Petition for Writ of Certiorari — Michael Wayne Shellito, Petitioner v. Mark S. Inch, Secretary, Florida Department of Corrections, et al.

Supreme Court briefJul 15, 2021

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Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 1 of 49 PageID 4238

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL WAYNE SHELLITO,

Petitioner,

vs.

Case No. 3:18-cv-868-J-39JRK

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

INTRODUCTION

Petitioner Michael Wayne Shellito is serving a term of life

in prison without the possibility of parole for the offense of

first degree murder.1

U.S.C.

2254

Petition for Writ of Habeas Corpus Under 28

(Petition)

(Doc.

1).

Through

counsel,

challenging his state court (Duval County) conviction for murder.

Respondents filed State’s Answer in Response to Order to Show Cause

(Response) (Doc. 13).2

Petitioner countered with his Reply to

Response to Petition for Writ of Habeas Corpus (Reply) (Doc. 16).

1 The Florida Supreme Court vacated Petitioner’s sentence of death

and remanded for a new penalty phase proceeding. (Doc. 13-15 at

31-32). Petitioner is now serving a sentence of life without the

possibility of parole. Petition at 2.

Respondents provided an Index to Exhibits (Doc. 13 at 66-67) with

exhibits. In this opinion, the Court references the page numbers

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 2 of 49 PageID 4239

II.

“In

habeas

EVIDENTIARY HEARING

corpus

proceeding,

the

burden

the

petitioner to establish the need for an evidentiary hearing.”

Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th

Cir. 2016) (citations omitted), cert. denied, 137 S. Ct. 2245

(2017).

See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057,

1060 (11th Cir. 2011) (opining a petitioner bears the burden of

establishing the need for an evidentiary hearing with more than

speculative and inconcrete claims of need), cert. denied, 565 U.S.

1120 (2012); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.

1982) (same).

A petitioner must make a specific factual proffer

or proffer evidence that, if true, would provide entitlement to

relief.

Jones, 834 F.3d at 1319 (citations omitted).

allegations will not suffice.

Conclusory

Id.

In this case, the pertinent facts are fully developed in this

record or the record otherwise precludes habeas relief;3 therefore,

the Court can "adequately assess [Petitioner's] claim[s] without

further factual development," Turner v. Crosby, 339 F.3d 1247,

1275

(11th

Cir.

2003),

cert.

denied,

541

U.S.

1034

(2004).

assigned by the electronic filing system.

3 The Court notes Petitioner received a postconviction evidentiary

hearing in state court and was represented by counsel in that

proceeding.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 3 of 49 PageID 4240

Petitioner has not met his burden as the record refutes the

asserted factual allegations or otherwise precludes habeas relief.

Thus, the Court finds Petitioner is not entitled to an evidentiary

hearing.

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

III.

PETITION

Petitioner lists three grounds for habeas relief:

GROUND ONE: The State withheld evidence which

was material and exculpatory in nature and/or

presented false evidence in violation of Mr.

Shellito’s Constitutional rights.

GROUND TWO:

Mr. Shellito was denied the

effective assistance of counsel at the guilt

phase of the capital proceedings, in violation

of the Sixth, Eighth and Fourteenth Amendments

to the United States Constitution.4

GROUND THREE:

Mr. Shellito was absent from

critical stages of the trial in violation of

his Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution.

Appellate Counsel’s failure to raise this

claim was deficient performance which denied

Mr. Shellito effective assistance of counsel

on direct appeal.

Petition at 16, 22, 33.

4 In

ground two, Petitioner points to alleged deficiencies in

counsel’s performance: (1) failure to conduct an adequate voir

dire/jury selection; (2) failure to present testimony from the

defense investigator and additional testimony from Detective

Hinson implicating Stephen Gill; (3) failure to present a voluntary

intoxication defense; and (4) opening the door to Ms. Teresa

Ritzer’s highly prejudicial testimony. Petition at 22-32.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 4 of 49 PageID 4241

Petitioner asks that his judgment and sentence be reversed.

Id. at 37.

He contends habeas relief is warranted based on his

expressed grounds for relief.

IV.

Reply at 14.

HABEAS REVIEW

In this case, Petitioner claims he is detained “in violation

of the Constitution or laws or treaties of the United States.”

U.S.C. § 2241(c)(3).

The Court recognizes its authority to award

habeas corpus relief to state prisoners “is limited-by both statute

and Supreme Court precedent.”

Knight v. Fla. Dep’t of Corr., 936

F.3d 1322, 1330 (11th Cir. 2019), petition for cert. filed, (U.S.

Apr. 20, 2019) (No. 19-8341).

The Antiterrorism and Effective

Death Penalty Act (AEDPA) governs a state prisoner's federal

petition for habeas corpus and “prescribes a deferential framework

for evaluating issues previously decided in state court[,]” Sealey

v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir.

2020) (citation omitted), limiting a federal court’s authority to

award habeas relief.

See 28 U.S.C. § 2254; Shoop v. Hill, 139 S.

Ct.

(per

504,

506

(2019)

curiam)

(recognizing

AEDPA

imposes

“important limitations on the power of federal courts to overturn

the judgments of state courts in criminal cases").

As such,

federal courts may not grant habeas relief unless one of the

claims:

"(1)'was

contrary

to,

involved

unreasonable

application of, clearly established Federal law, as determined by

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 5 of 49 PageID 4242

the Supreme Court of the United States,' or (2) '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)."

Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301

(11th Cir. 2019), cert. denied, 140 S. Ct. 2520 (2020).

In Knight, the Eleventh Circuit explained:

A decision is “contrary to” clearly

established federal law “if the state court

arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question

of law or if the state court decides a case

differently than [the Supreme] Court has on a

set of materially indistinguishable facts.”

Williams [v. Taylor, 529 U.S. 362 (2000)] at

413, 120 S. Ct. 1495. A state court decision

involves an unreasonable application of

federal law “if the state court identifies the

correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the

prisoner’s case.” Id. To justify issuance of

the writ under the “unreasonable application”

clause, the state court’s application of

Supreme Court precedent must be more than just

wrong in the eyes of the federal court; it

“must

‘objectively

unreasonable.’”

Virginia v. LeBlanc, ––– U.S. ––––, 137 S. Ct.

1726, 1728, 198 L.Ed.2d 186 (2017)(quoting

Woods v. Donald, ––– U.S. –––, 135 S. Ct. 1372,

1376, 191 L.Ed.2d 464 (2015)); see also Bell

v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843,

152 L.Ed.2d 914 (2002) (explaining that “an

unreasonable application is different from an

incorrect one.”).

Knight, 936 F.3d at 1330–31.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 6 of 49 PageID 4243

obtain

habeas

relief,

the

state

court

decision

must

unquestionably conflict with Supreme Court precedent, not dicta.

Harrington v. Richter, 562 U.S. 86, 102 (2011).

If some fair-

minded jurists could agree with the lower court's decision, habeas

relief must be denied.

Meders v. Warden, Ga. Diagnostic Prison,

911 F.3d 1335, 1351 (11th Cir.), cert. denied, 140 S. Ct. 394

(2019).

Therefore, unless the petitioner shows the state-court's

ruling was so lacking in justification that there was error well

understood and comprehended in existing law beyond any possibility

for fair-minded disagreement, there is no entitlement to habeas

relief.

Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

This Court must accept that a state court's finding of fact,

whether a state trial court or appellate court, is entitled to a

presumption of correctness under 28 U.S.C. § 2254(e)(1).

“The

state court’s factual determinations are presumed correct, absent

clear and convincing evidence to the contrary.”

at 1354 (quoting 28 U.S.C. § 2254(e)(1)).

Sealey, 954 F.3d

This presumption of

correctness, however, applies only to findings of fact, not mixed

determinations of law and fact.

Brannan v. GDCP Warden, 541 F.

App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the

distinction between a pure question of fact from a mixed question

of law and fact), cert. denied, 573 U.S. 906 (2014).

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 7 of 49 PageID 4244

Where

rejecting

there

has

been

one

reasoned

federal

claim

followed

state

court

judgment

unexplained

order

upholding that judgement, federal habeas courts employ a "look

through" presumption: "the federal court should 'look through' the

unexplained decision to the last related state-court decision that

does provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning."

Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).

The reviewing federal court’s habeas corpus consideration of

a petition under AEDPA is a guard against extreme malfunctions in

the state criminal justice systems, not a mechanism for ordinary

error correction.

Richter, 562 U.S. at 102-103 (citation and

quotation marks omitted).

As noted in Sealey, 954 F.3d at 1354

(citations omitted), when reviewing whether there has been an

unreasonable

application

‘unreasonable,’

which

federal

law,

“[t]he

than

simply

key

word

incorrect.”

Consequently, state-court judgments will not easily be set aside

due to the applicability of the highly deferential AEDPA standard

that is intentionally difficult to meet.

at 102.

See Richter, 562 U.S.

Although a high hurdle, this high standard does not impose

a complete bar to issuing a writ, but it severely limits those

occasions to those "where there is no possibility fairminded

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 8 of 49 PageID 4245

jurists could disagree that the state court's decision conflicts"

with Supreme Court precedent.

Id.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner raises claims of both ineffective assistance of

trial counsel and ineffective assistance of appellate counsel.

prevail on a Sixth Amendment claim of ineffective assistance of

trial counsel, he must satisfy the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that

he show both deficient performance (counsel's representation fell

below

(there

objective

standard

reasonable

reasonableness)

probability

that,

but

and

prejudice

for

counsel's

unprofessional errors, the result of the proceeding would have

been different).

See Brewster v. Hetzel, 913 F.3d 1042, 1051-52

(11th Cir. 2019) (reviewing court may begin with either component).

The two-part

Strickland standard

applies to Petitioner’s

claim of ineffective assistance of appellate counsel as well:

An ineffective assistance of appellate

counsel claim is “governed by the same

standards applied to trial counsel under

Strickland.” Brooks v. Comm’r, Ala. Dep’t of

Corr., 719 F.3d 1292, 1300 (11th Cir. 2013)

(internal quotation marks omitted). To show a

meritorious

Sixth

Amendment

claim

ineffective assistance of appellate counsel,

a petitioner must demonstrate (1) deficient

performance, indicating that the attorney

failed to function as required by the Sixth

Amendment; and (2) that counsel’s deficient

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 9 of 49 PageID 4246

performance

prejudiced

the

petitioner.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

“Under the first prong, [the petitioner]

must show that his direct appellate counsel’s

performance ‘fell below an objective standard

of reasonableness.’” Brooks, 719 F.3d at 1300

(quoting Strickland, 466 U.S. at 688, 104 S.

Ct. 2052). There exists “a strong presumption

that counsel’s conduct falls within the wide

range of reasonable professional assistance.”

Strickland, 466 U.S. at 689, 104 S. Ct. 2052.

Further, “[a]ppellate counsel has no duty to

raise every non-frivolous issue and may

reasonably

weed

out

weaker

(albeit

meritorious)

arguments.”

Overstreet

Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).

“Under

Strickland’s

second

prong,

[the

petitioner] must show that there ‘is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different.’ ”

Brooks, 719 F.3d at 1300 (quoting Strickland,

466 U.S. at 694, 104 S. Ct. 2052). “A

reasonable probability is a probability

sufficient to undermine confidence in the

outcome.”

Id. (internal quotation marks

omitted).

“‘The

standards

created

Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem,

review is doubly so.’” Overstreet, 811 F.3d at

1287 (quoting Harrington v. Richter, 562 U.S.

86, 105, 131 S. Ct. 770, 178 L.Ed.2d 624

(2011)). Under this “double deference,” then,

“the question becomes whether there is any

reasonable argument that counsel satisfied

Strickland’s deferential standard.” Evans v.

Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249,

1268 (11th Cir. 2012) (internal quotation

marks omitted).

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Corales-Carranza v. Sec’y, Fla. Dep’t of Corr., 768 F. App’x 953,

957 (11th Cir. 2019) (per curiam).

See Garcia v. Sec’y, Dep’t of

Corr., No. 5:17-CV-121-OC-39PRL, 2020 WL 708139, at *11 (M.D. Fla.

Feb. 12, 2020) (recognizing the applicability of the two-part

Strickland

standard

claim

ineffective

assistance

appellate counsel).

VI.

GROUND ONE

GROUND ONE: The State withheld evidence which

was material and exculpatory in nature and/or

presented false evidence in violation of Mr.

Shellito’s Constitutional rights.

In support of ground one, Petitioner asserts the prosecutor

at the state evidentiary hearing conceded that the state’s witness,

Richard Bays, testified falsely.

Petition at 16.

Petitioner

submits that Bays’ testimony was false in two respects: (1) that

he was facing life in prison due to his status as a habitual

offender,

testimony.

and

Id.

(2)

was

not

receiving

any

benefit

for

his

Petitioner argues Bays received a benefit for his

testimony because the day before Bays testified, the day of jury

selection, the prosecutor withdrew the notice to prosecute Bays as

a career criminal.

Id. at 16-17.

Petitioner’s trial counsel was

unaware that the notice had been withdrawn.

Petitioner claims:

Id. at 17.

“[a]t Mr. Shellito’s capital trial Bays

testified that he was facing a life sentence on his pending charges

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 11 of 49 PageID 4248

(T. 434).

He was not.

Prosecutor Plotkin who knew that Bays was

testifying falsely sat mute.”

Petition at 19.

Petitioner also

claims Bays knew he would receive a benefit because he knew that

if he testified truthfully his testimony would be taken into

consideration.

Id.

Indeed, a week after Petitioner’s sentencing,

Bays entered a plea to accessory after the fact and received a

sentence of thirteen months in jail, which meant he was released

upon his plea.

Id.

Petitioner argues Bays offered critical

testimony because he was the only witness who placed the murder

weapon in Petitioner’s hands before the murder and Bays testified

Petitioner admitted to the crime.

Id. at 20.

Respondents construe Petitioner’s claim as a Giglio5 claim

asserting the prosecutor failed to correct false testimony that

Bays

was

testimony.

facing

life

and

Response at 17.

not

receiving

any

benefit

for

his

Respondents concede exhaustion as

Petitioner raised this issue in ground four of his postconviction

motion and then appealed the denial of the claim.

Id.

It is important to recognize Petitioner’s Brady/Giglio claim

was vetted at the state evidentiary hearing.6

After hearing the

5 Giglio

v. United States, 405 U.S. 150 (1972) (to establish a

Giglio violation, a defendant must demonstrate the testimony was

false, the prosecutor knew the testimony was false, and the

statement was material).

6 Brady v. Maryland, 373 U.S. 83 (1963) (to successfully sustain a

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 12 of 49 PageID 4249

testimony and making credibility determinations, the trial court

denied the claim in its Amended Order Denying Defendant’s Motions

for Post Conviction Relief.

Petitioner

alleged

the

(Doc. 13-9).

state

The trial court noted

committed

its

violation

withholding material and exculpatory evidence, and/or presented

misleading evidence, which rendered his counsel’s performance

ineffective.

Id. at 20.

The court set forth what must be

demonstrated to successfully prevail on a Brady claim.

Id. at 21.

The court summarized the evidentiary hearing testimony of former

Assistant State Attorney Jay Plotkin.

Id.

Notably, Mr. Plotkin

testified he did file the Notice of Withdrawal of Habitual Violent

Felony

Offender

Mr.

Petitioner’s trial started.

Bays

Id.

July

17,

1995,

the

day

Mr. Plotkin attested he sent the

notice to defense counsel and said he withdrew the notice because

he did not consider Mr. Bays to be qualified for the habitual

offender status and the original notice was filed in error.

The

trial

court

also

focused

the

fact

that

Mr.

Id.

Plotkin

testified: “no agreements were ever made with Mr. Bays regarding

HVFO status and his testimony, and the terms of Mr. Bays’ plea

Brady claim, a defendant must show favorable evidence – either

exculpatory or impeaching, was willfully or inadvertently

suppressed by the state, and the evidence was material, resulting

in prejudice to defendant).

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 13 of 49 PageID 4250

agreement were not worked out until subsequent to the Defendant’s

case.”

Id.

Of import, the trial court also opined, even assuming arguendo

there had been an agreement between the prosecutor and Mr. Bays

concerning

exchange

testimony

for

not

pursuing

habitualization, Petitioner failed to establish prejudice because

Mr. Bays testimony mirrored others’ testimony, as well as other

evidence presented at trial.

court

found

Petitioner

Id. at 21-22.

failed

As such, the trial

establish

reasonable

probability that the outcome of the trial would have been different

had an agreement been made and known, as alleged.

Id. at 22.

On appeal of the denial of the postconviction motion, in

Argument III of Appellant’s Brief, Petitioner raised the following

issue:

The circuit court erred in denying Mr.

Shellito’s claim that he was deprived of his

rights to due process under the Fourteenth

Amendment to the United States Constitution as

well as his rights under Fifth, Sixth, and

Eighth Amendments, because the state withheld

evidence which was material and exculpatory in

nature and/or presented misleading evidence.

(Doc. 13-10 at 6).

Of import, the brief included citation to Napue v. Illinois,

360 U.S. 264, 265-66, 69-70 (1959) concerning a Brady/Giglio claim

asserting

failure

reveal

promise

for

consideration

for

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 14 of 49 PageID 4251

testimony and an asserted Giglio violation for failure of the

state, having knowledge of the promise, to correct a witnesses’

false

testimony.

(Doc.

13-10

n.48).

Also

cited

authority is United States v. Bagley, 473 U.S. 667, 683 (1985)

(recognizing the possibility of reward strengthens the incentive

to testify falsely).

Petitioner argued a Giglio violation (false

testimony, prosecutor knew it to be false, and the materiality of

the testimony).

(Doc. 13-10 at 89).

Asserting materiality of

Bays’ testimony, Petitioner said Bays was the only person who

placed the gun in Petitioner’s hands before the murder,

additionally, Petitioner admitted the shooting to Bays.

and

Id. at

89-90.

In response, the state, in its Answer Brief of Appellee,

argued Petitioner failed to allege a Giglio violation below,

presenting just a Brady violation.

(Doc. 13-11 at 86).

Assuming

Petitioner presented both Brady and Giglio claims, the state argued

the trial court’s decision merited affirmance based on recordsupported sound reasoning.

belief

insufficient

witness

under

Alternatively, because the subjective

that

both

prosecutor

Brady

and

would

Giglio,

the

help

him

state

argued

Petitioner also failed to meet his burden to prove the prosecutor

offered something to induce Bays’ testimony.

Id. at 87-89.

Furthermore, the state argued the trial court accredited the

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prosecutor’s testimony denying any promises to Bays based on

competent,

substantial

evidence;

therefore,

there

can

substitution of judgment on the credibility issue and the result

remains the same.

Id. at 89-90.

that

had

even

Bays

agreement

reduced

been

Finally, the state submitted

subject

exposure,

the

cross-examination

impact

would

have

been

negligible because Bays’ testimony that he faced a life sentence

would have remained unchanged as he was still facing a life

sentence although the habitual offender notification had been

withdrawn and Bays’ testimony proved consistent as Bays cooperated

from the beginning.

its

Id. at 90.

reasoned

decision,

the

Supreme

Court

Florida

expressly affirmed the trial court’s decision denying relief as to

the guilt phase, rejecting both the Brady and Giglio claims.

13-15 at 26-28, 31).

(Doc.

Acknowledging the claims presented mixed

questions of law and fact, the Supreme Court of Florida deferred

to the lower court’s findings of fact, finding they were supported

by competent, substantial evidence.

presentation of

Id. at 26-28.

Without the

favorable evidence, the Supreme Court of Florida

found a failure to establish a Brady violation (“Contrary to

Shellito’s

assertion,

the

record

reveals

that

there

was

agreement entered into between Ricky Bays and the State whereby

Bays’ testimony in Shellito’s murder trial was agreed to be offered

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 16 of 49 PageID 4253

in consideration for the State’s disposition of Bays’ armed robbery

case.”).

Id. at 27 (footnote omitted).

The Florida Supreme Court, with regard to the Giglio claim,

noted that Bays testified he understood he was facing a maximum

possible penalty of life imprisonment in his armed robbery case,

he was not promised anything for his testimony by the prosecutor

or the police, and he understood he could receive a fifteen-year

minimum mandatory sentence.

Id. at 28.

The Florida Supreme Court

found there was no falsity in the statement because there was no

evidence of an agreement for the withdrawal of the habitual violent

felony

offender

notice,

any

consideration for Bays’ testimony.

other

Id.

benefit,

given

The Supreme Court also

took note that Bays never mentioned habitual offender status during

his testimony, and his testimony that he was facing life in prison

was true even without the habitual offender status as Bays was

facing a life sentence for armed robbery (armed robbery is a felony

punishable by life).

Id. at 29.

The court agreed that Bays

testified falsely at trial when he said he was facing a fifteenyear mandatory minimum; however, as this statement was not material

(there was no reasonable likelihood that this false testimony could

have affected the judgment of the jury), the court concluded there

was no Giglio violation.

(Doc. 13-15 at 29, relying on Guzman v.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 17 of 49 PageID 4254

State, 868 So.2d 498, 506 (Fla. 2003) (per curiam) (citing United

States v. Agurs, 427 U.S. 97, 103 (1976))).

Petitioner

has

not

rebutted

with

clear

and

convincing

evidence the state court’s determination that there was no promise

or agreement entered into between Bays and the state whereby Bays’

testimony in Petitioner’s murder case was agreed to be offered in

consideration for the state’s disposition in Bays’ armed robbery

case.

Notably, the only agreement occurred after the disposition

of Petitioner’s case.

Brady violation.

Thus, there is no favorable evidence of a

Moreover, as there was no materially false

testimony, there is no Giglio violation.

Ultimately, Bays faced

life imprisonment whether he was tried as a habitual violent felony

offender or just tried for armed robbery.

Thus, the material

testimony is not considered to be false and no prejudice ensued.

There was competent and substantial evidence to support these

state-court determinations.

(Doc. 13-8 at 280-362, testimony of

Jay Plotkin, prosecutor).

Mr. Plotkin testified “[t]here was no

understanding in this case specifically as to Mr. Bays’ sentence.”

Id. at 299.

Mr. Plotkin noted Mr. Bays “was cooperative from the

beginning.”

Id. at 324.

was

cooperating

witness

interaction with him).

testified

See id. at 356 (record shows Mr. Bays

long

before

Mr.

Plotkin

had

any

Mr. Plotkin did say, “Petitioner knew that

truthfully

that

would

taken

into

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 18 of 49 PageID 4255

consideration[,]” id. at 324, but Mr. Plotkin insisted there was

no deal so Mr. Bays could truthfully answer the question.

325.

Id. at

Finally, Mr. Plotkin testified the statutory maximum for

armed robbery with a firearm is life.

Id. at 362.

The record shows Bays testified at trial that upon his arrest,

he was taken to the Police Memorial Building and he gave a sworn

statement to the police concerning what Petitioner told Bays about

the murder.

(Doc. 13-2 at 343-44).

Mr. Bays said he was not

threatened in any way when he gave his statement.

Id. at 344.

When asked what his understanding of his maximum possible penalty,

he responded life, and he had not entered a plea to date.

Id.

also said he had not been promised anything for his testimony by

the State Attorney’s Office or by the police.

Id.

stated he had no idea what his sentence would be.

Id. at 344-45.

On cross-examination, defense counsel asked:

Mr. Bays

“[n]ow, the

maximum sentence, sir, that you’re looking at if you’re convicted

for armed robbery is life, right?”

in the affirmative.

Id.

Id. at 363.

Mr. Bays responded

Defense counsel asked: “[a]nd as you

understand it you could also receive in that a 15 year minimum

mandatory

sentence,

affirmatively.

Id.

right?”

Id.

Mr.

Bays

responded

Clearly, no question was raised as to whether

Petitioner was facing a habitual felony offender sentence.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 19 of 49 PageID 4256

Whether or not Mr. Plotkin understood the law when he withdrew

the

habitual

consequence.

offender

notice

for

See Response at 25.

Mr.

Bays

not

any

The state court credited Mr.

Plotkin’s testimony that there was no agreement with Mr. Bays prior

his

testimony,

and

the

record

shows

Mr.

Bays

had

been

consistently cooperative with the police since his arrest, even

before any contact with Mr. Plotkin, thereby exhibiting no evidence

of recent fabrication or falsity in Bays’ trial testimony based on

some sort of hidden agreement or deal with the prosecutor.

Given the testimony of Mr. Plotkin and the other evidence,

there was no deal, and the fact that Mr. Bays, upon arrest, was

immediately a cooperating witness, Petitioner “has not come close

to rebutting by clear and convincing evidence the presumption of

correctness that we must accord the state court’s findings.”

Hill

v. Johnson, 210 F.3d 481, 486 (5th Cir. 2000) (concluding there is

no Supreme Court decision supporting an assertion that subjective

beliefs of witnesses regarding the possibility of future favorable

treatment are sufficient to trigger a state’s duty to disclose

under Brady and Giglio or gives the reviewing court cause to

believe

the

state

court’s

conclusions

are

the

result

unreasonable application of the facts to the law), cert. denied,

532 U.S. 1039 (2001).

Indeed, a nebulous expectation of help by

a witness is simply not enough to support a Brady/Giglio claim.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 20 of 49 PageID 4257

Here there was no evidence of a side deal regarding the future

prosecution of Mr. Bays, nor was there evidence of the prosecutor

concealing such a promise from the jury.

See Williams v. Williams,

232 F.Supp.3d 1318, 1324 (S.D. Ga. Feb. 8, 2017) (district court

adopting report and recommendation of magistrate judge) (finding

a leniency deal with the witness was one of sufficient impact so

that failure to disclose was critically important).

Of course,

any agreements, understandings, and promises must be disclosed,

Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir. 1985), and

“[e]ven partly formed understandings, agreements, and side-deals”

are to be disclosed.

omitted).

Williams, 232 F.Supp.3d at 1325 (citation

As such, verbal assurances of non-prosecution, police

promises to a prosecution witness that the police would talk to

the prosecutor on behalf of the witness, and even a promise to

write a letter to the parole board on behalf of a state’s witness

may constitute just such a side-deal or agreement that must be

disclosed.

Apparently, the trial court credited the testimony of Mr.

Plotkin that no agreements were made with Mr. Bays regarding his

habitual offender status and his testimony (Doc. 13-9 at 21), and

there was no evidence of “quid pro quo” for Bays’ testimony prior

to or during the Petitioner’s trial.

Rodriguez v. Sec’y, Fla.

Dep’t of Corr., 756 F.3d 1277, 1307 (11th Cir. 2014), cert. denied,

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 21 of 49 PageID 4258

575 U.S. 939 (2015).

Given this Court’s deference to the trial

court’s factual finding that the prosecutor’s testimony was not

false concerning whether or not the prosecutor and Mr. Bays struck

a deal, Petitioner’s Brady claim is foreclosed.

Of significance, it was not false testimony that Bays stated

he was facing a maximum of life imprisonment for armed robbery.

As this was an accurate statement, it could not violate the Giglio

rule.7

Hammond v. Hall, 586 F.3d 1289, 1306-1307 (11th Cir. 2009)

(citation omitted) (“A Giglio claim involves an aggravated type of

Brady violation in which the suppression of evidence enabled the

prosecutor to put before the jury what he knew was false or

misleading testimony[.]”), cert. denied, 562 U.S. 1145 (2011).

Although Bays testified falsely he was facing a fifteen-year

mandatory minimum, the statement was not material (there was no

reasonable

likelihood

that

this

false

testimony

could

have

affected the judgment of the jury); therefore, there was no Giglio

violation.8

Even assuming there was a Giglio violation (a more

7 Petitioner

claims prosecutor Plotkin knew Bays was testifying

falsely and sat mute when Bays said he was facing a life sentence

on his pending charges. Petition at 19.

8 Apparently,

Bays did not know his trial testimony was false

concerning his facing a fifteen-year minimum mandatory term as the

state’s notice of withdrawal of the habitual violent felony

offender notice had just been filed by the state and not yet

received by the defense.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 22 of 49 PageID 4259

defense-friendly burden),9 Petitioner has failed to satisfy the

standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637

(1993) (internal quotation marks omitted), as Petitioner failed to

demonstrate any violation “had substantial and injurious effect or

influence in determining the jury’s verdict[.]”

Moreover, even

assuming Bays had been subjected to cross-examination on agreement

or reduced exposure, the impact would have been negligible because

Bays’ testimony that he faced a life sentence would have remained

unchanged and his testimony proved consistent as Bays cooperated

from the outset, prior to any discussions with the prosecutor.

This Court presumes the factual determinations of the state

court are correct.

Petitioner has failed to rebut the presumption

of correctness with clear and convincing evidence.

2254(e)(1).

28 U.S.C. §

Also, the Court extends deference to the state

court’s credibility determinations.

After hearing testimony, the

trial

determination,

court

made

credibility

Plotkin’s testimony to be credible.

finding

Mr.

“Federal habeas courts have

‘no license to redetermine credibility of witnesses whose demeanor

9 It

is important to recognize that Brady requires a showing the

result would have been different, whereas Giglio requires a showing

the result could have been different without the use of perjured

testimony.

Petitioner claims prosecutor Plotkin knew Bays was

testifying falsely and sat mute when Bays testified there were no

promises made by the prosecution in exchange for Bays’ testimony

and Bays was facing a life sentence on his pending charges.

Petition at 19.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 23 of 49 PageID 4260

has been observed by the state trial court, but not by them.’”

Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir.

2011) (per curiam) (quoting Marshall v. Lonberger, 459 U.S. 422,

434 (1983)), cert. denied, 568 U.S. 849 (2012).

The Court concludes the Florida Supreme Court’s decision

affirming the trial court’s decision on the guilt phase is not

contrary to, nor an unreasonable application of controlling United

States

Supreme

Court

precedent.

Petitioner

has

not

demonstrated that the adjudication of the state court was contrary

to or an unreasonable application of any clearly established

federal law as determined by the United States Supreme Court or an

unreasonable

determination

the

facts,

Petitioner

not

entitled to habeas relief on this ground.

VII.

GROUND TWO

GROUND TWO:

Mr. Shellito was denied the

effective assistance of counsel at the guilt

phase of the capital proceedings, in violation

of the Sixth, Eighth and Fourteenth Amendments

to the United States Constitution.

Petitioner claims Refik Eler, Petitioner’s trial counsel,

performed deficiently during voir dire and the guilt stages of the

proceedings.

streaming

counsel’s alleged deficiencies.

fashion,

Petitioner

presents

The state has responded to these

allegations and broken the response into four distinct categories.

For ease of the reader, the Court will do the same:

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 24 of 49 PageID 4261

(A) Voir Dire/Jury Selection:

(1) failure to question the potential jurors with regard

to their views on drugs and alcohol abuse as well as

mental health;

(2) failure to attempt to rehabilitate potential jurors

concerning views on the death penalty before agreeing to

strike the potential jurors for cause;

(3) failure to use peremptory challenges against

potential jurors with connections to law enforcement

and/or specialized knowledge of related subjects

(fingerprints, lifesaving, firearms);

(B) Guilt Phase – Sufficient Evidence Implicating Gill:

(1) John Bennett;

(2) Migdalia Shellito and the defense investigator;

(3) Detective Hinson;

(D) Guilt Phase – “Opening the Door” to Ms. Teresa Ritzer.

Respondents agree that Petitioner exhausted his state court

remedies with regard to his claim of ineffective assistance of

trial

counsel.

Response

29.

Notably,

the

trial

court

conducted an evidentiary hearing on the postconviction motion.

Thus, the claim of ineffective assistance of trial counsel has

been well vetted.

Defense counsel, Mr. Eler, testified at the proceeding.

The

record shows defense counsel was not only experienced, he also had

significant experience in death penalty proceedings.

(Doc. 13-6

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 25 of 49 PageID 4262

at 12).

Mr. Eler had been an Assistant State Attorney, prosecuting

criminal cases from 1986-1989.

Id. at 13.

practice

with

Frank

Tassone,

He went into private

experienced

criminal

lawyer, and Mr. Eler engaged in criminal defense work.

defense

Id.

Mr.

Eler had 200 jury trials, handled murder cases (some capital

cases), including being second chair in death penalty cases, and

is an adjunct professor of law teaching trial advocacy.

13, 15.

Id. at

Prior to accepting appointment of Petitioner’s case, Mr.

Eler had approximately six years of private practice experience.

Id. at 14.

(A) Voir Dire/Jury Selection

Directing

counsel

its

focused

inquiry

the

jury

death

selection,

penalty

undertaken and whether it was adequate.

postconviction

qualification

that

was

Given that Petitioner is

no longer facing the death penalty, many of the complaints about

the

adequacy

voir

dire

and

jury

selection

are

longer

pertinent to this Court’s review (for example, mitigation at the

penalty

phase).

ineffective

The

assistance

trial

court

trial

addressed

counsel,

the

denying

claim

relief

and

finding Petitioner’s counsel made reasonable tactical decisions or

Petitioner’s claims were merely speculative.

Generally,

Petitioner

complains

his

trial

counsel

“was

completely ineffective in neglecting to remove biased jurors and

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 26 of 49 PageID 4263

to attempt rehabilitation of other jurors[.]”

Petition at 24.

While Petitioner acknowledges Eler’s limited time to prepare due

to his appointment date, Petitioner states that the hurried nature

of trial preparation meant some witnesses were never deposed or

spoken to or were deposed shortly before trial, leaving counsel

inadequately prepared.

Id.

The trial court rejected this claim

finding it unsupported.

(Doc. 13-9 at 8-9) (“The Defendant fails

to provide any indication as to the type of information, or any

information for that matter, that he alleges trial counsel could

have discovered through further deposing of these witnesses that

would have in any way been beneficial to his defense and was not

already presented at trial.”).

Ultimately, the court found this

claim

failing

vague

and

conclusory,

establish

deficient

performance or prejudice, relying on the Strickland two-pronged

standard.

Id. at 9.

Concerning the claim that counsel performed inadequately by

failing to question potential jurors about their views regarding

drugs, alcohol, and mental illness, the trial court rejected the

claim finding such failure did not render counsel’s performance

deficient because Petitioner made no showing that “an unqualified

juror with a bias or animus towards the mentally ill or those

suffering from drug or alcohol addiction” sat on the jury.

Id.

The trial court highlighted the fact that Mr. Eler, during the

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 27 of 49 PageID 4264

evidentiary hearing on postconviction, testified he considered and

rejected using drug or alcohol use as a defense.

at 131).

Id.; (Doc. 13-6

Consistent with this decision, Mr. Eler testified he did

not want to present the blood alcohol toxicology report taken at

the time of Petitioner’s arrest.

the

evidentiary

(Doc. 13-6 at 137).

hearing,

the

focus

the

questions

concerning mental health were directed to the penalty phase; as

Petitioner

longer

serving

sentence

death,

these

questions and responses are not substantially relevant to this

federal proceeding.

Id. at 132-36.

As such, the Court will

direct its focus elsewhere.

On cross-examination at the evidentiary hearing, Mr. Eler

responded to questions concerning his reasons for asking the jurors

about alcohol and drug use and about any of their training in

psychology and psychiatry.

Id. at 176-77.

When asked whether he

would have been more effective asking the jurors more about their

views on drugs, alcohol, and mental illness, and whether they were

sympathetic

the

ailments

and

illnesses,

Mr.

Eler

responded, in his experience, the venire in Duval County is “not

very sympathetic to that as an excuse and even to an extent

mitigation.”

Id. at 178.

questioning

because

He also explained he is careful in his

potential

juror’s

response

too

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 28 of 49 PageID 4265

favorable to the defense, the state will strike the potential

juror.

Id. at 178-79.

Petitioner also raises the matter of counsel’s failure to

attempt to rehabilitate potential jurors concerning views on the

death penalty before agreeing to strike the potential jurors for

cause.

This

claim

has

limited

relevance

Petitioner is not serving a sentence of death.

this

stage

Nevertheless, it

will be considered to the extent it may still be relevant as to

the

overall

question

counsel’s

performance

during

voir

dire/jury selection.

Petitioner complains counsel’s attempts at rehabilitating

potential jurors was insufficient.

Petition at 23.

At the

evidentiary hearing, Mr. Eler explained he would have stipulated

to a strike for cause if it were a potential juror he did not want,

if the juror had work issues and he did not want to upset the juror

or cause the juror to punish Petitioner, if counsel read the

potential juror’s body language and it was not positive for the

defense, and for various other reasons.

(Doc. 13-6 at 179).

Petitioner also claims counsel’s performance was deficient

for failure to use peremptory challenges against potential jurors

with connections to law enforcement and/or specialized knowledge

subjects

Petition at 23.

(fingerprints,

lifesaving,

firearms).

The jurors in question are Ms. Hill (who practiced

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 29 of 49 PageID 4266

as a nurse for five years and took life-saving courses), Mr.

Rutledge

ballistics

security

training),

guard

and

with

Mr.

specialized

Wilson

firearms

and

(who

had

fingerprint

training, including obtaining latent prints).

Id.

Petitioner

also bases this claim on counsel’s failure to determine if these

individuals could disregard their specialized training.

Id.

In response to a question at the evidentiary hearing, counsel

explained it would be to the defense’s advantage to have a juror

with fingerprint training because that juror may discount the

police

efforts

evidence.

because

the

police

(Doc. 13-6 at 180).

failed

get

fingerprint

Mr. Eler said Mr. Rutledge, the

security guard, was an attractive juror because he was a young

black male, who may identify with Petitioner, a young male, being

in a bad spot.

Id.

Although there was no specific inquiry

concerning Ms. Hill, Mr. Eler explained, generally, he likes female

jurors because they are more sensitive and open.

Id. at 51.

The trial court rejected the contention that trial counsel

should have used peremptory challenges to exclude these potential

jurors and should have determined if they could disregard their

specialized knowledge or training for deliberations.

at 11-12).

(Doc. 13-9

The court found Petitioner failed to present evidence

that his jury was anything but impartial.

Id. at 11.

The court

highlighted Mr. Eler’s testimony that he communicated with his

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 30 of 49 PageID 4267

client throughout jury selection, conferred with his client, and

Petitioner approved of the jury selection.

Id.

The court found

trial counsel’s testimony that he conferred with Petitioner more

credible

and

concerning the claim.

persuasive

than

Petitioner’s

allegations

Id.

Of import, the court mentioned there was no questioning

concerning Ms. Hill, but the court found Petitioner failed to

present any evidence showing Ms. Hill’s prior experience as a nurse

in any way affected her ability to render an impartial deliberation

and decision in Petitioner’s case.

Id. at 12.

Finally, based on

all of Mr. Eler’s testimony at the evidentiary hearing, the trial

court found that counsel made a tactical decision not to challenge

“any of these [Mr. Wilson, Ms. Futrell, Mr. Rutledge, and Ms. Hill]

potential jurors.”

Id.

As such, the court found counsel’s

performance was not deficient and Petitioner failed to establish

error on counsel’s part which prejudiced his defense.

Id.

Noting that the trial court found counsel’s decisions during

voir dire were tactical or strategic,10 the Florida Supreme Court,

in addressing the claim of ineffective assistance of counsel during

“An attorney’s actions are sound trial strategy, and thus

effective, if a reasonable attorney could have taken the same

actions.” Harvey v. Warden, Union Correctional Institution, 629

F.3d 1228, 1243 (11th Cir.) (emphasis added), cert. denied, 565

U.S. 1035 (2011).

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 31 of 49 PageID 4268

voir dire, concluded:

“[b]ecause Shellito has failed to prove

that Eler was deficient during voir dire, we need not address the

prejudice prong.”

(Doc. 13-15 at 11).

The Florida Supreme Court

found Petitioner’s claim that counsel was ineffective for failure

to determine if the prospective jurors could disregard their

specialized training to be speculative.

Id. at 10.

Finally, the

Florida Supreme Court summarily denied Petitioner’s “conclusory

assertion” that Mr. Eler was deficient when he stipulated to

striking for cause certain prospective jurors.

Id. 11 n.4.

Affirming the trial court’s denial of relief as to the guilt phase,

the superior court rejected this ground concerning voir dire/jury

selection.

The

credible

trial

court

found

and

persuasive,

defense

and

the

specifically referenced this finding.

counsel’s

testimony

Florida

Supreme

Court

Additionally, for this

Court’s review of Petitioner’s claims of ineffective assistance of

counsel, it is significant that Petitioner had the benefit of

experienced counsel: “[w]hen courts are examining the performance

of an experienced trial counsel, the presumption that his conduct

was reasonable is even stronger.”

Cummings v. Sec’y for Dep’t of

Corr., 588 F.3d 1331, 1364 (11th Cir. 2009) (quoting Chandler v.

United States, 218 F.3d 1305, 1316 (11th Cir. 2000)), cert. denied,

562 U.S. 872 (2010).

The Court has reviewed the evidentiary

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 32 of 49 PageID 4269

hearing, and the record clearly demonstrates Petitioner had the

benefit of experienced defense counsel.

In evaluating jury selection claims, a federal court reviews

the underlying claim of ineffective assistance of counsel just

like any other Strickland claim, employing the strong presumption

that trial counsel’s performance was constitutionally adequate.

Fennell v. Sec’y, Fla. Dep’t of Corr., 582 F. App’x 828, 831 (11th

Cir. 2014) (per curiam) (citation omitted), cert. denied, 576 U.S.

1039

(2015).

However,

petitioner,

the

post-conviction

context, has the additional burden of meeting the actual bias

requirement that Florida employs.

Id. at 832 (citing Carratelli

v. State, 961 So.2d 312, 323 (Fla. 2007)).

Considering this record, including the evidentiary hearing

transcript, the Court finds the record supports the state court’s

findings.

jury.

There is no evidence that a biased juror sat on the

Rogers v. McMullen, 673 F.2d 1185, 1189 (11th Cir. 1982)

(finding

habeas

relief

appropriate

defendant

can

demonstrate that a juror was biased or incompetent), cert. denied,

459 U.S. 1110 (1983).

determination

that

Also, considering the record as whole, the

trial

counsel

was

not

ineffective

not

contrary to, or an unreasonable application of Strickland and its

progeny as “the bounds of constitutionally effective assistance of

counsel are very wide.”

Harvey, 629 F.3d at 1243.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 33 of 49 PageID 4270

the

state

court

reasonably

determined

the

facts

and

reasonably applied federal law to those facts in rejecting the

claim of ineffective assistance of counsel, Petitioner is not

entitled to habeas relief.

trial court’s decision.

The Florida Supreme Court affirmed the

The state court’s ruling is entitled to

AEDPA deference as its decision is not inconsistent with United

States Supreme Court precedent, and the adjudication of this claim

is not contrary to or an unreasonable application of United States

Supreme Court law or based on an unreasonable determination of the

facts.

Petitioner is not entitled to relief on his claim of

ineffective

assistance

counsel

regarding

voir

dire/jury

selection.

(B) Guilt Phase – Sufficient Evidence Implicating Gill

(1) John Bennett; (2) Migdalia Shellito and the defense

investigator; and (3) Detective Hinson.

Petitioner claims his counsel was ineffective because he

failed to “introduce a great deal of evidence that would have

placed serious suspicion on Gill and would have supplied reasonable

doubt as to Mr. Shellito’s involvement in the crime.”

at 25.

Petition

With regard to John Bennett, Petitioner contends his

counsel performed deficiently for failure to bring out the fact

that in his deposition, Mr. Bennett said not only did he hear tires

squealing, he also heard a shot before he saw a silhouette move

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 34 of 49 PageID 4271

around the truck and enter the driver’s side of the truck.

Id.

The record shows, at trial, Mr. Bennett did not mention he heard

a shot.

Regarding Migdalia Shellito and her testimony that Gill had

confessed to her that Gill committed the murder of the victim,

Petitioner contends Mr. Eler performed deficiently because he

failed to call the defense’s investigator to testify that Mrs.

Shellito had mentioned Gill’s confession to the investigator three

months

before

Petitioner’s

trial,

especially

after

the

state

called the court clerk to say that Mrs. Shellito never told the

clerk

another

person

confessed

the

murder,

although

Mrs.

Shellito said she thought she had told the clerk about Gill’s

confession.

Id. at 25-26.

Finally, Petitioner argues Mr. Eler performed ineffectively

when he did not recall Detective Hinson to testify as to the

statements Gill made to him.

Id. at 27.

When Detective Hinson

was called as the state’s witness, defense counsel tried to examine

the detective about the contents of Mr. Gill’s statements to him,

but these were considered to be hearsay statements.

Id. at 26.

Counsel was just able to elicit that Detective Hinson was concerned

about Gill’s truthfulness.

After recognizing the

Id.

Strickland

two-pronged standard of

review, (Doc. 13-9 at 6), the trial court rejected this claim

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 35 of 49 PageID 4272

finding Mr. Bennett was not asked about gunshots and the rest of

his

testimony

testimony.

was

relatively

Id. at 16.

consistent

with

his

deposition

More importantly, as the court noted, Mr.

Eler testified at the evidentiary hearing that he was able to

elicit very beneficial testimony from Mr. Bennett at trial.

Id.

Indeed, upon review of his trial testimony, Mr. Bennett provided

very significant testimony for the defense.

47).

(Doc. 13-2 at 736-

He testified that the silhouette he saw appeared to be coming

from the driver’s side.

Id. at 739-40.

Even on cross examination

by the state, he continued to state that “he would have to be

coming from the driver’s side.”

Id. at 745.

This testimony

bootstrapped the defense as all of the evidence presented at trial

supported the conclusion that Mr. Gill had been the driver of the

truck and Petitioner had been the passenger in the truck, never

the driver.

Of note, in his deposition, Mr. Bennett expressed a

level of uncertainty as to whether the silhouette came from the

driver’s

side

the

passenger’s

side

the

truck.

Thus,

Bennett’s trial testimony was more certain and beneficial to the

defense.

The

trial

court

found,

“[w]ithout

alleging

more,

the

Defendant has failed to provide any showing that he was prejudiced

by trial counsel’s failure to question Mr. Bennett about hearing

gunshots on the night of the incident.”

(Doc. 13-9 at 16).

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 36 of 49 PageID 4273

Without satisfying the prejudice component, Petitioner cannot

prevail on his claim of ineffective assistance of counsel.

See

Reaves v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1137, 1151 (11th

Cir. 2017), cert. denied, 138 S. Ct. 2681 (2018).

The trial court, after reviewing Petitioner’s assertion that

counsel should have called the defense’s investigator to testify

at trial, concluded counsel’s performance was not deficient as the

decision of counsel was “tactical in nature.”

(Doc. 13-9 at 17).

Counsel testified had he listed his investigator as a witness, the

investigator would have been subject to deposition and crossexamination by the state, an examination defense counsel would

absolutely want to avoid, reasonably fearing dreadful consequences

for the defense.

Finally,

Id.

regarding

the

assertion

that

counsel

performed

deficiently for failure to re-call Detective Hinson to testify

once Stephen Gill pled the Fifth and became unavailable as a

witness, the trial court noted that defense counsel testified he

was aware there would be the hurdle to overcome of “various hearsay

objections[,]” but counsel was able to gain the substance of the

needed information through his examination of Detective Hinson on

cross-examination, and significantly, counsel was unaware of any

confession by Gill to Hinson.

Id. at 17-18.

Finally, and most

importantly, “trial counsel was able to get the statement that Mr.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 37 of 49 PageID 4274

Gill gave to Ms. Shellito admitted at trial.”

Id. at 18.

In a

strikingly positive ruling for the defense, the trial court allowed

Mrs. Shellito to take the stand and testify that Gill told her he

killed the victim.

Finding neither error and/or prejudice as to trial counsel’s

failure to call and question Mr. Bennett, the investigator,11 and

Detective Hinson, the trial court denied Petitioner’s claim of

ineffective assistance of counsel, citing Strickland.

at 18).

(Doc. 13-9

As the state court reasonably determined the facts and

reasonably applied federal law to those facts in rejecting the

claim of ineffective assistance of counsel, Petitioner is not

entitled to habeas relief.

to AEDPA deference.

The state court’s ruling is entitled

The Florida Supreme Court agreed there was

no deficiency in this regard, denying the claim of ineffective

assistance of counsel at the guilt phase of the trial.

(Doc. 13-

call

his

11,

investigator,

n.5,

failure

n.8,

concerning

impeach

John

failure

Bennett

the

prior

inconsistent statement that suggested Gill was the shooter, and in

failure to recall Detective Hinson).

In an apparent scrivener’s error, the court referred to

counsel’s failure to call and question “Ms. Shellito,” when the

claim referenced the failure to call the investigator to reveal

what Ms. Shellito told the investigator prior to trial. (Doc. 139 at 18).

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 38 of 49 PageID 4275

The state court’s decision is not inconsistent with Supreme

Court precedent, and the state court’s adjudication of this claim

is not contrary to or an unreasonable application of Strickland or

based on an unreasonable determination of the facts.

Thus, AEDPA

deference is due, and Petitioner is not entitled to habeas relief

on this claim of ineffective assistance of counsel.

Petitioner

claims

his

counsel

performed

deficiently

failing to present a voluntary intoxication defense at trial.

Petition at 27-29.

Petitioner alleges he was severely addicted

to alcohol and marijuana and he had been drinking alcohol and

smoking

marijuana

time

the

crime.

Id.

27.

Petitioner suggests his counsel could have presented this evidence

to rebut specific intent and premeditation, to show Petitioner was

too intoxicated to drive or shoot the victim, and to explain

Petitioner’s behavior at the time of his arrest and his lack of

control prior to commission of the crime.

the

post-conviction

evidentiary

Id. at 27-28.

hearing,

Mr.

Eler

testified he rejected the notion of presenting drug or alcohol use

as a defense, although he was aware that there had been a party or

gathering going on before and after the offense, and drugs were

being used and alcohol consumed.

(Doc. 13-6 at 130-31).

Mr. Eler

explained the theory of the defense was Mr. Gill committed the

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 39 of 49 PageID 4276

murder, not that Petitioner messed up and did not know what was

going on.

Id. at 132.

Mr. Eler did not want to present an

inconsistent defense of voluntary intoxication or alter his theory

of the defense, causing the jury to question the believability of

any of the stated defense.

Id.

The trial court concluded counsel’s stated tactical decision

not to present a defense of voluntary intoxication was adequately

explained by defense counsel when he said that defense would run

contrary to the defense asserted at trial (innocence) and would

have been disingenuous in the eyes of the jury.

19).

(Doc. 13-9 at

The trial court found the decision not to investigate or

pursue the intoxication defense was a tactical decision that did

not constitute ineffective assistance of counsel.

Id.

As such,

the court found Petitioner failed to satisfy the performance prong

of Strickland.

(Doc. 13-9 at 19).

Additionally, the trial court

found Petitioner failed to establish prejudice, the second prong

of Strickland.

(Doc. 13-9 at 19).

Finding neither deficient

performance nor prejudice, the trial court rejected Petitioner’s

claim.

Id.

The trial court applied the Strickland standard in addressing

Petitioner’s contention that he was deprived of his Sixth Amendment

right

standards.

reasonable

assistance

under

prevailing

professional

The court found counsel’s performance well within the

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 40 of 49 PageID 4277

broad range of reasonable assistance under prevailing professional

norms.

Given that the theory of the defense was innocence, the

presentation of a voluntary intoxication defense would have been

incompatible with the trial strategy.

Once Petitioner asserted

his innocence, an intoxication defense became a complete anathema.

The

Florida

Supreme

reasonable,

tactical

Court

agreed,

decision

finding

not

Mr.

Eler

“made

pursue

voluntary

intoxication defense” as an intoxication defense would have been

entirely

inconsistent

with

the

theory

Petitioner did not commit the murder.

the

defense

that

(Doc. 13-15 at 12).

The Court is not convinced defense counsel’s performance fell

below an objective standard of reasonableness.

Indeed, counsel’s

actions were well within the scope of permissible performance.

The standard is reasonable performance, not perfection.

913 F.3d at 1056 (citation omitted).

Brewster,

In addition, Petitioner has

failed to show resulting prejudice, the second prong of the

Strickland standard.

There is no reasonable probability that the

outcome of the case would have been different if trial counsel had

taken the action suggested by Petitioner.

Trial counsel’s representation was not so filled with serious

errors

that

guaranteed

defense

the

counsel

Sixth

was

not

Amendment.

functioning

The

counsel

state

court’s

determination is consistent with federal precedent.

The Court

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 41 of 49 PageID 4278

concludes AEDPA deference is warranted.

Thus, the Court finds the

state court’s adjudication of this claim is not contrary to or an

unreasonable application of Strickland or based on an unreasonable

determination of the facts.

As such, this claim is due to be

denied.

(D) Guilt Phase – “Opening the “Door” to Ms. Teresa Ritzer

Petitioner,

this

ground,

claims

his

counsel

was

ineffective in cross-examining Teresa Ritzer, opening the door to

highly prejudicial testimony, that is, that Petitioner threatened

her life and made admissions to her.

Petitioner at 29-32.

Mr.

Eler, at the evidentiary hearing, testified he believed, had he

not attempted to impeach Ms. Ritzer by cross-examining her about

her previous statement that she never saw or heard anything

suspicious and the changes in her story, Petitioner would have had

“a probably bigger claim” of ineffective assistance of counsel.

(Doc. 13-6 at 184-85).

After hearing counsel’s testimony, the

trial court found counsel made a tactical decision to cross-examine

Ms. Ritzer, weighing the risks entailed with doing so, and this

decision did not constitute ineffective assistance as it was not

deficient performance.

(Doc. 13-9 at 15).

The Florida Supreme Court rejected the claim of ineffective

assistance

counsel,

agreeing

that

defense

counsel

made

strategic decision to delve into this area, which in hindsight,

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 42 of 49 PageID 4279

opened the door to the admission of

unexpected evidence not

entirely favorable to the defendant.

(Doc. 13-15 at 12).

The

Florida Supreme Court summarily rejected the contention that trial

counsel should have moved for a hearing concerning Ritzer’s prior

statement.

Id. at 13 n.7.

Finding counsel failed to prove Mr.

Eler was ineffective during the guilt phase, the Florida Supreme

Court affirmed the trial court’s decision as to the guilt-phase

claim.

Id. at 31.

The trial court set forth the two-pronged Strickland standard

before addressing grounds for relief.

The trial court rejected

this claim of ineffectiveness after conducting an evidentiary

hearing.

The court concluded defense counsel’s performance was

not deficient.

The Florida Supreme Court affirmed the trial

court’s decision denying relief on this ground.

Upon review, the

state court's decision is not inconsistent with Supreme Court

precedent, including Stickland and its progeny.

The state court's

adjudication of this claim is not contrary to or an unreasonable

application

Strickland

determination of the facts.

based

unreasonable

As such, this claim is due to be

denied.

VIII.

GROUND THREE

GROUND THREE:

Mr. Shellito was absent from

critical stages of the trial in violation of

his Fifth, Sixth, Eighth, and Fourteenth

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 43 of 49 PageID 4280

Amendments to the United States Constitution.

Appellate Counsel’s failure to raise this

claim was deficient performance which denied

Mr. Shellito effective assistance of counsel

on direct appeal.

In his final ground for relief, Petitioner raises a claim of

ineffective assistance of appellate counsel.

He asserts that

appellate counsel’s performance was constitutionally deficient

because appellate counsel did not raise the issue that Petitioner

was absent from critical stages of the trial, including conferences

where defense counsel and the prosecutor argued critical issues

before the court, during the review of an alleged witness tampering

incident, and finally, the discussion of a scheduling matter before

the jury.12 Petition at 33-34.

This claim is exhausted as it was

presented in Petitioner’s state habeas petition as Claim II.

(Doc. 13-13 at 18-20).

The Florida Supreme Court addressed this

claim, noting that a defendant has a constitutional right to be

present at all crucial stages of the trial where absence might

frustrate fairness.

(Doc. 13-15 at 30).

The court opined,

however, that this right does not extend to every conference in

which matters presented in the case are discussed.

Id.

The court

concluded that Petitioner failed to demonstrate he was absent from

critical stages of his trial which might have frustrated the

12 The

record demonstrates trial counsel did not object to these

absences.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 44 of 49 PageID 4281

fairness of the trial.

Id. at 31.

In coming to this conclusion,

the court opined that Petitioner “could have provided no useful

input[.]”

Id.

Finding the claim meritless, the court held

appellate counsel could not be deemed ineffective for failure to

raise this meritless issue.

Id. (citation omitted).

It matters whether a defendant’s absence is during a critical

stage of the proceedings; a “defendant is guaranteed the right to

be present at any stage of the criminal proceeding that is critical

to its outcome if his presence would contribute to the fairness of

the procedure.”

Kentucky v. Stincer, 482 U.S. 730, 745 (1987).

As the Eleventh Circuit thoroughly explained:

The right to be present pursuant to the

Confrontation Clause has been referred to as

a “trial right,” and is less broad than the

right afforded by the Due Process Clause or

Rule 43. United States v. Boyd, 131 F.3d 951,

954 (11th Cir. 1997). The Supreme Court has

“emphasized that a primary interest secured by

the Confrontation Clause is the right of

cross-examination.” Kentucky v. Stincer, 482

U.S. 730, 736, 107 S. Ct. 2658, 2662, 96

L.Ed.2d 631 (1987) (citation, quotation, and

brackets omitted). Thus, this clause has the

“functional purpose [of] ensuring a defendant

an opportunity for cross-examination.” Id. at

739, 107 S. Ct. at 2664.

The Due Process Clause, on the other

hand, offers a criminal defendant a somewhat

broader right to be present. See Boyd, 131

F.3d at 954. The Supreme Court described this

right as follows:

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 45 of 49 PageID 4282

The Court has assumed that,

even

situations

where

the

defendant

not

actually

confronting witnesses or evidence

against him, he has a due process

right “to be present in his own

person whenever his presence has a

relation, reasonably substantial,

to the fulness of his opportunity to

defend against the charge.” ...

Although the Court has emphasized

that this privilege of presence is

not guaranteed “when presence would

be useless, or the benefit but a

shadow,” ... due process clearly

requires that a defendant be allowed

to be present “to the extent that a

fair and just hearing would be

thwarted by his absence”.... Thus,

a defendant is guaranteed the right

to be present at any stage of the

criminal

proceeding

that

critical to its outcome if his

presence would contribute to the

fairness of the procedure.

Stincer, 482 U.S. at 745, 107 S. Ct. at 2667

(quoting Snyder v. Massachusetts, 291 U.S. 97,

105–08, 54 S. Ct. 330, 332–33, 78 L. Ed. 674

(1934)). Similarly, this Court has stated that

“[t]he right of a criminal defendant to be

present at all critical stages of his trial is

a fundamental constitutional right.” Proffitt

v. Wainwright, 685 F.2d 1227, 1260 n. 49 (11th

Cir.1982).

United States v. Novaton, 271 F.3d 968, 997–98 (11th Cir. 2001),

cert. denied, 535 U.S. 1120 (2002).

Upon review, Petitioner’s presence at these conferences and

during scheduling discussions would have been, at most, a mere

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 46 of 49 PageID 4283

shadow of a benefit, or most likely, of no benefit.

See United

States v. Thomason, 940 F.3d 1166, 1172 (11th Cir. 2019) (a right

to be present at a modification of sentence only if it constitutes

a critical stage where presence contributes to fairness), cert.

denied, 140 S. Ct. 1213 (2020); In re Shriner, 735 F.2d 1236, 1241

(11th Cir. 1984) (no right to be present at bench conference

involving purely legal matters); United States v. Howell, 514 F.2d

710, 714 (5th Cir.) (in camera conferences concerning a juror

relating that he had been indirectly offered a bribe not a critical

stage in the proceedings and no concomitant right for the defendant

to be present arose), cert. denied, 423 U.S. 914 (1975).

On the

other hand, for example, a criminal defendant’s absence from a

conference may well be considered critical if it concerns the

cross-examination of witnesses put on by the government or if the

absence occurs during a time of decision-making crucial to deciding

whether

present

witnesses

trial.

those

circumstances, a defendant’s absence may present a reasonably

substantial concern regarding fairness and the ability to defend

against the charge.

See Novaton, 271 F.3d at 999 (finding absence

of defendant for a lengthy time during critical stages was not

harmless beyond a reasonable doubt).

Petitioner’s absence from the bench conferences involving

purely

legal

matters,

such

developing

jury

instructions,

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 47 of 49 PageID 4284

logistical decisions, and addressing the misconduct of spectators,

did not limit the fairness of the proceeding because these are not

the types of matters or stages of the proceeding that are critical

to its outcome needing the input of the Petitioner.

Defense

counsel ably handled these matters and/or participated in these

stages of the proceedings without Petitioner being present and any

benefit of his presence would have been “but a shadow.”

Any “act or omission of counsel preventing the defendant’s

presence must be prejudicial” in order to obtain post-conviction

relief.

Stagg v. Sec’y, Dep’t of Corr., No. 5:12-cv-194-RS-EMT,

2013 WL 6184058, at *15 (N.D. Fla. Nov. 26, 2013) (district court

approving

and

adopting

recommendation).

the

magistrate

judge’s

report

and

See Duckett v. McDonough, 701 F.Supp.2d 1245,

1291 (M.D. Fla. 2010) (asking whether the petitioner’s presence at

a bench conference would have ensured a more reliable determination

of the issue and finding his presence at conferences would not

have

provided

any

benefit

conferences or trial).

affected

the

outcome

the

Here, Petitioner has not demonstrated how

his presence would have enhanced the fairness of the proceedings

or how his absence diminished the fairness of the proceedings.

Appellate

counsel’s

performance

did

not

fall

below

objective standard of reasonableness for failure to raise the claim

that Petitioner was absent from critical stages of the trial in

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 48 of 49 PageID 4285

violation of his Fifth, Sixth, Eighth, and Fourteenth Amendments

to the United States Constitution.

An appellate counsel has no

duty to raise every non-frivolous issue.

As evidenced by the

Supreme

Petitioner

Court

Florida’s

finding

that

had

not

demonstrated he was absent from critical stages of his trial and

its overriding decision this was ultimately a meritless issue,

appellate counsel could not be deemed ineffective for failure to

raise the claim.

No unprofessional error was made.

And, even

giving Petitioner every benefit of the doubt, this claim presented

a weaker issue, an issue appellate counsel may reasonably weed

out.

Petitioner’s appellate counsel cannot be deemed ineffective

for failure to raise this matter on appeal.

Thus, Petitioner is

not entitled to habeas relief based on his claim of ineffective

assistance of appellate counsel.

Therefore, it is now

ORDERED AND ADJUDGED:

The Petition for Writ of Habeas Corpus (Doc. 1) is

DENIED.

This action is DISMISSED WITH PREJUDICE.

The Clerk shall enter judgment accordingly and close

this case.

Case 3:18-cv-00868-BJD-JRK Document 17 Filed 07/31/20 Page 49 of 49 PageID 4286

If Petitioner appeals the denial of his Petition for

Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of

appealability. 13

Because

this

Court

has

determined

that

certificate of appealability is not warranted, the Clerk shall

terminate from the pending motions report any motion to proceed on

appeal

pauper

that

may

filed

this

case.

Such

termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of

July, 2020.

sa 7/24

Counsel of Record

This Court should issue a certificate of appealability only if

a petitioner makes "a substantial showing of the denial of a

constitutional right."

28 U.S.C. § 2253(c)(2).

To make this

substantial showing, Petitioner "must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong," Tennard v. Dretke, 542

U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)), or that "the issues presented were 'adequate to deserve

encouragement to proceed further,'" Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)).

Upon due consideration, this Court will

deny a certificate of appealability.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.