Lewis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MEGAN E. LEWIS,

Petitioner,

v. Case No. 8:25-cv-2395-WFJ-AAS

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

Megan E. Lewis, a Florida prisoner, initiated this action by filing a pro se petition

for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Respondent filed a response

opposing the petition. (Doc. 13). Although afforded the opportunity, Ms. Lewis did not

submit a reply. After careful review, the petition is DENIED.

I. Background

On the evening of September 7, 2017, Ms. Lewis murdered her boyfriend by

shooting him in the head. (Doc. 14-2, Ex. 7, at 569, 631-32). At the time, the two shared

a house in St. Petersburg, Florida. (Id. at 442, 787). The boyfriend, Craig Cutson, worked

as a welder; Ms. Lewis was “pursuing . . . a degree in nursing.” (Id. at 545, 791). On the

day of the murder, Ms. Lewis stayed home while Mr. Cutson worked. (Id. at 762). She

drank vodka “[t]hroughout the day,” did chores around the house, and accepted delivery of

a “zero gravity” bed. (Id. at 540, 762, 764, 766). When Mr. Cutson got home, he was

“upset,” and he poured himself a bourbon. (Id. at 545, 549, 768). The two argued over Ms.

Lewis “not being productive during the day.” (Id. at 547). Mr. Cutson began to mow the

lawn, and Ms. Lewis took a nap on the porch. (Id. at 773-74).

After waking from her nap, Ms. Lewis went inside and entered the bedroom. (Id. at

774-75). Mr. Cutson was on the bed. (Id. at 550). He began to talk about “the height” of

the bed in “a critical fashion.” (Id. at 778). Ms. Lewis retrieved a revolver, one of several

guns Mr. Cutson kept in the bedroom. (Id. at 493-94, 551-52). She told law enforcement

what happened next: “It was just kind of like, F*ck you, Craig, and then it was like, sh*t,

it went off.” (Id. at 546). According to Ms. Lewis, there was no “physical fighting” or

“struggl[e].” (Id. at 548-49). Mr. Cutson died of a single gunshot wound to the forehead.

(Id. at 601, 631). The State’s blood spatter expert testified that Mr. Cutson was lying “on

his back” on the bed when Ms. Lewis shot him. (Id. at 734).

Ms. Lewis called 911 to report that she had “shot [her] boyfriend.” (Id. at 442). The

operator asked, “Was this intentional?” (Id. at 444-45). She said, “No, we were messing

around . . . . and I hit the f*cking gun.” (Id. at 445). She then added, “[W]e were fighting.”

(Id.) When law enforcement arrived, Ms. Lewis “spontaneously stated . . . that she just

grabbed the gun and it went off.” (Id. at 432). After her interview with law enforcement,

Ms. Lewis was arrested for second-degree murder. (Id., Ex. 3). On the way to the jail, she

said that the “next time she accidentally shoots somebody she won’t call the cops.” (Id.,

Ex. 7, at 437).

The case went to trial. Ms. Lewis argued that the shooting was “a tragic accident”

and “yet another reminder of the importance of safe and responsible gun ownership.” (Id.

at 415). According to her, Mr. Cutson was “telling [her] about” the revolver when he

“cocked the hammer” and handed it to her. (Id. at 777). The gun then “went off,” and she

“knew something was terribly, terribly wrong.” (Id. at 779). The jury found Ms. Lewis

guilty of second-degree murder, and the trial court sentenced her to thirty years in prison.

(Id. at 905; Doc. 14-2, Ex. 14). Ms. Lewis’s direct appeal was unsuccessful, as were her

efforts to seek postconviction relief under Florida Rule of Criminal Procedure 3.850 and

Florida Rule of Appellate Procedure 9.141(d). (Doc. 14-3, Exs. 27, 29, 32, 34, 37, 40, 45).

This federal habeas petition followed. (Doc. 1).

II. Standards of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal

habeas relief cannot be granted on a claim adjudicated on the merits in state court unless

the state court’s adjudication:

(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.

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

at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if

the state court decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves

an “unreasonable application” of clearly established federal law “if the state court identifies

the correct governing legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application

of clearly established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,

562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”).

B. Ineffective Assistance of Counsel

Ms. Lewis alleges ineffective assistance of counsel. Ineffective-assistance-of-

counsel claims are analyzed under the test established in Strickland v. Washington, 466

U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and

resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all the

circumstances, the identified acts or omissions [of counsel] were outside the wide range of

professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id.

Ms. Lewis must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at

691. To demonstrate prejudice, Ms. Lewis must show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal

habeas review because “[t]he standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at

105 (internal quotation and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702

F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the lens of AEDPA

deference, the resulting standard of review is doubly deferential.”). “The question [on

federal habeas review of an ineffective-assistance claim] ‘is not whether a federal court

believes the state court’s determination’ under the Strickland standard ‘was incorrect but

whether that determination was unreasonable—a substantially higher threshold.’” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)).

III. Discussion

A. Ground One—Exclusion of Toxicologist’s Testimony

Ms. Lewis argues that the trial court violated her right to due process by excluding

testimony from Tara Catlin, a forensic toxicologist. (Doc. 1 at 4). Ms. Catlin would have

testified that the victim, Mr. Cutson, “had a blood alcohol level of .141 at the time of death,

which could have caused a lack of critical judgment.” (Id.) During a break in the trial,

defense counsel proffered Ms. Catlin’s testimony. (Doc. 14-2, Ex. 7, at 807-12). Counsel

argued that evidence of Mr. Cutson’s intoxication would explain why he “recklessly”

handed Ms. Lewis a loaded, cocked revolver. (Id. at 817). This, in turn, would bolster Ms.

Lewis’s defense that the shooting was an accident. (Id.) The trial court excluded the

testimony, explaining that it had “not heard anything [showing] that [Ms. Catlin’s

testimony] should be admissible.” (Id. at 817-18). Ms. Lewis challenged this ruling on

appeal, and the appellate court affirmed in an unexplained decision. (Id., Exs. 17, 19, 20,

22).

Ms. Lewis is not entitled to relief because she cannot show that the exclusion of Ms.

Catlin’s testimony caused “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). “On collateral review, a federal constitutional error is harmless unless there is

actual prejudice, meaning that the error had a substantial and injurious effect or influence

on the jury’s verdict.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 (11th Cir.

2012) (emphasis omitted). “To show prejudice under Brecht, there must be more than a

reasonable possibility that the error contributed to the conviction.” Mason v. Allen, 605

F.3d 1114, 1123 (11th Cir. 2010). An error “is likely to be harmless under the Brecht

standard where there is significant corroborating evidence or where other evidence of guilt

is overwhelming.” Mansfield, 679 F.3d at 1313. “The standard for granting habeas relief

under Brecht is extremely demanding.” Al-Amin v. Warden Ga. Dep’t of Corr., 932 F.3d

1291, 1303 (11th Cir. 2019).

Ms. Lewis cannot show “more than a reasonable possibility” that the outcome of

her trial would have been different had the jury learned that Mr. Cutson’s blood alcohol

level was .141. Mansfield, 679 F.3d at 1313. At trial, both sides agreed that Ms. Lewis shot

Mr. Cutson in the head. (Doc. 14-2, Ex. 7, at 409-10, 415-16). The question for the jury

was this: Did Ms. Lewis accidentally shoot Mr. Cutson, or did she fire the gun with “a

depraved mind regardless of human life”?1 Fla. Stat. § 782.04(2). The answer to that

question did not depend on whether Mr. Cutson drunkenly handed Ms. Lewis the gun. Even

if he did that, she still could have shot him with the intent required for second-degree

murder. Indeed, the prosecution presented “significant corroborating evidence” of Ms.

Lewis’s depraved mind. Mansfield, 679 F.3d at 1313. She told the 911 operator that she

and Mr. Cutson had been “fighting.” (Doc. 14-2, Ex. 7, at 445). And she gave law

enforcement the following account of the shooting: “It was just kind of like, F*ck you,

Craig, and then it was like, sh*t, it went off.” (Id. at 546). Regardless of whether Mr. Cutson

handed Ms. Lewis the gun, the jury had ample evidence from which to conclude that the

shooting was not an accident. See Bogart v. State, 114 So. 3d 316, 318 (Fla. 4th DCA 2013)

1 An act “demonstrat[es] a depraved mind if it is an act or series of acts that: (1) a person of ordinary

judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done

from ill will, hatred, spite, or an evil intent, and (3) is of such a nature that the act itself indicates an

indifference to human life.” Light v. State, 841 So. 2d 623, 625 (Fla. 2d DCA 2003).

(evidence that defendant and victim had “got[ten] in a fight, an argument” was “relevant

to the element of ill will or depraved mind in second-degree murder”).

Moreover, the jury did not learn Mr. Cutson’s blood alcohol level, but it did hear

that he had poured himself a bourbon after arriving home from work. (Doc. 14-2, Ex. 7, at

549). As a result, counsel was able to argue in closing that Mr. Cutson “handed [Ms. Lewis]

the gun, cocked it,” and that he did so after “pour[ing] a bourbon.” (Id. at 855). Based on

this (and other) evidence, counsel urged the jury to “[f]ind that it was an accident.” (Id. at

865). Because Ms. Lewis “made the very point that [she] claims [she] was restricted from

making,” any error in excluding Ms. Catlin’s testimony was harmless under Brecht.

Roberts v. Dixon, No. 1:21-cv-152-AW-MJF, 2023 WL 4317043, at *11 (N.D. Fla. Apr.

7, 2023), adopted by 2023 WL 4317271 (N.D. Fla. July 3, 2023).

B. Ground Three—Failure to Cite “Favorable Case Law” on Appeal2

On direct appeal, Ms. Lewis’s counsel argued that the trial court “abused its

discretion by precluding the testimony of forensic toxicologist Tara Catlin.” (Doc. 14-2,

Ex. 17, at 12). In her § 2254 petition, Ms. Lewis faults counsel for failing to alert the

appellate court to “favorable case law.” (Doc. 1-1 at 13). She raised this claim in state court

by filing a petition alleging ineffective assistance of appellate counsel. (Doc. 14-3, Ex. 25,

at 9-10). There, Ms. Lewis argued that counsel should have cited Gensler v. State, 868 So.

2d 557 (Fla. 3d DCA 2004). (Id.) In Gensler, the Third District Court of Appeal reversed

a vehicular-homicide conviction. It held that “[t]he trial court abused its discretion in

2 Ground Three is related to Ground One. The Court thus addresses Ground Three before turning to Ground

Two.

excluding evidence of the deceased’s crack cocaine and alcohol intoxication on the night

of the accident,” because “[t]his information [was] relevant to the defendant’s version of

the events and explanation of the accident, and tend[ed] to demonstrate that the defendant

may not be at fault for causing the accident.” 868 So. 2d at 559. Ms. Lewis argued that

there was a “reasonable probability the outcome [of her appeal] would have been different

but for counsel’s omission of Gensler.”3 (Doc. 14-3, Ex. 25, at 10).

The appellate court rejected this claim in an unexplained decision. (Id., Ex. 27).

Thus, Ms. Lewis must show that “there was no reasonable basis for the state court to deny

relief.” Richter, 562 U.S. at 98. She cannot do so. Her assertion of ineffective assistance

rests on the mistaken premise that counsel failed to cite Gensler on direct appeal. In fact,

counsel cited Gensler six times in his reply brief. (Doc. 14-2, Ex. 19, at 7-11). He described

the facts, recited the relevant holding, and argued that it supported Ms. Lewis’s position

that the toxicologist’s testimony “was relevant and the trial court erred by excluding it.”

(Id. at 7-8). Ms. Lewis “cannot demonstrate deficient performance when counsel did what

[she] wanted him to do.”4 Owens v. Sec’y, Dep’t of Corr., No. 5:14-cv-266-RH-GRJ, 2017

3 Ms. Lewis also claimed that counsel omitted “similar cases,” but she did not identify any decision other

than Gensler that would have supported her position on appeal. (Doc. 14-3, Ex. 25, at 9-10).

4 In her § 2254 petition, Ms. Lewis faults appellate counsel for “using only state law” and failing to “put

the state court on notice of any federal [constitutional] violations.” (Doc. 1-1 at 14-15). But Ms. Lewis did

not make this argument in her petition alleging ineffective assistance of appellate counsel. (Doc. 14-3, Ex.

25, at 9-10). Her newly minted allegations thus cannot be considered on federal habeas review. “[A] review

of a state court adjudication on the merits in light of allegations not presented to the state court—for

example, by examining additional facts or claims presented for the first time in a petitioner’s federal habeas

petition—would insufficiently respect the historic and still vital relation of mutual respect and common

purpose existing between the States and the federal courts.” Borden v. Allen, 646 F.3d 785, 816 (11th Cir.

2011). Accordingly, this Court “do[es] not consider [Ms. Lewis’s] supplemental allegations . . . when

reviewing the reasonableness of the state court’s resolution of this claim, which was based on the allegations

before it.” Powell v. Allen, 602 F.3d 1263, 1273 n.8 (11th Cir. 2010). Regardless, Ms. Lewis fails to

WL 9440396, at *8 (N.D. Fla. Apr. 18, 2017), adopted by 2017 WL 2861651 (N.D. Fla.

July 5, 2017).

C. Ground Two—Failure to Challenge Exclusion of EMT’s Testimony

Ms. Lewis faults appellate counsel for failing to challenge the exclusion of

testimony from Donald Kmiotek, an EMT who responded to the scene of the shooting.

(Doc. 1 at 5). Mr. Kmiotek would have testified that he overheard a “woman” telling “one

of the officers” on scene that “she had accidently shot [the victim] or the gun accidently

discharged or something along those lines.” (Doc. 14-2, Ex. 7, at 802). After hearing a

proffer of this testimony, the trial court excluded it on hearsay grounds. (Id. at 806). The

court explained that it could not “find . . . an exception to the hearsay rule that would

apply,” and it expressed “concern[]” about the “reliability” of the testimony because Mr.

Kmiotek could not “remember clearly what was being said other than the word

‘accidentally’ got used.” (Id.) Ms. Lewis now contends that counsel should have challenged

this ruling on direct appeal. (Doc. 1-1 at 12). According to her, counsel could have argued

that the statement qualified for the “excited utterance” exception to the hearsay rule. (Id.)

The appellate court rejected this ineffective-assistance claim without explanation.

(Doc. 14-3, Ex. 27). Once again, Ms. Lewis must show that “there was no reasonable basis

for” that decision. Richter, 562 U.S. at 98. She cannot do so. A fairminded jurist could

conclude that the “omitted claim” had no “reasonable probability of success on appeal”

because the exclusion of Mr. Kmiotek’s testimony was harmless. Joiner v. United States,

establish a reasonable probability that the outcome of her appeal would have been different had counsel

cited federal decisions.

103 F.3d 961, 963 (11th Cir. 1997); see also Boland v. Sec’y, Dep’t of Corr., 278 F. App’x

876, 879 (11th Cir. 2008) (prejudice inquiry “requires that we determine whether the state

court would have applied harmless error review”). And with no reasonable probability of

success on appeal, Ms. Lewis cannot show prejudice from the omission of her claim.

A Florida appellate court “will not reverse where an error is harmless.” Peret v.

State, 301 So. 3d 437, 439 (Fla. 2d DCA 2020). The test for harmlessness is whether there

is a “reasonable possibility that excluding [the] evidence . . . contributed to [the]

conviction.” Mizell v. State, 350 So. 3d 97, 102 (Fla. 1st DCA 2022). Here, a fairminded

jurist could find that any alleged error was harmless because Mr. Kmiotek’s testimony was

“cumulative in nature.” Prado v. State, 372 So. 3d 272, 275 (Fla. 4th DCA 2023); see also

Andrews v. State, 82 So. 3d 979, 984 (Fla. 1st DCA 2011) (finding harmless error where

challenged testimony was “cumulative”).

According to Ms. Lewis, the excluded testimony was important because it showed

that shortly after the incident, she described the shooting as “accidental.” (Doc. 14-3, Ex.

25, at 8-9). But the jury learned this even without Mr. Kmiotek’s testimony. During the

911 call, Ms. Lewis reported that she had “shot [her] boyfriend.” (Doc. 14-2, Ex. 7, at 442).

The operator asked, “Was this intentional?” (Id. at 444-45). She said, “No, we were

messing around . . . . and I hit the f*cking gun.” (Id. at 445). Likewise, when law

enforcement arrived, Ms. Lewis “spontaneously stated . . . that she just grabbed the gun

and it went off”—a statement that suggests an accidental shooting. (Id. at 432). Later,

during her interrogation, she said, “I called you guys because I accidentally shot my

boyfriend.” (Id. at 566). Finally, on the way to the jail, Ms. Lewis said that the “next time

she accidentally shoots somebody she won’t call the cops.” (Id. at 437).

On this record, a fairminded jurist could conclude that any error in excluding Mr.

Kmiotek’s testimony “was harmless because [it] was cumulative of other evidence

presented to the jury.” Wallace v. State, 766 So. 2d 364, 372 (Fla. 3d DCA 2000). Thus,

the appellate court could reasonably have found that Ms. Lewis “was not prejudiced when

counsel failed to argue the [evidentiary] issue on direct appeal.” Boland, 278 F. App’x at

880.

D. Ground Four—Failure to Raise Batson Challenge

Lastly, Ms. Lewis argues that trial counsel was ineffective for not “object[ing] to an

all-male jury, which constitut[ed] gender bias under” Batson.5 (Doc. 1-1 at 15). Ms. Lewis

alleges no additional facts in support of this claim. (Id.) The jury in her case consisted of

six men and one female alternate. (Doc. 14-2, Ex. 7, at 341, 343-44). The prosecution used

four out of five peremptory challenges on female venire members; Ms. Lewis’s counsel

used four out of six peremptory challenges on female venire members. (Id. at 332-41). Ms.

Lewis asserts, without elaboration, that counsel should have “raise[d] a Batson challenge

during voir dire.” (Doc. 1-1 at 15).

Even under de novo review, this claim fails. Batson held that the Fourteenth

Amendment forbids a prosecutor from striking potential jurors solely on account of their

race. 476 U.S. at 86. In J.E.B. v. Alabama, the Supreme Court extended Batson to

5 Batson v. Kentucky, 476 U.S. 79 (1986).

peremptory challenges based on gender. 511 U.S. 127, 129 (1994). A successful Batson

challenge requires a defendant to “establish a prima facie case by producing evidence

sufficient to support the inference that the prosecutor exercised peremptory challenges on

the basis of race [or sex].” King v. Warden, Ga. Diagnostic Prison, 69 F.4th 856, 868 (11th

Cir. 2023). “[T]he mere fact of striking a juror or a set of jurors of a particular [gender]

does not necessarily create an inference of [gender] discrimination.” Cent. Ala. Fair Hous.

Ctr., Inc. v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir. 2000). “The number of

persons of a particular [gender] struck takes on meaning only when coupled with other

information such as the [gender] composition of the venire, the [gender] of others struck,

or the voir dire answers of those who were struck compared to the answers of those who

were not struck.” Id. at 636-37.

Ms. Lewis argues that counsel should have “object[ed] to an all-male jury.” (Doc.

1-1 at 15). But a successful Batson challenge requires “more than the bare fact of the

removal of certain venire persons and the absence of an obvious valid reason for the

removal.” United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990). Other than the

fact that her jury consisted of six men and one female alternate, Ms. Lewis cites no evidence

“that the prosecutor exercised peremptory challenges on the basis of” sex. King, 69 F.4th

at 868. Indeed, she does not even identify which peremptory strikes were the result of

gender discrimination, nor does she explain how any particular strike was motivated by

gender. See Wooten v. Lewis, No. 1:19-cv-46-CDP, 2022 WL 558085, at *8 (E.D. Mo. Feb.

24, 2022) (“Because [petitioner] does not identify which jurors were struck solely on

account of their gender, nor make a prima facie showing of discrimination, he fails to show

that any challenge to the State’s use of peremptory strikes would have been successful.”).

Absent any evidence of discriminatory motive, Ms. Lewis fails to rebut the “strong

presumption” that counsel acted “reasonabl[y]” in forgoing a Batson challenge. Chandler

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

Ms. Lewis also fails to establish prejudice. “Although a successful Batson claim

requires automatic reversal on direct appeal, the same is not true on collateral review.”

Price v. Sec’y, Fla. Dep’t of Corr., 548 F. App’x 573, 576 (11th Cir. 2013) (citation

omitted). “[A] petitioner seeking habeas relief on a claim that his trial counsel rendered

ineffective assistance in failing to raise an equal protection objection during voir dire

cannot succeed on that claim unless he can demonstrate that the outcome of his trial was

affected by the equal protection violation.” Eagle v. Linahan, 279 F.3d 926, 943 n.22 (11th

Cir. 2001) (citing Jackson v. Herring, 42 F.3d 1350, 1362 (11th Cir. 1995)). Therefore,

Ms. Lewis must show that the inclusion of more female jurors “would have carried a

reasonable probability of changing the outcome of the trial.” Sneed v. Fla. Dep’t of Corr.,

496 F. App’x 20, 27 (11th Cir. 2012); see also Curry v. Sec’y, Fla. Dep’t of Corr., No.

3:16-cv-1487-TJC-MCR, 2019 WL 5549142, at *16 (M.D. Fla. Oct. 28, 2019) (no

prejudice from failure to raise Batson challenge because petitioner did not show “a

reasonable probability that had [a female juror] served on his jury, the outcome of his trial

would have been different”); Robinson v. Sec’y, Dep’t of Corr., No. 5:10-cv-193-RS-GRJ,

2013 WL 5345348, at *13 (N.D. Fla. Sept. 24, 2013) (“To establish prejudice for counsel’s

failure to assert a Batson challenge to the peremptory strike, Petitioner must show that, had

counsel objected, his challenge would have been successful and the inclusion of the juror

on his jury would have carried a reasonable probability of changing the outcome of the

trial.”).

Ms. Lewis fails to establish Strickland prejudice. There is no evidence “that [a

female] juror would have seen the evidence any differently than the [male] jurors seated

on the jury.” Price, 548 F. App’x at 576. Gender did not play a significant role in the trial.

As explained above, the central question for the jury was whether Ms. Lewis accidentally

shot Mr. Cutson. Ms. Lewis offers no reason to think that gender influenced the jury’s

consideration of this issue.6 To be sure, the victim in this case was a man, and Ms. Lewis

is a woman. “But that alone does not establish that there is a reasonable probability of a

different result sufficient to undermine . . . confidence in the outcome of this case.” Id.; see

also Tyler v. Sec’y, Dep’t of Corr., No. 2:24-cv-363-JLB-NPM, 2025 WL 2604534, at *11

(M.D. Fla. Sept. 9, 2025) (no prejudice from failure to raise Batson claim even though “the

victim in this case was Hispanic and Petitioner is black,” because “race did not play a

significant role at trial”). Ms. Lewis’s “only argument [appears to be] that a more [gender]

balanced jury would have been less likely to convict [her].” Wilson v. Sec’y, Fla. Dep’t of

Corr., 786 F. App’x 878, 881 (11th Cir. 2019). “This conclusory argument falls short of

showing a substantial likelihood of a different result.” Id.

IV. Conclusion

Accordingly, the Court ORDERS:

6 Ms. Lewis did not claim self-defense, and she told law enforcement that there was no “physical fighting”

or “struggl[e]” before the shooting. (Doc. 14-2, Ex. 7, at 548-49). Moreover, Ms. Lewis testified at trial that

she “loved [Mr. Cutson] very much,” and that he loved her. (Id. at 787).

1. Ms. Lewis’s petition (Doc. 1) is DENIED.

2. The CLERK is directed to enter judgment against Ms. Lewis and to CLOSE this

case.

3. Ms. Lewis is not entitled to a certificate of appealability. A prisoner seeking a writ

of habeas corpus has no absolute entitlement to appeal a district court’s denial of

her petition. 28 U.S.C. § 2253(c)(1). “A certificate of appealability may issue...

only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, Ms. Lewis

must show that reasonable jurists would find debatable both the merits of the

underlying claims and the procedural issues she seeks to raise. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Ms. Lewis has not made the requisite showing.

Because Ms. Lewis is not entitled to a certificate of appealability, she is not entitled

to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, on March 13, 2026.

wn ey

UNITED STATES DISTRICT JUDGE

16