Barket v. Dixon

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-81407-CV-MIDDLEBROOKS
TODD BARKET,
Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent.
/
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
(28 U.S.C. § 2254)
THIS CAUSE is before the Court upon the pro se Petition for Writ of Habeas Corpus
(“Petition”) (DE 1) brought pursuant to 28 U.S.C. § 2254 by Petitioner Todd Barket (“Petitioner”).
In the Petition, Petitioner challenging his convictions and sentences following a jury verdict for
murder with a deadly weapon and robbery with a deadly weapon entered in State v. Barket, No.
2019CF02897 (15th Jud. Cir.) in and for Palm Beach County, Florida. Respondent concedes the
Petition is timely and the claims raised exhausted in the state courts but argues Petitioner is not
entitled to habeas corpus relief on the merits. (DE 13 at 7, 8–24). I have reviewed the Petition (DE
1), the Response (DE 13) filed by the Respondent, Secretary, Florida Department of Corrections
(the “Respondent” or “State”), Petitioner’s Reply (DE 16) together with the relevant state court
records (DE 14) and transcripts (DE 15).1 For the reasons discussed below, the Petition is
DENIED.
1 The Court takes judicial notice of supporting exhibits filed in this case and information available
on-line in the state court proceedings. See Fed. R. Evid. 201; Nguyen v. United States, 556 F.3d
1244, 1259 n.7 (11th Cir. 2009) (quoting United States v. Glover, 179 F.3d 1300, 1302 n.5 (11th
Cir. 1999) (“A court may take judicial notice of its own records and the records of inferior
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I. BACKGROUND
On April 18, 2019, Petitioner was charged in a two-count indictment with first-degree
murder with a deadly weapon and robbery with a deadly weapon. (DE 14-1, Ex. 1 at 2–3). The
State alleged that on August 24, 1998, Petitioner robbed and killed Sondra Better at her place of
employment, Lu Shay’s Consignment Store in Delray Beach, Florida. (Id., Ex. 2 at 6). Police found
Better lying on the floor in a large pool of blood; nearby there were two heavy decorative balls
that were covered in Better’s blood. (Id.) A third ball was found on a wooden tray inside the store;
latent fingerprints were recovered from the third ball. (Id. at 6–7). Police found an empty box that,
earlier in the day, had contained a cake cutter. (Id.) Police observed that Better appeared to have
suffered blunt force trauma to her head and hands as well as stab wounds to the back of her neck.
(Id. at 6). Blood droplets from a common unknown source were found between the body and the
cash register, inside the cash register drawer, and on the sidewalk outside of the store. (Id.) A
witness who was shopping in the store around closing time on the day of the murder told police
that she saw a white male with light-colored hair in his late 20s or early 30s approximately six feet
tall talking with Better about the price of a couch. (Id. at 7).
In 2018, police submitted the blood DNA to Parabon Nanolabs for phenotype testing,
which revealed that the blood was left by a white male with blond hair. (Id., Ex. 3 at 14). In
January 2019, police were notified that the latent fingerprints recovered from the decorative ball
belonged to Petitioner, who had submitted his fingerprints as a part of an employment background
check in December 2018. (Id., Ex. 2 at 7).
courts.”)). Also, unless otherwise noted, the Court relies on the pagination generated by the Case
Management/Electronic Case Files (“CM/ECF”) system, which appears in the header on all filings.
The notation “DE” refers to the specific docket entry on CM/ECF.
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Through driver’s license records, police confirmed that Petitioner lived in Palm Beach
County at the time of the murder. (Id. at 8). In addition, Petitioner’s driver’s license photos revealed
that he was blond and would have been 29-years old at the time of the murder. (Id.) Petitioner’s
2002 driver’s license photo showed a scar on his face that was not present in his 1997 photo. (Id.,
Ex. 3 at 14).
Police applied for and attained a search warrant for Petitioner’s DNA. (Id., Ex. 3 at 11–
16). Petitioner, through counsel, moved to suppress the DNA evidence seized pursuant to the
warrant, arguing that the warrant affidavit contained material omissions that, if included, would
have defeated probable cause. (Id., Ex. 4 at 18–33). Specifically, Petitioner argued that the affidavit
should have included (1) the spatial separation of the third decorative ball with his fingerprints
from the two other balls that were covered in blood, and (2) the disclaimer of warranties contained
in the terms of service for the phenotype testing by Parabon Nanolabs. (Id. at 28–31). The trial
court denied the motion to suppress, finding that even if the affidavit had included the spatial
distance of the third decorative ball, probable cause existed based on other evidence, and the
disclaimer of warranty by Parabon Nanolabs did not render the results unreliable. (Id., Ex. 5 at 35–
36).
Petitioner proceeded to trial, and testified in his own defense. (DE 15-1, at T. 1052–81).
He admitted to being in Lu Shay’s on the day of the murder and that he took all the money from
the cash register. (Id. at T. 1070–73). Petitioner denied seeing Better or anyone else in the store on
that occasion. (Id. at T. 1075, 1080). Petitioner conceded that his blood was in the store, but he
said that he had no recollection of cutting himself; he speculated that he may have cut himself
earlier while working and reopened the cut when putting his keys in his pocket. (Id. at T. 1078–
79). He also testified that he and his wife went to the store on another occasion about 10 days prior
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to the murder and that he handled one of the three decorative balls on that initial visit. (Id. at T.
1067–68). He testified that the scar on his face was from a dog bite that occurred on September
14, 1997. (Id. at T. 1064–66).
The jury found Petitioner guilty of first-degree murder and robbery. (Id. at T. 1227–28).
Petitioner was sentenced to life in prison. (Id. at T. 1236).
Petitioner appealed his convictions and sentences to the Fourth District Court of Appeal
(“Fourth DCA”) raising the following claim: the trial court erred in allowing the State to introduce
evidence of Petitioner’s DNA found at the scene because the affidavit for search warrant did not
inform the judge that: (1) the decorative ball with Petitioner’s fingerprints was found away from
the body and the other two balls, and, (2) Parabon Nanolabs did not guarantee the reliability of its
results. (DE 14-1, Ex. 6 at 38–57). On October 15, 2020, the Fourth DCA affirmed without a
written opinion. (DE 14-1, Ex. 9). Barket v. State, 304 So. 3d 337 (Fla.4th DCA. 2020).
On March 9, 2021, Petitioner filed a motion for postconviction relief pursuant to Fla. R.
Crim. P. 3.850 (“Rule 3.850 Motion”), which he amended on October 26, 2021. (DE 14-1, Ex. 10
at 100–30). In the Amended Rule 3.850 Motion, Petitioner raised the same twelve grounds of
ineffective assistance of trial counsel that he asserts in his Petition. (Id.)
On February 1, 2024, the trial court entered an Order denying the Amended Rule 3.850
Motion, adopting the facts, legal analysis, and conclusions of law contained in the State’s response.
(DE 14-8, Ex. 13 at 134–39). Petitioner filed a Motion for Rehearing, which was denied by the
trial court on May 15, 2024. (Id., Exs. 14–15, 141–78, 180–82). Petitioner appealed the trial court’s
Order denying the Amended Rule 3.850 Motion. (Id., Ex. 16 at 184–227). On May 8, 2025, the
appellate court per curiam affirmed the trial court’s denial of the Amended Rule 3.850 Motion.
(Id., Ex. 17 at 229). Barket v. State, 410 So. 3d 648 (Fla. 4th D.C.A. 2025).
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C. § 2254 Federal Habeas Corpus Petition
On October 9, 2025,2 Petitioner filed a § 2254 Petition, raising eleven claims of ineffective
assistance of trial counsel and one claim of cumulative error. (DE 1). He argues that trial counsel
was ineffective in failing to:
(1) file a motion to suppress evidence of the cake cutter box;
(2) move for a mistrial or object to the State’s introduction of the cake cutter box;
(3) move for a mistrial or object to misleading/false testimony by State witness
Robert Stevens;
(4) file a motion to suppress evidence of a blood trail;
(5) properly question witnesses about the blood trail and other evidence;
(6) call expert witnesses;
(7) call exculpatory witnesses;
(8) object to false statements by the State during closing statements;
(9) object to the State’s use of a still video rather than a 35mm photograph of
evidence;
(10) use peremptory challenges during voir dire to remove jurors who disclosed
potential bias; and
(11) properly argue the motion for judgment of acquittal.
(Id. at 6–18). In claim 12, Petitioner contends that the above-listed errors by trial counsel,
considered cumulatively, amount to ineffective assistance. (Id. at 18–19).
2 Absent evidence to the contrary, in accordance with the prison mailbox rule, a pro se prisoner’s
filing is deemed filed on the date it is delivered to prison authorities for mailing. Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citing Adams v. United States, 173 F.3d 1339,
1340–41 (11th Cir. 1999)).
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II. PROCEDURAL DEFENSES
A. Statute of Limitations Defense
Respondent explicitly concedes that this federal proceeding was timely instituted because
there was less than one-year untolled during which no postconviction motions were filed. (DE 13
at 7). Although I need not determine whether waiver of the limitations defense is accurate, it
appears that the Respondent’s argument is correct. See 28 U.S.C. §2244(d)(1)–(2); Wood v.
Milyard, 566 U.S. 463, 473 (2012) (citing Day v. McDonough, 547 U.S. 198, 210–11 (2006)).3
Consequently, I will deem the claims raised in the Petition to have been timely filed.
B. Exhaustion Defense
Respondent has also explicitly waived the exhaustion defense, conceding that all claims
raised in the Petition were exhausted in the state forum on direct appeal and during state
postconviction proceedings. (DE 12 at 7). It is axiomatic that issues raised in a federal habeas
corpus petition must have been fairly presented to the state courts and thereby exhausted prior to
their consideration on the merits. See 28 U.S.C. § 2254(b)(1); Preston v. Sec’y, Fla. Dep’t of Corr.,
785 F.3d 449, 457 (11th Cir. 2015) (quoting Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351
(11th Cir. 2012)). Both the factual substance of a claim and the federal constitutional issue itself
must have been expressly presented to the state courts to achieve exhaustion for purposes of federal
habeas corpus review. See Preston, 785 F.3d at 457; Baldwin v. Reese, 541 U.S. 27, 33–34 (2004).
Respondent’s concession regarding exhaustion appears to be warranted, and because Respondent
3 In Wood, the United States Supreme Court held that a district court abuses its discretion by
considering a statute of limitation defense that has been affirmatively waived, as opposed to merely
forfeited. Wood, 566 U.S. at 473; Green v. United States, 735 F. App’x 687, 688 (11th Cir. 2018)
(citing In Re Jackson, 826 F.3d 1343, 1348 (11th Cir. 2016) (citing Day, 547 U.S. at 209–210 and
then Wood, 566 U.S. at 473)).
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has waived this defense, I need not determine whether a precise argument was properly exhausted
and instead will address the merits of the claims below.
III. GOVERNING LEGAL PRINCIPLES
A. Standard of Review
Since this case was filed long-after April 24, 1996, my review of this Section 2254 Petition
is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Abdul–Kabir
v. Quarterman, 550 U.S. 233, 246 (2007); Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016). The AEDPA ensures that federal habeas corpus relief
works to “[g]uard against extreme malfunctions in the state criminal justice systems, and not as a
means of error correction.” See Greene v. Fisher, 565 U.S. 34, 38 (2011); Ledford, 818 F.3d at 642.
The “AEDPA’s statutory scheme is designed to strongly discourage” petitioners from presenting
new evidence and ensures that “[f]ederal courts sitting in habeas are not an alternative forum for
trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”
Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (citations omitted). The AEDPA standard is both
mandatory and difficult to meet. White v. Woodall, 572 U.S. 415, 420 (2014). It 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) (quotation marks and
citation omitted); Lee v. Comm’r, Ala., Dep’t of Corr., 726 F.3d 1172, 1192 (11th Cir. 2013)
(citations omitted). The Eleventh Circuit “has stressed that in applying AEDPA deference federal
courts are not to take a magnifying glass to the state court opinion or grade the quality of it.” See
Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1350 (11th Cir. 2019). Thus, deferential
review under § 2254(d) is generally limited to the record that was before the state court that
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adjudicated the claim on the merits. See Cullen, 563 U.S. at 182; Gill v. Mecusker, 633 F.3d 1272,
1288 (11th Cir. 2011).
Under the AEDPA, a federal court may not grant habeas relief on any claim adjudicated
on the merits in state court unless the state court’s decision (1) “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) “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Harrington v.
Richter, 562 U.S. 86, 97–98 (2011); Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1053
(11th Cir. 2017). “And a state-court adjudication involves an ‘unreasonable application of’ clearly
established federal law if the decision was ‘so obviously wrong that its error lies beyond any
possibility for fairminded disagreement.’” Bowen v. Sec’y, Fla. Dep’t of Corr., 92 F.4th 1328,
1332 (11th Cir. 2024) (quoting Shinn v. Kayer, 592 U.S. 111, 118 (2020)).
Further, for purposes of federal habeas review, “clearly established federal law” consists
of the “[h]oldings, as opposed to the dicta, of [the Supreme Court’s] decisions at the time of the
relevant state court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000); Lee, 726 F.3d at 1192
(citation omitted). “A Supreme Court decision, which is not dictated by precedent or is not made
retroactive to cases on collateral review, handed down after the petitioner’s conviction becomes
final does not control the disposition of the petitioner’s habeas proceeding.” Gary v. Hall, 558 F.3d
1229, 1254 (11th Cir. 2009) (citing Newland v. Hall, 527 F.3d 1162, 1196–1201 (11th Cir. 2008)).
Petitioner bears the burden of establishing his right to federal habeas corpus relief and
proving all of the facts necessary to demonstrate a constitutional violation. See Fillmore v. Perry,
163 F. App’x 819, 820 (11th Cir. 2006) (citing Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.
2001)). Thus, to warrant relief, Petitioner must show that the state court ruling was “[s]o lacking
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in justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Lee, 726 F.3d at 1192 (quoting Harrington, 560 U.S.
at 101–02). An unreasonable application of federal law differs from an incorrect application of
federal law. Renico, 559 U.S. at 773 (citation omitted). Courts “apply this same standard when
evaluating the reasonableness of a state court’s decision under § 2254(d)(2).” Landers v. Warden,
Att’y Gen. of Ala., 776 F.3d 1288, 1294 (11th Cir. 2015) (citations omitted). That is, “[a] state
court’s . . . determination of the facts is unreasonable only if no fairminded jurist could agree with
the state court’s determination . . . .” Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257 (11th Cir. 2012) (citations and internal quotation marks omitted).
Where “[n]o state court has adjudicated the merits of a claim that was properly presented,
‘federal habeas review is not subject to the deferential standard that applies under
AEDPA. . . Instead, the claim is reviewed de novo.’” Reaves v. Sec’y, Fla. Dep’t of Corr., 872
F.3d 1137, 1151 (11th Cir. 2017) (alteration in original) (quoting Cone v. Bell, 556 U.S. 449, 472
2009)). Even where a state court decision “addresses some but not all of a defendant’s claims,”
that decision is an adjudication “on the merits” for purposes of the AEDPA. See Johnson v.
Williams, 568 U.S. 289, 298–99 (2013) (observing some claims may be too insubstantial to merit
discussion). The United States Supreme Court has cautioned that “[f]ederal courts have no
authority to impose mandatory opinion-writing standards on state courts,” and due to the heavy
caseload shouldered by many appellate courts, “[o]pinions issued by these courts must be read
with that factor in mind.” Lee, 726 F.3d at 1212 (quoting Johnson, 568 U.S. at 299–300). In any
event, federal courts are authorized to deny federal relief when the claim is subject to rejection
under de novo review, regardless of whether the AEDPA deference applies. See Berghuis v.
Thompkins, 560 U.S. 370, 390 (2010) (holding federal courts can deny writs of habeas corpus
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under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies,
because a habeas petition will not be entitled to habeas relief if her claim is rejected on de novo
review); Connor v. GDCP Warden, 784 F.3d 752, 767, n.16 (11th Cir. 2015) (“[B]ecause we
conclude that Mr. Connor would not be entitled to habeas relief even under de novo review, we
affirm the District Court’s denial of relief under that standard without resolving whether AEDPA
deference applies.”).
B. Ineffective Assistance of Counsel Principles
Petitioner raises twelve claims of ineffective assistance of counsel which are governed by
the U.S. Supreme Court’s two-pronged test announced in Strickland v. Washington, 466 U.S. 668
(1984). See Dell v. United States, 710 F.3d 1267, 1273 (11th Cir. 2013) (citations omitted). The
Strickland test requires Petitioner to demonstrate that: (1) counsel’s performance was deficient,
and (2) a reasonable probability that the deficiency resulted in prejudice. See Strickland, 466 U.S.
668 at 694. Deficient performance requires Petitioner to demonstrate counsel’s actions were
unreasonable or fell below prevailing professional competence demanded of defense attorneys. Id.
at 688. The Strickland deficiency prong does not require a showing of what the best or good
lawyers would have done, but rather whether some reasonable lawyer could have acted in the
circumstances as defense counsel acted. Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th
Cir. 2007). Even with the benefit of hindsight, where counsel’s decision appears unwise, it will
only be ineffective if it was so unreasonable no attorney would have chosen it. Id. at 1099.
Strickland’s prejudice prong requires Petitioner to establish that, but for counsel’s deficiency, there
is a reasonable probability that the result of the proceeding would have been different. Strickland,
466 U.S. at 694. If Petitioner cannot meet one of Strickland’s prongs, the Court need not address
the other prong. Id. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013).
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Further, when a habeas petitioner alleges that his counsel was ineffective—in violation of
the Sixth Amendment of the Constitution—but also that the ineffectiveness was based on the
failure of counsel to raise a state law claim, federal courts can review whether the state court
properly applied Strickland. Pinkney v. Sec’y, Dep’t of Corr., 876 F.3d 1290, 1295 (11th Cir.
2017). However, the federal habeas court is prohibited from second-guessing any application of
state law that was relevant to the state court’s resolution of the Strickland claim. Id. (“And although
‘the issue of ineffective assistance—even when based on the failure of counsel to raise a state law
claim—is one of constitutional dimension,’ we ‘must defer to the state’s construction of its own
law’ when the validity of the claim that [trial] counsel failed to raise turns on state law.”) (citation
omitted); see also Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005)
(accord) (Where the Florida courts “[a]lready ha[ve] told us how the issues would have been
resolved under Florida state law had [trial counsel] done what [petitioner] argues he should have
done,” “[f]ederal habeas courts should not second-guess them on such matters.”). Finally, bare and
conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977); Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d
1320, 1333–34 (11th Cir. 2012).
IV. DISCUSSION
A. Counsel’s Failure to File Motion to Suppress
In claim 1, Petitioner asserts that trial counsel was ineffective for failing to file a motion to
suppress evidence related to the cake cutter box based on allegations of false testimony by law
enforcement and evidence tampering. (DE 1 at 6–7). Respondent argues that Petitioner’s claim is
conclusory and speculative because he does not allege any facts to support a claim that tampering
occurred. (DE 13 at 12–14).
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Other than Petitioner’s self-serving allegations, there is no evidence that the cake cutter
box was corrupted in some way. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)
(recognizing that vague, conclusory, speculative, or unsupported claims cannot support ineffective
assistance of counsel claim). Furthermore, trial counsel did not ignore potential shortcomings in
the investigation and collection of the cake cutter box; he pointed out to the jury that there was no
picture of the box at the scene. (DE 15-1 at T. 300–01, 1145–48). He also questioned the officer
who took the box into evidence about the lack of a marker and photograph showing the box with
a blood drop at the scene. (Id. at T. 606–07). Petitioner cannot establish deficient conduct by
challenging his attorney’s strategic choice to highlight the shortcomings of the investigation and
processing of the cake cutter box rather than moving to suppress it altogether. See Green v. Nelson,
595 F.3d 1245 (11th Cir. 2010) (distinguishing between a tactical decision to not move to suppress,
which is not deficient conduct, and a failure to move to suppress based lack of understanding the
law and evidence, which can be deficient conduct).
Finally, even if trial counsel could have shown that the cake cutter box was opened, closed
or moved during the investigation, as Petitioner now alleges, there is no record evidence to negate
the existence of Petitioner’s blood inside the box, particularly in light of his admission that he was
at the scene and bleeding. (DE 15-1 at T. 1078–79, 1086–88). Accordingly, Petitioner cannot
show that had trial counsel filed a motion to suppress the cake cutter box that the trial court would
have granted the motion. Thus, even if the Court presumes that failure to file the motion was
deficient conduct, Petitioner cannot establish Strickland prejudice. Consequently, the state court’s
decision was not contrary to, nor did it involve an unreasonable application of clearly established
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
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presented. Accordingly, claim 1 is DENIED as the State court’s rejection of this claim in the Rule
3.850 proceeding was not an unreasonable application of Strickland.
B. Counsel’s Failure to Object to Introduction of Cake Cutter Box or Move for Mistrial
upon its Introduction
In claim 2, Petitioner asserts that trial counsel was ineffective for failing to object or move
for mistrial when the cake cutter box was introduced into evidence, resulting in loss of the ability
to raise the issue on appeal. (DE 1 at 8–9). Respondent argues that Petitioner cannot establish
Strickland prejudice through failure to preserve an issue for appeal. (DE 13 at 14). Additionally,
Respondent argues that because there was no evidence of tampering, there is no likelihood that an
objection to the introduction of the item would have been sustained or a motion for mistrial on this
basis would have been granted. (Id. at 15).
The record shows that trial counsel used the failures of the investigators to cast doubt on
the State’s case by repeatedly emphasizing to the jury how the law enforcement failed to mark and
photograph the box and by pointing out that it is the only instance of a blood droplet that is not
photographed. (DE 15-1 at T. 1145–47). In other words, Petitioner cannot show that his attorney
was ineffective because he did not appreciate the inconsistencies in the treatment of the cake cutter
box at the scene and in the procedures used in taking it into evidence. At most, Petitioner has
shown that his attorney made a tactical decision to undercut the validity of the evidence by
demonstrating a sloppy investigation rather than attempting to exclude the evidence completely.
Such a tactical decision cannot be deficient performance. See Bates v. Sec’y, Fla. Dep’t of Corr.,
768 F.3d 1278, 1295 (11th Cir. 2014) (holding that a lawyer’s decision on whether to “object—
and when, and in what form—are tactical choices consigned by Strickland to a lawyer’s reasoned
professional judgment.”).
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Furthermore, Petitioner’s speculation about how the box was found at the scene and taken
into evidence by law enforcement is not sufficient to establish that an objection or motion for
mistrial would have been successful. This is particularly true here because, on cross-examination,
Petitioner admitted that his blood was found inside the cake cutter box and he had no explanation
for how it came to be there. (DE 15-1 at T. 1086). Therefore, even if Petitioner could establish that
it was unreasonable for trial counsel to not object or move for a mistrial when the cake cutter box
was introduced, he cannot show a reasonable probability that the outcome of the proceeding would
have been different had his counsel done so.4 Accordingly, the state court’s decision was not
contrary to, nor did it involve an unreasonable application of clearly established federal law, nor
was it based on an unreasonable determination of the facts in light of the evidence presented.
Therefore, claim 2 is DENIED as the State court’s rejection of this claim in the Rule 3.850
proceeding was not an unreasonable application of Strickland.
C. Counsel’s Failure to Move for a Mistrial or Object to Misleading/False
Testimony by State Witness Robert Stevens
In claim 3, Petitioner argues that trial counsel was ineffective for failing to move for a
mistrial or object to the misleading and false testimony of former Delray Beach Police Detective
Robert Stevens describing a “blood trail” at the scene. (DE 1 at 10). Petitioner contends that
counsel’s failure prevented him from raising the issue on appeal. (Id.) Respondent argues that
4 Respondent is correct that Petitioner cannot establish prejudice by arguing that an alleged error
was not preserved for appeal. “The Supreme Court in Strickland told us that when the claimed
error of counsel occurred at the guilt stage of a trial (instead of on appeal) we are to gauge prejudice
against the outcome of the trial: whether there is a reasonable probability of a different result at
trial, not on appeal.” Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006) (citing Strickland, 466
U.S. at 694–95.
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Detective Stevens’s testimony, viewed in its entirety, fairly characterized where blood was found
throughout the store. (DE 13 at 16–17).
First, Petitioner has made no showing that the Stevens’s testimony was false or misleading.
During direct examination, Stevens described the blood evidence as follows:
Q: To your knowledge, was there some DNA collected at the scene?
A: Yes.
Q: And what type of DNA would it have been and from where, if you recall?
A: There was a blood evidence trail that led from where Miss Better was in
the store to the cash register and then out the front door and there was some
in the parking lot.
(DE 15-1 at T. 779). Petitioner argues that “no blood trail of any sort, in any direction originates
at the victim. No blood was found in the parking lot. Only blood matching the Petitioner found at
the scene was located at three discrete locations, none of which were near or around or leading too
[sic] or from the victim.” (DE 1 at 10). During cross examination, trial counsel elicited clarification
from Detective Stevens about the blood collected from the scene:
Q: And there were a lot of blood samples that were collected from the scene,
correct?
A: Yes
Q: From kind of all over the scene, right?
A: In the area where the crime of violence occurred to the cash register and out
the front door.
***
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Q: And you want the lab to test everything because you had multiple blood
drops and there could be -- belong to multiple people?
A: Yes. The blood drops that were important were the ones that led from where
the -- where the crime occurred to the cash register and out the front door.
That would have been the person that we believed was casting off blood as
they fled the store.
(DE 15-1 at T. 802, 804–05). Detective Stevens is describing the collection of DNA evidence at
the scene and explaining why it was more important for blood to be collected from certain areas
rather than others. He does not offer any testimony about where Petitioner’s DNA was located.
Therefore, Petitioner has not shown trial counsel’s performance was deficient in not objecting to
or moving for a mistrial in relation to Detective Steven’s testimony.
Furthermore, Petitioner’s only allegation of prejudice is that the challenge to Stevens’s
testimony could not be raised on appeal, which is insufficient to establish Strickland prejudice.
Purvis, 451 F.3d at 739. Petitioner makes no allegation that the outcome of his trial would have
been different had trial counsel objected to or moved for a mistrial based on Stevens’s testimony
regarding the blood evidence. Importantly, Petitioner admits his blood was located at precise
locations around the scene. (DE 15-1 at T. 1078–79, 1086–88). And trial counsel emphasized to
the jury during closing arguments that there was no evidence of Petitioner’s blood near Ms.
Better’s body. (Id. at T. 1145). Therefore, even if Petitioner could show that Detective Steven’s
testimony about the blood evidence was false or misleading, there is no likelihood that the jury
would have reached a different verdict in this case. Accordingly, the state court’s denial of this
claim was not contrary to, nor did it involve an unreasonable application of clearly established
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
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presented. Therefore, claim 3 is DENIED as the State court’s rejection of this claim in the Rule
3.850 proceeding was not an unreasonable application of Strickland.
D. Counsel’s Failure to File a Motion to Suppress the Evidence of Blood Trail
In claim 4, Petitioner argues that trial counsel failed to move to suppress Detective
Stevens’s false testimony about where blood was found and collected. (DE 1 at 11). Respondent
argues that Detective Stevens’s testimony regarding blood at the scene and its collection was
neither false nor misleading. (DE 13 at 17). Additionally, Respondent contends that Petitioner
cannot demonstrate prejudice because even if Stevens’s testimony about the blood evidence had
been excluded from the trial, there is no reasonable probability of a different outcome. (Id.)
I have already determined that Petitioner failed to show that Stevens’s testimony about the
blood evidence was false or misleading. See supra Section IV.C. At most, Petitioner has raised a
disagreement with Stevens’s characterization of the blood found at the scene as a “trail.”
Nevertheless, Petitioner admitted that he was bleeding while he was in the store and that his blood
was found in specific locations at the scene (DE 15-1 at T. 1078–79, 1086–88). Moreover,
Stevens’s testimony was not focused solely on where Petitioner’s DNA was found at the scene. In
short, Petitioner has offered no grounds upon which trial counsel could have based a motion to
suppress Detective Stevens’s description of blood found at the scene. Therefore, he cannot
demonstrate deficient performance in electing to not file an unsupportable motion. See Freeman
v. Attorney Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient for failing
to raise a meritless claim.”)
As to the prejudice prong, Petitioner makes no specific allegations of prejudice. Eyewitness
testimony and Petitioner’s admission place him at the scene within minutes of Ms. Better’s murder.
(DE 15-1 at T. 367–71, 1070–71). Petitioner admits that he stole money from the cash register.
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(Id. at T. 1072–74). There was evidence of defensive wounds on Ms. Better’s hands. (Id. at T.
722–23). Petitioner admitted that he bled at the scene. (Id. at T. 1078–79). Even without Detective
Stevens’s testimony describing blood at the scene and its collection, the evidence was sufficient
for the jury to find Petitioner guilty beyond a reasonable doubt. See Bates v. Sec’y, Fla. Dep’t of
Corr., 768 F.3d 1278, 1300 n.9 (11th Cir. 2014) (“The overwhelming evidence of [ ] guilt also
makes it obvious that [the petitioner] cannot show Strickland prejudice.”) Because there is no
likelihood that the jury would have reached a different verdict in this case even had Detective
Stevens’s testimony about the blood evidence been absent, Petitioner has not established
Strickland prejudice. Accordingly, the state court’s denial of this claim was not contrary to, nor
did it involve an unreasonable application of clearly established federal law, nor was it based on
an unreasonable determination of the facts in light of the evidence presented. Therefore, claim 4
is DENIED as the State court’s rejection of this claim in the Rule 3.850 proceeding was not an
unreasonable application of Strickland.
E. Counsel’s Failure to Properly Question Witnesses about Evidence at the Scene
In claim 5, Petitioner argues that trial counsel failed to sufficiently questions witness in
order to clarify for the jury inconsistent testimony, contradictory testimony, and lapses in crime
scene procedures. (DE 1 at 12–13). Respondent argues that Petitioner’s claims of false testimony
and manufactured evidence are belied by the record. (DE 13 at 18). Respondent further argues that
there is no reasonable probability that additional efforts by trial counsel to challenge the evidence
collection procedures at the scene would have altered the outcome of this case. Id.
The only specific evidence Petitioner mentions in this claim is the blood found in the cake
cutter box. (DE 1 at 12). Crime scene investigator Robert Held testified regarding the blood droplet
found inside the cake cutter box; he stated that he collected the entire box as well as cut out the
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piece of cardboard containing the blood droplet. (DE 15-1 at T. 536–39). That piece of cardboard
was introduced into evidence as the State’s Exhibit 9. (Id. at T. 535). Held testified that he found
a drop of blood on the tabletop underneath the cake cutter box. (Id. at T. 536–37). During cross-
examination of Held, trial counsel elicited his concession that he did not photograph or place an
evidence marker by the cake cutter box or the blood inside and underneath it. (Id. at T. 607–08).
Trial counsel further elicited that Held did not process the outside of the box for DNA. (Id. at T.
608). While Petitioner continues to emphasize that crime scene investigators should have
photographed the box at the scene, Petitioner fails to explain what additional questions trial counsel
should have asked about the box and the blood underneath it or how counsel could have shown
that the evidence was somehow tainted. Thus, Petitioner has not shown deficient conduct.
Furthermore, Petitioner has not shown any probability that additional questions by trial
counsel regarding the cake cutter box and the blood found under and inside of it would have altered
the outcome of the trial. As explained above, other evidence established that Petitioner was on the
scene around the time of the murder, the victim had defensive wounds on her hands, Petitioner
was bleeding, he left blood droplets in three locations at the scene, and he stole all the cash from
the cash register. See supra Section IV.D. Therefore, even if trial counsel could have questioned
witnesses further to somehow convince the jury that the cake cutter box and the associated blood
was tainted, the remaining evidence was sufficient for the jury to find Petitioner guilty beyond a
reasonable doubt. Accordingly, the state court’s denial of this claim was not contrary to, nor did it
involve an unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination of the facts in light of the evidence presented. Therefore, claim 5 is
DENIED as the State court’s rejection of this claim in the Rule 3.850 proceeding was not an
unreasonable application of Strickland.
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F. Counsel’s Failure to call Expert Witnesses
In claim 6, Petitioner argues that trial counsel was ineffective because he failed to call
expert witnesses in the field of forensics, anthropology, medical trauma, and crime scene analysis
and procedure. (DE 1 at 13–14). Petitioner further contends that trial counsel improperly relied on
the State’s expert witnesses. (Id. at 13). Respondent argues that Petitioner cannot establish
deficient conduct by second guessing trial counsel’s strategic decision about whether to retain
defense expert witnesses. (DE 13 at 19). Respondent further argues that Petitioner cannot establish
Strickland prejudice because he failed to name a single expert witness, show that witness’
availability, explain the content of that witness’ proposed testimony, and demonstrate that the
proposed testimony would be favorable to the defense. (Id.)
The gravamen of Petitioner’s claim is that Detective Stevens testified falsely, but as
discussed above, Petitioner has not established that any testimony given by Stevens was false. See
supra Section IV.C. Additionally, Petitioner offers only his own speculation that some unnamed
defense expert witnesses would have testified that crime scene investigators failed to follow
standard operating procedures regarding evidence collection and preservation, that none of
Petitioner’s DNA was found near the victim, that his fingerprints were not found on the marble
balls that were used to bludgeon Ms. Better, and that “it was physically impossible for the
Petitioner to physically assault and murder the victim due to spatial distances between the victim
and the Petitioner.” (DE 1 at 13).
“A decision whether to call a particular witness is generally a question of trial strategy that
should seldom be second guessed.” Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004);
see also Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Merely pointing to additional
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evidence “that could have been presented” is not enough to show counsel performed deficiently.
Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1324 (11th Cir. 2002).
Moreover, establishing Strickland prejudice stemming from counsel’s failure to call a
witness requires Petitioner to name the witness, demonstrate the witness was available to testify
and would have done so, set out the content of the witness’ proposed testimony, and show the
testimony would have been favorable to a particular defense. See Woodfox v. Cain, 609 F.3d 774,
808 (5th Cir. 2010) (holding that to demonstrate prejudice on an uncalled witness claim, a
petitioner must by “name the witness, demonstrate that the witness was available to testify and
would have done so, set out the content of the witness’ proposed testimony, and show that the
testimony would have been favorable to a particular defense.”) (quoting Day v. Quarterman, 566
F.3d 527, 538 (5th Cir. 2009); see also Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 1262
(11th Cir. 2014) (holding habeas petitioner who failed to show an uncalled witness was available
to testify at the time of trial failed to satisfy prejudice prong of Strickland). Petitioner has not
named any witness, much less shown availability or how the testimony would have benefited his
defense. Accordingly, the state court’s denial of this claim was not contrary to, nor did it involve
an unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented. Therefore, claim 6 is DENIED as the
State court’s rejection of this claim in the Rule 3.850 proceeding was not an unreasonable
application of Strickland.
G. Counsel’s Failure to Call Exculpatory Witnesses
In claim 7, Petitioner argues that trial counsel was ineffective for failing to call exculpatory
witnesses, specifically, his wife and two neighbors, to establish that the scar on his face was from
a dog bite and that he did not suffer any noticeable cuts or lacerations on or around the date of the
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murder. (DE 1 at 14). Respondent argues that any testimony about the dog bite would have been
cumulative to the evidence the defense presented. (DE 13 at 20–21).
As noted above, deciding which witnesses to call is part of trial strategy and not subject to
hindsight review. Conklin, 366 F.3d at 1204. More importantly, however, Petitioner cannot
establish Strickland prejudice to the extent that he argues that trial counsel should have called more
witnesses about the dog bite injury. See Glock v. Moore, 195 F.3d 625, 636 (11th Cir. 1999)
(finding that, “where much of the new evidence that [petitioner] presents is merely repetitive and
cumulative to that which was presented at trial,” petitioner could not show prejudice), cert. denied,
531 U.S. 890 (2000). During Petitioner’s trial, his counsel called as a witness the member of the
defense team who located a record of the dog bite incident with Animal Care and Control; that
record was introduced into evidence as Defendant’s Exhibit 19. (DE 15-1 at T. 1048–50). In
addition, trial counsel elicited a more fulsome explanation of the dog bite incident from Petitioner
during his own testimony. (Id. at T. 1064–66). Therefore, further testimony about the dog bite
incident would have been cumulative.
Likewise, Petitioner cannot demonstrate that his counsel acted unreasonably in not calling
his wife to testify that Petitioner did not suffer any noticeable cuts or lacerations around the time
of the murder. First, effective assistance does not require counsel to present all mitigation evidence
even if the additional evidence would not have been incompatible with counsel’s strategy.
Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir. 2000). Second, the testimony Petitioner
now suggests his lawyer should have elicited would have been directly contrary to Petitioner’s
own admission that his blood was in the store and his supposition that he was bleeding from a cut
when he was in the store on the day of the murder. (DE 15-1 at T. 1078–79). Finally, Petitioner
has shown no likelihood of a different result in the outcome of his trial had his wife testified that
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he had no noticeable lacerations at the time of the murder. Accordingly, the state court’s denial of
this claim was not contrary to, nor did it involve an unreasonable application of clearly established
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented. Therefore, claim 7 is DENIED as the State court’s rejection of this claim in the Rule
3.850 proceeding was not an unreasonable application of Strickland.
H. Counsel’s Failure to Object to the State’s Closing Argument
In claim 8, Petitioner argues that trial counsel was ineffective for failing to object to false
statements made by the State in closing arguments. (DE 1 at 15–16). Specifically, Petitioner claims
that the State argued to the jury that Petitioner manufactured his testimony to fit the evidence
contained in the discovery materials turned over to the defense, which should have triggered an
objection by trial counsel because he was aware that Petitioner had been denied access to the
discovery package. (Id. at 15). Respondent argues that Petitioner’s claim cannot satisfy either
prong of Strickland because defense counsel had no good faith basis to object to the argument and
that there was no reasonable probability such an objection would have been sustained. (DE 13 at
21).
Petitioner has not provided a citation to the statement made during closing argument to
which he argues his counsel should have objected. A review of the State’s closing argument does
not include any allegation that Petitioner “manufactured” his testimony to fit the discovery
materials. (DE 15-1 at T. 1105–30, 1161–70). During closing arguments, the State, at most,
suggested that Petitioner did not testify honestly. (Id. at T. 1108, 1116–17, 1127). During cross-
examination of Petitioner, the State elicited his concession that he reviewed the discovery package
with his attorneys. (Id. at T. at 1092). But there simply is no allegation during closing arguments
that Petitioner manufactured his testimony to fit the State’s evidence that he reviewed with his
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attorneys. In sum, Petitioner has not shown that there was valid basis for trial counsel to object to
any statement made by the State in closing arguments, thus he has not established that trial
counsel’s performance was deficient. See Denson v. United States, 804 F.3d 1339, 1342 (11th Cir.
2015) (“Failing to make a meritless objection does not constitute deficient performance.”)
Furthermore, Petitioner cannot establish Strickland prejudice because the trial court instructed the
jury that what the lawyers say in closing arguments is not evidence and that the decision of whether
the State proved Petitioner guilty beyond a reasonable doubt must be based on evidence alone.
(DE 15-1 at T. 271, 1205). See United States v. Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997)
(“[A]ny possible prejudice to [defendant] resulting from the prosecutor’s closing argument was
cured by instructions from the district judge that the lawyers’ arguments were not evidence and
that the jury was to decide the case solely on the evidence presented at trial.”). Accordingly, the
state court’s denial of this claim was not contrary to, nor did it involve an unreasonable application
of clearly established federal law, nor was it based on an unreasonable determination of the facts
in light of the evidence presented. Therefore, claim 8 is DENIED as the State court’s rejection of
this claim in the Rule 3.850 proceeding was not an unreasonable application of Strickland.
I. Counsel’s Failure to Object to False Evidence
In claim 9, Petitioner argues that trial counsel was ineffective for failing to object to false
evidence presented by the State. (DE 1 at 16–17). Specifically, Petitioner points to a video still
shot of the cake cutter box, alleging that the State falsely argued that it had the same evidentiary
value as a dedicated 35 mm photograph. (Id. at 16). Respondent argues that there is no merit to
Petitioner’s claim that the blow-up of the video still shot of the cake cutter box was “false” and
points to trial counsel’s efforts to challenge the police witnesses about the crime scene and any
inconsistencies. (DE 13 at 22).
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Petitioner has offered no basis for an objection to the video still shot on the grounds that it
is not a 35 mm photograph. Under Florida’s evidence code, “Photographs” include still
photographs, X-ray films, videotapes, and motion pictures.” Fla. Stat. Ann. § 90.951(2). There is
nothing prejudicial about introducing still photographs taken from the videos. Smith v. Geico Cas.
Co., 127 So. 3d 808, 811 (2d Fla. DCA 2013). Furthermore, Petitioner has not explained why he
contends that the evidence was “false.” Testimony at trial established who took the video and
confirmed that it accurately represented the crime scene. (DE 15-1 at T. 444–45, 520–22, 554).
Finally, trial counsel made it clear to the jury that there was no traditional 35 mm photograph of
the cake cutter box: during cross-examination, trial counsel elicited crime scene investigator
Held’s concession that he never took a photo of the box or placed a marker near it. (Id. at T. 606–
07). Again, in closing argument, trial counsel reminded the jury that there was no dedicated
photograph of the cake cutter box and that instead the State offered a still shot derived from the
video panning over the box. (Id. at T. 1146). Thus, Petitioner has not demonstrated deficient
conduct by his trial counsel in not objecting to the still shot derived from the video.
Furthermore, Petitioner cannot establish Strickland prejudice because, even if the still shot
had not been allowed into evidence, the jury viewed the entire video twice. (Id. at T. at 522, 1223–
24). Thus, they saw the cake box cutter in situ. There is nothing to indicate any reasonable
probability that the jurors would have reached a different verdict had they not seen the blow-up
still shot taken from a video, which they viewed in its entirety. Nor would the absence of the still
shot from the video have prevented the State from introducing the DNA evidence the collected
from inside the box. Accordingly, the state court’s denial of this claim was not contrary to, nor did
it involve an unreasonable application of clearly established federal law, nor was it based on an
unreasonable determination of the facts in light of the evidence presented. Therefore, claim 9 is
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DENIED as the State court’s rejection of this claim in the Rule 3.850 proceeding was not an
unreasonable application of Strickland.
J. Counsel’s Failure to Use Peremptory Challenges to Remove Potentially Biased Jurors
In claim 10, Petitioner argues that trial counsel was ineffective because he failed to utilize
peremptory challenges during voir dire with respect to two jurors who disclosed close relatives
employed by law enforcement. (DE 1 at 17). Respondent argues that Petitioner has not shown
deficient conduct as it relates to the composition of the jury. (DE 13 at 23). Respondent further
argues that Petitioner cannot demonstrate a reasonable probability that the outcome of his trial
would have been different had trial counsel exercised peremptory strikes differently. (Id.)
Petitioner does not identify the two jurors he claims were related to law enforcement
officers. During voir dire, the only potential juror to acknowledge a familial relationship to
members of law enforcement was potential juror Palmer. (DE 15-1 at T. 218–19). She stated that
her father-in-law, her brother, and her brother-in-law were employed as law enforcement officers
and that, because of the oath they took as officers, she would find them more credible than a lay
witness. (Id. at T. 219). When asked by the trial judge whether she would be able to listen to all
the witnesses and treat them equally, however, she agreed that she could and would do that. (Id.,
T. at 219–20).
A juror is competent under Florida law if he or she “can lay aside any bias or prejudice and
render his verdict solely upon the evidence presented and the instructions on the law given to him
by the court.” Carratelli v. State, 961 So.2d 312, 324 (Fla. 2007). Because. Palmer stated that she
would put aside her predisposition to believe law enforcement witnesses in the courtroom setting
and listen to and evaluate all witnesses equally, Petitioner cannot show that trial counsel performed
deficiently by not exercising a peremptory strike on Palmer. Similarly, Petitioner cannot
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demonstrate Strickland prejudice stemming from the jury selection because he has made no
showing that any juror on the panel was actually biased against him. See Rogers v. McMullen, 673
F.2d 1185, 1189 (11th Cir. 1982) (defendant’s Sixth Amendment right to a fair and impartial jury
not violated absent a showing that a jury member hearing the case was actually biased against
him). Accordingly, the state court’s denial of this claim was not contrary to, nor did it involve an
unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented. Therefore, claim 10 is DENIED as
the State court’s rejection of this claim in the Rule 3.850 proceeding was not an unreasonable
application of Strickland.
K. Counsel’s Failure to Properly Argue the Motion for Judgment of Acquittal
In claim 11, Petitioner argues that his trial counsel failed to properly argue for a judgment
of acquittal. (DE 1 at 18). Specifically, Petitioner contends that trial counsel “failed to argue
multiple points on record that proved state failed to meet its burden of proof and failed to prove
elements of both charges. Evidence provided by the State was circumstantial, false, or in some
cases exculpatory.” (Id.). Respondent argues that the record demonstrates that trial counsel made
appropriate arguments for judgment of acquittal but that the evidence against Petitioner was
sufficient to allow the case to be decided by the jury. (DE 13 at 23).
Trial counsel argued that because the State’s case was purely circumstantial, Petitioner was
entitled to judgment of acquittal because the State did not rebut his hypothesis of innocence
premised on the lack of evidence that Petitioner was ever near the body of Ms. Better. (DE 14-1 at
203–04). The trial court considered the argument under the standard applicable at the close of the
State’s case—taking all evidence in the light most favorable to the State—and found that there was
sufficient evidence to continue. (Id. at 204). The trial court further considered the argument in light
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of the defense offered by Petitioner and concluded that there was sufficient evidence for the jury
to find him guilty. (Id.).
Other than his conclusory argument that the State’s evidence was “circumstantial, false, or
in some cases exculpatory,” Petitioner does not explain what additional arguments trial counsel
should have made in moving for judgment of acquittal. (DE 1 at 18). Counsel cannot be deficient
for failing to raise a non-meritorious claim. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th
Cir. 1994) (“[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute
ineffective assistance.”) Furthermore, Petitioner cannot establish Strickland prejudice because he
makes no showing that additional arguments in support the motion for judgment of acquittal would
have been successful. Under Florida law, “a trial court should not grant a motion for judgment of
acquittal unless the evidence adduced is such that no view that the jury may lawfully take of it
favorable to the State can be sustained under the law.” Arnold v. State, 892 So. 2d 1172, 1173 (Fla.
5th DCA 2005). Here, the vague and undefined arguments suggested by Petitioner do not create
any probability of a different outcome. This is particularly true in light of the sufficiency of
evidence of Petitioner’s guilt. See supra Section IV.D. Accordingly, the state court’s denial of this
claim was not contrary to, nor did it involve an unreasonable application of clearly established
federal law, nor was it based on an unreasonable determination of the facts in light of the evidence
presented. Therefore, claim 11 is DENIED as the State court’s rejection of this claim in the Rule
3.850 proceeding was not an unreasonable application of Strickland.
L. Cumulative Errors
In claim 12, Petitioner argues that trial counsel rendered ineffective assistance through the
cumulative effect of the errors raised in the first eleven claims. (DE 1 at 18). Respondent argues
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that there is no Supreme Court authority recognizing “cumulative error” in the context of an
ineffective assistance claim. (DE 13 at 24).
Respondent is correct that “[t]he Supreme Court has not directly addressed the applicability
of the cumulative error doctrine in the context of an ineffective assistance of counsel claim.”
Forrest v. Fla. Dep’t of Corr., 342 F. App’x 560, 564 (11th Cir. 2009). Even if such a claim was
recognized, Petitioner could not prevail here. “The cumulative error doctrine provides that an
aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.” Morris
v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (quoting United States v. Baker,
432 F.3d 1189, 1223 (11th Cir.2005), abrogated on other grounds by Davis v. Washington, 547
U.S. 813 (2006)) (internal quotation marks omitted). The Eleventh Circuit instructs courts
addressing claims of cumulative error to first consider the validity of each claim individually, and
then examine any errors found in the aggregate and in light of the trial as a whole to determine
whether the petitioner was afforded a fundamentally fair trial. Id. (citing United States v. Calderon,
127 F.3d 1314, 1333 (11th Cir. 1997)). When no error is found in the underlying claims, however,
there can be no claim of cumulative error. Id. (citing United States v. Taylor, 417 F.3d 1176, 1182
(11th Cir. 2005)); see also United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004); United
States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984).
Petitioner has failed to establish any individual instance of ineffective assistance of trial
counsel. See supra Sections IV.A–K. Therefore, his cumulative error claim is clearly without
merit. Accordingly, the state court’s denial of this claim was not contrary to, nor did it involve an
unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented. Therefore, claim 12 is DENIED as
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the State court’s rejection of this claim in the Rule 3.850 proceeding was not an unreasonable
application of Strickland.
V. CERTIFICATE OF APPEALABILITY
Petitioner is advised that he has no absolute right to appeal this Court’s final order denying
his § 2254 Petition, but to do so, he must obtain a certificate of appealability (“COA”). See
Harbison v. Bell, 556 U.S. 180, 183 (2009) (citing Slack v. McDaniel, 529 U.S. 473, 484–85
(2000); Wilkinson v. Dotson, 544 U.S. 74, 78–83 (2005)). Thus, when a district court rejects
Petitioner’s constitutional claims on the merits, Petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court rejects a claim on procedural grounds,
Petitioner must show 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.” Id. Because the claims raised are
clearly without merit, Petitioner cannot satisfy the Slack test. Slack, 529 U.S. at 484. Thus, upon
consideration of the record, I find that no certificate of appealability shall issue.
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VI. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. Petitioner’s § 2254 Petition (DE 1) is DENIED;
2. Judgment in favor of the Respondent will be entered by way of a separate Order;
3. All pending motions not otherwise ruled upon are DENIED as moot; and,
3. A Certificate of Appealability is DENIED.
SIGNED in Chambers at West Palm Beach, Florida, this 14th day of October, 2026.
Donald M. Middlebrooks
United States District Judge
Copies furnished to:
Todd Barket, pro se
N70609
Jefferson Correctional Institution
Inmate Mail/Parcels
1050 Big Joe Road
Monticello, FL 32344
Richard Chambers Valuntas
Florida Attorney General's Office
1515 N. Flagler Dr. #900
West Palm Beach, FL 33401
561-837-5016
Fax: 561-837-5108
Email: CrimAppWPB@MyFloridaLegal.com
Noticing 2254/2241 SAG Broward and North
Email: FederalHabeas@myfloridalegal.com
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