FITZSIMMONS v. DIXON

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MICHAEL FITZSIMMONS,
Petitioner,
v. 	Case No. 4:25-cv-86-TKW-MJF
RICKY D. DIXON,
Respondent.
_______________________________/
REPORT AND RECOMMENDATION
Michael Fitzsimmons has filed a second amended petition for writ
of habeas corpus under 28 U.S.C. § 2254. Doc. 16. Respondent (“the
State”) 	answered 	and 	provided 	relevant 	portions 	of 	the 	state-court
record. Docs. 30, 31. Fitzsimmons replied. Doc. 38. The undersigned
concludes that no evidentiary hearing is required, and that Fitzsimmons
is not entitled to habeas relief.
B ACKGROUND AND P ROCEDURAL H ISTORY
Over a three-year period or longer, Fitzsimmons sexually abused a
young girl (L.G.) in Woodville, Florida. L.G. disclosed the abuse in 2014
when she was eleven years old. The abuse included Fitzsimmons licking
L.G.’s vagina, forcing L.G. to touch and masturbate Fitzsimmons’s penis,
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and Fitzsimmons touching L.G.’s vagina with his fingers. Fitzsimmons
was 	a 	longtime 	friend 	of 	L.G.’s 	family. 	The 	abuse 	occurred 	in
Fitzsimmons’s house and in Fitzsimmons’s trailer next to the house
(which Fitzsimmons moved into shortly after L.G.’s family began renting
Fitzsimmons’s house in early 2012). See Doc. 31-3, Exs. 11, 12 (Trial Tr.).1
In Leon County Circuit Court Case No. 2017-CF-581, Fitsimmons
was convicted of one count of sexual battery on a child younger than
twelve years old by defendant eighteen years or older (Count 1), and two
counts of lewd or lascivious molestation (Counts 6 and 8). Doc. 31-2, Ex.
4 (Verdict); Doc. 31-2, Ex. 5 (J. & Sentence). The trial court sentenced
Fitzsimmons to imprisonment for life on each count to run concurrently.
Doc. 31-2, Ex. 5. On November 25, 2020, the Florida First District Court
of Appeal (“First DCA”) affirmed in a written opinion. Fitzsimmons v.
State, 309 So. 3d 261 (Fla. 1st DCA 2020) (copy at Doc. 31-3, Ex. 18). The
1 The State charged Fitzsimmons with eight counts of sexual abuse
against two child victims (L.G. and her sister M.G.). Doc. 31-2, Ex. 3.
Three charges involved abuse of L.G. (Counts 1, 6 and 8). The charges
were severed according to victim, and the cases proceeded independently.
See Doc. 31-3, Exs. 11, 12 (Trial Tr.). The prosecutor defined the specific
conduct underlying each of the three counts involving L.G. in opening
statements. See Doc. 31-3, Ex. 11 at 27 in ECF. The conduct also was
described in the charging document. Doc. 31-2, Ex. 3.
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Supreme Court of Florida declined to accept jurisdiction. Fitzsimmons v.
State, 2023 WL 3337459, at *1 (Fla. May 10, 2023) (copy at Doc. 31-4, Ex.
24).
On 	July 	1, 	2021, 	Fitzsimmons 	filed 	a 	pro 	se 	motion 	for
postconviction relief under Florida Rule of Criminal Procedure 3.850.
Doc. 31-4, Ex. 26. The state circuit court dismissed the motion with leave
to amend. Doc. 31-4, Ex. 27.
Fitzsimmons filed an amended Rule 3.850 motion on August 18,
2021. Doc. 31-4, Ex. 28. The amended motion raised five claims with sub-
claims. Id. The state court set the motion for an evidentiary hearing and
denied Fitzsimmons’s motion to appoint postconviction counsel. Doc. 31-
5, Exs. 31, 32.
At the evidentiary hearing, Fitzsimmons testified but did not call
any witnesses or submit any evidence. Doc. 31-4, Ex. 29. The State
presented the testimony of Fitzsimmons’s trial counsel, Daren Shippy,
id., and admitted several exhibits. Doc. 31-5, Exs. 33–40; Doc. 31-6, Exs.
41–42. At the close of the hearing, the state court denied relief on all
claims and stated its reasoning on the record. Doc. 31-4, Ex. 29 at 417–
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23 in ECF.2 A subsequent written denied Fitzsimmons’s amended Rule
3.850 “for the reasons stated on the record in open Court.” Doc. 31-5, Ex.
30. 	The 	First 	DCA 	per 	curiam 	affirmed 	without 	written 	opinion.
Fitzsimmons v. State, 386 So. 3d 121 (Fla. 1st DCA May 6, 2024) (Table)
(copy at Doc. 31-6, Ex. 49). The mandate issued June 12, 2024. Doc. 31-
6, Ex. 50.
On November 1, 2024, Fitzsimmons filed a pro se petition in the
First DCA alleging ineffective assistance of postconviction appellate
counsel. Doc. 31-7, Ex. 51. The First DCA dismissed the petition on July
23, 2025, citing Gilbert v. State, 315 So. 3d 791 (Fla. 1st DCA 2021) (“As
Florida Rule of Appellate Procedure 9.141(d) does not provide a vehicle
to challenge postconviction appellate counsel’s effectiveness, the petition
is dismissed.”). See Fitzsimmons v. State, 2025 WL 2054378, at *1 (Fla.
1st DCA July 23, 2025) (copy at Doc. 31-7, Ex. 52).
Fitzsimmons filed his initial federal habeas petition on February
24, 2025. Doc. 1. Fitzsimmons’s second amended petition raises eleven
claims: ten claims of ineffective assistance of trial counsel (including a
2 Citations to page numbers of an exhibit are to the numbers assigned by
this court’s Electronic Case Filing system (“ECF”).
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claim of cumulative error), and one claim regarding the state court’s
failure to appoint counsel to assist Fitzsimmons at the postconviction
evidentiary hearing. Doc. 16.
The State asserts that: (1) several claims are procedurally defaulted
and, in any event, are without merit; and (2) the exhausted claims fail
under 28 U.S.C. § 2254(d)’s demanding standard for habeas relief. Doc.
30.
F EDERAL H ABEAS E XHAUSTION REQUIREMENT
Section 2254 “requires state prisoners to ‘exhaust the remedies
available in the courts of the State’ before seeking federal habeas relief.”
Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (alteration adopted) (quoting
28 U.S.C. § 2254(b)(1)(A)). “To satisfy the exhaustion requirement, the
petitioner must have fairly presented the substance of his federal claim”
to the state’s highest court, either on direct appeal or on collateral review.
Picard v. Connor, 404 U.S. 270, 277–78 (1971); Castille v. Peoples, 489
U.S. 346, 351 (1989).
A petitioner “fairly” presents the substance of his federal claim to
the state courts when he describes the claim “such that the reasonable
reader would understand each claim’s particular legal basis and specific
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factual foundation.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1135
(11th Cir. 2022) (quoting Kelley v. Sec’y Dep’t of Corr., 377 F.3d 1317,
1344–45 	(11th 	Cir. 	2004)). 	“‘[A] habeas 	petitioner may not 	present
instances of ineffective assistance of counsel in his federal petition that
the state court has not evaluated previously.’” Ogle v. Johnson, 488 F.3d
1364, 1369 (11th Cir. 2007) (quoting Footman v. Singletary, 978 F.2d
1207, 1211 (11th Cir. 1992)); see also Jackson v. Herring, 42 F.3d 1350,
1355 (11th Cir. 1995).
“Allowing 	a 	habeas 	petitioner 	to 	allege 	a 	single 	instance 	of
ineffective assistance in his state post-conviction proceedings and then
proceed to federal court to allege additional instances would be contrary
to the state’s ‘full and fair opportunity to address the claim on the merits.’
The state would never have the benefit of evaluating the claim using a
fully 	developed 	set 	of 	facts. 	This 	would 	not 	be 	the 	‘serious 	and
meaningful’ exhaustion of claims that Congress intended.” Footman, 978
F.2d at 1211. “Thus, the prohibition against raising nonexhausted claims
in federal court extends not only to broad legal theories of relief, but also
to the specific assertions of fact that might support relief.” Kelley, 377
F.3d at 1344.
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When a petitioner fails to exhaust his federal claim and the state
court 	remedy 	no 	longer 	is 	available, 	that 	failure 	to 	exhaust 	is 	a
procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 839–40 (1999);
see also Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). A petitioner
seeking to overcome a procedural default must “demonstrate cause for
the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claim[ ] will result
in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991); Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1352–53
(11th Cir. 2012).
S ECTION 2254 STANDARD OF REVIEW
A federal court “shall not” grant a habeas corpus petition on any
claim that was adjudicated on the merits in state court unless the state
court’s decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court.”
28 U.S.C. § 2254(d)(1). The Supreme Court explained the framework for
§ 	2254 	review 	in 	Williams v. 	Taylor, 	529 U.S. 	362 (2000). 	Justice
O’Connor described the appropriate test:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
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opposite to that reached by this Court on a question of law or
if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court may
grant 	the 	writ 	if 	the 	state 	court 	identifies 	the 	correct
governing 	legal 	principle 	from 	this 	Court’s 	decisions 	but
unreasonably 	applies 	that 	principle 	to 	the 	facts 	of 	the
prisoner’s case.
Williams, 529 U.S. at 412–13 (O’Connor, J., concurring).3 In applying the
“unreasonable application” clause, the federal court defers to the state
court’s reasoning unless the state court’s application of the governing
legal principle was “objectively unreasonable” in light of the record before
the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542
U.S. 649, 652 (2004).
Section 2254(d) also allows habeas relief for a claim adjudicated on
the merits in state court when that adjudication “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.” 28 U.S.C. §
3 Unless otherwise noted, references to Supreme Court’s Williams case
are to the majority holding, written by Justice Stevens for the Court
(joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer) in
parts I, III, and IV of the opinion (529 U.S. at 367–75, 390–99); and
Justice O’Connor for the Court (joined by Justices Rehnquist, Kennedy,
Thomas, and—except as to the footnote—Scalia) in part II (529 U.S. at
403–13).
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2254(d)(2). As with the “unreasonable application” clause of § 2254(d)(1),
the federal court applies an objective test. See Miller-El v. Cockrell, 537
U.S. 322, 340 (2003).
“The question under AEDPA is not whether a federal court believes
the 	state 	court’s 	determination 	was 	incorrect 	but 	whether 	that
determination 	was 	unreasonable—a 	substantially 	higher 	threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S.
at 410). AEDPA also requires federal courts to “presume the correctness
of state courts’ factual findings unless applicants rebut this presumption
with ‘clear and convincing evidence.’” Landrigan, 550 U.S. at 473–74
(quoting 28 U.S.C. § 2254(e)(1)).
F EDERAL LAW REGARDING I NEFFECTIVE A SSISTANCE OF COUNSEL
The 	Supreme Court 	follows a two-pronged test 	for evaluating
claims of ineffective assistance of counsel. The petitioner must show (1)
his counsel’s performance was constitutionally deficient, and (2) the
deficient performance prejudiced him. Strickland v. Washington, 466
U.S. 	668, 	687 	(1984). 	“First, 	petitioner 	must 	show 	that 	‘counsel’s
representation 	fell 	below 	an 	objective 	standard 	of 	reasonableness.’
Second, petitioner must show that ‘there is a reasonable probability that,
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but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Darden v. Wainwright, 477 U.S. 168, 184 (1986)
(quoting Strickland, 466 U.S. at 694).
The inquiry under 	Strickland’s performance prong is “whether
counsel’s assistance was reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688. Trial counsel is “strongly presumed to have
rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. The burden to
overcome that presumption and to show that counsel’s performance was
deficient “rests squarely on the defendant.” Burt v. Titlow, 571 U.S. 12,
22–23 (2013).
Strickland’s prejudice prong requires a defendant to establish a
“reasonable probability” of a different trial outcome. See Strickland, 466
U.S. at 694. A reasonable probability is one that sufficiently undermines
confidence in the outcome. Id. at 694. “The likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562
U.S. 86, 112 (2011).
“Surmounting Strickland’s high bar is never an easy task.” Padilla
v. Kentucky, 559 U.S. 356, 371 (2010). “Establishing that a state court’s
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application of Strickland was unreasonable under § 2254(d) is all the
more difficult.” Richter, 562 U.S. at 105 (citations omitted).
D ISCUSSION
Ground One 	“Ineffective 	Assistance 	of 	Trial 	Counsel
Violating the 5th, 6th & 14th Constitutional
Amendments” Doc. 16 at 9.
Fitzsimmons alleges that his trial counsel, Daren Shippy, was
ineffective for “fail[ing] to investigate and present Petitioner’s Erectile
Dysfunction (‘E.D.’) medical records” and failing to call an ED expert to
testify 	at 	trial. 	Doc. 	16 	at 	9. 	The 	parties 	agree 	that 	Fitzsimmons
presented this claim to the state courts in a sub-claim of “Ground One” of
his amended Rule 3.850 motion and postconviction appeal. Doc. 16 at 9;
Doc. 30 at 9.
A. 	The State Court’s Decision
The state circuit court denied relief on this claim as follows:
Ground one, the Court will best describe as -- well, I
guess, the title -- ineffective assistance of counsel which is a
list of grievances or second guessing that the defendant would
provide in this case.
The defendant has failed to show evidence of ineffective
assistance of counsel. And, even had he shown evidence of
ineffective assistance, he has failed to show any prejudice in
this case.
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Specifically, Mr. Daren Shippy in this case, the court
finds was effective in that the Court has the very detailed
notes 	that 	have 	been 	redacted. 	Obviously, 	the 	redacted
portions, the Court don’t [sic] know what they say. Those
aren’t relevant to the alleged ineffectiveness. And so Mr.
Shippy did not disclose them, still maintaining the protection
of his client confidences.
However, in those notes and in Mr. Shippy’s testimony,
he talks about the number of witnesses that he talked to,
things he discussed with the defendant regarding the pros
and cons of calling certain witnesses.
The 	Court 	will 	note 	that 	he 	made 	some 	strategic
decisions regarding the case. Specifically, which witnesses to
call and what to bring out. And the Court is not here to second
guess those decisions.
. . . .
The Court will note, as it is in evidence, I am the same
trial judge that tried this case. But, even if I weren’t, looking
at the record, the defense called three separate witnesses to
include the -- the brother of the victim and the -- the defense
showed inconsistent statements.
What ultimately this came down to is a jury of members
of the population of this community made a factual decision.
And, ultimately, that is one this defendant did not agree with.
This 	Court 	is 	not 	going 	to 	second 	guess 	that 	absent
appropriate evidence before the Court which there is none.
Accordingly, I find that Mr. Shippy’s performance, not
only was it not ineffective under Strickland, the Court finds it
to be highly commendable for the immense amount of work
put into this very difficult case by Mr. Shippy.
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And, 	again, 	even 	-- 	even 	had 	there 	been 	some
ineffectiveness, 	this 	Court 	finds 	that 	-- 	that 	there 	is 	no
prejudice to the defendant.
Accordingly, for the reasons stated orally on the record,
I’m going to deny your motion, Mr. Fitsimmons. . . .
Doc. 31-4, Ex. 30 at 420–23. The First DCA affirmed without explanation.
The First DCA’s summary affirmance is an “adjudication on the
merits” of Fitzsimmons’s claim and, therefore, is reviewed under §
2254(d)’s deferential standard. See Richter, 562 U.S. at 99. Because the
First DCA’s decision is unexplained, this court presumes that the First
DCA rejected Fitzsimmons’s claim for the reasons articulated by the state
circuit court. See Wilson v. Sellers, 584 U.S. 122, 125 (2018).
B. 	Fitzsimmons Is Not Entitled to Habeas Relief
The First DCA’s decision is not “contrary to” clearly established
federal law, because the state court identified and applied the Strickland
standard. See Williams, 529 U.S. at 405-06 (interpreting § 2254(d)(1)). To
obtain habeas relief, therefore, Fitzsimmons must show that the state
court’s decision involved an unreasonable application of the Strickland
standard or was based on an unreasonable determination of facts in light
of the evidence in the state-court record. Fitzsimmons fails to make either
showing.
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This court defers to the state court’s factual findings, including its
findings that (1) Attorney Shippy’s evidentiary hearing testimony was
credible and (2) Shippy made a strategic decision to not offer evidence of
Fitzsimmons’s erectile dysfunction. The state court’s factual findings are
amply supported by the state-court record. Fitzsimmons has not rebutted
any finding with clear and convincing evidence to the contrary. Consalvo
v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011); 28 U.S.C. §
2254(e)(1).
Shippy testified that he had been practicing law since 1985. Doc.
31-4, Ex. 29 at 383. Prior to his appointment to Fitzsimmons’s case,
Shippy had tried several capital sexual battery cases. Id. at 384. Shippy
met with Fitzsimmons nine times over the thirteen-month period Shippy
represented Fitzsimmons. 	Id. at 386. Shippy took contemporaneous,
accurate notes at every meeting. Id. at 385. Shippy’s notes were admitted
into evidence at the postconviction evidentiary hearing. Doc. 31-6, Ex. 42.
Pursuant 	to 	Shippy’s 	policy, 	Shippy’s 	initial 	meeting 	with
Fitzsimmons involved a comprehensive discussion of: (1) the charges, (2)
the maximum possible sentences, (3) the probable cause affidavit, (4) the
specific allegations against Fitzsimmons, (5) Fitzsimmons’s response to
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those allegations, and (6) any potential witnesses Fitzsimmons believed
to be relevant. Doc. 31-4, Ex. 29 at 384–85, 388; Doc. 31-6, Ex. 42 at 7.
As 	to 	evidence 	of 	Fitzsimmons’s 	erectile 	dysfunction, 	Shippy
testified—and his notes reflect—that Shippy and Fitzsimmons discussed
the relevance of Fitzsimmons’s medical records, including Fitzsimmons’s
treatment for erectile dysfunction. Doc. 31-4, Ex. 29 at 389–90. Shippy’s
meeting notes state:
Explained to D that I do not intend to use records because
even though they document ED, they also document that D
was prescribed medication for that diagnosis, which could be
interpreted that D wanted sexual contact and was taking
steps to be able to do so. D agrees that this is a possible
interpretation, so we agree to not use the records at trial.
Doc. 31-6, Ex. 42 at 12.
“Because advocacy is an art and not a science, and because the
adversary system requires deference to counsel’s informed decisions,
strategic choices must be respected in these circumstances if they are
based on professional judgment.” Strickland, 466 U.S. at 681. The state
court respected Shippy’s strategic decision—grounded in professional
judgment—to not present evidence of Fitzsimmons’s erectile dysfunction
and treatment. The state court’s deference was not an unreasonable
application of Strickland. See Chandler v. United States, 218 F.3d 1305,
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1316 (11th Cir. 2000) (“When courts are examining the performance of
an experienced trial counsel, the presumption that his conduct was
reasonable is even stronger.”); Day v. Sec’y, Fla. Dep’t of Corr., 859 F.
App’x 875, 879 (11th Cir. 2021) (“It is clearly established that strategic
choices made after thorough investigation of law and facts relevant to
plausible options are “‘virtually unchallengeable.’” (quoting Strickland,
466 U.S. at 690)).
Fitzsimmons has not met § 2254(d)’s high bar for habeas relief.
Thus, Ground One must be denied.
Ground Two 	“Ineffective 	Assistance 	of 	Trial 	Counsel
Violating the 5th, 6th & 14th Constitutional
Amendments” Doc. 16 at 11.
Fitzsimmons alleges that Shippy was ineffective because Shippy
failed to “present relevant evidence” of criminal cases against two other
individuals: Donald Graves (L.G.’s father) and Mike Brown (“Wheelchair
Mike).” Doc. 16 at 11 (identifying State v. Graves, Leon County Circuit
Court 	Case 	No. 	2016-CF-3264). 	Fitzsimmons 	contends 	that 	Shippy
should have used evidence of those criminal cases “to confront . . . L.G.”
Id.
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The parties agree that Fitzsimmons presented this claim to the
state courts in a sub-claim of “Ground One” of his amended Rule 3.850
motion and postconviction appeal. Doc. 16 at 11; Doc. 30 at 9–10.
A. 	The State Court’s Decision
The state circuit court denied this claim for the reasons quoted in
Ground One above, and with these additional remarks:
The 	Court 	finds 	that 	much 	of 	the 	-- 	many 	of 	the
questions 	and 	areas 	wanting 	to 	be 	probed 	into 	by 	Mr.
Fitzsimmons would likely be inadmissible at trial. Whereas,
even 	if 	there 	was 	some 	marginal 	relevance, 	that 	that
relevance would be substantially outweighed under the rule
for evidence 403.
They would -- it would be substantially outweighed by
the danger of confusion and unfair prejudice to the State in
that it would be a trial within a trial regarding allegations of
Wheelchair Mike and Don -- and Don Graves as to M.G. and
what 	occurred 	in 	M.G.’s 	cases 	that 	don’t 	involve 	this
defendant. And, accordingly, even any marginal relevance
that there may have been, the court would have excluded that.
Doc. 31-4, Ex. 30 at 421, 422 in ECF. The First DCA affirmed without
explanation.
The First DCA’s summary affirmance is an “adjudication on the
merits” of Fitzsimmons’s claim and, therefore, is reviewed under §
2254(d)’s deferential standard. Richter, 562 U.S. at 99. Because the First
DCA’s decision is unexplained, this court presumes that the First DCA
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rejected Fitzsimmons’s claim for the reasons articulated by the state
circuit court. Wilson, 584 U.S. at 125.
B. 	Fitzsimmons Is Not Entitled to Habeas Relief
The First DCA’s decision is not “contrary to” clearly established
federal law, because the state court identified and applied the Strickland
standard. 	See 	Doc. 	31-4, 	Ex. 	29 	at 	423. 	To 	obtain 	habeas 	relief,
Fitzsimmons must show that the state court’s decision involved an
unreasonable application of the Strickland standard or was based on an
unreasonable determination of facts in light of the evidence in the state-
court record. Fitzsimmons fails to make either showing.
Again, 	this 	court 	defers 	to 	the 	state 	court’s 	factual 	findings,
including its findings that Shippy’s testimony was credible and that
Shippy made a strategic decision to not offer evidence of the criminal
cases against Donald Graves and “Wheelchair Mike”. The state court’s
findings are amply supported by the state-court record. Fitzsimmons has
not rebutted any factual finding with clear and convincing evidence to
the contrary. Consalvo, 664 F.3d at 845; 28 U.S.C. § 2254(e)(1).
Shippy testified at the state-court evidentiary hearing that he
deposed both L.G. and her sister M.G. Doc. 31-4, Ex. 29 at 399. M.G. was
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the victim identified in Counts 2, 3, 4, 5 and 7 of the charging document.
Id.; see also Doc. 31-2, Ex. 3. Shippy explained how the information he
learned during these depositions led him to decide not to present evidence
about Donald Graves and “Wheelchair Mike”:
A [Shippy] Well, I didn’t always take depositions of child
victim witnesses. One of the things that was of interest in the
case, based upon my conversations with Mr. Fitzsimmons,
was the issue concerning Wheelchair Mike. In part, because
of the similarity of the first names.
And, in advance of taking the deposition, I filed with the
court a motion to allow me to ask specific questions. Because
I was trying to figure out if there was an argument to be made
that the allegations involving Wheelchair Mike overlapped in
any way, shape or form with the allegations made against Mr.
Fitzsimmons.
If they had, I felt there was perhaps a possibility that
we could make an argument related to Wheelchair Mike that
might be of benefit to Mr. Fitzsimmons.
Ultimately, what I learned in L.G.’s deposition is there
was absolutely no overlap between those two which then put
Mr. Wheelchair Mike on the sidelines. And I never felt that
Don Graves’ case was relevant in way, shape or form. . . .
Q [the State] 	With the Don Graves’ case that was because
Ms. L.G. was not alleged to have been molested?
A 	She was not the victim in that case. M.G. was.
. . . .
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Q 	And, as to Wheelchair Mike and anything to do with Don
Graves, did you feel that the jury hearing other possible
molestations would maybe give the victim in this case more
sympathy?
A 	Yeah. One of the things you’re trying to avoid is any
more 	sympathy 	than 	them 	coming 	in 	and 	looking 	and
testifying in a manner that they do. So, yes. But Don Graves,
I couldn’t make that relevant. There just simply was nothing
in that to make that case relevant.
But Wheelchair Mike, based upon when the allegations
occurred, couldn’t make it relevant as well. . . .
Doc. 31-4, Ex. 29 at 399–400, 407–08; see also Doc. 31-6, Ex. 42 at 26
(Shippy Notes); Doc. 31-5, Ex. 39 (L.G. Dep.).
Given the fact that (1) Shippy made a reasoned tactical decision not
to present the evidence at issue and (2) the state court determined as a
matter of state 	law 	that 	evidence 	about 	Wheelchair 	Mike 	and the
criminal 	case 	against 	Graves 	involving 	M.G. 	would 	not 	have 	been
admissible, 	a 	fairminded 	jurist 	could 	agree 	with 	the 	state 	court’s
conclusion that Fitzsimmons failed to establish a Strickland violation.
See Chandler, 218 F.3d at 1316; Pinkney v. Sec’y, Dep’t of Corr., 876 F.3d
1290, 1295, 1297 (11th Cir. 2017); Callahan v. Campbell, 427 F.3d 897,
932 (11th Cir. 2005). Thus, Fitzsimmons is not entitled to habeas relief
on Ground Two.
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Ground Three 	“Ineffective 	Assistance 	of 	Trial 	Counsel
Violating the 5th, 6th & 14th Constitutional
Amendments” Doc. 16 at 11.
Fitzsimmons alleges that Shippy was ineffective for failing to cross-
examine Fitzsimmons’s son, Caleb Fitzsimmons. Doc. 16 at 13. Caleb was
a State’s witness. Doc. 31-3, Ex. 11 at 58–59. Fitzsimmons asserts that
he presented this claim to the state courts in his Rule 3.850 proceeding.
Doc. 16 at 13–14. In state court, Fitzsimmons alleged that Shippy should
have asked Caleb about statements L.G. made to Caleb concerning (1)
L.G. being molested by Wheelchair Mike and (2) M.G. being molested by
Wheelchair Mike and Donald Graves. Doc. 31-4, Ex. 28 at 212 (“Ground
1(c)”).
The State agrees that Fitzsimmons presented this claim to the state
courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion.
Doc. 	30 	at 	10. 	The 	State 	argues, 	though, 	that 	this 	sub-claim 	is
unexhausted and procedurally defaulted because Fitzsimmons “fail[ed]
to 	present 	any 	evidence 	in 	support 	of the 	claim 	at 	his 	rule 	3.850
evidentiary hearing” even though Fitzsimmons had the burden of proof.
Id. The State equates Fitzsimmons’s failure to satisfy his burden of proof
as “effectively abandon[ing] the claim in state court, thus depriving the
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state courts ‘one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review
process.’” Id. at 11 (quoting O’Sullivan, 526 U.S. at 845).
A. 	The State Courts Rejected This Claim on the Merits
The state circuit court did not deem this sub-claim abandoned. Doc.
31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground
One” in its entirety because Fitzsimmons “failed to show evidence of
ineffective assistance of counsel” and “failed to show any prejudice in this
case.” Id. at 420–21. The state circuit court also found, as detailed above,
that Shippy was not ineffective for deciding not to question witnesses or
introduce evidence about L.G.’s alleged abuse by Wheelchair Mike and
M.G.’s abuse by Donald Graves. Id. at 421–23.
Fitzsimmons also raised this claim in his postconviction appeal.
Doc. 31-6, Ex. 46 at 373–74. In response, the State argued that the
postconviction court’s ruling at the conclusion of the evidentiary hearing
resolved all of Fitzsimmons’s claims, and that the postconviction court
did not err in denying any of the ineffective-assistance sub-claims. Doc.
31-6, Ex. 47. The First DCA summarily affirmed.
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The Eleventh Circuit has deemed a claim abandoned during a Rule
3.850 proceeding when (1) the petitioner affirmatively stated at the Rule
3.850 evidentiary hearing that he was not moving forward with the claim;
(2) the state postconviction court confirmed on the record that the
petitioner was abandoning the claim; and (3) the state postconviction
court “specifically found that the claim was abandoned.” See Campbell v.
Jones, 	2017 	WL 	4127621, 	at 	*4 	(11th 	Cir. 	Mar. 	9, 	2017). 	Those
circumstances are not present here.
In comparison, the Eleventh Circuit has deemed a claim to have
been adjudicated on the merits when the state court determined that the
petitioner failed to sufficiently plead or prove facts that establish a
Strickland violation. See Mashburn v. Comm’r, Ala. Dep’t of Corr., 80
F.4th 1292, 1301 (11th Cir. 2023); Owen v. Sec’y for Dep’t of Corr., 568
F.3d 894, 913 (11th Cir. 2009). That is what happened here. The First
DCA’s 	summary 	affirmance 	is 	an 	“adjudication 	on 	the 	merits” 	of
Fitzsimmons’s 	claim 	and, 	therefore, 	is 	reviewed 	under 	§ 	2254(d)’s
deferential standard. See Richter, 562 U.S. at 99.
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B. 	Fitzsimmons Is Not Entitled to Habeas Relief
This claim involves the same issue addressed in Ground Two—
Shippy’s 	failure 	to 	question 	a 	witness 	(here, 	Caleb) 	about 	L.G.’s
purported statements concerning L.G.’s abuse by Wheelchair Mike and
M.G.’s abuse by Donald Graves. For the reasons outlined above, the state
court’s rejection of this claim was not contrary to Strickland, did not
involve an unreasonable application of Strickland, and was not based on
an unreasonable determination of the facts in light of the evidence in the
state-court record. See discussion supra Ground Two, Section B.
It also bears noting that L.G. made statements to Caleb not only
about abuse by Wheelchair Mike, but also about abuse by Petitioner
Fitzsimmons. See Doc. 31-2, Ex. 10 at 92–103 (Mot. Hr’g Tr., Caleb
Fitzsimmons Test.). L.G. told Caleb that she did not want to be alone
with 	Fitzsimmons 	because 	Fitzsimmons 	had 	touched 	L.G.
inappropriately. Id.
Shippy addressed L.G.’s statements to Caleb at the postconviction
evidentiary hearing. Shippy testified that prior to trial the State filed a
Notice 	of 	Intent 	to 	Introduce 	Child 	Hearsay 	which 	included 	the
statements L.G. made to Caleb. See Doc. 31-4, Ex. 29 at 393–96. Shippy
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made a strategic decision to object on the ground that the probative value
of L.G.’s statements to Caleb was substantially outweighed by the danger
of 	unfair 	prejudice 	to 	Fitzsimmons, 	confusion 	of 	the 	issues, 	and
misleading the jury. Id.; see also Doc. 31-5, Ex. 33 (Def.’s Obj. to Child
Hearsay Statements). The trial court granted the defense motion and
ruled that L.G.’s statements to Caleb were inadmissible. Doc. 31-4, Ex.
29 at 395–96; see also Doc. 31-5, Ex. 35 (Order).
At trial, this was the extent of Caleb’s testimony:
Q [Prosecutor] 	And at some point back in February 2017,
was there -- did your girlfriend bring something to your
attention that was concerning to her about L.G.?
A [Caleb Fitzsimmons] 	Yes, she did.
Q 	Based on that, did you also -- without saying what was
said, did you also have a brief conversation with L.G.?
A 	Yes, I did.
Q 	And 	at 	that 	point, 	what 	did 	you 	do 	with 	that
information?
A 	I went to the police with it.
Doc. 31-3, Ex. 11 at 59.
Had Shippy asked Caleb to describe what L.G. told Caleb about
Wheelchair Mike, Shippy would have defied the trial court’s order and
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opened the door to the State asking Caleb to describe L.G.’s inculpatory
statements 	about 	Petitioner 	Fitzsimmons. 	Thus, 	Shippy 	was 	not
unreasonable 	for 	declining 	to 	cross-examine 	Caleb 	about 	the 	prior
statements.
Additionally, 	at 	the 	postconviction 	evidentiary 	hearing 	Shippy
testified that he strategically chose what questions to ask and what not
to ask the State’s witnesses:
Q [the State] 	Is it fair to say that you put a lot of work into
Mr. Fitzsimmons’ case?
A [Shippy] I 	put 	a 	tremendous 	amount 	of 	work 	into 	Mr.
Fitzsimmons’ case.
Q 	The questions you asked, I know, the defendant, in his
motion talks a lot of specifics about what questions that he
wanted you to ask.
Instead 	of 	going 	one-by-one, 	I 	think 	I’m 	going 	to
generally just ask you. The questions that you chose to ask
during trial, did you feel like they were appropriate and
legally sound and that you did the best with what you could
with the evidence before you?
A 	Absolutely. The -- and so the strategy is to take what’s
the most possible evidence that could be introduced in a case
by reviewing it, shrinking it down to as little possible evidence
as you can. And then determining what witnesses are likely
to say. How to cross-examine them to establish what it is you
want 	to 	accomplish 	in 	your 	theme 	of 	the 	case[,] 	or 	the
witnesses who can help you. . . .
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Doc. 31-4, Ex. 29 at 406–07.
Lastly, Fitzsimmons’s claim is based on speculation about how
Caleb would have answered the questions Fitzsimmons proposed. See
Doc. 31-4, Ex. 28 at 212 (Fitzsimmons’s proposed questions); McKiver v.
Sec’y, Florida Dep't of Corr., 991 F.3d 1357, 1365 (11th Cir. 2021) (“[W]e
have held that a petitioner’s own assertions about whether and how a
witness 	would 	have 	testified 	are 	usually 	not 	enough 	to 	establish
prejudice from the failure to interview or call that witness.”).
All of the foregoing underscores the reasonableness of the state
court’s determination that Fitzsimmons failed to establish a Strickland
violation 	regarding 	Shippy’s 	decision 	to 	not 	cross-examine 	Caleb.
Fitzsimmons is not entitled to habeas relief on Ground Three.
Ground Four 	“Ineffective 	Assistance 	of 	Trial 	Counsel
Violating the 5th, 6th & 14th Constitutional
Amendments” Doc. 16 at 15.
Fitzsimmons claims that Shippy was ineffective for “fail[ing] to
present an Alibi Defense.” Doc. 16 at 15. In particular, Fitzsimmons
alleges that Shippy should have (1) “more adequately cross-exam[ed]”
witness Kathy Varnum, and (2) obtained Fitzsimmons’s “bank and phone
records.” Doc. 16 at 15. To clarify, Kathy Varnum was a defense witness,
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not a prosecution witness. See Doc. 31-3, Ex. 11 at 132. Fitzsimmons’s
memorandum explains that the proposed questions and records would
have 	established 	that 	Fitzsimmons 	was 	in 	south 	Florida 	and 	not
Woodville 	between 	June 	2011 	and 	January 	2012. 	Doc. 	16-1 	at 	4.
Fitzsimmons argues that this information would have created reasonable
doubt about the veracity of L.G.’s allegations. Id. Fitzsimmons maintains
that he presented this claim to the state courts in his Rule 3.850
proceeding. Doc. 16 at 16.
The State agrees that Fitzsimmons raised the allegation about
Shippy’s questioning of Varnum in Fitzsimmons’s amended Rule 3.850
motion as Ground 1(g). Doc. 30 at 13. The State argues, though, that this
sub-claim 	is 	unexhausted 	and 	procedurally 	defaulted 	because
Fitzsimmons failed to present any evidence in support of the claim at the
Rule 3.850 evidentiary hearing. Id. at 13–14, 17.
As to the allegation about Shippy failing to present evidence to
support 	an 	“alibi” 	defense, 	the 	State 	asserts 	that 	Fitzsimmons’s
allegations are procedurally defaulted because Fitzsimmons’s Rule 3.850
motion did not put the state court on notice of this specific factual basis.
Doc. 30 at 14–17.
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A. 	The State Courts Rejected This Claim on the Merits
Fitzsimmons’s allegations regarding Shippy’s questioning of Kathy
Varnum are exhausted for the reasons discussed above. See discussion
supra 	Ground 	Three, 	Section 	A. 	Fitzsimmons’s 	failure 	to 	present
evidence on this issue at the Rule 3.850 evidentiary hearing did not
constitute abandonment.
Fitzsimmons’s allegations regarding an “alibi defense” were raised
in Fitzsimmons’s amended Rule 3.850 motion, albeit using different
terminology. In his Rule 3.850 motion, Fitzsimmons faulted Shippy for
failing to challenge the “timeline” of the sexual abuse. Doc. 31-4, Ex. 28
at 221–22. For example, in Ground One, sub-claim (h), Fitzsimmons
alleged that Shippy should have presented evidence and testimony that
Fitzsimmons left his job in Woodville “in mid to late 2011” to go “down
south” and then returned to Woodville “shortly after” L.G.’s family moved
into Fitzsimmons’s Woodville home “beginning of 2012.” Id.; see also Doc.
16-1 at 4 (Pet’r’s Mem. alleging that “between June 2011 thru Jan 2012
Petitioner was down South Florida.”).
The state circuit court denied “Ground One” in its entirety because
Shippy’s “strategic decisions” about “which witnesses to call and what to
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bring out” were reasonable; Fitzsimmons “failed to show evidence of
ineffective assistance of counsel”; and Fitzsimmons “failed to show any
prejudice in this case.” Id. at 420–21, 423. The First DCA summarily
affirmed. The First DCA’s summary affirmance is an “adjudication on the
merits” of Fitzsimmons’s claim and, therefore, is reviewed under §
2254(d)’s deferential standard. See Richter, 562 U.S. at 99.
B. 	Fitzsimmons Is Not Entitled to Habeas Relief
1. 	Varnum Questioning
The state court reasonably applied Strickland when it rejected
Fitzsimmons’s claim that Shippy was deficient for failing to ask Kathy
Varnum certain questions. See Doc. 31-4, Ex. 28 at 219–20. Shippy did,
in fact, ask Varnum questions about her observations of Fitzsimmons and
L.G. 	together, 	and 	whether 	she 	observed 	any 	improper 	touching.
Fitzsimmons’s allegations about how Varnum would have answered
additional questions is purely speculative. See Doc. 31-4, Ex. 28 at 220–
21 (Fitzsimmons’s proposed questions).
2. 	Timeline/Alibi Evidence
For context, Fitzsimmons was charged in Counts 1, 6 and 8 with
sexually abusing L.G. on various occasions over a five-year period:
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“[b]etween September 3, 2009 and December 31, 2014.” Doc. 31-2, Ex. 3.
Attorney Shippy testified that he met with Fitzsimmons and asked
Fitzsimmons where Fitzsimmons lived during the relevant period and
with whom. See Doc. 31-4, Ex. 29 at 389; see also Doc. 31-6, Ex. 42 at 10–
11 (Shippy Notes). Shippy’s strategy was to find witnesses who lived with
Fitzsimmons or L.G.’s family who could testify to matters such as lack of
opportunity, L.G.’s behavior around Fitzsimmons and vice versa. Doc. 31-
4, Ex. 29 at 390–92, 407; see also Doc. 31-6, Ex. 42 at 7, 10. Shippy
developed three witnesses who were favorable to the defense: (1) Kathy
Varnum (Fitzsimmons’s former girlfriend who retired from the Florida
Department of Corrections and lived with Fitzsimmons in his trailer in
Woodville from 2012 to 2014); (2) L.G.’s brother Joe; and (3) L.G.’s aunt
Lisa (Donald Graves’s sister who was close to L.G. and who lived with
L.G.’s family in Fitzsimmons’s home from late 2012 to early 2013, and
lived with Fitzsimmons in his trailer starting in 2015). Doc. 31-3, Ex. 11
at 133–53 (Trial Tr.).
A fairminded jurist could agree with the state court’s decision that
Fitzsimmons failed to establish deficient performance and prejudice
arising from Shippy’s failure to establish—through defense witnesses
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and documentary sources—that Fitzsimmons was absent from Woodville
for a brief, 8-month period (according to Fitzsimmons) from June 2011 to
January 2012. That evidence would not have undermined confidence in
the jury’s verdict that Fitzsimmons sexually abused L.G. during the time
Fitzsimmons admittedly lived in Woodville.
For the reasons set forth above, Fitzsimmons is not entitled to
habeas relief on Ground Four.
Ground Five 	“Trial 	Counsel’s 	Ineffectiveness. 	Counsel’s
performance was deficient when he failed to
advise Petitioner to testify in violation of the
5th, 6th & 14th U.S. Const Amendment” Doc.
16 at 22.
Fitzsimmons alleges that Attorney Shippy was ineffective for (1)
failing to affirmatively advise Fitzsimmons to testify and (2) failing to
discuss “the pros and cons” of Fitzsimmons testifying. Doc. 16 at 22; Doc.
16-1 at 5. Fitzsimmons details what his proposed testimony would have
been. Doc. 16-1 at 5.
The State asserts that Fitzsimmons presented the state courts with
only one aspect of this claim—Shippy’s alleged failure to discuss “the pros
and cons” of Fitzsimmons testifying. Doc. 30 at 17. The allegation that
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Shippy was ineffective for failing to affirmatively advise Fitzsimmons to
testify is procedurally defaulted. Id. at 17–19.
A. 	Fitzsimmons Exhausted Only His Claim that Counsel
Failed to Discuss the “Pros and Cons” of Testifying
Fitzsimmons’s 	amended 	Rule 	3.850 	motion 	asserted 	only 	that
Shippy failed to discuss the “pros and cons” of Fitzsimmons testifying.
Doc. 31-4, Ex. 28 at 225. Fitzsimmons did not include the separate
allegation that Shippy should have affirmatively advised Fitzsimmons to
testify, nor did Fitzsimmons detail what his testimony would have been.
Id. As a result, the state circuit did not consider the latter factual
assertions in ruling on “Ground One” of Weathersbee’s amended Rule
3.850 motion. See Doc. 31-4, Ex. 29 at 416. Fitzsimmons, therefore,
procedurally 	defaulted 	the 	failure-to-affirmatively-advise-to-testify
claim. See Jackson, 42 F.3d at 1355; Kelley, 377 F.3d at 1344–50; see also,
e.g., Wardell v. Sec’y, Fla. Dep’t of Corr., 692 F. App’x 578, 580–81 (11th
Cir. 2017).
B. 	The State Court’s Decision
Fitzsimmons 	raised 	the 	failure-to-advise-about-pros-and-cons”
claim as Ground One, subclaim 1(j) of his amended Rule 3.850 motion.
The state circuit court denied relief on Ground One for these reasons:
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The defendant has failed to show evidence of ineffective
assistance of counsel. And, even had he shown evidence of
ineffective assistance, he has failed to show any prejudice in
this case.
Specifically, Mr. Daren Shippy in this case, the court
finds was effective. . . .
Doc. 31-4, Ex. 29 at 421. The state court’s decision was based on Shippy’s
testimony (which the state court found credible) and Shippy’s notes. Id.
at 420–23. The First DCA affirmed without explanation.
The First DCA’s summary affirmance is an “adjudication on the
merits” of Fitzsimmons’s claim and, therefore, is reviewed under §
2254(d)’s deferential standard. Richter, 562 U.S. at 99. Because the First
DCA’s decision is unexplained, this court presumes that the First DCA
rejected Fitzsimmons’s claim for the reasons articulated by the state
circuit court. Wilson, 584 U.S. at 125.
C. 	Fitzsimmons Is Not Entitled to Habeas Relief
The First DCA’s decision is not “contrary to” clearly established
federal law, because the state court identified and applied the Strickland
standard. See Doc. 31-4, Ex. 29 at 423. To obtain habeas relief, therefore,
Fitzsimmons must show that the state court’s decision involved an
unreasonable application of the Strickland standard or was based on an
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unreasonable determination of facts in light of the evidence in the state-
court record. Fitzsimmons fails to make either showing.
Shippy testified—and his notes reflect—that Shippy discussed the
pros and cons of Fitzsimmons testifying. Doc. 31-4, Ex. 29 at 388–89, 392;
see also Doc. 31-6, Ex. 42 at 14, 18, 24, 26 (Shippy notes). Fitzsimmons
“made a point” of telling Shippy that “he does not do well under pressure.”
Doc. 31-4, Ex. 29 at 388–89. That signaled to Shippy that Fitzsimmons
might not do well testifying and being cross-examined. Id.
Shippy talked to Fitzsimmons “at least three times specifically
about the right to testify and that it was entirely his decision.” Id. at 392.
Shippy and Fitzsimmons discussed Fitzsimmons’s criminal history:
[Shippy] 	He [Fitzsimmons] specifically asked me how much
of his criminal history would come into evidence. And I told
him generally, if he answered the question truthfully, it would
simply be the number of times you’ve been convicted of a
felony.
I said there are times, I’ve seen it happen, you can open
the door and – by saying certain things. And then if the State
feels that they’ve got something they can introduce to impeach
you with then what would have been not admissible becomes
admissible.
And that’s why we talked in detail about his criminal
history and how that may play out. Because he did have a
criminal history that was what you would call relevant to the
allegations in this case.
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Q [the State] 	Because one of his – one of his prior criminal
history actually did include something of a sexual nature?
A 	Yes. There was a carnal knowledge.
Id. at 392; see also Doc. 31-6, Ex. 42 at 14, 18, 24, 26 (Shippy notes).
Shippy also explained to Fitzsimmons that “if [Fitzsimmons] wants his
story told, then that weighs in favor of him testifying.” Doc. 31-6, Ex. 42
at 14. Fitzsimmons decided that he would make the decision about
testifying “after hearing and seeing all of the evidence.” Id.
Just before trial, Shippy “went through again with client how it is
his decision and my thoughts as to how he might consider making that
decision.” Doc. 31-6, Ex. 42 at 24. Shippy explained that Fitzsimmons was
“no different from any other witness and that the process is a Q&A
format.” Id.
Based on Shippy’s testimony and notes, a fairminded jurist could
agree with the state court’s decision that Fitzsimmons failed to establish
deficient performance under Strickland with regard to advice about the
pros and cons of testifying. Fitzsimmons, therefore, is not entitled to
relief on Ground Five.
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Ground Six 	“Trial Counsel’s Ineffectiveness by failing to
object 	to 	the 	State 	providing 	a 	leading
question 	to 	Deputy 	Zimba, 	that 	elicited
inadmissible 	speculation, 	in 	violation 	of
Federal Due Process.” Doc. 16 at 22.
Fitzsimmons alleges that Shippy was ineffective for not objecting to
a “leading” question during the prosecutor’s re-direct of Deputy Zimba.
Doc. 16 at 22; Doc. 16-1 at 5. On direct examination, Zimba testified that
when he was getting preliminary information from L.G., L.G. told Zimba
that Fitzsimmons’s sexual abuse started when L.G. was eight years old
and continued until she was eleven. Doc. 31-3, Ex. 11 at 74. L.G. also
wrote a sworn statement for Zimba. Id. at 75. In the sworn statement,
L.G. stated that Fitzsimmons’s sexual abuse started when she was six
years old through age eleven. Id.
Shippy cross-examined Zimba on that discrepancy:
Q [Shippy] When you spoke with L.G., she told you it began
when she was eight; right?
A [Zimba] Yes, sir.
Q 	When she wrote her statement, she wrote that it started
when she was six; right?
A 	That’s what it’s stating. I don’t -- clarifying, I don’t know
if that was an error on my notes or something maybe she told
me differently. I’m not sure on that.
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Q 	But your memory: She told you it started when she was
eight; right?
A 	Yes, sir.
Id. at 76. Shippy also questioned Zimba about L.G.’s verbal statement
that the abuse stopped in 2014, compared to her written statement that
the abuse stopped sometime in 2015. Id. at 77–78.
On re-direct, the prosecutor asked Zimba:
Q 	When you’re doing a report, that is after you leave the
scene; right?
A 	Yes.
Q 	And you’re doing a report based on the notes that you
have created?
A 	Yeah. Based on -- when I go to a scene, I -- based off
memory and my notepad. I have to write down what I feel is
pertinent to the case, what they tell me. And then when I’m
done, I discard it because I don’t need it anymore. Once it’s
documented, I have no further need to keep it.
Q 	So you don’t do -- you don’t review, like, a body-worn
camera or something and then write your report?
A 	No.
Q 	So is it possible that she -- that eight years old thing was
a mistake?
A 	It’s possible, yeah.
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Q 	And then when it says that it had occurred, you know,
approximately -- it stopped almost two years ago, when she’s
writing this statement, it was February 2017, so two years ago
could have been 2015 or 2014. The end of 2014 would still be
approximately two years ago; right?
A 	Yeah. She didn’t have exact dates.
Id. at 78–79.
Fitzsimmons alleges that the prosecutor’s “is it possible” question
was objectionable under the Florida Evidence Code, Fla. Stat. § 90.612(3),
because it was “leading” and called for speculation. Doc. 16-1 at 5.
Fitzsimmons faults Attorney Shippy for failing to object.
The parties agree that Fitzsimmons presented this claim to the
state courts in a sub-claim of “Ground One” of his amended Rule 3.850
motion and postconviction appeal. Doc. 16 at 22; Doc. 30 at 19.
A. 	The State Court’s Decision
Fitzsimmons raised this allegation as Ground 1(e) of his amended
Rule 3.850 motion. Doc. 31-4, Ex. 28 at 214–15. The state circuit court
denied relief for the reasons quoted in Ground One above, namely,
because Shippy made reasonable strategic decisions during the course of
witness interrogation, and Fitzsimmons failed to establish prejudice from
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Shippy’s failure to object. See quoted text supra Ground One, Section B.
The First DCA affirmed without explanation.
The First DCA’s summary affirmance is an “adjudication on the
merits” of Fitzsimmons’s claim and, therefore, is reviewed under §
2254(d)’s deferential standard. Richter, 562 U.S. at 99. Because the First
DCA’s decision is unexplained, this court presumes that the First DCA
rejected Fitzsimmons’s claim for the reasons articulated by the state
circuit court. Wilson, 584 U.S. at 125.
B. 	Fitzsimmons Is Not Entitled to Habeas Relief
The First DCA’s decision is not “contrary to” clearly established
federal law, because the state court identified and applied the Strickland
standard. Doc. 31-4, Ex. 29 at 423. The First DCA’s decision also was not
an unreasonable application of the Strickland standard.
The trial transcript establishes that during cross-examination of
Deputy 	Zimba, 	Shippy 	successfully 	emphasized 	the 	discrepancies
between L.G.’s verbal and written statements to Zimba. Although Shippy
did not object to the prosecutor’s redirect, Shippy did, during closing
argument, re-emphasize the inconsistencies brought out during Zimba’s
cross-examination. See Doc. 31-3, Ex. 12 at 241–42. Also, Shippy testified
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at the postconviction evidentiary hearing that his actions during the
examination of witnesses were strategic decisions. Doc. 31-4, Ex. 29 at
406–07.
Based on the state-court record, a fairminded jurist could agree
with the state court’s conclusion that Fitzsimmons failed to show that (1)
no reasonable attorney would have chosen Shippy’s strategy, and (2) but-
for Shippy’s failure to object to the “is it possible” question on redirect,
there is a reasonable probability the jury’s verdict would have been
different. Zimba’s answer on redirect was essentially the same as his
testimony on cross-examination—that the discrepancy between L.G.’s
verbal and written statements could have been due to an error in Zimba’s
note-taking.
Because Fitzsimmons fails to meet § 2254(d)’s high bar for habeas
relief, Ground Six must be denied.
Ground Seven 	“Trial 	Counsel’s 	Ineffectiveness 	by 	not
requesting 	the 	proper 	Impeachment 	Jury
Instructions 	in 	violation 	of 	Federal 	Due
Process.” Doc. 16 at 22.
Fitzsimmons alleges that Shippy was ineffective for failing to
request this jury instruction: “that prior inconsistent statements were
only to be considered as being relevant to the credibility of the witness
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impeached and could not be taken as proof or evidence of the defendant’s
guilt.” Doc. 16-1 at 6.
The State agrees that Fitzsimmons presented this claim to the state
courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,
namely Ground 1(k). Doc. 30 at 20. The State argues, though, that this
sub-claim 	is 	unexhausted 	and 	procedurally 	defaulted 	because
Fitzsimmons abandoned it by not presenting evidence in support of the
claim at his Rule 3.850 evidentiary hearing. Id.
A. 	The State Courts Rejected This Claim on the Merits
The state circuit court did not deem this sub-claim abandoned. Doc.
31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground
One” in its entirety because Fitzsimmons “failed to show evidence of
ineffective assistance of counsel” and “failed to show any prejudice in this
case.” 	Id. 	at 	420–21, 	423. 	The 	First 	DCA 	summarily 	affirmed.
Fitzsimmons’s failure to present evidence on this issue at the Rule 3.850
evidentiary hearing did not constitute abandonment. 	See 	discussion
supra Ground Three, Section A.
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B. 	Fitzsimmons Is Not Entitled to Habeas Relief
The state court’s rejection of this claim was neither contrary to, nor
an unreasonable application of, the Strickland standard. At trial, Shippy
advocated for the court to give the very instruction Fitzsimmons now
proposes: that L.G.’s prior inconsistent 	statements were only to be
considered as relevant to her credibility and could not be taken as proof
or evidence of Fitzsimmons’s guilt. See Doc. 31-3, Ex. 12 at 209–10 (Trial
Tr.). The trial court ultimately gave the instruction Shippy requested. Id.
at 210–11. The final jury instruction read:
The evidence that a witness may have made a prior
statement that is inconsistent with her testimony in court
should be considered only for the purpose of weighing the
credibility 	of 	the 	witness’s 	testimony 	and 	should 	not 	be
considered as evidence of proof of the truth of the prior
statement or for any other purpose.
Doc. 31-3, Ex. 12 at 221; see also Fl. St. Cr. J. Inst. 2.13 (same).
Because the record establishes that Shippy requested—and the
trial court gave—the very instruction Fitzsimmons says counsel should
have requested, Fitzsimmons’s ineffective-assistance claim was properly
denied. Fitzsimmons is not entitled to habeas relief on Ground Seven.
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Ground Eight 	“Trial 	Counsel’s 	Ineffectiveness 	by 	not
calling an expert child psychologist to testify
at trial, in violation of Federal Due Process.”
Doc. 16 at 22.
Fitzsimmons alleges that Shippy was ineffective for failing to find
and call a child psychologist to testify about the fact that when L.G.
disclosed abuse by Wheelchair Mike, L.G. did not also disclose abuse by
Fitzsimmons. Doc. 16 at 22; Doc. 16-1 at 6.
The State agrees that Fitzsimmons presented this claim to the state
courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,
namely Ground 1(m). Doc. 30 at 21. The State argues that this sub-claim
is 	unexhausted 	and 	procedurally 	defaulted 	because 	Fitzsimmons
abandoned it by not presenting evidence in support of the claim at his
Rule 3.850 evidentiary hearing. Id.
A. 	The State Courts Rejected This Claim on the Merits
The state circuit court did not deem this sub-claim abandoned. Doc.
31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground
One” 	in 	its 	entirety. 	Id. 	The 	First 	DCA 	summarily 	affirmed.
Fitzsimmons’s failure to present evidence on this issue at the Rule 3.850
evidentiary hearing did not constitute abandonment. 	See 	discussion
supra Ground Three, Section A.
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B. 	Fitzsimmons Is Not Entitled to Habeas Relief
The state court’s rejection of this claim was neither contrary to, nor
an unreasonable application of, the Strickland standard. Shippy testified
at the 	postconviction evidentiary hearing that he made a strategic
decision to narrow the evidence in the case to exclude any mention of
L.G.’s allegations of abuse by Wheelchair Mike. Doc. 31-4, Ex. 29 at 408.
Shippy felt that “there certainly would have been sympathy to the jury
that, oh my gosh, this happened before to her. Under the allegations
happening by Mr. Fitzsimmons that could have gone both ways.” Id. The
state court determined, reasonably, that Shippy’s decisions about which
witnesses to call were reasonable strategic decisions. 	See Waters v.
Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (“Which witnesses, if any,
to call, and when to call them, is the epitome of a strategic decision, and
it is one that we will seldom, if ever, second guess.”)
The 	state 	court 	also 	reasonably 	applied 	Strickland’s 	prejudice
prong. At the state postconviction evidentiary hearing, Fitzsimmons did
not 	call 	or 	submit 	written 	testimony 	from 	a 	child 	psychologist.
Fitzsimmons merely made conclusory allegations in his motion of what
he thought a child psychologist could have said. That is precisely the kind
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of allegation that the Eleventh Circuit has held to be inadequate to
establish 	a 	Strickland 	violation. 	McKiver, 	991 	F.3d 	1357 	at 	1366;
Sullivan v. DeLoach, 459 F.3d 1097, 1108-09 (11th Cir. 2006); Johnson v.
Alabama, 256 F.3d 1156, 1186–87 (11th Cir. 2001) (when a petitioner
“offers only speculation that the missing witnesses would have been
helpful,” instead of providing evidence in support of the claim, the
petitioner has failed to carry his burden to prove ineffective assistance);
see also Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848, 852 (11th Cir.
2016) (denying as speculative ineffective-assistance claim arising from
counsel’s failure to call expert witness).
The state court’s decision was not contrary to or an unreasonable
application of the Strickland standard. Fitzsimmons, therefore, is not
entitled to habeas relief on Ground Eight.
Ground Nine 	“Counsel 	failed 	to 	have 	Petitioner’s
computer analyzed by an Expert in violation
of Federal Due Process.” Doc. 16 at 22.
This claim arises from L.G.’s statements during a CPT interview. A
redacted version of the CPT interview was played for the jury. Doc. 31-3,
Ex. 11 at 87–119. At one point, L.G. said:
L.G.: I remember one time he [Fitzsimmons] tried to make me
watch a video of two teen-agers on his computer.
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MS. SPOTTS [CPT interviewer]: Tell me more about that.
L.G.: The video was going and he was trying to make me
watch it, but I wouldn’t look at it. And he kept trying to turn
my head and said that he knew you wanted -- that I wanted
to watch it, and I didn’t.
MS. SPOTTS: 	Okay. You said it was a video of two teen-
agers?
L.G.: Uh-huh.
MS. SPOTTS: 	How do you know that it was two teen-agers?
L.G.: Because I watched him type it in.
MS. SPOTTS: 	What did he type in?
L.G.: The teen-age -- the P word that I don’t like.
MS. SPOTTS: 	The P word? What’s the P word?
L.G.: I’ll say the letters but I’m not saying the actual word.
MS. SPOTTS: 	Okay.
L.G.: P-o-r-n.
Id. at 113.
Fitzsimmons asserts that Shippy was ineffective for “fail[ing] to
have the computer analyzed by an expert, that would reflected [sic] that
the computer ‘Never’ had Porn on it.” Doc. 16 at 7. Fitzsimmons alleges
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that counsel’s error prejudiced him because it allowed L.G.’s statements
to go “unchallenged.” Id.
The State agrees that Fitzsimmons presented this claim to the state
courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,
namely Ground 1(f). Doc. 30 at 22. The State argues, though, that this
sub-claim 	is 	unexhausted 	and 	procedurally 	defaulted 	because
Fitzsimmons abandoned it by not presenting evidence in support of the
claim at his Rule 3.850 evidentiary hearing. Id.
A. 	The State Courts Rejected This Claim on the Merits
The state circuit court did not deem this sub-claim abandoned. Doc.
31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground
One” in its entirety because Fitzsimmons “failed to show evidence of
ineffective assistance of counsel” and “failed to show any prejudice in this
case.” 	Id. 	at 	420–21, 	423. 	The 	First 	DCA 	summarily 	affirmed.
Fitzsimmons’s failure to present evidence on this issue at the Rule 3.850
evidentiary hearing did not constitute abandonment. 	See 	discussion
supra Ground Three, Section A.
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B. 	Fitzsimmons Is Not Entitled to Habeas Relief
This claim fails for the same reasons Fitzsimmons’s prior claim
about an uncalled expert (a child psychologist) fails. See discussion supra
Ground 	Eight, 	Section 	B. 	Fitzsimmons 	offers 	nothing 	more 	than
conclusory, 	speculative 	allegations 	about 	how 	a 	forensic 	computer
analyst would have testified. Because Fitzsimmons did not provide a
computer 	expert’s 	opinion 	at 	the 	Rule 	3.850 	evidentiary 	hearing,
Fitzsimmons failed to establish that expert testimony on the contents
and search history of the computer would have been favorable to the
defense, much less that there was a reasonable probability of it changing
the outcome of the trial. See McKiver, 991 F.3d at 1366.
The state court’s rejection of this claim was not contrary to, or an
unreasonable application of the Strickland standard. Thus, Fitzsimmons
is not entitled to habeas relief on Ground Nine.
Ground Ten 	“Counsel’s 	Ineffectiveness 	amounts 	to
Cumulative error, in violation of the right to
have a fair trial.” Doc. 16 at 22.
Fitzsimmons alleges that the cumulative effect of counsel’s errors
in Grounds One through Nine deprived Fitzsimmons of a fair trial. Doc.
16 at 22; Doc. 16-1 at 7.
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The State agrees that Fitzsimmons presented this claim to the state
courts in a sub-claim of “Ground One” of his amended Rule 3.850 motion,
namely Ground 1(n). Doc. 30 at 24. The State argues that this sub-claim
is 	unexhausted 	and 	procedurally 	defaulted 	because 	Fitzsimmons
abandoned it by not presenting evidence in support of the claim at his
Rule 3.850 evidentiary hearing. Id.
A. 	The State Courts Rejected This Claim on the Merits
The state circuit court did not deem this sub-claim abandoned. Doc.
31-4, Ex. 29 at 420–23. Rather, the state circuit court denied “Ground
One” in its entirety because Fitzsimmons “failed to show evidence of
ineffective assistance of counsel” and “failed to show any prejudice in this
case.” Id. at 420–21. The First DCA summarily affirmed. Fitzsimmons’s
failure to present evidence on this issue at the Rule 3.850 evidentiary
hearing did not constitute abandonment. See discussion supra Ground
Three, Section A.
B. 	Fitzsimmons Is Not Entitled to Habeas Relief
The Eleventh Circuit has questioned whether a claim of cumulative
error ever can provide a basis for federal habeas relief. See Morris v. Sec’y,
Dep’t of Corr., 677 F.3d 1117, 1132 & n.3 (11th Cir. 2012) (“We need not
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determine today whether, under the current state of Supreme Court
precedent, cumulative error claims reviewed through the lens of AEDPA
can ever succeed in showing that the state court’s decision on the merits
was contrary to or an unreasonable application of clearly established
law.”). Although the Supreme Court has not addressed the applicability
of the cumulative-error doctrine in the context of ineffective-assistance
claims, the Court has held that “there is generally no basis for finding a
Sixth Amendment violation unless the accused can show how specific
errors of counsel undermined the reliability of the finding of guilt.”
United States v. Cronic, 466 U.S. 648, 659 n.26 (1984) (citations omitted).
Fitzsimmons has not shown that the alleged errors of trial counsel
discussed above undermine the reliability of the jury’s finding of guilt. In
light of Cronic and the absence of Supreme Court precedent applying the
cumulative-error doctrine to claims of ineffective assistance of counsel,
the state court’s rejection of Fitzsimmons’s claim was neither contrary to,
nor an unreasonable application of, clearly established federal law.
Fitzsimmons is not entitled to habeas relief on Ground Ten.
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Ground Eleven 	“The State PCR Court Abused its discretion
by denying Appointment of Counsel for the
state court hearing in violation of federal
Due 	Process 	and 	the 	right 	to 	effective
Assistance of Counsel.” Doc. 16 at 22.
Fitzsimmons’s final claim is that the state postconviction court’s
denial 	of 	Fitzsimmons’s 	request 	for 	postconviction 	counsel 	violated
Fitzsimmons’s constitutional rights. Doc. 16 at 22; Doc. 16-1 at 7–8.
The 	parties 	agree 	that 	Fitzsimmons 	exhausted 	this 	claim 	by
requesting counsel for the evidentiary hearing and appealing the state
circuit court’s denial of that request. Doc. 16 at 22; Doc. 30 at 25. The
State asserts that this claim must be denied because (1) the First DCA’s
decision was not contrary to or an unreasonable application of clearly
established federal law; and (2) there is no federal constitutional right to
postconviction counsel. Doc. 30 at 86–92.
“There is no constitutional right to an attorney in state post-
conviction proceedings.” Coleman, 501 U.S. at 752 (citing Pennsylvania
v. Finley, 481 U.S. 551 (1987)); see also Lambrix v. Sec’y, Fla. Dep’t of
Corr., 756 F.3d 1246, 1263 (11th Cir. 2014) (“Longstanding U.S. Supreme
Court precedent holds that a habeas petitioner cannot assert a viable,
freestanding claim for the denial of the effective assistance of state
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collateral counsel in post-conviction proceedings.”); Chavez v. Sec’y, Fla.
Dep’t of Corr., 742 F.3d 940, 944 (11th Cir. 2014).
Because Fitzsimmons’s claim provides no basis for federal habeas
relief, Ground Eleven must be denied.
A CERTIFICATE OF A PPEALABILITY IS N OT WARRANTED
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides: “[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” If a certificate is issued, “the court must state the specific
issue 	or 	issues 	that 	satisfy 	the 	showing 	required 	by 	28 	U.S.C. 	§
2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must
still be filed, even if the court issues a certificate of appealability. See 28
U.S.C. § 2254 Rule 11(b).
“[Section] 2253(c) permits the issuance of a COA only where a
petitioner 	has 	made 	a 	‘substantial 	showing 	of 	the 	denial 	of 	a
constitutional right.’” Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. §
2253(c)). “At the COA stage, the only question is whether the applicant
has shown that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the
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issues presented are adequate to deserve encouragement to proceed
further.” Buck v. Davis, 580 U.S. 100, 115 (2017). “When the district court
denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (emphasis added). Here, Petitioner has not made the
requisite demonstration. Accordingly, the court should deny a certificate
of appealability in its final order.
“Before entering the final order, the court may direct the parties to
submit arguments on whether a certificate should issue.” 28 U.S.C. §
2254 Rule 11(a). If there is an objection to this recommendation, the
relevant party shall file such an objection with the District Court.
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
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1. 	DENY the second amended petition for writ of habeas corpus,
Doc. 16.
2. 	DENY a certificate of appealability.
3. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 5th day of February, 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this report and recommendation waives the
right to challenge on appeal the District Court’s order
based on unobjected-to factual and legal conclusions.
See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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