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
A-1
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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.
A-2
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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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