Crosley Alexander Green v. Secretary, Department of Corrections

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 18-13524

____________________

CROSLEY ALEXANDER GREEN,

Petitioner-Appellee,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellants,

HARDEE CORRECTIONAL INSTITUTION WARDEN,

Respondent.

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2 Opinion of the Court 18-13524

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:14-cv-00330-RBD-TBS

____________________

Before JORDAN, TJOFLAT, and TRAXLER,* Circuit Judges.

TJOFLAT, Circuit Judge:

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 Constitu-

tion is strictly circumscribed. First, the prisoner must have ex-

hausted his state remedies. 28 U.S.C. § 2254(b)(1)(A). He pre-

sented the claim to the state courts, and they denied it on the mer-

its. Second, the federal court may not grant the writ on an ex-

hausted claim unless it finds that the state courts’ adjudication of

the claim “was contrary to, or involved an unreasonable applica-

tion of, clearly established Federal law, as determined by the Su-

preme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “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). Additionally, factual findings made by state courts are

presumed correct until rebutted by “clear and convincing

*The Honorable William. B. Traxler, Jr., Senior Circuit Judge for the United

States Court of Appeals for the Fourth Circuit, sitting by designation.

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18-13524 Opinion of the Court 3

evidence.” 28 U.S.C. § 2254(e)(1). Finally, the federal court may

only consider the merits of an unexhausted claim if the prisoner

establishes “cause and prejudice” for his failure to exhaust, Engle v.

Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573 (1982), or that he is

“actually innocent” of the crime for which he was convicted. Mur-

ray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2646-49 (1986).

In this case, Crosley Alexander Green, a state prisoner, peti-

tioned the District Court for a writ of habeas corpus vacating his

convictions for murder, armed robbery, and kidnapping with bod-

ily injury. His petition presented nineteen constitutional claims.

Most had not been exhausted. The Court granted the writ on an

unexhausted claim and denied the writ on the rest. The State ap-

peals the granting of the writ, and we reverse. The prisoner cross-

appeals the Court’s denial of the writ on six of the claims, and we

affirm.

We begin by describing the circumstances that led to the

prisoner’s convictions. From there, we portray step by step the

complex and confusing litigation history—initially in state court,

and then in federal court—of the claims we decide in these appeals.

I.

A. 1

1 The facts set out in subpart A depicting the commission of the crimes charged

against Green are based solely on Kim Hallock’s trial testimony.

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At approximately 10:00 p.m. on April 3, 1989, in the rural

part of Brevard County, Florida, Charles “Chip” Flynn Jr., age

twenty-one, went to visit his on-again, off-again girlfriend Kim Hal-

lock, age nineteen. About an hour later after watching a movie,

they decided to go for a drive in Flynn’s pick-up truck. Around

11:25 p.m., the two ended up in a secluded area of Holder Park next

to some sand dunes. Flynn parked his truck there, and he and Hal-

lock smoked marijuana and discussed the nature of their relation-

ship.

Hallock and Flynn had been seeing each other for about a

year and a half. And while they had once gone steady, their rela-

tionship was now an open one. Not only was Flynn seeing Hallock,

he was involved with other women as well, including a Patti Lar-

ney.

As Hallock and Flynn smoked and discussed their relation-

ship, a sheriff’s car drove by but continued on without stopping. 2

Almost immediately after the car passed, a black male approached

Flynn’s truck and warned Hallock and Flynn, both white, to watch

out for police. The man then disappeared into the darkness.

A few minutes later, Flynn, barefoot, got out of the truck to

relieve himself. He immediately found himself face to face with

the same black male as before, who was now holding a handgun.

2Brevard County Sheriff’s Deputy Mark Rixey testified that he was on patrol

that evening and drove through Holder Park sometime between 11:30 p.m.

and 1:30 a.m.

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Hallock heard Flynn say nervously, “Hold on. Wait a minute,

man. Hold on. Put it down.” At that point, she retrieved Flynn’s

handgun from the glove box beneath the dashboard and hid it un-

der a pair of jeans lying next to her on the truck’s seat. The man

ordered Flynn to his knees and demanded at gunpoint that Hallock

and Flynn give him any money they had. Hallock gave the man

five dollars, but Flynn insisted that he had no money.

The man told Hallock to give him a shoelace from one of

Flynn’s shoes, which were on the floorboard on the driver’s side of

the truck, and then used the shoelace to tie Flynn’s hands behind

his back. While tying Flynn’s hands, the man accidentally dis-

charged his weapon, but no one was injured. At this point, the man

noticed that Flynn had a wallet in his back pocket. He pulled it out,

threw it to Hallock, and told her to count the money it contained.

It amounted to $185.

The man ordered Hallock to start the truck and forced Flynn

to get in and sit next to the passenger door. Then, he got in and

positioned himself behind the steering wheel. Hallock sat between

the man and Flynn. The man drove east on Parrish Road across

U.S. 1 until he reached Hammock Road, all the while holding a gun

to Hallock’s side. At Hammock Road, the man turned left and

drove north 200 to 300 yards before pulling into a remote orange

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grove adjacent to Indian River Lagoon3 and approximately 2.5

miles from Holder Park.

After coming to a stop in the orange grove, the man pulled

Hallock out of the truck. Hallock broke free of the man’s grip and

tried to run away. While the man was regaining control of her,

Flynn, with his hands still tied behind his back, grabbed the hand-

gun Hallock had hidden beneath the pair of jeans and exited the

truck on the passenger side. He fell to the ground in the process

and attempted to shoot at the man. When the man turned his at-

tention to Flynn, Hallock jumped in the truck and drove off. She

heard gun shots as she fled.

Hallock headed south back down Hammock Road to Jay Jay

Road and took Jay Jay Road west to U.S. 1. Once on U.S. 1, she

headed south for about half a mile to LaGrange Road, at which

point she turned right and proceeded to Flynn’s best friend David

Stroup’s house trailer. In driving there, she chose not to stop at

houses along the way, to proceed on to a hospital located nearby

on U.S. 1, or to go to her parent’s home.4 From Stroup’s trailer,

Hallock called 911 and reached the communications center at the

Sheriff’s Office.

B.

3Indian River Lagoon is a grouping of three lagoons on Florida’s Atlantic

Coast. The lagoon contains five state parks and a national seashore.

4The hospital is located on U.S. 1 approximately eight-tenths of a mile south

of LaGrange Road.

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The communications center documented the 911 call at 1:11

a.m. on April 4, 1989. The caller identified herself as Kim Hallock.

She stated that a black guy had pulled a gun on her and her boy-

friend and “took us somewhere” in the woods “off of Jay Jay Road.”

She said this was “all I know . . . but I know how to get there.” The

operator advised her to “just stay right there . . . and we’ll have a

deputy come out and then he’ll take you out to where . . . this is

at.” At 1:12 a.m., Sergeant Diane Clarke and Deputy Mark Rixey,

driving separate patrol cars, responded to the call.5 The communi-

cations center dispatcher initially sent them to the corner of Jay Jay

Road and U.S. 1, but on arriving there, they saw nothing of signifi-

cance. They requested further direction from the dispatcher, who

sent them east on Jay Jay Road.

Deputy Wade Walker was dispatched to Hallock’s location

at the trailer park. He arrived at around 1:30 a.m. By that time,

Hallock had called her mother, who told her not to leave until she

got there. Walker advised Hallock to wait on her mother, delaying

them about two minutes. In the meantime, Clarke and Rixey had

been unable to find the orange grove and were requesting addi-

tional directions. Walker and Hallock met up with Clarke and

Rixey and Hallock directed them to Flynn. Upon arriving at the

5 Sergeant Clarke, a supervisor in the Sheriff’s Office, heard the 911 call, Hal-

lock’s description of her and Flynn’s abduction, and what had occurred at the

orange grove. Clarke told the communications center dispatcher that she

would go with Deputy Rixey, who was working the night-time patrol shift, to

try to find the orange grove.

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orange grove, Clarke and Rixey parked their patrol cars and pro-

ceeded on foot. Walker stayed behind with Hallock.

At 1:42 a.m., Clarke and Rixey found Flynn lying face down,

covered in blood, with his arms tied behind his back. His loaded

.22-caliber revolver was a few feet away. After untying Flynn’s

hands, they repeatedly asked Flynn what had happened. His sole

response was, “Get me out of here. I want to go home.”

Clarke had the dispatcher send a rescue unit to the scene and

with Rixey attempted to staunch the bleeding. But they were una-

ble to locate its source, a single gunshot wound in the chest. They

initiated a breathing exercise twice while awaiting the rescue unit’s

arrival. Unfortunately, by the time it arrived, at 1:57 a.m., Flynn

had succumbed.6

Clarke and Rixey remained on site until Agent Debbie

Demers, 7 a criminalist, and Agent Scott Nyquist, 8 a homicide

6 Flynn was officially pronounced dead upon arrival at the hospital.

7Agent Demers, a member of the Sheriff’s Office Criminalistics Unit handling

crime scene investigation, preserved the crime scene in the orange grove and

took photographs. These photographs included pictures of footprints found at

Holder Park, where Flynn had parked his truck and encountered Green.

8 Agent Nyquist, a member of the Sheriff’s Office Homicide Unit, became the

case agent. He was “responsible for maintenance of the case file [and] liaison

with [the] crime labs, [the] evidence technicians, [and] the State Attorney’s Of-

fice. If there [were] any documents that [were] prepared, such as search war-

rants, etc., he [was] responsible for the preparation of those documents.”

Nyquist also interviewed witnesses and assimilated the information he re-

ceived from all who were working under his direction.

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investigator, arrived and assumed control of the crime scene. At

no point before or after their arrival did Clarke or Rixey see or

speak with Hallock, who stayed in Deputy Walker’s patrol car with

Walker a good distance from the spot where Flynn’s body was

found. Once Clarke and Rixey left the scene, neither had any fur-

ther involvement in the homicide investigation.

Walker took Hallock to the North Precinct station of the

Brevard County Sheriff’s Office in Titusville for questioning.

Agent Nyquist interviewed Hallock at around 4:45 a.m., and in a

tape-recorded statement she related what had transpired while she

was with Flynn. About two hours later, Sergeant Tom Fair, 9 hav-

ing obtained from the Homicide Unit a box of sixty to seventy mug

shot photographs of black males, showed the photographs to Hal-

lock to see if she could identify the individual who had assaulted

her and Flynn. She was unable to identify his photograph.

Meanwhile, at 5:10 a.m., Deputy O’Dell Kiser, the Sheriff’s

Office canine officer, and his dog, Czar, were called to the area in

Holder Park where Flynn had purportedly parked his truck.10

Agents Debbie Demers, Barry Liford, and Randy Arieux of the

9 Sergeant Fair was head of the Homicide Unit of the Sheriff’s Office. He des-

ignated Nyquist as the case agent.

10 Czar had been trained in Germany. Kiser was assigned to the dog in 1985.

He had worked with Czar for one week in Brooksville, Florida, then for 480

hours at Mid Florida Technical Institute School. These times were spent track-

ing scent from clothing and footprints. Czar had done scent work for Kiser on

at least 700 occasions and had been recertified annually since 1985.

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Sheriff’s Office Criminalistics Unit were there to meet him. They

directed Kiser’s attention to some visible footprints. The footprints

were “fresh,” made by “some type of tennis shoe.” Kiser put Czar

on the footprints and “told him to track.” 11 The footprints were

“headed north.” Kiser could “tell [that] by the point of the shoe.”

But he and Czar went “the opposite way of the track,” “south on

Glendale Boulevard . . . for probably 200 yards,” where the “road

turns from dirt to pavement,”12 toward Briarcliff Way. Czar turned

right on to Briarcliff Way and “continued west on Briarcliff to a

house . . . on the northeast corner of the intersection of Briarcliff

and Belvedere.” Czar stopped “in the front yard” of the house.

They stopped there because two dogs in the carport “started bark-

ing.” The address for the house was 3658 Briarcliff Way. Two days

later, on April 6, Celestine Peterkin, Green’s older sister, ques-

tioned and said that the house was her residence and that Green

“stayed [there] some of the time.”13

Kiser had Czar run a “second track.” Czar started with the

former scent, the one picked up at the spot where the first track

11Kiser selected isolated footprints far from any other footprints “within that

general vicinity.”

12Glendale Boulevard runs north and south. It extends from Parrish Road

(which runs east and west) north to Holder Park.

13Peterkin said this while testifying in Green’s defense in the guilt-innocence

phase of the trial.

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began, and “went around the baseball fields.” That track ended

where the first track began.

Shortly after 6:00 a.m. on April 4, Hallock, still at the North

Precinct station, met with a police sketch artist who created a com-

posite of the man she and Flynn had encountered at Holder Park.

She told the sketch artist that the man “had a wide nose like a flar-

ing nose . . . . His eyes were not big but not small . . . . His lips

weren’t big.” She further described him as wearing “a green like

army jacket, jeans, and shoes like a work boot because it was

heavy.”

The next day, April 5, Florida Today, the major daily news-

paper serving Brevard County, reported on the Flynn homicide in

its morning edition. The report included a description of the al-

leged assailant and the composite the sketch artist had created of

his face. 14 Dale Carlisle read the report, concluded that the com-

posite sketch was of Crosley Green, and called the Brevard County

Sheriff’s Office with the following information. He, his wife, and

his children had visited Holder Park on the evening of April 3 to

watch a baseball game. While there, he saw a man he thought he

knew from junior high school days. His nickname back then was

14 Florida

Today ran a follow up story on April 6 which included a photograph

of Green’s face.

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Papa Green. So, he approached the man and asked him whether

he was “Papa Green.” The man replied that he was. 15

Willie B. Hampton, formerly an auxiliary police officer with

the Titusville Police Department, also read the Florida Today April

5 report on the Flynn homicide. He recognized the individual in

the artist’s sketch and contacted the Brevard County Sheriff’s Of-

fice to relate what he had observed on the evening of April 3 at

Holder Park. At the time, he was umpiring Little League games

and saw Crosley Green standing outside the fence watching a

game. He recognized Green because he had known Green and his

family, his brothers, sisters, and mother, for years. Green stood

there behind the fence for the whole game, until it ended at around

10:00 p.m.

Hallock was summoned to the North Precinct station late in

the evening of April 5. Her father, Robert Hallock, accompanied

her. Sergeant Fair had Agent Nyquist put a photographic lineup

together. It contained the photographs of “six black males of simi-

lar physical characteristics . . . numbered 1 through 6.” Fair told

Hallock that one of the photographs “may or may not [be] of the

individual who had done these things.” She identified the

15 According to the Florida Department of Law Enforcement (“FDLE”) “In-

vestigative Summary” dated July 25, 2000, and made part of the postconvic-

tion record in this case, Carlisle provided the Sheriff’s Office with a sworn rec-

orded statement containing the information indicated in the above text on

April 5, 1989, at 1:30 p.m.

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photograph in position No. 2 as being the individual who had kid-

napped her and shot Flynn. No. 2 was a photograph of Crosley

Green. 16

After Hallock identified Green as the assailant, a warrant

was obtained for his arrest. On June 8, 1989, he was found in the

Town of Mims and taken into custody.

C.

On June 20, 1989, a grand jury returned an indictment to the

Circuit Court of Broward County charging Green with first-degree

felony murder (Count I), a capital crime, robbery with a firearm

(Counts II and III), and kidnapping (Counts IV and V). 17 At

16 At trial, the jury received evidence that established the facts set out in sub-

part B with the exception of how Sergeant Fair obtained Green’s photograph.

The jury was not made privy to that information; it is contained in the FDLE

Investigative Summary. Copies of the composite sketch of Flynn’s suspected

assailant were “circulated within the Mims community.” “On April 4, Deputy

J.A. Copenhaver showed the sketch to a Ruby Moorer” who said it looked like

“Papa” Green. A black man identified as “Wilbur” said it looked like “Pop”

Green. On April 5, a Kerwin Hepburn told two relatives of Flynn’s that he

had heard that “‘Papa’ Green” committed the murder. Armed with this and

other information suggesting Green’s involvement in the Flynn homicide,

Agent Nyquist attempted to locate a photograph of Green. The Sheriff’s Of-

fice did not have one. On learning that Green had recently been released from

a Florida prison, Nyquist obtained a photograph of Green from the Florida

Department of Corrections. It became No. 2 in the photo array Sergeant Fair

showed Hallock.

17See Fla. Stat. §§ 782.04(1)(a)(2) (murder in the first degree, a capital felony),

812.13(1) and (2)(a) (robbery with a firearm), and 787.01(a)(2) and (a)(3)

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arraignment, Green pled not guilty to all counts. The prosecutor

subsequently notified Green that the State would seek the death

penalty on Count I. This required the Circuit Court to conduct

Green’s trial in two phases, a guilt-innocence phase and a penalty

phase.

After months of discovery, 18 the Circuit Court set the case

for trial to begin on August 27, 1990. It started on schedule.

1.

In the guilt-innocence phase, the State established the facts

presented in subparts A and B, supra, with evidentiary exhibits, wit-

nesses Agent Nyquist and his team identified prior to Green’s in-

dictment, and three individuals the team uncovered as their inves-

tigation progressed. These three individuals were Sheila Green,

Lonnie Hillery, and Jerome Murray; each testified that Green had

confessed to killing Flynn.

Sheila Green 19 said Green was “my oldest brother.” The day

after Flynn’s murder, she was with Green at her sister Celestine

(kidnapping). Counts II and IV alleged offenses against Flynn, while Counts

III and V alleged offenses against Hallock.

18 Discovery under Florida Rules of Criminal Procedure 3.330 is extensive and

reciprocal. In this case, scores of depositions were taken, even of witnesses

who would not be testifying at trial.

19 Sheila Green, Lonnie Hillery, and several others had been indicted in federal

court for “conspiracy with intent to distribute and possession with intent to

distribute cocaine.” All were convicted except Hillery. Sheila Green was

awaiting sentencing when she testified as a prosecution witness at Green’s

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Peterkin’s house at 3658 Briarcliff Way in Mims. The “rumor was

out” that Green had killed Flynn. She asked him if he “did kill that

dude.” He said he “didn’t intentionally make it happen that way,”

that “the dude pulled the gun . . . and motioned for the . . . the girl

to run for help.” “He said he went struggling with the dude. It was

him or either the dude, [sic] but the dude had the gun.”

Lonnie Hillery, Sheila Green’s boyfriend and the father of

two of her children, saw Green in the early morning hours of April

4, 1989, in a field by the government housing project located “by

[Green’s] ‘grandfather’s barbecue stand.’” Hillery, who knew

“Papa” Green, said he seemed “shaky” and “scared,” “like he was

high on something,” and he was dirty, “like really scuffed up like,

you know, like he’d been in the dirt or something.” When he asked

Green what was wrong, Green said, “I fucked up, man. I fucked

up.” “Man, some people came through and was trying to buy

something from [me] and they tried to get [me], and [I] just fucked

up.” “[I]t was a man and woman.” “He said they tried to get him,

they hustled a little bit and the girl took off and that’s where he

fucked up.” A few days later, Green told Hillery that he had gotten

rid of his clothes and that everything was going to be all right.

trial. The presentence report recommended that she be imprisoned for ten

years. She anticipated that Christopher White (who was prosecuting the

charges against Green) would appear at her sentencing hearing and inform the

federal judge of the testimony she gave for the State at Green’s trial.

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Jerome Murray was in Mims one afternoon standing and

talking with twenty or thirty “cocaine heads” on a street corner.

Murray was drunk. At some point, Green “came and said he just

killed a man.” Green said, “I’m going to disappear” but nothing

else. Murray added: “I heard what he said, and then I read it in the

paper the next day, but the description didn’t fit it until another

paper came out and then had his name underneath of it.”

After presenting evidence sufficient to establish the facts

stated in subparts A and B, the State rested its case in chief. Green

moved for a directed verdict and made multiple motions for mis-

trial. 20 The Court denied the motions.

Green’s attorney called five witnesses to testify in Green’s

defense: Terrell Kingery, Charles Smith, Brenda Harper, James

Carn, and Celestine Peterkin. Kingery, the first called, was an ex-

pert in the “field of shoe and tire impressions.” He testified that he

had examined four of the plaster casts that had been made (at the

Sheriff’s Office request) of foot impressions Deputy Kiser had ob-

served while Czar was following the scent in the Holder Park area.

According to Kingery, all four impressions were of tennis shoes of

“a size ten and not larger than a size twelve.” The impressions

were made of several named brands, perhaps more than ten.

20Green moved for a mistrial on the basis of objections he made regarding

Hallock’s photographic and in-court identifications of him, Czar’s tracking at

the hands of Deputy Kiser, and Robert Hallock’s testimony involving conver-

sations he had with Hallock, his daughter.

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Charles Smith was the “Chief Umpire” at the Holder Park

baseball fields. He was at the Park umpiring a game in the evening

of April 3, 1989. Green was there too. 21 Smith umpired a game

and visited with Green “between innings, and . . . talked to him

after the game.” Green “was wearing tennis shoes.” He was “sure”

that Green wasn’t wearing “any kind of field jacket or army jacket.”

Before Smith left Holder Park “a few minutes after 9:00,” Green

asked him for money. “It was probably more than $2.”

Brenda Harper lived across the street from Hallock. Hallock

came to her house on April 4 at around 11:00 a.m. on Hallock’s way

home from the Sheriff’s office. Harper said Hallock “had a grass

stain, dirt, right here on her shirt” and then indicated where the

stain was located.

James Carn, a maintenance mechanic, was employed by

North Hydro in Rockledge, Florida. On April 3, 1989, he got off

work at 11:00 p.m. and went to Carleen Brothers’ house in Mims.

Carn was seeing Brothers, a cousin of Green’s, at the time. When

he arrived at 11:50 p.m., he discovered that another man was in the

house. An argument ensued and the man left. At that point, Broth-

ers, followed by Carn, went across the street to a “friend’s house,

Aretha’s,” arriving “at about 12:10 or 12:15.” They stayed there

“another ten or fifteen minutes, and arrived back at Brothers’

house around 12:30 p.m.” “About five or ten minutes after that

21Smith drove to Holder Park with Green’s brother, O’Connor Green. Smith

had known Green for “as long as I’ve been here.”

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18 Opinion of the Court 18-13524

that’s when Papa came to the door . . . . Mr. Green.” He entered

and stayed, “sitting there with us watching TV” for a while. Then

Carn went to bed, at “about [a] quarter to 2:00.” Between Green’s

arrival at Brothers’ house and “about [a] quarter to 2:00,” Green

was with Carn “the entire time.” 22

Celestine Peterkin testified that when she visited her

younger sister Sheila Green in prison, Sheila never told her that

Green admitted to killing Flynn. Sheila was in prison pending sen-

tencing for cocaine distribution. 23 Peterkin said Sheila loved her

kids and “would do anything to be with her kids.” Peterkin told

the police on April 6, 1989, that Green “was living with [her] and

her cousin in Mims, Carleen.”

The defense rested after Peterkin testified. The State, in re-

buttal, called one witness, Agent Nyquist. He testified that on April

5, 1989, in an article about the Flynn murder, Florida Today pub-

lished the artist’s sketch of Hallock’s description of the murder sus-

pect. The sketch had been made at around 6:00 a.m. The

22 On cross-examination by prosecutor White, Carn admitted the following:

when law enforcement subsequently questioned Brothers at her house about

Green’s possible involvement in the Flynn homicide, he was present and never

mentioned seeing Green at Brothers’ house as he testified on direct examina-

tion. The first time he told the police or the State Attorney or any attorney

for the defendant about seeing Green at Brothers’ house on April 4, 1989, was

shortly before prosecutor White took his deposition on May 14, 1990.

23 See supra note 19.

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newspaper ran a second story the next day, and it contained a

photo of Green’s face.

Nyquist was asked about the distance between the orange

grove where Flynn was found and Brothers’ house in Mims. He

said it was 1.5 miles. On cross-examination by defense counsel, he

was asked about the distance between Holder Park and the orange

grove and how long it took to drive it. He said the distance was 2.9

miles, and he drove it in five to six minutes.

Green presented no surrebuttal, and following a charge con-

ference with the Court, the parties delivered their closing argu-

ments to the jury. The State’s first chair, Christopher White, deliv-

ered the State’s opening argument. It was relatively brief. White

summarized what the evidence disclosed—namely, the facts re-

cited in subparts A and B—and asked the jury to return a verdict of

guilty on all charges.

John Parker responded for the defense. His strategy was to

focus on the holes he saw in the State’s case. He claimed that the

problems with Hallock’s story began with the fact that she was un-

der the influence of marijuana the night of the murder—something

she initially lied about to police. Add to that the fact that it was

pitch black that night—with no artificial lighting in the park (and

potentially no interior light on in the truck)24—and it became prac-

tically impossible for her to have gotten a “good look, as the State

24Green’s counsel noted that “Miss Hallock [could not] recall whether or not

the interior light even came on.”

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20 Opinion of the Court 18-13524

would have [the jury] believe, at [the] man who committed” the

crimes.

Parker reminded the jury that Hallock initially told police

that the first time she saw the black man he was a “blur.” And

when the police asked whether the man had any facial hair, Hallock

responded that she was “not really sure.” She, in her own words,

“didn’t even get a good look at him” because she was “really

scared.”

He argued that Hallock was simply “relying on what the po-

lice told her.” When showing Hallock the photo line-up, the police

informed her that their suspect’s photograph was one of the pho-

tos. Once she picked Green, they confirmed that she had picked

the right person. Then, after the line-up, Hallock read all of the

newspaper articles, some of which contained Green’s name and

photograph, and saw Green on a trip to the Brevard County Jail for

school. So, Parker argued that while Hallock believed Green com-

mitted the crime, this belief was based not on her own observation

but on her having seen his picture in the paper and having been

told by the police that he was the suspect.

Parker claimed that Hallock was likely drawn to Green’s

photograph in the line-up because Green had the darkest skin color

in the line-up. It was also possible that Green’s photograph was the

only new image she was shown. The loose box of photographs had

vanished, so for all they knew, Hallock could have already seen

photos of the five other men and concluded they were not the kid-

napper. Plus, Hallock was, at first, only “pretty positive” Green

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18-13524 Opinion of the Court 21

was the perpetrator. It was not until police repeatedly asked

whether she was sure that she confirmed that it was him. In Par-

ker’s mind, when you keep being asked if you are sure, “sooner or

later you get the message.”

He also suggested that none of the witnesses to whom

Green allegedly confessed, or who supposedly saw Green at the

ballpark in a green army jacket, could be trusted. Jerome Murray’s

timing of events did not line up; he claimed that Green confessed

to him at 10:30 p.m., several hours before the kidnapping and mur-

der. Murray was also “wasted,” having consumed two six-packs of

sixteen-ounce malt liquor before speaking with Green. The prose-

cutor also spoke to a judge on Murray’s behalf, getting Murray out

of jail once after he was arrested.

Parker also reminded the jury that Sheila Green was facing

many years in prison on federal drug charges during which she

would be separated from her four children. Parker claimed that

she did not come forward on her own before she was convicted,

and she never told her sister Celestine Peterkin that her brother

had confessed to killing someone. What’s more, Peterkin testified

that Sheila did not even live in Mims during the time she suppos-

edly heard this “tale” at Peterkin’s house.

Nor did Lonnie Hillery, Sheila’s lover and the father of two

of her children, come forward originally. Parker asked the jury to

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22 Opinion of the Court 18-13524

think about what he would be willing to say to keep Sheila from

going to prison.25

Parker further argued that Green’s appearance did not

match Hallock’s description of the assailant on the night of Flynn’s

murder. Dale Carlisle, who before the baseball game had not seen

Green since the ninth grade, claimed Green had short, cropped hair

the day of the murder. Parker pointed out that this contrasted with

Green’s hair at the time of the offense, 26 his hair in the photo line-

up, and Hallock’s description of the man’s hair at her deposition:

greasy hair with a sort of sheen or perm. Carlisle also said Green

was wearing desert boots or casual-type wear, not the heavy work

boots Hallock described.

Willie Hampton, in his initial statement to the police, said

Green was wearing some sort of garment but not a field jacket. At

the time, he could not remember if it was black or blue. Parker

claimed it was only the newspaper article that “refreshed” Hamp-

ton’s memory.

Green’s witness, Charles Smith, on the other hand, said

Green was not wearing an army jacket and that he was wearing

tennis shoes. Furthermore, James Carn testified that Green was

with him at the time of the murder. Contrary to the State’s claim

25 Hillery

was acquitted of the same federal drug offenses for which Sheila was

convicted.

26 Green’s counsel cited Hampton and Smith’s testimony that Green’s hair was

very short at the ballpark on the day of the murder.

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18-13524 Opinion of the Court 23

that Carn might be mis-remembering which night he saw Green—

Carn did not come forward until a year later—Parker argued that

Carn remembered the night he saw Green because of the argument

at Brothers’ house.

Parker also argued that it was impossible to know how Czar

tracked to Peterkin’s house. The scent of other animals or humans

could have disturbed the track, and the smell of the dogs at Peter-

kin’s home could have attracted Czar. The police also neglected to

have Czar attempt to track the individual or individuals who made

additional prints at the Holder Park scene.

In the end, Parker highlighted a litany of facts which he be-

lieved pointed to Hallock as the killer, not Green: Flynn’s hands

were tied “for comfort” rather than security; Hallock was allegedly

jerked from the truck more than once but had no injuries; her left

handprint and fingerprints were all over the truck, but Green’s

were not; Hallock initially told police she did not know where the

perpetrator was when she fled but later claimed she saw the man

poised to shoot as she drove away; Hallock was consistently able

to escape the armed kidnapper’s grasp without getting shot; there

were no tracks in the grove, which would indicate the black man

fled on foot; Flynn failed to identify the shooter when asked, re-

peating only “I want to go home. Just get me out of here”; the

handgun Flynn supposedly fired was found four to five feet away

from him; Flynn suffered an injury to his right rear thigh, consistent

with someone dragging him headfirst; Hallock drove to Flynn’s

best friend’s house to get help, not her parent’s house, or the

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24 Opinion of the Court 18-13524

hospital on US 1; miraculously, no one was injured when the gun

discharged while the man was tying Flynn’s hands behind his back;

Flynn was sleeping with another woman at the same time as Hal-

lock, and Hallock was not happy about it; the bullet that killed

Flynn could have come from his own gun; and the truck’s glove

box was broken, causing it to dump its contents on the floor when

opened, yet the perpetrator somehow did not notice when Hallock

opened it and removed Flynn’s gun. While he never explicitly

named Hallock as the killer, Parker left the firm impression with

the jury that, in his mind, she was the culprit.

Philip Williams, the State’s second chair, gave the State’s re-

buttal. He focused on what the State considered to be Green’s real

defense—that Hallock, “a jealous lover,” did the killing. Except

that Parker would not come right out and say it. Parker “alluded

to the fact that the killer . . . may have been Kim Hallock.” So,

Williams asked, “why wouldn’t Parker just say it?” The answer:

“He wouldn’t because it’s ludicrous, and he doesn’t have the cour-

age just to come right out and say it. I think she killed” Flynn. Par-

ker, he said, was just “grasping at straws.”

Williams accused Parker of misrepresenting Hallock’s testi-

mony about the alleged encounter with Green. So, he proceeded

to review Hallock’s testimony about it in detail. Then, he turned

to Czar’s tracking of the footprints to Peterkin’s house on Briarcliff

Way, where Green lived according to his sister, Sheila. From there,

it was only a “quarter of a mile by foot on a road . . . up to the

dunes” where Flynn parked his pickup truck.

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18-13524 Opinion of the Court 25

Williams explained the absence of Green’s fingerprints on

Flynn’s truck. “They couldn’t [even] find the prints of the guy who

owned the truck,” he said. Finally, to rebut Parker’s criticism of

Hallock’s identification of Green based on her observations of him

that night, Williams walked the jury through her testimony.

Williams closed by reminding the jury of the damning testi-

mony of Sheila Green, Lonnie Hillery, and Jerome Murray, and

asked the jury to use its common sense.

2.

At the end of the guilt-innocence phase, the jury found

Green guilty of all charges. The penalty phase on the trial of Count

I followed. The State introduced proof that Green had been con-

victed of armed robbery in New York in 1977 and urged the jury to

recommend a death sentence based on four aggravating factors: (1)

Green was previously convicted of a violent felony; (2) the capital

felony was committed while Green was engaged in kidnapping; (3)

the murder was committed for pecuniary gain; and (4) the murder

was especially heinous, atrocious, and cruel. With that, the State

rested.

Green’s defense was brief. Parker called two witnesses,

Shirley and Damon Jones. They testified about Green’s upbringing

in a dysfunctional family. When Green was in prison in New York,

his father shot and killed his mother before committing suicide; this

tragedy had a devastating effect on Green.

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26 Opinion of the Court 18-13524

The jury recommended the imposition of a death sentence

by a vote of eight to four, and the Circuit Judge imposed the sen-

tence after finding the aggravating factors listed by the State and no

statutory or non-statutory mitigating factors. Green v. State

(Green I), 641 So. 2d 391, 395–96 (Fla. 1994).

D.

Green appealed his convictions and death sentence to the

Supreme Court of Florida. Green I, 641 So. 2d at 391. He chal-

lenged the validity of his convictions on four grounds 27 and his

death sentence on five. 28 He was unsuccessful. The Florida

27 The four grounds for overturning Green’s conviction were:

Whether (1) the trial court erred in admitting evidence of dog

scent tracking; (2) the trial court erred in denying Green’s mo-

tion to suppress Kim Hallock’s identification; (3) the trial court

erred in denying Green’s motion for the jury to view the mur-

der scene; (4) the trial court erred in instructing the jury on

flight.

Green I, 641 So. 2d at 394 n.1.

28 The five grounds for overturning Green’s death sentence were:

(5) the trial court erred in considering as separate aggravating

circumstances that Green committed the murder for pecuni-

ary gain and Green committed the murder during a kidnap-

ping; (6) the trial court erred in finding that the murder was

heinous, atrocious, and cruel; (7) the trial court improperly re-

fused to find mitigating circumstances; (8) the death penalty is

disproportionate; and (9) the heinous, atrocious, or cruel ag-

gravator is unconstitutionally vague.

Green I, 641 So. 2d at 394 n.1.

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18-13524 Opinion of the Court 27

Supreme Court rejected all but one of the grounds 29 on the merits

and affirmed the Circuit Court’s judgment. One of the grounds the

Court rejected is pertinent here: the Florida Supreme Court re-

jected Green’s argument that the Circuit Court erred in denying

Green’s motion to suppress Hallock’s identification of him as

Flynn’s killer in the pretrial photographic lineup and at trial. Id. at

395 n.2.

II.

On March 18, 1997, Green, represented by Capital Collateral

Regional Counsel (“Collateral Counsel”), moved the Circuit Court

of Brevard County pursuant to Florida Rule of Criminal Procedure

3.850 30 to vacate his convictions and death sentence. 31 The motion

was amended on November 30, 2001. In the interim, the Florida

Department of Law Enforcement (“FDLE”) conducted a post-trial

29The Florida Supreme Court ruled in Green’s favor on the ground (9) chal-

lenge to his death sentence but did not set aside the sentence. As indicated

infra part II.C, however, the sentence was subsequently vacated, and Green

was sentenced to life imprisonment instead.

30Green filed the motion under Rule 3.851 as well as Rule 3.850 because Rule

3.851 applies to capital cases. For purposes here, the rules are identical. We

refer to them as Rule 3.850.

31The motion was a mere “shell.” It had to be filed in skeleton fashion to toll

the time in which Green would have to petition a federal court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the event the state courts failed

to grant him the relief he requested.

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28 Opinion of the Court 18-13524

investigation into Green’s case, portions of which were relied upon

by Green in the amended motion.

As amended, Green’s motion contained twelve numbered

claims, I through XII. All were brought under the First and/or Fifth

and/or Sixth and/or Eighth Amendments and the Fourteenth

Amendment. Many contained multiple independent claims and

subclaims, some of which were mutually exclusive. 32

A.

Of the twelve claims presented to the Circuit Court, only

the first five challenged Green’s conviction and thus are relevant

here; the remaining seven claims challenged Green’s death sen-

tence. Claims I and III incorporated numerous subclaims: Claim I

had three subclaims, while Claim III had eight subclaims denoted

A through H, with Claim III-H having an additional five subclaims

of its own. The Circuit Court only considered the four claims33 the

Court deemed as stating a plausible claim for relief: Claim I-2,

Claim III-F, Claim III-H-4, and Claim IV.

32 One of the Circuit Court’s tasks in ruling on Green’s Rule 3.850 motion was

to identify the claims rendered legally insufficient because other claims effec-

tively foreclosed them.

33These four claims were all based on the Due Process Clause of the Four-

teenth Amendment and/or the “Assistance of Counsel Clause” of the Sixth

Amendment as made applicable to the States. Gideon v. Wainwright, 372 U.S.

335, 83 S. Ct. 792 (1963).

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18-13524 Opinion of the Court 29

Claim I-2 alleged that defense counsel rendered ineffective

assistance of counsel under the Strickland v. Washington34 stand-

ard in failing to move the trial court to excuse a prospective juror

for cause or strike the juror peremptorily. Claim III-F alleged that

defense counsel was ineffective under Strickland in failing to obtain

and impeach Hallock at trial with a statement defense counsel was

or should have been aware of—that Green made her tie Flynn’s

hands behind his back with a shoelace. Claim III-H presented five

claims for violations of the Brady and Giglio rules. 35 Claim III-H-4,

34466 U.S. 668, 104 S. Ct. 2052 (1984).

35Claim III-H, entitled “Suppression of favorable impeaching and/or exculpa-

tory evidence,” alleged the following four additional Brady claims, none of

which are at issue in this appeal.

Claim III-H-1 alleged that Green was with Lori Rains at the time of

Flynn’s murder and that Sheriff’s Office “agents Fair and Nyquist . . . threat-

ened to . . . charge her with accessory to murder” if she testified in Green’s

defense as an alibi witness. As a result, Rains did not appear for trial.

Claim III-H-2 alleged that Sergeant Fair failed to disclose to the defense

as required by the Brady rule “around 70 loose photographs” that he showed

to Hallock at the North Precinct station on April 4, 1989.

Claim III-H-3 alleged Agent Nyquist failed to disclose to the defense as

required by the Brady rule notes Sheryl Mattieu, Kim Hallock’s sister, made

during an interview with Agent Nyquist about a conversation she had with

Hallock regarding the murder.

Claim III-H-5 was presented in a written argument Collateral Counsel

submitted to the Circuit Court following the evidentiary hearing it held sub-

sequent to the Huff hearing. The Court therefore considered it. The claim

concerned the State’s failure to disclose some three by five cards of the

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30 Opinion of the Court 18-13524

which provided the principal basis for the writ of habeas corpus the

District Court issued, 36 alleged that the prosecutor failed to disclose

to the defense as required by Brady the handwritten notes he made

of a pretrial conversation he had with Diane Clarke and Mark

Rixey. These notes included several investigative facts from the

night of the murder, some of which Clarke and Rixey personally

observed on the night of the murder and some of which were based

on hearsay, that led them to suspect that Hallock killed Flynn.

Claim IV alleged that newly discovered evidence consisting of the

recantation of the trial testimony of three prosecution witnesses,

Sheila Green, Lonnie Hillery, and Jerome Murray, rendered

Green’s convictions constitutionally unreliable. 37

After the State responded to the amended Rule 3.850 mo-

tion, the Circuit Court convened a hearing with the parties’ coun-

sel on May 13, 2002, pursuant to Huff v. State, 622 So. 2d 982 (Fla.

1993). This hearing, known as a Huff hearing, provides counsel

approximately seventy mugshots Sergeant Fair and Agent Nyquist showed to

Hallock at the North Precinct station on April 4, 1989.

36 See infra part V.

37Claim IV sought a new trial under Florida law based on newly discovered

evidence, and that is how the Florida Supreme Court viewed the claim. It

decided the claim based on Florida law, not a holding of the United States Su-

preme Court. See Green II, 975 So. 2d at 1099. Later, in a successive Rule

3.850 motion, Green would present a claim that the State induced Sheila

Green, Lonnie Hillery, and Jerome Murray to testify falsely at trial in violation

of the Supreme Court’s holding in United States v. Giglio, 405 U.S. 159, 92 S.

Ct. 763 (1972). See infra part VI.C.

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18-13524 Opinion of the Court 31

with an opportunity to be heard on an initial (as distinguished from

a successive) 3.850 motion. Id. at 983. At the hearing, the court

entertains argument on the legal sufficiency of the claims the mo-

tion presents. It identifies the claims that can be adjudicated with-

out an evidentiary hearing solely on the basis of the record of the

movant’s criminal prosecution and the claims that require an evi-

dentiary hearing. Id.

After considering what counsel had to say, the Circuit Court

identified the plausible claims. Of the claims relevant here, it con-

cluded that Claims I-2, III-F, and IV required an evidentiary hearing

but Claim III-H-4 did not. The Court therefore adjudicated Claim

III-H-4 based on the records of the pre-trial and trial proceedings in

Green’s prosecution, the Huff hearing, and Claim III-H-4’s factual

allegations. On July 22, 2002, the Circuit Court issued a written

order denying relief on Claim III-H-4.

The Circuit Court held evidentiary hearings on the remain-

ing three claims on April 24–25, 2003, October 28–29, 2003, Febru-

ary 24–26, 2004, June 24–25, 2004, and October 4, 2004. Then, in

an order entered on November 22, 2005, the Court decided Claims

I-2, III-F, and IV based on the record of Green’s prosecution and

the testimony and other evidence the parties presented during the

evidentiary hearing.

Below, we describe these four claims in full and relate the

findings of fact and conclusions of law the Circuit Court made in

denying them. We start with Claim III-H-4 because the Court de-

cided it without an evidentiary hearing.

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32 Opinion of the Court 18-13524

1.

Claim III-H-4 consisted of two paragraphs:38

38 The style of Claim III-H reads:

Claim III

MR. GREEN WAS DENIED THE [1] EFFECTIVE

ASSISTANCE OF COUNSEL PRETRIAL AND AT

THE GUILT/INNOCENCE PHASE OF HIS TRIAL

IN VIOLATION OF THE SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS. COUNSEL

FAILED TO ADEQUATELY INVESTIGATE,

PREPARE AND PRESENT THE DEFENSE CASE

AND CHALLENGE THE STATE’S CASE. [2]

WHERE EXCULPATORY EVIDENCE WAS

SUPPRESSED OR CONCEALED, MR. GREEN IS

ENTITLED TO RELIEF UNDER BRADY AND/OR

GIGLIO.

....

H. SUPPRESSION OF FAVORABLE

IMPEACHING AND/OR EXCULPATORY

EVIDENCE.

Although the style of the heading of Claim III combines Green’s claims that

defense counsel provided ineffective assistance of counsel under Strickland

with his very different claims that the State concealed exculpatory evidence in

violation of the Brady and/or Giglio rules, neither counsel nor the Court men-

tioned the ineffective assistance language in the style of Claim III when they

considered Claim III-H at the Huff hearing on May 31, 2002. The Circuit

Court reduced Claim III-H-4 to a claim that the State—specifically, prosecutor

White—failed to disclose the August 28, 1989, notes to the defense in violation

of the Brady rule. The Claim III claims of ineffective assistance of counsel

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18-13524 Opinion of the Court 33

51. A handwritten police statement dated 8/28/89

with the names Diane Clarke and Mark Rixey under-

lined on the front page . . . was not disclosed to the

defense at trial. 39 It contains the following state-

ments:

Found gun on the ground around 4-5 ft. from

W/M. There was no indication that he had

moved. 40

were explicitly asserted elsewhere in Claims III, in A through G, as follows:

“Defense counsel rendered prejudicially ineffective assistance of counsel dur-

ing the guilt/innocence phase of the trial in ways including but not limited to

the following”—A, “Failure to obtain and maintain file”; B, “Failure to Inves-

tigate and Develop issues Relating to Cross-Race Identification, 1. Failure to

retain an expert witness, 2. Failure to request a special instruction, 3. Failure

to cross examine and argue”; C, “Failure to Investigate and Preserve Exculpa-

tory and Impeaching Evidence Relating to Impressions”; D, Failure to Investi-

gate and Present Exculpatory and Impeaching Evidence Relating to Footprint

Impressions”; E, Failure to Investigate and Present Exculpatory and Impeach-

ing Evidence Relating to the Alleged Murder Weapon”; F, “Failure to Investi-

gate and Present Exculpatory and Impeaching Evidence Relating to the Initial

Police Investigation”; G, Failure to Investigate and Challenge the State’s The-

ory of Flight.”

39 The “police statement” was actually prosecutor White’s notes. Green ob-

tained the notes in a public records request made pursuant to Chapter 119 of

the Florida Code, i.e., Fla. Stat. § 119.01.

40Clarke and Rixey observed the first two investigative facts after arriving in

the orange grove where they found Flynn.

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34 Opinion of the Court 18-13524

Did see puddle of blood right under the V. Also

saw clothes near the victim & another location

saw blood on the ground a foot or two from

the gun.

....

Mark [Rixey] & Diane [Clarke] suspect girl did

it, She changed her story couple time 41 . . . . [?]

She [?] said she tied his hands behind his back.42

Thinks she gave them very good [?] directions

(J.J.[?] & U.S. 1) and had driven all the way to

Oak. Park Tr. Pk.

Also noticed she never asked how victim was

while at homicide. 43

41 Clarke and Rixey left the orange grove scene after Criminalist Demers and

Agent Nyquist arrived and had no further involvement in the homicide inves-

tigation. Their source for this statement in White’s notes likely came from

Deputy Walker or one or more Sheriff’s Office investigators involved in the

investigation—or from pure scuttlebutt.

42Clarke and Rixey never saw or spoke to Hallock. The only other reference

to Hallock tying Flynn’s hands appeared in Deputy Walker’s police report,

which was approved by Sgt. Clarke. In his deposition, Walker testified that he

did not recall speaking with Clarke or Rixey about the investigation. There-

fore, Clarke and Rixey probably learned of this “tied his hands” statement from

Walker’s report.

43 Clarke and Rixey likely learned this from Walker.

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18-13524 Opinion of the Court 35

Didn’t see any footprint – didn’t see any cas-

ing. 44

She wouldn’t go down there to the scene. 45

Why wouldn’t guy say who shot him. Just said

“I want to go home.”46 Was fairly calm while

there.

52. The first sentence indicates that Flynn went

down right where he was shot. That the gun was four

to five feet away from the victim and that there was

no indication that he had moved indicates that he was

not in possession of the gun at the time he was shot.

This contradicts Ms. Hallock’s version of a gunfight.

The fact that Ms. Hallock refused to lead the police to

the scene where her companion lay bleeding to death,

gave bad directions, coupled with other evidence

such as the fact that she drove past the hospital when

supposedly fleeing the scene, strongly suggest that

44Clarke and Rixey either observed this at the orange grove or acquired the

information from those who came to the orange grove after they left.

45 The source of this statement is also unknown, and its meaning questionable.

In his deposition, Rixey testified that he “was a little nervous being out there,

because it “was dark, [b]oth of [our] flashlights had died,” they “[w]ere hearing

noises,” and “there was somebody running around with a gun.” Clarke testi-

fied that Hallock “didn’t dare go down there,” so she “told Deputy Walker to

. . . stay with her.” Walker also testified that Hallock “refused to go any fur-

ther,” so Clark and Rixey proceeded alone.

46Unlike many of the other claims in this handwritten statement, Clarke and

Rixey personally heard Flynn say this.

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36 Opinion of the Court 18-13524

she did not want the victim to live to tell the truth.

The statements should have been disclosed to defense

counsel, but were not. 47

During the Huff hearing, Collateral Counsel, Christopher

White, and the Court engaged in a free-flowing discussion about

these statements to determine whether an evidentiary hearing

would be necessary to flesh them out. This is what was said:

COLLATERAL COUNSEL: [Claim III-H is] a very

general claim about . . . possible suppression of excul-

patory evidence. I go through a number of instances.

....

[T]here were notes . . . made by Mr. White.

They reflect the results of his speaking to . . . Diane

Clark[e] and Mark Rixey.

And they include statements to the effect that they

think the girl did it and some specific questions about

the crime scene and so on and so forth.

I allege those should have been turned over to the de-

fense counsel at the time. The State won’t agree with

that position.

The Circuit Court omitted paragraph fifty-two, which consists of Collateral

47

Counsel’s interpretation of White’s notes, in adjudicating Claim III-H-4.

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18-13524 Opinion of the Court 37

Now that they are there, I argue the information

should [have been] made available to defense coun-

sel.

I think that concludes that.

THE COURT: Mr. White. 48

....

MR. WHITE:

....

It’s not as if Mr. Parker failed to understand that there

was an issue here with Kim.

[In his closing argument to the jury,] he walked right

up the line of trying to accuse her of actually being

the killer which is the point of the gun.

There is only one gun and actually Kim shot it.

He even went so far as to say at one point on page

1864 of the trial transcript.

48After responding to Collateral Counsel’s other Claim III-H Brady claims

(which the Court and counsel had been discussing), White addressed the claim

based on his handwritten notes. What follows are White’s comments on

whether defense counsel, John Parker, was aware of what the notes revealed,

including Clarke’s and Rixey’s suspicion that Hallock shot Flynn.

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38 Opinion of the Court 18-13524

Chip was sleeping with another woman while he was

sleeping with Kim and we know that Kim wasn’t very

happy about it.

So that is one of the more dramatic statements they

made.

He walked right up to the line and he never came

right out and said ladies and gentlemen Kim Hallock

killed Flynn.

The reasons he didn’t was because of all the evidence

that indicates that there was someone else there; all

the footprints; the wallet at the scene and so on and

on.

But at any rate that is my argument as to that

....

The only other issue . . . under this claim are the ar-

guments relating to Walker and Clark[e].

The first one is the allegation in the notes that I made,

those are my notes that indicate that they saw a pud-

dle of blood on the ground four or five feet from the

white male. This was Chip.

There is no indication that he had moved.

I guess from that they extrapolate that the gun is four

or five feet away and it is really too far away for it to

have been caused to be there by Chip.

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18-13524 Opinion of the Court 39

I’m not sure how [Collateral Counsel] reaches that

conclusion.

But somehow he appears to be headed to somehow

exculpatory evidence I should have given [Parker],

and this puddle of blood within a foot or two of the

gun and obviously . . . where Chip was.

All of those things are in the photographs and they’re

all available in testimony of witnesses.

I don’t believe I have any duty to say to the defense

have you guys thought about this angle and this an-

gle?

I gave them all the evidence.

Mark and Diane suspect – most – to the idea to try to

make it out Kim did it.

Their testimony and their opinions are not going to

be (unintelligible). Why do I have to tell Mr. Parker

that they have opinions and (unintelligible) that she

did not.

I don’t have this obligation.

....

Nothing in the testimony other than that Mark and

Diane . . . think she had done it.

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40 Opinion of the Court 18-13524

There was nothing in the form of Brady evidence and

neither of them talked to Kim.

And all of the stuff lying (phonetic) from this or that

they are getting out of the records in the case Mr. Par-

ker already ha[d].

I submit to you an evidence hearing is not required

and Brady violation fails for all of those reasons.

I think that pretty much covers it.

THE COURT: Rebuttal?

(Emphasis added).

Collateral Counsel offered no rebuttal to White’s comments

about the handwritten notes of August 28, 1989, instead changing

topics to an unrelated matter. More to the point, he did not ask for

an evidentiary hearing to dispel White’s statement to the effect that

what Clarke and Rixey told White came “out of the records in the

case Mr. Parker already ha[d].”

In its July 22 order denying Claim III-H-4, the Circuit Court

found no merit in the allegation that White’s failure to disclose the

notes violated the Brady rule. “All of the information in the . . .

notes [was] disclosed and known by [Parker] before trial,” and “the

Defendant has shown no prejudice.” Parker acquired most of the

information during the extensive pretrial discovery he and the As-

sistant Public Defender who preceded him conducted, particularly

in examining Sergeant Clarke, Deputy Rixey, Deputy Walker, and

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18-13524 Opinion of the Court 41

Hallock on deposition. 49 After quoting White’s notes as set out in

Claim III-H-4, supra, the Circuit Court also identified what Parker

knew and its source:

Deputy Rixey testified that he found a .22 revolver

four to five feet from the victim. Deputy Rixey testi-

fied at trial that when he found the victim, he was ly-

ing in blood. Deputy Rixey also testified that he

found clothes items along the side of the road. In his

deposition, Deputy Rixey testified that he found

clothes near the body. During his deposition, Deputy

Rixey testified that also he found blood near the vic-

tim. The purported opinion of Deputies Rixey and

Clarke that they suspected that Hallock murdered

Flynn would not have been admissible at trial. The

Defendant also alleges that Hallock gave bad direc-

tions, but that issue was also known by defense coun-

sel as demonstrated by the deposition of Diane

Clark[e]. Furthermore, the allegation that evidence

was suppressed regarding Hallock’s failure to ask

49The Assistant Public Defender, Greg Hammel, took Rixey’s deposition on

September 6, 1989. Parker deposed Clarke on February 12, 1990, Hallock on

February 13, 1990, and Walker on March 5, 1990, all well prior to the com-

mencement of Green’s trial. In addition to the testimony of these deponents,

Parker had copies of the statements Hallock made during questioning at the

Sheriff’s North Precinct station on April 4, 1989, at 8:20 a.m., 9:20 p.m., and

9:32 p.m. Parker also had the report Walker filed with the Sheriff’s Office on

April 5, 1989, which included what Hallock related to him about her encounter

with Green, Rixey’s police report, and access to several other reports and ex-

hibits the State disclosed, some of which were introduced into evidence at

Green’s trial.

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42 Opinion of the Court 18-13524

about the victim’s welfare is without merit as Deputy

Wade Walker’s deposition demonstrates that counsel

knew there was no reference to her asking how he

was. The fact that Hallock did not drive to the hospi-

tal after the shooting and refused to go back to the

scene was a matter of record at trial. The hospital was

an option as a place to go for help, but she turned off

U.S. 1 and drove an equal distance to the home of a

friend, David Stroup, to call for help. During cross-

examination of Hallock, Parker questioned her failure

to stop at houses of other friends, her decision not to

go to the hospital, and why she did not just drive to

her parents’ house. During closing argument, Mr.

Parker noted that she could have gone to houses

along the roads near the orange grove and that she

did not go to the hospital. Moreover, any suggestion

that Kim Hallock was the murderer defense counsel

knew both before and at trial as evidenced by argu-

ment at trial and a pre-trial motion in which he re-

quested Hallock’s father’s gun to see if it was the mur-

der weapon. Parker knew at trial that no casings were

found at the scene, as he specifically questioned Ser-

geant Russell Cockriel about this fact. Moreover, Par-

ker was aware that no bare footprints were at the

scene, as evidenced by his cross-examination at trial

of Sergeant Russell Cockriel as to this fact. Flynn’s

failure to identify the suspect while he was dying was

also known to counsel as shown by the depositions of

Deputy Rixey and Clark[e].

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18-13524 Opinion of the Court 43

Thus, the Court found that White’s failure to disclose his

notes could not have prejudiced the defense. 50 The facts underly-

ing Rixey and Clarke’s suspicion were known to defense counsel

prior to trial and, the non-disclosure aside, “[t]he purported

50The Circuit Court did not recite the elements of a Brady claim when decid-

ing Claim III-H-4. The Supreme Court of Florida, in reviewing one of Green’s

other Brady claims, correctly recited the elements of a Brady claim and the

defendant’s burden in proving it:

To establish a Brady violation, the defendant has the burden

to show (1) that favorable evidence—either exculpatory or im-

peaching, (2) was willfully or inadvertently suppressed by the

State, and (3) because the evidence was material, the defendant

was prejudiced. Strickler v. Greene, 527 U.S. 263, 281–82, 119

S. Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760

So. 2d 903, 910 (Fla.2000). To meet the materiality prong, the

defendant must demonstrate a reasonable probability that had

the suppressed evidence been disclosed the jury would have

reached a different verdict. Strickler, 527 U.S. at 289, 119 S. Ct.

1936. A reasonable probability is a probability sufficient to un-

dermine confidence in the outcome. Way, 760 So. 2d at 913;

see also Strickler, 527 U.S. at 290, 119 S. Ct. 1936. The remedy

of retrial for the State's suppression of evidence favorable to

the defense is available when “the favorable evidence could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.” Strickler, 527

U.S. at 290, 119 S. Ct. 1936 (quoting Kyles v. Whitley, 514 U.S.

419, 435, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995))

Green II, 975 So. 2d 1101–02. Green made no objection in the Circuit Court

to the Court’s application of Brady to Claim III-H-4. As indicated infra, he did

not appeal the Circuit Court’s disposition of the claim to the Supreme Court

of Florida.

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44 Opinion of the Court 18-13524

opinion of Deputies Rixey and Clark[e] that they suspected that

Hallock murdered Flynn would not have been admissible at trial.”

Clarke and Rixey were the first law enforcement officers to respond

to the scene of the murder. After Criminalist Debbie Demers and

case agent Scott Nyquist arrived, Clarke and Rixey left the scene

and had no further involvement in the criminal investigation. Ob-

viously, their suspicion that Hallock shot Flynn was based on hear-

say. As the Circuit Court found, “any suggestion that Kim was the

murderer” was known and exploited by Parker before and at trial.

Rixey and Clarke simply connected the dots much like Parker did

in his argument to the jury at the close of the guilt-innocence phase

of Green’s trial.

* * *

In identifying in its July 22 order what Parker knew and its

source, the Circuit Court did not mention the statement in White’s

notes, “She [?] said she tied his hands behind his back.” The source

of the statement was the report Deputy Walker filed in the Sheriff’s

Office on April 5, 1989. It reads as follows:

I responded to Oak Park Trailer Park, Lot #33 and

met with Kim S. Hallock. Ms. Hallock stated that her

boyfriend, Charles L. Flynn Jr. had been shot in an or-

ange grove. I stated to Ms. Hallock that she should

go with me to show where the incident occurred. She

agreed and led myself and Deputy Rixey . . . and Sgt.

Clarke . . . to the scene where the shooting occurred.

Ms. Hallock stated that she and Mr. Flynn were in his

1982 Chevy pickup at Holder Park when this black

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18-13524 Opinion of the Court 45

male approached the pickup. Mr. Flynn exited the

pickup and then Ms. Hallock was told to tie Mr.

Flynn’s hands behind his back with a shoe string. The

black male then told both Mr. Flynn and Ms. Hallock

to sit in the truck and look at the floorboard. The

truck was then driven by the black male to the orange

groves off Hammock Rd. . . .

Parker was in possession of Walker’s report no later than

when he deposed Deputy Walker on March 5, 1990. Clarke and

Rixey, who never saw or spoke to Hallock and had no further in-

vestigative role, simply told White what they had heard from

Walker. This explains the statement’s appearance in White’s notes

of August 28, 1989.

At the Huff hearing, Collateral Counsel said nothing in re-

sponse to White’s comment that what Clarke and Rixey told him

came “out of the records in the case Mr. Parker already ha[d].” Par-

ker had all the information White’s notes contained including the

“she tied his hands” statement. The statement was in Walker’s re-

port that had been disclosed to Parker.

Did Collateral Counsel say nothing about the hands-tying

statement because he knew that Parker had access to Walker’s re-

port? This is inferable from the allegations Collateral Counsel

made in Green’s Rule 3.850 motion in support of Claim III-F.

Claim III-F alleged that Parker had access to Hallock’s hands-tying

statement but failed to confront Hallock with it in cross-examining

her at trial and that the failure constituted ineffective assistance of

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46 Opinion of the Court 18-13524

counsel. As indicated in our discussion of Claim III-F, see infra part

II.A.3, the statement was memorialized in Deputy Walker’s report

and presumably in the notes Walker made on a notepad he kept.

Parker questioned Walker about his report and the notepad when

he took Walker’s deposition on March 5, 1990. Walker testified

that Hallock told him nothing about what happened other than

what was included in his report, but agreed to hold onto the note-

pad at Parker’s request.

2.

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18-13524 Opinion of the Court 47

Claim I-2 51 alleged that Parker was ineffective under the

Strickland standard52 for failing to move the trial court to excuse

prospective Juror Harold Guiles for cause or to strike him from the

jury venire peremptorily. During voir dire, Guiles revealed that his

niece had been murdered three years earlier. He was also “ineffec-

tive for failing to ask follow-up questions after Juror Guiles stated

that his niece had been murdered.”

51 The style of Claims I reads:

CLAIM I

MR. GREEN WAS DENIED HIS RIGHTS UNDER

THE FIRST, SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. . . . [1] BECAUSE OF JUROR

MISCONDUCT. [2] DEFENSE COUNSEL WAS

INEFFECTIVE FOR FAILING TO QUESTION

JUROR GUILES REGARDING THE MURDER OF

HIS NIECE, CHALLENGE HIM FOR CAUSES, OR

TO HAVE HIM EXCUSED BY EXERCISING A

PEREMPTORY CHALLENGE. [3] THE COURT

COMMITTED FUNDAMENTAL ERROR BY

FAILING TO EXCUSE JUROR GUILES SUA

SPONTE.

Of the three subclaims in Claim I, only Claim I-2 is relevant here.

52 The Strickland standard is set out in note 119 infra. There is no question that

in deciding Green’s ineffective assistance claims—Claims I-2 and III-F—the

Circuit Court and the Florida Supreme Court applied the Strickland standard.

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48 Opinion of the Court 18-13524

This is the part of Guiles’ voir dire which, according to

Green, should have prompted Parker to ensure that Guiles did not

serve on his jury:

The Court: Have any of you been the victim of a

crime or has any member of your immediate family

been the victim of a crime?

....

Mr. Guiles: My niece was murdered, but that's not

immediate family.

The Court: How long ago was that?

Mr. Guiles: Three years ago.

The Court: Three years ago?

Mr. Guiles: (Nods head.)

The Court: Where was it?

Mr. Guiles: In Naples.

The Court: Would you be able to set aside that?

Mr. Guiles: Well, it doesn't seem like it's the same

kind of thing.

The Court: Would you be able to set it aside and not

let it affect the case?

Mr. Guiles: Yes.

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18-13524 Opinion of the Court 49

Neither the Court nor Parker nor the prosecutor questioned

Guiles further regarding his niece’s murder. Parker did not move

the Court to excuse Guiles from the venire for cause on this basis,

and he did not remove him with a peremptory challenge.

The Circuit Court concluded that Green failed to establish

both prongs of a Strickland ineffective assistance claim—deficient

performance and resulting prejudice—and therefore denied Claim

I-2. Parker could not have challenged Guiles for cause because, as

the Circuit Court found, Guiles demonstrated that he could serve

as an impartial juror by answering “yes” to the last question put to

him. This answer, in the Court’s view, “rehabilitat[ed]” Guiles as

a potential juror.

In denying Claim I-2, the Court did not overlook that Parker

could have pursued a challenge for cause by questioning Guiles fur-

ther or, if unsuccessful, could have exercised a peremptory chal-

lenge. But Parker’s testimony during the evidentiary hearing

demonstrated to the Court’s satisfaction that he was not Strickland

deficient in neglecting to pursue either course.

Parker testified that he tried to dismiss Guiles because of pre-

trial publicity, but the judge denied that motion. Parker also had

legitimate reasons for not peremptorily striking Guiles. The Circuit

Court stated in its November 22, 2005, order that Parker

did not exercise a peremptory challenge to strike Mr.

Guiles because he was concerned “that by exercising

peremptories, that we may, indeed, get people that

we wish we didn’t have.” Mr. Parker testified that he

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50 Opinion of the Court 18-13524

was quite pleased that there were eight women on

the jury, which he believed would be more favorable

to the defense, and that he feared that by exercising

additional peremptory challenges that more men

could end up on [Green’s] jury than women. Mr. Par-

ker testified that he thought that female jurors would

not believe Kim Hallock’s testimony. Mr. Parker fur-

ther testified that he discussed “heavily” with [Green]

and his paralegal, Ms. Quinn, whether Juror Guiles

should be removed from the jury. Mr. Parker testified

that “we were satisfied that Mr. Guiles would be able

to follow the law regarding the weighing of the evi-

dence, [and] separate himself from the fact that his

niece had been killed.”

The Circuit Court concluded that these reasons for not per-

emptorily striking Guiles were more than sufficient to defeat

an ineffective assistance claim.

3.

Claim III-F53 alleged that Parker was ineffective under the

Strickland standard for failing “to investigate and present

53 The style of Claim III-F reads:

Claim III

MR. GREEN WAS [1] DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL PRETRIAL AND AT

THE GUILT/INNOCENCE PHASE OF HIS TRIAL

IN VIOLATION OF THE SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS. COUNSEL

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18-13524 Opinion of the Court 51

FAILED TO ADEQUATELY INVESTIGATE,

PREPARE AND PRESENT THE DEFENSE CASE

AND CHALLENGE THE STATE’S CASE. WHERE

[2] EXCULPATORY EVIDENCE WAS SUPPRESSED

OR CONCEALED. MR. GREEN IS ENTITLED TO

RELIEF UNDER BRADY AND/OR GIGLIO.

....

F. FAILURE TO INVESTIGATE AND

PRESENT EXCULPATORY AND

IMPEACHING EVIDENCE RELATING TO

THE INITIAL POLICE INVESTIGATION.

(Emphasis added). Green’s position in the District Court and here on appeal

was and is that Claim III-F presented essentially two claims, one alleging inef-

fective assistance of counsel and the other a Brady violation. We disagree.

Claim III-F was based on the explicit allegation that Parker should have

been aware of Hallock’s statement to Deputy Walker on April 4, 1989, that

she tied Flynn’s hands behind his back, because Parker had access to Walker’s

police report. Parker rendered ineffective assistance because he failed to cross-

examine Hallock with her statement at Green’s trial. Parker also knew that

Walker kept a notepad where he wrote down what Hallock told him. Walker

agreed to hold on to the notepad so Parker could see it, but Green alleged that

Parker was “deficient . . . in failing to obtain this notebook or notepad.” Claim

III-F further alleged that what Walker wrote in his report was consistent with

what White’s notes of August 28, 1989, revealed: “Mark & Diane suspect the

girl did it. She changed her story couple of times. . . [?] She [?] said she tied his

hands behind his back.” It was also alleged to be consistent with the FDLE

report of its interview of Walker in 1999, which did not exist at the time of the

trial.

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52 Opinion of the Court 18-13524

exculpatory and impeaching evidence relating to the police inves-

tigation.” Specifically, Claim III-F alleged that Parker was ineffec-

tive for failing to investigate the “hands-tying” statement in Deputy

Walker’s report and impeach Hallock’s testimony at trial with it.

Hallock testified at trial that Green ordered her to give him a shoe-

lace from one of Flynn’s shoes, which he then used to tie Flynn’s

hands behind his back. However, Claim III-F alleged that Hallock

told Deputy Walker that “she was the one who tied Flynn’s hands

behind his back” per Green’s orders. In the report he filed in the

Sheriff’s Office on “4/5/89, at 2:05:50,” Walker wrote: “Ms. Hal-

lock stated that she and Flynn were in his 1982 Chevy pickup when

this black male approached the pickup. Mr. Flynn exited the pickup

and then Ms. Hallock was told to tie Mr. Flynn’s hands behind his

back.” 54

Claim III-F also relied upon the FDLE interview of Walker

that took place in 1999—well after the trial—and White’s notes

from his 1989 interview of Clarke and Rixey that said: “Mark & Di-

ane suspect the girl did it. She changed her story couple of times. .

Green’s position that Claim III-F pled a Brady claim was based on the

inclusion of this quotation in Claim III-F’s factual allegations. However, Claim

III-F cannot be fairly read as presenting the same Brady claim that was alleged

in Claim III-H-4. And even if it had, the Brady claim fell by the wayside during

the discussions and ruling at the Huff hearing.

54At that moment, Flynn was on his knees and Green was holding a gun to

Flynn’s head. A reasonable inference is that Hallock did what Green told her

to do.

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18-13524 Opinion of the Court 53

. [?] She [?] said she tied his hands behind his back.” Claim III-F

alleged that what “Diane Clarke and Mark Rixey” told White about

the tying of Flynn’s hands was “consistent with Dep. Walker’s rec-

ollection that Hallock said that she was the one who did the actual

tying of Flynn’s hands, and inconsistent with Hallock’s subsequent

statements and eventual trial testimony.” What Clarke and Rixey

told White about the tying of Flynn’s hands was consistent with

what Walker wrote in his report because what they told White

came from Walker. He was their source.

Green’s factual position was that Parker should have been

aware of what Walker wrote in his report, but

[Parker] did not confront Hallock at trial . . . with

Deputy Walker’s report that she had been the one to

tie Flynn’s hands . . . . [He] should have known about

the hands-tying issue because it was contained in

Deputy Walker’s report, but [he] did not ask any

questions about it in Walker’s deposition or at any

time during the trial.

To Green, this constituted ineffective assistance of counsel

under Strickland.

To prevail on Claim III-F, however, Green had to prove that

Hallock actually told Walker that she was the one who tied Flynn’s

hands and that Parker knew this prior to Green’s trial. 55 If he could

Unless he was armed with Hallock’s alleged statement to Walker, Parker

55

would not have been able to confront Hallock about a prior inconsistent

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54 Opinion of the Court 18-13524

have, Green should have proved the point during the evidentiary

hearing the Circuit Court held on Claim III-F. But he did not.

First, Green did not summon Walker to testify at the eviden-

tiary hearing. If he had summoned him and Walker had difficulty

recalling what Hallock told him on April 4, 1989, Green could have

used his report to refresh his recollection.56 Second, Green could

have obtained the notepad on which Walker jotted down what

Hallock said. Walker told Parker about the notepad when Parker

took his deposition pre-trial, on March 3, 1990. The notepad hap-

pened to be in Walker’s “locker” at the time. Parker asked him to

“hold on to it,” and Walker said he would. 57 Green alleged that

Parker “was ineffective for failing to obtain the notepad or notes.”

Without Walker’s testimony or his report or notepad in ev-

idence, 58 the Circuit Court realized that it would have to speculate

in order to find that Hallock told Walker that she tied Flynn’s hands

statement in the event she insisted that she told Walker that Green tied Flynn’s

hands. Parker needed Hallock’s alleged statement to Walker to impeach her

testimony that Green was the one who tied Flynn’s hands.

56It may also have been admissible in evidence under the official records rule

or as Walker’s past recollection recorded. See Fla. Stat. § 90.803(5), (8) (2001).

57Like the report, the notepad could be used to refresh Walker’s recollection

of what Hallock told him. If that failed, the notepad may have been admissible

as Walker’s past recollection recorded. See Fla. Stat. §§ 90.613, 90.803(5)

(2001).

58According to the Court, the location of the notepad at the time of the evi-

dentiary hearing was “unknown.”

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18-13524 Opinion of the Court 55

and thus that Parker rendered ineffective assistance of counsel in

failing to use the statement to impeach her testimony at trial, as

Claim III-F alleged. 59 But, the Court said, the “ineffective assistance

of counsel claim [could] not be based on speculation.”60

At the evidentiary hearing, Officer Walker was not

called to testify. Consequently, this Court is only left

with the allegation made by the Defendant in his post-

conviction motion as to what Officer Walker purport-

edly said in 1999 to FDLE concerning what Kim Hal-

lock told him. There has been no evidence produced

to establish the truthfulness that Kim make this state-

ment to Officer Walker. As to counsel’s alleged fail-

ure to obtain the notepad or notes, an ineffective as-

sistance of counsel claim cannot be based on specula-

tion that such notes might have contained helpful in-

formation.

Because speculation was all that Green had to rely on, the

Court denied Claim III-F.

* * *

Green’s position in the District Court was that Claim III-F

alleged both ineffective assistance of counsel and a Brady violation.

That is his position here as well. That position enabled him to

59 In deciding Claim III-F, the Circuit Court applied the Strickland standard.

60Collateral Counsel had White’s notes prior to the evidentiary hearing the

Circuit Court held on Claim III-F. Neither Clarke nor Rixey was asked who

told them that Hallock made the statements White’s notes reflected.

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56 Opinion of the Court 18-13524

convince the District Court to reject the State’s argument that

Claim III-H-4 had not been exhausted. And he hopes we will reject

the State’s argument too.

Collateral Counsel, who drafted the Rule 3.850 motion, did

not see the Brady violation Green saw in the District Court and

sees here now. Collateral Counsel included the “she did it” and

“she tied his hands” statements (from White’s notes) in presenting

Claim III-F—to buttress the claim’s allegation that Parker was

aware of the statements and was derelict in failing to cross-examine

Hallock with the hands-tying statement at trial. That Collateral

Counsel was pleading an ineffective assistance claim, not a Brady

claim, becomes clear when one reads the transcript of the Huff

hearing. It was readily agreed that Claim III-F, alleging ineffective

assistance, would receive an evidentiary hearing, while Claim III-

H-4, based on White’s notes, would not. This no doubt explains

why Collateral Counsel, during the discussion about White’s

notes, said nothing in response to White’s statement, obviously

made with reference to his notes, that “Parker already ha[d]” “all

of the stuff.”

To put a lid on this discussion, consider the brief Green filed

in the Florida Supreme Court in appealing the Circuit Court’s de-

termination of his Rule 3.850 motion. It contains not a word about

the Circuit Court’s denial of Claim III-H-4—but it does challenge

the Circuit Court’s denial of Claim III-F. The argument that the

Circuit Court’s Claim III-F ruling should be reversed replicates the

White notes’ statements Claim III-F cited in Green’s Rule 3.850

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18-13524 Opinion of the Court 57

motion. But the argument contains not even a hint that the state-

ments were there to prove a Brady violation. The Florida Supreme

Court, in affirming the Claim III-F ruling, did not see a Brady claim

at all. All it saw was an ineffective assistance of counsel claim.

Green v. State (Green II), 975 So. 2d 1090, 1104 (Fla. 2008).

4.

Claim IV61 alleged that Green’s convictions were constitu-

tionally unreliable in light of the fact that Sheila Green, Lonnie

Hillery, and Jerome Murray had recanted the testimony they gave

during the guilt-innocence phase of Green’s trial. The Circuit

61As expressed in the “Table of Contents” of Green’s brief to the Florida Su-

preme Court in the appeal of the Circuit Court’s disposition of his Rule 3.850

motion, Claim IV was this:

Green’s Convictions are Constitutionally Unreliable in Viola-

tion of the Fifth, Sixth, and Fourteenth Amendments as Estab-

lished by newly Discovered Evidence.

1. The Court erred in rejecting Shelia Green’s recan-

tation.

2. The Court erred in rejecting Lonnie Hillary’s re-

cantation by relying on trial testimony which was

shown to be incredible.

3. The Court erred in relying on the State’s presenta-

tion of newly discovered evidence of guilt,

4. The Court erred in considering MDNA testing re-

sults.

5. The Court erred in considering newly discovered

evidence of guilt, thereby violating the Defend-

ant’s right to trial by jury under the Sixth and Four-

teenth Amendments.

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58 Opinion of the Court 18-13524

Court denied Claim IV based on these findings of fact, which the

Florida Supreme Court effectively adopted: 62

First, Green argues that his convictions are

constitutionally unreliable in light of the fact that

Sheila Green, Lonnie Hillery, and Jerome Murray,

three of the State guilt phase witnesses, have recanted

their trial testimony. The trial court made the follow-

ing factual findings: First, Jerome Murray testified at

Green's trial that, shortly after the murder, Green ad-

mitted committing it and said he was going to

62The Florida Supreme Court effectively adopted the Circuit Court’s findings

of fact in adjudicating Claim IV under the “competent, substantial evidence”

standard:

When the trial court rules on a newly discovered evidence

claim after an evidentiary hearing, we review the trial court's

findings on questions of fact, the credibility of witnesses, and

the weight of the evidence for competent, substantial evi-

dence. Melendez v. State, 718 So. 2d 746, 747–48 (Fla.1998);

Blanco v. State, 702 So. 2d 1250, 1251 (Fla.1997). As with rul-

ings on other post-convictions claims, we review the trial

court's application of the law to the facts de novo. Cf. Hendrix

v. State, 908 So. 2d 412, 423 (Fla.2005) (reviewing de novo the

trial court's application of the law to the facts in ruling on a

postconviction claim that the government withheld material

evidence); Gore v. State, 846 So. 2d 461, 468 (Fla.2003) (review-

ing de novo the application of the law to the facts on a claim

of ineffective assistance of trial counsel).

Green II, 975 So. 2d at 1100 (emphasis added).

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18-13524 Opinion of the Court 59

disappear. At the postconviction evidentiary hearing,

the defense introduced three out-of-court statements

made by Murray in which he recanted his trial testi-

mony. In these statements, Murray stated that his en-

tire testimony was a lie and that he was under pres-

sure from law enforcement to fabricate. However, at

the evidentiary hearing, Murray claimed that he did

not remember making these post-trial statements be-

cause he was either tired or drunk. When questioned

about whether his post-sentencing statements were

inconsistent with his trial testimony, Murray exer-

cised his Fifth Amendment privilege against self-in-

crimination.63

Second, Sheila Green is Crosley Green's sister.

At Green's trial, Sheila testified that the day after the

homicide, Green admitted his involvement in the

shooting to her. Sheila had been convicted in federal

court for drug offenses and testified against Green in

return for consideration for a more lenient sentence

63 Murray gave the first of the three statements in writing to defense investi-

gator, Paul Ciolino, on August 3, 1999, the second statement via videotape to

Ciolino on August 3, 1999, and the third statement to the FDLE on October

13, 1999. In the first two statements, Murray said that his “trial testimony ‘was

a lie’.” In the third statement, he said he lied about Green saying that he had

killed a man. At the evidentiary hearing, Murray testified that “when FDLE

took his statement, he was advised that if he did not make the statement, he

could go to jail.” When asked at the evidentiary hearing “whether his post-

sentencing statements were inconsistent with his trial testimony,” he “exer-

cised his Fifth Amendment privilege against self-incrimination” and refused to

answer.

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60 Opinion of the Court 18-13524

for herself. At the evidentiary hearing, Sheila testified

that her testimony at Green's trial was untrue and

that Green never confessed to murdering Charles

Flynn.

Third, Lonnie Hillery is the father of Sheila

Green's child, and was her boyfriend at the time of

Green's trial. Hillery also testified that Green admit-

ted his involvement in the shooting to him. At the ev-

identiary hearing, Hillery said that he made up the

story as part of a plea deal to help Sheila receive a

more lenient sentence in her case.

Green II, 975 So. 2d at 1100.

The Circuit Court found that Murray’s statements, if intro-

duced as substantive evidence on retrial, would not change the out-

come of the trial, stating: “There [was] not a reasonable probability

that this would produce an acquittal on re-trial, given the other ev-

idence presented at trial.” Sheila Green “was not being forthright

at the evidentiary hearing regarding the alleged falsification of her

trial testimony.” Indeed, her testimony at the evidentiary hearing

was not credible. She was “presenting this unbelievable testimony

at the evidentiary hearing in an effort to please her brother (the

Defendant) and her family.” The Court likewise found Lonnie

Hillery’s testimony at the evidentiary hearing not credible and that

the outcome of the trial would not have been different if [he] had

not testified.

* * *

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18-13524 Opinion of the Court 61

Claim IV alleged that Green’s convictions were unreliable in

violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.64

But Claim IV was nothing more than a Rule 3.850 motion based on

state law. See Green II, 975 So. 2d at 1100–01. In his habeas peti-

tion to the District Court, though, Green transformed the claim

into a Giglio claim: “[T]he State ‘elicited or allowed to go uncor-

rected critical false testimony from key witnesses in violation of Gi-

glio v. United States . . . [T]he State ‘clearly relied on the false tes-

timony of’ Sheila Green, Hillery, and Murray.’” The District Court

recognized Claim IV as a Giglio claim—“based on these witnesses’

recantation of their trial testimony”—and concluded that the Cir-

cuit Court and the Florida Supreme Court treated it as such in

denying relief.

B.

The Circuit Court granted Green’s Rule 3.850 motion in

part and denied it in part. The Court granted the motion and va-

cated Green’s death sentence after finding that defense counsel was

ineffective under Strickland v. Washington during the penalty

phase of Green’s trial.65 The Court therefore held that Green was

64 We assume that the constitutional provision reasonably in play was the Due

Process Clause of the Fourteenth Amendment. Since Green was prosecuted

under state law and was represented by counsel, the Fifth, Sixth, and Eighth

Amendments could not be used to challenge his convictions.

65During the penalty phase, the prosecution introduced evidence of Green’s

prior unrelated felony convictions in New York as an aggravating factor.

These convictions were vacated prior to Green’s trial for the Flynn murder.

The Circuit Court found that Parker was ineffective in failing to investigate

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62 Opinion of the Court 18-13524

“entitled to a new penalty phase” proceeding on Count I of the in-

dictment. The Circuit Court denied the Rule 3.850 motion as to

Green’s convictions, concluding that he was “not entitled to a new

guilt phase” proceeding.

Green appealed the Circuit Court’s denial of the motion as

to his convictions. The State cross-appealed the vacation of

Green’s death sentence and grant of a new trial of the penalty

phase. Green II, 975 So. 2d at 1099, 1109.

C.

Green’s appellee brief to the Supreme Court of Florida pre-

sented twelve arguments. Arguments IV through IX 66 were

and discover the current status of the New York convictions and that the fail-

ure “was sufficiently prejudicial to [Green] in the penalty phase of this case to

warrant a new penalty phase proceeding.”

66The Table of Contents of Green’s brief labeled the six arguments in

this way:

ARGUMENT IV

GREEN’S CONVICTIONS ARE CONSTITUTIONALLY

UNRELIABLE IN VIOLATION OF THE FIFTH, SIXTH,

EIGHTH, AND FOURTEENTH AMENDMENTS AS

ESTABLISHED BY NEWLY DISCOVERED EVIDENCE.

....

ARGUMENT V

THE COURT ERRED IN DENYING GREEN’S BRADY

CLAIM BASED ON SUPPRESSION OF 3 X 5 CARDS AND

RELATED DOCUMENTS.

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18-13524 Opinion of the Court 63

ARGUMENT VI

THE COURT ERRED IN DENYING GREEN’S CLAIM FOR

RELIEF BASED ON INDIVIDUAL INSTANCES OF

INEFFECTIVE ASSISTANCE OF COUNSEL AND

NONDISCLOSURE OF EXCULPATORY EVIDENCE.

Ineffective assistance for failure to maintain file

Exculpatory and impeaching evidence relating to the

initial police investigation

Failure to impeach Jerome Murray

ARGUMENT VII

THE COURT ERRED IN SUMMARILY DENYING GREEN’S

CLAIM BASED ON DEFENSE COUNSEL’S FAILURE TO

CHALLENGE CROSS-RACE IDENTIFICATION.

....

ARGUMENT VIII

THE COURT ERRED IN DENYING RELIEF WITH

REGARD TO DOG TRACKING EVIDENCE.

ARGUMENT IX

THE COURT ERRED IN DENYING GREEN’S

INEFFECTIVENESS CLAIM BASED ON TRIAL

COUNSEL’S FAILURE TO CHALLENGE A PROSPECTIVE

JUROR.

ARGUMENT X

THE COURT ERRED IN SUMMARILY DENYING GREEN’S

DUE PROCESS CLAIM BASED ON JUROR MISCONDUCT.

The Supreme Court of Florida, in an obvious effort to align the brief’s

arguments with the claims as alleged in Green’s Rule 3.850 motion and as

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64 Opinion of the Court 18-13524

addressed to the Circuit Court’s denial of relief from his convic-

tions. In presenting these arguments, the brief rearranged some of

the claims as pled in Green’s Rule 3.850 motion so that the claims

as pled and the arguments in the brief did not coincide. The brief

also expanded some claims to include facts not presented to the

Circuit Court when it adjudicated the claims.

For clarity, we will refer to the claims challenging Green’s

convictions by their designations in the Rule 3.850 motion, not by

considered by the Circuit Court, treated the appellee brief as presenting “six

guilt phase issues”:

(1) Green's convictions are constitutionally unreliable as estab-

lished by newly discovered evidence; (2) Green was denied due

process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

10 L.Ed.2d 215 (1963), when the State suppressed evidence; (3)

trial counsel provided constitutionally ineffective assistance;

(4) the trial court erred in denying relief with regard to dog

tracking evidence; (5) the rules prohibiting Green's lawyers

from interviewing jurors are unconstitutional; and (6) the trial

court erred in summarily denying Green's claims regarding ju-

ror misconduct and counsel's failure to challenge cross-race

identification.

Green II, 975 So. 2d at 1099. In addition to these guilt phase issues, the brief

addressed and defended the Circuit Court’s decision vacating Green’s death

sentence based on defense counsel’s ineffective assistance “in failing to inves-

tigate” the disposition of Green’s New York conviction. Green II, 975 So. 2d

at 1109–10. As alternative grounds for affirming the vacation of his death sen-

tence, Green argued that the Circuit Court erred in rejecting the other claims

relating to the sentence’s validity. Those claims are inapposite here because

the retrial of the penalty phase did not occur, and Green was sentenced to life

imprisonment on the Count I murder charge.

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18-13524 Opinion of the Court 65

their corresponding designations in the appeal of that motion to

the Supreme Court of Florida. Green’s appellee brief addressed

Claim I-2 as Argument IX and Claim III-F as Argument VI. The

brief did not deal with Claim III-H-4, which the Circuit Court adju-

dicated without an evidentiary hearing, although the brief does re-

fer to the notes White made on August 28, 1989, in Argument VI.67

The brief addressed Claim IV in Argument IV.

67Argument VI was based on the evidence presented at the evidentiary hear-

ings the Circuit Court held following the Huff hearing. Argument VI con-

tained three headings: “Ineffective Assistance for Failure to Maintain File,”

“Exculpatory and Impeaching Evidence Relating to the Initial Police Investi-

gation,” and “Failure to Impeach Jerome Murray.” In presenting argument

under the second heading, the brief alluded to White’s notes of August 28,

1989, in these words:

A handwritten police statement dated 8/28/89 with the names

Diane Clark[e] and Mark Rixey underlined on the front page

was obtained through the Ch. 119. It was not disclosed to the

defense at trial. It contains the following statement: “Mark and

Diane suspect the girl did it, she changed her story couple

times . . . . [?] She [?] said she tied his hands behind his back.

The brief then stated that

[t]his is consistent with Dep. Walker’s recollection that Hal-

lock said that she was the one who did the actual tying of

Flynn’s hands, and inconsistent with Hallock’s subsequent

statements and eventual trial testimony.

Defense counsel testified during the evidentiary hear-

ing on October 29, 2003, having reviewed the 1999 written

statement by Deputy Walker to the FDLE, that had he had the

information contained in the statement by Deputy Walker at

the time of trial he would have used it to impeach Ms. Hallock

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66 Opinion of the Court 18-13524

The Florida Supreme Court affirmed both the Circuit

Court’s decision granting a new trial of the penalty phase, Green II,

975 So. 2d at 1109–14, and the Court’s denial of relief as to Green’s

convictions. Id. at 1116. The Florida Supreme Court ruled on the

merits of three claims that the Circuit Court decided and that are

pertinent here: Claims I-2 and III-F, both alleging ineffective assis-

tance of counsel under the Strickland v. Washington standard, and

Claim IV, alleging that Sheila Green, Lonnie Hillery, and Jerome

Murray recanting their trial testimony made Green’s conviction

constitutionally unreliable. As Green did not brief Claim III-H-4 to

the Florida Supreme Court, the Court did not review it.

1.

The Florida Supreme Court affirmed the Circuit Court’s de-

nial of Claim I-2 with this statement:

. . . . Defense counsel did not confront Hallock at trial with . .

. Deputy Walker’s report that she had been the one to tie

Flynn’s hands. Defense counsel did, however, argue to the

jury that Flynn’s hands appeared to have been tied “for com-

fort.”

. . . . As the prosecutor put it, defense counsel was “alluding”

to the theory that Kim Hallock, “a jealous lover of Chip

Flynn,” was the real killer.

In alluding to White’s notes dated August 28, 1989, Argument VI made no

mention of the Circuit Court’s adjudication of Claim III-H-4. The argument

was written as if that adjudication had not occurred.

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18-13524 Opinion of the Court 67

We affirm the trial court's denial of this claim because

Green fails to meet both prongs of the Strickland

standard. First, Green was not prejudiced by Parker's

failure to remove Guiles for cause because the trial

court inquired whether the murder of Guiles' niece

would affect his decision in the case. Guiles said that

it would not. Thus, Guiles met the test for juror com-

petency enunciated in Davis v. State, 461 So. 2d 67, 70

(Fla.1984) (“The test for determining juror compe-

tency is whether the juror can lay aside any bias or

prejudice and render his verdict solely upon the evi-

dence presented and the instructions on the law given

... by the court.”). Second, Parker did not render in-

effective assistance in failing to ask Guiles more ques-

tions, because an allegation that there would have

been a basis for a for cause challenge if counsel had

followed up during voir dire with more specific ques-

tions is speculative. Johnson v. State, 903 So. 2d 888,

896 (Fla.2005); Reaves v. State, 826 So. 2d 932, 939

(Fla.2002). Third, Parker's performance was not defi-

cient for failing to exercise a peremptory strike to re-

move Guiles. At the evidentiary hearing, Parker testi-

fied that he was satisfied that juror Guiles would be

able to follow the law regarding the weighing of the

evidence and separate himself from the fact that his

niece had been killed. This decision does not fall out-

side the wide range of professionally competent assis-

tance. See Davis, 461 So. 2d at 70.

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68 Opinion of the Court 18-13524

Green II, 975 So. 2d at 1104–05. 68

2.

The Florida Supreme Court affirmed the Circuit Court’s de-

nial of Claim III-F with this statement:

Green claims that defense counsel Parker rendered in-

effective assistance in failing to impeach Kim Hallock

at trial with a police report 69 containing an alleged

68 The Florida Supreme Court articulated the Strickland standard thus:

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984), the [Supreme] Court established a two-

prong standard for determining whether counsel provided

constitutionally ineffective assistance. First, a defendant must

point to specific acts or omissions of counsel that are “so seri-

ous that counsel was not functioning as the ‘counsel’ guaran-

teed the defendant by the Sixth Amendment.” Id. at 687, 104

S. Ct. 2052. Second, the defendant must establish prejudice by

“show[ing] that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different.” Id. at 694, 104 S. Ct. 2052. A rea-

sonable probability is a “probability sufficient to undermine

confidence in the outcome.” Id.

Green II, 975 So. 2d at 1103. The Florida Supreme Court applied this standard

in adjudicating Claims I-2 and III-F.

69 In referringto “a police report,” the Florida Supreme Court must have been

referring to the report Deputy Walker filed on April 5, 1989, the day after the

Flynn homicide occurred. According to Green’s Rule 3.850 motion, the report

was “stamped 4/5/89 at 2:05:50 a.m.” See supra part II.A.3. This report was

disclosed to Parker prior to trial and he discussed it with Walker when he took

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18-13524 Opinion of the Court 69

prior inconsistent statement that she, rather than

Green, had been the one to tie Charles Flynn's hands.

According to Green, Deputy Wade Walker stated in

a report filed in 1999 pursuant to a Florida Depart-

ment of Law Enforcement (FDLE) investigation that

Hallock told him that the perpetrator made her tie

Flynn's hands behind his back with a shoestring.

Green argues that the information in the FDLE report

contradicts Hallock's subsequent statements and trial

testimony that Green himself tied Flynn's hands.

However, Walker was not called to testify at the evi-

dentiary hearing. Therefore, the trial court was left

only with the allegations in Green's postconviction

motion as to what Walker purportedly said in the

FDLE report.

Id. at 1104 (emphasis added). In short, the Florida Supreme Court

affirmed the denial of Claim III-F because Green provided “no sup-

porting evidence” to establish that Hallock actually told Deputy

Walker that she tied Flynn’s hands.70 Id.

3.

Walker’s deposition on March 5, 1990. The Court could not have been refer-

ring to what Walker is reported to have told the FDLE in 1999 since the FDLE

Investigative Summary did not exist at the time of Green’s trial.

70Collateral Counsel did not present Walker as a witness or introduce the re-

port filed on April 5, 1989.

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70 Opinion of the Court 18-13524

The Florida Supreme Court affirmed the Circuit Court’s de-

nial of Claim IV. 71 In doing so, it explained that to obtain a new

trial under Florida law based on newly discovered evidence, Green

had to satisfy two requirements:

First, the evidence must not have been known by the

trial court, [Green], or counsel at the time of trial, and

it must appear that [Green] or defense counsel could

not have known of it by the use of diligence. Second,

the newly discovered evidence must be of such na-

ture that it would probably produce an acquittal on

retrial. See Jones v. State, 709 So. 2d 512, 521

(Fla.1998) (Jones II ). Newly discovered evidence sat-

isfies the second prong of this test if it “weakens the

case against [the defendant] so as to give rise to a rea-

sonable doubt as to his culpability.” Id. at 526 (quot-

ing Jones v. State, 678 So. 2d 309, 315 (Fla.1996) (Jones

I)).

Id. at 1099 (quoting Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)).

If Green met these requirements, the trial court must then “‘con-

sider all newly discovered evidence which would be admissible,’

71 Claim IV alleged that the recantations of Murray, Sheila Green, and Hillery

rendered Green’s verdict “constitutionally unreliable.” But the brief cited no

United States Supreme Court constitutional holding, much less a lower federal

court decision, in support of its reliability argument. Rather, the brief sup-

ported the argument only with state law cases. As indicated from the Green

II passages quoted in the following text, the Supreme Court treated Claim IV

as a Fla. R. Crim. P. 3.850(c)(7) motion for a new trial based on newly discov-

ered evidence.

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18-13524 Opinion of the Court 71

and must ‘evaluate the weight of both the newly discovered evi-

dence and the evidence which was introduced at the trial.’” Id.

(quoting Jones v. State, 591 So. 2d 911, 916 (Fla.1991)). In doing so,

the court would have to consider “whether the evidence [was] cu-

mulative to other evidence in the case . . . and any inconsistencies

in the newly discovered evidence.” Id. at 1099–1100 (quoting

Jones, 709 So. 2d at 521).

The Court explained that Green’s new evidence was insuffi-

cient to warrant a new trial because

Jerome Murray's out of court recantation would not

likely produce an acquittal on retrial because it would

only serve as impeachment to his original testimony.

. . . [B]oth Sheila Green's and Lonnie Hillery's recan-

tations [were] incredible based on their responses, de-

meanor, and body language. Moreover, when

weighed against the other admissible evidence, the

recantations of Jerome Murray, Sheila Green, and

Lonnie Hillery d[id] not create a reasonable probabil-

ity of acquittal on retrial.

Id. at 1100–02.

* * *

Following the Florida Supreme Court’s decision, the State

filed a notice stating that it would not proceed with a retrial of the

penalty phase and requested that the Circuit Court sentence Green

to a term of life imprisonment. On August 31, 2009, after enter-

taining evidence Green presented in support of his argument that

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72 Opinion of the Court 18-13524

he was actually innocent of the offenses of which he had been con-

victed, the Circuit Court resentenced him to life imprisonment on

Count I and concurrent prison terms of seventeen years on Counts

II through V, with the Count I sentence to run consecutively to

those counts. Green appealed his sentences to the Fifth District

Court of Appeal. The Court affirmed the sentences per curiam on

August 24, 2010. Green v. State, 43 So. 3d 707 (Fla. 5th DCA 2010)

(Table).

III.

A.

On February 4, 2011, Green filed a Successive Motion to Va-

cate Judgment of Convictions and Sentences in the Brevard County

Circuit Court, under Rule 3.850 (“Successive Motion” or “Mo-

tion”).72 By this time, Green was no longer represented by

72Rule 3.850 governs successive motions. Subsection (h) of the rule states in

pertinent part:

(h) Successive Motions.

(1) A second or successive motion must be titled: “Sec-

ond or Successive Motion for Postconviction Relief.”

(2) A second or successive motion is an extraordinary

pleading. Accordingly, a court may dismiss a second or

successive motion if the court finds that it fails to allege

new or different grounds for relief and the prior deter-

mination was on the merits or, if new and different

grounds are alleged, the judge finds that the failure of

the defendant or the attorney to assert those grounds

in a prior motion constituted an abuse of the proce-

dure or there was no good cause for the failure of the

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18-13524 Opinion of the Court 73

Collateral Counsel. He had been replaced by private appointed

counsel. The Motion presented three “Grounds for Post-Convic-

tion Relief.” All appeared under this heading: “NEWLY

DISCOVERED EVIDENCE OF INNOCENCE ESTABLISHES

THAT MR. GREEN’S CONVICTION AND SENTENCE

VIOLATE THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES AND FLORIDA

CONSTITUTIONS.” 73 The second and third grounds are relevant

defendant or defendant's counsel to have asserted

those grounds in a prior motion. When a motion is dis-

missed under this subdivision, a copy of that portion of

the files and records necessary to support the court's

ruling shall accompany the order denying the motion.

Fla. R. Crim. P. 3.850(h). The text of this subdivision formerly appeared in

Fla. R. Crim. P. 3.850(f). We cite to subdivision (h) in this opinion.

This was Green’s third attempt to file a successive Rule 3.850 motion

to vacate his convictions. Green filed a “First Amended Successive Motion”

on September 27, 2010, and a “Second Amended Successive Motion” on Janu-

ary 7, 2011. The February 4, 2011, motion (referred to in the above text) was

also styled as the “Second Amended Successive Motion.” On January 24, 2011,

the Circuit Court denied the January 7 motion without prejudice because the

oath appended to the January 7 motion failed to comply with Fla. R. Crim. P.

3.987 and instructed Green to file a corrected motion within thirty days.

Green v. Sec’y Dep’t of Corrs., 877 F.3d 1244, 1246 (11th Cir. 2017). Green

filed a corrective motion on February 4, 2011, as indicated in the above text.

73Rule 3.850 addresses newly discovered evidence. Subsection (b), which the

Successive Motion cited as the basis for the motion’s grounds for relief, states

in pertinent part:

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74 Opinion of the Court 18-13524

here, but only insofar as counsel has sought to reassert them on

federal habeas review. 74

1.

The second ground, “The State Withheld Exculpatory Evi-

dence,” constituted a reassertion of Claim III-H-4 from the first mo-

tion, but with a significantly expanded, and purportedly “newly dis-

covered,” factual base. 75 Recall that the record before the Circuit

Court when it ruled on Claim III-H-4 on July 22, 2002, following

b) Time Limitations. A motion to vacate a sentence that ex-

ceeds the limits provided by law may be filed at any time. No

other motion shall be filed or considered pursuant to this rule

if filed more than 2 years after the judgment and sentence be-

come final unless it alleges that:

(1) the facts on which the claim is predicated were un-

known to the movant or the movant's attorney and

could not have been ascertained by the exercise of due

diligence, and the claim is made within 2 years of the

time the new facts were or could have been discovered

with the exercise of due diligence.

Fla. R. Crim. P 3.850(b).

74The first ground was “Layman Layne’s Recantation Demonstrates Mr.

Green’s Rights Were Violated.”

75 In its response to the Successive Motion, the State argued that the second

ground was barred by Rule 3.850(h) as impermissibly successive because the

second ground had been presented and litigated as Claim III-H-4 at the Huff

hearing held on Green’s first Rule 3.850 motion. Alternatively, assuming the

second ground was not barred as impermissibly successive, the State argued

that statements Clarke and Rixey made to White speculating that Hallock

killed Flynn would have been inadmissible at Green’s trial.

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18-13524 Opinion of the Court 75

the Huff hearing, consisted of the record of Green’s prosecution

and direct appeal in Green I, Claim III-H-4’s factual allegations, and

the statements the Court, the State’s attorney, and Collateral

Counsel made on the record at the Huff hearing. In contrast, the

record before the Circuit Court in the proceedings held on the Suc-

cessive Motion included the evidence presented at the evidentiary

hearings the Court held in 2003 and 2004 on Claims I-2, III-F, and

IV, the facts asserted in the Successive Motion, and affidavits Diane

Clarke and Mike Rixey executed in June 2010 that accompanied the

Motion.76

Addressing the Circuit Court’s July 22, 2002, adjudication of

Claim III-H-4 (as presented at the Huff hearing) in light of the ad-

ditional evidence presented in support of the Successive Motion,

Green argued that the Circuit Court erred in denying Claim III-H-

4 for two fundamental reasons. First, Green argued the Court mis-

takenly held that “the purported opinion[s] of Deputies Rixey and

Clarke that they suspected Hallock murdered Flynn would not

have been admissible at trial” and that their opinions “were . . . not

Brady material.” Second, Green argued the Court erred in finding

as fact that “all information in [White’s] notes was disclosed and

known by defense counsel before trial.’” In other words, Green

new postconviction counsel sought to raise arguments in the

76As indicated in the affidavits, Clarke signed her affidavit on June 15,

2010, and Rixey signed his on June 1, 2010.

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76 Opinion of the Court 18-13524

Successive Motion that Collateral Counsel did not raise to the Flor-

ida Supreme Court on direct appeal from the Circuit Court’s deci-

sion.

Drawing on the expanded factual base supporting the Suc-

cessive Motion, Green elaborated at length on why Claim III-H-4

was meritorious and should have been upheld by the Circuit Court

in its order of July 22, 2002: 77

The fact that Flynn’s ex-girlfriend was the ini-

tial prime suspect of police officers who investigated

Flynn’s murder would have been admissible at trial

under clearly established Florida law. . . . The real im-

pact of Clarke and Rixey’s statements to the investi-

gators and prosecutors is revealed in the witness

statements that resulted from interviews only re-

cently conducted by Mr. Green’s current counsel in

the last year.

[T]he recently-obtained sworn affidavits of

Sergeant Clarke and Deputy Rixey do tend to prove

that Mr. Green is innocent and that a third party – the

State’s sole eyewitness and the victim’s ex-girlfriend

Hallock – was the true perpetrator of the crime and,

at the very least, had a strong motive to fabricate her

testimony to cast blame on someone else. Specifi-

cally, their statements point out that: (1) Hallock

changed the details of her story several times that

77This order was adopted and incorporated into the Circuit Court’s final deci-

sion on November 22, 2005.

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18-13524 Opinion of the Court 77

night, including the location of the grove and who

tied Flynn’s hands; (2) Hallock appeared emotionally

detached when she was brought to the crime scene,

seemed unconcerned about Flynn’s condition, and

never once asked how Flynn was doing; (3) the phys-

ical evidence at the crime scene was not consistent

with Hallock’s story, including that the clear and un-

marred tire tracks at the grove indicated a slow and

deliberate exit; (4) Hallock drove all the way to

Stroup’s trailer for help, bypassing numerous houses

and at least one public telephone and a hospital to

seek immediate assistance, which could have saved

Flynn’s life; (5) Hallock never mentioned an abduc-

tion in her initial statement transmitted over the ra-

dio; and (6) when the officers asked Flynn – who was

still lucid – who shot him, he only replied that he

wanted to go home, never once mentioning an assail-

ant or a “black guy”. Clarke’s and Rixey’s conclu-

sions, when taken in conjunction with the demon-

strated contradictions between Hallock’s version of

the events and the physical evidence, the numerous

material inconsistencies in her statements, and the

fact that there is no physical evidence linking Mr.

Green to the crime, are strong evidence of Hallock’s

guilt and Mr. Green’s innocence. At the very least;

they are more than sufficient to establish that a rea-

sonable jury likely would not find guilt beyond a rea-

sonable doubt.

....

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78 Opinion of the Court 18-13524

The new evidence presented here could not be

previously presented to this Court because the State

withheld its existence from Mr. Green’s counsel. It

was only discovered recently by the efforts of Mr.

Green’s subsequently retained counsel. Further,

these affidavits evince facts not contained in White’s

notes. White’s notes only contained Clarke’s and

Rixey’s conclusions that Hallock killed Flynn.

Clarke’s and Rixey’s affidavits contain their impres-

sions based on the facts and circumstances of that

night. This information was neither available to Mr.

Green’s counsel at trial nor during the first 3.850 pro-

ceeding – but it was known by the State.

....

The testimony of the officers – alone and in

tandem with the other compelling evidence of Mr.

Green’s innocence – would certainly have had a pow-

erful impact on any jury and would likely have re-

sulted in Mr. Green’s acquittal of the charges for

which he was convicted.

To Green, all of this showed that the prosecution’s failure to

disclose this exculpatory evidence violated the Brady rule and de-

prived him of his right to present a defense. “There is more than ‘a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’”

The Circuit Court denied the claim, apparently agreeing

with the State that the second ground amounted to nothing more

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18-13524 Opinion of the Court 79

than Claim III-H-4 recast with a new evidentiary foundation and

thus impermissibly successive under Rule 3.850(h). 78 The Court

concluded that Green’s argument that “Deputy Rixey and Sergeant

Clarke observed facts indicating that Hallock shot Chip Flynn . . .

was addressed in the first post-conviction motion and denied.”

2.

The third ground the Successive Motion presented was that

Green’s trial attorney Parker rendered ineffective assistance of

counsel in failing to investigate and establish Green’s alibi. Several

prosecution witnesses, including Sheila Green, Lonnie Hillery, and

Jerome Murray, had recanted their testimony after the trial, and

eight potential alibi witnesses had stated in sworn affidavits that at

the time of Flynn’s murder, Green was in the “projects” in Mims,

far from the scene of the crime. The eight affiants were Brandon

Wright, Reginald Peters, Lori Rains, Carleen Brothers, Tyrone

Torres, O’Conner Green, Kerwin Hepburn, and Cheryl Ander-

son.79

78 Citing Fla. R. Crim. P. 3.850(h) and Schoenwetter v. State, 46 So. 3d 535, 561

(Fla. 2010), the Circuit Court observed that “a successive post-conviction[]

motion is not intended to be a second appeal, nor is it appropriate to use a

different argument to re-litigate issues already decided.”

79 In its response to the Successive Motion, the State argued that the third

ground was barred by Rule 3.850(h) as impermissibly successive. In his first

Rule 3.850 motion, Green presented the claim that Parker rendered ineffective

assistance of counsel under Strickland v. Washington in not calling Lori Rains

as an alibi witness, and the Circuit Court denied the claim. As for Reginald

Peters and Brandon Wright, whose testimony (according to the Court) would

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80 Opinion of the Court 18-13524

The Circuit Court realized that Green’s attorneys were at-

tempting to avoid the dismissal of the third ground as procedurally

defaulted (because they failed to present the ground in Green’s first

Rule 3.850 motion)80 by representing that Green only recently

“found three additional witnesses who attest[ed] that [he] was with

them in the Mims projects during the night of the murder,” Re-

ginald Peters, Brandon Wright, and Randy Brown. However, the

Court decided to proceed regardless and held an evidentiary hear-

ing on Green’s new ineffective assistance claim.

The Court heard the testimony of Peters and Wright on

May 27, 2011, and along with their testimony, received Brown’s

affidavit in evidence. Assuming the truth of what they said, these

are the facts their testimony would have established at Green’s

trial:

Peters, then age nineteen, sold drugs to Green “throughout

the night” of April 3 and into the early morning hours of April 4,

1989, in Mims at Lori Rains’ residence. Peters would be impeached

with his criminal record, which he acknowledged; Peters had

“do nothing to add to the arguments made previously,” Green could have

found the two witnesses and presented their statements to the Circuit Court

“[t]hrough due diligence” in advancing his first Rule 3.850 motion.

80 Impermissibly successive claims cannot be relitigated in later post-convic-

tion relief proceedings. See supra note 78. Merely adding three more alibi wit-

nesses does not change the underlying nature of the claim when those alibi

witnesses could have been found through due diligence in the first post-con-

viction relief motion.

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18-13524 Opinion of the Court 81

“approximately ten felony convictions and four retail theft convic-

tions.”

Wright, 81 then fourteen, saw Green at Rains’ house around

11:15 p.m. and “on and off again the rest of the night.” Wright was

“one of several juveniles referred to as the ‘jitterbugs’ who sold

drugs from Lori Rains’ house . . . [Green] was ‘getting high’ the

night of April 3,” which is why he was at “Rains’ house.” Green

was “‘in and out’ that evening going from Carleen Brothers’ house

to Lori Rains’ house.” Wright was “a drug seller. . . [also going] ‘in

and out’ between 11:15 p.m. on April 3 and 3:00 a.m. on April 4,

1989.” The Circuit Court found that “Wright’s testimony that he

did not know until last year [2010] that [Green] was convicted of

murder and sentenced to death was wholly unbelievable, given his

testimony that he was with [Green] off and on during the night of

Chip Flynn’s murder, observed the police in the area investigating

[the] murder, and saw the police sketch of the suspected mur-

derer.”

Brown saw Green “on the evening of April 3, 1989, and the

early morning hours of April 4, 1989, ‘in the projects in Mims’ at

the home of Lori Rains.”

The Circuit Court concluded that even if the testimony of

these witnesses was true and not barred, it would not “constitute

81Like Peters, Wright would also be impeached at trial with his criminal rec-

ord, which contained several felony convictions.

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82 Opinion of the Court 18-13524

alibi evidence.” Moreover, “there [was] not a reasonable probabil-

ity that the testimony . . . would produce an acquittal on re-trial.”

The Circuit Court recalled Parker’s testimony at the hearing

on Green’s first Rule 3.850 motion: Green told him that he had

been at Lori Rains’ house the evening of the murder. They were

smoking crack and he was falling asleep, so Green could not specify

times. Parker said that he “could see [Green] testifying, well, I was

cracked out of my mind. I don’t remember, really, what happened,

but you talk to Lori.’” Parker testified, “there was no way that I

was going to try and utilize that as an alibi.” The Circuit Court

concluded that Parker was not constitutionally deficient for failing

to investigate or call them to testify at Green’s trial.

In the end, the Circuit Court denied the Successive Motion

in full as barred by Rule 3.850(h). The Court denied the Motion’s

third ground as it related to Lori Rains because the claim that “trial

counsel was ineffective for not calling Lori Rains and others to es-

tablish an alibi was made previously [in the first Rule 3.850 motion]

and denied.” “Rains was known to [Green’s] counsel at trial.” As

for Wright, Peters, and Brown, who could put Green in the pro-

jects in Mims around the time of the Flynn homicide, the Court

found that by “[u]sing due diligence the Defendant could have dis-

covered the names and obtained the statements of these three ad-

ditional witnesses.” Green’s new counsel “discovered the names

of these witnesses by interviewing Lori Rains.”

The Court held alternatively that Green failed to establish a

claim of ineffective assistance under Strickland v. Washington.

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18-13524 Opinion of the Court 83

“There [was] not a reasonable probability that the testimony of

these witnesses would produce an acquittal on re-trial, given the

plethora of other evidence presented.” The Court also noted that

“[t]he testimony of the ‘alibi witnesses’ placing Green in the Mims

projects during the early morning hours of the murder is damning

and further implicates the Defendant by putting him near the crime

scene right after the crime was completed.”

B.

Green appealed the Circuit Court’s decisions denying his

Brady and Strickland claims in his Successive Motion for postcon-

viction relief under Rule 3.850 to the Florida Fifth District Court of

Appeal. 82 The State’s answer brief argued that the claims were pro-

cedurally barred under Rule 3.850. The Brady claim was foreclosed

on two grounds: (1) it had been raised and denied in Green’s first

Rule 3.850 motion and (2) it was procedurally barred, having been

raised in a successive motion filed “well beyond the two year time

limitation set forth in Florida Rule of Criminal Procedure 3.850 for

raising claims of ineffective assistance of counsel.” The Strickland

claim was barred by Rule 3.850(h) because using due diligence,

Green could have found witnesses Wright, Peters, and Brown prior

to the evidentiary hearing held on his first Rule 3.850 motion. The

Florida Fifth District Court of Appeal affirmed per curiam without

82 Green also appealed the Circuit Court’s denial of his state-law

based motion

for a new trial due to the three prosecution witnesses recanting.

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84 Opinion of the Court 18-13524

opinion. Green v. State (Green III), 145 So. 3d 116 (Fla. DCA 2013)

(Table).

IV.

A.

On February 27, 2014, Green filed a petition for a writ of ha-

beas corpus under 28 U.S.C. § 2254 in the United States District

Court for the Middle District of Florida seeking relief from his con-

victions; Green later amended this petition on March 26, 2014. The

petition presented six “grounds” for relief.83 They included claims

83 The grounds for relief consisted of claims under multiple constitutional pro-

visions. In its Amended Order granting Green’s petition in part and denying

it in part, the District Court identified six “claims,” some of which consisted of

multiple independent claims. The six grounds as presented in Green’s habeas

petition were:

Ground One: Mr. Green was deprived of his constitu-

tional rights under the Fifth, Sixth, and Fourteenth Amend-

ments by the State’s improper suppression of exculpatory and

impeachment evidence and its knowing reliance on false testi-

mony.

Ground Two: Mr. Green was denied due process of

law and a fair trial in violation of the Fifth, Sixth, and Four-

teenth Amendments by the trial court's failure to suppress his

out-of-court photographic identification and subsequent in-

court identification.

Ground Three: Mr. Green's constitutional rights under

the Fifth, Sixth, and Fourteenth Amendments were violated by

the admission of unreliable dog-tracking evidence.

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18-13524 Opinion of the Court 85

of Circuit Court error the Florida Supreme Court rejected on the

merits in the direct appeal of Green’s convictions in 1994 in Green

I and in its review of the Circuit Court’s disposition of Green’s first

Rule 3.850 motion in 2008 in Green II. The petition also included

a claim Green presented in his first Rule 3.850 motion that was de-

nied on the merits but not appealed; claims Green presented in his

Successive Motion that were denied as impermissibly successive by

the Circuit Court and the Fifth District Court of Appeal in Green

III; and claims not presented to the Florida courts at all. Green ar-

gued that the District Court should review the merits of all the

claims the Florida courts would reject as procedurally defaulted as

Ground Four: Mr. Green’s trial counsel provided assis-

tance that falls well below the standard for effective assistance

of counsel mandated by the Sixth and Fourteenth Amend-

ments.

Ground Five: Mr. Green was denied his constitutional

rights under the Fifth, Sixth, and Fourteenth Amendments by

the State’s repeated improper references to Mr. Green’s race

and making knowingly false representations of the facts and

the evidence to the jury and to the court.

Ground Six: Mr. Green was denied his constitutional

due-process rights under the Fifth, Sixth, and Fourteenth

Amendments because the jury prejudged him guilty based on

their exposure to external publicity.

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86 Opinion of the Court 18-13524

well as those he never presented to the state courts 84 because he

had shown legal cause for the procedural defaults.

The State responded to the petition by moving the District

Court to dismiss it as time-barred because Green had not filed it

within the one-year limitations period established by 28 U.S.C. §

2244(d)(1)(A). The Court granted the State’s motion and dismissed

the petition with prejudice. Green appealed. This Court held

Green’s petition timely filed and remanded his case for further pro-

ceedings. Green v. Sec’y, Dep’t of Corrs., 877 F.3d 1244, 1249 (11th

Cir. 2017). On remand, the State responded to the claims the peti-

tion presented, and the District Court took those claims and the

State’s response under advisement without oral argument.

B.

The District Court’s authority to grant a writ of habeas cor-

pus vacating Green’s convictions was circumscribed by the Anti-

terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub.L. No. 104–132, 110 Stat. 1214 (codified as amended at 28

U.S.C. §§ 2241–55). A district court may not grant a state prisoner

a writ of habeas corpus on a federal claim unless the prisoner estab-

lishes that the state courts adjudicated the federal claim on the mer-

its and that the adjudication “was contrary to, or involved an un-

reasonable application of, clearly established Federal law, as

84If Green attempted at this point in time to exhaust such claims, we assume

the Florida courts would deny them pursuant to Rule 3.850(h) as impermissi-

bly successive.

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18-13524 Opinion of the Court 87

determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court pro-

ceeding,” § 2254(d)(2).

The Supreme Court has explained the meaning of the three

phrases contained in § 2254(d)(1). The phrase “clearly established

Federal law” refers only to “the holdings, as opposed to the dicta,

of [Supreme] Court's decisions as of the time of the relevant state-

court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct.

1495, 1523 (2000). A state court decision is “contrary to” a Supreme

Court holding “if the state court arrives at a conclusion opposite to

that reached by [the] 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 412–13, 120 S. Ct. at 1523.

A state court decision “involve[s] an unreasonable application of”

a Supreme Court holding “if the state court identifies the correct

governing legal principle from [the] Court's decisions but unrea-

sonably applies that principle to the facts of the prisoner's case.” Id.

at 413, 120 S. Ct. at 1523. A merely incorrect application of federal

law, however, is not enough to warrant habeas relief. As for

whether the state court decision “was based on an unreasonable

determination of the facts,” we must bear in mind that AEDPA es-

tablishes a presumption that the state court's findings of fact are

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88 Opinion of the Court 18-13524

correct, and only “clear and convincing evidence” can rebut that

presumption. § 2254(e)(1). 85

Therefore, any federal claims presented to a district court in

a habeas petition from a state prisoner must have first been ex-

hausted in the state court system. 86 Comity requires that the state

courts be given the “opportunity to pass upon” the prisoner’s

claims and, should they find any valid claims, to take appropriate

corrective action. Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347,

1349 (2004). Specifically, the prisoner must “use the State's estab-

lished appellate review procedures before he presents his claims to

85 The precise relationship between the “unreasonable application” standard

of § 2254(d)(2) and the “clear and convincing” standard of § 2254(e)(1) when

reviewing a state court’s factual determinations under AEDPA is unclear. See

Burt v. Titlow, 571 U.S. 12, 18, 134 S. Ct. 10, 15 (2013) (“we have not defined

the precise relationship between § 2254(d)(2) and § 2254(e)(1)”); Wood v. Al-

len, 558 U.S. 290, 300, 130 S. Ct. 841, 849 (2010) (“we have explicitly left open

the question whether § 2254(e)(1) applies in every case presenting a challenge

under § 2254(d)(2)”). As Green’s arguments fail under either standard, we de-

cline to address the nature of the relationship between § 2254(d)(2) and §

2254(e)(1) at this time.

86 In Florida, a claim for postconviction relief in a capital case is exhausted once

it is reviewed by the Florida Supreme Court. Fla. Const. art. V § 3 (providing

for the review in the Florida Supreme Court of judgments in capital cases). In

a non-capital case, which this case became once the Florida Supreme Court

affirmed the vacation of Green’s death sentence and he was resentenced to a

prison term, exhaustion is complete when the Florida District Court of Appeal

decides the claim on the merits. Barritt v. Sec’y, Fla. Dep’t of Corrs., 968 F.3d

1246, 1249 n.3 (11th Cir. 2020).

USCA11 Case: 18-13524 Date Filed: 03/14/2022 Page: 89 of 182

18-13524 Opinion of the Court 89

a federal court.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.

Ct. 1728, 1733 (1999).

Comity also requires that the claims the prisoner presents to

the district court be the same claims the prisoner exhausted in the

state courts. To the extent the claims are not the same—in terms

of their “legal theory and facts on which [they] rest[]”—as the

claims exhausted in the state courts, the federal court will treat the

claims as unexhausted. Henderson v. Campbell, 353 F.3d 880, 898

n.25 (11th Cir. 2003); see also Kelly v. Sec’y, Dep’t of Corrs., 377

F.3d 1317, 1344 (11th Cir. 2004) (“the prohibition against raising

nonexhausted claims in federal court extends not only to theories

of relief, but also to the specific assertions of fact that might support

relief”).

A federal court may only entertain the merits of an unex-

hausted claim if the prisoner establishes one of two exceptions.

The first is the “cause and actual prejudice” exception. Engle v.

Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573 (1982). The second is

the "actually innocent" exception, also known as the "fundamental

miscarriage of justice" exception, applicable in extraordinary cir-

cumstances. Murray v. Carrier, 477 U.S. 478, 495–96, 106 S. Ct.

2639, 2646–49 (1986); Johnson v. Singletary, 938 F.2d 1166, 1174–

76 (11th Cir. 1991). Green relies on the actually innocent exception

as his excuse for failing to exhaust the claims the Florida courts

would not now entertain.

C.

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90 Opinion of the Court 18-13524

The District Court identified nineteen separate claims

amongst the six “claims” Green presented in his habeas petition87

and explicitly ruled on seven, implicitly denying the other twelve

as meritless. 88 The Court concluded that four of the seven had been

exhausted and accordingly undertook the task of determining

whether the state appellate court’s adjudication of each claim was

entitled to AEDPA deference. The four claims were as follows:

first, the State denied Green due process of law under Brady v. Mar-

yland when the prosecutor, Christopher White, withheld from the

defense the notes he made on August 28, 1989, of the conversation

he had with Diane Clarke and Mark Rixey. Second, the State de-

nied Green due process of law when the Circuit Court overruled

his motion to suppress Hallock’s out-of-court identification of him

as unduly suggestive and his objection to Hallock’s in-court identi-

fication as unreliable. Third, John Parker denied Green his Sixth

Amendment right to the effective assistance of counsel under

87The District Court essentially ignored the several constitutional provisions

Green’s petition cited in support of its six grounds for relief. Some of the six

claims the Court identified consisted of several separate subclaims. For exam-

ple, the Court treated “Claim One” as consisting of five Brady claims, which

the Court labeled as “Issues.” The Court granted the writ of habeas corpus on

“Issue One of Claim One.” The Court treated “Claim Four” as presenting

eight instances of ineffective assistance of counsel. Claims Five and Six were

based on additional instances of ineffective assistance of counsel.

88 The claims rejected as meritless included Green’s Claim III-F claim that Par-

ker was ineffective for failing to develop the hands-tying statement contained

in Walker’s 1989 report. Green has not appealed the district court’s denial of

this claim.

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18-13524 Opinion of the Court 91

Strickland v. Washington in failing to challenge Juror Guiles,

whose niece had been murdered. Fourth, the State denied Green

due process of law under United States v. Giglio when the prose-

cutor introduced false testimony from Sheila Green, Lonnie

Hillery, and Jerome Murray and allowed it to remain uncorrected.

The District Court found merit in the first claim and granted

Green relief, a writ of habeas corpus vacating his convictions. The

State appeals the ruling. We consider the State’s appeal in part V.

The Court denied the writ on the second, third, and fourth claims,

and Green cross-appeals those rulings. Because we reverse the

Court’s decision on the first claim, we must consider Green’s cross-

appeal. We do so in part VI.

The District Court denied relief on the remaining three of

the seven claims on the ground that they had been procedurally

defaulted and were therefore unexhausted. Green cross-appeals

those rulings, arguing that the Court should have decided the

claims on the merits because he established a lawful excuse for the

defaults, his actual innocence of the crimes for which he stands con-

victed. In part VII, we consider those three claims and whether the

Court erred in rejecting Green’s actually innocent excuse for the

defaults. In part VIII, we address the litigation tactics that have

been employed by Collateral Counsel and Green’s current counsel

which, in large part, led to the District Court’s erroneous grant of

federal habeas relief to Green. In Part IX, we conclude.

V.

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92 Opinion of the Court 18-13524

A.

The District Court found the first claim, Claim III-H-4, in

“Ground One” of Green’s habeas petition.89 Claim III-H-4 alleged

t

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