The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PAUL DUROUSSEAU,
Petitioner,
v. Case No. 3:22-cv-1356-JEP-PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_____________________________________
ORDER
THIS CAUSE is before the Court on Petitioner’s counseled Petition for
a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (“Petition,” Doc. 1),
Respondent’s Response to the Petition (Doc. 9), and Petitioner’s Reply (Doc. 12)
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
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
I. PROCEDURAL HISTORY
On June 19, 2003, Paul Durousseau (“Durousseau”) was indicted in
Duval County Circuit Court case number 2003-CF-66863 for the first-degree
murders of Nichole Lashawn Williams, Nikia Shannell Kilpatrick
(“Kilpatrick”), Shawanda Denise McCallister (“McCallister”), Jovanna
Tyrica Jefferson, and Surita Ann Cohen.4 (See Doc. 10-34 at 4–5). On
September 4, 2003, Durousseau was indicted in Duval County Circuit Court
case number 2003-CF-10182 for the first-degree murder of Tyresa Mack
(“Mack”). (Doc. 10-2; Doc. 10-34 at 6).
Durousseau’s trial for Mack’s murder commenced on May 23, 2007,
during which the State introduced collateral crime evidence regarding
Kilpatrick’s and McCallister’s murders. (See Doc. 10-4). On June 8, 2007, the
jury found Durousseau guilty as charged of Mack’s murder, and found that the
killing was both premeditated and done during the commission of sexual
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).
4 The indictment also included two counts of aggravated child abuse. (See Doc.
10-34 at 4–5).
2
battery and robbery. (Doc. 10-32 at 327; see also Docs. 10-4, 10-5, 10-6, 10-7,
10-8, 10-9, 10-10, 10-11, 10-12, 10-13, 10-14, 10-15, 10-16, 10-17). On June 28,
2007, the jury recommended a death sentence by a vote of ten-to-two, which
the trial court adopted on December 13, 2007. (Doc. 10-3; see also Docs. 10-17,
10-18, 10-19, 10-20, 10-21; Docs. 1695, 1696 in No. 2003-CF-10182).
Durousseau appealed his conviction and death sentence. (See Docs. 10-
22, 10-23, 10-24; Docs. 1722, 1725 in No. 2003-CF-10182). After hearing oral
argument on February 10, 2010, the Florida Supreme Court affirmed
Durousseau’s conviction and death sentence in a written opinion on December
9, 2010, denied Durousseau’s motion for rehearing on February 21, 2011, and
issued the mandate on March 9, 2011. See Durousseau v. State, 55 So. 3d 543
(Fla. 2010), cert. denied, Durousseau v. Florida, 565 U.S. 839 (2011).
On October 1, 2012, Durousseau filed a motion for postconviction relief
under Florida Rules of Criminal Procedure 3.850 and 3.851. (Doc. 1769 in No.
2003-CF-10182). After an evidentiary hearing on April 9–10, 2015, the trial
court denied the motion on June 26, 2015. (Docs. 1815, 1921, 1922, 1931 in No.
2003-CF-10182). While Durousseau’s appeal of the denial was pending, the
United States Supreme Court decided Hurst v. Florida, 577 U.S. 92 (2016),
holding that Florida’s death penalty sentencing statute violated the Sixth
Amendment. (See Docs. 10-25, 10-26, 10-27; Doc. 1940 in No. 2003-CF-10182).
3
After receiving supplemental briefs on the impact of Hurst, on January 31,
2017, the Florida Supreme Court affirmed the trial court’s denial of
postconviction relief on the ineffective assistance of counsel claims, but vacated
Durousseau’s death sentence as unconstitutional under Hurst and remanded
for a new penalty phase. See Durousseau v. State, 218 So. 3d 405 (Fla. 2017).
On May 5, 2017, the Florida Supreme Court denied Durousseau’s motion for
rehearing, and issued the mandate on May 22, 2017. (Doc. 10-30).
Before the new penalty phase, on October 4, 2019, the trial court granted
Durousseau’s motion to prohibit the admissibility of evidence of other crimes,
wrongs, or acts during the penalty phase. (See Doc. 11-1; Doc. 2299 in No. 2003-
CF-10182). The court explained:
The Court finds the evidence the State seeks to introduce of other
crimes, wrongs or acts is relevant to proving the [Cold, Calculated,
and Premeditated] aggravator, Pecuniary Gain aggravator, and to
rebut mental mitigation of limited cognitive functioning. The
crimes are substantially similar to, and exhibit unique
characteristics of, the instant offense. Further, there is nothing to
suggest the passage of time between, and the order of, the crimes
had any effect on the reliability of the evidence. However, the
Court finds the evidence’s probative value is substantially
outweighed by the danger of unfair prejudice to [Durousseau].
(Doc. 11-1 at 2). The State appealed the ruling by filing an amended petition
for writ of certiorari on October 17, 2019, which the Florida Supreme Court
4
denied on December 28, 2020.5 See State v. Durousseau, No. SC20-297, 2020
WL 7693135 (Fla. Dec. 28, 2020); (Docs. 10-31, 10-33, 10-35). After a new
penalty phase, on December 10, 2021, the trial court resentenced Durousseau
to life in prison without the possibility of parole. (See Doc. 11-2; Doc. 2565 in
No. 2003-CF-10182). Durousseau timely filed his Petition in this Court. (Doc.
1).
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).
5 The petition was originally filed in Florida’s First District Court of Appeal,
which transferred it to the Florida Supreme Court on February 28, 2020. (See Doc.
10-31).
5
“[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
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.”6 Id. (quotation omitted).
6 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
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.
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
7
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
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
8
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
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.
9
III. DISCUSSION
As Ground One, Durousseau alleges the trial court violated his Fifth and
Fourteenth Amendment due process rights by allowing the State to introduce
collateral crime evidence related to Kilpatrick’s and McCallister’s murders, for
which he had not been tried or convicted. (Doc. 1 at 10). Durousseau argues
the collateral crime evidence so infected his trial that it rose to a level of
fundamental unfairness and violation of due process because of the
combination of the following factors: (1) the lack of evidence, other than
collateral crime evidence, to obtain a conviction in the Mack case; (2) the State’s
failure to show, by clear and convincing evidence, that Durousseau was
responsible for Kilpatrick’s and McCallister’s murders; and (3) that the
collateral crime evidence became a central feature of the Mack trial. (Id. at 11).
Durousseau raised similar claims in his amended initial brief and reply
brief before the Florida Supreme Court, which rejected his claims and affirmed
his conviction and death sentence in a written opinion. See Durousseau, 55 So.
3d at 548–50. Significantly, Durousseau’s state court briefs raised these claims
only in the context of state law. (See Docs. 10-22, 10-24). He 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
10
nature of his claims, he deprived the Florida Supreme Court of a meaningful
opportunity to review them. See Baldwin, 541 U.S. at 29.
Durousseau now argues that “by the time the Florida Supreme Court’s
decision was issued, due process had been substantively discussed by both the
State and the defense, and by justices from both the majority and [the] dissent”
during the oral argument. (Doc. 12 at 7; see also id. at 3–4 (citing to excerpts
from the oral argument available at
https://wfsu.org/gavel2gavel/viewcase.php?eid=58 (last visited Mar. 4, 2026)).
According to Durousseau, “[e]xhaustion is satisfied by those actions,
irrespective of how [his] counsel initially presented the issue in [the state court]
briefing.” (Doc. 12 at 7–8). In presenting this argument, Durousseau cites to
Justice Pariente’s dissenting opinion, asserting that there was a due process
violation in the Mack case. See Durousseau, 55 So. 3d at 566 (Pariente, J.,
dissenting) (Quince, J., concurring with the dissent) (“Allowing a trial court to
admit collateral crime evidence solely on the basis of the similarity of the
crimes makes it possible to admit the evidence without first connecting the
defendant to the collateral crime through the presentation of clear and
convincing evidence—a violation of our case law and due process.” (emphasis
added)).
11
The Court finds that Durousseau did not exhaust his federal due process
claim. First, it is undisputed that neither his amended initial brief nor his reply
brief filed with the Florida Supreme Court alleged a violation of his federal
constitutional rights. (See Docs. 10-22, 10-24). Moreover, Durousseau never
attempted to amend or supplement his state court briefs to add a federal due
process claim. As such, the Florida Supreme Court’s written opinion
understandably rests only on state law grounds. See 55 So. 3d 543. It is true
that counsel and three of the justices mentioned “due process” several times
during the oral argument,7 but those references did not put the state court on
notice that Durousseau intended to bring a federal due process claim, which is
plainly confirmed by both the majority and dissenting opinions. See id.
When the substance of a claim is identical under state and federal law,
a petitioner is required to put the state court on notice that his claim rests on
a federal legal theory. See Duncan v. Henry, 513 U.S. 364, 365–66 (1995);
Pringle v. Sec’y, Fla. Dep’t of Corrs., No. 21-14318, 2024 WL 3936915, *7–8
7 During the one-hour-and-six-minutes oral argument, due process was
mentioned: four times by Justice Pariente (at 8, 33, 37, and 40 minutes); once by
Justice Canady (at 37 minutes); once by Justice Quince (at 38 minutes); once by
Durousseau’s counsel (at 18 minutes); and twice by the State (at 59 and 60 minutes).
There were also references to “bootstrapping” made by Durousseau’s counsel and
Justice Pariente during the oral argument, as well as in Justice Pariente’s dissenting
opinion. See Durousseau, 55 So. 3d at 564, 566.
12
(11th Cir. 2024)8 (finding that Duncan “forecloses Pringle’s argument that the
coextensive nature of the due process guarantees under the United States and
Florida Constitutions alerted the state courts to the federal and state nature
of her faulty jury instructions claim,” and explaining that “petitioners must
apprise the state courts of the federal nature of their claim, even if they present
the substance of a federal claim”); see also Preston v. Sec’y, Fla. Dep’t of Corrs.,
785 F.3d 449, 458 (11th Cir. 2015) (stating that “a petitioner with a claim that
could arise under either state or federal law must clearly indicate to the state
courts that he intends to bring a federal claim”). “If a habeas petitioner wishes
to claim that an evidentiary ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.” Duncan, 513 U.S. at 366. “It is not
enough that all the facts necessary to support the federal claim were before the
state courts, . . . or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4, 6 (1982). “Thus, to exhaust state remedies
fully the petitioner must make the state court aware that the claims asserted
present federal constitutional issues.” Snowden v. Singletary, 135 F.3d 732,
735 (11th Cir. 1998).
8 Any unpublished decisions cited in this Order are deemed persuasive
authority on the relevant point of law. See McNamara v. GEICO, 30 F.4th 1055, 1061
(11th Cir. 2022).
13
Durousseau did not assert in his state court briefs or even during the
oral argument that he intended to raise a federal claim, he did not mention
any federal constitutional provision, and he did not cite any federal case. Thus,
the Court finds that Durousseau failed to exhaust his state court remedies. See
Preston, 785 F.3d at 458–59 & n.6 (holding that a petitioner failed to exhaust
his state court remedies when he never asserted in state court briefing that he
intended to raise a federal claim, did not cite any federal cases or mention any
federal constitutional provision, and did not reference the case setting out the
applicable federal legal standard for his claim, even though at oral argument
his counsel “suggested for the first time that [the petitioner had] couched his
motion for judgment of acquittal before the trial court in terms of federal due
process”); see also Johnson v. Florida, 32 F.4th 1092, 1096–97 (11th Cir. 2022)
(finding that a petitioner failed to exhaust his state court remedies when he
grounded his speedy-trial claim on state law and never cited the Sixth
Amendment except in a motion to proceed pro se); Pringle, 2024 WL 3936915,
at *5 (“Pringle’s state court briefing referenced ‘the Constitution or the laws of
the United States’ but otherwise presented the jury instruction claim as
involving state law alone. This is insufficient to fairly present a federal claim
to the state courts.”).
14
Durousseau’s “failure to exhaust means that his federal claim has been
procedurally defaulted.” Preston, 785 F.3d at 462. Further, Durousseau has
not shown cause and prejudice, or any factor warranting the application of the
fundamental miscarriage of justice exception to overcome the procedural
default. Harris v. Reed, 489 U.S. 255, 262 (1989). Therefore, his claims in
Ground One must be denied as unexhausted and procedurally defaulted.
Nevertheless, even if the claims in Ground One were not procedurally
defaulted, they would still be denied for the reasons stated below. In a written
opinion, the Florida Supreme Court rejected Durousseau’s claims on the
merits. Durousseau, 55 So. 3d at 550–56. First, the Florida Supreme Court
summarized the pertinent facts and procedural history as follows:
On July 26, 1999, between the hours of 9:30 a.m. and 1 p.m., Mack
and a friend applied for employment at various business
establishments. Eyewitnesses placed Durousseau at Mack’s
Jacksonville apartment sometime between noon and 2 p.m. One of
the eyewitnesses saw Durousseau carrying a television out of the
apartment and watched as he placed it in his car. The last time
anyone heard from Mack was around 1:25 p.m. that afternoon
when Mack spoke with a friend on the phone. Mack did not pick
her children up from daycare that day and missed a 3 p.m. doctor’s
appointment for her youngest child. Around 7 p.m. that same
evening, Mack’s sister and her stepfather went to Mack’s
apartment in an attempt to locate her. At that time, they
discovered Mack’s body, lying in a semi-fetal position on the bed.
Her body was nude from the waist down and a white cord was
wrapped around her neck. The living room television and a “X’s
and O’s” necklace and bracelet set that Mack always wore were
missing. Durousseau’s DNA was found in Mack’s vagina and the
medical examiner concluded that Mack died from asphyxia.
15
On June 23, 2003, Durousseau was indicted on five counts of first-
degree murder for the murders of Nichole Williams, Nikia
Kilpatrick, Shawanda McCallister, Jovanna Jefferson, and Surita
Cohen. The similar methodology employed by the perpetrator, as
well as DNA evidence from each crime scene, caused investigators
to conclude that Mack was one of Durousseau’s victims. On August
26, 2003, Durousseau was arrested for the murder of Mack. While
in the booking area, Detective Rodney McKean informed
Durousseau that he was being formally charged with the murder
of Mack. Durousseau stated, “I don’t know no [Tyresa] Mack.”
When the police informed him that Mack had been murdered on
Florida Avenue, Durousseau responded, “I don’t know that girl.”
On September 4, 2003, Durousseau was charged, by separate
indictment, with the murder of Mack. The trial court permitted the
State to introduce Williams[1] rule evidence of the Kilpatrick and
McCallister murders. At the close of the State’s evidence,
Durousseau moved for judgment of acquittal, which was denied.
On June 8, 2007, the jury found Durousseau guilty of first-degree
murder.
FN1: Williams v. State, 110 So. 2d 654 (Fla. 1959).
During the penalty phase, the State alleged the existence of four
aggravators: (1) Durousseau was previously convicted of a felony
involving the use or threat of violence, (2) the murder was
committed while the defendant was engaged in the commission of
a robbery or sexual battery, (3) the murder was committed for
pecuniary gain, and (4) the murder was especially heinous,
atrocious, or cruel (HAC). Durousseau asserted the existence of the
following statutory mitigating circumstances: (1) Durousseau’s
capacity to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law was substantially
impaired at the time he committed the murder, and (2)
Durousseau suffered from an extreme mental or emotional
disturbance at the time of the murder. He presented two mental
health experts and seventeen lay witnesses. Durousseau also
presented evidence of seventeen non-statutory mitigators.
16
. . . . The trial court gave great weight to the jury recommendation
of death and concluded that the aggravating circumstances
outweighed the mitigating circumstances. Accordingly, the trial
court sentenced Durousseau to death. . . .
Durousseau, 55 So. 3d at 548–50.
Then, the Florida Supreme Court addressed and rejected Durousseau’s
claim that the trial court abused its discretion in admitting the Williams-rule
evidence. Id. at 550–51. The court explained:
First, we conclude that the collateral crime evidence established
that Durousseau committed substantially similar crimes on two
other occasions, which was relevant to several material issues,
including identity and premeditation. The Williams rule evidence
was clearly relevant given Durousseau’s theory of defense that an
unknown person entered Mack’s apartment and killed her almost
immediately after she engaged in consensual intercourse with
Durousseau.
Second, we hold that the collateral crime evidence did exhibit
unique similarities that established a modus operandi sufficient
for proving identity. . . . In the instant case, there are identifiable
points of similarity that pervade the compared factual situations.
The facts in the charged crime and collateral crimes established
that each victim was a young, black woman of similar stature,7
who either had young children, was pregnant, or both.8 Each
victim was found partially nude from the waist down in or near
her bedroom with a home-use cord wrapped around her neck. The
cause of death in each homicide was asphyxiation. Durousseau’s
DNA was found inside of, or near, each victim’s person, although
his fingerprints were not found at any of the crime scenes. Each
victim lived along the St. Johns River and their apartments were
within a five-mile radius of each other.
FN7: Mack was twenty-four years old and had short,
curly black hair, was five feet four inches tall and 122
pounds. Kilpatrick was twenty years old, had short,
17
curly black hair, was five feet five inches tall and
weighed 145 pounds. McCallister was twenty years
old, had short, curly black hair, was five feet five
inches tall and weighed 161 pounds.
FN8: Mack was not pregnant and lived with her three
young children. Kilpatrick was pregnant and lived
with her two young children. McCallister was
pregnant.
Durousseau contends that those similarities are merely general in
nature and claims that there was much dissimilarity at each crime
scene. Durousseau notes that the cords found around each of the
victims’ necks were different and had been tied or draped around
each victim’s neck in a different manner. He also claims that each
victim’s body exhibited different physical trauma. However, “[t]his
Court has never required the collateral crime to be absolutely
identical to the crime charged.” Gore v. State, 599 So.2d 978, 984
(Fla. 1992). Dissimilarities are not fatal when they “seem to be a
result of differences in the opportunities with which [the
defendant] was presented, rather than differences in modus
operandi.” Id.; see Chandler v. State, 442 So. 2d 171, 173 (Fla.
1983). A review of the record makes clear that the dissimilarities
between the crimes, as alleged by Durousseau, are merely
differences in opportunity. The different ligatures used in each
homicide do not amount to dissimilarity, as suggested by
Durousseau. It is not the difference of the home-use cord type, but
his employment of the same tactic to obtain a murder weapon in
each case that makes the home-use cords a similarity. Each victim
appeared to have been bound or restrained in some way. Mack’s
arms exhibited indentations consistent with ligature bindings.
Kilpatrick’s arms and legs exhibited indentations consistent with
ligature bindings, but, due to the level of decomposition, the
medical examiner was unable to determine whether ligatures had
in fact been used. McCallister’s feet were bound, a belt had been
wrapped around her wrist, and her arms exhibited marks
consistent with having been bound. Additionally, appliance cords
were missing from several of the crime scenes. The presence of
indentations on each victim and the absence of the cords points to
a similarity, rather than a dissimilarity. Further, each victim
18
sustained different types of trauma, which indicates that each
victim may have reacted or fought back in a different manner.9
Thus, the dissimilarities cited by Durousseau are more correctly
categorized as differences in the opportunities presented to
Durousseau.
FN9: Mack suffered from abrasions to her face. The
medical examiner opined that such abrasions were
consistent with her face moving back and forth across
a towel that was found beneath her head. Kilpatrick
suffered from blunt force trauma to the head.
Additionally, Durousseau alleges that the charged and collateral
crimes are too remote in time because Kilpatrick and McCallister
were killed three and one-half years after Mack. “[R]emoteness of
a prior crime is one aspect of its relevance, its tendency to prove or
disprove a material fact in issue.” Duffey v. State, 741 So. 2d 1192,
1197 (Fla. 4th DCA 1999) (citing McGough v. State, 302 So. 2d 751,
754 (Fla. 1974)); see Williams, 110 So. 2d at 662; Griswold v. State,
77 Fla. 505, 82 So. 44, 49 (1919); § 90.401, Fla. Stat. (1997). In such
an instance, “the trial court must consider not the passage of time
alone, but the effect of the passage of time on the evidence . . . . [It]
precludes the use of evidence that has become unverifiable.”
Duffey, 741 So. 2d at 1197 (quoting Heuring v. State, 513 So. 2d
122, 123 (Fla. 1987)). “[T]he trial court should take into account
that the ‘absence of similar conduct for an extensive period of time
which might suggest that the conduct has ceased to be a
characteristic of the defendant.’” Duffey, 741 So. 2d at 1197
(quoting Heuring, 513 So. 2d at 124). This Court has upheld the
admission of similar fact evidence occurring twenty years before
the charged offenses where “the passage of time . . . did not affect
the reliability of the evidence.” Heuring, 513 So. 2d at 124. In the
case at bar, there is nothing to suggest that the passage of a little
over three years affected the reliability of the evidence. See, e.g.,
Burke v. State, 835 So. 2d 286, 289 (Fla. 5th DCA 2002) (ruling
that the passage of twenty-two years did not taint the evidence nor
prejudice the defendant). Nor is there any indication that the
conduct ceased to be a characteristic of Durousseau.
19
Next, we conclude that the probative value of the collateral crime
evidence substantially outweighed any danger of unfair prejudice.
Relevant similar fact evidence that is admissible under section
90.404(2) is subject to the requirements of section 90.403, Florida
Statutes (1999). Such evidence is inadmissible “if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury, or needless
presentation of cumulative evidence.” § 90.403, Fla. Stat. (1999).
Most evidence that is admitted will have a prejudicial or damaging
effect to the party against whom it is offered. See Wuornos v. State,
644 So. 2d 1000, 1007 (Fla. 1994). “The real question is whether
that prejudice is so unfair that it should be deemed unlawful.” Id.
The probative value of collateral crime evidence in the instant case
comes from the fact that the collateral crimes were committed with
a unique modus operandi that was the same as that used in the
crime in question; therefore, it may be inferred that the same
person committed both crimes. In determining whether the
probative value is substantially outweighed by unfair prejudice,
the court should consider the effectiveness of the cautionary
instruction. Bennett v. State, 593 So. 2d 1069 (Fla. 1st DCA) (citing
United States v. Clemons, 676 F.2d 122 (5th Cir. 1982)), quashed
on other grounds, 599 So. 2d 997 (Fla. 1992).
In the instant case, the trial court provided the jury with a limiting
instruction as to the proper purpose of the collateral crime
evidence prior to the State’s introduction of the collateral crime
evidence. The trial court instructed the jury as to the proper
purpose of the evidence:
THE COURT: Members of the jury, before this witness
begins her testimony the evidence you are about to
receive concerning evidence of other crimes allegedly
committed by the defendant will be considered by you
for the limited purpose of proving motive, intent,
identity, or the absence of mistake or accident on the
part of the defendant and you shall consider it only as
it relates to those issues. Let’s proceed.
At the close of the evidence, a similar limiting instruction must be
given. See § 90.404(2)(b)2, Fla. Stat. (1999); McLean v. State, 934
20
So. 2d 1248 (Fla. 2006). Here, at the close of all of the evidence, the
trial court did provide a similar instruction:
THE COURT: As to the killing of Nikia Kilpatrick, the
evidence which has been admitted to show similar
crimes, wrongs, or acts allegedly committed by the
defendant will be considered by you only as that
evidence relates to proof of motive, intent, identity, or
the absence of mistake or accident on the part of the
defendant.
As to the killing of Shawanda McCallister, the
evidence which has been admitted to show similar
crimes, wrongs, or acts allegedly committed by the
defendant will be considered by you only as that
evidence relates to proof of intent, identity, or the
absence of mistake or accident on the part of the
defendant.
When collateral crime evidence is introduced, the trial court need
only instruct the jury at the time of admission, if so requested, and
after the close of the evidence. Rivers v. State, 425 So. 2d 101, 102
(Fla. 1st DCA 1982). Here the trial court did both.
As to Durousseau’s fourth claim, we hold that the collateral crime
evidence did not become an impermissible feature of the trial.
Durousseau argues that the collateral crime evidence became an
impermissible feature of the trial because the presentation of the
collateral crime evidence composed two-thirds of the trial.
Allowing the collateral crime evidence to become an overwhelming
feature of the trial is reversible error. Bush v. State, 690 So. 2d
670, 673 (Fla. 1st DCA 1997). However, this Court has stated that
“collateral crime evidence does not become an impermissible
feature of the trial simply because it is voluminous.” Peterson v.
State, 2 So. 3d 146, 156 (Fla. 2009) (citing Townsend v. State, 420
So. 2d 615 (Fla. 4th DCA 1982)). In the instant case, the State
introduced collateral crime evidence of the Kilpatrick and
McCallister murders to prove identity. Out of the six murders for
which Durousseau had been indicted, the State limited the
collateral crime evidence to only the Kilpatrick and McCallister
21
murders in order to “(1) facilitate more streamlined discovery and
a quicker, more efficient trial and (2) to avoid similar crime
evidence becoming a feature of the trial.” Additionally, the trial
court gave a limiting instruction to the jury as to the proper
purpose of the evidence prior to its admission and at the close of
the evidence as required under section 90.404(2)(c)2. At trial, the
State presented testimony from only one medical examiner, one
serologist,10 and one detective regarding the Mack, Kilpatrick, and
McCallister murders. Throughout the three-week trial, eight lay
witnesses testified over a period of only one day regarding
Kilpatrick’s murder. In addition, over a period of one-and-one-half
days, eight witnesses testified regarding the McCallister murder.
Approximately three hundred exhibits were placed into evidence
throughout the trial. The State introduced approximately thirty-
eight photographs from McCallister’s case and approximately
fourteen photographs from Kilpatrick’s case. These photos were all
introduced to show similarities between the crime scenes. Thus,
the trial court did not allow the similar fact evidence to become an
impermissible feature of the trial.
FN10: Although several serologists presented
testimony, only one testified regarding the victims.
The other serologists presented evidence regarding the
defendant’s DNA.
Last, Durousseau contends that the trial court erred in failing to
provide a special instruction to the jury as requested by defense
counsel. Durousseau argues that the failure to do so led to juror
confusion because the standard instruction did not distinguish
between the burden of proof for the primary crime and collateral
crimes. He also asserts that juror confusion resulted because the
standard instruction did not make it clear whether the jury had to
find that Durousseau actually committed the collateral crimes. We
disagree. The decision to provide a particular instruction to the
jury is within the discretion of the trial court. Duest v. State, 855
So. 2d 33, 41 (Fla. 2003) (citing Card v. State, 803 So. 2d 613, 624
(Fla. 2001)). “Weighing the evidence is the sole prerogative of the
jury and the trial court should give an instruction without
weighing the evidence.” Cruz v. State, 971 So. 2d 178, 182 (Fla. 5th
DCA 2007) (citing Mathews v. State, 799 So. 2d 265, 266 (Fla. 1st
22
DCA 2001)). When collateral crime evidence is introduced, the trial
court need only instruct the jury at the time of admission, if so
requested, and after the close of the evidence. Rivers, 425 So. 2d at
102. Here the trial court did both. “[T]o be entitled to a special jury
instruction, [the defendant] must prove that: (1) the special
instruction [is] supported by the evidence; (2) the standard
instruction [does] not adequately cover the theory of defense; and
(3) the special instruction [is] a correct statement of the law and
not misleading or confusing.” Wheeler v. State, 4 So. 3d 599, 605
(Fla. 2009) (second alteration in original) (quoting Stephens v.
State, 787 So. 2d 747, 756 (Fla. 2001)). The trial court’s limiting
instructions prior to the presentation of the evidence and at the
close of the evidence precluded any juror confusion that could have
resulted from admission of the collateral crime evidence. The
jurors were aware that the collateral crimes were admitted for the
limited purposes of identity or premeditation. Once admitted,
Williams rule evidence is treated like any other evidence that the
jury may accept or reject. Thus, the trial court did not err in failing
to instruct the jury that they had to find Durousseau committed
the collateral crimes. Accordingly, we hold that the trial court did
not abuse its discretion in admitting the Williams rule evidence.
Durousseau, 55 So. 3d at 551–56 (internal citations modified or omitted).
Under the deferential standard for federal court review of state court
adjudications and upon thorough review of the record and the applicable law,
the Florida Supreme Court’s adjudication of Durousseau’s claims 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
28 U.S.C. § 2254(d). Contrary to Durousseau’s position, the use of collateral
crime evidence did not become an impermissible feature of the Mack trial;
23
there was sufficient evidence, even without the collateral crime evidence, to
support Durousseau’s conviction for first-degree murder; and the State
sufficiently showed that Durousseau was responsible for the two collateral
crimes.9 During the guilt phase, the State presented eighteen witnesses10
pertaining to Mack’s murder; twelve witnesses11 pertaining to Kilpatrick’s
murder, two of which also testified pertaining to Mack’s murder (Sheree
Enfinger and Margarita Arruza) and five of which also testified pertaining to
McCallister’s murder (David Smith, Gregory Brock, Larry Denton, Martin
Tracey, and Margarita Arruza); and twelve witnesses12 pertaining to
McCallister’s murder. (See Docs. 10-4, 10-5, 10-6, 10-7, 10-8, 10-9, 10-10, 10-
9 When the Florida Supreme Court concluded that “the collateral crime
evidence established that Durousseau committed substantially similar crimes on two
other occasions,” it noted that “[f]ederal caselaw employs an even lesser burden for
the admission of collateral crime evidence.” 55 So. 3d at 551 & n.6. Specifically, in a
federal criminal case, the trial court “is not required to weigh credibility or make a
finding that the government has proved the conditional fact,” but rather, “the court
examines all of the evidence and decides whether the jury could reasonably find by a
preponderance of the evidence that the defendant committed the crime in question.
Id. at n.6 (citations omitted).
10 These witnesses were Sharabia Mack, Mike Laforte, Nicole Jackson, Tezalyn
McFadden, Danielle Wallace, Joy Williams, Rufus Pinkney, Herb Brinson, Rodney
McKean, Glenn Simpson, Jerome Chester, Katie Erdman, John Crawford, Sonya
Core, Charles Coughlin, Sukhan Warf, Sheree Enfinger, and Margarita Arruza.
11 These witnesses were Sara Anthony, John Frascello, Rhonda Sherrer, Larry
Brown, Shantrell Green, Natoca Durousseau, David Smith, Gregory Brock, Larry
Denton, Sheree Enfinger, Martin Tracey, and Margarita Arruza.
12 These witnesses were Shaquita Jones, Rasheed Topey, Christy Conn,
William Lake, Lanita Hicks, Darryl Lemon, David Smith, Kimberly Barron, Gregory
Brock, Larry Denton, Martin Tracey, and Margarita Arruza.
24
11). Some of these witnesses were also called by the defense, including Sukhan
Warf, Rasheed Topey, Shaquita Jones, David Smith, Rodney McKean, Sara
Anthony, and Sharabia Mack.13 (See Docs. 10-12, 10-13, 10-14, 10-15).
Durousseau argues that the collateral crime evidence became an
impermissible feature of the Mack trial because it composed two-thirds of the
trial. But, as the Florida Supreme Court noted, “collateral crime evidence does
not become an impermissible feature of the trial simply because it is
voluminous.” Peterson, 2 So. 3d at 156 (citation omitted)). Considering that two
collateral murders were involved, much of the “testimony was unavoidable.”
Conde v. State, 860 So. 2d 930, 946–47 (Fla. 2003) (affirming the introduction
of evidence regarding five collateral murders presented over the course of three
days in the prosecution of a sixth murder); see also Peterson, 2 So. 3d at 156
(affirming the introduction of evidence regarding three collateral robberies,
which were “sufficiently similar to the charged crime to be probative of
identity,” and noting that while many of the witnesses testified briefly, “much
13 The following additional witnesses were called by the defense: Timothy Look,
Kathleen Baker, Milton Bowles, Adam Moss, Latasha Bell, Lamar Odom, Scott
Johnson, Easley Lamar Baker, Michelle Royal, Trevonda Porter, and Kevin
Noppinger (pertaining to Mack’s murder); Ivory Durham, Derrick Lewis, Richard
Kocik, and Jennifer Facey-Simms (pertaining to Kilpatrick’s murder); Victoria Topey,
Robin Todd, Julia Torjusen, Andrew Ewing, LaGloria Bronner, Deborah King,
William Bothe, Robert Pate, Kevin Haines, and Mark Gillette (pertaining to
McCallister’s murder); and Larry Brown, Stanton Kessler, and Petitioner
Durousseau (pertaining to all three murders). (See Docs. 10-12, 10-13, 10-14, 10-15).
25
of the testimony was unavoidable due to the number of robberies involved”);
Wuornos, 644 So. 2d at 1006 (finding that evidence of five collateral murders
was not “needless ‘overkill’” where it was relevant to refute the defendant’s
claim of self-defense (quoting United States v. Beechum, 582 F.2d 898 (5th Cir.
1978)14)). Also, it appears the State compressed its presentation of the
collateral crime evidence by calling six lay witnesses15 to testify on a single day
(May 25, 2007) regarding Kilpatrick’s murder, and seven lay witnesses16 to
testify on the next court date (May 29, 2007) regarding McCallister’s murder.
(See Docs. 10-6, 10-7, 10-8). Importantly, the trial court repeatedly instructed
the jury regarding the proper purpose of the Williams-rule evidence. (See Doc.
10-6 at 111 (a Williams-rule instruction before the first witness, Sara Anthony,
testified regarding Kilpatrick’s murder); Doc. 10-7 at 80 (a Williams-rule
instruction before the first witness, Shaquita Jones, testified regarding
McCallister’s murder); Doc. 10-16 at 191–92 (a Williams-rule instruction
before the jury deliberations began)). Accordingly, when the presentation of
14 All Fifth Circuit decisions entered before October 1, 1981 were adopted by
the Eleventh Circuit as binding precedent. Bonner v. Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
15 The other two witnesses from that day testified regarding Mack’s murder
(Sonya Core) and McCalister’s murder (Shaquita Jones). (See Docs. 10-6, 10-7).
16 Another lay witness (Katie Erdman) testified on that day regarding Mack’s
murder. (See Docs. 10-8, 10-9). The rest of the witnesses on May 29–31, 2007 were
employees of the Florida Department of Law Enforcement and other experts. (See
Docs. 10-9, 10-10, 10-11).
26
the collateral crime evidence is considered in the context of a nearly three-week
trial, during which some witnesses testified about two or three of the murders,
it is apparent that the collateral crime evidence did not become an
impermissible feature of the Mack trial.
Moreover, there was sufficient evidence, even without the collateral
crime evidence, to support Durousseau’s conviction. In addressing the
sufficiency of the evidence, the Florida Supreme Court stated:
Regardless of whether [Durousseau] challenges the sufficiency of
the evidence, in death penalty cases, this Court must conduct an
independent review to determine whether sufficient evidence
exists to support a first-degree murder conviction. . . .
We conclude that the record contains competent, substantial
evidence to support Durousseau’s conviction for first-degree
murder. First, at trial, the State established that Durousseau’s
DNA was found inside of Mack. The medical examiner testified
that Durousseau’s spermatozoa’s heads and tails were still intact,
indicating that Durousseau had sexual intercourse with Mack
within hours of her death. Second, the State presented evidence
that Mack suffered from abrasions on her face and marks on her
arms and also presented evidence that Mack had been sexually
battered. Third, witness testimony placed Durousseau at the scene
of the homicide within hours of Mack’s death. Both Williams and
Pinkney identified Durousseau as the man they saw around
Mack’s apartment on the day she was murdered. The witnesses
testified that Durousseau was wearing a navy[-]blue uniform. One
of Durousseau’s Goodyear coworkers testified that all employees
were required to wear navy uniforms. Further, Pinkney testified
that he saw Durousseau exit Mack’s apartment building and look
into the trunk of a red car. Additional testimony revealed that, at
the time of Mack’s murder in 1999, Durousseau owned a red
Mazda. Fourth, Williams testified that she saw Durousseau place
a television in the trunk of a red car. Mack’s television set and
27
matching necklace and bracelet that she wore everyday were
missing from her home when her body was found. Durousseau
claims that Mack sold the television to him because it was broken.
However, several of Mack’s friends testified that the television had
been working that same week. Fifth, the last contact Mack had
with anyone was by phone between 1 and 1:30 p.m. that day, and
testimony revealed that Durousseau took his lunch break between
12 and 1:30 p.m. that same day. A friend testified that she tried to
contact Mack around 2:50 p.m., but Mack did not answer the
phone. Mack’s children and Durousseau’s children attended the
same small daycare. However, Durousseau denied knowing Mack
on multiple occasions. Later, Durousseau claimed that he did know
Mack and that he had a sexual relationship with her. Finally, the
State established that Mack had been bound and sexually battered
and died as a result of asphyxia caused either by strangulation or
suffocation.
Based on a review of the evidence presented in this case, a
“rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.” Simmons v.
State, 934 So.2d at 1111 (quoting Bradley v. State, 787 So. 2d 732,
738 (Fla. 2001)). Accordingly, we find the evidence sufficient to
support Durousseau’s first-degree murder conviction.
Durousseau, 55 So. 3d at 559–60 (internal citation modified).
Based on the foregoing, the Florida Supreme Court’s decision was not
based on an unreasonable determination of the facts in light of the evidence
presented, and it was not contrary to, or an unreasonable application of, clearly
established federal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 73–75 (1991)
(finding that evidence that the infant victim suffered from battered child
syndrome was relevant to establish intent for her murder, and holding that
neither the introduction of such evidence nor the jury instruction on it so
28
infused the trial with unfairness as to deny due process, because even if the
jury believed the petitioner committed the prior acts and used that as a factor
in its deliberation, there was sufficient evidence to sustain such a finding by a
preponderance of the evidence); Thigpen v. Thigpen, 926 F.2d 1003, 1005,
1015–16, 1019 (11th Cir. 1991) (holding the admission of evidence that the
petitioner was previously convicted of another first-degree murder and
received a death sentence, which was later reduced to life in prison, was
relevant and admissible to show motive; its potential for undue prejudice did
not substantially outweigh its probative value; and it did not render the trial
so fundamentally unfair to violate due process, even in the absence of a limiting
instruction to the jury to consider the evidence only for motive), reh’g & reh’g
en banc denied (Apr. 29, 1991); Shaw v. Boney, 695 F.2d 528, 531 (11th Cir.
1983) (holding the admission of a witness’s testimony concerning the
petitioner’s alleged threat to the murder victim did not render the petitioner’s
trial fundamentally unfair where the “testimony was neither a critical nor even
a highly significant factor in the prosecution’s case” and “the evidence against
Shaw was overwhelming”); Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.
1976) (holding that although the admission of evidence of a similar assault
made subsequent to the assault at issue appeared to be improper under state
evidentiary rules, the impropriety did not rise to denial of due process
29
considering the strength of the state’s case).17 But even if the Court should not
give deference to the state court’s adjudication as Durousseau suggests (see
Doc. 12 at 10), the claims in Ground One would still be denied on the merits,
assuming arguendo they were not procedurally defaulted. (See Docs. 10-4, 10-
5, 10-6, 10-7, 10-8, 10-9, 10-10, 10-11, 10-12, 10-13, 10-14, 10-15, 10-16). Thus,
Ground One 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.
17 Cf. Snowden, 135 F.3d at 739 (concluding that “allowing expert testimony to
boost the credibility of the main witness against Snowden—considering the lack of
other evidence of guilt—violated his right to due process by making his criminal trial
fundamentally unfair” (emphasis added)); Davis v. Zant, 36 F.3d 1538, 1551 (11th
Cir. 1994) (concluding that pervasive prosecutorial misconduct, consisting of
intentional misrepresentations that were both highly misleading to the jury and
prejudicial to Davis, and that were calculated to undermine the crux of the defense,
rendered the trial fundamentally unfair, considering “there was a substantial conflict
in the relevant evidence”); Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.
1981) (holding the admission of evidence of the petitioner’s counterfeiting conviction
in his murder trial was prejudicial and in violation of due process, where the
conviction was irrelevant to the murder charge and there were no proper instructions
to the jury to relate the evidence only to the firearm possession charge).
30
3. If Petitioner appeals this Order, the Court denies a certificate of
appealability.!® Because the Court has determined that a certificate of
appealability is not warranted, the Clerk of the Court shall terminate from the
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 3lst day of
March, 2026.
JORDAN E. PRATT
UNITED STATES DISTRICT JUDGE
Jax-11 3/6
C:
Counsel of Record
18 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.
31