Conahan v. Secretary, DOC et al
Filing
92
OPINION AND ORDER denying 26 Amended petition for writ of habeas corpus, 56 Supplement 62 Amended Supplement. Conahan is not entitled to a certificate of appealability. The Clerk shall enter judgment and close the case. Signed by Judge John E. Steele on 3/27/2023. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL O. CONAHAN, JR.,
Petitioner,
v.
Case No:
2:13-cv-428-JES-KCD
SECRETARY, DEPARTMENT OF
CORRECTIONS and FLORIDA
ATTORNEY GENERAL,
Respondents.
OPINION AND ORDER
Before the Court are Daniel O. Conahan’s Amended Petition for
Writ of Habeas Corpus (Doc. #26), supporting memorandum (Doc. #27),
and two supplements (Docs. #56 and #62), the Secretary’s responses
(Docs. #29 and #65), and Conahan’s replies (Docs. #38 and #68).
For the reasons set forth below, the Amended Petition is denied.
I.
Background
Conahan was convicted of the kidnapping and murder of Richard
Alan Montgomery and sentenced to death.
The Supreme Court of
Florida summarized the factual and procedural background in its
opinion affirming the conviction and sentence:
On April 16, 1996, Richard Montgomery, who lived with
his sister, was with Bobby Whitaker, Gary Mason, and
other friends when he mentioned that he was going out to
make a few hundred dollars and would be back shortly.
When asked whether it was legal, he smiled. Montgomery
also told his mother that someone had offered to pay him
$200 to pose for nude pictures, but he did not tell her
who made the offer. In the same conversation, Montgomery
mentioned that he had recently met the defendant Daniel
O. Conahan, Jr., who lived in Punta Gorda Isles and was
a nurse at a medical center. The last time friends saw
Montgomery alive was on April 16 between 4 p.m. and 7
p.m.
The next day, April 17, Thomas Reese and Michael Tish,
who were storm utility engineers for Charlotte County,
discovered a human skull in a remote, heavily wooded
area off of Highway 41 and immediately notified the
police department. While searching the scene, deputies
found the nude body of a young, white male that was later
identified as Richard Montgomery. He had visible signs
of trauma to the neck, waist, and wrists, and the
genitalia had been removed. The forensic lab personnel
arrived and collected various items from the scene,
including a rope found on the top of a nearby trash pile,
carpet padding that covered the victim's body, a skull
and a torso (neither of which belonged to the victim),
a gray coat, and various combings from the victim's arms,
hands, chest, pubic area, and thighs. On the following
day, Deputy Todd Terrell arrived on the scene with a K9 dog which showed significant interest in a sabal palm
tree, specifically the side of the tree which was
somewhat flattened and damaged.
An autopsy revealed that Montgomery died as a result of
strangulation. He had two ligature marks on the front of
his neck, two horizontal marks on the right side of his
chest, and abraded grooves around his wrists. All of the
grooves were of similar width, did not extend to
Montgomery's back, and were consistent with marks that
would be left on an individual who had been tied to a
tree.
Due to the unique nature of the homicide (being tied to
a tree naked and then strangled), police reviewed a
similar assault reported on August 15, 1994. The victim,
Stanley Burden, was a high school drop-out who, like
Montgomery, had difficulty keeping a steady job and had
physical features similar to those of Montgomery. The
report indicated that Burden met Conahan, who offered to
pay him $100 to $150 to pose for nude photographs. Burden
agreed and Conahan drove him to a rocky dirt road in a
secluded area where Conahan pulled out a duffle bag with
a tarp and a Polaroid camera. The two men headed into
the woods where Conahan laid the tarp out and asked
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Burden to take off his shirt and show a little hip. After
taking numerous pictures of Burden, Conahan then took
out a new package of clothesline so he could get some
bondage pictures. He asked Burden to step close to a
nearby tree and then clipped the clothesline in several
pieces, draping them over Burden to make it look like
bondage. Conahan moved behind Burden, snapped the rope
tightly around him, pulled his hands behind the tree,
placed ropes around his legs and chest, and wrapped the
rope twice around Burden's neck. Conahan then performed
oral sex on Burden and attempted to sodomize him. Burden
fought to position himself in the middle of the tree
while Conahan tried to pull him to the side to have anal
sex. After many unsuccessful attempts, Conahan snapped
the rope around Burden's neck, placed his foot against
the tree, and pulled on the rope in an attempt to
strangle Burden, who tried to slide around the tree to
keep his windpipe open. Conahan hit Burden in the head
and unsuccessfully attempted to strangle him for thirty
minutes. Conahan asked Burden why he would not die and
finally gave up, gathered his possessions, and left.
Burden freed himself, went to a local hospital, and
received treatment for his injuries. The police located
the crime scene and found that one of the melaleuca trees
had ligature indentions that corresponded with Burden's
injuries.
Based on this information, the police began an
undercover investigation of Conahan. On May 24, 1996,
Deputy Scott Clemens was approached by Conahan at
Kiwanis Park, and Conahan offered Clemens $7 to show his
penis or $20 if Clemens would allow Conahan to perform
fellatio. Clemens refused the offer and the next day
returned to the park where he again encountered Conahan,
who offered him $150 to pose for nude photos.
On May 31, 1996, pursuant to a warrant, the police
searched Conahan's residence and vehicles and obtained
paint samples from his father's Mercury Capri, which
Conahan occasionally used. The police then compared
paint samples from the Capri with a paint chip from the
victim's
body
and
found
that
they
were
indistinguishable.
On February 25, 1997, Conahan was indicted for firstdegree premeditated murder, first-degree felony murder,
kidnapping, and sexual battery of Richard Montgomery. In
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the guilt phase of his trial, Conahan waived his right
to trial by jury. The State presented evidence of the
manner in which the victim's body was found and evidence
obtained from the autopsy and the searches of Conahan's
residence and vehicles. The State also presented
evidence that on the day of Montgomery's disappearance,
April 16, 1996, at 6:07 p.m., Conahan's credit card was
used to purchase clothesline, Polaroid film, pliers, and
a utility knife from a Wal-Mart store in Punta Gorda.
Still photos showed that minutes later, at 6:12 p.m.,
Conahan withdrew funds from an ATM which was located
close to the Wal-Mart.
The trial court permitted the State to introduce
Williams 1 rule evidence of Burden's attempted murder and
sexual
battery,
ruling
that
the
evidence
was
sufficiently similar to the evidence leading up to
Montgomery's death so as to constitute a unique modus
operandi sufficient to establish the identity of
Montgomery's murderer. After the guilt phase of the
trial was completed, the trial court found and
adjudicated Conahan guilty of first-degree premeditated
murder and kidnapping.
On November 1, 1999, the penalty phase of Conahan's trial
was conducted before a jury at which time photos taken
at the crime scene of the victim's body were published,
and Deputy Gandy testified relative to the crime scene
and how the body was found. Gandy further testified that
during an interview Conahan told him that he had a
fantasy involving bondage and sex.
The medical examiner, Dr. Carol Huser, testified
regarding the autopsy report prepared by Dr. Imami. 2
After examining Dr. Imami's report and viewing the
autopsy photographs, Dr. Huser concluded that Montgomery
died by ligature strangulation. The autopsy photographs
were published to the jury. Dr. Huser also testified
that being killed in such a manner required applying
pressure for a length of time notwithstanding the fact
that the victim loses consciousness after only a few
1
Williams v. State, 110 So. 2d 654 (Fla. 1959).
Dr. Imami, the medical examiner who conducted the autopsy
of Richard Montgomery, was out of the country and unavailable to
testify at the penalty phase.
2
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seconds. She further opined that
strangulation would be terrifying.
to
be
killed
by
Conahan's aunt, Betty Wilson, testified on behalf of the
defense that Conahan was a jovial, personable individual
who participated in family activities and cared for his
ailing mother before she died. Robert Lindy and his
daughter Nancy Thomson, the father and sister of Hal
Lindy, who was Conahan's roommate and lover when he lived
in Chicago, testified that Conahan was like another son
and brother to them. Conahan was instrumental in helping
Hal and Nancy overcome alcoholism, was considered one of
the family, and was included in many family functions.
Thereafter, the defense rested its case.
Before the jury deliberated, the trial court gave
instructions relative to the following aggravators: (1)
the murder was heinous, atrocious, or cruel (HAC); (2)
the murder was cold, calculated, and premeditated (CCP);
and (3) the murder was committed during the course of a
kidnapping. By a vote of twelve to zero, the jury
recommended the death penalty. A Spencer 3 hearing was
held on November 5, 1999, and on December 10, 1999,
Conahan was sentenced to death for the first-degree
murder of Richard Montgomery and to fifteen years'
imprisonment for kidnapping.
Conahan v. State, 844 So. 2d 629, 632 (Fla. 2003).
The Florida Supreme Court went on to find: (1) the trial court
did not err in denying Conahan’s motions for acquittal; (2) the
trial
court
correctly
instructed
the
sentencing
jury
on
aggravating factors; (3) the prosecutor made an improper comment
during the State’s opening statement, but allowing it was harmless
error; (4) the trial court correctly overruled two objections
during the State’s closing argument; (5) the trial court properly
admitted autopsy photos and photos of the crime scene; and (6) the
3
Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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death penalty here is a proportionate punishment when compared
with other death-penalty cases.
Id. at 638-43.
Supreme Court denied certiorari.
The United States
Conahan v. Florida, 540 U.S. 895
(2003).
Conahan sought postconviction relief in state court by filing
a motion under Florida Rule of Criminal Procedure 3.851.
postconviction
court
denied
the
motion
after
an
hearing, and the Florida Supreme Court affirmed.
The
evidentiary
Conahan v.
State, 118 So. 3d 718 (Fla. 2013).
Conahan then filed the petition that commenced this action,
raising seven grounds.
(Doc. #1).
On February 2, 2016, Conahan
filed another state postconviction motion and sought a stay of
this federal case.
stay.
(Doc. #43).
(Docs. #46, 58).
successive
affirmed.
Rule
3.851
The Court obliged, granting the
The state postconviction court denied the
motion,
and
the
Florida
Supreme
Court
Conahan v. State, No. SC16-1153, 2017 WL 656306 (Fla.
Feb. 17, 2017); Conahan v. State, 258 So. 3d 1237 (Fla. 2018).
The
stay
was
lifted
(Doc.
#64),
and
Conahan
filed
two
supplements to his federal habeas petition, each adding a new
ground.
(Docs. #57 and #62).
All grounds have been fully briefed
and are ripe for review.
II.
Applicable Habeas Law
a. AEDPA
The Antiterrorism Effective Death Penalty Act (AEDPA) governs
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a state prisoner’s petition for habeas corpus relief.
§ 2254.
28 U.S.C.
Relief may only be granted on a claim adjudicated on the
merits in state court if the adjudication:
(1)
(2)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the
evidence
presented
in
the
State
court
proceeding.
28 U.S.C. § 2254(d).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
A state
court’s violation of state law is not enough to show that a
petitioner is in custody in violation of the “Constitution or laws
or treaties of the United States.”
28 U.S.C. § 2254(a); Wilson
v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing
legal principles set forth in the decisions of the United States
Supreme Court when the state court issued its decision.
White,
134 S. Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
relief
is
appropriate
only
if
the
state
court
Habeas
decision
was
“contrary to, or an unreasonable application of,” that federal
law.
28 U.S.C. § 2254(d)(1).
A decision is “contrary to”
clearly established federal law if the state court either: (1)
applied a rule that contradicts the governing law set forth by
- 7 -
Supreme Court case law; or (2) reached a different result from the
Supreme Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v.
Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of Supreme Court precedent if the state court correctly identifies
the governing legal principle, but applies it to the facts of the
petitioner’s case in an objectively unreasonable manner, Brown v.
Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526,
531 (11th Cir. 2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.”
Bottoson,
234 F.3d at 531 (quoting Williams, 529 U.S. at 406).
When reviewing a claim under 28 U.S.C. § 2254(d), a federal
court must remember that any “determination of a factual issue
made by a State court shall be presumed to be correct[,]” and the
petitioner bears “the burden of rebutting the presumption of
correctness
by
clear
and
convincing
evidence.”
28
U.S.C.
§
2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] statecourt factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in
the first instance.”).
“A state court’s determination that a
claim lacks merit precludes federal habeas relief so long as fair-
- 8 -
minded jurists could disagree on the correctness of the state
court’s
(2011).
decision.”
Harrington
v.
Richter,
562
U.S.
86,
101
“[T]his standard is difficult to meet because it was
meant to be.”
Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018).
b. Exhaustion and Procedural Default
AEDPA
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted all means of relief available under state law.
Failure
to exhaust occurs “when a petitioner has not ‘fairly presented’
every issue raised in his federal petition to the state’s highest
court, either on direct appeal or on collateral review.”
Pope v.
Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010)).
The
petitioner
must
apprise
the
state
court
of
the
federal
constitutional issue, not just the underlying facts of the claim
or a similar state law claim.
Snowden v. Singletary, 135 F.3d
732, 735 (11th Cir. 1998).
Procedural defaults generally arise in two ways:
(1) where the state court correctly applies a procedural
default principle of state law to arrive at the
conclusion that the petitioner’s federal claims are
barred; or (2) where the petitioner never raised the
claim in state court, and it is obvious that the state
court would hold it to be procedurally barred if it were
raised now.
Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007).
A
federal habeas court may consider a procedurally barred claim if
- 9 -
(1) petitioner shows “adequate cause and actual prejudice,” or (2)
“the failure to consider the claim would result in a fundamental
miscarriage of justice.”
Id. (citing Coleman v. Thompson, 501
U.S. 722, 749-50 (1991)).
c. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part test for determining whether a convicted person may have
relief for ineffective assistance of counsel.
88 (1984).
was
466 U.S. 668, 687-
A petitioner must establish: (1) counsel’s performance
deficient
and
fell
below
an
objective
standard
of
reasonableness; and (2) the deficient performance prejudiced the
defense.
Id.
When considering the first prong, “courts must ‘indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’”
Sealey v. Warden,
954 F.3d 1338, 1354 (11th Cir. 2020) (quoting Strickland, 466 U.S.
at 689).
And “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.”
2020)
Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.
(quoting
Richter,
562
U.S.
at
101).
Thus,
a
habeas
petitioner must “show that no reasonable jurist could find that
his counsel’s performance fell within the wide range of reasonable
professional
conduct.”
Id.
This
- 10 -
is
a
“doubly
deferential”
standard
of
review
that
gives
both
the
state
petitioner’s attorney the benefit of the doubt.
court
and
the
Burt, 134 S. Ct.
at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The second prong requires the petitioner to “show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Sealey, 954 F.3d at 1355 (quoting Strickand, 466 U.S. at 694).
“A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Id.
The critical question on federal
habeas review is not whether this Court can see a substantial
likelihood of a different result had defense counsel taken a
different approach.
Mays v. Hines, 141 S. Ct. 1145, 1149 (2021).
All that matters is whether the state court, “notwithstanding its
substantial ‘latitude to reasonably determine that a defendant has
not [shown prejudice],’ still managed to blunder so badly that
every fairminded jurist would disagree.”
Id. (quoting Knowles v.
Mirazayance, 556 U.S. 111, 123 (2009)).
“An ineffective-assistance claim can be decided on either the
deficiency or prejudice prong.”
“[w]hile
the
Strickland
Sealey, 954 F.3d at 1355.
standard
is
itself
hard
to
And
meet,
‘establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.’”
(quoting Richter, 562 U.S. at 105).
- 11 -
Id.
III. Analysis of Issues
a. Ground 1: Trial counsel failed to adequately investigate
and prepare a defense
Attorneys Mark W. Ahlbrand and Paul Sullivan represented
Conahan at the trial level.
phase,
and
Sullivan
Ahlbrand led the effort on the guilt
primarily
handled
the
sentencing
phase.
Conahan argues Ahlbrand provided ineffective assistance of counsel
in the guilt phase, which renders the death sentence unreliable.
Conahan
asserts
four
sub-grounds,
deficiency in Ahlbrand’s performance.
each
raising
an
alleged
The Court denies three of
the sub-grounds, and Conahan has withdrawn the fourth.
i. Richardson 4 hearing
The victim’s mother, Mary Montgomery-West 5 surprised Ahlbrand
on cross-examination with testimony that her son had told her about
meeting Conahan.
(Doc. #89-3 at 787-88).
The testimony—which is
relevant to several habeas grounds—was as follows:
Q
Did your son ever tell you that he had met a
man named Danny or that there was a man that was going
to offer money for anything? Did he ever confide in you
that there was –
A
He told me the last time I saw him, which was
on March 23rd, it was a Saturday, and I was trying to do
bills. And Jeff’s truck had broken down at out house,
so Danny and his wife, Terri, and Carla and Jeff and
Richard were all over there that Saturday.
4
Richardson v. State, 246 So. 2d 771 (Fla. 1971).
The state court record alternatingly refers to the victim’s
mother as Mary Montgomery, Mary West, and Mary Montgomery-West.
This Court will use “Montgomery-West.”
5
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Q
Now, when you saw Danny, you’re not referring
to Mr. Conahan, are you?
A
No; my son. My son. Anyway, he had come in
and he was wanting to talk to me and I was trying to do
my bills and he was interrupting. It was just like when
he was a child. I said, Let me do this and then we’ll
talk. But anyway, it ended up being we were talking.
He wanted to tell me about a new friend he had made.
Q
How did he describe him?
A
I remember him telling me his name and I said
that sounds like – I knew people with the name of
Carnahan in North Fairfield, Ohio. That’s where I grew
up. He said, No, it’s a name that – like that. I said,
You sound like Nana because you’re leaving the R out.
He said, No, Mom. It’s Conahan.
Q
police?
Why would you have never told this to the
A
I thought I did the night I made my statement.
Q
But you didn’t?
A
I remember telling them that – there’s a lot
in my statement that I remember saying that isn’t on the
tape.
Q
Okay. So you believe at this point in light
of the fact that Mr. Conahan is on trial that you told
the police that your son had met Mr. Conahan, or a Mr.
Conahan?
A
A Mr. Conahan.
Q
Did you pursue that with him? I mean, I’m in
for a penny and for a pound now. I might as well go
ahead. I mean, did you ask him –
A
Nobody called me or anything.
I remember I
told Mr. Hobbs – I called him up and I said, How come
nobody’s asked me about anything because of the name
that I had said and he said he remembers something about
friends and he went back and looked. I never heard from
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him again.
I found out just recently when I got my
deposition that’s not in there.
It says, inaudible,
inaudible. I’m sure I was crying.
Q
When you told Mr. Hobbs about this, had Mr.
Conahan already been arrested and in the paper?
A
Yes, he had been.
(Doc. #89-3 at 786-88).
The State elicited more details on
redirect (that testimony is block-quoted below in the section
discussing Ground 2).
Ahlbrand attempted to impeach Montgomery-
West on re-cross with a transcript of the statement she gave police
two days after her son’s death.
Montgomery-West acknowledged the
transcript did not include any mention that the victim had contact
with Conahan, but she pointed to page 24 of the document: “And
it’s right in here where I start talking and I think it was in the
part where it said inaudible, inaudible.
what I said isn’t there.”
And there’s – a lot of
(Id. at 794).
In his Rule 3.851 motion, Conahan argued Ahlbrand should have
requested a Richardson hearing.
A Florida trial court may hold a
Richardson hearing to determine whether the State committed a
discovery violation and, if so, whether the violation prejudiced
the defendant’s ability to prepare for trial.
2d at 774-75.
Richardson, 246 So.
The postconviction court heard extensive evidence
on the issue and found no discovery violation, and therefore no
cause for a Richardson hearing.
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(Doc. #89-5 at 1096).
The
Florida Supreme Court determined that Conahan failed to satisfy
either prong of Strickland:
First, Conahan claims that trial counsel was ineffective
for failing to demand a Richardson hearing when Mrs.
Montgomery, the victim's mother, testified to a matter
that was not in the transcript of the recorded statement
she gave to law enforcement. Specifically, during crossexamination, Mrs. Montgomery testified that her son had
told her he had met a man named Conahan and on re-direct
stated that her son had told her that Conahan lived in
Punta Gorda Isles, was a nurse, and had been in the Navy.
When asked why she had never told this information to
police she stated that she “thought” she had when she
gave her recorded statement, proposing that the
information was described as “inaudible” in the
transcript. Because Conahan has failed to establish
deficiency or prejudice, we affirm the circuit court's
denial of this claim.
Specifically, Conahan has failed to demonstrate how
counsel's actions were not reasonable given the facts of
the case and counsel's perspective at the time. Trial
counsel testified at the evidentiary hearing that he did
not object to the testimony because it was elicited as
a result of a direct question on cross-examination and
he could not figure out a way to “unring the bell.”
Instead, trial counsel attempted to impeach Mrs.
Montgomery's testimony. This Court has held that counsel
will not be held ineffective if “alternative courses
have been considered and rejected and counsel's decision
was reasonable under the norms of professional conduct.”
Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).
Additionally, Conahan failed to establish prejudice.
Even if Mrs. Montgomery's testimony was stricken after
a Richardson hearing, the outcome would have been the
same and confidence is not undermined because there was
other evidence linking the victim and Conahan, such as
the testimony of Whitaker and Newman. 6 Newman had been
Conahan's cellmate at one time and testified at trial
that Conahan had told him he knew the victim, Mr.
The jailhouse witness in this case is named John Cecil
Neuman. The trial transcript and subsequent state court records
and opinions misspelled his name as “Newman.”
6
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Montgomery. Specifically, Newman testified that Conahan
had said he had been on beer runs with Montgomery, had
been to Montgomery's house, and that “Montgomery was a
mistake.” And Whitaker and the victim were roommates at
one time, and Whitaker testified that Conahan had come
to his home looking for Montgomery.
Conahan v. State, 118 So. 3d 718, 727 (Fla. 2013).
The Florida Supreme Court reasonably applied Strickland.
A
Richardson hearing would have given Conahan an opportunity to
explore whether the State violated discovery rules and whether
there
was
any
resulting
prejudice.
But
Montgomery-West’s
testimony did not show the State withheld any discovery.
She
believed the relevant part of her statement was inaudible because
she was crying, so her testimony did not suggest the existence of
a
separate
document
the
government
withheld.
Moreover,
the
postconviction heard the evidence Conahan could have proffered in
a Richardson hearing and found no discovery violation.
Thus, a
Richardson hearing would have been futile.
Federal habeas courts “must defer to the state’s construction
of its own law” when an attorney’s alleged failure turns on state
law.
Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017)
(quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.
1984)).
Such deference is especially important when considering
Strickland claims because they can “drag federal courts into
resolving questions of state law.”
517, 523 (2020).
Shinn v. Kayer, 141 S. Ct.
This Court accepts as correct the state courts’
- 16 -
determination that the prosecution did not violate state discovery
rules, so Conahan was not entitled to relief under Richardson.
Conahan was not prejudiced by Ahlbrand’s failure to request a
futile Richardson hearing.
The Florida Supreme Court’s denial of
this sub-ground was a reasonable application of Strickland.
ii. Forensic audio expert
Conahan next argues Ahlbrand should have retained an audio
expert to analyze the tape of Montgomery-West’s statement to the
police.
Conahan’s postconviction counsel did hire such an expert,
and he testified that Montgomery-West did not utter Conahan’s name
in the recorded interview, even during the parts described as
inaudible in the original transcript.
(Doc. #89-6 at 356-58).
The State stipulated that Montgomery-West’s recorded statements
did not contain Conahan’s name.
The postconviction court found—
based on the testimony of prosecutor Robert A. Lee—that MontgomeryWest could have provided Conahan’s name in an unrecorded statement,
and it held that Conahan failed to establish either prong of
Strickland.
(Doc. #89-5 at 1097).
The Florida Supreme Court affirmed because Conahan failed to
show prejudice:
In this case, even if counsel had obtained an audio
expert to analyze the statement, it would not have
changed the nature of Mrs. Montgomery’s testimony that
she “thought” she had told officers this information
during the interview in which the recorded statement was
made. Moreover, having a more accurate transcript would
not have broken the evidentiary link between Conahan and
- 17 -
the victim because there were two other witnesses,
Whitaker and Newman, who established that Conahan and
the victim knew each other. Therefore, there is not a
reasonable probability of a different outcome.
Our
confidence in the outcome is not undermined.
Conahan v. State, 118 So. 3d 718, 728 (Fla. 2013).
Conahan attacks
the Florida Supreme Court’s decision because (1) an expert could
have impeached Montgomery-West and (2) Whitaker and Neuman were
unreliable witnesses.
Federal habeas courts must give state courts substantial
latitude when evaluating the prejudice prong of Strickland claims.
Mays, 141 S. Ct. at 1149.
The Florida Supreme Court reasonably
found that Whitaker and Neuman established a link between Conahan
and the victim, and that impeaching Montgomery-West would not have
broken that link.
Despite his attacks on the reliability of
Whitaker and Neuman, Conahan fails to establish that the Florida
Supreme Court “blunder[ed] so badly that every fairminded jurist
would disagree.”
is
consistent
Id.
with
What is more, the audio expert’s conclusion
Montgomery-West’s
trial
testimony.
She
acknowledged the tape did not capture her comments about Conahan:
“I remember telling them that – there’s a lot in my statement that
I remember saying that isn’t on the tape.”
Denial
of
this
sub-ground
was
a
Strickland.
- 18 -
(Doc. #89-3 at 788).
reasonable
application
of
iii. Williams rule evidence
Conahan asserts Ahlbrand failed to adequately object to the
evidence admitted under Williams v. State, 110 So. 2d 654 (Fla.
1959)—primarily, evidence that Conahan attacked and attempted to
kill
Stanley
murdered.
Burden
in
the
same
manner
that
Montgomery
was
Conahan’s argument focuses almost entirely on the trial
court’s decision to admit the evidence, rather then Ahlbrand’s
performance.
In other words, Conahan attempts to shoehorn non-
Strickland arguments into a Strickland claim, the same tactic he
used in his state postconviction motion.
60).
(See Doc. #89-4 at 1258-
The postconviction court rejected the ineffective-assistance
claim
because
Ahlbrand
objected
to
the
Williams
evidence
repeatedly, and it denied the non-Strickland arguments because
they were procedurally barred. (Doc. #89-5 at 1095; see also Doc.
#89-4 at 1520-21).
The Florida Supreme Court found no merit in the Strickland
part of this sub-ground:
The claim is conclusively refuted by the record, which
indicates that trial counsel repeatedly objected to the
Williams rule evidence and that the trial court treated
this as a standing objection.
As for Conahan’s
challenge to the sufficiency and detail of the
objections, the record demonstrates that trial counsel
went to great lengths to point out differences between
the assault on Stanley Burden and the murder of Richard
Montgomery and presented detailed arguments as to why
the other Williams rule evidence should not be admitted.
This Court has repeatedly held that “[c]ounsel cannot be
deemed ineffective merely because current counsel
disagrees with trial counsel’s strategic decisions.”
- 19 -
Occicone, 768 So. 2d at 1048; see also Chandler v. State,
848 So. 2d 1031, 1045-46 (Fla. 2003) (holding that
disagreeing with trial counsel’s strategy of not
vigorously challenging the Williams rule evidence did
not mean that trial counsel was ineffective).
Conahan, 118 So. 3d at 728. The Florida Supreme Court also agreed
that Conahan’s non-Strickland sub-claims were procedurally barred:
We do not discuss in detail Conahan’s claim that the
trial
court
erred
in
summarily
denying
his
ineffectiveness of trial counsel claim that the Williams
rule evidence was not established by clear and
convincing evidence, was not sufficiently similar to the
charged offense, and became a “feature of the trial”
because we find the circuit court properly determined
that this claim was procedurally barred. Conahan should
have and could have raised this issue on direct appeal.
See Connor v. State, 979 So. 2d 852, 868 (Fla. 2007);
Franqui v. State, 965 So. 2d 22, 35 (Fla. 2007); Spencer
v. State, 842 So. 2d 52, 60-61 (Fla. 2003). Moreover,
as explained when addressing his habeas petition,
Conahan failed to establish that the admission of the
Williams rule evidence amounted to fundamental error.
Id. at 728 n.6.
The Florida Supreme Court’s denial of Conahan’s ineffectiveassistance claim was a reasonable application of Strickland.
Strickland,
466
U.S.
at
689
(“A
fair
assessment
of
See
attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”).
The underlying issue here
is the application of the Williams rule, a Florida evidentiary
rule.
The Florida Supreme Court is the final arbiter of Florida
law, see Pinkney, supra, and it found Ahlbrand’s objections to the
- 20 -
Williams rule evidence reasonable.
finding.
The record supports that
Ahlbrand made a thorough and lengthy argument against
admission of the Williams rule evidence.
(Doc. #89-3 at 1548-65).
The rest of this sub-ground challenges the trial court’s
admission of Williams rule evidence, not Ahlbrand’s performance.
Florida law required Conahan to raise those arguments on direct
appeal.
See Spencer v. State, 842 So. 2d 52, 60 (Fla. 2003).
The
Florida Supreme Court correctly applied a state procedural default
principle to find the sub-claims barred.
procedurally barred in federal court.
As a result, they are
See Cortes, supra.
iv. Conclusions of FDLE witnesses
Conahan next faults Ahlbrand for failing to investigate or
present any evidence to undermine the scientific conclusions of
two witnesses from the Florida Department of Law Enforcement.
In
his Reply, Conahan concedes that he failed to exhaust this subground and withdraws it.
b. Ground 2:
testimony
The
(Doc. #38 at 11).
victim’s
mother
gave
false
material
Conahan claims the State violated Giglio v. United States,
405
U.S.
150
(1972)
Montgomery-West.
by
knowingly
using
false
testimony
of
The testimony at issue began in Ahlbrand’s
cross-examination of Montgomery-West, block-quoted above.
State elicited more details on redirect:
Q
Mrs. West, this conversation that you had with your
son that you were just asked about where he mentioned
- 21 -
The
the name Conahan and you thought at first he said
Carnahan, did he give you any information about this
individual Conahan as to where he worked or his
background?
A
I remember him telling me that his new friend lived
in Punta Gorda Isles, that he had been in the Navy
discharge and he was a nurse who worked at Medical Center
where I had worked for many years.
Q
All right. And did he tell you – did you mention
anything to him about, in turn, whether it was – let me
rephrase it.
Was anything said about the age of Mr. Conahan?
A
I remember him being much older. I said, Why are
you hanging around with somebody so much older than you
are?
Q
Okay. Now, in that same conversation, did your son
mention to you anything about nude photographs?
A
He told me somebody had offered him $200 to pose
for nude pictures.
Q
Okay.
A
He didn’t tell me who.
He refused to tell me who.
Q
He did not specifically say it was Mr. Conahan, but
it was in the same conversation?
A
It was in the same conversation.
Q
And in response to that, what did you tell your
son?
A
I told him about a psychopathic personality that
would lure somebody like my son, who is trusting and
naïve, because he was naive, out; somebody that he didn’t
know very well and do things to him, sexually abuse him,
kill him.
THE DEFENDANT: You’re a liar.
- 22 -
THE WITNESS: He didn’t believe me. He says, No one
will kill me. I’ll kill him first, like that, and –
MR. AHLBRAND: Judge, we’re going to ask for a fiveminute recess.
THE COURT: For what reason?
MR. AHLBRAND: I need to converse with my client.
We can do it in place. Three minutes, please.
MR. LEE: I only have one or two more questions,
Your Honor. I prefer that we finish the testimony.
THE COURT: All right.
Let’s finish.
BY MR. LEE:
Q
And what was
warned him about this?
A
first.
Richard’s
response
when
you
He says, Nobody will kill me. I’ll kill them
He didn’t believe it could happen.
Q
Did not believe it could happen?
A
(Nodded head.)
(Doc. #89-3 at 790-92).
The postconviction court rejected Conahan’s Giglio claim, and
the Florida Supreme Court affirmed:
To establish a Giglio violation, three prongs must be
shown: (1) the testimony was false; (2) the prosecutor
knew it was false; and (3) the testimony was material.
Guzman v. State, 868 So.2d 498, 505 (Fla. 2003) (citing
Ventura v. State, 794 So.2d 553, 562 (Fla. 2001)). If
the defendant successfully establishes the first two
prongs, then the State bears the burden of proving that
the testimony was not material by showing that there is
no reasonable possibility that it could have affected
the verdict because it was harmless beyond a reasonable
doubt. See Johnson v. State, 44 So. 3d 51, 64–65 (Fla.
2010); Guzman, 868 So. 2d at 506–07. In evaluating Giglio
claims, this Court applies a mixed standard of review,
- 23 -
deferring to the trial court’s factual findings that are
supported by competent, substantial evidence and
reviewing the application of the law to those facts de
novo. Suggs v. State, 923 So.2d 419, 426 (Fla. 2005)
(citing Sochor, 883 So.2d at 785).
In this case, Conahan has failed to establish that Mrs.
Montgomery’s testimony was false. Mrs. Montgomery
qualified her testimony, stating that she “thought” she
told law enforcement this information when she gave her
recorded statement. However, the State stipulated at the
evidentiary hearing that the name Conahan does not
appear in the recorded statement, which tends to show
that her self-qualified “thought” was mistaken, not
necessarily that her testimony was false. Additionally,
the transcript of the recorded statement indicates that
Mrs. Montgomery provided the officers taking her
statement with some information prior to the tape being
turned
on.
Perhaps
Mrs.
Montgomery
relayed
the
information at that point. Furthermore, there was
additional testimony presented at the evidentiary
hearing that indicates Mrs. Montgomery had interactions
with other law enforcement officers and made an oral
statement to the prosecutor concerning this matter, the
circumstances and contents of which collateral counsel
did not pursue at the evidentiary hearing. Therefore,
Conahan has failed to establish that Mrs. Montgomery’s
testimony was false.
Additionally, the State has established that the
testimony was immaterial because there was no reasonable
possibility of a different verdict as it was harmless
beyond a reasonable doubt. See Johnson, 44 So.3d at 64–
65; Guzman, 868 So.2d at 506–07 (defendant is not
entitled to relief if State can prove that presentation
of false testimony was harmless beyond a reasonable
doubt). As the State demonstrates, the testimony from
Newman and Whitaker established that the victim and the
defendant knew one another. Moreover, the admission of
the Williams Rule evidence was not contingent upon Mrs.
Montgomery’s testimony. As we noted on direct appeal,
Conahan killed Montgomery in the same manner in which he
attempted to kill Stanley Burden. Montgomery and Burden
were similar physically; neither one completed high
school; both had difficulty in maintaining employment
and were in need of money when Conahan solicited them to
pose nude for money in a secluded wooded area. Both were
- 24 -
tied to a tree and suffered similar abrasions
ligature wounds. Conahan, 844 So.2d at 635.
and
Accordingly, Conahan has failed to establish that a
Giglio violation occurred, and we affirm the circuit
court’s denial of relief.
Conahan, 118 So. 3d at 728-29.
The Florida Supreme Court reasonably applied Giglio to the
facts in the record.
Conahan offered no evidence challenging the
truth of Montgomery-West’s testimony describing a conversation she
had with Montgomery about Conahan.
Rather, Conahan presented
evidence contrary to Montgomery-West’s testimony about when she
reported the conversation to police.
equivocal.
police
But that testimony had been
Montgomery-West made it clear she thought she told
about
the
conversation
during
her
recorded
statement.
Additionally, the Florida Supreme Court identified other times
Montgomery-West might have relayed the information to police, and
those findings are consistent with the record.
Conahan also failed to demonstrate that prosecutor Lee knew
of any false testimony.
Lee testified that Montgomery-West told
him about the conversation before trial (though it is not clear
when that occurred).
(Doc. #89-6 at 1006-07).
And he denied
having any belief or indication that Montgomery-West testified
falsely.
(Id.
at
1013).
There
disbelieved Montgomery-West.
- 25 -
is
no
evidence
that
Lee
Conahan only offers evidence challenging Montgomery-West’s
testimony about when she reported the conversation to police, not
her testimony about the conversation itself.
The Florida Supreme
Court nonetheless considered the materiality of the conversation
itself and found it duplicative of other evidence linking Conahan
and Montgomery—namely, the testimony of Neuman and Whitaker.
Court
finds
that
fair-minded
jurists
could
conclusions, which precludes habeas relief.
come
to
The
these
See, Harrington,
supra.
The Florida Supreme Court reasonably applied the correct
legal principles to Conahan’s Giglio claim.
Ground 2 is denied.
c. Ground 3: The State withheld material and exculpatory
evidence and presented misleading evidence
Conahan accuses the State of violating Brady and Giglio when
it failed to disclose a recording made between Detective Weir and
Conahan during a May 29, 1996 sting operation.
Conahan claims,
“In that conversation, Detective Weir offered to be photographed
in bondage by Mr. Conahan, who refused the offer and instead
proposed performing consensual sexual acts on Weir.”
at 37).
(Doc. #26
Conahan argues the recording is exculpatory and would
have impacted the admissibility of Weir’s testimony.
The post-conviction court denied this ground, and the Florida
Supreme Court affirmed:
In order to establish a Brady violation, three elements
must be shown: (1) the evidence at issue was favorable
- 26 -
to the defendant, either because it is exculpatory or is
impeaching; (2) the evidence was suppressed, willfully
or inadvertently, by the State; and (3) because the
evidence was material, its suppression resulted in
prejudice. Strickler v. Greene, 527 U.S. 263, 281–82,
119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Johnson
v. State, 921 So.2d 490, 507 (Fla. 2005); Rogers v.
State, 782 So.2d 373, 378 (Fla. 2001). To establish the
materiality element of Brady, the defendant must
demonstrate “‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different.’” Guzman, 868
So.2d at 506 (quoting United States v. Bagley, 473 U.S.
667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). “A
‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Id. (quoting
Bagley, 473 U.S. at 682, 105 S.Ct. 3375).
When addressing Brady claims, this Court utilizes a
mixed standard of review, “‘defer[ring] to the factual
findings made by the trial court to the extent they are
supported by competent, substantial evidence, but
review[ing] de novo the application of those facts to
the law.’” Sochor, 883 So.2d at 785 (quoting Lightbourne
v. State, 841 So.2d 431, 437–38 (Fla. 2003)).
First, Conahan has failed to establish that the
recording at issue actually exists and that the State
suppressed this evidence. None of the witnesses at the
evidentiary hearing could conclusively say whether or
not a tape had been made of the May 29, 1996, undercover
operation, and no one had ever seen or heard a recording
from that day. Testimony or evidence that recordings
were made on other days or in other operations has no
bearing on whether a recording was made on May 29.
Furthermore, Conahan has not presented any evidence that
the State suppressed the alleged recording. Therefore,
his Brady claim was properly denied on this basis alone.
See Wyatt v. State, 71 So.3d 86, 106 (Fla. 2011) (denying
defendant’s Brady claim because he failed to establish
“the existence of evidence [for the State] to
withhold”).
Second, Conahan has failed to establish that the
evidence is either exculpatory or impeaching. Conahan
claims that the contents of the tape would have shown
that he was interested in seeking sex for money and was
- 27 -
not interested in soliciting men for nude photographs.
However, this very contention is refuted by the record.
The testimony from the undercover officers demonstrates
that on separate occasions Conahan solicited the
officers for sex acts and to pose in nude bondage
photographs. Additionally, Conahan admitted during his
testimony at trial that he solicited Mr. Burden to pose
in nude bondage photographs, who was the victim of the
similar assault that was admitted as Williams Rule
evidence. Finally, Mr. Burden’s independent testimony of
his encounter with Conahan also refutes the argument
that Conahan did not solicit men for nude photographs.
Therefore, if this recording exists, it would not have
the exculpatory effect claimed by the defendant because
other evidence demonstrated the defendant’s solicitation
of men for photographs.
Conahan, 118 So. 3d at 729.
Conahan argues the Florida Supreme Court’s findings about the
existence
(or
non-existence)
of
the
alleged
recording
were
unreasonable, based on the post-conviction testimony of several
police officers.
But none of that evidence contradicts the state
court’s opinion.
•
Officer Weir testified that he wore a “transmitting
device” during the May 29, 1996 undercover operation.
He knew his backup team was monitoring the audio, and
while he assumed it was being recorded, he never saw a
tape. (Doc. #89-6 at 678-80). Weir was only certain that
one of his four undercover operations was recorded.
(Id. at 683).
•
Officer Richard Goff was also involved in the May 29,
1996 operation.
He had a listening device, but not a
- 28 -
recorder.
He testified that somebody usually has a
recording device, but he did not know if another officer
recorded on May 29.
•
(Id. at 689-91).
Deputy Sheriff Ricky Lee Hobbs authorized the undercover
operations.
He testified that the sheriff’s office
“generally recorded, when possible[,]” but he did not
give specific direction to record in this case.
at 710).
(Id.
Hobbs wrote in a report that the conversations
between Conahan and Wier were recorded, but that was not
based on personal knowledge, and Hobbs did not know for
a fact whether the May 29, 1996 operation was recorded.
(Id. at 710-13).
•
Detective John Columbia heard from someone that officers
Padula and Goff made recordings.
•
(Id. at 674).
Detective Scott Clemens testified he wore a “bug” each
time he interacted with Conahan undercover.
He assumed
the conversations were recorded, but he did not do any
recording himself.
(Id. at 727-29).
Conahan did not present any direct evidence that his May 29,
1996 conversation with Wier was recorded.
None of the officers
questioned had personal knowledge of a recording.
The Florida
Supreme Court thus reasonably found that Conahan failed to prove
a recording existed.
- 29 -
Even if a recording did exist, the state court reasonably
found the purported contents would not have been exculpatory.
There was ample evidence at trial that Conahan solicited men for
nude photo shoots, including Conahan’s own admission that he asked
Burden to pose nude.
(See Doc. #89-3 at 1913).
Evidence that
Conahan declined Weir’s offer on May 29, 1996 would not have
meaningfully helped Conahan’s case.
Ground 3 is denied.
d. Ground 4: The State committed persistent prosecutorial
misconduct
Conahan
accuses
prosecutor
Lee
of
the
following
alleged
misconduct: (1) delay and dismissal of trial charges stemming from
the Burden attack to preserve Williams rule evidence; (2) use of
testimony from Hal Linde to show Conahan’s bad character and
propensity to violence; (3) failure to disclose a recording of the
May 29, 1996 conversation between Conahan and Weir; (4) use of
Montgomery-West’s
argument
about
false
Kenneth
testimony;
Smith;
(6)
(5)
improper
Williams
misrepresentation
of
rule
John
Neuman’s testimony; (7) improper argument about Montgomery-West’s
testimony;
and
(8)
Montgomery’s genitals.
improper
argument
that
Conahan
removed
Conahan argues the cumulative effect of
this conduct violated his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights.
Conahan asserted different claims of prosecutorial misconduct
on direct appeal.
The Florida Supreme Court found the State made
- 30 -
improper comments during its opening statement, but concluded this
was harmless error.
(Fla. 2003).
Conahan v. State, 844 So. 2d 629, 638-40
Conahan raised additional claims of prosecutorial
misconduct in his Rule 3.851 motion, but the Florida Supreme Court
found them procedurally barred:
Conahan’s additional prosecutorial misconduct claims
should have or could have been raised on direct appeal.
See Franqui v. State, 965 So. 2d at 35 (holding the
defendant’s claim that improper prosecutorial comments
constituted fundamental error was procedurally barred
because it could have been raised as fundamental error
on direct appeal); Spencer, 842 So. 2d at 68 (holding
that “[i]ssues which either were or could have been
litigated…upon direct appeal are not cognizable through
collateral attack”) (quoting Smith v. State, 445 So. 2d
323, 325 (Fla. 1983)). Therefore, Conahan’s claims are
procedurally barred, and we affirm the circuit court’s
denial.
Conahan, 118 So. 3d at 732.
Conahan also argued in a state habeas petition that his
appellate
counsel
misconduct claims.
should
have
asserted
five
prosecutorial-
The Florida Supreme Court found two of those
claims procedurally barred by state law because Conahan raised
them in his Rule 3.851 motion.
Id. at 735.
The court rejected
the others as procedurally barred because they were not preserved
at trial, and found them meritless:
Because the remaining claims were not properly preserved
at trial by objection, appellate counsel cannot be
deficient for failing to raise these claims on appeal
unless the claims constitute fundamental error. See
Valle, 837 So.2d at 909. As previously explained, in
order to be a fundamental error, “ ‘the error must reach
down into the validity of the trial itself to the extent
- 31 -
that a verdict of guilty could not have been obtained
without the assistance of the alleged error.’” Jaimes,
51 So.3d at 448 (quoting Delva, 575 So.2d at 644–45).
Conahan
first
claims
that
the
State
committed
prosecutorial misconduct by filing a nolle prosequi in
the Burden case in order to gain a tactical advantage.
However, Conahan provides no support for this assertion.
Furthermore, there was no improper delay because as the
circuit court found the State never re-filed charges in
the Burden case. Thus, this claim is without merit.
Next, Conahan claims that the State misrepresented the
testimony of Newman in the arguments opposing Conahan's
motion for judgment of acquittal. However, this claim is
refuted by the record. Specifically, the prosecutor
argued that Newman had testified that Conahan initially
denied knowing Montgomery, but then admitted he did know
Montgomery and characterized Montgomery as a mistake.
This is indeed the testimony that Newman provided at
trial. Thus, the prosecution presented an accurate
summary of Newman's testimony, and there was no
misconduct.
Additionally,
Conahan
claims
that
the
State
misrepresented the testimony of Mrs. Montgomery in
arguments opposing Conahan's motion for judgment of
acquittal. However, this claim is also refuted by the
record. Specifically, the prosecutor argued that Mrs.
Montgomery had testified that her son told her that he
had met a man named Conahan who was a nurse and had been
in the Navy and that someone had offered her son $200 to
pose in nude photographs. This is an accurate summary of
Mrs. Montgomery's trial testimony. Therefore, this
argument was not improper.
Next, Conahan claims that the State made improper
arguments while opposing his motion for judgment of
acquittal by implying that the reason the victim's
genitals had been removed was to eliminate DNA evidence
and that the genitals had been removed by a sharp knife,
the same kind that Conahan had purchased that day.
However, Conahan is not entitled to relief. The alleged
improper
statements
were
made
as
part
of
the
prosecutor's specific argument opposing the judgment of
acquittal on the sexual battery charge, but the trial
court granted Conahan's motion for judgment of acquittal
- 32 -
on the sexual battery charge. Therefore, even if these
arguments were misleading or improper, the error was not
fundamental, and appellate counsel cannot be held
deficient for failing to raise a meritless issue.
Schoenwetter v. State, 46 So.3d 535, 563 (Fla.2010)
(citing Rutherford v. Moore, 774 So.2d 637, 643
(Fla.2000)).
Finally, Conahan claims that the State made improper
comments during the closing arguments of the guilt phase
by (1) implying that Hal Linde held back in his testimony
as to the full extent of Conahan's fantasy; (2) by
arguing that Conahan admitted to having a dark, sexual
fantasy; and (3) by arguing in conflict with the medical
examiner's testimony that Conahan used a razor sharp
knife to remove the genitals of Montgomery and stating
there was some foreign material left behind in the
genital area. Again, Conahan is not entitled to relief.
During closing arguments in the guilt phase, the
prosecutor argued that Hal Linde, Conahan's former
lover, had testified to Conahan's bondage fantasy that
involved “picking up hitchhikers, taking them out in the
woods, tying them up and having sex with them.” He then
stated that it was obvious that Mr. Linde still cared
for Conahan and that Mr. Linde held back the ultimate
culmination of the fantasy, which was to murder the men
after tying them up and having sex with them. These
comments were not improper misrepresentations as the
record shows that Mr. Linde did in fact testify about
Conahan's sexual bondage fantasy and did admit on the
record that he was still in love with Conahan. Implying
that the culmination of the fantasy was murder was
reasonable given other evidence in the case. Conahan had
seemingly acted out this same fantasy with Burden, and,
as Burden testified at trial, Conahan attempted to kill
Burden by trying to strangle him. Additionally, the
record supports the prosecutor's statement that Conahan
admitted during his testimony to having a sexual bondage
fantasy that included tying individuals up in the woods.
Furthermore, the medical examiner testified at trial
that the genitals had been removed “very precisely with
a sharp knife, ... or a scalpel blade, very sharp” and
that upon examination of the area “some foreign material
was there.” Therefore, the prosecutor's comments that
Conahan removed the victim's genitals with a razor sharp
- 33 -
knife and that there was foreign material left behind
was an accurate summary of all of the testimony and
evidence that had been presented.
Accordingly, because appellate counsel cannot be deemed
deficient for failing to raise meritless or procedurally
barred issues, we deny relief.
Id. at 735-37.
Conahan argues the Florida Supreme Court was wrong when it
held there was no fundamental error.
That argument fails because
“the fundamental error question is an issue of state law, and state
law is what the state courts say it is.”
Pinkney v. Sec’y, DOC,
876 F.3d 1290, 1299 (11th Cir. 2017) (“As the Supreme Court and
this Court have repeatedly acknowledged, it is not a federal
court’s
role
to
examine
the
propriety
of
a
state
court’s
determination of state law.”).
Conahan also attempts to excuse his failure to raise the
Burden issue on direct appeal because the appellate record was
incomplete.
(Doc. #27 at 22-25).
But he does not identify any
particular documents that were omitted from the record, nor does
he
explain
how
any
such
omission
caused
his
default.
This
conclusory, unsupported claim of an incomplete record does not
overcome the procedural default.
Each claim in Ground 4 is denied.
- 34 -
e. Ground 5: Trial
sentencing phase
counsel
was
ineffective
in
the
Attorney Paul Sullivan led the defense team in the sentencing
phase of Conahan’s trial.
Conahan argues Sullivan failed to
investigate and present certain mitigation evidence and failed to
adequately question prospective jurors.
i. Mitigation evidence
Conahan claims Sullivan failed to adequately prepare and
present a mitigation case during the sentencing phase.
raised this ground in his Rule 3.851 motion.
Conahan
After an evidentiary
hearing, the postconviction court found no deficiency or prejudice
and denied both claims.
The Florida Supreme Court affirmed:
Conahan claims that trial counsel was ineffective for
failing to adequately investigate and present mitigation
evidence in the penalty phase. Specifically, he claims
trial counsel was ineffective for failing to present the
mental health and competency evaluations of Doctor
Gunder
and
Doctor
Keown,
failing
to
have
a
neuropsychologist evaluate him, and failing to present
the testimony of the mitigation specialists, the
investigator, and his sister. We affirm the circuit
court’s denial of relief.
As explained earlier, this Court has described the two
prongs of Strickland as follows:
First, the claimant must identify particular
acts or omissions of the lawyer that are shown
to be outside the broad range of reasonably
competent
performance
under
prevailing
professional standards. Second, the clear,
substantial deficiency shown must further be
demonstrated to have so affected the fairness
and reliability of the proceeding that
confidence in the outcome is undermined.
- 35 -
Bolin, 41 So.3d at 155 (quoting Maxwell, 490 So.2d at
932).
Regarding the second prong,
[the defendant] must show that but for his
counsel’s deficiency, there is a reasonable
probability he would have received a different
sentence. To assess that probability, we
consider “the totality of the available
mitigation evidence—both that adduced at
trial, and the evidence adduced in the
[postconviction] proceeding”—and “reweigh it
against the evidence in aggravation.”
Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 453–
54, 175 L. Ed.2d 398 (2009) (quoting Williams v. Taylor,
529 U.S. 362, 397–98, 120 S. Ct. 1495, 146 L. Ed.2d 389
(2000)). “A reasonable probability is a ‘probability
sufficient to undermine confidence in the outcome.’”
Henry, 948 So. 2d at 617 (quoting Strickland, 466 U.S.
at 694, 104 S.Ct. 2052).
Here, Conahan has failed to demonstrate that trial
counsel’s performance resulted in prejudice. At the
evidentiary hearing, Conahan did not present any
additional
statutory
or
non-statutory
mitigation
evidence, experts, or witnesses that would have been
available at trial and that trial counsel failed to
present. Additionally, Conahan did not present his
sister’s testimony at the evidentiary hearing, so it is
unknown how it could possibly have aided him.
Thus, Conahan has not demonstrated prejudice because
“the mitigating evidence adduced at the evidentiary
hearing combined with the mitigation evidence presented
at the penalty phase would not outweigh the evidence in
aggravation.” Tanzi v. State, 94 So.3d 482, 491 (Fla.
2012); see also Porter, 130 S.Ct. at 453–54. In other
words, Conahan did not demonstrate that calling any of
these individuals as witnesses would have resulted in
mitigation that would “undermine this Court’s confidence
in the sentence of death when viewed in the context of
the penalty phase evidence and the mitigators and
aggravators found by the trial court.” Hurst v. State,
18 So.3d 975, 1013 (Fla. 2009). Accordingly, we affirm
the circuit court’s denial of relief.
- 36 -
Conahan, 118 So. 3d at 730.
Conahan attacks the postconviction court’s determination that
Sullivan’s
performance
was
not
deficient,
but
he
does
not
meaningfully challenge the Florida Supreme Court’s finding that he
failed to establish prejudice.
And indeed, the record supports
the state court’s determination that Conahan failed to identify
any
mitigation
evidence
that
Sullivan
unreasonably
failed
to
present.
In his habeas petition, Conahan points to the following
omissions by Sullivan: he did not arrange a neuropsychological
evaluation
of
Conahan
testimony;
he
did
or
not
present
present
any
expert
testimony
from
mental
health
Shawn
Luedke
(Conahan’s sister) or investigator Laura Blankman; and he did not
introduce
the
mental
health
and
competency
evaluations
that
indicated Conahan was neither mentally ill nor a sexual sadist.
Conahan failed to prove that any of these omissions prejudiced
him.
The mental health and competency evaluations did not include
any mitigating findings, and even now, Conahan does not identify
any mitigation theory those reports could have supported.
Conahan
also failed to produce any evidence that a neuropsychological
evaluation
or
mitigating.
postconviction
other
He
did
mental
not
hearing.
health
testimony
present
any
such
Sullivan
did
not
- 37 -
would
have
testimony
call
Shawn
at
been
the
Luedke
because she did not want to testify, and Conahan did not want to
involve her.
(Doc. #89-6 at 533).
Luedke did not testify at the
evidentiary hearing, so Conahan can only speculate about what she
might have said.
because
he
testimony.
did
Sullivan testified he did not call Blankman
not
think
(Id. at 432).
she
could
give
any
non-duplicative
At the postconviction hearing, Blankman
recounted the investigative work she did for the case, but she did
not describe any mitigation testimony she could have contributed
at sentencing.
Nor did she testify she was available to testify—
she had not attended either phase of the trial.
(Id. at 915-57).
The record supports the Florida Supreme Court’s finding that
Conahan failed to prove the existence of any available mitigating
evidence that Sullivan failed to present.
Because Conahan failed
to show prejudice, the Florida Supreme Court correctly applied
Strickland by denying this sub-ground.
ii. Jury selection
Conahan also argues Sullivan should have questioned the jury
venire about their feelings or opinions concerning mitigation,
homosexuality,
sexual
fantasies,
bondage,
or
drug
use.
The
postconviction court found that Conahan failed to establish either
prong
of
Strickland.
On
appeal,
Conahan
only
argued
the
homosexuality issue, so the other issues are unexhausted and
procedurally barred.
The Florida Supreme Court found that Conahan
failed to prove this claim:
- 38 -
Specifically, Conahan has failed to establish prejudice
under Strickland. This Court has previously held that
a defendant must demonstrate that an unqualified or
biased juror actually served on his jury in order to
demonstrate prejudice in a postconviction ineffective
assistance of counsel claim. See Davis v. State, 928
So. 2d 1089, 1117 (Fla. 2005).
Conahan has not
presented any evidence that a juror who was biased
because of his or her personal views regarding
homosexuality actually served on his jury. Therefore,
there is not a reasonable probability of a different
sentence, and our confidence in the outcome is not
undermined.
Conahan, 118 So. 3d at 731.
The Florida Supreme Court correctly applied Strickland here.
Conahan presented no evidence that any juror was biased against
homosexuality.
In his appeal brief, Conahan asked the court to
presume prejudice “because when it comes to homosexuality in modern
society,
few
rhetoric.”
issues
are
as
polarizing
(Doc. #89-6 at 1120).
that presumption.
and
cause
such
heated
The court correctly rejected
See Fennell v. Sec’y, Fla. Dep’t of Corr., 582
F. App’x 828, 834 (11th Cir. 2014) (rejecting a jury-selection
Strickland claim because the petitioner “did not show that [the
juror] was actually biased against him”).
Conahan presents a new factual basis in his federal habeas
petition.
During
the
sentencing
phase,
the
bailiff
found
newspaper articles about two unrelated murders in the jury room.
One described a murder case in Wyoming, in which the prosecution
emphasized homosexual relations as a motivation for the killing.
Conahan did not develop this argument in state court, so it is
- 39 -
unexhausted.
See McNair v. Campbell, 416 F.3d 1291, 1302 (11th
Cir. 2005) (“While we do not require a verbatim restatement of the
claims brought in state court, we do require that a petitioner
presented his claims to the state court such that a reasonable
reader would understand each claim’s particular legal basis and
specific
factual
foundation.”
citations omitted)).
(internal
quotation
marks
and
And even if Conahan had properly exhausted
this specific factual foundation in state court, this sub-ground
would still be too speculative to prove prejudice under Strickland.
Ground 5 is denied.
f. Ground 6: Admission
fundamental error
of
Williams
rule
evidence
was
Conahan argues the trial court misapplied Florida law when it
admitted evidence of certain extrinsic acts under the Williams
rule, including the aborted attack on Burden and the solicitations
of Detectives Weir and Clemens.
on direct appeal.
Conahan did not raise this claim
But the state court had an opportunity to
consider the issue when Conahan argued in his state habeas petition
that his appellate counsel was ineffective for failing to raise
the claim on direct appeal.
The Florida Supreme Court found the
trial court properly admitted the evidence under Florida law:
In this case, the admission of the Williams rule evidence
was not error, let alone fundamental error. First, the
Williams rule evidence was established by clear and
convincing evidence.
Mr. Burden gave unrebutted
testimony at trial detailing his encounter with Conahan
and the assault. Furthermore, the undercover detectives
- 40 -
testified at trial regarding their interactions with
Conahan and how Conahan had solicited them to pose in
nude bondage photographs.
Additionally, there were
recordings of some of these operations that confirmed
the detectives’ testimony.
Second, the evidence was sufficiently similar and
properly admitted because as the trial court found,
there were various points of similarity that were
relevant to prove a common scheme or plan and an unusual
modus operandi.
We have previously held that the
collateral crime does not have to be identical to the
crime charged in order to be admitted as Williams rule
evidence. See Gore v. State, 599 So.2d 978, 984 (Fla.
1992) (noting that the collateral crime does not have to
be identical to the crime charged and finding that the
collateral crime in Gore was properly admitted and the
dissimilarities seemed to be the result of differences
in opportunity rather than differences in modus
operandi); see also Durousseau v. State, 55 So.3d 543,
551-52 (Fla. 2010) (holding that evidence that the
defendant committed substantially similar crimes on
other occasions was properly admitted as Williams rule
evidence because it was relevant to material issues such
as identify and premeditation), cert. denied, --- U.S.
---, 132 S.Ct. 149, 181 L.Ed.2d 66 (2011).
Specifically,
the
trial
court
found
multiple
similarities between the victims, Burden and Montgomery,
namely age, race, height, weight, and complexion. There
were similarities between the crime scenes, including
that they were both remote, secluded, wooded areas,
accessible only by feet, and the victims were tied to a
tree.
In addition, the crimes were conducted in a
similar manner.
Clothesline-like rope was used,
placement of rope and the strangulation caused grooved
abrasions on the neck in the same area, both victims
were naked, ropes were placed tightly on the wrists of
the victims, the victims were offered money to pose in
nude photos, and Conahan had purchased cutting pliers
near the time of each crime.
Furthermore, although the Williams rule evidence was
helpful in establishing a common scheme or plan and a
unique modus operandi, it did not become a feature of
the trial.
The State produced other evidence that
established Conahan’s guilt, including testimony from
- 41 -
other witnesses that the victim and Conahan knew each
other, testimony from the victim’s friends that
Montgomery stated he was going to do something to make
$200 on the night he was killed, evidence that Conahan
withdrew a similar amount of cash from an ATM that
evening, and a Walmart receipt showing that on the
evening Conahan bought a rope identical to the one that
the victim was tied up with, as well as a pair of pliers,
polaroid film, and a knife. There was also testimony
from the victim’s mother that her son had told her he
had met a man named Conahan and that someone had offered
him money to pose in nude photographs. Conahan’s former
lover testified that Conahan had a bondage fantasy, and
Conahan himself admitted that he had a bondage fantasy.
Moreover, there was other forensic evidence.
Accordingly, the Williams rule evidence was properly
admitted and did not become an improper feature of the
trial. Because it was properly admitted, there was no
fundamental error.
And appellate counsel cannot be
deemed deficient for failing to raise this meritless
issue.
Conahan, 118 So. 3d at 733-34.
Conahan’s claim that the Florida courts misapplied Florida
law—namely, the Williams rule and the fundamental error doctrine—
is not cognizable in a federal habeas case.
“[I]t is only
noncompliance with federal law that renders a State’s criminal
judgment susceptible to collateral attack in federal courts.”
Wilson, 562 U.S. at 5; see also Estelle v. McGuire, 502 U.S. 62,
63 (1991) (“It was also improper for the Court of Appeals to base
its holding on its conclusion that the evidence was incorrectly
admitted under state law, since it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions.”).
- 42 -
Conahan asserts that admission of the Williams rule evidence
violated his due process rights.
generally
will
not
review
a
While a federal habeas case
state
court’s
decisions
on
the
admissibility of evidence, “where a state court’s ruling is claimed
to have deprived a defendant of his right to due process, a federal
court should then inquire only to determine whether the error was
of such magnitude as to deny fundamental fairness to the criminal
trial.”
Tidwell v. Butler, 415 F. App’x 979, 980 (11th Cir. 2011)
(citation omitted).
Conahan has not shown the Williams rule
evidence denied him a fundamentally fair trial.
As the Florida
Supreme Court explained, the Williams rule evidence was relevant
to establish a scheme and modus operandi similar to the murder of
Montgomery.
See id. at 980 n.2.
Though Conahan claimed the
Williams rule evidence violated “clearly applicable United States
Supreme Court precedent[,]” he did not identify a single relevant
Supreme Court case.
Ground 6 is denied.
g. Ground 7: Defective search warrants
Conahan
claims,
“If
the
search
warrants
were
unconstitutional, a number of items and objects were illegally
seized by the police” because “many items listed as objects of the
search in the affidavit were described with no more particularity
than were in the search warrants.”
(Doc. #26 at 88).
Conahan
made a similar argument as part of an ineffective-assistance-of-
- 43 -
appellate-counsel claim in his state habeas petition.
The Florida
Supreme Court rejected it:
Conahan
also
claims
that
appellate
counsel
was
ineffective for failing to argue on direct appeal that
there was a flawed search. However, Conahan is not
entitled to habeas relief because this claim is facially
insufficient. A habeas petition must plead specific
facts that entitle the defendant to relief. Conclusory
allegations have repeatedly been held insufficient by
this Court because they do not permit the court to
examine the specific allegations against the record.
Bradley v. State, 33 So.3d 664, 685 (Fla. 2010) (citing
Doorbal v. State, 983 So.2d 464, 482 (Fla. 2008)); Patton
v. State, 878 So.2d 368, 380 (Fla. 2004) (citing Ragsdale
v. State, 720 So.2d 203, 207 (Fla. 1998) (finding that
conclusory allegations are also not sufficient for
appellate purposes in habeas proceedings)). Because
Conahan fails to plead specific facts as to how the
search
warrants
and
supporting
affidavits
were
deficient,
his
claim
is
merely
conclusory
and
speculative. Therefore, he is not entitled to relief.
Conahan, 118 So. 3d at 734.
This
ground
insufficient.
fails
for
the
same
reason—it
is
facially
Conahan merely speculates—without any supporting
facts—that some search warrants might have been unconstitutional.
He does not allege any specific deficiencies in the warrants or
affidavits.
And because Conahan failed to develop any factual
basis for this claim in state court, the warrants and affidavits
are not in the record, and Conahan may not introduce them now.
See 28 U.S.C. § 2254(e)(2); see also Shinn v. Ramirez, 142 S. Ct.
1718, 1728 (2022).
any federal law.
Conahan also fails to allege a violation of
Ground 7 is denied.
- 44 -
h. Ground 8: The State failed to disclose promises of
assistance made to Burden in return for his testimony
In a 2018 supplement to his federal habeas petition, Conahan
raised a new Brady/Giglio claim.
At the time of Conahan’s trial,
Burden was in the early years of a maximum 25-year prison sentence
in Ohio.
Conahan’s counsel received a letter Burden wrote to a
man named Ken Karnig that claimed prosecutor Lee told Burden he
would help with the Ohio parole board.
in interviews and an affidavit.
Burden repeated that claim
(Doc. #57-1).
A handwritten line
at the bottom of the affidavit claims Lee told Burden not to
disclose the promise.
(Id. at 15).
Burden testified at trial
that no one offered him anything in exchange for testifying.
(Doc.
#89-3 at 873).
Conahan raised this claim in state court in a successive Rule
3.851 motion.
it.
The state postconviction court summarily rejected
The Florida Supreme Court affirmed because Conahan failed to
satisfy
Florida’s
standard
for
a
new
trial
based
on
newly
discovered evidence, and because the new evidence was not material
under the Giglio and Brady standards:
To obtain a new trial based on newly discovered evidence,
the second prong requires that “the newly discovered
evidence must be of such nature that it would probably
produce an acquittal on retrial.” Johnston v. State 27,
So.3d 11, 18 (Fla. 2010) (quoting Jones v. State, 709
SO. 2d 512, 521 (Fla. 1998)). “If the defendant is
seeking to vacate a sentence, the second prong requires
that the newly discovered evidence would probably yield
a less severe sentence.” Id. at 18-19 (quoting Marek v.
State, 14 So. 3d 985, 990 (Fla. 2009)).
- 45 -
Evidence is material under Giglio “if there is any
reasonable possibility that it could have affected the
verdict, and the State bears the burden of proving the
false testimony was not material by demonstrating it was
harmless beyond a reasonable doubt.” Rivera v. State,
187 So. 3d 822, 835 (Fla. 2015). Under Brady, “[t]o
establish the materiality prong, a defendant must
demonstrate a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different. In other
words, evidence is material under Brady only if it
undermines confidence in the verdict.” Id. at 838
(citation omitted).
Here, in Burden's November 2015 affidavit, Burden
explained that he would not have testified voluntarily
but for a promise from the prosecutor to write a letter
to the parole board on Burden's behalf. Burden did not
recant his testimony that Conahan tied him to a tree and
attempted to sodomize and strangle him. Moreover, there
was physical evidence corroborating Burden's testimony,
including scars around Burden's neck and indentations
around the tree from the rope that Conahan used to
restrain
and
to
attempt
to
strangle
Burden.
Additionally, the trier-of-fact was already aware from
Burden's testimony that Burden hoped that by testifying
he would get documentation illustrating his cooperation
that he could contribute to his court file and prison
record and that he planned to inform the parole board
about his cooperation in the Montgomery case.
Accordingly, we affirm the denial of Conahan's first
claim because the alleged newly discovered evidence
would not probably produce an acquittal or a less severe
sentence, there is not a reasonable possibility that it
could have affected the result, and our confidence in
the outcome is not undermined. See Kormondy v. State,
154 So. 3d 341, 352–53 (Fla. 2015); State v. Woodel, 145
So. 3d 782, 806–07 (Fla. 2014); Ponticelli v. State, 941
So. 2d 1073, 1085–86, 1088–89 (Fla. 2006).
Conahan, 2017 WL 656306 at *1.
The Florida Supreme Court reasonably applied the federal
standard for Giglio/Brady claims.
- 46 -
It correctly recognized that
the State must prove the materiality prong beyond a reasonable
doubt, and its determination that the State carried its burden was
reasonable.
Burden did not claim Lee’s promise influenced the
substance of his testimony.
Rather, his affidavit states, “If
Prosecutor Lee had not promised that he would write the letter to
the Parole Board, I would have come back to Ohio without testifying
(Doc. #57-1 at 14).
or cooperating.” 7
If the affidavit left any
uncertainty about when Lee allegedly made the promise, Burden’s
letter to Karnig cleared it up.
He wrote, “After we land [sic]
we drove to Desoto County Jail where I stayed during the trial.
I ask Mr. Lee if he would give me a little help with the parole
board and he tells me he’ll go to bat for me!”
(Id. at 3).
The
timing eliminates any implication that Burden concocted a story
about Conahan because of the alleged promise.
Burden identified
Conahan as his attacker and described the attack multiple times
years earlier—the record contains a detailed account of the attack
Burden gave in a deposition about two years before trial.
#89-7 at 150-203).
The
newly
credibility.
the
trial
(Doc.
Burden has not recanted any of that testimony.
discovered
evidence
is
relevant
to
Burden’s
But it would not have made a significant impact on
judge—the
guilt-phase
factfinder
already questioned Burden’s credibility.
in
this
case—who
(Doc. #89-3 at 1583 (“I
The postconviction court noted that Burden was subject to a
subpoena. (Doc. #89-6).
7
- 47 -
would agree with the Defendant’s argument that had Burden simply
testified his testimony might be subject to some questionable
credibility”)).
The court credited Burden’s testimony about the
attack because it was corroborated by physical evidence, including
scars on Burden’s neck and pictures police took during their
investigation.
(Id.)
Thus, the newly discovered evidence did
not undermine Burden’s inculpatory testimony, nor would it have
impacted
the
admissibility
of
Burden’s
testimony
under
the
Williams rule.
There is no reasonable probability that evidence of Lee’s
alleged secret promise to write the Ohio parole board a letter on
Burden’s behalf would change the outcome of the proceedings.
Ground 8 is denied.
i. Ground 9: The Florida Supreme Court misapplied Hurst v.
Florida
In Hurst v. Florida, 577 U.S. 92 (2016), the Supreme Court
held that Florida’s capital sentencing scheme violated the Sixth
Amendment.
The Hurst Court summarized the pre-Hurst sentencing
procedure Florida courts used after a defendant was convicted of
a capital crime:
The additional sentencing proceeding Florida employs is
a “hybrid” proceeding in which a jury renders an advisory
verdict but the judge makes the ultimate sentencing
determinations.
First, the sentencing judge conducts
an evidentiary hearing before a jury. Next, the jury
renders an advisory sentence of life or death without
specifying the factual basis of its recommendation.
Notwithstanding the recommendation of a majority of the
- 48 -
jury, the court, after weighing the aggravating and
mitigating circumstances, shall enter a sentence of life
imprisonment or death. If the court imposes death, it
must set forth in writing its findings upon which the
sentence of death is based.
Although the judge must
give
the
jury
recommendation
great
weight,
the
sentencing order must reflect the trial judge’s
independent judgment about the existence of aggravating
and mitigating factors.
Hurst v. Florida, 577 U.S. 92 at 95-96 (2016) (internal quotation
marks and citations omitted).
This procedure was in effect when
Conahan
The
was
sentenced.
Supreme
Court
found
it
unconstitutional because it requires a judge—not a jury—to make
the
critical
penalty.
factual
Id. at 98.
findings
necessary
to
impose
the
death
The Court declined to address the State’s
assertion that any error was harmless and remanded the case.
Id.
at 102-03.
On remand, the Florida Supreme Court went a step further.
Along with the existence of aggravating circumstances, it held
that a “jury must also unanimously find that the aggravating
factors are sufficient for the imposition of death and unanimously
find that the aggravating factors outweigh the mitigation before
a sentence of death may be considered by the judge.”
State, 202 So. 3d 40, 54 (Fla. 2016).
Hurst v.
The court based its
heightened protection in part on Florida law and in part on its
understanding that “Hurst v. Florida mandates that all the findings
necessary for imposition of a death sentence are ‘elements’ that
must be found by a jury[.]”
Id. at 57.
- 49 -
The Florida legislature codified Hurst v. State’s heightened
standard in 2017.
Under Florida Statute § 921.141, a court may
only impose the death penalty if a jury unanimously (1) finds at
least one aggravating factor and (2) determines the defendant
should be sentenced to death.
The Florida Supreme Court has since
recognized that it “erred in Hurst v. State when [it] held that
the Eighth Amendment requires a unanimous jury recommendation of
death.”
State v. Poole, 297 So. 3d 487, 504 (Fla. 2020) (citing
Spaziano v. Florida, 468 U.S. 447 (1984)).
The court receded from
Hurst v. State “except to the extent that it held that a jury must
unanimously
find
the
existence
of
a
circumstance beyond a reasonable doubt.”
statutory
aggravating
Id. at 491.
Conahan argued in a successive Rule 3.851 motion that his
sentence
must
be
vacated
in
light
of
Hurst,
Caldwell
Mississippi, 8 and the amended Florida Statute § 921.141.
v.
The
Florida Supreme Court agreed that Hurst retroactively applies to
Conahan’s case, but denied relief:
[B]ecause we find that the Hurst error in this case is
harmless beyond a reasonable doubt, we affirm the denial
of Hurst relief. See Davis v. State, 207 So. 3d 142,
175 (Fla. 2016) (“The unanimous recommendations here are
precisely
what
we
determined
in
Hurst
to
be
constitutionally necessary to impose a sentence of
death.”), cert. denied, --- U.S. ----, 137 S.Ct. 2218,
198 L.Ed.2d 663 (2017). We also reject Conahan’s Hurstinduced Caldwell claim. See Reynolds v. State, 251 So.
3d 811, 824-25 (Fla. 2018) petition for cert. filed, No.
18-5181 (U.S. July 3, 2018).
Finally, we reject
8
Caldwell v. Mississippi, 472 U.S. 320 (1985)
- 50 -
Conahan’s contention that he is entitled to application
of chapter 2017-1, Laws of Florida.
See Taylor v.
State, 246 So. 3d 231, 240 (Fla. 2018) (“[W]e rejected
as without merit the claim that chapter 2017-1, Laws of
Florida, created a substantive right that must be
retroactively applied.”).
Conahan v. State, 258 So. 3d 1237, 1238 (Fla. 2018).
In a
supplement to his federal habeas petition, Conahan challenges the
state court’s rejection of his three Hurst-related claims.
i. Harmless error
Conahan argues the Florida Supreme Court did not conduct a
proper harmless-error review, but rather applies a per se rule of
denying Hurst claims when a jury unanimously recommended the death
penalty.
The Florida Supreme Court explained in a different case
how it determines when a Hurst error is harmless:
Preliminarily,
we
look
to
whether
the
jury
recommendation
was
unanimous…Yet
a
unanimous
recommendation is not sufficient alone; rather, it
begins a foundation for us to conclude beyond a
reasonable doubt that a rational jury would have
unanimously found that there were sufficient aggravators
to outweigh the mitigating factors. Hence, we look to
other factors such as the jury instructions…Next, we
review the aggravators and mitigators…[W]e have stated
that it must be clear beyond a reasonable doubt that a
rational jury would have unanimously found that there
were sufficient aggravating factors that outweighed the
mitigating circumstances…Finally, we look at the facts
of the case.
Reynolds v. State, 251 So. 3d 811, 815-18 (Fla. 2018) (cleaned
up).
Conahan
fails
to
show
that
the
Florida
Supreme
harmless-error analysis was contrary to any federal law.
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Court’s
First,
the Supreme Court’s Hurst opinion suggests harmless error is an
issue for state courts to decide.
method of review shows why.
The Florida Supreme Court’s
It is built around Florida law, which
is more protective than federal law.
As explained above, the
Constitution permits a Florida court to impose the death penalty
only if a jury unanimously finds the existence of an aggravating
factor.
Florida
law
also
requires
the
jury
to
unanimously
recommend death after considering mitigating factors.
The jury in this case unanimously recommended the death
sentence.
Under both federal and Florida law, a jury is presumed
to follow the trial court’s instructions.
United States v. Perry,
14 F.4th 1253, 1276 (11th Cir. 2021); Carter v. Brown & Williamson
Tobacco Corp., 778 So.2d 932, 942 (Fla. 2000).
can
draw
inferences
instructions.
The
about
trial
a
jury’s
court
in
Reviewing courts
findings
from
the
Conahan’s
case
gave
following instruction:
[I]t is your duty to follow the law that will now be
given to you by the Court and render to the Court an
advisory sentence based upon your determination as to
whether sufficient aggravating circumstances exist to
justify the imposition of the death penalty and whether
sufficient mitigating circumstances exist to outweigh
any aggravating circumstances found to exist…If you find
the aggravating circumstances do not justify the death
penalty, your advisory sentence should be one of life
imprisonment without parole. Should you find sufficient
aggravating circumstances do exist it will then be your
duty to determine whether mitigating circumstances exist
that outweigh the aggravating circumstances.
- 52 -
jury
the
(Doc. #89-4 at 483-86).
Conahan’s jury could not have recommended
the death penalty without first finding at least one aggravating
factor.
That is what the Constitution requires.
Conahan argues
there is a reasonable probability that at least one juror might
have weighed the aggravating and mitigating factors differently
absent the Hurst error, but that argument arises from state law
protections and is not reviewable here.
ii. Caldwell
Conahan’s next claim is based on Caldwell and Hurst.
He
argues the pre-Hurst jury instructions violated Caldwell because
they did not inform the jury that a death recommendation must be
unanimous.
The Supreme Court explained the reach of Caldwell in
Romero v. Oklahoma:
[W]e have since read Caldwell as relevant only to certain
types of comment—those that mislead the jury as to its
role in the sentencing process in a way that allows the
jury to feel less responsible than it should for the
sentencing decision.
Thus, to establish a Caldwell
violation, a defendant necessarily must show that the
remarks to the jury improperly described the role
assigned to the jury by local law.
512 U.S. 1, 9 (1994) (cleaned up).
Conahan fails to identify any part of the trial court’s
instructions that mischaracterized the jury’s role in sentencing.
Nor did he identify any comment from the trial court or prosecutor
that invited the jury to feel less responsible than it should.
Conahan presents no precedent suggesting that Florida’s pre-Hurst
- 53 -
jury instructions violated Caldwell.
Conahan instead relies on
Justice Breyer’s explanatory statement and Justice Sotomayor’s
dissent in the Supreme Court’s denial of certiorari in Reynolds v.
Florida, 139 S. Ct. 27 (2018), both of which are based on reasoning
not adopted by a majority of justices.
habeas
relief
based
on
dissenting
This Court cannot grant
opinions.
See
Purcell
v.
BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th Cir. 1996) (“a
dissenting Supreme Court opinion is not binding precedent”).
For these reasons, Conahan’s Caldwell claim lacks merit.
See
Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (“[I]t
is
clear
that
references
to
and
descriptions
of
the
jury’s
sentencing verdict as an advisory one, as a recommendation to the
judge, and of the judge as the final sentencing authority are not
error
under
Caldwell…because
they
accurately
characterize
the
jury’s and judge’s sentencing roles under Florida law.”).
iii. Revised sentencing statute
Finally, Conahan argues the Florida Supreme Court should have
retroactively applied the 2017 amendments to Florida’s capital
sentencing scheme to Conahan’s case.
The changes to Florida law
prompted by Hurst and codified in Florida Statute § 921.141 are
procedural, not substantive.
Knight v. Fla. Dep’t of Corr., 936
F.3d 1322, 1336-67 (11th Cir. 2019).
held,
“New
rules
retroactively.”
of
And the Supreme Court has
procedure…generally
do
not
apply
Schriro v. Summerlin, 542 U.S. 348, 352 (2004).
- 54 -
The Court recognized exceptions for “a small set of watershed rules
of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.”
marks and citations omitted).
Id. (internal quotations
The amendment of Florida Statute
921.141 does not meet that stringent standard, so federal law does
not require its retroactive application.
See id. (declining to
require retroactive application of Ring v. Arizona, 536 U.S. 584
(2002), which established the right to a jury determination of
aggravating circumstances in capital cases).
IV.
Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (COA).
“A [COA] may issue…only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, a petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were adequate to deserve encouragement
to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 335–36
(2003) (citations omitted). Conahan has not made the requisite
- 55 -
showing here and may not have a certificate of appealability on
any ground of his original or supplemental petitions.
Accordingly, it is hereby
ORDERED:
(1)
Daniel O. Conahan’s Amended Petition for Writ of Habeas
Corpus (Doc. #26) and two supplements (Docs. #56 and
#62) are DENIED.
(2)
Conahan
is
not
entitled
to
a
certificate
of
appealability.
(3)
The Clerk is DIRECTED to terminate any pending motions
and deadlines, enter judgment, and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of March 2023.
Copies:
Counsel of Record
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27th
day
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