Petition for Writ of Certiorari — Winston Calder, Petitioner v. Richard Comerford, Secretary, Florida Department of Corrections

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APPENDIX

APPENDIX

Order Denying Rehearing,

U.S. Court of Appeals for the Eleventh Circuit,

Winston Calder v. Sec’y, Fla. Dep’t of Corr.,

No 24-10309 (May 29, 2026) ...................................................................................... A-1

Opinion Affirming Denial of 28 U.S.C. § 2254 Petition,

U.S. Court of Appeals for the Eleventh Circuit,

Winston Calder v. Sec’y, Fla. Dep’t of Corr.,

No 24-10309 (Feb. 13, 2026) ...................................................................................... A-2

Order Denying 28 U.S.C. § 2254 Petition,

U.S. District Court, Southern District of Florida,

Winston Calder v. Sec’y, Fla. Dep’t of Corr.,

No. 23-cv-60762-Altman (Dec. 18, 2023)................................................................... A-3

Opinion Reversing and Remanding on Direct Appeal,

Florida Fourth District Court of Appeal,

Winston Calder v. State,

No. 4D11-4237 (January 8, 2014) ............................................................................. A-4

Trial Transcripts, Vol. X

Florida Seventeenth Judicial Circuit,

State v. Winston Calder,

No. 08-1448 CF10A (Feb. 16, 2015) .......................................................................... A-5

Jury Note,

Florida Seventeenth Judicial Circuit,

State v. Winston Calder,

No. 08-1448 CF10A (Feb. 16, 2015) .......................................................................... A-6

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In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10309

____________________

WINSTON CALDER,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:23-cv-60762-RKA

____________________

ON PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

Before HULL, MARCUS, and WILSON, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in

regular active service on the Court having requested that the Court

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be polled on rehearing en banc. FRAP 40. The Petition for Panel

Rehearing also is DENIED. FRAP 40.

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10309

____________________

WINSTON CALDER,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:23-cv-60762-RKA

____________________

Before HULL, MARCUS, and WILSON, Circuit Judges.

MARCUS, Circuit Judge:

Winston Calder appeals the denial of his petition for habeas

corpus, brought pursuant to 28 U.S.C. § 2254. Calder was convicted in Broward County, Florida, for murder in the first degree

on February 17, 2015, and sentenced to life in prison. The resulting

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case has given rise to a lengthy and byzantine set of trial, appellate,

and collateral attack proceedings. Central to the State’s case was a

confession obtained on January 21, 2008 (the “Statement”), which,

although not admitted into evidence, was used extensively by the

State to impeach Calder’s testimony at trial. In the instant federal

petition -- originally raised as an amended state motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 -Calder claims his trial counsel was prejudicially ineffective for failing to challenge the Statement under Strickland v. Washington, 466

U.S. 668 (1984). The district court rejected Calder’s petition, finding de novo that his trial counsel was not ineffective because any

objection to the Statement as being coerced was doomed to fail.

After careful review, we agree with the district court that

Calder is not entitled to relief under § 2254, but for different reasons. In denying Calder’s petition, the district court determined

that under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), no prior state court had adjudicated Calder’s

Strickland claim on the merits, thus warranting de novo review. As

we see it however, the State’s postconviction response brief (the

“State’s Response”), expressly adopted by the state postconviction

court, argued that no matter what became of Calder’s Statement,

Calder was not prejudiced by any error his trial counsel may have

committed. Under our controlling law, this finding by the state

postconviction court amounts to an adjudication on the merits of

Calder’s Strickland claim, and therefore we are required to review

Calder’s petition only through the prism of AEDPA deference. Because the state adjudication that Calder was not prejudiced by his

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trial counsel’s alleged error is neither contrary to nor an unreasonable application of federal law, we affirm.

I.

These are the essential facts and procedural history.

“On January 20, 2008, during an argument in which his girlfriend, Georgia Lee, tried to remove him from their apartment,

Calder shot and killed Lee. Police arrested Calder the following

day.” Calder v. State (Calder I), 133 So. 3d 1025, 1027 (Fla. 4th DCA

2014). Upon arrest, Calder recounted in some detail the events that

precipitated Lee’s killing. The description below covers, first, the

exchange between Calder and the police leading up to the Statement, before dissecting the details of the Statement itself, and the

winding proceedings that followed.

A. Initial Interrogation

Calder was arrested at around 1:00 AM on January 21, 2008,

and was transported to the station of the Lauderhill Police Department. Upon his arrival, he was interrogated by Detective Rick Sessions.

At the start of the interrogation, Detective Sessions asked

Calder a series of basic questions about his background and pedigree. Calder stated that he grew up in Jamaica and had been living

in the United States for nearly a year. Calder also confirmed that

although he had been drinking that weekend, he was sober at the

time of the interrogation. Detective Sessions explained that Calder

was under arrest “for the incident that happened on Saturday

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night” and provided Calder with a sheet of paper containing a numbered list of Miranda warnings, an affirmation that the defendant

understood each of the rights, and a signature block waiving the

right to counsel and agreeing to speak without a lawyer present.1

After the detective explained the warnings, Calder indicated he understood his rights, but asked for clarification on “number three.”

Detective Sessions responded, “Number three says . . . if you decide

to answer questions now without a lawyer present, you will have

the right to stop questioning at any time and speak with a lawyer.”

Calder then said, “Like number three now with a lawyer present.

I -- me would prefer lawyer.”

1 The sheet of paper included the following numbered warnings:

1. You have the right to remain silent; 2. Anything you say can

be used against you in a court of law; 3. If you decide to answer

questions now without a lawyer present, you will still have the

right to stop questioning at any time and speak with a lawyer

and have one present during questioning if you wish; 4. If you

cannot afford a lawyer, one will be appointed to represent you

before any questioning if you wish.

Following the numbered warnings, the paper’s written waiver, located just

above the signature block, reads this way:

I, _______, have read this statement of my rights, or have had

it read to me and I understand what my rights are. I am willing

to make a statement and answer questions. I do not wish an

attorney at this time. No threats or promises have been made

to me. No pressure of any kind has been used against me, nor

have I been deceived into giving this statement. I understand

and know what I am doing.

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As the Fourth District Court of Appeal (the “Fourth DCA”)

later recounted, the exchange continued, and Detective Sessions

repeatedly confirmed that Calder had requested a lawyer. Calder I,

133 So. 3d at 1028. Detective Sessions then got up to leave the

room. Before departing however, Detective Sessions said the following:

[I]f you do change your mind and you do want to talk

to me about your side of the story, okay, what I need

you to do is -- knock on the door but knock kind of

loud, just knock on it kind of loud, I’ll come back in

and then if you say you know what, Detective Sessions, I really, it really would make me feel better if I

got the opportunity to give my side of the story, talk

about what happened on Saturday, I know what happened, okay? I know that it’s very difficult for you and

it’s going to be tough for you to sleep because the bottom line is you been through a tough situation and

nobody wants to be in your shoes, obviously, but at

the same time one of the things that makes somebody feel a lot better is if they get the opportunity to

get things off of their chest, it kind of clears their

mind, it clears their conscious [sic] and it makes them

feel better, you know.

Id. at 1028–29. With that, the detective left Calder alone in the interrogation room.

Calder began to cry, and soon thereafter (seven or eight

minutes later) asked to speak to Detective Sessions again. Detective Sessions re-entered the room and said, “Hey Winston, what’s

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going on, Bud?” Calder told Detective Sessions, “[G]o get the paper, I sign it.” Detective Sessions said, “You wanna talk [to] me

about what happened?” Calder replied, “Yeah. Yeah.” After confirming that Calder wanted to speak without a lawyer present and

that Calder could read and write in English, Detective Sessions presented Calder with the paper listing the Miranda warnings and offering a written waiver. Calder signed the waiver at 4:35 AM.

B. Calder’s Statement

In Calder’s recorded statement to Detective Sessions, he offered the following explanation of the events that unfolded that

fateful night. Calder said he was involved in an intimate relationship with Lee, but the two had been arguing in the weeks before

the altercation. Calder added that Lee had changed, and that she

had become upset with him for being controlling and jealous.

On Saturday, January 19, 2008, Lee threw a birthday party

for Calder. Many people attended. At the time of the party, Lee

was no longer Calder’s girlfriend or, in his words, she was only

“partially” his girlfriend, though the two were living together in an

upper unit at an apartment complex identified as “The Villas.”2 On

the floor below Lee and Calder’s unit was a vacant apartment.

When the party started, most of the guests were outside on the

lawn behind the two apartments.

2 Lee had several children who lived in the apartment, and had also lived in the

apartment with her brother, Michael Green, for a few months before Calder

moved in.

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During Calder’s birthday, a “special friend” of Lee’s came to

the party. Lee then stopped helping with the party and began visiting with him. Calder confronted Lee about who the friend was,

and the two began to argue. At some point it started to rain, so

Calder and his friends moved the food and speaker system upstairs

to Lee’s apartment. As the party continued, Calder realized that

Lee had left, and had not helped move the food inside. Calder

thought Lee was trying to embarrass him in front of his friends,

though he did “no[t] really feel embarrassed.”

After the party guests left at around 4:00 AM, Lee returned

to the apartment. When Calder confronted her, Lee told Calder

he “did not have any manners,” and the two started to argue. Lee

then began to pack Calder’s clothes. Calder relayed that he then

left the apartment and went downstairs to the empty unit below.

While downstairs, Calder retrieved a gun from the vacant unit. As

he returned outside, Calder saw Lee putting his clothes and other

belongings outside the front door of her apartment. Just before,

Calder’s friend, Patrick Johnson, had arrived. Although he couldn’t

be sure, Calder surmised that Lee called Johnson before the fight

escalated.

Calder went back upstairs to join Lee and Johnson. He

asked Lee why she had placed his things outside. Calder then tried

to force his way through the front door. This caused Lee and her

brother, Michael Green, who was already inside, to brace the door.

Lee and her brother also started to kick and punch Calder in an

effort to repel him. During the scuffle, Green “thump[ed]” Calder

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in the face several times. Lee also flung something at Calder, which

he believed was a small vase. After Green hit Calder in the face

again, Calder pulled the firearm out of his pocket. By Calder’s own

account, he reached around the door, aimed the gun inside, and

fired a blind shot. The shot struck and fatally wounded Lee. Calder

explained that the shooting was in self-defense and that although

he knew Lee was behind the door, he did not know exactly where

she was. After firing the shot, Calder left the apartment. He said

that only later did he learn that Lee had been killed. He claimed he

did not intend to kill Lee.

C. First Trial and Subsequent Appeal

In a one-count indictment, a grand jury sitting in Broward

County charged Calder with first-degree murder. The case proceeded to trial in 2011. Prior to trial, the state court denied Calder’s

motion to suppress the Statement, finding that he had voluntarily

reinitiated his conversation with Detective Sessions after requesting a lawyer, and that therefore there was no Miranda violation.

The Statement was admitted as direct evidence, and Calder was

convicted by the jury. Calder I, 133 So. 3d at 1027.

On direct appeal to the Fourth DCA, Calder asserted that

the police had obtained his Statement through an involuntary

waiver. Id. at 1029. Specifically, he argued “the detective’s persistent attempts to persuade him to ‘tell his side of the story’

amounted to improper interrogation that vitiated the voluntariness

of his subsequent waiver.” Id. The Fourth DCA agreed, reversing

Calder’s conviction and remanding for a new trial. Id. at 1033. In

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so doing, the appellate court determined that Calder unequivocally

invoked his right to counsel. Id. at 1030. Next, it found that the

detective’s continued interrogation “failed to scrupulously honor

Calder’s invocation of his right to counsel.” Id. at 1030–31. The

court noted, however, that “Calder himself initiated communication with the detective after having invoked his right to counsel.”

Id. at 1031. Thus, the court asked “whether, under the totality of

the circumstances, Calder’s confession during the second interrogation was voluntary.” Id. The Fourth DCA answered this question in the negative, explaining that “[Calder’s] action in requesting

the detective was merely the delayed product of the coercive police

conduct.” Id. at 1032–33 (citation modified) (first citing the Ninth

Circuit’s opinion in Collazo v. Estelle, 940 F.2d 411, 419–24 (9th Cir.

1991) (en banc) 3; then citing State v. Brown, 592 So. 2d 308, 308–09

(Fla. 3d DCA 1991)). The court reasoned that because “the officer’s

improper comments . . . were designed to induce [Calder] to reinitiate the communication without a lawyer,” the “totality of the

circumstances shows that Calder’s reinitiation of the interrogation”

was “the product of improper police conduct.” Id. at 1033. The

court then remanded the case for a new trial, concluding that the

3 In Collazo, the Ninth Circuit held that the defendant’s confession was invol-

untary where the defendant asked to talk to a lawyer, but the police warned

him that speaking to a lawyer “might be worse” for him. Collazo, 940 F.2d at

420, 423. The Collazo court reasoned, as did the Fourth DCA in Calder I, that

the exchange rendered the defendant’s waiver involuntary. Id. Collazo was

not just a Miranda case. The Ninth Circuit expressly reached a “two-part conclusion,” finding that the confession was involuntary in violation of both Miranda and the Due Process Clause. Id. at 419.

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admission of Calder’s Statement was not harmless error. Id. at

1033.

D. Second Trial

Calder’s case was again tried to a jury over the course of

seven days in February 2015. At the second trial, Calder took the

stand in his own defense. He recounted a story that differed in substantial ways from the Statement he gave to the police. He testified

that on January 19, 2008, he got off work and returned to The Villas

at 5:30 PM. While setting up for the party, he discovered a gun as

he was cleaning out the vacant lower apartment. He placed the

gun in his pocket for “safekeeping.” During the party, Calder noticed Lee was missing, and spied Lee on the opposite side of the

complex with one of her children, talking with an unknown man.

Calder approached the pair and introduced himself. He

stated that seeing Lee with another man made him “a bit upset,”

and he took Lee’s child with him when he turned to leave. Lee

followed Calder and asked for her child back, saying Calder didn’t

“have any manners.” Eventually, and at the urging of Calder’s

neighbor Desmond Hendricks, Calder gave the child back to Lee.

Lee returned to the apartment, and Calder went back to the party

downstairs.

After it began to rain, Calder and several guests started moving the food from the party up to Calder’s apartment. Calder testified that Lee then told the guests that the party was over. After the

guests departed, Calder went to Lee’s room to ask why she had

ended the party. She refused to give him a straight answer, at

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which point Green returned to the apartment. Calder described

Lee as being “really, really mad” at the time, and so he left her in

the bedroom. Calder went out to the patio to “cool off,” and contemplated leaving the shared apartment. He walked down the

stairs and went around to the complex’s parking lot, thinking he

could perhaps depart and find a hotel.

At that point Calder received a call from Johnson, who had

arrived moments before. Johnson was upstairs by the entrance to

Calder’s apartment, and called down to Calder that there were several bags that appeared to be filled with his belongings placed outside the apartment, presumably by Lee. Calder saw this as further

reason to leave the apartment, but when he went to retrieve his

items, he noticed several important documents were missing. Calder then entered the apartment to search for the documents, where

he saw Lee packing more of his belongings. He grabbed the documents and went outside and down to his truck.

Calder stowed his documents and went back up to the apartment to gather the rest of his belongings. When he got there, he

passed Johnson before running into Lee and Green in the apartment’s hallway. Calder then testified that some kind of liquid was

flung at his face. He claimed he was ambushed by Johnson and

Green, who, along with Lee, began to hit him. Blinded and surrounded, he tried to back away. But, as Johnson blocked his path,

he was unable to get away. Calder testified that he thought his life

was threatened, and he pulled the gun from his pocket to scare his

assailants. He claimed that he managed to back up until he was

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near the entrance of the apartment, pinned between the wall and

the front door, at which point he fired the weapon.

On direct examination, Calder first explained that he “fired

the gun to scare them off,” but then said that he didn’t mean to

shoot the gun at all. Rather, the gun was fired accidentally after he

was forced back; he wasn’t aiming at anyone. Calder then fled the

scene. He later learned that Lee had been shot.

At the start of its cross-examination, the State confronted

Calder on the particulars of his story of when and how the shooting

occurred. Through a lengthy demonstration, it sought to confirm

where Calder was in the apartment in relation to his would-be attackers during the scuffle. Once the alleged facts were in place, the

State assailed Calder’s credibility with, among other things, the observation that his account could not be reconciled with the forensic

evidence at the scene. Thus, for example, the State observed that

from Calder’s recounting, it wasn’t possible for Lee to have been

shot in the way that she had been -- with the bullet entering the

right side of her head -- nor could Lee’s body have been found the

way it was, propped up against the apartment’s front door. Moreover, the State asked Calder why Johnson, Calder’s “best friend of

30 years,” had suddenly joined in the attack. Finally, though it did

not squarely address the contradiction, the State confirmed that

Calder volitionally fired a blind shot to scare his attackers, rather

than discharging the weapon accidentally.

Later in its cross-examination, the State shifted its focus and

impeached Calder with the contents of his Statement to Detective

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Sessions. In painstaking detail, the State went over many discrepancies between the two accounts, insisting that pursuant to Calder’s Statement, he was angry at Lee for having a “special friend”

at the party, they had fought right after the party, and he had fired

the gun while trying to force his way into the apartment.

In its own case in chief, the State produced substantial evidence of Calder’s guilt wholly independent from the Statement.

For one thing, the State introduced physical evidence, including the

gun Calder fired and expert testimony on the trajectory of the bullet. The State also offered testimony from numerous witnesses recounting the events of that night. The most critical testimony

came from Green and Johnson, who were present when the shot

was fired. Both gave accounts that flatly contradicted Calder’s trial

testimony. Among other things, they explained that Calder and

Lee had been fighting, that Lee had forced Calder out of the apartment, and that in the moments before the fatal shot was fired, Calder was outside the apartment trying to force his way in, when he

reached around the semi-open front door to fire the weapon at Lee,

who was inside the apartment.

The jury returned a verdict of guilty on the count of firstdegree murder.

E. Postconviction Proceedings

i. Motion for New Trial and Direct Appeal

Following his conviction, Calder moved for a new trial. His

lawyer complained about the use of Calder’s Statement to Detective Sessions, asserting that the trial court “erred in allowing the

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state to argue in closing the Defendant’s statement [w]as substantive evidence when it was not admitted into evidence.” At a hearing on the motion, counsel asserted that since the Statement had

previously been suppressed, it should have been used only for impeachment purposes, and that the State crossed the line in attempting to use it as substantive evidence.

The trial court disagreed, observing that “even if it comes

back on appeal that it should not have been admitted because of

Miranda violations, the statement can still be used for impeachment purposes.” Moreover, the trial court pointed out that the defense did not argue that the Statement had been coerced, noting

that “Mr. Calder never alleged that he was physically beaten or

something like that.” It then denied Calder’s motion. On direct

appeal, the Fourth DCA affirmed Calder’s conviction in an unexplained per curiam decision. Calder v. State (Calder II), 224 So. 3d

232 (Fla. 4th DCA 2017) (per curiam). The only issue raised on

appeal was whether the trial court erred when it allowed the State

to show the jury gruesome photographs.

ii. Petition for Belated Appeal

On April 17, 2017, Calder, proceeding pro se, filed a petition

“for a new appeal” pursuant to Florida Rule of Appellate Procedure

9.141 in the Fourth DCA, claiming the ineffective assistance of his

appellate counsel. He alleged that appellate counsel failed to challenge on appeal the State’s use of the Statement, because no hearing had been held in the trial court on the Statement’s

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voluntariness. The Fourth DCA summarily denied the petition on

July 10, 2017.

iii. Rule 3.850 Motion for Postconviction Relief

Soon thereafter, on October 23, 2017, 4 Calder filed still another collateral attack on his conviction pro se -- an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 in the trial court. Rule 3.850 allows “a person who

has been tried and found guilty or has entered a plea of guilty” to

move for “relief from judgment or release from custody” under

certain circumstances, including if “[t]he judgment was entered or

sentence was imposed in violation of the Constitution or laws of

the United States or the State of Florida.” FLA. R. CRIM. P. 3.850(a).

The second ground raised in the motion alleged that trial counsel

was ineffective for failing to request a hearing in the first instance,

on whether the Statement to Detective Sessions was coerced. Calder alleged that “[a]t no time prior to the prosecution using the January 21, 2008 statement against the defendant, did counsel request

a hearing, outside the presence of the jury, on the issue of the voluntariness of the defendant’s . . . statements.” He further alleged

that his counsel knew, or should have known, that the Statement

4 Calder filed an initial postconviction motion under Rule 3.850 on June 5,

2017. He then filed an amended postconviction motion in October 2017 for

relief under the same rule. The amended motion is stamped October 16, 2017,

though the document’s metadata and Calder’s brief both say it was filed October 23, 2017. The disparity in the dates is of no moment here, because the

amended motion was timely filed.

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was coerced in violation of the Due Process Clause, given the scope

of the Fourth DCA’s opinion in Calder I.

In opposition to Calder’s motion, the State’s Response mistakenly said that Calder had raised this very issue before, even

though his earlier petition only alleged the ineffective assistance of

appellate counsel. It further insisted that usage of the Statement

was proper, as a confession obtained in violation of Miranda could

be used to impeach a testifying defendant. Finally, and independently, the State argued that any error was not prejudicial, since

the State’s evidence was compelling enough that Calder could not

show a reasonable probability of a different outcome absent the use

of the Statement. On March 29, 2022, the state postconviction

court denied the Rule 3.850 motion “[f]or the reasons stated in the

State’s response.” The Fourth DCA summarily affirmed. Calder v.

State (Calder III), 350 So. 3d 347 (Fla. 4th DCA 2022) (per curiam).

iv. Federal Habeas Petition

On April 24, 2023, Calder filed the instant pro se petition for

a writ of habeas corpus under 28 U.S.C. § 2254 in the Southern District of Florida. Calder’s petition rested on eight grounds, including

that trial counsel was ineffective in failing to request a hearing on

whether the Statement was coerced (“Ground Two”). In reviewing Ground Two, the district court observed that the State’s Response, which was the operative document for discerning the reasoning of the two state courts, failed to distinguish between an objection on Miranda grounds, which would exclude the Statement

as direct evidence, and one on due process grounds, which would

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exclude its use for any purpose. The district court reasoned that

since the State’s Response had misconstrued Calder’s claim, no adjudication on the merits was rendered. Reviewing the matter de

novo, however, the district court concluded that trial counsel was

not ineffective for failing to object. The court explained that because the state trial court found the Statement to be voluntary in

denying Calder’s motion for a new trial, and because Calder never

offered any explanation why his Statement was coerced beyond the

Miranda violation itself, any objection by counsel would have been

futile. Thus, the district court denied Calder’s habeas petition.

This timely appeal ensued; we granted review only on

Ground Two, and assigned Calder counsel.

II.

We review a court’s denial of a petition for habeas corpus de

novo, “ow[ing] no deference to the district court’s decision about

the state court’s decision.” Brewster v. Hetzel, 913 F.3d 1042, 1051

(11th Cir. 2019); see also McNair v. Campbell, 416 F.3d 1291, 1297

(11th Cir. 2005). Further, “[a]n ineffective assistance of counsel

claim is a mixed question of law and fact that [this] [C]ourt reviews

de novo.” Jones v. Campbell, 436 F.3d 1285, 1292 (11th Cir. 2006)

(citing Dobbs v. Turpin, 142 F.3d 1383, 1386 (11th Cir. 1998)).

Section 2254 allows a state prisoner to petition a federal

court for a writ of habeas corpus, provided the petitioner contends

his custody is in violation of federal law. See 28 U.S.C. § 2254(a).

In affording relief under § 2254, a federal court is sharply limited by

AEDPA. The statute permits federal relief for claims first

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adjudicated on the merits by a state court only if the underlying

adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

Id. § 2254(d)(1)–(2). AEDPA imposes a “highly deferential standard

for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.

766, 773 (2010) (citation modified) (first quoting Lindh v. Murphy,

521 U.S. 320, 333 n.7 (1997); then quoting Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam)). However, if no adjudication on

the merits is rendered by the state court, “the claim is reviewed de

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

Cir. 2017) (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)).

III.

A.

Ground Two of Calder’s habeas petition claims that his trial

counsel rendered ineffective assistance by failing to object to the

Statement’s use even for impeachment purposes on due process

grounds at the second trial. To establish an ineffective assistance

of counsel claim, a petitioner must “demonstrate both that (1)

‘counsel’s performance was deficient,’ and (2) ‘the deficient

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performance prejudiced the defense.’” United States v. Webb, 655

F.3d 1238, 1258 (11th Cir. 2011) (per curiam) (quoting Strickland,

466 U.S. at 687). As for the first prong, we assess counsel’s performance with an eye for “reasonableness, not perfection.” Brewster,

913 F.3d at 1056 (citing, inter alia, Strickland, 466 U.S. at 687). This

requires an “objective inquiry” into counsel’s performance, and

“because counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner

must establish that no competent counsel would have taken the

action that his counsel did take.” Chandler v. United States, 218 F.3d

1305, 1315 (11th Cir. 2000) (en banc) (citing, inter alia, Waters v.

Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc)).

Even if trial counsel was ineffective, the petitioner must also

establish that such error was prejudicial. See Strickland, 466 U.S.

at 693 (“[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the

defendant affirmatively prove prejudice.”). To prove prejudice, a

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.” Brewster, 913 F.3d at 1052 (quoting

Strickland, 466 U.S. at 694). Where the proffered error is the “failure to object . . . we ask whether there is a reasonable probability

of a different result if counsel had objected.” Id. “A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694.

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In reviewing Ground Two of Calder’s habeas petition de

novo, the district court addressed only the first Strickland prong,

concluding that Calder’s trial counsel was not ineffective for failing

to challenge the Statement. The court reasoned that “counsel

couldn’t have been ineffective for failing to argue that the . . . Statement was involuntary because the state court came to the opposite

conclusion,” citing the state trial court’s observation that Calder

“never alleged that he was physically beaten or something like

that.” Moreover, the district court opined that Calder never explained why, other than pointing to Miranda itself, the Statement

had been coerced.

Calder insists that the district court erred. He cites the

Fourth DCA’s decision in Calder I, contending the state appellate

court’s holding amounted to a dual finding that the Statement was

involuntary under both Miranda and the Due Process Clause of the

Fourteenth Amendment. From this, he infers that the district

court’s conclusion that the Statement was voluntary rather than

coerced was erroneous, for if the state appellate court issued a contrary holding, that holding would constitute binding law of the

case, mandating the Statement’s exclusion. See Owen v. State, 862

So. 2d 687, 694 (Fla. 2003) (per curiam) (explaining that under Florida’s law of the case doctrine, “all questions of law which have been

decided by the highest appellate court become the law of the case

which must be followed in subsequent proceedings, both in the

lower and appellate courts” (quoting Brunner Enters., Inc. v. Dep’t of

Revenue, 452 So. 2d 550, 552 (Fla. 1984))).

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We need not decide, however, whether Calder is correct,

because even if we assume that Calder I sweeps as broadly as he

claims, and therefore that his trial counsel was ineffective for not

raising an objection, his petition must nevertheless be denied because he cannot establish that this error was prejudicial. As we

have observed, it is hornbook law that in order to prevail on an

ineffective assistance of counsel claim, a defendant must satisfy

both prongs of Strickland. See Strickland, 466 U.S. at 687. Indeed,

“there is no reason for a court deciding an ineffective assistance

claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697. An analysis

under Strickland may “begin with either of [its] two components,”

Brewster, 913 F.3d at 1051–52 (citing Strickland, 466 U.S. at 697), and

“[a] court may decline to reach the performance prong of the ineffective assistance test if convinced that the prejudice prong cannot

be satisfied,” Dallas v. Warden, 964 F.3d 1285, 1306 (11th Cir. 2020)

(quoting Waters, 46 F.3d at 1510).

This approach makes sense in the instant case. AEDPA requires a federal habeas court to defer to a state court’s adjudication

on the merits. As we explain, the two state courts only adjudicated

the question of prejudice on the merits. Prudentially, it would be

strange indeed to bypass the merits decision issued by the state

courts, and assess instead a different matter de novo, especially

where the merits decision is dispositive. Moreover, the question of

ineffectiveness is arguable. The matter requires a difficult predictive analysis into whether an objection on due process grounds

may have succeeded, and such a prediction is complicated by the

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ambiguity found in Calder I. 5 Accordingly, we need only answer

whether the state courts’ merits determination that there was no

prejudice was contrary to or an unreasonable application of federal

law as determined by the Supreme Court. After a searching review

of the record, and applying the deferential lens of AEDPA, we conclude the answer is no.

B.

We are satisfied that the state courts adjudicated the prejudice question on the merits. When a state court does not explain

the reasons for its decision, we are required to “‘look through’ the

unexplained decision to the last related state-court decision that

does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning,” unless the State

5 The parties fiercely dispute the scope of Calder I’s holding, and with good

reason. On a cursory review, it is unclear how broadly the Fourth DCA intended its holding to sweep. After all, the Fourth DCA did say, expressly, that

the Statement was obtained through “coercive police conduct.” Calder I, 133

So. 3d at 1032–33. The court also cited with approval Collazo, a case in which

the Ninth Circuit issued a dual finding of involuntariness under both Miranda

and the Due Process Clause. 940 F.2d at 420, 423. On the other hand, if Calder

I meant to issue a holding beyond Miranda, the opinion is subtle. The Fourth

DCA never cited the Due Process Clause -- indeed, it never used the words

“due process” at all. The mention of coercion, moreover, is not dispositive, as

voluntariness is also a requirement under Miranda. See Berghuis v. Thompkins,

560 U.S. 370, 382–83 (2010) (citing Moran v. Burbine, 475 U.S. 412, 421 (1986)).

And finally, the procedural posture of Calder I suggests that the Fourth DCA

had no occasion to comment on the applicability of the Due Process Clause,

since the appeal arose only from the state trial court’s holding that the Statement was admissible under Miranda. See Calder I, 133 So. 3d at 1029.

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gives reason to think otherwise. Wilson v. Sellers, 584 U.S. 122, 125

(2018). The Fourth DCA offered no reason or rationale when it

summarily affirmed the state postconviction court’s denial of Calder’s Rule 3.850 motion. Calder III, 350 So. 3d at 347. The state

postconviction court itself also issued a summary order, but explained that it denied the matter “[f]or the reasons articulated in

the State’s response.” Thus, in order to discern the state courts’

reasoning in their review of Calder’s motion, the State’s Response

becomes the operative document. Wilson, 584 U.S. at 125; see also

Bilotti v. Fla. Dep’t of Corr., 133 F.4th 1320, 1327 (11th Cir. 2025) (per

curiam).

Calder contends, nevertheless, that the State’s Response did

not resolve Ground Two on the merits because it failed to address

whether the use of the Statement for impeachment purposes violated the Due Process Clause. In this, Calder is only partially correct. Although the State’s Response misconstrued the nature of

Calder’s claim as to why counsel’s performance was allegedly deficient, it directly addressed the second prong of prejudice. It reasoned this way:

[T]he Defendant is unable to demonstrate prejudice

to the extent that it rendered the verdict unreliable.

In the instant case, there was strong direct evidence

proving [Calder] committed the crimes charged in the

Indictment including testimony of the victim’s

brother who was an eye witness to the crime and [Calder being] in possession of the murder weapon at the

time of his arrest. Accordingly, there is no reasonable

probability of a different outcome in this case.

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It is undeniable that the State’s Response, plainly adopted by

the state postconviction court and affirmed without further explanation by the Fourth DCA, concluded that even if the Statement

had been expressly challenged on due process grounds, and even if

the Statement was excluded for all purposes at the trial, the corpus

of evidence presented by the State still would have lead to a guilty

verdict. This is an adjudication of prejudice on the merits. See

Raulerson v. Warden, 928 F.3d 987, 1000 (11th Cir. 2019) (“[A] decision that does not rest on procedural grounds alone is an adjudication on the merits regardless of the form in which it is expressed.”

(quoting Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255–56

(11th Cir. 2002))). And it must be afforded deference under

AEDPA. 6 The remaining question, then, is whether the state

6 Notably, for some § 2254 cases predicated on a claim of ineffective assistance,

the degree of deference given is heightened. The Supreme Court has explained that since “[t]he standards created by Strickland and § 2254(d) are both

‘highly deferential,’” “when the two apply in tandem, review is ‘doubly’ so.”

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Knowles v. Mirzayance,

556 U.S. 111, 123 (2009)). Double deference does not apply in this case, however, as here Strickland and § 2254(d) do not “apply in tandem.” Id. Strickland

deference only applies to a court’s assessment of counsel’s performance. See,

e.g., Raheem v. GDCP Warden, 995 F.3d 895, 928 (11th Cir. 2021); Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016). As one judge

on our Court has written, “[u]nlike the performance evaluation, which asks us

to assess what counsel did or did not do . . . the prejudice question is, in the

end, a legal one. There is no ‘what’ to analyze.” Evans v. Sec’y, Dep’t of Corr.,

703 F.3d 1316, 1334 (11th Cir. 2013) (en banc) (Jordan, J., concurring) (citing

Strickland, 466 U.S. at 688). Because “[t]here is only the ex post legal determination . . . as to whether the defendant was or was not prejudiced by his

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courts’ determination was contrary to or an unreasonable application of federal law. We hold that it was not.

C.

To unseat the state courts’ finding that the trial evidence was

enough to convict him without the Statement, and thus that any

error on the part of trial counsel was not prejudicial, Calder again

must show that the state adjudication “was contrary to, or involved

an unreasonable application of, clearly established Federal law,” id.

§ 2254(d)(1), or otherwise “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2).

For AEDPA purposes, “clearly established Federal law” “refers to the holdings, as opposed to the dicta, of [the Supreme]

Court’s decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v.

Taylor, 529 U.S. 362, 412 (2000) (plurality opinion)). A decision is

“contrary to” Supreme Court precedent if it rests on a “rule that

contradicts the governing law set forth in [the Court’s] cases,” or

involves “a set of facts that are materially indistinguishable from a

decision . . . and nevertheless arrives at a result different from [its]

counsel’s actions,” a court does not apply the Strickland layer of deference to

the prejudice inquiry. Id. (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003);

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). And since the only applicable

adjudication on the merits in this case involves prejudice, we apply one layer

of deference to Calder’s claim, applicable to all adjudications on the merits

under AEDPA.

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precedent.” Williams, 529 U.S. at 405, 406. Alternatively, under the

“unreasonable application” clause, a state court’s decision must be

“so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

Here, Calder argues that because the Statement was used

extensively to impeach him when he testified in his own defense,

and was also featured in the State’s closing argument, the evidentiary picture given to the jury was fatally tainted. He surmises that

because the State spent “[h]alf of its questioning” focusing on the

Statement, including “impeach[ing] [him] with the Statement at

least 35 times and refresh[ing] his recollection with it at least 19

times,” the State heavily relied on the Statement to color the evidence.

To be sure, the Statement’s use in impeaching Calder may

have been effective. There were substantial differences between

the Statement and the testimony Calder supplied during the second

trial, including how the altercation began, and how Lee was shot.

Nevertheless, the state adjudication that Calder would have been

found guilty anyway is not reversible under AEDPA. At the outset,

the decision was not “contrary to” controlling federal law -- in this

case, Strickland. Through the State’s Response, the state postconviction court held, and the Fourth DCA affirmed, that Calder

would have been convicted anyway based on the compelling trial

evidence. That finding is a straightforward application of Strickland’s second prong, which asks whether a defendant can show a

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“reasonable probability” of a different outcome. Strickland, 466

U.S. at 694; Brewster, 913 F.3d at 1052. In finding that Calder failed

to meet this standard, the state courts did not misapply Strickland - they issued a finding precisely within the bounds of prong two.

Moreover, the state courts’ decision did not involve an “unreasonable application” of Strickland. To show an unreasonable application of federal law, a state prisoner seeking habeas relief “must

show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 562 U.S. at

103. Here, in finding Calder’s claim lacking under prong two of

Strickland, the state courts did not misapply federal law -- rather,

they found that Calder’s claim for relief was inadequate under the

correct standard. It makes no difference that, under prong one of

Strickland, the state courts adopted analysis that misconstrued Calder’s ineffective assistance of counsel claim. Because both prongs

are necessary for relief, the state courts were entitled to rest their

decision on either one, and weren’t required to make a finding on

prong one in the first place.

Finally, the state adjudication did not “result[] in a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(2). Although Calder contends that the Statement’s exclusion would “dramatically alter[] the balance of the evidence before the jury,” the state courts concluded that in light of

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the State’s evidence, the exclusion would not have produced a reasonable probability of a different outcome.

Applying AEDPA deference, unless the state courts’ evaluation of the evidence was “so obviously wrong that its error lies beyond any possibility for fairminded disagreement,” their conclusion should be upheld. Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th

1025, 1041–42 (11th Cir. 2022) (en banc) (quoting Shinn v. Kayer, 592

U.S. 111, 118 (2020) (per curiam)). The evidentiary picture in the

absence of the Statement is not so skewed as to meet this extraordinary showing, and any reasonable jurist could readily reach the

same conclusion offered by the two state courts.

First, even without the Statement, the State had plenty of

ammunition to confront, rebut, and undermine Calder’s credibility

on the stand, as it did. On direct examination, Calder’s story had

many gaps and inconsistencies that cast real doubt on the reliability

of his narrative. Thus, for example, his story was murky as to how,

exactly, the gun went off. He first said that he fired the weapon

himself to scare his assailants. After being pressed by his lawyer

however, he shifted course, and said he “never intentionally

pull[ed] the trigger,” but instead the weapon went off because he

instinctually “gripp[ed] on something” while being attacked. He

also did not explain why, even though he said his argument with

Lee was restrained and nonviolent, he was suddenly ambushed by

Lee, Green, and Johnson -- his own childhood friend who had arrived only moments before. If Calder’s prior behavior had been

truly innocuous, it is unclear why this sudden escalation occurred.

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Moreover, on cross-examination, the State questioned the

deficiencies in Calder’s story outside its use of the Statement. The

State pointed out that Calder changed his story as to who was beating him when the gun fired, where Lee was in relation to Calder

when she was shot, and confirmed that Calder again “fire[d] to

scare [his attackers] off,” in flat contradiction to his earlier story that

the gun went off only accidentally, not by volition. The State also

suggested that given the location of Calder’s body in relation to the

door and Lee, Lee could not have been struck the way she was -with a bullet lodged in the side of her head. Finally, the State crossexamined Calder as to why Johnson, Calder’s “best friend of 30

years,” participated in the attack. After all, the day following the

alleged skirmish, Calder contacted and visited Johnson without incident, despite his supposed role in ambushing Calder. Although

the State relied on the Statement to impeach Calder as to the details

of his story, then, there were plenty of other threads that the State

pulled at -- and could expand on in greater detail without the Statement -- that would unravel Calder’s narrative before the jury.

Second, the State’s case in chief was compelling. The State

presented testimony from two witnesses, Green and Johnson, who

testified against Calder and contradicted his story. Between them,

the State’s witnesses supplied a full account of who was where, and

when: Green was inside the apartment with Lee when the fatal

shot was fired, and Johnson was outside the apartment with Calder. Both testified as to substantially the same events leading up to

the shooting: that neither ambushed Calder, but instead that Lee

was bracing the front door to prevent Calder, who was agitated

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following a fight with Lee, from entering the apartment. Both explained that Calder had been forced out of the apartment because

he and Lee had been involved in a heated argument, which turned

physical. This is why Johnson was called in the first place -- Lee

had warned him that Calder was turning violent, and needed him

to help cool Calder down.

The two testimonies also aligned on much of the specifics.

Johnson testified that after he arrived, he followed Calder and Lee

into one of the apartment’s bedrooms, where Calder physically

fought Lee. After Johnson pulled Calder off of Lee, Calder left with

Johnson and then re-entered the apartment. Green confirmed that

Calder again pushed Lee several times as she was packing his belongings, prompting her to throw liquid into his face and push him

out of the apartment. Lee tried to close the door, but Calder kept

his foot in the jam. Johnson was outside with Calder, while Lee

held the door against him, but slipped on the liquid, falling to the

ground and keeping her back to the door. Crucially, both Johnson

and Green confirmed that when Calder couldn’t force the door

open again, he pulled out the gun and reached around the front

door with his right arm, firing the gun at Lee. Green also remembered that at first the gun didn’t go off, so Calder had to try again

after removing the safety. After the shot, Calder fled and Johnson

called Lee’s phone, which Green answered. Johnson then told

Green to call the police.

The testimony supplied by Green and Johnson was separately corroborated by the physical evidence at the scene. The

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State called Dr. Khalil Wardak, an associate medical examiner and

forensic pathologist, as an expert witness to testify as to the cause

and manner of Lee’s death. He explained that at the scene, Lee’s

body was laying up against the door, blocking entry. She was oriented with her back to the door, and Dr. Wardak observed a

wound “on the right side of the frontal part of the head.” After an

autopsy where he recovered the bullet and x-rayed Lee’s skull, Dr.

Wardak determined that the trajectory of the bullet indicated that

Lee was “standing back against the door, pushing the door to close”

when she was shot. He surmised that her wound was caused by a

hand reaching around the door, and firing a shot inward. This

again reinforced the State’s narrative, that Lee was trying to close

the door and keep Calder out when she was shot.

The evidence supplied by the State thereby confirmed,

through eyewitness testimony and expert assessment, the bulk of

the State’s theory against Calder: that Calder and Lee had fought,

that Calder was forced out of the apartment by Lee, and that when

the shot was fired, Calder was attempting to force his way back

into the apartment, and he fired around the front door to hit Lee.

This evidence did not rely on the Statement, but independently

confirmed Calder’s guilt. On this record, we cannot say the state

courts were unreasonable in finding that, whether or not the

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Statement was excluded, Calder would have been adjudged guilty

of first-degree murder. 7

Congress enacted AEDPA for the purpose of “reduc[ing] delays in the execution of state and federal criminal sentences,” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (citing Williams, 529 U.S. at

386), and to “further the principles of comity, finality, and federalism,” id. (quoting Williams, 529 U.S. at 436). In limiting habeas review when a state court has adjudicated a claim on the merits,

AEDPA “give[s] the State a first opportunity to consider most matters and to insist that federal courts properly respect state-court determinations.” Cullen v. Pinholster, 563 U.S. 170, 206 (2011) (Breyer,

J., concurring in part and dissenting in part).

These principles instruct us that the state adjudication

should be respected in this case. A reasonable jurist could readily

conclude, as the state postconviction court and Fourth DCA did,

that the evidence was sufficient to establish Calder’s guilt even

without the Statement, and thus that Calder’s asserted error was

not prejudicial. The state courts’ decision is not subject to reversal

7 It makes no difference that the jury considered lesser included offenses, in-

cluding second-degree murder and manslaughter. The same evidence that

supported Calder’s guilt specifically confirmed that he acted with malice, and

not accidentally or out of self-defense. Indeed, Calder did not contest that Lee

had been shot; his sole theory at the second trial was that he did not mean to

shoot her, and so conviction for a lesser offense was proper. It is precisely this

theory that the State disproved with its case in chief. Thus, for our purposes,

it is sufficient to say that the state courts were not unreasonable in determining

that Calder would have been convicted of the same offense for which he was

charged -- murder in the first degree -- even if his Statement was excluded.

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under AEDPA, and Ground Two of Calder’s petition must be denied.

AFFIRMED.

A-3

Case 0:23-cv-60762-RKA Document 15 Entered on FLSD Docket 12/18/2023 Page 1 of 33

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-60762-ALTMAN

WINSTON CALDER,

Petitioner,

v.

RICKY D. DIXON, SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________/

ORDER

Our Petitioner, Winston Calder, has filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2254, challenging his state-court conviction and life sentence for the first-degree murder of his exgirlfriend. See Petition [ECF No. 1] at 1–2. The State says that Calder’s “claims are all either

affirmatively contradicted by the existing record or patently frivolous[.]” Response in Opposition to

Petition for Writ of Habeas Corpus (“Response”) [ECF No. 10] at 61. We agree and now DENY the

Petition.

THE FACTS

On February 6, 2008, a grand jury in Broward County, Florida, charged Calder (by indictment)

with one crime: the first-degree murder (with a firearm) of his ex-girlfriend, Georgia Lee. See

Indictment [ECF No. 11-1] at 20. The State alleged that “during an argument in which his girlfriend,

Georgia Lee, tried to remove him from their apartment, Calder shot and killed Lee.” Calder v. State,

133 So. 3d 1025, 1027 (Fla. 4th DCA 2014). During Calder’s first trial, the State introduced a statement

Calder made to law enforcement on January 21, 2008 (the “January 21, 2008 Statement”), in which

“Calder confessed to firing the fatal shot that killed Lee.” Id. at 1029. Although Calder’s first trial

ended with a guilty verdict, the Fourth DCA reversed and remanded for a new trial after concluding

Case 0:23-cv-60762-RKA Document 15 Entered on FLSD Docket 12/18/2023 Page 2 of 33

that the January 21, 2008 Statement should have been suppressed because it was obtained in violation

of Calder’s rights under Miranda v. Arizona, 384 U.S. 436 (1966). See id. at 1033 (“Here, the totality of

the circumstances shows that Calder’s reinitiation of the interrogation and waiver of his previously

invoked right to counsel were not voluntary, but instead, the product of improper police conduct.”).

Calder chose to testify in his own defense at his second trial. See generally Trial Tr. [ECF No.

13-1] at 1130–1307. On cross-examination, the State impeached Calder with the January 21, 2008

Statement. See, e.g., id. at 1253–54 (“[Calder]: No. The door was already open, I was not forcing the

door. The door was already open. [The Prosecutor]: Do you recall giving a different answer than that,

Mr. Calder, back on January 21, 2008? . . . Q: Would you agree with me, Mr. Calder, the question [on

January 21, 2008] was, ‘You were trying to force it open?’ And your answer was, ‘Yeah.’ ‘And then

they were kicking at you?’”). For the second time, a jury convicted Calder of first-degree murder. See

Verdict [ECF No. 11-2] at 100. The trial court sentenced Calder to life in prison on February 17, 2015.

See Judgment and Sentencing Orders [ECF No. 11-2] at 105–110.

Ten days later, Calder moved for a new trial under FLA. R. CRIM. P. 3.600. See Motion for New

Trial [ECF No. 11-2] at 112. In that motion, Calder’s lawyer argued that the trial court had “erred in

allowing the state to argue in closing [that] the Defendant’s [January 21, 2008] statement [was]

substantive evidence when it was not admitted into evidence.” Ibid. The trial court denied Calder’s

motion after a brief hearing, concluding that, “even though the State couldn’t get the statement in

their case in chief, it certainly was fair game for cross-examination. And that’s exactly what the State

did in this case.” Motion for New Trial Hr’g Tr. [ECF No. 13-2] at 8.

Calder appealed his conviction and sentence to the Fourth DCA. See Direct Appeal Notice of

Appeal [ECF No. 11-2] at 117. In that appeal, Calder’s lawyer advanced only one argument: that the

trial court had “erred reversibly in admitting excessively gruesome photographs depicting the deceased

after her body had been moved from against the front door and placed face up on the floor.” Direct

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Appeal Initial Brief [ECF No. 11-2] at 195. The Fourth DCA summarily affirmed Calder’s conviction

in an unwritten opinion on March 16, 2017. See Calder v. State, 224 So. 3d 232, 232 (Fla. 4th DCA

2017). Calder, now proceeding pro se, filed a motion for rehearing, see Motion for Rehearing [ECF No.

11-2] at 218–20, which the Fourth DCA denied on April 24, 2017, see Order Denying Motion for

Rehearing [ECF No. 11-2] at 225.

On April 17, 2017, 1 Calder filed a petition for a writ of habeas corpus in the Fourth DCA,

alleging that his appellate counsel had been ineffective. See State Habeas Petition [ECF No. 11-2] at

227–42; see also FLA. R. APP. P. 9.141(d)(3) (“Petitions alleging ineffective assistance of appellate

counsel must be filed in the court to which the appeal was taken.”). Calder argued that his appellate

lawyer had erred by failing to “raise on direct appeal the issues of the trial court erring in allowing the

State to argue in closing the Petitioner’s statement as substantive evidence when it was not admitted

into evidence, and when no hearing was held on the issue of voluntariness before allowing prosecutor

to use statement for impeachment.” State Habeas Petition [ECF No. 11-2] at 230 (errors in original).

On July 10, 2017, the Fourth DCA summarily denied Calder’s state habeas petition in a one-sentence

order. See Order Denying State Habeas Petition [ECF No. 11-3] at 208 (“ORDERED that the May 1,

2017 petition for ineffective assistance of counsel is denied.”).

Five days before that ruling came down (on June 5, 2017), Calder filed in the state trial court

a motion for postconviction relief under FLA. R. CRIM. P. 3.850. See Postconviction Motion [ECF No.

11-3] at 9–54. Calder amended that Postconviction Motion on October 16, 2017. See Amended

Postconviction Motion [ECF No. 11-3] at 220–65. The Amended Postconviction Motion advanced

eight grounds for relief: (1) that “defense counsel was ineffective for failing to hire a ballistics and

“Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is

delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.

2009). “Absent evidence to the contrary, [courts] assume that a prisoner delivered a filing to prison

authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

1

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blood spatter expert,” id. at 223; (2) that counsel was ineffective “for failing to request a hearing on

the issue of voluntariness of the Defendant’s January 21, 2008 statement, prior to the State Attorney

using the statement for impeachment purposes,” id. at 231; (3) that counsel was ineffective “for failing

to discover that the January 21, 2008 statement had been tampered with by agents of the State of

Florida,” id. at 235; (4) that counsel was ineffective “for failing to impeach State witness Michael Green

with his prior inconsistent statements that he gave in his deposition and in his prior trial testimony,”

id. at 240; (5) that counsel was ineffective for failing to “object to the prosecutorial misconduct during

closing arguments,” id. at 250; (6) that defense counsel “was ineffective for [failing] to object and

notify the trial court that a juror was sleeping throughout critical trial testimony,” id. at 257; (7) that

counsel was ineffective for failing to argue “in closing arguments that [Patrick Johnson] testified that

he witnessed the defendant go leave the bag at the truck and seen [sic] the defendant return right back

to the house,” id. at 259; and (8) that counsel was ineffective for failing to “introduce evidence of [the

victim’s] prior arrest record of domestic violence,” id. at 262. The State filed a voluminous Response

to the Amended Postconviction Motion—it included over 1,800 pages of argument and exhibits—

contending that all eight of Calder’s claims were meritless. See State’s Postconviction Response [ECF

No. 12-1] at 23.

On March 29, 2022, the state postconviction court denied the Amended Postconviction

Motion “[f]or the reasons articulated in the State’s response.” Order Denying Amended

Postconviction Motion [ECF No. 12-7] at 56. Calder appealed this denial to the Fourth DCA, see

Postconviction Notice of Appeal [ECF No. 12-7] at 58, contending that the state postconviction court

had erred in denying all eight grounds for relief, see Postconviction Initial Brief [ECF No. 12-7] at 63–

87. But the Fourth DCA summarily affirmed, see Calder v. State, 350 So. 3d 347, 347 (Fla. 4th DCA

2022), and its mandate issued on December 23, 2022, see Postconviction Mandate [ECF No. 12-7] at

97. The Fourth DCA also denied Calder’s motion for rehearing and for a written opinion, see Motion

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for Rehearing [ECF No. 12-7] at 91–92; Order Denying Motion for Rehearing [ECF No. 12-7] at 95.

Calder filed this Petition on April 17, 2023. See Petition at 24.

THE LAW

I.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

AEDPA instructs district courts to deny any claim that was “adjudicated on the merits” in a

state-court proceeding unless that adjudication “resulted in a decision that was contrary to, or involved

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

of the United States, or resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S.

86, 97–98 (2011) (summarizing 28 U.S.C. § 2254(d)–(e)). To have “adjudicated [the claim] on the

merits,” the state court need not have issued any kind of formal opinion or even outlined its reasoning.

Id. at 99 (“When a federal claim has been presented to a state court and the state court has denied

relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to the contrary.”). Rather, when a state court doesn’t

articulate its reasons for the denial, the federal court must “‘look through’ the unexplained decision to

the last related state-court decision that does provide a rationale” and “then presume that the

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

“Clearly established Federal law” means “the holdings, as opposed to the dicta, of [the United States

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 412 (2000). To be “contrary to clearly established federal law, the state court must either (1)

apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a

different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v.

Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up).

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For “a state court’s application of [Supreme Court] precedent” to be “‘unreasonable, the state

court’s decision must have been more than incorrect or erroneous. The state court’s application must

have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (cleaned up). “[I]t

is not an unreasonable application of clearly established Federal law for a state court to decline to

apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Richter, 562

U.S. at 101. “And an unreasonable application of those holdings must be objectively unreasonable,

not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is

required to show that the state court’s ruling on the claim being presented in federal court was so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Woods v. Donald, 575 U.S. 312, 316 (2015)

(cleaned up).

Section 2254(d) similarly prohibits federal judges from reevaluating a state court’s factual

findings unless those findings were “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). To establish that a state

court’s factual findings were unreasonable, “the petitioner must rebut ‘the presumption of correctness

[of a state court’s factual findings] by clear and convincing evidence.’” Ward, 592 F.3d at 1155–56

(quoting 28 U.S.C. § 2254(e)(1)). “[E]ven if a petitioner successfully carries his burden under §

2254(e)(1)—showing by clear and convincing evidence that a particular state-court factual

determination was wrong—he does not necessarily meet his burden under § 2254(d)(2): Even if the

state court made a clearly erroneous factual determination, that doesn’t necessarily mean the state

court’s ‘decision’ was ‘based on’ an ‘unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th

Cir. 2022) (en banc) (quoting 28 U.S.C. § 2254(d)(2)). Indeed, habeas relief is not warranted “even if

some of the state court’s individual factual findings were erroneous—so long as the decision, taken as

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a whole, doesn’t constitute an unreasonable determination of the facts and isn’t based on any such

determination.” Ibid. (cleaned up).

“AEDPA’s standard is intentionally difficult to meet.” Woods, 575 U.S. at 315 (cleaned up).

When reviewing state criminal convictions on collateral review, “federal judges are required to afford

state courts due respect by overturning their decisions only when there could be no reasonable dispute

that they were wrong. Federal habeas review thus exists as a guard against extreme malfunctions in

the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at

316 (cleaned up).

Even if a petitioner meets AEDPA’s “difficult” standard, he must still show that any

constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). The Brecht harmless-error standard requires habeas petitioners

to prove that they suffered “actual prejudice.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307

(11th Cir. 2012). As the Supreme Court recently explained, while the passage of AEDPA “announced

certain new conditions to [habeas] relief,” it didn’t eliminate Brecht’s actual-prejudice requirement.

Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022). In other words, a habeas petitioner must satisfy Brecht,

even if AEDPA applies. See id. at 1526 (“[O]ur equitable precedents remain applicable ‘whether or

not’ AEDPA applies.” (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal court must

deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief,

a court must find that the petition has cleared both tests.” Id. at 1524 (emphasis in original); see also

Mansfield, 679 F.3d at 1307 (“[A] habeas petition cannot be successful unless it satisfies both [AEDPA]

and Brecht.”).

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II.

AEDPA’s Procedural Requirements

“[A] person in custody pursuant to the judgment of a State court” has one year to file a habeas

petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period “runs from the latest of” the

following dates:

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1)(A)–(D). But this limitations defense is waivable. See Paez v. Sec’y, Fla. Dep’t of

Corr., 947 F.3d 649, 655 (11th Cir. 2020) (explaining that the State may express its intent to “waive

the limitations bar”).

Beyond meeting this one-year window, though, federal habeas petitioners must also exhaust

their claims by “properly present[ing] [them] to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848

(1999) (emphasis in original). Specifically, federal habeas petitioners must “fairly present every issue

raised in [their] federal petition to the state’s highest court, either on direct appeal or on collateral

review.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (cleaned up). “If a petitioner fail[ed] to

‘properly’ present his claim to the state court—by exhausting his claim[ ] and complying with the

applicable state procedure—prior to bringing his federal habeas claim, then [§ 2254] typically bars

[courts] from reviewing the claim.” Ibid. In other words, where a petitioner has not “properly presented

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his claims to the state courts,” the petitioner will have “procedurally defaulted his claims” in federal

court. O’Sullivan, 526 U.S. at 848.

There are, to be sure, two exceptions to the general rule that a federal court may not consider

a procedurally defaulted claim on the merits: “cause and prejudice” and “actual innocence.” Dretke v.

Haley, 541 U.S. 386, 393 (2004) (“[A] federal court will not entertain a procedurally defaulted

constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse

the default. We have recognized a narrow exception to the general rule when the habeas applicant can

demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually

innocent of the underlying offense.”). A habeas petitioner can establish “cause and prejudice” if (1)

“some objective factor external to the defense impeded the effort to raise the claim properly in the

state court,” and (2) “there is at least a reasonable probability that the result of the proceeding would

have been different.” Harris v. Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688 (11th Cir. 2017). “Actual

innocence,” on the other hand, “applies to a severely confined category: cases in which new evidence

shows ‘it is more likely than not that no reasonable juror would have convicted the petitioner.’”

McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). The

petitioner bears the burden of establishing that one of these exceptions to the procedural-default rule

applies. See Gordon v. Nagle, 2 F.3d 385, 388 (11th Cir. 1993) (“A defendant has the burden of

establishing cause and prejudice.”); Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (“The

petitioner must support the actual innocence claim with new reliable evidence[.]” (cleaned up)).

All that said, “[s]tates can waive procedural bar defenses in federal habeas proceedings,

including exhaustion.” Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016) (cleaned

up)). But “[a] State shall not be deemed to have waived the exhaustion requirement . . . unless the

State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis added); see

also McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005) (same).

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III.

Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel

for his defen[s]e.” U.S. CONST. amend. VI. “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.

668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas litigant must

demonstrate “that (1) his counsel’s performance was deficient and ‘fell below an objective standard of

reasonableness,’ and (2) the deficient performance prejudiced his defense.” Raleigh v. Sec’y, Fla. Dep’t of

Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). This same standard

applies to alleged errors made by both trial counsel and appellate counsel. See Farina v. Sec’y, Fla. Dep’t

of Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (“A claim of ineffective assistance of appellate counsel

is evaluated under the same standard as for trial counsel.”).

To establish the first prong (deficiency), “a petitioner must [show] that no competent counsel

would have taken the action that his counsel did take[.]” Chandler v. United States, 218 F.3d 1305, 1315

(11th Cir. 2000) (en banc) (emphasis added). So, if “some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial[,]” counsel could not have performed

deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quoting White v. Singletary,

972 F.2d 1218, 1220 (11th Cir. 1992)).

As for the second prong (prejudice), “a defendant is prejudiced by his counsel’s deficient

performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting

Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. To succeed on this prong, a defendant must

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show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

ANALYSIS

In this Petition, Calder asserts the same eight ineffective-assistance-of-counsel claims he

originally advanced in his Amended Postconviction Motion in state court. To recap, those eight

grounds for relief allege that his trial lawyer was ineffective for: (1) “failing to hire a ballistics and blood

splatter expert,” Petition at 4; (2) “failing to request a hearing on the issue of voluntariness of the

Defendant’s January 21, 2008 statement,” id. at 7; (3) “failing to [d]iscover that the January 21, 2008

statement had been tampered with by agents of the State of Florida,” id. at 8; (4) “failing to impeach

State witness Michael Green with his prior inconsistent statements,” id. at 11; (5) “failing to

contemporaneously object to prosecutorial misconduct during closing arguments,” id. at 15; (6)

“fail[ing] to object and notify the trial court that a juror was sleeping throughout critical trial

testimony,” id. at 17; (7) “failing to argue in closing argument that State witness Patrick Johnson

testified that he witnessed the Defendant go leave the bag at the truck and seen [sic] the Defendant

return right back to the house,” id. at 18; and (8) “failing to introduce evidence of Georgia Lee’s prior

arrest record of [d]omestic violence,” id. at 21.

The State concedes both that the Petition is timely, see Response at 18 (“[I]t appears that

Petitioner’s petition is timely filed.”), and that Calder properly exhausted all eight of his claims, see id.

at 20 (“Exhaustion and procedural default do not seem to be applicable to any of Petitioner’s claims

of ineffective assistance of trial counsel.”). We’ll therefore review all eight “claim[s] that [were]

adjudicated on the merits in State court proceedings” to determine whether the state court’s decisions

“involved an unreasonable application of clearly established federal law” or “[were] based on an

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

proceeding.” 28 U.S.C. § 2254(d)(1)–(2). In assessing the “reasonableness” of these decisions, we look

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to the “highest state court” that reached the merits of Calder’s claims. Newland v. Hall, 527 F.3d 1162,

1199 (11th Cir. 2008). But neither the Fourth DCA nor the state postconviction court “explain[ed] its

decision on the merits in a reasoned opinion.” Wilson, 138 S. Ct. at 1192. The state postconviction

court denied the Amended Postconviction Motion “[f]or the reasons articulated in the State’s

response,” Order Denying Amended Postconviction Motion [ECF No. 12-7] at 56, and the Fourth

DCA summarily affirmed in an unwritten opinion, see Calder, 350 So. 3d at 347. We’ll thus presume

that these courts applied the reasoning of the State’s Postconviction Response. Wilson, 138 S. Ct. at

1192 (“[T]he federal court should ‘look through’ the unexplained decision to the last related statecourt decision that does provide a relevant rationale.”); see also, e.g., Pierre v. Dixon, 2022 WL 3549781,

at *7 (S.D. Fla. Aug. 18, 2022) (Altman, J.) (“And, because the state postconviction court simply

‘adopted the reasoning as set forth in the response of the State,’ we presume that the Fourth DCA

applied the reasoning in the State’s Postconviction Response when it denied Pierre’s trial-counsel

claims.” (cleaned up)).

I.

Ground One

In Ground One, Calder contends that his defense lawyer should have hired “a ballistics and

blood splatter expert to testify” at his trial. Petition at 4. As Calder explains, his theory of defense was

that he shot the victim in self-defense during a struggle with the victim and two other people who were

inside the apartment at the time. See ibid. (“At trial, the Defendant testified that . . . there was a struggle,

and that while Michael Green was attacking him from the front, Patrick Johnson was attacking him

from behind, and would not allow him to leave.”). The State, Calder claims, attacked this theory by

arguing that the position of the victim’s body was inconsistent with Calder’s self-defense claim. See id.

at 5 (“The prosecutor asked: ‘Okay. So Mr. Calder, how is it, [if] she’s facing the door pushing it, and

she’s facing you, how does the bullet go into the [right] side of her head?’” (quoting Trial Tr. [ECF

No. 13-1] at 1207)). Calder now insists that, had his lawyer called ballistics and blood-spatter experts

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at trial, they would have testified that “the decedent’s body had been moved by the police,” which

would’ve prevented the State from arguing that the position of the victim’s body was inconsistent with

Calder’s theory. Id. at 4.

The State offers five responses to this claim. First, Calder (it notes) told the trial court that “his

attorneys had called all of the witnesses that he wanted to have called.” Response at 30. Second, Calder

is (the State says) simply speculating that an expert “would have actually testified to the theories

espoused by Petitioner.” Id. at 31. Third, the evidence at trial (the State maintains) refutes Calder’s view

that “the decedent’s body had been moved by the police[.]” Id. at 33. Fourth, the State continues,

counsel’s decision not to call these experts was a reasonable trial strategy because it allowed counsel to

“exploit[ ] the conflict in the eyewitness testimony . . . . [and] to argue to the jury at closing that the

State failed to prove beyond a reasonable doubt that Petitioner did not act in self-defense.” Id. at 33–

34. Fifth, the State contends that Calder wasn’t prejudiced by counsel’s failure to call these experts

because the prosecution presented “overwhelming and uncontroverted evidence” of his guilt. Id. at

34. Because we agree with the State’s third and fourth arguments, we don’t reach the other three.

A lawyer has “no absolute duty to investigate particular facts or a certain line of defense,

although a complete failure to investigate may constitute deficient performance of counsel in certain

circumstances.” Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001). The failure to call an expert

witness thus doesn’t constitute ineffective assistance unless the decision “was so patently unreasonable

that no competent attorney would have chosen it.” Dingle v. Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099

(11th Cir. 2007) (cleaned up). To overcome this presumption of reasonableness, Calder must show

that any “competent attorney” would have called these experts at trial. See Devier v. Zant, 3 F.3d 1445,

1453 & n.18 (11th Cir. 1993) (holding that counsel’s decision not “to procure expert psychological

testimony on the effect that [the defendant’s] traumatic upbringing had on his social and emotional

development” fell within “the wide range of professionally competent assistance”); see also Day v.

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Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (“Thus, to prevail on an ineffective assistance claim

based on counsel’s failure to call a witness, the petitioner must name the witness, demonstrate that the

witness was available to testify and would have done so, set out the content of the witness’s proposed

testimony, and show that the testimony would have been favorable to a particular defense.”). 2 But

Calder cannot meet this burden by “mere[ly] speculat[ing] that missing witnesses would have been

helpful” to his defense. Cardona v. Dixon, 2022 WL 2158715, at *13 (S.D. Fla. June 14, 2022) (Altman,

J.) (citing Streeter v. United States, 335 F. App’x 859, 864 (11th Cir. 2009)); see also, e.g., Finch v. Sec’y, Dep’t

of Corr., 643 F. App’x 848, 852 (11th Cir. 2016) (“Without some specificity as to the proposed expert’s

testimony, any assertion that an expert would testify consistently with his claims is mere speculation

and does not entitle [the petitioner] to habeas relief.”).

This legal framework easily disposes of Ground One. Although Calder suggests that “a

Ballistic and Blood Splatter expert for the defense would have helped to support the Defendant’s

defense[,]” Petition at 5, he hasn’t identified any “actual testimony by the witness or an affidavit” to

support his claim that any such expert actually exists, Lucas v. Inch, 2019 WL 5017431, at *13 (S.D. Fla.

July 23, 2019) (White, Mag. J.) (quoting United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)), aff’d,

842 F. App’x 357 (11th Cir. 2021). Indeed, he hasn’t even given us the name of a single ballistic—or

blood spatter—expert, much less has he identified one who would’ve testified in the way he proposes.

Just about every defendant can, years after his conviction, speculate about a set of experts (or other

witnesses) who, unconstrained by ethical considerations, would testify to everything the defendant

wants them to say—and rebut every piece of evidence the government had adduced at trial. But “mere

Florida courts likewise deny ineffective-assistance claims premised on counsel’s alleged failure to call

an expert witness unless the defendant “asserts both the substance of the proposed testimony and

that the testimony would have been helpful to [his or her] defense at trial.” Cooper v. State, 336 So. 3d

415, 417 (Fla. 2d DCA 2022) (citing State v. Lucas, 183 So. 3d 1027, 1034 (Fla. 2016)).

2

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speculation that missing witnesses would have been helpful is insufficient to meet the petitioner’s

burden of proof.” Streeter, 335 F. App’x at 864.

That’s enough to deny Ground One on the merits. We add here only that there’s a good reason

for Calder’s inability to identify an expert who would say that the police moved the victim’s body: The

unrebutted trial testimony, after all, was that law enforcement made sure not to move the body. Detective

Torok, for instance, testified that “[t]he front door [of the apartment] could not be opened” because

the victim’s body was lying against it, so he and the other officers could only enter and exit the victim’s

apartment by climbing a ladder and entering through “a window of the apartment where the incident

occurred.” Trial Tr. [ECF No. 13-1] at 984–85. This testimony plainly refutes Calder’s belief that law

enforcement moved the victim’s body after she was shot. See Tejada v. Dugger, 941 F.2d 1551, 1559

(11th Cir. 1991) (“A petitioner is not entitled [to relief], however, when his claims are merely

conclusory allegations unsupported by specifics or contentions that in the face of the record are wholly

incredible.”).

We therefore DENY Ground One.

II.

Ground Two

Calder alleges in Ground Two that his lawyer “was ineffective for failing to request a hearing

on the issue of voluntariness of the Defendant’s January 21, 2008 statement, prior to the State

Attorney using the Statement for impeachment purposes[.]” Petition at 7. He also says that, during

closing arguments, the prosecutor improperly argued “that the Defendant’s January 21, 2008

statements were substantive evidence of guilt, and showed premeditation.” Id. at 8. The State cites

Harris v. New York, 401 U.S. 222 (1971), for the proposition that “a defendant may be impeached with

his own un-Mirandized statement” and urges us to deny Ground Two on that basis. Response at 38.

While we agree with the State that Ground Two fails, we think there’s a little more to it than

that. It’s undisputed that Calder gave the January 21, 2008 Statement in circumstances that violated

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his Miranda rights. See Calder, 133 So. 3d at 1031 (“When, as in this case, an officer persists in asking a

suspect whether he wishes to give his ‘side of the story’ after the suspect has unequivocally invoked

his rights, the officer is not asking harmless clarifying questions; he is violating the suspect’s rights

under Miranda.”). And the State’s right that a defendant who testifies in his own defense may be

impeached with his own prior statements—even if those statements were taken in violation of his

Miranda rights. See Oregon v. Elstad, 470 U.S. 298, 307 (1985) (“Despite the fact that patently voluntary

statements taken in violation of Miranda must be excluded from the prosecution’s case, the

presumption of coercion does not bar their use for impeachment purposes on cross-examination.”).

But Calder isn’t arguing that the prosecutor was wrong to cross him with a statement that violated his

Miranda rights. He’s saying that the circumstances of his police interview rendered his January 21, 2008

Statement involuntary. See Petition at 7 (“At no time . . . did counsel request a hearing, outside the

presence of the jury, on the issue of voluntariness of the Defendant’s January 21, 2008 statements.”).

And an involuntary statement—unlike a statement taken in violation of a defendant’s Miranda rights—

cannot be used to impeach the defendant’s testimony in a criminal case. See United States v. Thompson,

422 F.3d 1285, 1295 (11th Cir. 2005) (“The Fifth Amendment prohibits the use of an involuntary

confession against a defendant in a criminal trial.”); Willacy v. State, 640 So. 2d 1079, 1083 (Fla. 1994)

(“Before the defendant’s statement can be admitted for impeachment purposes, the State must, by a

preponderance of the evidence, show that the statement was voluntarily made.”). Unfortunately,

neither the Response nor the State’s Postconviction Response (which is the presumptive reasoning of

the state court) contemplated this distinction. See Response at 34–40; State’s Postconviction Response

[ECF No. 12-1] at 9–10. We therefore must take the unusual step of reviewing this part of Ground

Two de novo. See Mason, 605 F.3d at 1119 (“When, however, a claim is properly presented to the state

court, but the state court does not adjudicate it on the merits, we review de novo.”).

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Under Florida law, a “state has the burden to show by a preponderance of the evidence that a

confession was voluntary.” Roman v. State, 475 So. 2d 1228, 1232 (Fla. 1985). The state trial court

found that the State had met its burden of showing that the January 21, 2008 Statement was voluntary—

and that the State properly used it to impeach Calder at trial—even though it violated Miranda. Here’s

how the state court articulated its reasoning:

The Court: Well, my recollection of the caselaw is as follows: Even if it comes back

on appeal that [the statement] should not have been admitted because of Miranda

violations, the statement can still be used for impeachment purposes. . . . And Mr.

Calder never alleged that he was physically beaten or something like that. And so,

therefore, the statement was admissible for impeachment purposes and that’s exactly

what the State did.

Motion for New Trial Hr’g Tr. [ECF No. 13-2] at 7–8; see also Nelson v. State, 688 So. 2d 971, 973 (Fla.

4th DCA 1997) (“The trial court’s finding that the confession was freely and voluntarily given is

clothed with a presumption of correctness.”). As an initial matter, then, counsel couldn’t have been

ineffective for failing to argue that the January 21, 2008 Statement was involuntary because the state

court came to the opposite conclusion. See United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013)

(“And it goes without saying that counsel is not ineffective for failing to file a meritless suppression

motion.”).

And, in saying so, the state trial court correctly applied Florida and federal law. A statement

isn’t involuntary unless “the defendant was coerced by the government into making the statement[.]”

United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir. 1992) (citing Colorado v. Connelly, 479

U.S. 157, 163 n.1 (1986)), abrogated on other grounds by Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1994).

Coercion typically requires proof that the police “subject[ed] the accused to an exhaustingly long

interrogation, [applied] physical force or the threat to do so, or [made] a promise that induces a

confession.” Ibid.; accord Chavez v. State, 832 So. 2d 730, 749 (Fla. 2002) (“To establish that a statement

is involuntary, there must be a finding of coercive police conduct.”). Calder never tells us why he thinks

the January 21, 2008 Statement was involuntary, see Petition at 7–8—which is reason enough to deny

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his claim, see United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (“[F]ailure to raise an issue in

an initial brief . . . should be treated as a forfeiture of the issue, and therefore the issue may be raised

by the court sua sponte [only] in extraordinary circumstances.”); Sappupo v. Allstate Floridian Ins. Co., 739

F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he either

makes only passing references to it or raises it in a perfunctory manner without supporting arguments

and authority.”); Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he

failure to make arguments and cite authorities in support of an issue waives it.”); In re Egidi, 571 F.3d

1156, 1163 (11th Cir. 2009) (“Arguments not properly presented . . . are deemed waived.”).

Calder may just believe that a statement is involuntary if it violates a defendant’s Miranda rights.

But that’s plainly not the law. In Willacy v. State, 640 So. 2d 1079 (Fla. 1994), for instance, the defendant

made an inculpatory statement after a police detective improperly “initiated a conversation with

Willacy” after Willacy had invoked his Miranda rights. Id. at 1083. The Florida Supreme Court held

that this Miranda violation—without evidence of additional coercive conduct—didn’t cast doubt on

whether “Willacy’s statement was voluntarily made.” Ibid. And, the court went on, “a substantive

violation of Miranda does not preclude a defendant’s voluntary statement from being used for

impeachment purposes.” Ibid. (citing Oregon v. Haas, 420 U.S. 714, 722 (1975)). That’s precisely what

we have here: a defendant who continued to be questioned after he’d invoked his Miranda rights—but

who has pointed to no evidence of any other coercive tactics that might have rendered his statement

involuntary. See Calder, 133 So. 3d at 1033 (noting only that “the officer’s improper comments, after

Calder invoked his right to counsel, were designed to induce him to reinitiate the communication

without a lawyer,” but never suggesting that Calder was subjected to any other coercive techniques).

Calder’s claim that his statement was involuntary—and that the state court thus violated his

constitutional rights when it allowed the State to impeach him with it at trial—therefore fails on the

merits.

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Calder’s related argument—that, during closing arguments, the prosecutor turned the January

21, 2008 Statement into “substantive evidence of [Calder’s] guilt”—is frivolous. Petition at 8. 3

“[A]nything [a] lawyer[ ] say[s] [during closing arguments] is not evidence and is not binding on [the

jury],” so the prosecutor’s reference to the statement during closings didn’t transform that statement

into substantive evidence of anything. United States v. Maradiaga, 987 F.3d 1315, 1326 (11th Cir. 2021)

(cleaned up); see also Jenkins v. State, 189 So. 3d 866, 870 (Fla. 4th DCA 2015) (“[T]he statements of

counsel during opening statements and closing arguments are not evidence[.]”). In any event, the

prosecutor properly used the January 21, 2008 Statement to cast doubt on Calder’s testimony that he

had acted in self-defense. See, e.g., Trial Tr. [ECF No. 13-1] at 1341 (“[O]n cross-examination this

morning you heard back on January 21, 2008, that the defendant said, they were blocking me from

getting inside. Not that he was inside trying to get out. Over and over and over again I had to impeach

him this morning that he was trying to get in and they were trying to keep him out.”). As the Eleventh

Circuit has explained many times: “Juries may appropriately consider a defendant’s credibility, so a

prosecutor’s otherwise proper comment on a defendant’s credibility cannot inject harm into the jury’s

deliberation.” Hammonds v. Comm’r, Ala. Dep’t of Corr., 712 F. App’x 841, 857 (11th Cir. 2017) (citing

Portuondo v. Agard, 529 U.S. 61, 67–68 (2000)).

We therefore DENY Ground Two.

III.

Ground Three

Calder argues in Ground Three that counsel was ineffective for “failing to [d]iscover that the

January 21, 2008 statement had been tampered with by agents of the State of Florida[.]” Petition at 8.

The state court considered—and rejected—this part of Ground Two. See State’s Postconviction

Response [ECF No. 12-1] at 10 (“[T]here was no error in allowing the State to comment on [the

January 21, 2008 Statement], and explain that it was impeachment evidence in her closing argument.”).

We therefore review this part of the claim under AEDPA’s rigorous standard of review. See Pope v.

Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1263 (11th Cir. 2014) (“[I]f a state court has adjudicated the

claim on the merits, then a petitioner must satisfy § 2254(d)(1)[.]”).

3

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As “evidence” of this alleged tampering, Calder points to the transcript the Lauderhill Police

Department prepared, which differs slightly from the transcript the court reporter prepared after

Calder’s second trial had ended. See id. at 9 (“After the defendant’s second trial conviction, on appeal,

the court reporter transcribed the January 21, 2008 statement for purposes of appellate review. Upon

review of the two transcripts, the Defendant discovered that the police transcript of Defendant’s

January 21, 2008 statement had been tampered with.”). Calder also notes that certain portions of the

Lauderhill Transcript were “blanked out.” Ibid. This claim is silly.

At his second trial, the prosecutor impeached Calder with the transcript the Lauderhill Police

Department had prepared. See, e.g., Trial Tr. [ECF No. 13-1] at 1221 (referring to “Page 5, Lines 202,

203, 204” of the Lauderhill Tr. [ECF No. 11-2] at 2–81). The State also introduced this transcript into

evidence at Calder’s first trial as a demonstrative exhibit to help the jury follow along as the January 21,

2008 Statement was played in open court. See First Trial Tr. [ECF No. 11-1] at 248 (“The Court:

Members of the Jury, you’re going to get a transcript . . . . That transcript is to aid you in understanding

the actual video tape or the video which is exhibit [46] in evidence.”). After the second trial, while

Calder’s appeal was pending, a court reporter prepared a separate transcript of the January 21, 2008

Statement. See Court Reporter Tr. [ECF No. 11-2] at 129–82; see also Motion to Supplement the Record

[ECF No. 11-2] at 122 (“Appellant again requests that the record be supplemented with Calder’s

statement given to police on January 21, 2008.”). This second transcript starts with a warning from

the court reporter: “Whereupon, the following was transcribed from a DVD by Jamie Mackrell, Court

Reporter, to the best of my ability[.]” Court Reporter Tr. [ECF No. 11-2] at 129 (emphasis added).

For two reasons, the state postconviction court was right to reject this claim. First, the “blanks”

Calder’s complaining about in the Lauderhill Transcript were inserted by the trial court—not

clandestine agents of the State—to avoid prejudicing Calder. Before the transcript could be used as a

demonstrative exhibit during Calder’s first trial—when, remember, the State introduced the January

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21, 2008 Statement into evidence—the trial court ordered the State to redact certain irrelevant or

prejudicial portions of the statement (and the transcript). See First Trial Tr. [ECF No. 11-1] at 249–50

(“[The Court]: So, therefore, in your transcript you’re going to see certain spaces, I think it’s whited

out, it had no relevance, nothing [to] do with this case. . . . I ordered those things to be taken out.”).

Calder cannot now use these redactions—which were made for his benefit—as evidence of a nefarious

conspiracy against him.

Second, the minor differences between the two transcripts aren’t “proof” of anything. Calder is

right that the court reporter’s transcript “ends at page 54, which is only page 12 of the [Lauderhill

Transcript.]” Petition at 10. But that’s because the Court Reporter’s Transcript includes only part of

the full transcript. Remember that the State played the complete January 21, 2008 Statement at Calder’s

first trial. Unfortunately for Calder, the transcript from that trial shows that Calder said everything the

Lauderhill Transcript records him as saying. Compare First Trial Tr. [ECF No. 12-7] at 125–217, with

Lauderhill Transcript [ECF No. 11-2] at 2–81; cf. Forbes v. Sec’y, Dep’t of Corr., 2022 WL 17082912, at

*12 (S.D. Fla. Nov. 18, 2022) (Altman, J.) (“Looking at other parts of the trial record, in fact, we can

see clearly that the jury heard the full recording—and that they were shown the full transcript of that

recording as a demonstrative aid—even if the court reporter . . . was only able to understand (and

transcribe) some portions of that recording.”). 4

Even if there were an error in the transcription, that error would have been harmless. Calder insists

that the prosecutor used the tampered-with statement “during closing arguments as substantive

evidence of the Defendant’s guilt.” Petition at 10. But, as we’ve explained, the State did no such thing.

The State properly used the transcript to impeach Calder with his prior inconsistent statements. Cf.

McGriff v. Dep’t of Corr., 338 F.3d 1231, 1236 (11th Cir. 2003) (“[S]tatements obtained in violation of a

defendant’s Fifth or Sixth Amendment right to counsel cannot be used in the prosecution’s case-inchief against the defendant, but may be used for impeachment purposes.” (citing Harris, 401 U.S. at

225–26)). In any event, the State never introduced the transcript itself into evidence, so there’s no

reason to believe that its limited use as a demonstrative aid had a “‘substantial and injurious effect or

influence’ on the jury’s verdict.” Mansfield, 679 F.3d at 1307 (quoting Brecht, 507 U.S. at 637).

4

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Since we have no reason to believe that the Lauderhill Transcript was in any way tampered

with, Ground Three is DENIED.

IV.

Ground Four

In Ground Four, Calder claims that his trial counsel was ineffective for failing to impeach a

witness, Michael Green, with two prior inconsistent statements Green had made about the shooting.

According to Calder, during a prior deposition, Mr. Green had testified that the victim “threw liquid

from a vase at Defendant’s face,” and that a third person, Patrick Johnson, was “pulling” Calder

outside. Petition at 11–12. These details are important, Calder explains, because his self-defense claim

relied on his testimony that the victim had blinded him with a liquid and that Patrick Johnson was

“attacking” him from behind. See id. at 11 (“The Defendant’s theory of defense was that while he was

attempting to go retrieve the rest of his clothes, . . . he was attacked by [the victim] whom [sic] threw

liquid from a vase at Defendant’s face, which blinded the Defendant, and that Michael Green and

Patrick Johnson started to attack him as well, causing the Defendant to fear for his life and fire a shot

from the gun.”). In the State’s view, “Michael Green’s statements at this deposition, at the first trial,

and then at retrial, were substantially similar,” so there were no “prior inconsistent statements” for

Mr. Green to be impeached with. Response at 44.

“The decision as to whether to cross-examine a witness is ‘a tactical one well within the

discretion of a defense attorney.’” Fugate, 261 F.3d at 1219 (quoting Messer v. Kemp, 760 F.2d 1080,

1090 (11th Cir. 1985)). How and when a defense attorney decides to cross-examine a witness “is one

of the most important tactical decisions a lawyer will make during a trial—so, absent egregious error,

we generally defer to the lawyer’s professional, in-court judgment.” Wilkins v. United States, 2023 WL

4509735, at *22 (S.D. Fla. July 13, 2023) (Altman, J.) (citing Harvey v. Warden, Union Corr. Inst., 629

F.3d 1228, 1239 (11th Cir. 2011)). Naturally, an attorney’s impeachment cannot be ineffective if there’s

nothing to impeach the witness with. See Lindsey v. Smith, 820 F.2d 1137, 1152 (11th Cir. 1987) (“A

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habeas petitioner who proposes alternative trial strategy that would itself have proved futile has failed

to demonstrate that the representation at trial fell below an objective standard of reasonableness.”).

Under Florida law, a prior statement is “inconsistent” when it “directly contradict[s], or [is] materially

different from, the testimony offered at trial.” Woods v. State, 92 So. 3d 890, 892 (Fla. 4th DCA 2012)

(citing Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004)).

The state postconviction court reasonably denied this claim because Mr. Green’s prior

statements about the liquid the victim threw at Calder’s face—and about the extent to which Patrick

Johnson was “pulling” Calder from behind—were mostly consistent with Green’s testimony at trial.

During his deposition, Green agreed that the victim had thrown liquid in Calder’s face. See Green

Deposition [ECF No. 12-6] at 239 (“Then I saw [the victim] pick up a liquid something. She pick up

a bottle of liquid and flinged it in his face.” (errors in original)). Green also said that he and the victim

were trying to push Calder out of the apartment while Patrick Johnson was pulling Calder from

behind—also trying to get him out of the apartment. See id. at 240–41 (“[Green:] After [the victim]

splashed something in [Calder’s] face next thing I know he was like someone pulling him, pulling

outside and she got behind the door, behind the door right there and push him out. . . . [Defense

Counsel]: Patrick pulled him out? A: Yes.”). Green then repeated most of this testimony at trial:

[Defense Counsel]: Okay. And when you saw this, that is when [the victim] picked up

something liquid?

[Green]: Yes.

[. . . .]

Q: But you do know that it hit Winston in the face; is that right?

A: Yes.

Q: Did he put his hands to his face?

A: Don’t remember.

Q: You said at this point she was pushing Winston out the door?

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A: Yes.

Q: And Patrick was pulling him out the door; is that right?

A: I don’t know because I can’t see Patrick because he was outside.

Trial Tr. [ECF No. 13-1] at 805–06.

Since Green testified—both at his deposition and at trial—that the victim threw liquid in

Calder’s face, Calder’s claim that this aspect of Green’s trial testimony was inconsistent with his

deposition is flatly refuted by the record. On the other hand, Green’s trial testimony about Patrick

Johnson did differ from what he’d said at his deposition. Green originally said that Johnson was

“pulling” Calder out, but then testified at trial that he didn’t “know” what Patrick was doing. But this

marginal change in Green’s testimony didn’t “contradict” or “materially differ[ ]” from his prior

statement, see Woods, 92 So. 3d at 892, because Green still agreed that Johnson was right outside the

apartment when he and the victim were trying to push Calder out, see Trial Tr. [ECF No. 13-1] at 762

(“[The Prosecutor]: Is Patrick Johnson anywhere near this situation when it’s happening[?] [Green]:

He was outside. Q: So he’s on the other side of the door? A: Yes.”). The point Calder was trying to

make at trial was that he was fighting off the victim, Green, and Johnson when he shot the victim in

self-defense. Green admitted at trial that he and the victim were fighting Calder just before the victim

was shot—and he admitted that Johnson was just behind Calder on the other side of the door. That

Green didn’t also say that Johnson was pulling Calder out the door doesn’t materially advance Calder’s

self-defense claim. See Smith v. Sec’y, Dep’t of Corr., 2020 WL 1451680, at *16 (M.D. Fla. Mar. 25, 2020)

(Honeywell, J.) (“Counsel’s failure to highlight minor inconsistencies on largely immaterial matters

was not ineffective assistance of counsel.”). This is especially true because (as we’ve said) Green

admitted at trial the most important part of Calder’s self-defense claim—which is that the victim had

thrown a liquid at Calder’s face just before Calder shot her.

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In any event, there’s no “reasonable probability that . . . the result of the proceeding would

have been different” if Calder’s lawyer had pressed Green on this (very) minor inconsistency. Porter,

558 U.S. at 40. Two separate witnesses (Green and Patrick Johnson) confirmed that, contra Calder’s

self-defense claim, he was the aggressor—and that he had attacked the victim before he shot her. See

Trial Tr. [ECF No. 13-1] at 758 (“[Green]: After [Calder] pushed her and hit her head to the wall [the

victim] have a cut [sic] and her glasses fell off.”); id. at 836 (“[Johnson]: Calder pass the people in the

front, go inside the house. As he reach in, [the victim] was in the living room there. So right away he

started to fight her. I don’t remember if he box her or if he tump her.”). 5 And the jury evidently

believed these witnesses. As if that weren’t enough, when Calder took the stand, the State impeached

him with his own prior statement, in which he had admitted that he’d forced his way into the apartment

because the victim wasn’t letting him in. See id. at 1249 (“[The Prosecutor]: [Y]ou were trying to force

your way back into the apartment, correct? . . . [Calder]: No, not force. I was trying to get in, not force.

Q: Would you agree with me, Mr. Calder, that you were asked the question: ‘Q: Why do you think she

started to kick you? A: Because me force to come in her, me try to force to go through the door.’ You

used the word force two times. A: I was giving the police a scenario what happened.” (errors in

original)). Given all this evidence, Calder has failed to show that his lawyer’s decision not to impeach

Green on this minor inconsistency would’ve had any effect on the jury’s verdict. See Thomas v. United

States, 596 F. App’x 808, 810 (11th Cir. 2015) (“Thomas did not demonstrate that his defense was

prejudiced by [counsel’s] failure because the government presented strong evidence of his guilt.”

(citing Strickland, 466 U.S. at 694)).

Ground Four, in sum, is DENIED.

Johnson explained that both “box” and “tump” mean hitting someone—although “boxing” is hitting

someone with an open palm. Trial Tr. [ECF No. 13-1] at 837–38.

5

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V.

Ground Five

Calder alleges in Ground Five that the prosecutor “repeatedly lied to the jury” during her

closing arguments and that defense counsel should have objected to this “prosecutorial misconduct.”

Petition at 15. Calder specifically accuses the prosecutor of telling “the jury that no liquid had been

thrown on Defendant’s face,” even though Green admitted that the victim had thrown liquid in

Calder’s face. Ibid. This, again, is frivolous.

In closing arguments, prosecutors may draw “inferences fairly suggested by the evidence or

by matters of common knowledge outside the evidence.” United States v. Johns, 734 F.2d 657, 663 (11th

Cir. 1984). But they cannot “materially misstate the facts shown by the evidence[.]” United States v.

Goldstein, 989 F.3d 1178, 1199 (11th Cir. 2021). The prosecutor didn’t misstate any facts here. On the

contrary, the prosecutor relied on Calder’s prior inconsistent statements to present a reasonable

interpretation of the evidence. Calder’s theory of defense was that “the liquid had blinded him” and

that he fired his gun out of desperation and without fully knowing where he was aiming. Petition at

15; see also Trial Tr. [ECF No. 13-1] at 1350 (“[Calder told you] that he was blinded by this liquid. . . .

[He] shot, not knowing where he was shooting because he was blinded by this liquid.”). The

prosecutor cast doubt on Calder’s story by juxtaposing his trial testimony with the January 21, 2008

Statement, in which Calder had denied that the liquid had blinded him. See Trial Tr. [ECF No. 13-1]

at 1351 (“[Calder] was asked not once, but twice, ‘Was there liquid thrown in your face?’ And he said,

‘No, no liquid. No liquid.’”); id. at 1395 (“He was very clear in his statement about why he pulled the

gun, because [he was hit] in the face. . . . Not, I pulled the gun, I aimed the gun and I shot the gun

because I was blinded with chemicals in my eyes.”). It’s one thing to say that Calder was hit in the face

by an object—of that there’s no dispute. It’s quite another, though, to say that he was blinded by it.

And it’s this latter claim that the prosecutor attacked in her closing argument—and not without reason:

As we’ve shown, Calder himself had previously said that, although he was hit in the face, he wasn’t

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blinded when he fired. See id. at 1260 (“Q: So would you agree with me . . . that you were asked ‘Do

you know what it was they threw at you?’ Answer from you, ‘It wasn’t liquid.’ . . . And you go on to

describe, you think it was a small vase with no liquid. [Calder]: At that time. At that time.”); see also

Lauderhill Transcript [ECF No. 11-2] at 41 (same). That’s enough to render the prosecutor’s statement

wholly proper. See United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014) (“[A]lthough a prosecutor

may not exceed the evidence presented at trial during her closing argument, she may state conclusions

drawn from the trial evidence.”).

In any event, there’s no “reasonable probability” that the prosecutor’s comments had any

effect on the trial because the state court instructed the jury that the prosecutor’s arguments weren’t

evidence. See Trial Tr. [ECF No. 13-1] at 1336 (“[The Court:] As I said earlier, you don’t need to take

notes because what the lawyers say is not evidence.”). And we assume that the jurors heeded this

instruction. See Adams v. Wainwright, 709 F.2d 1443, 1447 (11th Cir. 1983) (“A jury is presumed to

follow jury instructions.”); Sutton v. State, 718 So. 2d 215, 216 n.1 (Fla. 1st DCA 1998) (“The law

presumes that the jury followed the trial judge’s instructions in the absence of evidence to the

contrary.”).

Remember, too, that a defense lawyer doesn’t perform ineffectively unless “no competent

counsel would have taken the action that his counsel did take.” Chandler, 218 F.3d at 1315. But many

lawyers take the commonsense view that objections during closing arguments aren’t worth the

squeeze. See, e.g., Ether v. Dixon, 2022 WL 1908918, at *22 (S.D. Fla. June 3, 2022) (Altman, J.) (“Even

if the prosecutor’s statement had been improper, a good lawyer might justifiably suppose that there’s

little to be gained from objecting. . . . [A] seasoned lawyer might forego the objection . . . in order to

avoid the dual implication that the State was onto something and that, whatever that harmful thing

was, Ether was trying to hide it.” (first citing Brewster v. Hetzel, 913 F.3d 1042, 1057 (11th Cir. 2019);

and then citing Brown v. Dixon, 591 F. Supp. 3d 1251, 1279 (S.D. Fla. 2022) (Altman, J.))). For one

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thing, any such objection would only highlight for the jury the defense lawyer’s view that the

prosecutor had just said something damaging. For another, the trial judge’s most likely response to a

closing-argument objection would be to remind the jurors that the lawyer’s comments aren’t

evidence—not exactly a ringing endorsement of the objection’s merits. For all these reasons, we don’t

think Calder’s trial counsel can be faulted for failing to object to this statement in closing argument.

Ground Five is therefore DENIED.

VI.

Ground Six

In Ground Six, Calder castigates his lawyer for failing to notice that a juror “was sleeping

throughout a span of approximately 5-7 minutes.” Petition at 17. Calder also alleges that, when the

sleeping juror was brought to his lawyer’s attention, she refused to ask the trial court to remove the

juror. Ibid. In the State’s view, the “Petitioner [failed] to establish that the unspecified juror was

sleeping during critical portions of his trial.” Response at 56. We agree.

Under Florida law, a lawyer may be ineffective for failing to object when he or she becomes

aware of a sleeping juror. See Judd v. State, 951 So. 2d 103, 104 (Fla. 4th DCA 2007) (finding ineffectiveassistance claim sufficient where “appellant alleged that a specific juror was sleeping during his trial,

that he informed his trial counsel of the sleeping juror, and that his counsel failed to bring this

information to the attention of the court”). But Calder must show both “that a juror was asleep during

crucial testimony” and that counsel knew about it. Everett v. State, 111 So. 3d 202, 203 (Fla. 5th DCA

2013); see also Harper v. Florida, 2018 WL 11207218, at *11 (S.D. Fla. Apr. 6, 2018) (White, Mag. J.)

(“Under Florida law, in order to be granted relief on the matter of a sleeping juror, petitioner must

show that the juror was sleeping, counsel knew about the problem, counsel failed to act on the

problem, and petitioner was prejudiced by the inaction of counsel.”), report and recommendation adopted,

2019 WL 10744942 (S.D. Fla. Feb. 4, 2019) (Lenard, J.).

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But Calder tells us almost nothing about this “sleeping juror”: He doesn’t tell us which juror

it was, and he doesn’t try to identify the specific parts of the trial the juror (allegedly) slept through.

What’s worse, he doesn’t tell us when exactly he notified his lawyer about the sleeping juror—and he

never says that the juror continued to sleep after his lawyer found out about it. Most importantly,

there’s no other evidence in the record to substantiate Calder’s claim. See Response at 56–57 (“Other

than the Petitioner’s unsubstantiated allegations here and in the state forum, no showing has been

made that a juror (Petitioner fails to specify which one) was nodding off . . . Petitioner [also] fails to

allege which portion of the testimony the unnamed juror may have missed.”).

The state postconviction court thus reasonably concluded that there was no record evidence

of a sleeping juror. See State’s Postconviction Response [ECF No. 12-1] at 20 (“The Defendant fails

to specify who the alleged sleeping juror was, what the alleged missed testimony was and provides no

record evidence to support his claim.”); see also, e.g., Mackey v. Sec’y, Dep’t of Corr., 2017 WL 4003758, at

*6 (M.D. Fla. Sept. 12, 2017) (Honeywell, J.) (“Furthermore, the record does not reveal whether the

juror merely appeared to be sleeping, or, if he was in fact asleep, or, how long he slept. . . . Accordingly,

Mackey has not shown that the state court . . . unreasonably determined the facts in rejecting this

claim.”). 6 Under AEDPA, “a determination of a factual issue made by a State court shall be presumed to

be correct.” 28 U.S.C. § 2254(e)(1) (emphasis added). Calder can only “rebut[ ] th[is] presumption of

correctness” by adducing “clear and convincing evidence” that the state postconviction court got it

wrong. Ibid.; see also Pye, 50 F.4th at 1035 (“[A] state court’s factual determinations are ‘presumed to

True, the state postconviction court didn’t hold an evidentiary hearing on this claim. And Florida

courts generally disfavor the summary denial of “sleeping juror” claims. See McGraw v. State, 796 So.

2d 1205, 1206 (Fla. 4th DCA 2001) (“It is usually improper to summarily deny a claim that counsel

failed to act upon being informed that a juror was sleeping during trial.”). But “it is beyond debate

that a state court’s failure to conduct an evidentiary hearing on a post-conviction motion does not

constitute a cognizable claim for habeas relief.” Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365 (11th Cir.

2009) (quotation marks omitted). And, for all the reasons we’ve identified, Calder’s federal sleepingjuror claim plainly fails on the merits.

6

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be correct,’ and the petitioner has the burden of proving otherwise ‘by clear and convincing evidence.’”

(quoting 28 U.S.C. § 2254(e)(1)). “Clear and convincing evidence entails proof that a claim is highly

probable, a standard requiring more than a preponderance of the evidence but less than proof beyond

a reasonable doubt. Indeed, . . . review of findings of fact by the state court under § 2254(e)(1) is even

more deferential than under a clearly erroneous standard of review.” Mansfield, 679 F.3d at 1309; see

also Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir. 2003) (“[T]he state court’s findings of fact are

entitled to a presumption of correctness and may be ignored only if the petitioner shows by clear and

convincing evidence that the state court’s determination was not fairly supported by the record. . . .

This deference requires that a federal habeas court more than simply disagree with the state court

before rejecting its factual determinations. Instead, it must conclude that the state court’s findings

lacked even fair support in the record.”).

Since Calder hasn’t produced any evidence—much less clear and convincing evidence—for

his sleeping-juror claim, we DENY Ground Six.

VII.

Ground Seven

Calder avers in Ground Seven that defense counsel was ineffective “for failing to argue in

closing arguments that State witness Patrick Johnson testified that he witnessed the Defendant go

leave the bag at the truck and seen [sic] the Defendant return right back to the house[.]” Petition at

18. This testimony was important to his defense, Calder explains, because it “clearly proved that the

Defendant had not gone to the vacant apartment to get the gun” and refuted the State’s argument that

he committed premeditated murder. Id. at 19.

Here, again, the record belies Calder’s claim. Calder’s lawyer extensively highlighted Patrick

Johnson’s testimony during her closing arguments and explicitly argued that “there is no testimony that

[Calder] went down to an apartment and picked a gun up out of there.” Trial Tr. [ECF No. 13-1] at

1370. Here’s how counsel framed this part of her argument:

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Then we have [Calder] leaving and taking the suitcase to his truck—Patrick Johnson’s

truck. Patrick Johnson is telling you that he’s standing at the doorway. Okay? . . . .

What did Patrick Johnson tell you? He went to his truck. I would hotly contest this whole

idea suddenly today that [Calder] went down to the apartment to pick this gun up. Okay?

[. . . .]

Patrick Johnson told you [Calder] went to the truck, he brought his suitcase in there.

There is absolutely no testimony before you—and please do not let this get confused.

There is no testimony that he went down to an apartment and picked a gun up out of there.

Id. at 1369–70 (emphasis added). Since the record conclusively refutes Calder’s claim that counsel

didn’t address Patrick Johnson’s testimony during her closing arguments, we DENY Ground Seven.

VIII. Ground Eight

Finally, in Ground Eight, Calder says that his lawyer should have introduced evidence that the

victim had a “prior arrest record of [d]omestic violence.” Petition at 21. According to Calder, this

arrest would have shown that the victim “had violent tendencies” and would’ve supported Calder’s

“self-defense [claim] about being attacked by [the victim].” Ibid.

But the state postconviction court denied this claim because the victim’s prior arrest wouldn’t

have been admissible under Florida law. See State’s Postconviction Response [ECF No. 12-1] at 22

(“[S]pecific acts of aggression and violence by the victim are inadmissible to prove that the victim was

the aggressor and that the defendant acted in self-defense.” (quoting CHARLES W. ERHARDT, FLORIDA

EVIDENCE § 405.3 (2012 ed.))). We cannot second-guess the state court’s interpretation of state law.

See McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir. 1992) (“A state’s interpretation of its own laws

or rules provides no basis for federal habeas corpus relief, since no question of constitutional nature

is involved.”). And (it goes without saying) a defense lawyer cannot be ineffective for failing to (try to)

introduce inadmissible evidence. See Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1362 (11th

Cir. 2020) (holding that counsel wasn’t ineffective “in failing to try to introduce inadmissible polygraph

evidence”).

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Calder’s claim that the victim had a prior arrest is also pure speculation. He doesn’t tell us

when or where this arrest occurred, and he doesn’t give us a case number or other record by which

we might find this arrest. See Petition at 21; Amended Postconviction Motion [ECF No. 11-3] at 262–

64. A lawyer cannot be ineffective for failing to track down an arrest that may never have happened.

See, e.g., Giardina v. Sec’y, Dep’t of Corr., 2019 WL 5213331, at *13 (M.D. Fla. Oct. 16, 2019) (Scriven, J.)

(denying an ineffective-assistance claim where “Giardina did not specifically identify or provide

evidence of [the victim’s] prior conviction”); see also Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.

1985) (“Speculation is insufficient to carry the burden of a habeas corpus petitioner as to what

evidence could have been revealed by further investigation.”).

Ground Eight is therefore DENIED.

EVIDENTIARY HEARING

We won’t hold an evidentiary hearing in this case. “[W]hen the state-court record ‘precludes

habeas relief’ under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary

hearing.’” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 474

(2007)). Based on what we’ve said—including and especially the presence of a robust trial and statepostconviction record—we don’t think we’d benefit from any further factual development.

CERTIFICATE OF APPEALABILITY

A Certificate of Appealability (“COA”) is appropriate only when the movant makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA,

therefore, the movant must show that “reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a

district court has disposed of claims . . . on procedural grounds, a COA will be granted only if the

court concludes that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid

claim of the denial of a constitutional right’ and ‘whether the district court was correct in its procedural

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ruling.’” Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000)). Jurists of reason wouldn’t debate our assessment of Calder’s

constitutional claims, so we’ll DENY any request for a COA.

*

*

*

Having carefully reviewed the record and the governing law, we hereby ORDER AND

ADJUDGE that the Petition [ECF No. 1] is DENIED, that any demand for a COA is DENIED,

that any request for an evidentiary hearing is DENIED, that all deadlines are TERMINATED, and

that any pending motions are DENIED as moot. The Clerk shall CLOSE this case.

DONE AND ORDERED in the Southern District of Florida on December 18, 2023.

_________________________________

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

cc:

counsel of record

Winston Calder, pro se

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2013

WINSTON G. CALDER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D11-4237

[ January 8, 2014 ]

TAYLOR, J.

Winston Calder appeals his conviction of first degree murder, arguing that the trial

court erred in denying his motion to suppress the statements he made to police during a

videotaped interrogation after he had invoked his right to counsel. Because the police

failed to scrupulously honor Calder’s invocation of his rights, and because the totality of

the circumstances shows that Calder’s reinitiation of the interrogation was nothing more

than the product of improper police conduct, we reverse the denial of his motion to

suppress and remand for a new trial.

On January 20, 2008, during an argument in which his girlfriend, Georgia Lee, tried

to remove him from their apartment, Calder shot and killed Lee. Police arrested Calder

the following day. After asking Calder some preliminary questions about his

background, Detective Sessions advised Calder of his Miranda rights. When the

detective asked Calder if he understood the rights he read to him, the following exchange

occurred:

Calder: I would prefer a lawyer.

Detective: You would prefer to have a lawyer?

Calder: Yeah.

Detective: Okay. You have a lawyer?

Calder: I can’t afford a lawyer, number four.

Detective: Four says if you cannot afford a lawyer one will be appointed

to represent you, in other words, at no cost to you.

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Calder: Yeah. When can I get that done?

Detective: When can you get that done?

Calder: Four, present a lawyer. You know, I want to know about those

two, number three and number four.

Detective: Number three just simply means at any point in time during the

interview if you wanted to have a lawyer present you would be allowed to

have that. And number four means if you can’t afford one, one will be

appointed to represent you at no cost to yourself. In other words, it would

be free of charge. If you couldn’t afford it, that’s what that basically

means.

Now, the only thing is at that point in time I’m not gonna be able to get

your side of the story and I’m not gonna be able to present your side of the

story to the State Attorney’s office.

....

Detective: Are you willing to give your side of the story without a lawyer

present, yes or no?

Calder: No, I want to feel the comfortable level.

....

Detective: In other words, you want to tell your side of the story, however

you will feel more comfortable having a lawyer present regardless of what

happened?

Calder: Yes.

....

Detective: So you saying you want to have a lawyer present? I can’t talk to

you anymore, do you understand that?

Calder: Yeah.

....

Detective: Let me ask you this, would you feel more comfortable if the

conversation we had was tape recorded . . . ?

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Calder: Well a lawyer present to me-Detective: . . . But the thing is I can’t tape record a conversation with you

without you first of all agreeing to speak to me without a lawyer being

present. Do you understand?

Calder: I feel comfortable going to a lawyer.

Detective: You feel better having a lawyer?

Calder: Yeah.

Detective: Not a problem we can certainly do that. Okay, that is not a

problem at all.

Calder: I feel more comfortable like that.

The detective told Calder that it was his legal right to have an attorney, but before

leaving him alone in the interrogation room, the detective said to Calder:

[I]f you do change your mind and you do want to talk to me

about your side of the story, okay, what I need you to do is

–- knock on the door but knock kind of loud, just knock on

it kind of loud, I’ll come back in and then if you say you

know what, Detective Sessions, I really, it really would

make me feel better if I got the opportunity to give my side

of the story, talk about what happened on Saturday, I know

what happened, okay? I know that it’s very difficult for

you and it’s going to be tough for you to sleep because the

bottom line is you been through a tough situation and

nobody wants to be in your shoes, obviously, but at the

same time one of the things that makes somebody feel a lot

better is if they get the opportunity to get things off of their

chest, it kind of clears their mind, it clears their conscious

[sic] and it makes them feel better, you know.

While Calder was alone in the interrogation room, he cried for several minutes. Less

than ten minutes after the detective left Calder alone in the room, Calder opened the door

and asked to speak to the detective. The detective returned and, after he administered

Miranda warnings, Calder signed a waiver. Soon thereafter, Calder confessed to firing

the fatal shot that killed Lee. He claimed that the shooting was accidental.

The trial court held a hearing on Calder’s motion to suppress his statements. The

court found that Calder unequivocally invoked his right to counsel when he told

Detective Sessions that he would feel more comfortable with a lawyer. The court further

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found that the detective ceased interrogating Calder after he invoked his right to counsel,

and that Calder initiated further conversation with the detective. After considering the

totality of circumstances surrounding the interrogation, the trial court found that Calder’s

decision to waive his right to counsel and give a statement to the detective was made

knowingly, intelligently, and voluntarily. Based on those findings and conclusions of

law, the trial court denied Calder’s motion to suppress his statements.

Calder argues that the police obtained his confession in violation of his Miranda

rights. He acknowledges that he initiated further discussions with the police after

invoking his right to counsel, but contends that his subsequent waiver was not knowingly

and voluntarily made. Instead, he contends that the waiver was the product of the

detective’s failure to scrupulously honor his right to counsel and to remain silent after he

invoked his rights. He argues that the detective’s persistent attempts to persuade him to

“tell his side of the story” amounted to improper interrogation that vitiated the

voluntariness of his subsequent waiver.1

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed

with a presumption of correctness and the court must interpret the evidence and

reasonable inferences and deductions derived therefrom in a manner most favorable to

sustaining the trial court's ruling.” Jackson v. State, 18 So. 3d 1016, 1027 (Fla. 2009);

State v. Triplett, 82 So. 3d 860, 863 (Fla. 4th DCA 2011). Although an appellate court

will defer to the trial court’s findings of fact if they are supported by competent,

substantial evidence, the appellate court will review de novo the trial court’s application

of the law to the facts; it will independently review mixed questions of law and fact that

ultimately determine constitutional issues arising in the context of the Fifth Amendment.

Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007); State v. Glatzmayer, 789 So. 2d 297,

301 (Fla. 2001); Pierre v. State, 22 So. 3d 759, 765 (Fla. 4th DCA 2009).

Both the Fifth Amendment to the United States Constitution and Article I, section 9

of the Florida Constitution “provide that persons shall not be ‘compelled’ to be witnesses

against themselves in any criminal matter.” Moss v. State, 60 So. 3d 540, 542 (Fla. 4th

DCA 2011) (quoting Ross v. State, 45 So. 3d 403, 412 (Fla. 2010)). “To give effect to

the Fifth Amendment right against self-incrimination, an accused person has the right to

have counsel present during a custodial interrogation, and police must clearly advise the

accused of that right.” Id. (citing Miranda v. Arizona, 384 U.S. 436, 467-72 (1966)).

“Under the well-settled principles of Miranda, once a suspect unequivocally invokes

the right to counsel, all interrogation must cease.” McKenzie v. State, 38 Fla. L. Weekly

D898 (Fla. 4th DCA Apr. 24, 2013) (citing Miranda, 384 U.S. at 473-74). The suspect “

‘is not subject to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication, exchanges,

We do not address Calder’s argument that the detective minimized his Miranda rights by

referring to the form as a “permission slip,” i.e., a paper that would authorize the defendant to

speak to him.

1

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or conversations with the police.’ ” Moss, 60 So. 3d at 542-43 (quoting Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981)).

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but

also to any words or actions on the part of the police (other than those normally attendant

to arrest and custody) 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); Black v. State, 59 So. 3d 340, 345 (Fla. 4th DCA 2011).

When an accused invokes his right to counsel, “ ‘ . . . courts may admit his responses

to further questioning only on finding that he (a) initiated further discussions with the

police, and (b) knowingly and intelligently waived the right he had invoked.’ ” Moss, 60

So. 3d at 544 (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)); see also Sapp v. State,

690 So. 2d 581, 584 (Fla. 1997) (“[O]nce an individual has invoked the Miranda right to

counsel, a valid waiver of this right can be found only if the individual is the one

responsible for reinitiating contact with the police.”); Black, 59 So. 3d at 346.

Contrary to the state’s argument that Calder’s invocation of his right to counsel was

equivocal, the trial court correctly determined that Calder’s statement to the detective that

he would “feel comfortable going to a lawyer” was an unequivocal invocation of his right

to counsel. Moreover, the record shows that Calder made several statements during the

interview that clearly invoked his right to counsel. As we commented in Moss, “it is hard

to imagine more unequivocal statements.” 60 So. 3d at 543.

The record reveals that after Calder made his unequivocal request for counsel, the

detective did not cease questioning him. Instead, he continued talking to Calder in an

effort to coax him into speaking without counsel. The detective kept reminding Calder

that this was his opportunity to present his side of the story and that doing so would

benefit him. He further suggested that Calder might feel more comfortable telling his

side of the story if he recorded the statement. He told Calder, however, that the only way

he could record the interview was if Calder agreed to speak without a lawyer. The

detective also told Calder that he would feel better and be able to sleep better at night if

he got some things off his conscience.

These statements constituted interrogation because the detective should have known

that they were “reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at

301; see also Cuervo, 967 So. 2d at 164 (remarks by police to defendant that he still had

an opportunity to tell “his side of the story” amounted to interrogation because the

officers could reasonably anticipate they would elicit an incriminating response); Black,

59 So. 3d at 346 (detective was in violation of Miranda by continuing to ask defendant

whether he wanted to talk to him about the crimes after the defendant had clearly invoked

his right to counsel); Gilbert v. State, 104 So. 3d 1123, 1125 (Fla. 4th DCA 2012) (stating

that “almost immediately after [the defendant] invoked his right to counsel, the detectives

engaged in interrogation by telling the defendant that they were trying to ‘protect’ him

and encouraging him to tell his ‘side of the story’ ”). Based on similar statements the

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detective made in this case, we conclude that the detective did not cease questioning and

thus failed to scrupulously honor Calder’s invocation of his right to counsel.

Relying on Serrano v. State, 15 So. 3d 629 (Fla. 1st DCA 2009), the state argues that

even if Calder did make an unequivocal request for counsel, the detective’s statements to

Calder did not constitute interrogation within the meaning of Innis, because they were

intended only to clarify Calder’s wishes and understanding of his rights before ending the

session. However, as the state acknowledges, this view is contrary to our position in

Black that Serrano contravenes Miranda’s holding that the police must cease questioning

altogether when a defendant makes an unequivocal request for counsel during a custodial

interrogation. See Black, 59 So. 3d at 346 n.6; see also Green v. State, 69 So. 3d 351,

354 (Fla. 2d DCA 2011) (noting our court’s disagreement with Serrano). When, as in

this case, an officer persists in asking a suspect whether he wishes to give his “side of the

story” after the suspect has unequivocally invoked his rights, the officer is not asking

harmless clarifying questions; he is violating the suspect’s rights under Miranda. See

Cuervo, 967 So. 2d at 165.

In any event, it is undisputed in this case that Calder himself initiated communication

with the detective after having invoked his right to counsel. Several minutes after the

detective left Calder alone in the interrogation room, Calder opened the door and

requested to speak with the detective. The question therefore becomes whether, under

the totality of the circumstances, Calder’s confession during the second interrogation was

voluntary.

Calder argues that the detective’s continued interrogation of him, despite his

invocation of the right to counsel, rendered his later confession inadmissible,

notwithstanding the fact that he reinitiated contact with the detective. He contends that

his decision to resume dialogue with the detective was a product of the detective’s refusal

to scrupulously honor his right to counsel by repeatedly urging him to tell his “side of the

story.”

The issue before us therefore lies at the intersection of two general constitutional

principles. On the one hand, a suspect’s request to cut off questioning until counsel can

be obtained must be “scrupulously honored” and all questioning must cease. Miranda,

384 U.S. at 473-74; Gilbert, 104 So. 3d at 1125. On the other hand, “if the accused

initiates further conversation, is reminded of his rights, and knowingly and voluntarily

waives those rights, any incriminating statements made during this conversation may be

properly admitted.” Welch v. State, 992 So. 2d 206, 214 (Fla. 2008).

In State v. Hunt, 14 So. 3d 1035 (Fla. 2d DCA 2009), the Second District set forth a

two-step analysis where a suspect makes statements to the police after invoking his

rights:

Where, as here, a suspect has made statements to the police after

invoking his right to remain silent, the correct approach to determining

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whether the police have scrupulously honored the suspect’s right to remain

silent may require a two-step analysis. In the first step, courts must decide

whether the police continued to interrogate the suspect despite his or her

invocation of the right to remain silent. If the police continued the

interrogation, then they failed to scrupulously honor the right to remain

silent and the resulting statements are inadmissible. Under these

circumstances, the court need not proceed to the second step.

On the other hand, if the interrogation ceased, the court must proceed

to the second step of the analysis. In the second step, the court must

determine who reinitiated the dialogue. The answer to this question

determines what factors the court must examine in resolving the issue.

....

[W]here it was the suspect who reinitiated the dialogue with the

authorities, the inquiry is different. Under these circumstances, the courts

consider whether the suspect’s decision to change his or her mind and to

waive his or her rights by speaking with the authorities was voluntary,

knowing, and intelligent.

Id. at 1038-39 (emphasis added). The Hunt opinion, however, does not directly address a

situation where the defendant reinitiated dialogue with the police after an earlier

interrogation in which the police did not immediately cease questioning when the

defendant invoked his rights.

On this issue, we find the Ninth Circuit’s decision in Collazo v. Estelle, 940 F.2d 411

(9th Cir. 1991), to provide useful guidance. There, the Ninth Circuit held that the

defendant’s confession was involuntary where the defendant asked to talk to a lawyer, the

police responded by telling the defendant it “might be worse” for him if he talked to an

attorney, and three hours later the defendant “changed his mind” and talked to the police.

According to the Ninth Circuit, the substance of the entire transaction demonstrated that

the defendant could not be said to “initiate” further conversation with the police as that

term is used in Edwards, and that the defendant’s actions in requesting the officers were

nothing less than the delayed product of coercive police conduct. Id. at 420, 423.

In a concurring opinion, Judge Kozinski advocated for a bright-line rule where the

police badger a suspect after the right to counsel has been invoked:

[T]he police forfeit the benefit of the Edwards exception once they use the

type of pressure tactics demonstrated in this record. Because Edwards is

designed to prevent police from badgering suspects into giving up their

right to counsel, the narrow exception to Edwards cannot apply in a case

where the police actually engaged in badgering. If police want to keep the

Edwards escape hatch open, they must cease their interrogation as soon as

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the suspect asserts his right to counsel, and then hope he changes his mind

on his own.

Id. at 427 (Kozinski, J., concurring).

Here, we need not decide whether we would adopt the rule suggested by Judge

Kozinski. For resolving the present case, it is enough to say that the substance of the

entire transaction confirmed that Calder did not voluntarily initiate the further

conversation with police, and that his action in requesting the detective was merely the

delayed product of the coercive police conduct. See Collazo, 940 F.2d at 419-24; see

also State v. Brown, 592 So. 2d 308, 308-09 (Fla. 3d DCA 1991) (holding that the

officer’s statements after the defendant invoked his rights were likely to elicit

incriminating responses and that the defendant’s confession was not freely and

voluntarily made, despite the fact that the defendant reinitiated the conversation); but

compare Craig v. State, 599 So. 2d 170, 170-71 & n.2 (Fla. 3d DCA 1992) (even though

the police continued questioning the defendant after what was at least an equivocal

invocation of the right to counsel, the defendant’s subsequent reinitiation of the

interrogation two hours later cured any earlier Fifth Amendment defect where the

defendant, who was awaiting transportation to the jail, overheard his co-defendant “throw

him in” to the police, the defendant decided for his own best interests to confess his

involvement, the police were “totally surprised” by the confession, and there was no

indication that the confession arose out of a deliberate stratagem or any form of improper

interrogation by the police).

We have considered Stein v. State, 632 So. 2d 1361, 1364 (Fla. 1994), but find it to be

distinguishable. There, Stein was a suspect in a double murder. During an interrogation,

Stein asked to speak to an attorney and the questioning was terminated. However, before

leaving the room, one of the investigators told Stein that God would forgive him for what

he had done. The investigators then left Stein alone in the interview room. Several

minutes later, but before Stein had seen an attorney, Stein initiated contact with the

investigators by knocking on the door and stating, “I want to talk about part of it.” Id. at

1364. On appeal, the Florida Supreme Court held that the trial court properly denied the

motion to suppress the confession, because Stein voluntarily initiated continued

communication with the investigators. Id. Although the court noted that the

investigator’s comments regarding God were not appropriate, the court emphasized that,

at the suppression hearing, Stein himself admitted that the brief conversation about God

had no effect on his decision to talk to the investigators. Id. Therefore, in Stein, it was

apparent from the record that the officer’s comment did not induce Stein’s reinitiation of

the communication.

By contrast, in this case, it cannot be seriously questioned that the officer’s improper

comments, after Calder invoked his right to counsel, were designed to induce him to

reinitiate the communication without a lawyer. This ploy was successful, bringing Calder

to tears and prompting him to ask to speak to the detective only a few minutes after the

first interrogation had ended. Although an appellate court must defer to the factual

8

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findings surrounding the interrogation, it is not required to defer to the trial court’s

conclusions regarding voluntariness. This is a question of law subject to de novo review.

Brancaccio v. State, 773 So. 2d 582, 583 (Fla. 4th DCA 2000). Here, the totality of the

circumstances shows that Calder’s reinitiation of the interrogation and waiver of his

previously invoked right to counsel were not voluntary, but instead, the product of

improper police conduct.

Based on the foregoing, we find that the trial court erred in denying Calder’s motion

to suppress his confession. Because we cannot consider this error to be harmless, we

reverse for a new trial.

Reversed and Remanded.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.

*

*

*

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;

Ilona M. Holmes, Judge; L.T. Case No. 08001448CF10A.

Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West

Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant

Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

9

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