FAULKNER

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DWAYNE HOBY FAULKNER, JR.,

Petitioner,

v. CASE NO. 4:24cv420-RH-MJF

RICKY D. DIXON,

Respondent.

______________________________/

ORDER DENYING THE PETITION

By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Dwayne

Hoby Faulkner, Jr. challenges state-court convictions on charges arising from theft

of jewelry taken in two residential burglaries. Mr. Faulkner asserts his trial

attorney rendered ineffective assistance by failing to call an alibi witness, Angell

Aguilar, who, according to Mr. Faulkner, would have testified Mr. Faulkner was

elsewhere at the time of the burglaries. The state postconviction court rejected the

claim on the ground Mr. Aguilar was unavailable, but the state-court record does

not establish this. Even so, Mr. Faulkner is not entitled to relief. He failed to

develop the record in state court. The record does not show Mr. Aguilar would

have been available to give, or if available would actually have given, the alibi

testimony.

The petition, which raises this and other issues, is before the court on the

magistrate judge’s report and recommendation, ECF No. 29. Mr. Faulkner was

proceeding pro se at that time and did not file objections. Upon review of the

report and recommendation, I appointed an attorney, who filed objections and

briefed the issues. I have considered the objections de novo. This order accepts the

report and recommendation and adopts it as the court’s opinion except on two

claims, both asserting ineffective assistance, first for failing to call Mr. Aguilar,

and second for failing to publish an entire videorecording that was admitted into

evidence; only snippets were published. In the objections, Mr. Faulkner has

explicitly waived his other claims.

I. Facts

On August 16, 2012, Gina Weaver returned home and discovered her house

had been burglarized. ECF No. 18-2 at 86. Missing property included pieces of

jewelry custom-made at Tallahassee Diamond Center (“TDC”). See id. at 87–88 &

91. Ms. Weaver promptly reported the burglary to law enforcement. Id. at 90. She

also reported it to Cheryl Everett, whose husband Sean Everett owned TDC, asking

them to be on the lookout for the jewelry. Id. at 91 & 133-35.

Perhaps remarkably, Mr. Faulkner and Mr. Aguilar were at TDC at that very

time attempting either to sell the jewelry (as the state contends) or to have it

appraised (as Mr. Faulkner contends). The TDC security system recorded their

entire visit to TDC. Mr. Faulkner took the lead throughout the encounter and said

the jewelry was his grandmother’s. See id. at 115, 150, 175, & 261. Mr. Everett

recognized the jewelry as having been made by TDC for a customer, and he

surreptitiously contacted law enforcement. Id. at 174–75. Mr. Everett could not

remember which customer the jewelry was made for until Ms. Everett called to

advise him of Ms. Weaver’s report. At that point Mr. Everett made the connection:

Mr. Faulkner and Mr. Aguilar were in the store in possession of the jewelry taken

in the burglary.

Law enforcement arrived at TDC while Mr. Faulkner and Mr. Aguilar were

still there. Ms. Weaver arrived and identified her jewelry. See id. at 96–97. Mr.

Faulkner did not contest her claim or seem surprised by it. See Video Exhibit

01:12:00–01:14:00. When advised of his rights, Mr. Faulkner elected to remain

silent. Mr. Faulkner and Mr. Aguilar were arrested.

Law enforcement learned later that the home of Ms. Weaver’s neighbor,

George Lewis, was also burglarized on August 16, 2012. See ECF No. 18-2 at 51–

52 & 73–83. As it turned out, the jewelry Mr. Faulkner and Mr. Aguilar had with

them at TDC also included jewelry taken in the Lewis burglary. Id. at 63.

II. The trial

In due course an information charged Mr. Faulkner and Mr. Aguilar with

offenses arising from the Weaver and Lewis burglaries and their possession of the

stolen property. Mr. Aguilar pled no contest and was sentenced on one count of

burglary and one count of grand theft. ECF No. 18-9 at 257. Mr. Faulkner fled but

was eventually found and tried alone in 2018 on an amended information charging

him with six offenses: burglary of the Weaver and Lewis residences (counts 1 and

6), theft of property from the Weaver and Lewis residences (counts 3 and 7),

trafficking in stolen Weaver property (count 2), and possessing ammunition as a

convicted felon (count 4). See ECF No. 18-1. The amended information charged

Mr. Aguilar alone with carrying a concealed weapon—razor blades—as a

convicted felon (count 5).

Evidence at trial confirmed with no meaningful dispute that the Weaver and

Lewis homes were burglarized and high-value, custom-made jewelry was stolen;

that, soon after, Mr. Faulkner and Mr. Aguilar showed up at TDC with the stolen

jewelry; that Mr. Faulkner said the jewelry was his grandmother’s; and that, as Mr.

Faulkner knew, the jewelry was not in fact his grandmother’s.

Mr. Faulkner testified in his own defense. See ECF No. 18-2 at 250–307. He

said he was home from college temporarily residing with Mr. Aguilar, whose

father had a painting company with a contract to paint student apartments between

semesters. Mr. Faulkner was working for the company and claimed to be a part

owner. He had left his motorcycle back at college, so he relied on Mr. Aguilar for

transportation. On the day of the burglaries, Mr. Aguilar drove Mr. Faulkner to

work at 7:00 a.m., and he stayed there until 3:00 or 3:30 p.m., when Mr. Aguilar

picked him up. See id. at 256–58.

Mr. Faulkner said that when he told TDC employees and law enforcement

officers that the jewelry was his grandmother’s, he meant Mr. Aguilar’s

grandmother, with whom Mr. Faulkner said he was close. Id. at 261. Mr. Faulkner

attempted to explain that he had been told by Mr. Aguilar at the job site—before

they went to TDC—that the jewelry was Mr. Aguilar’s grandmother’s, but the trial

court inexplicably sustained a hearsay objection. Id. at 261–62.

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Fla. Stat. 90.801(1)(b); see also Fed. R. Evid. 801(a)(c)(2) (explicitly

providing that the substantively identical federal hearsay rule applies only to a

statement offered “to prove the truth of the matter asserted in the statement”)

(emphasis added). Mr. Faulkner offered Mr. Aguilar’s statement not to prove it

was true—not to prove the jewelry actually belonged to Mr. Aguilar’s

grandmother—but to prove what Mr. Faulkner believed about the jewelry. This

was not inadmissible hearsay because, regardless of whether true, Mr. Aguilar’s

purported statement showed information allegedly available to Mr. Faulkner

explaining his knowledge and intent. What Mr. Faulkner knew or did not know

about the source of the jewelry was a critical issue—indeed, the most critical issue

in the case—and what Mr. Faulkner had been told on that subject was plainly

admissible.

The effect of the erroneous ruling was mitigated, but only somewhat, when

Mr. Faulkner said on cross-examination that Mr. Aguilar said while at TDC that

the jewelry was Mr. Aguilar’s grandmother’s, and Mr. Faulkner believed it. ECF

No. 18-2 at 292–93.

The jury convicted Mr. Faulkner on both theft counts but not guilty on the

burglary counts. The jury found Mr. Faulkner not guilty on the trafficking-in-

stolen-property count, undoubtedly because under Florida law—and the

corresponding jury instruction—a defendant cannot properly be convicted of both

theft and trafficking in the same stolen property. In a bifurcated proceeding after

return of the verdict on those counts, the jury found Mr. Faulkner guilty of

possessing ammunition as a convicted felon.

Had Mr. Faulkner been convicted of burglary, he would have been sentenced

as a prison releasee reoffender to a minimum mandatory 30-year prison term. See

Fla. Stat. § 775.082(9). As it turned out, the court ran the sentences on the counts

of conviction consecutively as needed to produce a total sentence of 30 years in

prison. See ECF No. 18-3 at 9. Under Florida law, a defendant must serve a

minimum mandatory sentence in full without reduction based on good conduct, so

the acquittal on the burglary charges made a difference, despite the 30-year

sentence on the counts of conviction. See Fla. Stat. § 775.082(9)(b).

III. Postconviction proceedings

Mr. Faulkner moved for relief under Florida Rule of Criminal Procedure

3.850 on seven grounds. They included the two ineffective-assistance-of-counsel

claims addressed in this order: first, failing to call Mr. Aguilar as an alibi witness,

and second, failing to publish the entire videorecording, rather than only snippets,

of the events at TDC prior to Mr. Faulkner’s invocation of the right to remain

silent. The state postconviction court conducted an evidentiary hearing on three of

the seven grounds, including the two addressed here. ECF No. 18-9 at 118. Mr.

Faulkner and his trial attorney were the only witnesses. See id. at 334–410

(transcript of evidentiary hearing). The court denied relief across the board. Id. at

324–26. The state intermediate appellate court affirmed without explanation. No

further review was available in state court.

Having thus exhausted his state remedies, Mr. Faulkner filed the pending

§ 2254 petition in this court on essentially the same grounds. As noted above, this

order adopts the magistrate judge’s report and recommendation except on the alibi

and videoconference ineffective-assistance claims.

IV. Ineffective-assistance standards

The Supreme Court has set out the standards governing ineffective-

assistance claims:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Unless a defendant makes both showings, it

cannot be said that the conviction or . . . sentence resulted from a

breakdown in the adversary process that renders the result

unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). In short, to prevail on an

ineffective-assistance claim, a defendant must show both deficient performance

and prejudice.

The report and recommendation accurately addresses these standards at

greater length. That discussion is adopted here.

V. AEDPA standards

The Antiterrorism and Effective Death Penalty Act imposes both substantive

and procedural limits on a federal habeas court’s ability to set aside a state-court

conviction. Two provisions are critically important here.

1. Deference to a state-court ruling on the merits

A federal habeas court may set aside a state court’s ruling on the merits of a

petitioner’s claim only if the ruling “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or the ruling “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)–(2). A long and ever-growing line of cases

addresses these standards. See, e.g., Shinn v. Kayer, 592 U.S. 111, 118 (2020);

Williams v. Taylor, 529 U.S. 362 (2000); Raheem v. GDCP Warden, 995 F.3d 895,

907 (11th Cir. 2021).

To warrant federal relief, the state court’s application of federal law must be

“objectively unreasonable,” Renico v. Lett, 559 U.S. 766, 773 (2010). This means

“the state court’s decision is so obviously wrong that its error lies beyond any

possibility for fairminded disagreement.” Shinn, 592 U.S. at 118 (quotations

omitted). “This distinction creates a substantially higher threshold for obtaining

relief than de novo review.” Renico, 559 U.S. at 773 (quotation omitted).

For this purpose, a federal habeas court properly looks through an

unexplained appellate decision to the explanation provided by the lower court. See,

e.g., Wilson v. Sellers, 584 U.S. 122, 125 (2018). The state court’s findings of fact

are entitled to a presumption of correctness unless rebutted by clear and convincing

evidence. Conner v. GDCP Warden, 784 F.3d 752, 761 (11th Cir. 2015); see also

28 U.S.C. § 2254(e)(1).

The report and recommendation accurately addresses these standards at

greater length. That discussion is adopted here.

2. Restrictions on federal evidence

Under 28 U.S.C. § 2254(e)(2), if a petitioner “failed to develop the factual

basis of a claim in State court proceedings,” a federal habeas court can hold an

evidentiary hearing only if (A) the claim relies on (i) “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable,” or (ii) a factual predicate that could not have been

previously discovered through the exercise of due diligence; and (B) “the facts

underlying the claim would be sufficient to establish by clear and convincing

evidence that but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.”

VI. Alibi witness

Mr. Faulkner told his trial attorney well prior to trial that Mr. Aguilar would

provide alibi testimony—would testify he dropped off Mr. Faulker at the job site

that morning and picked him up that afternoon—just as Mr. Faulkner still claims.

The attorney filed a timely pretrial notice of alibi on this basis. See ECF No. 18-9

at 385–86. But the attorney did not talk to Mr. Aguilar prior to trial and did not call

him as a witness. Mr. Faulkner asserts this was ineffective assistance.

A. The reason for not calling the witness

At the state postconviction hearing, the attorney gave this account of his

failure to call Mr. Aguilar as a witness at the trial.

The attorney attempted to talk to Mr. Aguilar while he was serving his

sentence in the Department of Corrections but for unexplained reasons was unable

to do so. Id. at 388. Mr. Aguilar was released from custody before Mr. Faulkner’s

trial. Department of Corrections records showed Mr. Aguilar’s last known address

as a Tallahassee homeless shelter. See id. at 387. The attorney went there, looked

around, could not find Mr. Aguilar, and talked to nobody. Id. at 388–89. The

attorney had an available investigator but chose not to use him or take any other

steps to find Mr. Aguilar. Id. at 389. The attorney could not remember why. Id.

End of story.

The attorney did not testify at the postconviction hearing that he had any

strategic reason for taking no further steps to find Mr. Aguilar or for not calling

him as a witness at trial. Some possible explanations come to mind: Mr. Aguilar

might not testify as expected regardless of what he might say in advance; Mr.

Aguilar might implicate Mr. Faulkner in the burglaries; Mr. Aguilar might

acknowledge he and Mr. Faulkner were attempting to sell the jewelry, not just

obtain an appraisal as Mr. Faulkner would assert at trial; Mr. Aguilar might not

withstand cross-examination on the grandmother story or might wind up

acknowledging Mr. Faulkner could not reasonably have believed the grandmother

story; and Mr. Aguilar might at least be tripped up on cross-examination

sufficiently to undermine, rather than support, Mr. Faulkner’s defense. Indeed, a

shaky performance by Mr. Aguilar might worsen Mr. Faulkner’s chances on the

burglary charges.

The attorney said none of this. The attorney’s sole explanation was that Mr.

Aguilar was unavailable.

B. Deficient performance

The state postconviction court accepted the attorney’s testimony and denied

relief on the ground that Mr. Aguilar was indeed unavailable—that the attorney did

not render ineffective assistance by making no further effort to find Mr. Aguilar,

learn what he would say, and call him as a witness. ECF No. 18-9 at 325.

Mr. Faulkner now argues with considerable force that this was an

unreasonable determination of the facts in light of the state-court record. This order

assumes without deciding that the attorney rendered deficient performance in this

respect.

C. Prejudice

Even so, Mr. Faulkner is not entitled to relief. The burden of proof in the

state postconviction hearing was on Mr. Faulkner. He failed to prove facts essential

to this claim. The record includes no admissible evidence that Mr. Aguilar would

have testified as Mr. Faulkner asserts—nothing other than Mr. Faulkner’s

assertion. The record includes no evidence of where Mr. Aguilar was at the time of

trial—no evidence that a diligent attorney or investigator could have found him

and gotten him to trial either voluntarily or with a subpoena.

Based on the state-court record, Mr. Faulkner’s claim fails not because he

has not shown deficient performance but because he has not shown prejudice.

D. Federal evidentiary hearing

Perhaps recognizing these failures of proof, Mr. Faulkner requests an

evidentiary hearing in this court. The request runs headlong into § 2254(e)(2),

which applies when a federal habeas petitioner failed to develop the factual basis

of a claim in state court.

1. Failure to develop the factual basis in state court

The state postconviction court granted Mr. Faulkner’s request for an

evidentiary hearing on this claim. He was represented by a postconviction attorney

and had a full and fair opportunity to develop the factual basis of the claim. But he

failed to do so—failed to prove that his trial attorney’s deficient performance

caused prejudice.

The chronology is this. Mr. Faulkner filed his pro se Florida Rule of

Criminal Procedure 3.850 motion asserting this claim on January 20, 2021. See

ECF No. 18-9 at 5. The postconviction attorney appeared on September 28, 2021.

Id. at 230. The court set an evidentiary hearing more than a year later, on January

23, 2023, but the attorney failed to show up, apparently because of a family

medical emergency. See ECF No. 18-9 at 232. The court rescheduled the hearing

for a week later, January 30, 2023. Id. By that time the 3.850 motion had been

pending for more than two years. Mr. Faulkner had sought no discovery and

submitted no declarations.

The attorney was present at the January 30 hearing and suggested Mr.

Aguilar, who by then was living in Texas, was willing to come to Florida to testify.

See id. at 335–36. But the attorney asked for another continuance, saying Mr.

Aguilar had been unable to come to Florida on that date. The court denied a

continuance but granted the attorney’s alternative request to present Mr. Aguilar’s

testimony by videoconference. The attorney still did not call Mr. Aguilar as a

witness, saying he was unavailable at that time even by videoconference. Id. at

336.

The attorney asked to hold the record open so that Mr. Aguilar could be

deposed. ECF No. 18-9 at 339 & 409. The court initially took the request under

advisement, waiting to hear the evidence presented at the hearing, and then ruled

on the merits, implicitly denying the request to hold the record open. Id. The record

did not—and still does not—include any competent evidence of where Mr. Aguilar

was at the time of trial or what Mr. Aguilar would have testified at the trial or at

the postconviction hearing if called as a witness.

Mr. Aguilar’s claimed inability to testify at the postconviction hearing even

by videoconference casts at least some doubt on whether he would indeed testify as

Mr. Faulkner claims—that he would indeed say he delivered Mr. Faulkner to a job

site and left him there through the time of the burglaries. In any event, one cannot

reasonably fault the state postconviction court for not continuing the evidentiary

hearing on an unsupported assertion of witness unavailability first presented at the

time of the hearing. Or for not holding the record open under these circumstances.

Nothing in the record suggests the state court’s refusal to further continue the

hearing or failure to allow post-hearing evidence departed from the state court’s

usual practice or was improper in any respect.

This history makes clear that Mr. Faulkner failed to develop the factual basis

of this claim in state court. This is not a case like Barnes v. Elo, 231 F.3d 1025 (6th

Cir. 2000), relied upon by Mr. Faulkner, in which the state court denied the

petitioner any postconviction evidentiary hearing at all on a much stronger

ineffective-assistance-of-counsel claim. A substantial line of Eleventh Circuit

decisions confirms that a petitioner fails to develop a factual basis for a claim when

given an opportunity in state court analogous to the opportunity Mr. Faulkner was

given. See, e.g., Ward v. Hall, 592 F.3d 1144, 1160 (11th Cir. 2010) (applying

§ 2254(e)(2) when the petitioner was granted a state-court evidentiary hearing and

“was afforded approximately three years to secure affidavits and witness testimony

prior to” the hearing); Chandler v. McDonough, 471 F.3d 1360, 1362 (11th Cir.

2006) (applying § 2254(e)(2) when the petitioner “was given an evidentiary

hearing on the claim in state court”); Arthur v. Allen, 452 F.3d 1234, 1248 (11th

Cir. 2006) (applying § 2254(e)(2) when the petitioner “failed to pursue the testing

of the requested crime-related physical evidence during his three trials or through a

state postconviction relief petition”); McNair v. Campbell, 416 F.3d 1291, 1298–

1300 (11th Cir. 2005) (applying § 2254(e)(2) when the state court granted a

hearing but denied untimely requests for expert funds, the petitioner could have

developed evidence in less costly ways, and the petitioner did not pursue the

argument on state collateral appeal).

To be sure, the failure to develop the state-court record was almost surely

attributable to Mr. Faulkner’s state postconviction attorney, not directly to Mr.

Faulkner himself. The attorney had more than a year to obtain a declaration from

or deposition of Mr. Aguilar, and the attorney had adequate notice of the

evidentiary hearing, both as originally scheduled and as continued. This order

assumes without deciding that the postconviction attorney’s failure to present Mr.

Aguilar’s testimony in support of the 3.850 motion, like the trial attorney’s failure

to find Mr. Aguilar or present his testimony at trial, constituted deficient

performance. But the Supreme Court has made clear this does not matter: “We

now hold that, under § 2254(e)(2), a federal habeas court may not conduct an

evidentiary hearing or otherwise consider evidence beyond the state-court record

based on ineffective assistance of state postconviction counsel.” Shinn v. Ramirez,

596 U.S. 366, 382 (2022).

2. Failure to meet the 2254(e)(2) conditions

Under § 2254(e)(2), Mr. Faulkner’s failure to develop the factual basis of

this claim in state court means that an evidentiary hearing can go forward in

federal court only if the claim meets the specific conditions set out in the statute.

The claim does not meet those conditions.

The claim does not rely on “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.” § 2254(e)(2)(A)(i). The claim does not rely on “a factual predicate

that could not have been previously discovered through the exercise of due

diligence.” § 2254(e)(2)(A)(ii). And “the facts underlying the claim” would not be

“sufficient to establish by clear and convincing evidence that but for constitutional

error, no reasonable factfinder would have found the applicant guilty of the

underlying offense.” § 2254(2)(B). Mr. Faulkner is not entitled to—indeed, not

eligible for—an evidentiary hearing in this court. See Shoop v. Twyford, 596 U.S.

811, 820 (2022) (holding that when a petitioner cannot meet the requirements of

§ 2254(e)(2), evidence developed during the federal proceeding cannot be

considered on an ineffective-assistance claim the state court rejected) (citing Shinn,

596 U.S. at 389).

VII. Videorecording

The state introduced into evidence the entire TDC videorecording up to a

point just before Mr. Faulkner invoked his right to remain silent. But the parties

published—played for the jury—only snippets. Mr. Faulkner asserts his trial

attorney rendered ineffective assistance by failing to publish the remainder of the

exhibit. Not so. The state court correctly ruled that the trial attorney’s performance

was not deficient in this respect.

The exhibit was part of the state-court record. After issuance of the report

and recommendation, the petitioner filed a copy in this court on a DVD that could

not be viewed on the court’s current operating system. The court’s systems staff

copied the exhibit onto a thumb-drive which is now part of this court’s record. The

exhibit has been reviewed in its entirety. The videorecording is inculpatory

throughout. Playing more of it would have wasted a substantial amount of time but

would not have helped Mr. Faulkner. The state court’s ruling was correct—and the

ruling here would be the same even on de novo review.

VIII. Certificate of appealability

Rule 11 of the Rules Governing § 2254 Cases requires a district court to

“issue or deny a certificate of appealability when it enters a final order adverse to

the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may

issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack

v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893

n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out

the standards applicable to a § 2254 petition on the merits). As the Court said in

Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a

substantial showing of the denial of a constitutional right, a

demonstration that, under Barefoot, includes showing that

reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner

or that the issues presented were “ ‘adequate to deserve

encouragement to proceed further.’ ”

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, to obtain a

certificate of appealability when dismissal is based on procedural grounds, a

petitioner must show, “at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Id. at 484.

Mr. Faulkner has made a substantial showing that his trial attorney rendered

deficient performance in failing to make a greater effort to locate Mr. Aguilar prior

to the trial. But Mr. Faulkner plainly has not established that a greater effort would

have located Mr. Aguilar, that he could have been subpoenaed or would have

appeared voluntarily, or that he would have testified as Mr. Faulkner claims.

Reasonable jurists could not disagree on these points.

Mr. Faulkner has made a substantial showing that his state postconviction

attorney rendered deficient performance by failing to make a greater effort to

present Mr. Aguilar’s testimony in support of the 3.850 motion. But again, Mr.

Faulkner plainly has not established what Mr. Aguilar would have testified or even

that he was willing to do so. Reasonable jurists could not disagree on these points.

Reasonable jurists could debate the holding in Shinn—there were, after all,

dissenting justices—but based on Shinn, reasonable jurists could not debate

whether Mr. Faulkner is entitled to a federal evidentiary hearing. And without

further evidence, reasonable jurists could not debate whether Mr. Faulkner is

entitled to relief.

In sum, Mr. Faulkner has not made the showing required for a certificate of

appealability.

IX. Conclusion

For these reasons,

IT IS ORDERED:

1. The report and recommendation is accepted and adopted as the court’s

further opinion except in respects inconsistent with this order.

2. The clerk must enter judgment stating, “The petition is denied with

prejudice.”

3. A certificate of appealability is denied.

4. The clerk must close the file.

SO ORDERED on August 1, 2026.

s/Robert L. Hinkle

United States District Judge