The opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12883
____________________
STEVEN RICHARD TAYLOR,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:12-cv-00444-BJD-MCR
____________________
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2 Opinion of the Court 21-12883
Before WILSON, JILL PRYOR, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
More than 30 years ago now, a Florida jury convicted Steven
Richard Taylor of first-degree murder, burglary of a dwelling, and
sexual battery. He was sentenced to death for the murder, 15 years’
imprisonment for the burglary, and 27 years for the sexual battery.
After exhausting state remedies, Taylor sought habeas corpus relief
in federal court, alleging (as relevant here) various evidentiary er-
rors at his trial. The district court denied Taylor’s habeas petition,
and he now appeals. We affirm.
I
The facts of Taylor’s case, as recounted by the Florida Su-
preme Court, are as follows:
On September 15, 1990, at about 11:30 p.m.,
the victim, fifty-nine-year-old Alice Vest, returned to
her mobile home in Jacksonville after spending the
evening with a friend. Earlier that evening, the appel-
lant, Steven Richard Taylor, and two friends were out
driving and listening to the radio. Around midnight,
the driver of the car dropped off Taylor and his friend,
who was later to become his accomplice, near the vic-
tim’s neighborhood.
Sometime in the early morning hours of Sep-
tember 16, a Ford Ranchero was stolen from a resi-
dence near the place where Taylor had been dropped
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21-12883 Opinion of the Court 3
off. At about 4:30 a.m., after the vehicle had been sto-
len, a passing motorist noticed the Ford Ranchero
parked in a driveway next door to the mobile home
where the victim lived. Later that morning, the Ford
Ranchero was found abandoned behind a used car
dealership only a few blocks from where Taylor lived
at the time.
On the same morning, neighbors discovered
the victim’s battered body in the bedroom of her mo-
bile home. . . .
....
The testimony at trial also revealed that the
phone line to the mobile home had been cut, that the
home had been burglarized, and that various pieces
of jewelry were missing.
Taylor v. State, 630 So. 2d 1038, 1039 (Fla. 1993) (per curiam) (Tay-
lor I).
The police didn’t immediately know who was responsible.
Subsequent events added to their suspicion and, eventually, led to
Taylor’s arrest:
In December of 1990, Taylor moved out of the
duplex he had been sharing with a friend. In January,
1991, while Taylor’s former roommate was removing
a fence behind the duplex, he discovered a small plas-
tic bag buried in the ground near the fence. The bag
contained the pieces of jewelry taken from the
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4 Opinion of the Court 21-12883
victim’s home during the attack and burglary. The
roommate turned the jewelry over to the police and
gave a statement. Later that month, Taylor visited
the duplex with some friends. The former roommate
testified that, at some point during the visit, Taylor
went into the backyard and stared at the place where
the fence had stood. During the following month,
Taylor again returned to the duplex with friends.
One of the accompanying friends testified that Taylor
went into the backyard and returned a few minutes
later with dirty hands. In response to the friend’s in-
quiry as to what he was doing, Taylor allegedly re-
sponded that he had left some things there and that
they were gone.
On February 14, 1991, the Duval County sher-
iff’s office executed a search warrant on Taylor which
authorized the officers to take blood, saliva, and hair
samples from Taylor. Taylor was taken to the nurses’
station at the county jail so that the samples could be
taken, but not before Taylor invoked his right to
counsel. Later that day, after the samples were taken,
Taylor asked the investigating officer how long it
would take to get the results back. Instead of directly
responding to the question, the investigating officer
asked Taylor why he wanted to know. Taylor re-
sponded that he was just wondering when they
would be back out to pick him up. Taylor did not
have long to wait. Two days later, on February 16,
Taylor was arrested, and, on March 3, a grand jury
returned a two-count indictment against Taylor for
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21-12883 Opinion of the Court 5
first-degree murder and burglary. The indictment
was amended on September 12, 1991, to add a third
count for sexual battery.
Id. at 1039–40.
At trial, the state presented the evidence of Taylor’s location
on the night of the murder, testimony tying him to the bag of jew-
elry, and DNA evidence from the scene that matched his profile.
With respect to the latter, Dr. James Pollock, a Florida Department
of Law Enforcement (FDLE) lab analyst who was “an expert in se-
rology . . . testified that semen found in the victim’s blouse matched
Taylor’s DNA profile.” Id. at 1040. Taylor’s attorney, Frank Tas-
sone, presented only one witness, an FBI agent who testified that
some of the physical evidence matched Taylor’s accomplice. Id.
Taylor was convicted of first-degree murder, burglary of a dwell-
ing, and sexual battery and was subsequently sentenced to death.
Taylor sought state postconviction relief under Florida Rule
of Criminal Procedure 3.850(a), and the state court granted an evi-
dentiary hearing. As relevant for our purposes, Taylor presented
the testimony of the state prosecutors, his trial counsel, his first
post-conviction attorney, Shirley Zeigler (a former FDLE DNA an-
alyst who served as the “second looker” for Dr. Pollock’s DNA
analysis results), and Dr. Randell Libby (a DNA expert). The Flor-
ida Supreme Court described Taylor’s DNA-related case this way:
To challenge the DNA evidence presented
against Taylor at trial, the defense presented Dr.
Libby to address alleged problems associated with Dr.
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6 Opinion of the Court 21-12883
Pollock’s State testing procedures. Dr. Libby testified
that the FBI DNA testing protocol utilizes five to
eight probes, but Dr. Pollock’s State testing only uti-
lized four. Further, Dr. Libby opined that three of the
four probes utilized by Dr. Pollock were inconclusive.
One reason Dr. Libby used as a predicate for conclud-
ing that the probes were inconclusive was due to dif-
ferences in the [] reports created by Dr. Pollock and
Shirley Zeigler. The defense also presented Shirley
Zeigler, who worked as a[n FDLE] analyst at the time
the DNA evidence was processed. Zeigler’s initials
were found on the calculated fragment report that
was used by Dr. Pollock at Taylor’s initial trial. Zei-
gler testified that she would have found two of the
probes utilized by Dr. Pollock to be inconclusive, but
did not disagree with Dr. Pollock’s ultimate findings.
Taylor v. State, 62 So. 3d 1101, 1107 (Fla. 2011) (per curiam) (Tay-
lor III).
As relevant here, the state postconviction court found that
Dr. Libby’s testimony wasn’t credible: Dr. Libby, the court found,
lacked “the requisite background and experience in forensic DNA”
to warrant giving his testimony considerable weight. State v. Tay-
lor, 2009 WL 9419304, at *6 (Fla. Cir. Ct. June 22, 2009) (Taylor II).
It denied Taylor’s petition, and the Florida Supreme Court af-
firmed.
Taylor petitioned for federal habeas corpus relief in the Mid-
dle District of Florida in April 2012. See 28 U.S.C. § 2254. The
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21-12883 Opinion of the Court 7
district court denied his petition in May 2021 without holding an
evidentiary hearing. See Taylor v. Secretary, Fla. Dep’t of Corr.,
2021 WL 2003122, at *1–2, *26 (M.D. Fla. May 19, 2021) (Taylor
IV).
Taylor sought a certificate of appealability, which we
granted on five issues:
1. Did the state violate Brady v. Maryland, 373 U.S.
83 (1963), when it failed to disclose Dr. Pollock’s
deviations from the FDLE and FBI DNA testing
protocols—namely, his testing of only four DNA
probes, his testimony that DNA probes D4S139
and D1S7 matched Taylor’s DNA profile, and his
interpretation of over 10,000 DNA base pairs?
2. Did the district court err in applying the Brecht v.
Abrahamson, 507 U.S. 619 (1993), harmless-error
test to Taylor’s above-referenced Brady claim?
3. Did Taylor’s trial counsel provide ineffective assis-
tance, pursuant to Strickland v. Washington, 466
U.S. 668 (1984), by failing to challenge the state’s
DNA evidence under Frye v. United States, 293 F.
1013 (D.C. Cir. 1923)?
4. Did Taylor’s trial counsel provide ineffective assis-
tance, pursuant to Strickland, by failing to request
a hearing under Richardson v. State, 246 So. 2d
771 (Fla. 1971), upon learning of Zeigler’s identity
at trial during Dr. Pollock’s cross-examination?
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8 Opinion of the Court 21-12883
5. Did the district court err in holding that Taylor
was not entitled to suppression of the statements
he made to Officer John Bogers under Miranda v.
Arizona, 384 U.S. 436 (1966)?
We now address those issues in turn.
II
We review the district court’s denial of a federal habeas pe-
tition under 28 U.S.C. § 2254 de novo. Peterka v. McNeil, 532 F.3d
1199, 1200 (11th Cir. 2008). But under the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA), review of the underlying
state-court decisions is highly deferential. Williams v. Allen, 598
F.3d 778, 787 (11th Cir. 2010). In particular, we must honor a state
court’s merits-based denial of a habeas claim unless its decision was
“(1) . . . contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) . . . based on an unreasonable de-
termination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). Moreover, when
considering whether a state court’s decision was based on an “un-
reasonable determination of the facts,” we presume that all of that
court’s factual determinations are correct, and the defendant bears
“the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Id. § 2254(e)(1).
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21-12883 Opinion of the Court 9
III
We’ll work our way through the DNA-related issues—the
first four of the five issues teed up by the COA—before turning to
the Miranda issue.
A
To establish a violation of Brady v. Maryland, 373 U.S. 83
(1963), a criminal defendant must show (1) that the prosecution
possessed evidence “favorable” to him, which can include evidence
with impeachment value; (2) that he didn’t possess the evidence
and couldn’t have obtained it with due diligence; (3) that the pros-
ecution suppressed the evidence; and (4) that, if the evidence had
been disclosed to the defendant, it is reasonably probable that the
outcome of his proceeding would have been different. United
States v. Gallardo, 977 F.3d 1126, 1142 (11th Cir. 2020).
Taylor argues that the state violated Brady by withholding
information about Dr. Pollock’s deviations from FBI DNA-testing
protocols. The Florida Supreme Court disagreed, holding that in-
formation about protocol deviations wasn’t material—that it
wouldn’t have led to a different outcome at trial. Applying the req-
uisite ADEPA deference, we agree. Accordingly, we needn’t ad-
dress the state’s contentions that Taylor also hasn’t met Brady’s
suppression and diligence prongs. 1
1 We also needn’t address the second issue on which we granted a COA, Tay-
lor’s Brecht argument. The district court couldn’t have made a prejudicial
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10 Opinion of the Court 21-12883
It is not reasonably probable that the disclosure of Dr. Pol-
lock’s protocol deviations would have changed the result at trial
because it wouldn’t have changed either the evidence available to
the jury or Tassone’s trial strategy. Taylor’s case at trial covered
the protocol deviations. For example, Dr. Pollock mentioned in
his trial testimony “very minor modifications” to the FBI protocol
and the “very weak” and “very difficult to see” bands in his re-
sults—plenty for Tassone to use against Dr. Pollock at trial. In fact,
Tassone cross-examined Dr. Pollock about the faintness of the
bands. Tassone also probed Dr. Pollock about his methods—in-
cluding the procedures from which the alleged deviations
stemmed.
Even if Tassone had introduced other evidence following a
disclosure, a reasonable jurist could conclude that it wouldn’t have
made a difference to the jury. Dr. Goldman—Taylor’s DNA ex-
pert—reviewed Dr. Pollock’s report before trial and didn’t “have
any major complaints” about his DNA analysis. And none of the
protocol-deviation evidence presented in the evidentiary hearing
challenging Dr. Pollock’s four-probe identification changes our
conclusion. The only evidence that contradicted Dr. Pollock’s
identification based on the four probes (as opposed to five to eight)
and the use of probes outside a specific size range was Dr. Libby’s
testimony: Dr. Pollock’s identification, he said, could have been
error in evaluating whether there was a harmless Brady error if, as we con-
clude, there was no Brady error.
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flawed or, at the very least, should have been deemed inconclusive.
But not even Dr. Libby said that Dr. Pollock’s identification was
wrong—e.g., that he misread a band or botched the matching pro-
cess. He merely said that Dr. Pollock shouldn’t have drawn a con-
clusion from the testing. Either way, the state court explicitly
found that Dr. Libby wasn’t credible. Taylor II, 2009 WL 9419304,
at *6. Absent clear and convincing evidence to the contrary, we
must respect the state court’s decision to credit Dr. Pollock and dis-
credit Dr. Libby.
Taylor also points to Ziegler’s testimony to challenge Dr.
Pollock’s use of two particular probes to declare a DNA match to
Taylor. While Zeigler didn’t dispute Dr. Pollock’s findings, she tes-
tified that it was a violation of protocol to conclude, as he did, that
these two probes were conclusive. But as already explained, Dr.
Goldman reviewed Dr. Pollock’s report, which included Dr. Pol-
lock’s findings and conclusions, and didn’t take issue with any part
of it.
Accordingly, the district court was right to hold, under
AEDPA’s deferential standard, that the Florida Supreme Court rea-
sonably concluded that there was no Brady violation.
B
Taylor next contends that Tassone provided ineffective as-
sistance at trial in two respects. Ineffective-assistance claims are
governed by the framework established in Strickland v. Washing-
ton, 466 U.S. 668 (1984). Under that framework, a defendant must
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prove both (1) that his counsel performed in a constitutionally de-
ficient manner and (2) that he suffered prejudice as a result. Id. at
687.
1
Taylor first asserts that Tassone rendered ineffective assis-
tance by failing to request a hearing under Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), in response to the state’s DNA evi-
dence. As adopted by Florida’s courts, Frye requires that the pro-
ponent of expert evidence “establish[] by a preponderance of the
evidence the general acceptance of the underlying scientific princi-
ples and methodology.” Marsh v. Valyou, 977 So. 2d 543, 547 (Fla.
2007) (per curiam). Taylor insists that when the state initially prof-
fered the DNA evidence against him, Tassone should have moved
for a Frye hearing to challenge both the accuracy of the DNA-
analysis procedure and Dr. Pollock’s adherence to that procedure.
Had the trial court ruled in his favor, Taylor argues, it might have
excluded the DNA evidence.
The Florida Supreme Court (and the federal district court,
in turn) ruled that Tassone wasn’t ineffective because his perfor-
mance—i.e., his failure to move for a Frye hearing—wasn’t consti-
tutionally deficient. We find that we needn’t address the adequacy
of Tassone’s performance because we conclude that any defi-
ciency, if it existed, wasn’t prejudicial. Because the Florida Su-
preme Court didn’t reach the prejudice prong of Strickland, we re-
view the issue de novo.
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To establish prejudice, the defendant must show “a reason-
able probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. For ineffective-as-
sistance claims arising out of a lawyer’s failure to file a motion, the
prejudice analysis also requires establishing that the motion was
meritorious. See Kimmelman v. Morrison, 477 U.S. 365, 375
(1986).
Tassone’s failure to move for a Frye hearing wasn’t prejudi-
cial for two reasons. First, Taylor’s Frye motion likely would have
failed—meaning that the DNA evidence likely would have been
admitted anyway. Tassone acknowledged that his voir dire of Dr.
Pollock covered some of the same issues that a Frye hearing would
have, and the later evidentiary hearing confirms as much: Taylor’s
post-conviction counsel asked the same questions that Tassone
asked at trial and explained that “[b]asically what we’re doing now
is a Frye Test.” It seems to us exceedingly unlikely that the same
judge who certified Dr. Pollock as an expert following Tassone’s
thorough voir dire—which, again, covered Frye material—would
have then excluded Dr. Pollock’s evidence on a Frye motion. To
the contrary, it seems to us quite likely that, even following Tas-
sone’s rigorous voir dire and over his objection at trial, the trial
judge remained convinced that Dr. Pollock was a qualified expert.
Taylor asserts that although the trial judge accepted Dr. Pol-
lock as an expert on DNA analysis generally, he did so without
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14 Opinion of the Court 21-12883
regard to the disputed DNA-analysis procedure, and that Dr. Pol-
lock’s alleged deviations from that procedure would have changed
the trial court’s mind. But Dr. Pollock’s procedure didn’t even give
Tassone misgivings about his expertise, despite Tassone’s obvious
incentive to challenge his testimony. 2 It seems exceedingly un-
likely that the trial judge would have drawn a conclusion that Tas-
sone himself did not.
Second, even if a Frye motion had been filed and granted,
the verdict likely wouldn’t have changed: The jury had ample evi-
dence before it to convict Taylor even without the DNA. The state
presented evidence of Taylor’s location at the time of the murder;
the jewelry found buried at his former residence; that he was seen
digging near the jewelry’s location; his tacit confession to Officer
Bogers; his jailhouse confession to cellmate Timothy Cowart; and
testimony that Taylor—but not his co-defendant—matched the se-
cretor type of the semen found at the crime scene. See Taylor I,
630 So. 2d at 1039–40; Taylor IV, 2021 WL 2003122, at *8 & n.10;
Murray v. State, 3 So. 3d 1108, 1113 (Fla. 2009) (per curiam).
2 Tassone wasn’t unaware of the distinction between analysis and procedure.
Tassone testified that he was comfortable enough with the substance of the
DNA analysis based on his research to cross-examine Dr. Pollock—research
that covered both the substance and procedure of Dr. Pollock’s examination.
And what we know of his preparation confirms this. Tassone presented the
state’s reports to Dr. Goldman and had lengthy discussions with him about
DNA—the billing records indicate that Tassone and Dr. Goldman spent an
hour and fifteen minutes discussing the report.
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21-12883 Opinion of the Court 15
In short, we reject Taylor’s ineffective-assistance claim pred-
icated on Tassone’s failure to move for a Frye hearing on the
ground that any deficiency wasn’t prejudicial.
2
Taylor separately contends that Tassone rendered ineffec-
tive assistance by failing to request a hearing under Richardson v.
State, 246 So. 2d 771 (Fla. 1971), when he learned about Shirley
Zeigler at trial.
A Richardson hearing is a proceeding under Florida law by
which a criminal defendant can challenge a discovery violation.
Under Richardson, the reviewing court assesses whether a discov-
ery violation resulted in harm or prejudice to the defendant; in do-
ing so, the court considers circumstances such as whether the vio-
lation was “inadvertent or willful” and “trivial or substantial” as
well as what effect, if any, the violation had on “the ability of the
defendant to properly prepare for trial.” Id. at 775. “[W]here the
court determines that the state’s noncompliance with the rule has
not prejudiced the ability of the defendant to properly prepare for
trial,” the record must affirmatively show that lack of prejudice. Id.
Had Taylor’s Richardson challenge succeeded, the district court
could have imposed an appropriate sanction. The strongest sanc-
tion—and the most helpful to Taylor—would have been excluding
the DNA evidence on the ground that, by withholding Zeigler’s
initials, the state prevented Taylor from adequately preparing to
challenge that evidence at trial.
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16 Opinion of the Court 21-12883
The Florida Supreme Court held that Tassone’s failure to
move for a Richardson hearing didn’t constitute ineffective assis-
tance. We can resolve this issue the same way we resolved the
Frye-related ineffective-assistance claim: Even if Tassone’s failure
to seek the hearing constituted deficient performance, Taylor’s
claim founders because he suffered no prejudice. Taylor likely
wouldn’t have prevailed on the Richardson motion, and even if he
had, the outcome of the trial likely would have been the same. As
before, because the Florida Supreme Court decided the Richard-
son-based ineffective-assistance claim on Strickland’s deficiency
prong, we review the prejudice prong de novo.
Taylor likely wouldn’t have won a Richardson motion be-
cause, as a matter of state law, the state’s discovery violation—if
there was one—didn’t harm or prejudice him. As an initial matter,
the alleged violation likely wasn’t willful. See id. The state
couldn’t have intentionally withheld discoverable evidence created
by Zeigler because there wasn’t a discoverable report of hers to dis-
close: She didn’t do any tests or write a report; she merely re-
viewed Dr. Pollock’s report and compared it to her computer
printout.
Moreover, the alleged violation wasn’t “substantial,” nor did
it affect Taylor’s ability to prepare for trial. Tassone wasn’t blind-
sided by Zeigler’s name during the trial. Id. He knew that the ini-
tials “JP” meant that Dr. James Pollock had worked on the report,
and he knew that there was another set of initials, “SZ.” Further,
because Zeigler didn’t do any analysis on the case, she couldn’t
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21-12883 Opinion of the Court 17
have testified to any of the protocol-related issues on which Taylor
stakes his Brady and Frye arguments—meaning that Tassone
couldn’t have questioned her on Dr. Pollock’s adherence to proce-
dure.
Indeed, not even Zeigler thought that her testimony would
have aided Taylor at trial. When asked at the post-conviction evi-
dentiary hearing whether it would have been helpful for the de-
fense to have her results, she responded, simply, “No.” She also
described her results as a “redundant piece of material” because
both computer printouts reported the same findings. When Tay-
lor’s counsel used the word “disputes” throughout the evidentiary
hearing to compare her findings to Dr. Pollock’s results, Zeigler
repeatedly stated that they weren’t disputes, only “differences”—a
distinction that she found significant. As already explained, alt-
hough Zeigler testified that it was a violation of protocol for Dr.
Pollock to conclude that two of the probes were conclusive, that
critique doesn’t change our conclusion. That Tassone would have
liked to have had Zeigler’s testimony to help him cross Dr. Pollock
isn’t enough to show prejudice.
For all these reasons, we reject Taylor’s contention that Tas-
sone provided ineffective assistance of counsel by failing to move
for a Richardson hearing. That failure, even if constitutionally de-
ficient, didn’t prejudice Taylor.
D
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18 Opinion of the Court 21-12883
Finally, Taylor asserts that the statement that he made to
Officer Bogers should have been suppressed under Miranda v. Ari-
zona, 384 U.S. 436 (1966), and its progeny. As a refresher, after the
police collected DNA samples from Taylor, he asked Officer
Bogers how long it would take to get the results back. Officer
Bogers responded by asking Taylor “why,” to which Taylor replied
that he “was just wondering when they would be back out to pick
him up.” Taylor VI, 2021 WL 2003122, at *24.
A defendant who has invoked his right to counsel, as Taylor
did, cannot be “subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversa-
tions with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85
(1981). Interrogation includes “any words or actions on the part of
the police (other than those normally attendant to arrest and cus-
tody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis,
446 U.S. 291, 301 (1980) (call number omitted).
The Florida Supreme Court held that Officer Bogers’s ques-
tion to Taylor didn’t constitute an “interrogation.” Applying
AEDPA deference, we agree. A reasonable jurist could interpret
Officer Bogers’s question—“Why?”—in response to Taylor’s ques-
tion as ordinary, run-of-the-mill conversation rather than the sort
of query that a reasonable officer would have known would elicit
an incriminating response. And whatever happened here, the ex
ante likelihood that a suspect would answer a question like Officer
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21-12883 Opinion of the Court 19
Bogers’s with incriminating information seems exceedingly
small—or so, in any event, a reasonable jurist could conclude.
That’s especially true if we’re also to believe, as Taylor urges, that
his question about when the DNA analysis would be complete
didn’t re-initiate the conversation with Officer Bogers. If Taylor’s
question was casual enough that it didn’t constitute a re-initiation,
then a reasonable jurist could certainly conclude that Officer
Bogers’s follow-up was casual enough that it didn’t constitute in-
terrogation.
IV
To summarize, we hold as follows: The district court cor-
rectly held that the state didn’t violate Brady, that Taylor’s trial
counsel didn’t provide ineffective assistance at trial—for failing to
move for hearings under either Frye or Richardson—and that Mi-
randa doesn’t require suppressing Taylor’s statement to Officer
Bogers. Accordingly, we affirm the district court’s ruling on all
counts.
AFFIRMED.