Armstrong

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DUANE E. ARMSTRONG,

Petitioner,

v. Case No. 8:23-cv-1426-KKM-LSG

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

ORDER

Armstrong, a Florida prisoner, timely1 filed a pro se Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1.) Upon consideration of the

petition, (id.), the response in opposition, (Doc. 6), and Armstrong’s reply, (Doc.

7), the petition is denied. Because reasonable jurists would not disagree,

Armstrong is not entitled to a certificate of appealability.

1 A state prisoner has one year from the date his judgment becomes final to file a

§ 2254 petition. See § 2244(d)(1). This one-year limitation period is tolled during the

pendency of a properly filed state motion seeking collateral relief. See § 2244(d)(2).

Armstrong’s judgment and sentence were affirmed on direct appeal on July 15, 2016.

(Doc. 6-2, Ex. 16.) The judgment became final 90 days later, on October 13, 2016, upon

expiration of the time to petition the Supreme Court of the United States for a writ

of certiorari. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002). After 203 days of

untolled time, Armstrong moved for postconviction relief on May 5, 2017. (Doc. 6-2,

Ex. 18.) Postconviction proceedings remained pending until the state appellate court’s

mandate issued on March 21, 2023. (Doc. 6-2, Ex. 31.) After 92 days of untolled time,

Armstrong filed his 2254 petition on June 22, 2023. Because fewer than 365 days of

untolled time elapsed, the petition is timely.

I. BACKGROUND

A. Procedural Background

A state court jury convicted Armstrong of burglary of a dwelling and

theft. (Doc. 6-2, Ex. 8.) The state trial court sentenced him to an overall term

of 30 years in prison as a habitual felony offender. (Doc. 6-2, Ex. 11.) The state

appellate court per curiam affirmed the convictions and sentence. (Doc. 6-2,

Ex. 16.) Armstrong sought postconviction relief under Florida Rule of Criminal

Procedure 3.850. (Doc. 16-2, Ex. 18.) The state trial court denied Armstrong’s

motion, and the state appellate court per curiam affirmed the denial. (Doc. 16-

2, Exs. 19, 23 & 28.)

B. Factual Background2

On April 17, 2012, Argelio Ferrei came home to find that his family’s

Tampa home had been ransacked. (Doc. 6-2, Ex. 7, pp. 173-74.) A bathroom

window was broken, and the screen had been removed. (Id., pp. 128-30.) When

police arrived, a crime scene technician dusted for fingerprints and lifted one

latent print from the toilet below the broken window. (Id., pp. 203-07.) Among

the items missing from the home were pieces of jewelry that belonged to

Argelio Ferrei’s wife, Jamie Ferrei. (Id., p. 134.)

2 This summary is based on the trial transcript and appellate briefs.

Fingerprint analyst Susan Delage compared the latent print from the

Ferreis’ bathroom to Armstrong’s known print and concluded that the latent

print was Armstrong’s. (Id., pp. 337-38, 349.) Delage confirmed the match by

comparing the latent print to prints of Armstrong’s that she had personally

taken. (Id., pp. 351-54.)

Police executed a search warrant on an SUV registered to Armstrong.

(Id., pp. 227-28, 236-39, 246-48.) Several pieces of jewelry and a wallet with

Armstrong’s identification were in the glovebox. (Id., pp. 237-39.) One of the

pieces of jewelry was a high school class ring with the name Jamie Lee Holland,

Jamie Ferrei’s maiden name. (Id., pp. 152-54, 251-53.) Jamie Ferrei identified

the class ring and other jewelry as hers and stated that they had been missing

from her dresser since the burglary. (Id., pp. 135-155, 259-61.)

Armstrong testified at trial that he had never been to the Ferreis’

property. (Id., p. 386.) He stated that he bought the jewelry from two men for

$250.00. (Id., pp. 384-87.)

II. STANDARD OF REVIEW UNDER SECTION 2254

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

governs this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir.

2009). Habeas relief under the AEDPA 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). “The power of the federal courts to grant a writ of

habeas corpus setting aside a state prisoner’s conviction on a claim that his

conviction was obtained in violation of the United States Constitution is

strictly circumscribed.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1093 (11th

Cir. 2022).

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.

For purposes of § 2254(d)(1), the phrase “clearly established Federal law”

encompasses the holdings only 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). This section “defines two categories of cases in which a state prisoner

may obtain federal habeas relief with respect to a claim adjudicated on the

merits in state court.” Id. at 404. First, 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.” Id. at 413.

Second, 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. The 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. As a

result, to obtain relief under the AEDPA, “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.” Harrington

v. Richter, 562 U.S. 86, 103 (2011); see also Lockyer v. Andrade, 538 U.S. 63,

75 (2003) (stating that “[t]he state court’s application of clearly established

federal law must be objectively unreasonable” for a federal habeas petitioner

to prevail and that the state court’s “clear error” is insufficient).

When the last state court to decide a federal claim explains its decision

in a reasoned opinion, a federal habeas court reviews the specific reasons as

stated in the opinion and defers to those reasons if they are reasonable. Wilson

v. Sellers, 584 U.S. 122, 125 (2018). But the habeas court is “not limited by the

particular justifications the state court provided for its reasons, and [it] may

consider additional rationales that support the state court’s determination.”

Jennings v. Sec’y, Fla. Dep’t of Corr., 55 F.4th 1277, 1292 (11th Cir. 2022).

When the relevant state-court decision is not accompanied with reasons for the

decision—such as a summary affirmance without discussion—the federal court

“should ‘look through’ the unexplained decision to the last related state-court

decision that does provide a relevant rationale [and] presume that the

unexplained decision adopted the same reasoning.” Wilson, 584 U.S. at 125.

The state may “rebut the presumption by showing that the unexplained

affirmance relied or most likely did rely on different grounds than the lower

state court’s decision . . . .” Id. at 125-26.

For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable

minds reviewing the record might disagree about the finding in question.’ ”

Brown v. Davenport, 596 U.S. 118, 135 (2022) (quotations omitted). “An

unreasonable determination of the facts occurs when the direction of the

evidence, viewed cumulatively, was too powerful to conclude anything but the

petitioner’s factual claim.” Teasley v. Warden, Macon State Prison, 978 F.3d

1349, 1355 (11th Cir. 2020) (internal quotation marks and alterations omitted).

A state court’s findings of fact are presumed correct, and a petitioner can rebut

the presumption of correctness afforded to a state court’s factual findings only

by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Even where a petitioner succeeds in rebutting the presumption, he must

show that the state court’s decision is “based on” the incorrect factual

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

(11th Cir. 2022). This is because a state court decision may still be reasonable

“even if some of the state court’s individual factual findings were erroneous—

so long as the decision, taken as a whole, doesn’t constitute an ‘unreasonable

determination of the facts’ and isn’t ‘based on’ any such determination.” Id.

(quoting Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1224–25 (11th Cir.

2021) (Newsom, J., concurring)).

III. STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

Armstrong brings claims for ineffective assistance of trial counsel. Under

the well-known, two-part standard articulated in Strickland v. Washington,

466 U.S. 668 (1984), to succeed, he must show both deficient performance by

his counsel and prejudice resulting from those errors. Id. at 687.

The first part “requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. The lynchpin of this analysis is whether counsel’s

conduct “was reasonable considering all the circumstances.” Id. at 688. A

petitioner establishes deficient performance if “the identified acts or omissions

[of counsel] were outside the wide range of professionally competent

assistance.” Id. at 690. 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.” Id. “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id.

The second part requires showing that the deficient performance

prejudiced the defense. Id. at 687. “An 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, a petitioner 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.

“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)). Consequently, federal petitioners rarely prevail on claims of ineffective

assistance of counsel 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 (quotation and citations omitted).

IV. ANALYSIS

A. Ground One

Armstrong argues that trial counsel was ineffective for failing to retain

an expert to challenge the State’s fingerprint evidence. He contends that this

evidence was vulnerable to a challenge because analyst Susan Delage did not

employ her usual fingerprint comparison method. Armstrong asserts that an

expert would have testified that the latent print was not his. He also alleges

that counsel assured him that he would obtain an expert.

1. Trial Proceedings

Shortly before jury selection, counsel asserted that the State committed

a discovery violation by belatedly disclosing information related to Delage’s

method of comparing the fingerprints. Counsel stated that he had recently

received exhibits prepared by Delage. (Doc. 6-2, Ex. 6, p. 6.) He explained that

these exhibits were “blowup” images of fingerprints, with labels indicating the

areas of the prints, or the points of comparison, that Delage used in her

analysis. (Id., pp. 6-8.) But counsel asserted that this was not Delage’s usual

means of comparing prints. He stated that Delage testified at another trial

weeks earlier that she did not compare individual points:

And one of the questions that she was asked and answered [in the

earlier trial] that she doesn’t actually count the number of points

that are in each particular comparison, and what she made in this

particular blowup and example, she does, in fact, count all of the

points and label them on a computer-generated composite exhibit,

essentially that she also previously testified she’s never made

before.

(Id., p. 8.)

The state trial court found no discovery violation (Id., pp. 12-13.) At trial,

Delage testified on direct examination that she “look[ed] for specific features

that we call identifying features or minutia” to make an identification. (Doc. 6-

2, Ex. 7, pp. 344-45.) A State exhibit showed enlarged images of the latent print

from the scene and Armstrong’s known print side-by-side. (Id., p. 340.) Delage

explained that blue lines on the image of the latent print showed where she

“performed an analysis and comparison” and “noted all of the points of

identification in this particular print.” (Id., p. 341.) She testified that “[a]ll of

these points of identity are in the exact same position in each print.” (Id., pp.

348-49.) She matched 17 points of comparison, which gave her “enough to

determine it was a positive identification to Mr. Armstrong.” (Id., p. 349.)

When counsel cross-examined Delage, he elicited her testimony that

using this technique, including counting individual points, was outside her

normal practice. She agreed that “counting the number of places of

identification” was not a typical part of her comparison and that she “would

normally look at the totality of the fingerprint.” (Id., pp. 356-57.) Counsel

elicited Delage’s testimony that these prints could have contained

approximately 1,000 points of identity, and that she “decide[d] what points of

comparison exist in that latent print” in her analysis. (Id., pp. 357-38.)

Delage also testified on cross-examination that she first compared the

prints on April 24, 2012, shortly after the burglary. (Id., pp. 360-61.) But

Delage acknowledged that she did not compare the individual points on the

prints, as illustrated in the State’s exhibits, until the week before the trial. (Id.,

p. 356.)

In his closing argument, counsel addressed Delage’s use of a different

comparison method in this case, asserting that “she never does this, never

counts these things.” (Id., p. 419.) He also highlighted her testimony that she

did not perform “this particular analysis” until it was “absolutely necessary a

week ago,” after Armstrong had been found in possession of the property. (Id.,

pp. 419, 422.) Counsel emphasized Delage’s testimony that her analysis

utilized 17 out of approximately 1,000 points of comparison. (Id., pp. 419, 422.)

Counsel argued that the State had not met its burden to show that Armstrong

was the perpetrator, arguing that “17 out of a thousand doesn’t get us there,

especially when we’re talking about comparisons that are done after . . . it’s

known that Mr. Armstrong is in possession of this property.” (Id., p. 426.)

2. Postconviction Proceedings

The state court held an evidentiary hearing on Armstrong’s claim that

counsel was ineffective for failing to hire an expert witness. Armstrong

testified that counsel was “mindful” of retaining a fingerprint expert, “but it . . .

just never happened.” (Doc. 6-2, Ex. 22, pp. 12, 17.)

Counsel testified that he never told Armstrong that he would hire an

expert, nor did he ever contemplate doing so. (Id., pp. 23-24.) He stated that he

deposed Delage and extensively researched fingerprint testing techniques. (Id.,

pp. 20-21.) Counsel testified that he combined his research with information

Delage provided at deposition to “put together a cross-examination that would

have effectively taken care of all the issues that . . . an independent fingerprint

expert would have looked at and addressed.” (Id., p. 21.)

Counsel also explained that he had represented Armstrong during two

earlier trials that ended in acquittal. (Id., pp. 19-20.) Delage was the

fingerprint expert in both trials. (Id.) Counsel theorized that, in the light of

Armstrong’s earlier acquittals, Delage “essentially redid everything that she

had done on th[is] case” by comparing the prints’ individual points of

identification shortly before trial. (Id., pp. 21-23.)

Counsel did not believe that retaining an expert would have made any

difference at trial. (Id., p. 26.) He testified that any expert he hired would have

the same certifications as Delage, and he did not want to “hire somebody to do

the exact same” fingerprint analysis. (Id., p. 24.) Indeed, counsel was unsure

that “a fingerprint expert would have found that it was not” Armstrong’s print,

because “AFIS came back with a hit and Ms. Delage just confirmed it.” (Id., pp.

25-26.)

The state court found counsel’s testimony more credible than

Armstrong’s testimony. (Doc. 6-2, Ex. 23, p. 6.) Based on this testimony, the

state court found that counsel did not tell Armstrong that he would hire a

fingerprint expert. (Id.) The state court also found that counsel made a

reasonable strategic decision to attack Delage’s comparison method rather

than to hire an expert. (Id.) The state court concluded that Armstrong failed to

meet either prong of Strickland. (Id.)

3. Analysis of the State Court’s Ruling

The state court’s ruling was reasonable. The state court’s findings that

counsel was credible and that counsel made a strategic decision are findings of

fact that are presumed to be correct. See Franks v. GDCP Warden, 975 F.3d

1165, 1176 (11th Cir. 2020) (“The question of whether an attorney’s actions

were actually the product of a tactical or strategic decision is an issue of fact,

and a state court’s decision concerning that issue is presumptively correct.”

(citation omitted); Whatley v. Warden, Ga. Diagnostic and Classification Ctr.,

927 F.3d 1150, 1177 (11th Cir. 2019) (stating that “credibility-based

determinations are findings of fact” that are presumed correct). Armstrong

does not rebut, by clear and convincing evidence, the presumption of

correctness afforded to these factual findings. 28 U.S.C. § 2254(e)(1).

The testimony that the state court found credible shows that counsel did

not tell Armstrong that he would hire an expert. This testimony also supports

the state court’s conclusion that counsel’s strategic decision was reasonable.

Counsel researched fingerprint evidence techniques and was familiar with

Delage’s earlier testimony. Counsel did not believe that an expert would have

come to a different conclusion after comparing the prints. Rather than have an

expert repeat the comparison when he had no reason to expect a more favorable

outcome, counsel reasonably decided to challenge Delage’s comparison. As

detailed above, counsel elicited Delange’s testimony about the comparison she

performed in this case and incorporated it into his closing argument.

Furthermore, Armstrong has not come forward with evidence that

another fingerprint analyst would have testified that the latent print was not

a match to Armstrong’s prints. Without such information, Armstrong’s claim

is too speculative to warrant federal habeas relief. See Shaw v. United States,

729 F. App’x 757, 759 (11th Cir. 2018) (“[The Eleventh Circuit has] stated that

complaints about uncalled witnesses are not favored, because the presentation

of testimony involves trial strategy and ‘allegations of what a witness would

have testified are largely speculative.’ ” (quoting Buckelew v. United States,

575 F.2d 515, 521 (5th Cir. 1978))); Streeter v. United States, 335 F. App’x 859,

864 (11th Cir. 2009) (“In a habeas petition alleging ineffective assistance of

counsel, mere speculation that missing witnesses would have been helpful is

insufficient to meet the petitioner’s burden of proof.” (citing Johnson v.

Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001))).

Armstrong has not shown that the state court unreasonably applied

Strickland or unreasonably determined the facts in denying his claim. He is

not entitled to relief on Ground One.

B. Ground Two

Armstrong argues that trial counsel was ineffective for failing to obtain

evidence to impeach Delage in the light of her testimony that she did not use

her normal comparison techniques in this case. Armstrong contends that

impeachment evidence would have cast doubt on Delage’s trial testimony, and

that the outcome of the trial likely would have been different because the latent

print was the State’s key evidence.

The state court denied Armstrong’s claim without an evidentiary

hearing. The state court noted that Delage admitted on cross-examination that

using individual points of comparison was not her normal course of action.

(Doc. 6-2, Ex. 19, p. 5.) The state court reasoned that because Delage conceded

that she did not normally use the comparison methodology that she employed

in Armstrong’s case, “there was no impeachable issue regarding Ms. Delage’s

methodology.” (Id.) Accordingly, the state court concluded that Armstrong had

not established either prong of Strickland. (Id., p. 6.)

The state court’s ruling was reasonable. As addressed above, counsel

ensured that the jury was aware of Delage’s unorthodox practice in this case

through his cross-examination and arguments. Moreover, Armstrong has not

identified any other impeachment evidence that counsel could have obtained.

Nor has he shown a reasonable probability that any such evidence would have

changed the trial’s outcome in the light of Delage’s acknowledgment that she

used a different method in this case. Armstrong’s speculative argument fails

to establish that counsel was ineffective. See Tejada v. Dugger, 941 F.2d 1551,

1559 (11th Cir. 1991) (stating that a petitioner’s “unsupported allegations”

that are “conclusory in nature and lacking factual substantiation” cannot

sustain an ineffective assistance claim).

Because Armstrong has not shown that the state court’s ruling involved

an unreasonable application of Strickland or was based on an unreasonable

factual determination, he is not entitled to relief on Ground Two.

V. CERTIFICATE OF APPEALABILITY

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). Instead,

a district court or court of appeals must first issue a certificate of appealability

(COA). Id. “A [COA] 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).

Armstrong has not made the requisite showing. Finally, because Armstrong is

not entitled to a COA, he is not entitled to appeal in forma pauperis.

It is therefore ORDERED that Armstrong’s Petition for Writ of Habeas

Corpus, (Doc. 1), is DENIED. The CLERK is directed to enter judgment

against Armstrong and in Respondent’s favor and to CLOSE this case.

ORDERED in Tampa, Florida, on May 29, 2026.

pate Kinki Mizelle

United States District Judge

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