In his Initial Brief on direct appeal, Petitioner conceded that
defense counsel “never moved to strike Juror #11 for cause nor did he exercise a
peremptory challenge to remove him from the jury panel.” (Doc. 6-2 at 89).
Consequently, the issue was not preserved for appeal in the Florida courts in the
first instance, rendering it procedurally barred there.
Indeed, the State argued in its Answer Brief in the direct appeal that
Petitioner’s claim was “not preserved for appeal” because Petitioner “did not
object[.]” (Id. at 130). The appellate court affirmed without explaining the reasons
for its decision. (Id. at 165–66). This Court must presume that the affirmance
rested on the procedural bar asserted in the State’s brief. See Zeigler v. Crosby, 345
F.3d 1300, 1310 (11th Cir. 2003) (“[W]hen a state court issues a summary denial on
a claim that is procedurally barred and nothing in the disposition discusses the
merits of the federal claim, we cannot assume that had the state court explained its
reasoning, it would have reached the merits of the claim.”); Tower v. Phillips, 7
F.3d 206, 211 (11th Cir. 1993) (“[W]e may not assume that had the state court
issued an opinion, it would have ignored its own procedural rules and reached the
merits of this case.”); Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989) (“This
circuit to a point has presumed that when a procedural default is asserted on
appeal and the state appellate court has not clearly indicated that in affirming it is
reaching the merits, the state court’s opinion is based on the procedural default.”).
Thus, Claim One is barred from habeas review.
The resolution of Claim One on state procedural grounds results in a
procedural default, and the claim is therefore barred from federal habeas review
unless Petitioner establishes either cause and prejudice for the default or a
fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262 (1989). After
careful review, even if Petitioner’s claim were not procedurally defaulted,
Petitioner’s argument turns on an unsupported, conclusory assumption that these
jurors had predetermined his guilt and were thus incapable of rendering an
impartial verdict. At bottom, after the trial judge’s thorough examination, both
Jurors 11 and 12 stated that they could set aside any personal feelings and
anything they may have heard about the case prior to the start of trial, and not
determine Petitioner’s guilt or innocence until after presentation of all the trial
evidence and in accordance with the law and that evidence. See Doc. 6-2 at 8, 209–
11 (Juror 11); id. at 70, 212, 784 (Juror 12).
Thus, Petitioner fails to establish either cause and prejudice for the default or
a fundamental miscarriage of justice.
“CLAIM II – BECAUSE THE STATE COURT’S DETERMINATION THAT
PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF HIS SIXTH AMENDMENT RIGHTS WHERE HIS TRIAL
ATTORNEY FAILED TO EFFECTIVELY CHALLENGE BIASED
JURORS AND FAILED TO FILE A MOTION TO SUPPRESS WAS
CONTRARY TO CLEARLY-ESTABLISHED FEDERAL
CONSTITUTIONAL LAW AND WAS BASED ON AN UNREASONABLE
DETERMINATION OF THE FACTS IN LIGHT OF THE EVIDENCE
PRESENTED BY PETITIONER WITH HIS POST-CONVICTION RELIEF
MOTION AND THE LACK OF EVIDENCE TO THE CONTRARY,
HABEAS RELIEF IS WARRANTED”
A. Claim II(A)
Petitioner contends that trial counsel was ineffective for failing to challenge
Juror #11 and Juror #12 because they were biased against him. (Doc. 1 at 26–29).
Petitioner states that “Juror #11 made statements that clearly established that [he]
had prior knowledge of the case and was biased because [he] did not want to see the
Casey Anthony case repeat itself.” (Id. at 28, ¶ 116). Petitioner argues that
counsel was ineffective for failing to “follow up on that inquiry, or challenge Juror
#11 for cause.” (Id.).
Concerning Juror #12, Petitioner asserts that “he had prior knowledge about
the case and questioned his own ability to be impartial.” (Id. at 28, ¶ 117).
Petitioner asserts that although counsel moved to strike Juror #12 for cause, which
was denied, “the trial court’s refusal to remove Juror #12 for cause was not
preserved for appellate review” because “trial counsel did not use a peremptory
strike to remove Juror # 12 from the venire [and,] [a]fter exercising all peremptory
challenges, . . . failed to request an additional peremptory strike . . .and . . . indicate
which juror he would strike if he was granted an additional peremptory challenge.”
(Id. at 28, ¶ 118).
In state court, Petitioner raised this claim in his Rule 3.850 motion. (Doc. 6-2
at 190-93). In denying the claim, the state post-conviction court stated:
Defendant raises several claims related to counsel’s performance
during voir dire. To establish that counsel was ineffective for failing to
make or preserve a cause challenge, a defendant must establish that an
actually biased juror sat on the jury. See Hall v. State, 212 So. 3d 1001,
1015-16 (Fla. 2017). “Under the actual bias standard, the defendant
must demonstrate that the juror in question was not impartial—i.e.,
that the juror was biased against the defendant, and the evidence of
bias must be plain on the face of the record.” Carratelli v. State, 961 So.
2d 312, 324 (Fla. 2007).
Defendant first asserts that trial counsel should have challenged
juror # 11 for cause. This juror indicated that he may have had some
discussion about the case with his spouse, who worked as a court
reporter, and he learned some information about the case through the
media. Asked whether this information caused him to form any definite
opinion about the guilt or innocence of Defendant, he replied “not
really” before conceding “maybe deep down inside I probably have,
but I want to hear all the facts.” Upon further questioning, the juror
clarified that he meant the facts he learned caused him to believe there
was “some wrongdoing someplace,” but he emphasized he had not made
any determination about Defendant’s guilt or innocence. He also
noted that despite learning information through the media, he did not
trust the media to present all the facts accurately. The juror stated he
had no doubt about his ability to set aside any prior information and
apply the law given by the Court to the facts presented at trial.
Later, the venire was asked whether, due to the length of the
trial, their decision would be impacted by a desire to avoid protracted
deliberation. Juror #11 responded that his decision would not be so
swayed because he “wouldn’t want to see another Casey Anthony case.”
In an affidavit attached to the present motion, Defendant asserts that
after this comment, trial counsel indicated that juror #11 needed to be
removed, but took no action to do so. The juror ultimately served on
the jury that convicted Defendant. After the jury was selected, trial
counsel allegedly admitted to Defendant that he erred by failing to
strike the juror and suggested that it would be a ground for a
postconviction motion.
Having considered the voir dire, the Court finds Defendant has
failed to demonstrate that juror # 11 was actually biased against him.
The juror clarified that he had no doubt in his ability to set aside
previously-learned information and apply the law given to the facts
presented at trial, and he affirmatively stated that he had not formed
any fixed opinion about Defendant’s guilt. Within the context of the
questioning, the juror’s comment about Casey Anthony at best
demonstrates his belief that the jurors in an unrelated child homicide
case reached an incorrect verdict based on a desire to avoid protracted
deliberation. This fails to show actual bias against Defendant in this
case.
Defendant next asserts that trial counsel should have preserved
the Court’s denial of a motion to strike juror # 12 for cause. This juror
indicated that he read media reports about the case and the
codefendant’s prior trial, but had not formed any fixed opinions about
Defendant’s guilt or innocence. Despite the information he had learned,
he stated he did not yet know “what actually took place” and would be
able to set aside this information to make a decision based on
the evidence presented at trial. The juror later expressed that while
nothing could undo the victim’s death, and the focus of the case was
justice for Defendant, it would be difficult for him to separate
the two, “forget about where [the victim] is at this point, and still be
fair and impartial ....” Trial counsel asked whether the juror had any
doubts about his ability to be fair and impartial, and he responded “I
think I can do it, but I don’t think that this is going to be an easy thing
to do.” Trial counsel moved to strike juror #12 for cause. The Court
denied the challenge, finding that based on the totality of the juror’s
responses, it believed he could be fair and impartial. Trial counsel did
not use a peremptory strike, request an additional peremptory strike
based on the ruling, nor indicate which juror he would have stricken if
granted an additional peremptory strike.
Again, Defendant has failed to demonstrate that juror #12 was
actually biased against him in this case. The juror stated that he knew
Defendant “was one of the parties involved and that he was arrested,”
but otherwise was unaware of the events that actually took place. The
juror also stated that he would be able to set aside any prior knowledge
about the case and make a decision based on the facts presented at
trial. While the juror later expressed that it would be difficult for
him to separate the victim’s death from the issue of justice for
Defendant, he nonetheless advised that he would be able to do so. The
undersigned agrees with the observation of the trial judge that
this juror candidly described the likely feelings of all potential jurors in
this case: that they faced a difficult task. None of these matters
demonstrate[s] actual bias.
Finally, Defendant asserts that trial counsel should have used
peremptory strikes to remove juror # 11 and juror # 12. In light of the
above determination that Defendant has failed to demonstrate actual
bias on the part of either juror, this claim is denied.
(Id. at 282–84) (footnotes omitted). The appellate court affirmed without a written
opinion. (Id. at 563).
The state courts’ denial of this claim was reasonable. A criminal defendant
has a right to an impartial jury, and a prospective juror who lacks impartiality
must be excused for cause. See Ross v. Oklahoma, 487 U.S. 81, 85–86 (1988). To
exclude a prospective juror for cause, a party “must demonstrate that the juror in
question exhibited actual bias by showing either an express admission of bias or
facts demonstrating such a close connection to the present case that bias must be
presumed.” United States v. Chandler, 996 F.2d 1073, 1102 (11th Cir. 1993); see
also Smith v. Phillips, 455 U.S. 209, 215 (1982). The burden is on the challenger to
show the prospective juror has sufficient actual bias to raise the presumption of
partiality. Irvin v. Dowd, 366 U.S. 717, 723 (1961).
Under Florida law, the test for determining juror competency is “whether the
juror can lay aside any bias or prejudice and render his verdict solely upon the
evidence presented and the instructions on the law given to him by the court.”
Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). In an unpublished opinion, the
Eleventh Circuit explained that a postconviction petitioner must show actual bias
to prove Strickland prejudice resulting from juror bias:
In the post-conviction context...Florida has an actual bias
requirement. See Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007).
“[W]here a postconviction motion alleges that trial counsel was
ineffective for failing to raise or preserve a cause challenge, the
defendant must demonstrate that a juror was actually biased.” Id. at
324 (emphasis added). To meet the actual bias standard, “the defendant
must demonstrate that the juror in question was not impartial—i.e.,
that the juror was biased against the defendant, and the evidence of
bias must be plain on the face of the record.” Id.
Fennell v. Sec’y, Fla. Dep’t of Corr., 582 F. App’x 828, 832 (11th Cir. 2014).
While Petitioner argues that both Juror #11 and Juror #12 had prior
knowledge about his case and made statements that showed they could not be
impartial, he presents no evidence that either was “actually biased” against him.
When questioned by the trial court, Juror #11 said that he had no “fixed opinion
about” Petitioner and had no doubt “whatsoever” that he could set aside the
information he had learned about the case and “render a verdict according to the
law and evidence.” (Doc. 6-2 at 647–51). Juror #12 stated that although he had
heard about the case from the news, he did not “have that many details about what
actually took place[,]” and he believed he could set that information aside and only
consider the facts presented in court. (Id. at 651–54). Moreover, all the jurors took
an oath to “render a true verdict according to the law and the evidence.” (Id. at
952). “Jurors are presumed to follow the law as instructed by the trial court and to
comply with their oaths.” Fennel, 582 F. App’x at 834.
Even if Juror #11 and Juror #12 learned some details about the case from the
news or from a family member, the Supreme Court has explained that “juror
impartiality. . . does not require [juror] ignorance.” Skilling v. United States, 561
U.S. 358, 381 (2010) (emphases in original) (citing Irvin v. Dowd, 366 U.S. 717, 722
(1961) (noting that jurors are not required to be “totally ignorant of the facts and
issues involved”; “scarcely any of those best qualified to serve as jurors will not
have formed some impression or opinion as to the merits of the case.”)); Reynolds v.
United States, 98 U.S. 145, 155–56 (1879) (“[E]very case of public interest is almost,
as a matter of necessity, brought to the attention of all the intelligent people in the
vicinity, and scarcely any one can be found among those best fitted for jurors who
has not read or heard of it, and who has not some impression or some opinion in
respect to its merits.”). With no evidence that Juror #11 and Juror #12 were
actually biased by their exposure to the news or a family member with information
about the case, the Court must presume that they followed the trial judge’s
instructions and were fair and impartial during deliberations.
Petitioner also contends that Juror #11 showed he was biased against
Petitioner by stating, “I wouldn’t want to see another Casey Anthony case.” (Doc.
6-2 at 920). But the state postconviction court found that the comment “at best
demonstrates [Juror #11’s] belief that the jurors in an unrelated child homicide
case reached an incorrect verdict based on a desire to avoid protracted
deliberation.” (Id. at 283).6 The record supports that finding. Juror #11 made that
statement not to express a pre-determined belief that Petitioner was guilty of
killing his own child, but rather in response to defense counsel’s question asking if
the jurors would consider rendering a verdict solely because they wanted to end the
trial and “go home.” (Id. at 295–97). Thus, the postconviction court’s conclusion
that Juror #11’s “Casey Anthony” comment failed to show actual bias was not
unreasonable.
The state court’s determination that Petitioner failed to show Juror #12 was
actually biased against Petitioner was also not unreasonable. Petitioner contends
that Juror #12 “questioned his own ability to be impartial” (Doc. 1 at 28, ¶ 117)
when he stated that he was concerned about whether he could be fair and impartial
to Petitioner, who was charged with killing his own child. But both the state trial
court and the state postconviction court agreed that Juror #12 was stating what
many of the potential jurors likely believed—that it may be challenging to be
impartial in a case involving the death of a child at the hands of a parent. (Doc. 6-2
at 284, 941). And the courts also found that, despite Juror #12’s concerns, he
6 In the Casey Anthony case, the jury reached a verdict after less than eleven hours
of deliberations following a six-week trial. NBC News, Casey Anthony found not guilty of
murdering daughter (July 5, 2011), available at
https://www.nbcnews.com/id/wbna43636855 (last visited on Mar. 12, 2026).
indicated that he could be fair and impartial. (Id.). The record supports the state
courts’ findings. Juror #12 stated that although it would be “very emotional” and
“not an easy thing to do,” he believed he could be fair and impartial. (Id. at 931).
His initial hesitancy about his ability to be fair and impartial, considering the facts
of the case, is insufficient to establish that he was actually biased against
Petitioner. See Irvin v. Dowd, 366 U.S. 717, 723 (1961) (“To hold that the mere
existence of any preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a prospective juror’s
impartiality would be to establish an impossible standard. It is sufficient if the
juror can lay aside his impression or opinion and render a verdict based on the
evidence presented in court.”).
Because Petitioner failed to demonstrate that Juror #11 and Juror #12 held
biased or prejudiced beliefs that would have prevented them from returning a
verdict based on the law and evidence, trial counsel was not ineffective. Thus, the
state postconviction court did not unreasonably deny the claim.
B. Claim II(B)
Petitioner asserts that trial counsel was ineffective for failing to move to
suppress his statements to law enforcement after he invoked his right to remain
silent. Petitioner spoke to law enforcement four separate times (December 13,
2012, with Officer Jeffery Kokinda at the hospital; December 13, 2012, with
Detective Kim Northfield at the hospital; December 15, 2012, with Detective
Northfield at the hospital; and December 19, 2012, with Detective Northfield at the
police station). (Doc. 6-2 at 1064, 1074, 1148, 1150–51, 1172, 1175, 1204, 1206). In
his petition, Petitioner challenges only his statements during the third and fourth
interviews (Detective Northfield’s second and third interviews). (Doc. 1 at 29–34).
Petitioner raised similar arguments in Claim I of his Rule 3.850 Motion.
(Doc. 6-2 at 316–23). The postconviction court denied the claim, noting that the
allegations were insufficient because Petitioner failed to identify the specific
statements that should have been suppressed and to show how their suppression
would have changed the outcome of the trial. (Id. at 529–34). The postconviction
court also concluded that there was no reasonable probability that a motion to
suppress, on the grounds Petitioner presented, would have been granted. (Id. at
530-34). The court explained:
Defendant claims trial counsel was ineffective for failing to move
to suppress Defendant’s incriminating statements to law enforcement.
He argues that the statements from his first interview should have
been suppressed because he was not advised of his Miranda rights, and
the statements from his second and third interviews should have been
suppressed because officers ignored invocations of his right to silence.
This claim was previously stricken because Defendant failed to identify
the particular statements that should have been suppressed, and he
failed to allege or demonstrate how suppression of those particular
statements would have changed the outcome of the trial.
The present motion suffers the same deficiencies. Defendant does
not identify the particular statements that should have been
suppressed in relation to each of three separate grounds for
suppression now argued. The only identification of specific statements
is made by reference to the prosecutor’s recounting of certain
statements Defendant made at various points across all three
interviews. Neither that summation of the evidence nor Defendant’s
motion specify where each of these separate statements were made in
relation to the grounds for suppression argued in this claim. Moreover,
Defendant’s allegation that suppression of “the statements” would have
changed the outcome of the trial treats all of Defendant’s statements as
a single, amalgamated unit, frustrating any attempt to analyze the
prejudice arising from each of the three distinct suppression claims.
Notwithstanding these deficiencies, the Court has reviewed the
record and finds that there is no reasonable probability that a motion to
suppress statements from the first or second interview on the grounds
now argued would have been granted. The first interview occurred on
December 13, 2012, at All Children's Hospital. After observing the
victim’s injuries, Officer Jeffrey Kokinda spoke to Defendant and the
other family members at the hospital while accompanied by two
members of the Child Protection Team and another backup officer. The
interview with Defendant occurred at a large conference room table in
the hospital. The interview was not recorded. Officer Kokinda testified
at trial regarding the substance of that interview.
Defendant claims that his statements during this first interview
should have been suppressed because he was not advised of his
Miranda rights. “Miranda warnings apply only to in-custody
interrogations,” and “whether a person was in custody for purposes of
Miranda depends on how a reasonable person in the suspect’s situation
would perceive his circumstances,” Ross v. State, 45 So 3d 403, 414-15
(Fla 2010) (internal quotations omitted). This inquiry is guided by
the so-called Ramirez factors (1) the manner in which police summon
the suspect for questioning, (2) the purpose, place, and manner of the
interrogation, (3) the extent to which the suspect is confronted with
evidence of his or her guilt, and (4) whether the suspect is informed
that he or she is free to leave the place of questioning. Id. at 415;
Ramirez v State, 739 So 2d 568, 574 (Fla. 1999).
Defendant raises three arguments in support of his claim that
this was a custodial interview. He first argues he did not feel free to
leave the hospital because he was still awaiting a medical prognosis for
M. S. While Defendant may have felt compelled to remain at the
hospital on account of his daughter, that has no bearing on whether a
reasonable person would have felt free to leave the conference room
where the interview occurred or otherwise end the encounter with law
enforcement. Defendant also argues that he felt compelled to remain
because leaving the interview would have been seen as incriminating.
This argument admits Defendant felt that he was free to leave the
interview without being stopped, whether or not it would be seen as
incriminating. The Court finds no merit in either of these arguments.
Defendant also argues that the interview became custodial when
he began making incriminating statements about binding, restraining,
and “hogtying” M. S. “What begins as a noncustodial interrogation may
be transformed into a custodial interrogation by a confession that the
suspect utters during the interrogation.” State v Pitts, 936 So 2d 1111,
1134 (Fla 2d DCA 2006). This principle is typically applied where, in
the course of an otherwise noncustodial interrogation, a defendant
directly confesses to a criminal act. See id. (defendant confessed to
holding a gun on the victims), Cushman v State, 228 So 3d 607, 618
(Fla 2d DCA 2017) (defendant confessed to touching and rubbing the
minor victim’s butt with his hand).
Defendant admitted to binding and restraining the [sic] M. S. on
several prior occasions due to her behavioral difficulties and propensity
for self-harm, but he stated that Misty restrained the victim on the
night of her hospitalization, the incident law enforcement was
investigating. According to Defendant, Misty was responsible for
checking on the victim that night while Defendant was in another room
playing games with his eight-month-old child. Misty checked on the
victim at least once and found that everything was okay, but she later
entered Defendant’s room to report that the victim was not breathing.
Defendant’s statements during this interview, while incriminating, did
not rise to the level of a direct confession to criminal conduct that
would convert the interview into a custodial interrogation. On this
record, the Court finds no reasonable probability that a motion to
suppress the statements on this basis would have been successful.
Defendant argues that his statements during the second
interview were subject to suppression because “during the second
interrogation, [he] invoked his Fifth Amendment right to remain
silent,” but law enforcement continued questioning him. The second
interview occurred on December 15, 2018, at All Children’s Hospital
and was audio recorded. Detective Kim Northfield conducted the
interview while accompanied by Detective Stephanie Graham.
Defendant specifically relies on the following exchange as his
invocation of his right to remain silent.
Q Okay. So where did the duct tape come from between the
hour, hour and a half that you were watching (inaudible) did you say
did you have to restrain her what was going on?
A I just had a - I would like to not speak anymore.
Q Okay. That’s up to you.
A Unless I can speak somewhat off the record.
Q I’m not sure what that means. Yeah?
A It’s hard for me to say.
Q Well, that’s - if that’s a particular point, so you don’t want
to address (inaudible) you don’t have to talk to us. (Inaudible) you’re
welcome to walk out at any (inaudible). I would really like to sit and
talk to you. Yeah. I mean if you want to talk to us you just don’t want
to talk about that (inaudible)?
Questioning continued after this exchange.
Even assuming, without deciding, that Defendant was in custody
during this interview, the cited statements do not reflect an
unequivocal invocation of the right to silence. Although law
enforcement must honor a suspect’s invocation of the right to remain
silent during a custodial interrogation, further questioning is permitted
if the suspect’s invocation of the right is ambiguous or equivocal.
Alvarez v State, 15 So 3d 738, 743 (Fla 4th DCA 2009). The test is
whether a reasonable officer under the circumstances would
understand that the suspect has invoked his right to end questioning.
Deviney v State, 112 So 3d 57, 74 (Fla 2013). An unequivocal invocation
includes not just a suspect’s words, but also his conduct. Id.
Defendant’s statement that he did not wish to speak unless he could
speak “somewhat off the record” was clearly equivocal and ambiguous.
At minimum, it reflected some desire to continue speaking with law
enforcement in some respect. Immediately after the statement, the
detective made it clear that Defendant was free to stop talking or end
the interview. Defendant’s further engagement with the officer after
this statement only reinforces its equivocal nature. On this record, the
Court finds no reasonable probability that a motion to suppress these
statements would have been successful.
Finally, Defendant argues that his statements during the third
interview should have been suppressed because questioning continued
after he invoked his right to remain silent. As noted above, Defendant’s
claim involves suppression of three separate sets of statements on three
different grounds, and his singular allegation that suppression of “the
statements” would have changed the outcome of the trial is an
insufficient claim of prejudice as it relates to each of the individual
claims of suppression and the separate sets of statements at issue. As
this claim relates to the first two interviews, the Court did not need to
reach the potential impact of particular statements in light of its
finding that they would not have been suppressed.
The insufficient pleading of this claim is a greater problem in
relation to the third interview. Defendant cites a mid-trial bench
conference where the State informed the Court that Defendant
invoked his right to silence approximately halfway through the third
interview. Even assuming that a motion to suppress the statements
made after this invocation would have been successful, Defendant
wholly fails to specifically identify where in the third interview this
invocation occurred, what statements were made after the invocation,
or how suppression of those particular statements would have changed
the outcome of the trial in light of the statements given prior to the
invocation, the statements given throughout the first and second
interviews, or the other evidence against him. In sum, his allegation of
prejudice regarding his statements to law enforcement as a whole is
insufficient to establish prejudice in relation to a specific motion to
suppress unspecified statements made after the invocation of his right
to remain silent at an unspecified point during the third interview.
Having previously afforded an opportunity to amend this claim,
and finding that it remains insufficient, the Court now denies the claim
with prejudice as it relates to the third interview. See Fla R Crim P
3.850(f).
(Id. at 529–34) (footnotes omitted). The state appellate court affirmed the denial of
the Rule 3.850 without a written opinion. (Id. at 563).
Based upon a review of the record, the Court concludes that the state courts’
rejection of this claim was neither an unreasonable application of Strickland nor
based upon an unreasonable determination of the facts. Petitioner first contends
that after the third and fourth interrogations started, he asserted his right to
remain silent. “When a person undergoing a custodial interrogation states that he
wishes to remain silent the questioning must end . . . .” United States v. Acosta,
363 F.3d 1141, 1151 (11th Cir. 2004) (citing Miranda v. Arizona, 384 U.S. 436
(1966)). However, a suspect’s invocation of his rights must be unequivocal. United
States v. Ochoa, 941 F.3d 1074, 1098 (2019) (citing Davis v. United States, 512 U.S.
452, 461–62 (1994)).
The state postconviction court found that Petitioner did not unequivocally
assert his right to remain silent and terminate the third interrogation (Detective
Northfield’s December 15, 2012 recorded interview). (Doc. 6-2 at 533). This factual
finding is entitled to deference, and Petitioner has not presented clear and
convincing evidence to the contrary. Petitioner’s statement that he “would like to
not speak anymore,” almost immediately followed by his statement “[u]nless I can
speak somewhat off the record” (Doc. 6-2 at 1185), was equivocal and ambiguous. A
reasonable police officer in that circumstance would not understand Petitioner’s
statement to be a request to cease questioning, especially where Petitioner
continued to answer questions after Detective Northfield made it clear that
Petitioner was free to stop talking and leave. See Ochoa, 941 F.3d at 1098 (“[A]
suspect must articulate his desire with sufficient clarity that a ‘reasonable police
officer in the circumstances would understand the statement to be a request’ . . . to
cease further questioning.” (quoting Davis, 512 U.S at 459)). Petitioner has failed
to make a showing that he unequivocally requested to remain silent during the
interview on December 15, 2012 (the third interview). Consequently, trial counsel
cannot be deemed deficient for failing to file a motion to suppress Petitioner’s
statements during that interview.
Finally, the state postconviction court denied relief on Petitioner’s claim that
he invoked his right to remain silent during the fourth interview because his
allegation of prejudice was insufficiently pleaded. (Doc. 6-2 at 533–34). Petitioner
had alleged that before the fourth interview––which was recorded––was played for
the jury, the prosecutor informed the court that Petitioner had invoked his right to
remain silent “halfway through the video recording[.]” (Id. at 311). However,
Petitioner never identified exactly when he ostensibly invoked his right to remain
silent during the fourth interview. (Id. at 316–23). Nor did he identify the
statements he made after invoking that right. (Id.). He also fails to identify in his
federal habeas petition when he invoked his right to silence and which statements
were made after doing so. (Doc. 1).
Vague, conclusory, speculative, or unsupported claims cannot support an
ineffective assistance of counsel claim. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th
Cir. 1991). And it’s not this Court’s duty to comb the state-court record to attempt
to identify the facts that support Petitioner’s claim. See, e.g., Chandler v.
Volunteers of Am., N. Alabama, Inc., 598 F. App’x 655, 663 (11th Cir. 2015) (noting
that “counsel still seems to be under the misimpression that it is the court’s job, not
counsel’s, initially to comb through the record, identify the facts supporting the
plaintiff’s legal position, and apply them to the law-all without any guidance from
counsel.”); Rule 2(c)(2), Rules Governing Habeas Corpus Cases Under Section 2254;
Mayle v. Felix, 545 U.S. 644, 654 (2005) (noting that Rule 2(c) is demanding and
provides that a petitioner must specify all grounds for relief and the facts
supporting each ground); Broughton v. Crews, 2016 WL 4628051, at *37 (S.D. Fla.
Jan. 28, 2016), report and recommendation adopted, 2016 WL 4625616 (S.D. Fla.
Sept. 6, 2016) (“The petitioner is represented by counsel in these [habeas corpus]
proceedings and it is not the role of the Court to find support for the petitioner’s
claim of ineffective assistance of appellate counsel . . . .”).
Petitioner fails to show that the state postconviction court’s decision that this
claim was insufficiently pleaded was objectively unreasonable, contrary to Supreme
Court law, or based on an unreasonable application of the facts. And even if
adequately pleaded, his claim would still fail because he does not show prejudice.
Considering Petitioner’s prior statements during his previous interviews, and the
other inculpatory evidence, including Petitioner’s stepson, Jarrett Eastman’s,
eyewitness testimony, any error in admitting the part of the fourth interview after
Petitioner invoked his right to remain silent was harmless. (Doc. 6-2 at 1421-66).
See Brecht v. Abrahamson, 507 U.S. 619 (1993) (constitutional error will be
considered harmless in a habeas proceeding unless the error had substantial and
injurious effect or influence on the verdict or sentence); United States v. Street, 472
F.3d 1298, 1314–15 (11th Cir. 2006) (explaining that the harmless error rule
applies to evidence admitted in violation of Miranda). Therefore, no habeas relief
is warranted on Claim II.
IV. Conclusion
Based on the foregoing, Petitioner is not entitled to habeas relief.
Accordingly, it is ORDERED that:
1. The 28 U.S.C. § 2254 petition (Doc. 1) filed by Petitioner is DENIED.
2. The Clerk is DIRECTED to enter judgment in favor of Respondent and
against Petitioner, deny any pending motions as moot, terminate any deadlines,
and close this case.
Certificate of Appealability7
A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a
district court or circuit justice or judge must first issue a certificate of appealability
(COA). “A [COA] may issue...only if the applicant has made a substantial showing
7 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, the “district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
substantial showing, a petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong,” Slack v. McDaniel, 529 U.S. 4738, 484 (2000), or that “the issues presented
[are] adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003).
Upon consideration of the record, the Court declines to issue a COA. Because
Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, on March 13, 2026.
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE
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