Foster v. Secretary, DOC
Filing
107
OPINION AND ORDER denying 89 Amended petition for writ of habeas corpus. Foster is not entitled to a certificate of appealability. The Clerk shall enter judgment and close the case. Signed by Judge John E. Steele on 10/30/2023. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN DON FOSTER,
Petitioner,
v.
Case No:
2:14-cv-597-JES-KCD
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
OPINION AND ORDER
This matter comes before the Court on Petitioner Kevin Don
Foster’s Amended Petition for Writ of Habeas Corpus by a Person in
State Custody (Doc. #89), the Secretary’s Responses (Docs. #27 and
#92), and Foster’s Replies (Docs. #44 and #98). 1
For the reasons
set forth below, the Court denies the Amended Petition.
I.
Background
Foster was convicted of murdering Mark Schwebes and sentenced
to death.
The Florida Supreme Court accurately summarized the
factual and procedural background in its opinion affirming the
conviction and sentence:
Foster’s Amended Petition asserts the nine claims raised in
his original Petition (Doc. #1) and three new claims.
The
Secretary’s original Response addresses the original nine claims,
and his Response to Foster’s Amended Petition addresses the three
new claims.
1
TRIAL
The evidence presented at trial established that in
early April of 1996, a few teenagers organized a group
called the “Lords of Chaos.” The original membership of
the group was made up of Foster, Peter Magnotti and
Christopher Black, the latter two of whom were attending
Riverdale High School (“Riverdale”) at the time. Foster,
the leader of the Lords of Chaos, was not a student. The
group eventually grew to later include, among other
Riverdale students, Derek Shields, Christopher Burnett,
Thomas Torrone, Bradley Young and Russell Ballard as
additional members. Each member of the Lords of Chaos
had a secret code name. Foster's code name was “God.”
The avowed purpose of the group was to create disorder
in the Fort Myers community through a host of criminal
acts.
On April 30, 1996, consistent with its purpose, the group
decided to vandalize Riverdale and set its auditorium on
fire. Foster, Black, and Torrone entered Riverdale and
stole some staplers, canned goods, and a fire
extinguisher to enable them to break the auditorium
windows. Leading the group, Foster carried a gasoline
can to start the fire in the auditorium while the other
group members, Shields, Young, Burnett, Magnotti, and
Ballard, kept watch outside.
The execution of the vandalism was interrupted at around
9:30 p.m., when, to the teenagers' surprise, Riverdale's
band teacher, Mark Schwebes, drove up to the auditorium
on his way from a school function nearby. Upon seeing
the teacher, Foster ran, but Black and Torrone were
confronted by Schwebes who seized the stolen items from
them. Schwebes told them that he would contact
Riverdale's campus police the next day and report the
incident. Schwebes then left to have dinner with a
friend, David Adkins.[FN1]
FN1. Adkins testified that he saw Schwebes'
vehicle parked at the spot where Black and
Torrone were caught by Schwebes at about 9:30
p.m. He also saw someone running from the
general location of Schwebes' vehicle.
When Black and Torrone rejoined the others, Black
declared that Schwebes “has got to die,” to which Foster
- 2 -
replied that it could be done and that if Black could
not do it, he would do it himself. Foster was apparently
concerned that the arrest of Black and Torrone would
lead to the exposure of the group and their criminal
activities.
Subsequently, Black suggested that they follow Schwebes
and make the killing look like a robbery. However, upon
further discussion, the group decided to go to Schwebes'
home and kill him there instead. Foster then told the
group that he would go home and get his gun. They
obtained Schwebes' address and telephone number through
a telephone information assistance operator, and
confirmed this information by calling and identifying
Schwebes' voice on his answering machine. They then went
to Foster's home where they obtained a map to confirm
the exact location of Schwebes' address, and procured
gloves and ski masks in preparation for the killing.
Foster decided to use his shotgun in the killing, and
replaced the standard birdshot with # 1 buckshot, a more
deadly ammunition. The group also retrieved a license
tag they had stolen earlier to use during the crime.
Black,
Shields,
Magnotti,
and
Foster
agreed
to
participate in the murder, and at 11:30 p.m., drove to
Schwebes' home. Shields agreed to knock at the door and
for Black to drive. When the group finally arrived there,
Foster and Shields walked up to Schwebes' door, and as
Shields knocked, Foster hid with the shotgun. As soon as
Schwebes opened the door, Shields got out of the way,
Foster stepped in front of Schwebes and shot him in the
face. As Schwebes' body was convulsing on the ground,
Foster shot him once more.
Although there were no other eyewitnesses, two of
Schwebes' neighbors heard the shots and a car as it left
the scene.[FN2] Paramedics arrived at the scene almost
immediately and declared Schwebes dead. The medical
examiner confirmed that Schwebes died of shotgun wounds
to his head and pelvis, and that Schwebes would have
died immediately from the shot to the face.
FN2. The two witnesses testified to hearing a
car with a loud muffler leaving immediately
after the two shots. Shields' car had a bad
muffler. One testified to seeing a car driving
away.
- 3 -
On the way to Foster's home after the killing, the group
stopped to remove the stolen tag, and Foster wiped off
the tag to remove any fingerprints before discarding it.
Once home, the four of them got into a “group hug” as
Foster congratulated them for successfully sticking to
the plan. Foster then called Burnett and Torrone and
boasted about how he blew off part of Schwebes' face and
to watch for it in the news. The next day, on May 1,
1996, while at Young's apartment, the six o'clock news
reported the murder, and Foster continuously laughed,
hollered, and bragged about it. Young testified that
Foster said that he looked Schwebes right in the eyes
before shooting him in the face and then watched as this
“red cloud” flowed out of his face.
The police found Foster's shotgun, a ski mask, gloves,
and a newspaper clipping of the murder in the trunk of
Magnotti's car. According to Burnett, he was directed by
Foster to put those items in Magnotti's trunk. Foster's
fingerprint was found on the shotgun, the latex gloves,
and the newspaper. Burnett and Magnotti's prints were
also found on the newspaper.
Foster's mother, Ruby Foster (“Ms. Foster”), testified
on direct examination that Foster called her from home
at around 4:30 p.m. on the day of the murder. When she
got home that night, at 9 p.m., Foster was there. She
later left the house at about 9:45 p.m., but found Foster
home when she returned a little past 11 p.m. She made
another trip to the Circle K store and returned at about
11:20 p.m. once again to find Foster where she left him.
On cross-examination, however, Ms. Foster admitted that
she merely assumed that Foster was at home when he called
her.
Additionally,
all
the
participants
in
the
conspiracy and the murder testified that when they met
at Foster's home on the night of the murder, no one was
in the home and Foster had to disable the alarm apparatus
upon entering.
All the members of the Lords of Chaos who participated
in the murder and the conspiracy cooperated with the
State through various plea agreements [FN3] and
testified to the above facts at trial against Foster
with regard to the make-up of the group, Foster's
leadership role in the group, criminal acts committed by
the group prior to the murder, and his leadership and
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mastermind role in the conspiracy and the ensuing
murder. Foster was convicted for the murder of Schwebes.
FN3. Pursuant to plea agreements with the
State
which
required
truthful
testimony
against Foster, the group members were
sentenced as follows: Black and Shields were
sentenced to life without the possibility of
parole; Magnotti was sentenced to thirty-two
years' imprisonment; Burnett was sentenced to
two years in county jail for non-homicidal
offenses; Torrone was sentenced to one year in
county jail, ten years probation, one hundred
hours of community service and restitution. As
to the other members, the record does not
indicate whether there was any plea agreement
or any jail or prison sentences.
PENALTY PHASE
During the penalty phase, the State presented one
witness. The State's witness, Robert Duram, was the
director of student assignment for Lee County and former
principal of Riverdale. Duram testified to his knowledge
and hiring of Schwebes as band director. He also
testified that Schwebes' death was devastating not only
to the school, but also to the rest of the student body,
whose participation in extra-curricular activities
dropped significantly as a result of the tragedy. The
school had to bring in numerous counselors to help the
students cope with the effects of Schwebes' death.
The defense presented numerous witnesses who presented
a picture of Foster as a kind and caring person. May Ann
Robinson, Foster's neighbor, testified that he once
helped her start her car and offered to let her borrow
a lawn mower. Robert Moore, another neighbor, testified
that Foster was well-mannered and a hard worker. Shirley
Boyette found Foster to be very caring, intelligent, and
well-mannered. Robert Fike, Foster's supervisor at a
carpentry shop, and James Voorhees, his co-worker, found
him to be a reliable worker. Voorhees also testified
that Foster was very supportive to Voorhees' son who
suffered
from
and
eventually
died
of
leukemia.
Similarly, Raymond and Patricia Williams testified that
Foster was very nice to their son who suffered from spina
bifida. Peter Albert, who is confined to a wheelchair,
- 5 -
related how Foster had helped Albert's mother care for
him after his wife died. Foster also helped Albert in
numerous other ways, including preparing his meals,
fixing things around the house, and helping Albert in
and out of his swimming pool.
There was additional testimony that described Foster's
involvement with foreign exchange students. Foster was
also known to have given positive advice to young
children. Foster's sister, Kelly Foster, testified to
how he obtained his GED after dropping out of high school
and that he obtained a certificate for the completion of
an “auto cad” program at a vocational-technical school.
Finally, Foster's mother testified that he was born
prematurely and suffered from allergies, and that
Foster's father abandoned him a month after birth. On
cross-examination, many of the witnesses who testified
to Foster's kindness admitted that they had not been in
contact with him for a number of years.
SENTENCE
The jury recommended that Foster be sentenced to death
by
a
nine-to-three
vote.
Following
a
Spencer
hearing,[FN4] the trial court found two aggravating
factors: (1) the capital felony was committed for the
purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody;[FN5] and (2) the
capital felony was committed in a cold, calculated, and
premeditated manner without any pretense of moral or
legal justification.[FN6] Further, the court rejected
the statutory mitigator of age-Foster was eighteen at
the time of the crime-and attached very little to no
weight to some twenty-three nonstatutory mitigators
offered by Foster.[FN7] The trial court followed the
jury's recommendation and imposed the death penalty.
Foster now appeals and raises seven issues for review.
FN4.
Spencer
(Fla.1993).
v.
State,
615
So.2d
688
FN5. See § 921.141(5)(e), Fla. Stat. (1997).
FN6. See § 921.141(5)(i), Fla. Stat. (1997).
FN7. Even though Foster referred to the 23
mitigators as nonstatutory, the trial court
- 6 -
treated them as statutory pursuant to section
921.141(6)(h), Florida Statutes (1997).
FN8. The seven issues are: (1) his numerous
pretrial
change
of
venue
motions
were
improperly denied; (2) the court erred in
permitting the State to elicit hearsay
testimony of several witnesses; (3) comments
of the trial court during the guilt phase
demonstrate that the court had prejudged the
case; (4) the avoid arrest aggravator should
not have been submitted to the jury in the
penalty phase; (5) the trial court erred in
admitting the charging information at the
Spencer hearing; (6) the trial court failed to
properly
consider
the
mitigating
circumstances and its findings are unclear;
and (7) the sentence was disproportionate in
comparison to other cases.
Foster v. State, 778 So. 2d 906, 909–12 (Fla. 2000) (hereafter
“Foster I”).
The Florida Supreme Court upheld Foster’s conviction
and sentence.
Foster did not seek certiorari from the United
States Supreme Court.
Foster filed several state post-conviction motions, including
two motions to vacate the judgment under Florida Rule of Criminal
Procedure 3.850.
The postconviction court held an evidentiary
hearing only on Foster’s claims of ineffective assistance of
counsel in the penalty phase of his trial before denying the Rule
3.850 motions.
Court affirmed.
(Exhibit C36, pp. 3674-3701.)
The Florida Supreme
Foster v. State, 132 So. 3d 40 (Fla. 2013)
(hereafter “Foster II”).
Foster did not seek certiorari from the
United States Supreme Court.
- 7 -
Foster petitioned for a writ of habeas corpus in this Court
on October 16, 2014.
At Foster’s request, the Court stayed this
case to allow the Florida Supreme Court to consider the application
of Hurst v. Florida, 136 S. Ct. 616 (2016) on death-sentenced
prisoners, and to allow Foster to exhaust claims stemming from
Hurst.
The Court ultimately reopened the case on November 21,
2019, and Foster filed an amended petition on January 19, 2020.
The parties have fully briefed all grounds raised in the amended
petition, and it is ripe for review.
II.
Applicable Habeas Law
a. AEDPA
The Antiterrorism Effective Death Penalty Act (AEDPA) governs
a state prisoner’s petition for habeas corpus relief.
§ 2254.
28 U.S.C.
Relief may be granted only 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
- 8 -
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
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
- 9 -
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 fairminded jurists could disagree on the correctness of the state
court’s decision.”
(2011).
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
The
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)
- 10 -
(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
(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
habeas relief for ineffective assistance of counsel.
668, 687-88 (1984).
A petitioner must establish:
466 U.S.
(1) counsel’s
performance was deficient and fell below an objective standard of
reasonableness; and (2) the deficient performance prejudiced the
defense.
Id.
- 11 -
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.”
standard
review
of
Id.
that
This
gives
both
is
a
the
“doubly
state
petitioner’s attorney the benefit of the doubt.
deferential”
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).
- 12 -
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.’”
Id.
(quoting Richter, 562 U.S. at 105).
III. Analysis
a. Ground 1: Whether Foster was denied effective assistance
of counsel in the penalty phase
Two attorneys from the Lee County Public Defender’s Office
represented Foster.
Robert Jacobs was lead attorney, and Marquin
Rinard was second chair.
Jamie Wootton assisted as a paralegal.
Foster claims his defense team failed to adequately investigate
and present mitigating evidence.
The state postconviction court
held an evidentiary hearing on this issue.
Foster presented the
testimony of Rinard, investigator Roberta Harsh, six members of
Foster’s family, and four experts from the fields of psychology
and neurology.
experts.
The State presented testimony from three rebuttal
The state postconviction court denied relief, and Foster
- 13 -
appealed.
The Florida Supreme Court affirmed, addressing each of
Foster’s subclaims as follows:
A. Claim that Defense Counsel Abdicated Responsibility
for Mitigation
We turn first to Foster's claim that trial counsel
abdicated responsibility for the investigation and
presentation of mitigation to Foster's mother. Foster
argues that “the entire penalty phase was presented as
Ms. Foster's version of Kevin's life” and that
“[c]ounsel did not question whether her version was, in
fact, true.” At the evidentiary hearing, Foster
presented Roberta Harsh, defense investigator, who
testified that the defense team “pulled out all the
stops” and used everything at their disposal in
representing Foster. Paralegal James Wootton testified
that even before the guilt phase began, the defense team
knew it had to gear up for the penalty phase due to the
overwhelming amount of evidence of guilt.[FN7] Wootton
testified that Foster had been evaluated by psychiatrist
Dr. Wald early in the case.
FN7.
Wootton
testified
that
his
main
responsibility was to organize all the trial
documents and computerize them into a trial
program called “Trial Scout,” which ultimately
contained thousands of pages of documents.
Dr. Wald, along with neuropsychologist Dr. Masterson who
was to work at Dr. Wald's direction, was appointed almost
immediately after Foster's arrest. The order of
appointment indicated that the experts were to assist
counsel in preparing the defense and to make such
examinations of Foster and such reports to defense
counsel as defense counsel may direct. Wootton testified
that, although there was discussion amongst the defense
team about whether Foster was mentally ill or abused as
a child, the answer was always that he was not. Wootton
also testified that the input from the family indicated
that there was nothing wrong with Foster and that he was
a wholesome, healthy young man who was being framed by
his codefendants. Wootton explained that although
Foster's mother voiced her opinions about the defense,
made suggestions concerning witnesses, and attended
about half of the team meetings on the case, it was
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Foster himself along with lead counsel Robert Jacobs who
made the decision about the theory of his defense, which
was to present Foster as a good child who deserved to be
saved.[FN8]
[FN8] Because Foster's lead defense counsel at
trial, Robert Jacobs, died in 2007, his
testimony
about
what
mitigation
was
investigated and how strategic decisions were
made
concerning
the
penalty
phase
was
unavailable.
Foster also presented the testimony of defense cocounsel Marquin Rinard, an assistant public defender
experienced in capital cases. Rinard explained that a
mitigation specialist was not retained, but that the
defense team compiled Foster's school records and many
of his medical records. Rinard saw no written report
from Dr. Wald, who later explained at the evidentiary
hearing that he did not believe he was asked to prepare
a written report. Dr. Wald's patient records were
unavailable because they had been transferred to a
doctor who purchased his practice in 2001 and were then
lost. However, based on billing records Dr. Wald
maintained, he testified that he did do an evaluation of
Foster and, based on his normal practices, that
evaluation would have attempted to discover any
indication of mental or behavioral disorders. In the
mental status examination, Dr. Wald testified, he would
have looked for delusion patterns, indications of
auditory hallucinations, paranoia, cognitive function,
memory, concentration, and issues of judgment. Dr. Wald
explained that his normal practice would also have been
to look for indications of bipolar disorder, manic
characteristics, depression, and suicidal ideations.
Foster's mother provided alibi information for the guilt
phase and provided a long list of possible witnesses for
the penalty phase but, Rinard testified, it was Jacobs
and Foster who decided on the theory of the defense.
Rinard said he felt sure he and Jacobs discussed Foster's
age, emotional level, and progress in school. According
to Rinard's testimony, none of the witnesses that the
defense team contacted provided any information causing
them to suspect that Foster had mental health problems,
and neither of Foster's defense counsel noted any
indication of mental health problems or depression in
- 15 -
their encounters with Foster. In depositions taken by
the State of seven of Foster's relatives in Amarillo,
Texas, which were attended by a public defender on
Foster's behalf, those relatives reported generally that
Foster had a normal childhood with a loving mother and
extended family. None testified to any abuse of Foster
or to any abusive environment in his home. Rinard
testified that Jacobs took primary responsibility for
both phases of the trial and that, based on the
information they had, defense counsel knew they must
attempt to humanize Foster at the penalty phase of trial
and present him in the best light possible.
In support of the effort to humanize Foster for the
penalty phase jury, Rinard testified that the defense
team compiled a great deal of information about Foster
helping others and being a good person, which they
thought was necessary to overcome the negative guilt
phase evidence about Foster. The defense discovered
incidences in which Foster assisted disabled people in
their homes and did yard work for them, and found that
Foster was closely involved with people who were
terminally ill, all of which was favorable information
for the jury. At the penalty phase of trial, the defense
presented twenty-four witnesses who were members of
Foster's family, friends of the family, childhood
friends of Foster, his former employer, and neighbors.
Their testimony showed that Foster was a normal and good
child loved by family and friends, as well as a helpful,
polite, and compassionate teenager.
At the postconviction evidentiary hearing, Foster's
older half-sister, Kelly Foster, testified that she
assumed lead counsel Jacobs decided what evidence was to
be presented in the penalty phase. As to Foster's
childhood, Kelly testified that her first stepfather,
Kevin Foster's biological father, treated her roughly,
but Foster's mother divorced him and the family moved
soon after Foster was born.[FN9] She testified that the
next stepfather, Brian Burns, was the father figure to
her and Foster for the rest of their childhood. Although
he had anger issues and had been “physical” with their
mother, Burns had been a good father and remained close
to the family even after the divorce. After divorcing
Burns, Foster's mother married again, to truck driver
John Foster, and spent a lot of time on the road with
him, leaving the children with relatives. John Foster
- 16 -
later stopped driving a truck and opened a pawn shop.
Foster's mother divorced him after she and he had a few
“scuffles.” Kelly related that other relatives had
mental problems. Other family members testified at the
evidentiary hearing that there was mental illness in the
family. They also related that Foster was a hyperactive
child who was clumsy and often had accidents. None of
the negative aspects of the family background evidence
was reported to the defense team at the time of trial.
[FN9] Kelly Foster's biological father was
Ronald Newberry, Ruby Foster's first husband.
Based on the evidence presented, the circuit court
denied relief on this claim, finding that defense
counsel did not abdicate their responsibility for
mitigation to Foster's mother. The court concluded that
Foster and lead counsel Jacobs made the decisions
regarding mitigation strategy for the case and that Ms.
Foster merely provided contact information for possible
penalty phase witnesses, suggestions of inconsistencies
in the evidence, and questions that she believed should
be asked of witnesses. The favorable, humanizing
mitigation presented in the penalty phase was the only
mitigation that Foster and his counsel determined should
be presented. We have recognized that “[c]ompetent
defendants who are represented by counsel maintain the
right to make choices in respect to their attorneys'
handling of their cases” which “includes the right to
either waive presentation of mitigation evidence or to
choose what mitigation evidence is introduced by
counsel.” Hojan v. State, 3 So.3d 1204, 1211 (Fla.2009).
The court further found that Foster failed to meet his
burden to establish the prejudice prong of Strickland.
Competent, substantial evidence supports the circuit
court's findings and we affirm denial of relief on this
claim.
B. Claim that
Disorganized
the
Defense
Team
was
Impaired
and
Foster next contends that his defense counsel provided
ineffective assistance because the defense team was
disorganized, confused, and impaired. This claim was
also included within the purview of the evidentiary
hearing. The circuit court found, after hearing the
testimony, that the allegations were unproven. In
- 17 -
denying relief, the court noted testimony that Jacobs,
who had Parkinson's disease, was not adversely affected
in his representation of Foster by his Parkinson's
tremors. Wootton denied seeing any confusion on Jacobs'
part and testified that Jacobs could think on his feet
and do what needed to be done. He said he was around
Jacobs enough to be able to say that Jacobs was not
affected by the disease in any way that would have
hindered his ability to defend Foster. Defense cocounsel Rinard testified that he never saw Jacobs
trembling or confused. The postconviction court stated,
“The Court finds their testimony that Mr. Jacobs was not
trembling or confused to be more credible than those of
other witnesses who were not in close proximity to Mr.
Jacobs during trial, or who have a motive for bias
against Mr. Jacobs and in favor of Defendant's motion.”
In attempting to prove that the defense team was
confused, impaired, and disorganized, Foster relies
primarily on a book about the murder and trial titled
Someone Has to Die Tonight[FN10] by Jim Greenhill which,
Foster contends, reported that the defense appeared
“confused.” Foster also alleges that according to the
Greenhill book, jurors who were close to Jacobs
throughout trial noticed his tremors and confusion and
found it “off-putting.” However, Foster did not present
testimony at the evidentiary hearing in support of these
specific allegations. Foster did present the testimony
of Jack Bates, Jr., Foster's biological father, who
testified at the evidentiary hearing that Jacobs “would
sometimes get I think frustrated, or somewhat confused.”
The State's objection that the statement called for
speculation was sustained. Even if that testimony had
been admitted, it would not have proven that the defense
team was disorganized, confused, or impaired.
[FN10] Jim Greenhill,
Tonight (2006).
Someone
Has
to
Die
Foster also argues that paralegal Wootton characterized
the
defense
as
“disorganized.”
Wootton
actually
testified that when he first started his job with the
public defender, the Foster documents were stored in a
box and were “more so disorganized than organized.” He
explained that his job was “to put it all together to
prepare—to put it into this [trial] software program.”
Thus, Wootton's comment about disorganization did not
- 18 -
refer to the defense team generally, just to the
documents he was given to organize and computerize for
trial preparation—which he testified that he did.[FN11]
The circuit court concluded that Foster failed to meet
his burden that the defense team was in any way impaired
during trial. We agree.
[FN11]
Foster
contends
that
Wootton's
testimony was not competent because evidence
supplemented into the record after the
hearing—a letter written by Wootton—showed
that he had a sexual relationship with
Foster's mother, Ruby Foster, and told her in
the
letter
that
“counsel
fucked
up.”
Regardless of the fact that Wootton may have
had a relationship with Ruby Foster during the
trial and may not have been truthful about
that fact when he testified at the hearing,
the circuit court correctly found that the
totality of the evidence supported the
conclusion that the defense team was not
confused, disorganized, or impaired.
We reiterated in Clark v. State, 35 So.3d 880 (Fla.
2010), that “[a]s long as the trial court's findings are
supported by competent substantial evidence, this Court
will not ‘substitute its judgment for that of the trial
court on questions of fact, likewise of the credibility
of the witnesses as well as the weight to be given the
evidence by the trial court.’ ” Id. at 886 (quoting McLin
v. State, 827 So.2d 948, 954 n. 4 (Fla. 2002)); see also
Bell v. State, 965 So.2d 48, 63 (Fla. 2007) (“Questions
of credibility are left to the determination of the
circuit court, and provided there is competent,
substantial evidence to support those credibility
assessments, we will defer to that court's decision.”
(citing Archer v. State, 934 So.2d 1187, 1196 (Fla. 2006)
(“This Court is highly deferential to a trial court's
judgment
on
the
issue
of
credibility.”))).
The
postconviction
court
had
before
it
competent,
substantial evidence refuting Foster's claim that the
defense team was disorganized, confused, or impaired. We
will not second-guess the circuit court on its findings
based on this evidence or on the court's credibility
determinations. For these reasons, the postconviction
court did not err in denying Foster's claim and we
affirm.
- 19 -
C. Claim of Deficient Investigation and Presentation
of Foster's Background and Mental Mitigation
In Foster's next claim for which an evidentiary hearing
was held, he contends that trial counsel was deficient
in the investigation and presentation of Foster's mental
health and background mitigation, and that counsel
should have sought neuropsychological testing of Foster.
The circuit court denied the claims, concluding that
trial counsel cannot be found deficient in failing to
present negative mitigating information about Foster
when none was provided to counsel by Foster, his family,
or his friends and where counsel had no reason to believe
such negative information existed. The court cited
denial of any mental health issues by Foster and his
family, and concluded that the “subtle” or “soft”
findings of mental issues by Foster's current experts do
not cause the court to find any clear indication existed
that Foster suffered from organic brain damage or other
mental impairments such that trial counsel was obligated
to seek neuropsychological testing. The court further
found that the evidence and testimony presented at the
hearing did not substantiate claims that Foster suffered
a history of concussions, which would have been a red
flag for possible brain damage or that he had an abusive
or troubled childhood. The court found that defense
counsel was never advised of any mitigation arising from
the conditions of Foster's childhood, and disagreed that
the testimony revealed “significant mitigation leads”
which defense counsel should have followed. Thus, the
circuit court concluded that trial counsel made a
reasonable tactical decision not to pursue further
mental health investigation after receiving an initial
diagnosis that there were no mental health issues and
after receiving no indication of mental issues or other
childhood mitigation from Foster and his family.
Accordingly,
the
court
held
that,
under
the
circumstances, it was not unreasonable for counsel to
rely on an attempt to humanize Foster for the jury and
present only favorable mitigation.
As to prejudice, the circuit court concluded that even
if all the information that Foster claims should have
been elicited had been presented in the penalty phase,
there would be no reasonable probability that the
mitigation would have outweighed the aggravation
- 20 -
presented at trial. The court found that the expert
testimony
concerning
mental
impairments
and
the
testimony concerning Foster's childhood and alcohol
abuse, dementia, and mental illness in extended family
members would not have outweighed the aggravating
circumstances in this case. We agree and conclude that
all the court's findings are supported by competent,
substantial evidence.
Defense co-counsel Rinard testified that in 1996 a
public defender investigator interviewed Foster and
asked him about any suicide attempts, involuntary
commitment, chronic drug or alcohol abuse, seizures,
retardation, or serious head injuries. The record shows
Foster's negative responses to these inquiries. The
interview notes also indicate that Foster did not appear
odd-acting, inattentive, hostile, or argumentative. The
circuit court noted that neither Wootton nor Rinard saw
any indications of depression or mental impairment
during their interactions with Foster. Wootton testified
that the defense team discussed whether any additional
experts needed to be retained, but based on the
examination that was done of Foster early in the case
and based on everything else the defense team had before
it, the decision was made that no further experts needed
to be retained to look into mental health issues, abuse,
neglect, or any other similar mitigation because there
was nothing to support it. Although Foster's halfsister, Kelly, testified at the evidentiary hearing that
their childhood was tumultuous, with a series of
stepfathers who on occasion were angry and sometimes
rough with their mother, nothing in her testimony
suggested that Foster had an abusive childhood. She also
described Foster as clumsy and said she had seen him
depressed. Other family members testified at the hearing
that Foster and his sister were often left with relatives
and that their home life was unstructured. However, none
of this information was provided to defense counsel at
the time of trial. Rinard testified that the only
information received from family members—many of whom
testified at the penalty phase of trial—described Foster
and his childhood in favorable terms, and that Foster
and his family were resistant to discussing any other
course of mitigation.
In an effort to establish that neuropsychological
testing was indicated, Foster presented several experts
- 21 -
at the evidentiary hearing. Dr. Ernest Bordini testified
that he administered a number of tests to Foster,
including the Halstead–Reitan Battery of tests, the
Wisconsin Card Sort tests, the Stroop Interference
Procedure test, the Luria Battery of tests, and the
Victor Symptom Validity test for malingering. Dr.
Bordini concluded that Foster has a high verbal IQ score
of 137 but a lower performance IQ score of 105, which
Dr. Bordini opined was indicative of right hemisphere
brain weakness. Dr. Bordini also noted that Foster's
birth records showed he suffered respiratory distress at
birth and was hospitalized for about a week. He opined
that this respiratory distress indicated that Foster was
at high risk of having neurological issues. He
characterized Foster's current reports of past head
injuries as concussions, although Dr. Bordini did not
see medical records confirming concussions suffered by
Foster.
Dr.
Bordini
also
diagnosed
Foster
with
depression occurring after incarceration based on
Foster's current reports of depression to Dr. Bordini.
Finally, Dr. Bordini diagnosed Foster with possible
nonverbal learning disorder, possible bipolar disorder,
and antisocial personality disorder. However, the
State's experts, Dr. Leon Prockup and Dr. Michael
Gamache, disagreed that the records showing the
respiratory distress at birth were indicative of
possible brain damage. Dr. Gamache testified that the
hospital
records
showed
Foster
suffered
common
respiratory distress often seen in newborns when they
lack a “surfactant” on their lungs that enables ease of
breathing immediately after birth. He explained that
this condition is not an indication of lack of oxygen
(hypoxia) or complete lack of oxygen (anoxia). Dr.
Gamache also disagreed that the variance between
Foster's high verbal IQ score and his lower performance
IQ score were indicative of brain damage. He testified
that both scores were above average and not indicative
of impairment. The circuit court found the testimony of
Drs. Prockup and Gamache on these issues to be more
credible.
Dr. Ruben Gur testified that he used the raw data from
Dr. Bordini's neurological testing to produce a “brain
map” that identified areas of Foster's brain which Dr.
Gur said showed frontal lobe impairment that would
affect Foster's ability to plan, to consider long-term
goals, and to make reasoned decisions regarding long-
- 22 -
term consequences. However, Dr. Prockup testified that
in his opinion the brain mapping methodology is not
accurate or valid and that the algorithm on which the
methodology is based was created with insufficient data.
Dr. Prockup discovered no publications or articles on
this type of brain mapping methodology since 1990. Dr.
Gamache testified that, to his knowledge, statistical
brain maps such as this are not frequently used by
neurologists. He opined that the mapping methodology
used by Dr. Gur was not generally accepted in the field
of neuropsychology.[FN12]
[FN12] The brain map which is the subject of
Dr. Gur's testimony, based on statistical data
and data derived from psychological testing,
is to be distinguished from structural or
functional brain imaging from an MRI, fMRI, or
PET scan of an individual's brain.
Foster also presented Dr. Thomas Hyde, who testified
that Foster's facial asymmetry and asymmetrical leg
length were “subtle” findings referable to brain damage
even though Foster received a perfect score on the “mini”
mental state test Dr. Hyde performed on him. Dr. Hyde's
conclusion of possible brain damage was also based on
the variance between Foster's verbal IQ score and his
performance IQ score. Dr. Hyde diagnosed Foster with
significant mood disorder, depression, hypomania, and
mania based “primarily on self reports.” The circuit
court concluded that Dr. Hyde's “subtle” findings were
speculative at best.
Dr. Sultan, who first evaluated Foster in 2002,
diagnosed Foster with possible brain injury due to his
respiratory distress at birth. In addition, she opined
that Foster was significantly depressed, suicidal, and
bipolar. To support her conclusion that Foster was
suicidal, Dr. Sultan cited a gunshot wound Foster
suffered at age sixteen. Dr. Sultan concluded that it
was a suicide attempt primarily based on Foster's
insistence that it was accidental while he was cleaning
a gun. Similarly, she described Foster's act of jumping
off a bridge shortly after release from the hospital as
a possible suicide attempt, even though Foster did not
describe it as a suicide attempt. The hospital records
for treatment of Foster's gunshot wound indicated the
wound was accidental and that upon specific inquiry of
- 23 -
Foster and his mother by hospital staff about suicidal
thoughts or depression, the response was that there were
none. Nothing provided in the evidentiary hearing
refuted the fact that the gunshot wound was accidental.
Nor
was
any
evidence
presented
to
substantiate
speculation that Foster's jump off a bridge soon after
he was released from the hospital after his gunshot wound
was a suicide attempt. The circuit court found that it
“could have been merely a teenage stunt.” Dr. Sultan
also concluded Foster was depressed based on his reports
to her that currently and in his teens he had episodes
of depression. However, these self-reports of depression
which Foster provided his current experts were not
provided to trial counsel, who had no indication that
Foster had suffered any episodes of depression. Dr.
Gamache also testified that the data relied on by Dr.
Sultan did not support her diagnosis that Foster
suffered from bipolar disorder.
As to whether defense counsel should have suspected
Foster had brain damage or mental impairment based on
earlier head injuries, Rinard testified that there were
no records of Foster having received concussions. Foster
presented no evidence at the hearing to substantiate his
experts' speculation that he had suffered concussions as
a child. Even Dr. Bordini, who based much of his
diagnosis on the assumption that Foster had a history of
concussions, conceded on cross-examination that he saw
no medical records supporting a history of concussions.
Moreover, Dr. Wald evaluated Foster prior to trial and
testified that his standard practice in such examination
would be to look for any signs of mental illness or
impairments. Neither Rinard nor Wootton detected any
obvious mental problems in their interactions with
Foster. Nothing in the medical or school records that
trial counsel reviewed indicated that further mental
evaluation was necessary. Foster and his family members
denied there were any mental problems, depression, or
suicidal ideations.
In concluding that trial counsel had no basis to suspect
that Foster might have mental issues that required
investigation, the circuit court cited the testimony at
the evidentiary hearing by Ronald Newberry, who also
testified at the penalty phase of trial, that Foster was
“hyper” but was “just a normal, regular kid.” The circuit
- 24 -
court also noted that certain of Foster's extended
family members testified at the evidentiary hearing that
Foster's grandfather may have suffered from paranoia,
his grandmother had dementia, his aunt was paranoid, an
uncle had trouble with alcohol, and another aunt
committed suicide. However, they did not testify that
they had seen any indications of these problems in
Foster. The court also found no evidence to support the
contention that Foster suffered mentally from the fact
that his maternal grandfather essentially disowned his
mother after she gave birth to him.
We explained in Jones v. State, 998 So.2d 573 (Fla.2008):
While we do not require a mental health
evaluation for mitigation purposes in every
capital case, Arbelaez v. State, 898 So. 2d
25, 34 (Fla. 2005), and “Strickland does not
require
counsel
to
investigate
every
conceivable line of mitigating evidence ...
[or] present mitigating evidence at sentencing
in every case,” Wiggins [v. Smith], 539 U.S.
[510], 533 [123 S. Ct. 2527, 156 L. Ed. 2d 471
(2003)], “an attorney has a strict duty to
conduct a reasonable investigation of a
defendant's
background
for
possible
mitigating evidence.” [State v.] Riechmann,
777 So. 2d [342], 350 [(Fla. 2000)]. Where
available information indicates that the
defendant could have mental health problems,
“such an evaluation is ‘fundamental in
defending
against
the
death
penalty.’”
Arbelaez, 898 So. 2d at 34 (quoting Bruno v.
State, 807 So. 2d 55, 74 (Fla. 2001) (Anstead,
J., concurring in part and dissenting in
part)).
Jones, 998 So.2d at 583 (emphasis added); see also Taylor
v. State, 87 So. 3d 749, 761–62 (Fla. 2012) (reiterating
that when available information indicates the existence
of mental health issues, an evaluation is fundamental
(citing Jones, 998 So.2d at 583)). In this case,
available information did not point to the existence of
mental health issues. The Supreme Court in Strickland
explained:
- 25 -
The reasonableness of counsel's actions may be
determined or substantially influenced by the
defendant's
own
statements
or
actions.
Counsel's actions are usually based, quite
properly, on informed strategic choices made
by the defendant and on information supplied
by
the
defendant.
In
particular,
what
investigation
decisions
are
reasonable
depends critically on such information. For
example, when the facts that support a certain
potential line of defense are generally known
to counsel because of what the defendant has
said, the need for further investigation may
be considerably diminished or eliminated
altogether. And when a defendant has given
counsel reason to believe that pursuing
certain investigations would be fruitless or
even harmful, counsel's failure to pursue
those
investigations
may
not
later
be
challenged as unreasonable.
Strickland, 466 U.S. at 691, 104 S. Ct. 2052 (emphasis
added); see also Anderson v. State, 18 So. 3d 501, 509
(Fla.2009) (rejecting claim that counsel was deficient
for failing to uncover prior sexual abuse of defendant
where defendant had denied such abuse prior to trial and
described his childhood as normal (quoting Strickland,
466 U.S. at 691, 104 S. Ct. 2052)).
We agree that Foster did not establish that trial counsel
was deficient in failing to discover the information
presented at the evidentiary hearing, failing to seek
further psychological testing, or failing to present
this information during the penalty phase of trial. The
experts presented by Foster at the hearing relied in
large part on Foster's self-reports of head trauma and
depression, although neither Foster nor his mother ever
reported that information to the defense team at the
time of trial. Nothing in the records presented at the
evidentiary hearing substantiated the claim that red
flags were raised indicating Foster might have brain
damage or other mental impairments. Trial counsel was
never given any indication by Foster, his mother, his
half-sister, or any of the other relatives or friends
who testified at the penalty phase or at the
postconviction evidentiary hearing that Foster had a
difficult childhood, was witness to any abuse in the
- 26 -
home, had a history of mental illness in the family, was
suicidal, or had a history of head trauma.
The circuit court correctly determined that under the
facts of this case Foster did not establish that counsel
was
deficient
in
failing
to
pursue
further
neuropsychological evaluation of Foster and in failing
to present mental mitigation at trial. The circuit court
concluded that trial counsel made a reasonable tactical
decision, based in part on Dr. Wald's evaluation and on
other information counsel obtained at the time of trial,
not to pursue further neuropsychological evaluation. The
court correctly found that the decision is not rendered
deficient merely because Foster has now secured other
experts who give a more favorable evaluation or
diagnosis. We have noted that simply because the
defendant “found a new expert who reached conclusions
different from those of the expert appointed during
trial does not mean that relief is warranted.” Dufour v.
State, 905 So. 2d 42, 59 (Fla. 2005) (quoting Cherry v.
State, 781 So. 2d 1040, 1052 (Fla. 2000)). Under the
facts and circumstances of this case, Foster's counsel
was not deficient in developing a mitigation strategy
that sought to utilize the humanizing information about
Foster as a smart, polite, helpful, normal youth who
fell in with the wrong crowd and deserved to be spared
the death penalty.
Because nothing presented by Foster undermines our
confidence in the outcome of the penalty phase
proceedings, we affirm denial of relief on these claims.
Foster II, 132 So. 3d at 52-62.
Foster argues the Florida Supreme Court unreasonably applied
Strickland when if found the mitigation case Jacobs presented to
result from a reasonable strategic decision.
For this argument
to be successful, Foster must overcome “a strong presumption” that
Jacobs’
conduct
“might
be
considered
Strickland, 466 U.S. at 689.
sound
trial
strategy.”
Throughout his argument, Foster
claims Jacobs turned the investigation over to Ruby Foster and
- 27 -
allowed her to dictate the mitigation strategy and evidence.
But
the witnesses with personal knowledge of the innerworkings of the
defense team refuted that characterization.
Investigator Roberta
Harsh testified that “Mr. Jacobs and Mr. Rinard were totally on
this case.
I can’t think of anything else we would have done.”
(Ex. C28 at 2093.)
Paralegal James Wootton directly rejected the
claim that the defense team relied entirely on Ruby Foster and
testified
that
“Mr.
Jacobs
was
running
that
case…He
ultimate say so in everything that went down.”
had
the
(Id. at 2132.)
According to Wootton and Rinard, the defense team chose the only
mitigation strategy supported by evidence.
(Id. at 2315-16, 2249-
50.)
No witness testified that Ruby Foster dictated mitigation
strategy.
Ruby
for
In fact, Kelly Foster felt that while Jacobs relied on
information
about
potential
character
ignored Ruby’s input and considered her a nuisance.
witnesses,
he
(Id. at 2214.)
She believed Jacobs decided what evidence would be presented at
the penalty phase.
Jacobs
was
in
(Id. at 2221).
charge.
The
Florida
Every witness agreed that
Supreme
Court
reasonably
rejected Foster’s claim that his mother improperly controlled the
mitigation case.
Foster also claims the Florida Supreme Court unreasonably
relied on Wootton’s testimony.
He points to a letter Wootton
wrote to Ruby Foster after the postconviction evidentiary hearing,
- 28 -
which stated, “Counsel fucked up.”
(Ex. C28 at 3505).
The letter
also alluded to a romantic relationship between Wootton and Ruby
Foster,
contradicting
relationship existed.
Wootton’s
testimony
that
no
such
Foster also attacks Wootton’s credibility
based on his criminal history and drug use.
The Public Defender’s Office hired Wootton as part of a
program to employ people recently released from prison.
Though
there is no evidence Wootton used drugs between Foster’s arrest
and sentence, Wootton eventually started using again.
He was
forced to resign his job, and he ended up back in prison.
When
counsel for the State talked to Wootton about testifying at the
evidentiary
hearing,
Wootton
asked
for
help
resolving
an
outstanding warrant, and the State declined that request before
the hearing.
“Determining the credibility of witnesses is the province and
function of the state courts, not a federal court engaging in
habeas review.”
Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d
842,
Cir.
845
(11th
2011).
The
postconviction
court
found
Wootton’s testimony at the evidentiary hearing, “where the Court
was able to observe him and his demeaner,” credible.
3689).
The
Florida
Supreme
Court
also
relied
(Ex. C28 at
on
Wootton’s
testimony, despite acknowledging apparent dishonesty about his
relationship with Ruby Foster.
Foster II, 132 So. 3d at 55 n.11.
“Federal habeas courts have ‘no license to redetermine credibility
- 29 -
of witnesses whose demeanor has been observed by the state trial
court, but not by them.’”
Consalvo, 664 F.3d at 845.
Foster
fails to overcome the presumption of correctness afforded to the
Florida courts.
There is no evidence Wootton lied about anything
but his relationship with Ruby Foster.
Foster’s argument on this ground is largely based on the
premise that Jacobs gave Ruby Foster control of the mitigation
case, and to a lesser degree the premise that Wootton was an
incompetent witness.
up to scrutiny.
As explained above, neither premise holds
Nor does Foster’s reliance on DeBruce v. Comm’r,
Ala. Dep’t of Corr., 758 F.3d 1263 (11th Cir. 2014).
DeBruce’s
counsel spoke only to DeBruce and his mother while preparing for
the penalty phase of his murder trial.
It was not a strategic
decision—DeBruce’s counsel testified he did not have time to do a
more thorough investigation or the funds to hire an investigator.
DeBruce,
758
F.3d
at
1272.
DeBruce’s
mother
was
the
only
mitigation witness, and she gave “grossly inaccurate testimony”
that contradicted counsel’s limited investigation.
Yet counsel
did not ask DeBruce or his mother about the inconsistencies.
at 1274.
Id.
The DeBruce court found the mitigation investigation
deficient under Strickland.
The mitigation investigation in Foster’s case stands in stark
contrast to DeBruce.
people
Fosters’
The record does not state exactly how many
defense
team
spoke
- 30 -
to
during
the
mitigation
investigation, but it was many more than two.
Jacobs used his
office’s investigation division to gather information, and he
obtained school and medical records.
Jacobs and Rinard chose to
humanize Foster because that is where the investigation led them.
Foster agreed with the strategy, and the team presented twentyfive witnesses to testify in the sentencing hearing.
Unlike in
DeBruce, the record here shows that Fosters’ defense team conducted
a thorough mitigation investigation and chose the strategy most
supported by the available evidence.
Jacobs’ investigation included frequent consultation with
Foster and his family.
Foster now argues that Jacobs relied too
heavily on Foster’s self-reporting about his mental health and
family history, and that Jacobs should have pursued additional
neuropsychological testing.
But as the Florida Supreme Court
correctly
in
found,
“[n]othing
the
records
presented
at
the
evidentiary hearing substantiated the claim that red flags were
raised indicating Foster might have brain damage or other mental
impairments.”
Foster II, 132 So. 3d at 60.
And the experts who
testified for Foster at the postconviction hearing largely based
their opinions on self-reports from Foster that contradicted what
he told his trial counsel.
counsel
could
have
Foster has not shown that his trial
developed
the
evidence
presented
postconviction hearing without Foster’s cooperation.
- 31 -
at
the
The Florida
Supreme Court’s determination that Foster’s trial counsel was not
deficient is reasonable under Strickland.
The Florida Supreme Court also found that Foster failed to
satisfy the prejudice prong of Strickland:
Even if counsel erred in failing to discover and present
the same evidence presented at the evidentiary hearing,
we cannot conclude that “absent the errors, the
sentencer—including an appellate court, to the extent
that it independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466
U.S. at 695, 104 S. Ct. 2052. “In assessing prejudice,
‘it is important to focus on the nature of the mental
health mitigation’ now presented.” Dufour, 905 So. 2d at
59 (quoting Rutherford v. State, 727 So. 2d 216, 223
(Fla. 1998)). The nature of the mitigation presented at
the evidentiary hearing was not such that it would alter
the balance of the aggravators and mitigators in any
manner that undermines confidence in the result. In
sentencing, the trial court found and gave great weight
to the aggravating factors that the murder was committed
for the purpose of avoiding or preventing a lawful arrest
and that it was committed in a cold, calculated, and
premeditated manner without any pretense of moral or
legal justification. Even if the evidence now presented
by postconviction counsel had been available to the jury
and sentencing court, we cannot conclude there is a
reasonable probability that the balance of aggravating
and mitigating circumstances would have been different
or that counsel's deficiencies, if any, substantially
impair confidence in the outcome of the proceeding. See
Lukehart v. State, 70 So. 3d 503, 514 (Fla. 2011).
Foster II, 132 So. 3d at 61.
The Florida Supreme Court described the mitigation evidence
Foster presented in the postconviction evidentiary hearing in an
excerpt
block-quoted
above.
In
short,
all
four
of
experts testified he had some level of brain damage.
- 32 -
Foster’s
They also
diagnosed Foster with various conditions, including depression,
antisocial personality disorder, hypomania, mania, and bipolar
disorder.
The State’s two experts rebutted the diagnoses of brain
damage, depression, and bipolar disorder.
The Florida Supreme
Court identified significant weaknesses in the conclusions reached
by Foster’s experts, including that they were largely based on
self-reporting,
speculation,
and
methodology
accepted in the field of neuropsychology.
not
generally
See Foster II, 132 So.
3d at 57-59.
The Florida Supreme Court weighed the mitigation evidence
offered at the postconviction hearing and found no reasonable
probability it would have tipped the balance of aggravating and
mitigating circumstances if it had been presented at sentencing.
That is the appropriate test under Strickland, and the Florida
Supreme Court applied it reasonably.
The court did not “blunder
so badly that every fairminded jurist would disagree.”
Mays, 141
S. Ct. at 1149.
Ground 1 is denied.
b. Ground 2: Whether the trial court erred by refusing a
change of venue
Foster’s trial received a lot of publicity in the national
and local media.
As a result, Foster’s trial counsel filed
seventeen motions to change venue.
Florida precedent provides
that in most cases, “the need to change venue should not be
- 33 -
determined until an attempt is made to select a jury.”
Morris v.
State, 233 So. 3d 438, 445 (Fla. 2018) (quoting Henyard v. State,
689 So. 2d 239, 245 (Fla. 1996)).
Following that approach, the
trial court declined to change venue pending jury selection. (Ex.
A6 at 1003 (“I’ll deny the motion.
happens.
We’ll give it a shot, see what
If we’re unable to get [a jury], then we’ll make
arrangements…we might go to Orlando.”)).
The trial court managed
to select a jury in the original forum.
Foster raised this ground on direct appeal.
The Florida
Supreme Court rejected it based on state and federal precedent:
A criminal defendant is guaranteed a right to a fair
trial by an impartial jury by both our state and federal
constitutions. See Singer v. State, 109 So.2d 7, 15
(Fla.1959). We have accordingly provided the following
test to determine when a change of venue is necessary to
protect a defendant's right:
The test for determining a change of venue is
whether the general state of mind of the
inhabitants of a community is so infected by
knowledge of the incident and accompanying
prejudice, bias, and preconceived opinions
that jurors could not possibly put these
matters out of their minds and try the case
solely on the evidence presented in the
courtroom.
Rolling v. State, 695 So.2d 278, 284 (Fla.1997) (quoting
McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977)).
Once a defendant raises the partiality of the venire,
the trial court must make the following two-pronged
analysis: “(1) the extent and nature of any pretrial
publicity; and (2) the difficulty encountered in
actually selecting a jury.” Rolling, 695 So.2d at 285.
The burden of showing bias and prejudice is upon the
defendant. See Murphy v. Florida, 421 U.S. 794, 799, 95
S.Ct. 2031, 44 L.Ed.2d 589 (1975).
- 34 -
Of course, the mere existence of some pretrial publicity
does not necessarily lead to an inference of partiality.
See Farina v. State, 679 So.2d 1151, 1154 (Fla.1996)
(citing Bundy v. State, 471 So.2d 9, 19 (Fla.1985)).
Rather, the pretrial publicity must be examined in the
context of numerous circumstances, including: (1) when
it occurred in relation to the time of the crime and the
trial; (2) whether the publicity was made up of factual
or inflammatory stories; (3) whether the publicity
favored the prosecution's side of the story; (4) the
size of the community; and (5) whether the defendant
exhausted all of his peremptory challenges. See Rolling,
695 So.2d at 285.
Trial courts are also encouraged to attempt to impanel
a jury before ruling on a change of venue. See Henyard
v. State, 689 So.2d 239, 245 (Fla.1996); Davis v. State,
461 So.2d 67, 69 n. 1 (Fla.1984); Manning v. State, 378
So.2d 274, 276 (Fla.1979). This provides trial courts an
opportunity to determine through voir dire whether it is
actually possible to find individuals who have not been
seriously infected by the publicity. See Rolling, 695
So.2d at 285. If the trial court finds such individuals,
a jury is selected. Where the voir dire fails to produce
these individuals, the trial court must grant the motion
for change of venue. See id.
While there was indeed a great deal of publicity about
the case in the local community, applying the principles
of law discussed above, we conclude the trial court
properly denied Foster's motions for change of venue. We
first focus on the nature and impact of the cited
articles, and whether the articles were objective and
factual in nature or whether they were inflammatory. See
Rolling, 695 So.2d at 285 (citing Provenzano v. State,
497 So.2d 1177, 1182 (Fla.1986)).
Foster provided voluminous records of various newspaper
articles and television news accounts of pretrial
publicity. These included: (1) news stories immediately
after Foster's arrest of how Foster and the Lords of
Chaos had planned to go to Disney World and kill as many
black tourists as possible; (2) an article on May 9,
1996, titled “Kevin Foster Head of Pack” with various
references to Foster as a “psychopath,” “Opie with a
gun,” and a “Jekyll–and–Hyde character;” (3) a column
- 35 -
published on March 1, 1998, just two days before trial,
titled, “Old Sparky's hot jolt may await Foster” with
references to Foster as a “redneck, racist, gun-crazed
punk.” Another news article reported that a candidate
for sheriff had made similar remarks about Foster.
In contrast to the above-cited articles, most of the
articles relied upon were not inflammatory. Instead,
they reported on the stages and activities of the
prosecution and on plea agreements entered into by the
other members of the Lords of Chaos. In fact, in one of
the articles, Foster's defense counsel was quoted as
saying that he had expected the plea agreements and had
been preparing for them all along. Some articles focused
on Schwebes' life and his contribution to the community.
Still, others focused on students' reaction to and
coping with the incident and on the state of various
programs dealing with teenagers. Many others simply
commented on and updated the proceedings in the case. We
conclude that the media coverage as a whole did not reach
such an inflammatory level to have irreversibly infected
the community so as to preclude an attempt to secure an
impartial jury.
In United States v. Lehder–Rivas, 955 F.2d 1510, 1524
(11th Cir. 1992), for instance, the media referred to
the defendant as a “drug kingpin, narcoterrorist” who
was fascinated with the Third Reich. There, the court
found that “such publicity, while unfavorable, did not
reach the extreme levels required to trigger a finding
of presumed prejudice.” Id. Yet, the media references in
Lehder–Rivas cannot be said to have been less
inflammatory than the ones in the instant case.
Moreover, of the jurors eventually empaneled in this
case, no one indicated any exposure to the more egregious
references cited by Foster.
We must also consider the actual timing of the articles.
Most were published some two years before the trial
actually took place. In Rolling, as pointed out by
Foster, we concluded that three and a half years was a
significant time in which the tremendous publicity
brought out initially by the case may have dissipated in
its effect. See Rolling, 695 So. 2d at 287. Similarly,
whether the publicity in this case still affected the
community after a two-year lapse between the time of the
brunt of the media frenzy and the time of trial requires
- 36 -
that we examine the voir dire, as provided for by the
second prong of Rolling.
During voir dire, most of the veniremen stated that they
had heard something about this case through the media.
As in Rolling, however, the court eliminated all those
who stated that their fixed opinion would prevent them
from reviewing the evidence in a fair manner. Moreover,
as in Rolling, the trial court carefully permitted
individual voir dire in two phases, first about pretrial
publicity, and second about the venire's positions on
the death penalty. The jurors who were finally selected
all stated without equivocation that they could be fair
and set aside what they had heard. See Rolling, 695 So.
2d at 287; Henyard, 689 So. 2d at 246 (“While the jurors
had all read or heard something about the case, each
stated that he or she had not formed an opinion and would
consider only the evidence presented during trial in
making a decision.”). Most importantly, however, not
only did Foster not challenge for cause any of the jurors
actually seated, he was also allotted additional
peremptory challenges by the trial court in order to
ensure that no biased jurors were selected.
Of course, trial courts should approach this issue
conservatively and err on the side of excluding a
potentially biased juror. In addition, there are
instances in which a trial court must grant a change of
venue motion despite assurances of impartiality from the
jurors. Certain communities may be so small and the
residents so close and personally connected to each
other that a particular defendant could not get a fair
trial in that community in a highly publicized case.
However, Lee County, from which Foster's jury was
selected, does not appear to be such a place. With a
population of 405,637, Lee is the eleventh largest of
the sixty-seven counties in this state. See Florida
Statistical Abstract 10 (33d ed. 1999). It should be
noted that Rolling's sentencing proceedings, which
involved the highly publicized murder of five University
of Florida students, took place in the university town
of Gainesville itself, in Alachua County. Alachua is
about half the size of Lee, with a high concentration of
students
and
residents
in
Gainesville
itself.
Nevertheless, the trial court successfully selected a
jury there. At the end, a jury was also selected in just
- 37 -
three days here, as opposed to the three weeks it took
in Rolling.
We therefore conclude that, as in Rolling, the trial
court did not abuse its discretion in denying the change
of venue motions since the circumstances from the record
do not indicate that the community was so infected by
the media coverage of this case that an impartial jury
could not be impaneled, and an impartial jury appears to
have been actually seated.
Foster I, 778 So. 2d at 912-14.
The Florida Supreme Court’s rejection of this claim follows
Supreme Court precedent.
A defendant is entitled to a panel of
impartial, indifferent jurors, but “[q]ualified jurors need not…be
totally ignorant of the facts and issues involved.”
Florida, 421 U.S. 794, 799-800 (1975).
Murphy v.
“It is sufficient if the
juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.”
marks omitted).
Id. at 800 (quotation
The record of voir dire here shows the trial
court selected an impartial jury.
The jurors who knew of the
charged crime stated they could set that knowledge aside.
As the
Florida Supreme Court noted, Foster did not challenge any of the
selected jurors for cause.
Foster now challenges the impartiality of one juror, referred
to as “Juror M.”
At voir dire, Juror M stated she could be fair
and impartial despite learning about the case from news media.
(Ex. A13 at 71-72).
Foster claims Juror M used pretrial publicity
against him because of an excerpt from a book about the case—
- 38 -
Someone Has to Die Tonight by Jim Greenhill.
According to the
book, when photos of the crime scene were published to the jury,
Juror M thought they were more detailed than what she saw in the
newspaper.
Respondent
account
challenges
because
Foster
evidentiary hearing.
did
the
admissibility
of
call
testify
not
him
to
Greenhill’s
at
the
But even setting admissibility issues aside
and assuming the account is true, it does not suggest that Juror
M was not impartial.
It merely confirms that she read about the
case in the newspaper, a fact she acknowledged during voir dire.
The Florida Supreme Court’s rejection of this ground was a
reasonable
application
of
federal
law.
Foster
fails
to
demonstrate that the venue of his trial made it fundamentally
unfair.
The
impartial jury.
record
show
that
the
trial
court
empaneled
an
Ground 2 is denied.
c. Ground 3: Whether juror misconduct denied Foster a fair
trial
Foster
asserts
three
claims
of
juror
misconduct.
The
postconviction court summarily denied each claim, and the Florida
Supreme Court affirmed.
In his first subclaim, Foster points to Juror Q, who stated
in voir dire that he had never been charged or convicted of a
crime, despite a twenty-four-year-old DUI conviction.
- 39 -
The Florida
Supreme Court rejected this claim because it found no prejudice to
Foster:
Foster contends in this claim that the trial court erred
in summarily denying his claim that the State committed
a Brady violation when it failed to disclose the fact
that Juror Q had been prosecuted by Lee County
authorities and convicted of DUI twenty-four years
earlier. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963). During voir dire, the
trial judge asked prospective Juror Q if he had ever
been convicted of a crime or charged with a crime, to
which he answered, “No, sir.” Juror Q did serve on the
jury. Foster contends the prejudice which flowed from
this nondisclosure was that Juror Q may have decided to
sentence Foster to death based on the juror’s past
experiences with Lee County authorities, which were
unknown to counsel. Foster contends that the State had
actual or constructive knowledge of this fact and
failure to disclose it was a violation under Brady. He
also contends that the State knowingly presented or
failed to correct Juror Q’s false testimony in violation
of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
31 L. Ed. 2d 104 (1972).
We explained in Lebron v. State, 799 So. 2d 997 (Fla.
2001), that “[a] juror’s nondisclosure of information
during voir dire warrants a new trial if it is
established that the information is relevant and
material to jury service in the case, the juror concealed
the information during questioning, and failure to
disclose the information was not attributable to
counsel’s lack of diligence.” Id. at 1014. See also De
La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995)
(same). More recently, we held that the movant must at
least allege facts establishing a prima facie basis for
prejudice. See Hampton v. State, 103 So. 3d 98, 112–13
(Fla. 2012), cert. denied, ––– U.S. ––––, 133 S. Ct.
2027, 185 L. Ed. 2d 892 (2013). In Hampton, we reiterated
that the complaining party must establish “not only that
the non-disclosed matter was ‘relevant’ ... but also
that it is ‘material to jury service in the case.’”
Hampton, 103 So. 3d at 112 (quoting Roberts v. Tejada,
814 So. 2d 334, 339 (Fla. 2002) (quoting De La Rosa, 659
So. 2d at 241)).
- 40 -
In Johnston v. State, 63 So. 3d 730 (Fla. 2011), we
explained, “There is no per se rule that [a juror’s]
involvement in any particular prior legal matter is or
is not material. Factors that may be considered in
evaluating materiality include the remoteness in time of
a
juror's
prior
exposure,
the
character
and
extensiveness of the experience, and the juror’s posture
in the litigation.” Id. at 738 (citations omitted)
(quoting Roberts, 814 So. 2d at 345). Again, in this
postconviction context, the movant must establish that
the undisclosed information was relevant and material to
jury service. Id.[FN15]
FN15. The postconviction court denied Foster’s
separate motion to interview Juror Q, finding
that “[t]he alleged fact that Mr. [Q] was a
defendant in a misdemeanor DUI case would not
be material to his service as a juror in a
murder trial.... Mr. [Q’s] prior criminal case
is also not material because it is too remote
in time as, according to Defendant, it was 24
years prior to the juror's service.”
The claim filed by Foster failed to allege a prima facie
basis for concluding that the undisclosed twenty-fouryear-old DUI conviction, even if verified, was relevant
or material to Juror Q’s jury service. Just as we noted
in
Johnston,
“nothing
about
the
character
and
extensiveness of [the juror’s] own experience” in being
convicted of a nonviolent offense “suggests [the juror]
would be biased against a defendant pleading not guilty
in a death penalty case.” Johnston, 63 So. 3d at 739.
To the extent that Foster was denied a hearing on his
Brady claim that the State knowingly failed to disclose
this juror information resulting in prejudice, the claim
was correctly summarily denied. In order to establish a
Brady violation, the defendant must show that (1)
favorable evidence—either exculpatory or impeaching, (2)
was willfully or inadvertently suppressed by the State,
and (3) that because the evidence was material, the
defendant was prejudiced. See Rimmer v. State, 59 So. 3d
763, 785 (Fla. 2010) (citing Strickler v. Greene, 527
U.S. 263, 281–82, 119 S. Ct. 1936, 144 L. Ed. 2d 286
(1999)). To meet the materiality prong under Brady, the
defendant must “demonstrate a reasonable probability
that had the suppressed evidence been disclosed the jury
- 41 -
would have reached a different verdict,” a reasonable
probability being one sufficient to undermine confidence
in the outcome. Rimmer, 59 So. 3d at 785. Foster has not
met this test. Even assuming that the State knew or had
constructive knowledge of this information and should
have disclosed it, the information was not related to
guilt or punishment, nor was it exculpatory or
impeaching, and nothing set forth in the claim
demonstrates it would have been material or favorable to
Foster. See Evans v. State, 995 So. 2d 933, 951 (Fla.
2008) (denying Brady claim where information is neither
exculpatory nor impeaching); see also Smith v. State,
931 So. 2d 790, 798 (Fla. 2006) (same).
To the extent Foster makes a claim under Giglio that the
State knowingly allowed the presentation of false
testimony on voir dire, the claim was also properly
summarily denied. In order to demonstrate a Giglio
violation, “a defendant must show that: (1) the
prosecutor presented or failed to correct false
testimony; (2) the prosecutor knew the testimony was
false; and (3) the false evidence was material.”
Tompkins v. State, 994 So. 2d 1072, 1091 (Fla. 2008)
(quoting Rhodes v. State, 986 So. 2d 501, 508–09 (Fla.
2008)). As discussed above, Foster’s claim failed to
allege facts sufficient to demonstrate that the juror’s
false statement was material to his jury service and
thus prejudicial. For these reasons, the circuit court’s
summary denial of this claim is affirmed.
Foster II, 132 So. 3d at 62-64.
Foster does not identify any error in the Florida Supreme
Court’s application of Brady or Giglio, and this Court finds none.
Foster argues, however, that the state court erred by ignoring
caselaw suggesting that failure to disclose a prior conviction is
evidence of bias.
To support that proposition, Foster cites
United States v. Capra, 271 F.3d 962 (11th Cir. 2001).
Florida Supreme Court’s reasoning mirrors Capra.
But the
There, the
Eleventh Circuit explained that a defendant is not entitled to a
- 42 -
new trial every time a juror fails to answer a question honestly.
The defendant must also show that the dishonesty was material, and
that a correct response would have provided a valid basis for a
challenge with cause.
Carpa, 271 F.3d at 966.
The Florida
Supreme Court reasonably found that Juror Q’s false statement was
not material, so it’s rejection of this claim is correct under
federal law.
Foster’s second subclaim points again to the claim in the Jim
Greenhill book that evidence presented at trial reminded Juror M
of pretrial coverage.
The Florida Supreme Court rejected this
claim:
In this allegation of juror misconduct, Foster contends
that Juror M gave an untruthful response in voir dire
about her knowledge of Foster’s case gleaned from local
media coverage and about her ability to be fair. He
contends that despite her assurances that she could be
fair, her response was untruthful because at some
unknown time she mentally compared photographs she
viewed at trial with those she had seen in the newspaper
before being empanelled. Foster alleged that he obtained
this information from the 2006 book Someone Has to Die
Tonight. Foster claims that the book reveals Juror M
told the author that the photographs shown in court
“detailed more than what was in the paper.”
Foster’s motion conceded that when Juror M was asked on
voir dire whether she had acquired any knowledge of the
case from local news media, she responded that she had
learned about the case from the newspaper and
television. When asked if that information would affect
her impartiality, she responded that she did not think
so. When asked if she could set aside the information
that she may have heard or seen in the paper and base
her verdict solely on the evidence or the lack of
evidence at trial, she said she thought she could.
- 43 -
To the extent that Foster is claiming the information he
learned from the book is newly discovered evidence
entitling him to a new trial, the postconviction court
was correct in summarily denying it. To obtain a new
trial based on newly discovered evidence, the defendant
must show that evidence was not known by the trial court,
the party, or counsel at the time of trial and the
defendant could not have known of it by use of due
diligence. Second, the evidence “must be of such nature
that it would probably produce an acquittal on retrial.”
See Johnston v. State, 27 So. 3d 11, 18 (Fla. 2010)
(quoting Jones v. State, 709 So. 2d 512, 521 (Fla.
1998)). Summary denial of a postconviction motion
alleging newly discovered evidence will be upheld if the
motion is legally insufficient or its allegations are
conclusively refuted by the record. McLin v. State, 827
So. 2d 948, 954 (Fla. 2002). The allegations in Foster’s
motion concerning Juror M are legally insufficient and
summary denial of this claim was proper.
Even if it is taken as true that Juror M made the alleged
comments to the author concerning the difference between
the photographs in the newspaper and those at trial,
there are no facts set forth that would suggest she made
those same mental comparisons during trial or during her
jury deliberations rather than at some point afterward
when she was interviewed. Even if she mentally noted
during trial that the trial photographs showed more than
the photographs in the newspaper, such does not indicate
that she relied on evidence outside of court or was not
fair and impartial—or most importantly, that she lied
during voir dire when she said she thought she could be
fair. Finally, if she made those mental comparisons
during deliberations, such would inhere in the verdict
and her mental considerations are not subject to
challenge. See Reaves v. State, 826 So. 2d 932, 943 (Fla.
2002). For these reasons, the trial court was correct in
summarily denying this claim that Juror M lied during
voir dire about her prior knowledge of the case and her
ability to be fair.
Foster fails to make clear whether he is raising this
claim as one of newly discovered evidence or whether he
is seeking appellate review of the trial court’s denial
of his motion to interview jurors. To the extent that
this claim is an appeal of the trial court’s denial of
a jury interview, we conclude that the circuit court’s
- 44 -
denial of relief was proper. Foster filed a motion for
juror interview pursuant to Florida Rule of Criminal
Procedure 3.575 on September 28, 2010, seeking to
interview Juror M on the grounds that the Greenhill book
reported Juror M’s comments about the photographs. A
motion for juror interview must set forth allegations
that are not merely speculative or conclusory, or
concern matters that inhere in the verdict. See State v.
Monserrate–Jacobs, 89 So. 3d 294, 296 (Fla. 5th DCA
2012). The postconviction court denied the motion,
finding that allegations that Juror M may have compared
the evidence presented at trial with her memory of prior
news accounts were speculative and conclusory, or were
subjective impressions after the jury was discharged,
and that the allegations concerned matters that inhered
in the verdict itself. The court therefore concluded
that the allegations did not allege juror misconduct and
the motion to interview was denied.
“A trial court’s decision on a motion to interview jurors
is reviewed pursuant to an abuse of discretion
standard.” Anderson v. State, 18 So. 3d 501, 519 (Fla.
2009). Florida Rule of Criminal Procedure 3.575 requires
that a party must have reason to believe the verdict may
be subject to legal challenge to warrant a juror
interview. Juror interviews are not permitted as to
matters which inhere in the verdict. See Reaves, 826 So.
2d at 943. Moreover, “[i]n order to be entitled to juror
interviews,
[a
defendant]
must
present
‘sworn
allegations that, if true, would require the court to
order a new trial because the alleged error was so
fundamental and prejudicial as to vitiate the entire
proceedings.’” Id. (quoting Johnson v. State, 804 So. 2d
1218, 1225 (Fla. 2001)).
Rule 4–3.5 of the Rules Regulating the Florida Bar also
sets limits on an attorney’s ability to interview
jurors. We have repeatedly held that this rule does not
deny a defendant the right to effective assistance of
counsel in pursuing postconviction relief. See Reese v.
State, 14 So. 3d 913, 919 (Fla. 2009) (noting that the
Court has held that neither rule 3.575 nor rule 4–3.5
violates a defendant’s constitutional rights); Evans v.
State, 995 So. 2d 933, 952 (Fla. 2008) (“Without more
substantial allegations of how juror Taylor’s single
‘yes or no’ response prejudiced the entire proceeding,
this appears to be a ‘fishing expedition’ after a guilty
- 45 -
verdict has been returned.”). Because the rules are
valid, and because the postconviction motion and the
argument on appeal present only speculative and
conclusory allegations concerning Juror M which, on
their face, fail to provide a reasonable basis for the
court to conclude that the verdict was illegal and that
a juror interview should have been granted, the
postconviction court did not abuse its discretion in
denying Foster’s motion to interview jurors. For all the
foregoing reasons, we affirm the circuit court's denial
of this claim.
Foster II, 132 So. 3d at 64-66.
Foster identifies no error in the
Florida Supreme Court’s reasoning.
Even accepting as true the
claim that Juror M mentally compared photographic evidence to
pretrial publicity, there is no juror misconduct here.
During
voir dire, Juror M acknowledged that she learned about the case
from media coverage.
That knowledge did not disqualify her, and
Foster did not strike her from the jury.
It would be unreasonable
to expect Juror M to forget what she learned, and there is no
indication
she
improperly
considered
that
knowledge
when
determining Foster’s guilt.
The third subclaim contends several jurors inferred Foster’s
guilt from his decision not to testify.
Foster again relies solely
on the Greenhill book to support his argument.
The Florida Supreme
Court found the subclaim deficient:
The circuit court also summarily denied Foster’s claim
that the jurors violated the trial judge’s instruction
that they were to draw no inference of guilt from
Foster’s failure to testify. Foster contends that the
jury foreman was quoted in the Greenhill book as saying
that Foster did not give the jury much to go on and that
he “sat emotionless during the whole thing.” Citing the
- 46 -
Greenhill book, Foster contends that the jury foreman
“thought” Foster should “get up there and set the record
straight” and Juror Q “thought” Foster was “like a bump
on a log” without emotion. Foster also contends that
other jurors, including Juror M, were adamant that
Foster should show remorse and that they used lack of
remorse as a nonstatutory aggravator.
In the postconviction court’s order denying the juror
interview, the court stated:
There does not appear to be any authority
which would support Defendant’s argument that
a motion to interview jurors relying solely
upon information culled from news articles or
a true crime novel, without the support of
sworn facts or record evidence, would be
cognizable. There has been no demonstration
that the alleged quotes from jurors in the
news
articles
or
book
were
accurate
recollections, were the juror’s complete
statements, were unedited, or were not taken
out of context.
For the same reasons set forth above, the circuit court
did not abuse its discretion in denying juror interviews
relative to this claim. Moreover, Foster’s claim focuses
solely on the jury’s deliberations, something that we
have specifically held to be impermissible. See, e.g.,
Vining v. State, 827 So. 2d 201, 216 (Fla. 2002) (“[T]his
Court has cautioned ‘against permitting jury interviews
to support post-conviction relief’ for allegations which
focus upon jury deliberations.” (quoting Johnson v.
State, 593 So. 2d 206, 210 (Fla. 1992))); Reaves, 826
So. 2d at 943 (holding that matters which inhere in the
verdict and the jury’s deliberations are not subject to
challenge).
“[A]
verdict
cannot
be
subsequently
impeached by conduct which inheres in the verdict and
relates to the jury’s deliberations.” Johnson, 593 So.
2d at 210 (quoting Mitchell v. State, 527 So. 2d 179,
181 (Fla. 1988)). This rule of law extends even to
allegations
that
jurors
improperly
considered
a
defendant's failure to testify, “a matter which
essentially inheres in the verdict itself.” Reaves, 826
So. 2d at 943 (quoting Sims v. State, 444 So. 2d 922,
925 (Fla. 1983)).
- 47 -
Because the allegations were legally insufficient to
require an evidentiary hearing and because the circuit
court did not abuse its discretion in denying the juror
interview, we affirm the circuit court’s summary denial
of this claim.
Foster II, 132 So. 3d at 66-67. Again, Foster identifies no error
in the Florida Supreme Court’s reasoning.
Greenhill
book
accurately
related
jurors’
Even assuming the
statements,
Foster
identifies no clearly established federal law that suggests those
statements entitle him to a new trial or any other postconviction
relief.
Nor does he identify any federal precedent suggesting he
was entitled to interview the jurors under the circumstances of
this case.
Foster fails to show that the state court misapplied federal
law when rejecting his juror-misconduct claims.
Ground 3 is
denied.
d. Ground 4: Whether the trial judge prejudged the case and
refused to consider mitigating evidence
Foster claims trial judge Isaac Anderson made a comment during
the guilt phase that revealed prejudice.
The following exchange
occurred after Foster’s counsel raised an objection, and the
prosecutor
identified
two
Florida
Supreme
Court
cases
supported the State’s position:
MR. JACOBS: Judge, we’re objecting to this strongly. I
think it’s highly improper. If you allowed this tape
where someone gives a statement for the State and after
cross-examination play a statement, they could do that
on every witness.
- 48 -
that
THE COURT: Okay.
MR. JACOBS: You don’t seem very concerned, but I think
it’s highly improper.
THE COURT: Tell it to the supreme court.
opportunity, I believe.
You’ll get an
MR. RINARD: I certainly hope the Court’s not prejudging
our case.
THE COURT: Not for me to make that decision, it’s for
them. Guilt or innocence.
MR. RINARD: It may not be going to the supreme court,
Judge.
THE COURT: Whatever.
(Ex. A20 at 1538-39).
Foster argues the comment shows that Judge
Anderson decided before the end of the guilt phase that Foster
would be sentenced to death.
On direct appeal, the Florida Supreme Court found this
claim procedurally barred and meritless:
This claim is procedurally barred because Foster failed
to make contemporaneous objections at trial to the
judge’s comments or seek his disqualification. See J.B.
v. State, 905 So. 2d 1376, 1378 (Fla. 1998) (holding
that except where a fundamental error exists, to raise
an error on appeal, a contemporaneous objection is
required at the trial level when the alleged error
occurred).
Nevertheless, having reviewed all the comments cited by
Foster, we conclude that neither the cited comments nor
the record as a whole show any bias on the part of the
trial court. We note, however, that judges should avoid
making such comments. As stated in Peek v. State, 488
So. 2d 52 (Fla. 1986), judges must make sure that their
conduct and comments do not lead to even the appearance
of bias. That standard of conduct is required not merely
for the sake of professionalism, but more importantly to
- 49 -
maintain a high level of confidence in our criminal
justice system from all parties.
Foster I, 778 So. 2d at 917.
Foster also claims Judge Anderson’s sentencing order reveals
bias because the judge gave no weight to Foster’s age as a
mitigating factor.
Supreme
Court
This is a state law issue, and the Florida
held
that
Judge
Foster’s age as a mitigator.”
Judge
Anderson’s
Anderson
Id. at 921.
“vindictive”
tenor
“properly
evaluated
Still, Foster argues
revealed
animus
towards
Foster.
Foster argues this ground is not procedurally barred because
the Florida Supreme Court addressed its merits.
the standard.
But that is not
Federal habeas courts “will not take up a question
of federal law in a case if the decision of the state court rests
on a state law ground that is independent of the federal question
and adequate to support the judgment.” Cruz v. Arizona, 598 U.S.
17, 25 (2023) (cleaned up).
Foster defaulted on this ground
because he did not raise a contemporaneous objection to the trial
judge’s comment or to the “tenor” of the sentencing order.
The
Florida procedural rule Foster failed to follow was an independent
and adequate ground for rejection of this claim.
Nor does he
argue any exception to procedural default applies here.
is procedurally defaulted.
- 50 -
Ground 4
This
ground
also
lacks
merit.
The
Due
Process
Clause
guaranteed Foster “a fair trial in a fair tribunal, before a judge
with no actual bias against him or interest in the outcome of his
particular case.”
Norris v. United States, 709 F. App’x 952, 957
(11th Cir. 2017) (quoting Bracy v. Gramley, 520 U.S. 899, 904-05
(1997)) (cleaned up).
To obtain postconviction relief, Foster
must “prove that ‘under a realistic appraisal of psychological
tendencies and human weakness, the judge posed a risk of actual
bias or prejudgment such that it created an intolerable threat to
the guarantee of due process.’”
Id. (quoting Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 886-84 (2009)) (cleaned up).
Foster
has not met this standard of proof.
The Florida Supreme Court’s rejection of Foster’s judicial
bias claim is reasonable under federal law.
Judge Anderson’s
statement was not made in the presence of the jury.
“Many of the
concerns about judicial intervention or inappropriate remarks are
greatly diminished or even eliminated when the judicial conduct
occurs outside a jury’s presence.”
United States v. Johnson, 503
F. App’x 901, 905 (11th Cir. 2013).
And Foster presents no well-
established federal law suggesting that Judge Anderson’s comment
to defense counsel and the tenor of his sentencing order prove an
“intolerable threat to the guarantee of due process.”
supra.
Ground 4 is denied.
- 51 -
Caperton,
e. Ground 5: Whether trial counsel failed to adequately
challenge ballistic evidence
At
trial,
the
expert Bill Hornsby.
State
presented
testimony
from
ballistics
Hornsby fired test shells from the Mossberg
shotgun found in Peter Magnotti’s trunk and compared them to two
spent shell casings found at the crime scene.
Hornsby concluded
that based on the marks left on the shells—which he likened to
fingerprints—the spent shells found at the scene had been chambered
in and extracted from the shotgun.
(Ex. A20 at 1422-23).
Hornsby
acknowledged he could not say whether the shells had been fired in
the weapon.
(Id.)
Foster claims his attorneys should have
challenged the admissibility of Hornsby’s testimony and hired an
expert to refute his methodology.
The postconviction court summarily denied this ground.
The
Florida Supreme Court affirmed because Foster’s postconviction
motion was facially deficient:
Foster's motion did not specify how his hypothetical
expert would raise doubts about the testing Hornsby did.
Even if defense counsel could have presented expert
testimony that other tests existed which could have been
performed, Foster's allegations do not explain how those
other tests would have resulted in a conclusion that the
shells found at the scene were not at one time chambered
in and ejected from Foster's shotgun. Finally, even if
trial counsel were somehow deficient in failing to
present its own ballistics expert, Foster has not
explained what prejudice flows from that deficiency. As
noted earlier, in order to prove prejudice under the
second prong of Strickland, a defendant must show that,
but for counsel's deficiency, there is a reasonable
probability that there would have been a different
outcome, a reasonable probability being one sufficient
- 52 -
to undermine confidence in that outcome. See Simmons v.
State, 105 So. 3d 475, 487–88 (Fla.2012). In this case,
the facts set forth by Foster in his motion and in his
claim on appeal fail to show that, but for trial
counsel's alleged deficient conduct in failing to
present a ballistics expert, there is a reasonable
probability of a different outcome such that our
confidence is undermined. Thus, the circuit court
correctly denied this claim.
. . .
Foster also contends that the postconviction court erred
in summarily denying his claim that trial counsel was
ineffective for failing to request a Frye hearing to
test the expert ballistic testimony concerning the
source of the spent shotgun shell casings found at the
scene. The court in Frye v. United States, 293 F. 1013,
1014 (D.C. Cir. 1923), held that before scientific
evidence is generally admissible, it must be based on
methodology that is sufficiently established to have
gained general acceptance in the particular field in
which it belongs. See id. at 1014.
There is no question that “tool-mark identification in
the context of ballistics has been used in the criminal
context since at least 1929, and in Florida since at
least 1937.” King v. State, 89 So. 3d 209, 228
(Fla.2012). In King, we held that tool mark examination
in ballistics has been a well-documented methodology
over the last century and is not new or novel. Id. We
also note that in Commonwealth v. Whitacre, 878 A.2d 96
(Pa.
Super.
Ct.
2005),
the
Superior
Court
of
Pennsylvania was presented with the issue of tool mark
testimony concerning spent shotgun shells found at the
scene of a crime, which were then compared with testfired shotgun shells. In that case, a Frye hearing was
held on the evidence presented by the firearm and tool
mark examiner, who had determined by use of a comparison
microscope that the spent shells had been discharged
from a particular shotgun. Id. at 100–01. The appellate
court concluded that the comparison methodology used on
the shotgun shells had been in use since the 1930s, is
a methodology that is accepted by the Association of
Firearm and Tool Mark Examiners, and was neither new nor
original. Id. at 101.
- 53 -
Because tool mark examination in ballistics, which was
employed by the State's expert in this case, is not a
new or novel methodology, Foster's trial counsel was not
deficient in failing to demand a Frye hearing before
admission of the testimony. In addition, because
Foster's claim is conclusory and unspecific, and fails
to allege any facts that support his allegation that the
tool mark and firearms testimony by Hornsby was
unreliable, the postconviction court did not err in
summarily denying this claim.
Foster II, 132 So. 3d at 68-69.
The
Florida
Supreme
Court
did
not
misapply
Strickland.
Because the postconviction court summarily denied this ground,
Foster had no chance to substantiate his speculation about the
testimony of a ballistic expert hired by the defense.
if
he
could
conclusion,
prejudice.
present
the
expert
Florida
testimony
Supreme
to
Court
undermine
reasonably
But even
Hornsby’s
found
no
The State presented ample evidence that Foster used
the Mossberg shotgun to kill Mark Schwebes even without Hornsby’s
testimony.
Peter Magnotti and Christopher Black identified the
shotgun and the shell casings used to kill Schwebes, and Derek
Shields identified the gun but not the shells.
13; A20 at 1300-02, 1471).
(Ex. A18 at 1111-
Black and three other witnesses also
testified that Foster bragged about shooting Schwebes with the
shotgun.
(Ex. A18 at 1187, 1307; Ex. A19 at 1207-08, 1255).
Foster fails to show how excluding or undermining Hornsby’s
testimony would have helped his defense.
While Hornsby testified
that he could not say the shells were fired from the shotgun, his
- 54 -
conclusion allows the inference that the shotgun was the murder
weapon.
That is consistent with Foster’s defense theory—that his
friends killed Schwebes framed him for the murder.
In his closing
argument, Jacobs highlighted that the shotgun used to kill Schwebes
was found in Magnotti’s trunk.
(Ex. A22 at 1821).
The Florida Supreme Court reasonably found no prejudice.
There is no reasonable likelihood that the exclusion of Hornsby’s
testimony would have changed the outcome of this case.
Ground 5
is denied.
f. Ground 6: Whether trial counsel failed to effectively
object to the avoid-arrest aggravator
The
Florida
capital
sentencing
statutes
provides
the
following aggravator: “The capital felony was committed for the
purpose of avoiding or preventing a lawful arrest or effecting an
escape from custody.”
Fla. Stat. § 921.141(6)(e).
court applied this aggravator over Foster’s objection.
The trial
On direct
appeal, the Florida Supreme Court explained why it was proper under
state law:
We conclude that the State presented sufficient evidence
that Foster and his friends committed the killing for
the purpose of avoiding arrest for their prior crimes.
As argued by the State, the members of the group directly
testified that once Schwebes told Black and Torrone he
would report them to campus police the next morning, the
group decided that Schwebes had to die that night. In
Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992), upon
which the trial court relied, the dominant reason why
the victim was killed was because of his knowledge of
the defendant's alleged involvement in counterfeiting
activities. We found that sufficient to support this
- 55 -
aggravator. See id. at 792. Here, Schwebes was aware of
the act of vandalism committed that night at Riverdale.
With regard to Foster's argument that Schwebes may not
have actually seen him that night as he ran from the
auditorium, the State established that Foster was
concerned that he would ultimately be implicated should
either Black or Torrone get arrested. We therefore
conclude that the trial court properly submitted and
relied upon this aggravator in the sentencing phase.
Foster I, 778 So. 2d at 918.
Despite
defense
counsel’s
objection
to
the
avoid-arrest
aggravator and the Florida Supreme Court’s ruling that it was
properly applied, Foster raised the issue as an ineffectiveassistance
claim
in
postconviction
proceedings.
The
state
postconviction court denied it, and the Florida Supreme Court
affirmed:
The circuit court's order found that the trial
transcript refutes this claim because trial counsel did
challenge the aggravators. We agree. Defense counsel
argued in the charging conference that “[d]uring this
penalty phase the State has not offered any evidence of
any aggravators, nor did it request of the court to take
judicial notice, or to instruct the jurors of anything
that happened during the guilt phase.... We're asking
the Court at this time to instruct the jury that the
only recommendation that they can come back with at this
point in time is a recommendation of life, since the
State has not presented any type of evidence.” Defense
counsel also argued to the trial court that there was no
evidence presented during the guilt phase to support the
avoid arrest aggravator. He argued that the evidence
only showed that Schwebes was going to report the
incident to the school resource officer, not to law
enforcement. Defense counsel further argued to the trial
court that there was no evidence there was going to be
an imminent arrest or anything other than a school
reprimand.
- 56 -
Defense counsel argued to the penalty phase jury that
the State failed to prove the avoid arrest aggravator
because there was no evidence that avoiding arrest was
the dominant factor in the murder, noting that it was
Black and Torrone who were caught on the scene by
Schwebes, not Foster, and that Schwebes only said he
would contact the school resource officer. Moreover,
Foster argued in his direct appeal that the trial court
erred both in finding and submitting the avoid arrest
aggravator to the jury. See Foster, 778 So. 2d at 918.
We rejected the claim, concluding that the evidence
supported the avoid arrest aggravator and stating,
“[T]he State established that Foster was concerned that
he would ultimately be implicated should either Black or
Torrone get arrested. We therefore conclude that the
trial court properly submitted and relied upon this
aggravator in the sentencing phase.” Id.
Because Foster's allegations of ineffective assistance
in regard to the avoid arrest aggravator are merely
conclusory, are conclusively refuted by the record, and
raise matters already presented on direct appeal, the
postconviction court correctly denied this claim.
Foster II, 132 So. 3d at 61-62.
The
Florida
Supreme
Court
correctly
applied
Strickland.
Foster identifies no meritorious argument Jacobs could have but
did not make, so there is no basis on which Jacobs could be found
deficient.
And there was no prejudice because objections to the
avoid-arrest aggravator were futile.
Federal habeas courts “must
defer
of
to
the
state’s
construction
its
attorney’s alleged failure turns on state law.
own
law”
when
an
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
- 57 -
law.”
Shinn v. Kayer, 141 S. Ct. 517, 523 (2020).
This Court
thus accepts as correct the Florida Supreme Court’s ruling that
the avoid-arrest aggravator applied here.
Foster fails to establish either prong of Strickland.
Ground
6 is denied.
g. Ground 7: Whether the trial court shifted the burden of
proof to Foster at sentencing
Foster argues two statements made in the sentencing phase of
his trial—one by the prosecutor and one by the trial court—shifted
the burden of proof to him.
During the State’s closing argument,
the prosecutor said,
In other words, our law says if the evidence proves that
these aggravating circumstances are there, then it is
appropriate for a recommendation, that is, you may find
and recommend to the judge the death penalty in this
case, which he will give great weight to and make the
final decision.
This is unless these aggravators are
outweighed by the mitigating evidence that you have seen
in this case.
(Ex. A23 at 2053-54).
The trial court then gave the following
instruction:
If you find the aggravating circumstances do justify the
death penalty, your advisory sentence should be one of
life imprisonment without the possibility of 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.
(Ex. A23 at 2109).
- 58 -
Foster first raised his burden-shifting argument in his state
postconviction
motion.
The
Florida
Supreme
Court
found
it
procedurally barred and noted that it lacked merit:
To the extent that Foster is attempting to make a
substantive challenge that the instructions shifted the
burden, separate and apart from any claim of ineffective
counsel, that claim is barred in postconviction
proceedings. See Stewart, 37 So. 3d at 262 (“Stewart's
substantive challenge to the jury instructions is
procedurally barred because it could have been raised on
direct appeal.”).FN19 As noted above, we held in Chavez
that the claim of burden shifting that Foster raises
here is without merit. See Chavez, 12 So. 3d at 214; see
also Serrano v. State, 64 So. 3d 93, 115 (Fla. 2011)
(“This Court has also rejected the claim that the jury
instructions unconstitutionally shift the burden of
proof.”); Schoenwetter v. State, 931 So. 2d 857, 876
(Fla. 2006) (“This Court and the United States Supreme
Court have repeatedly found that the standard jury
instructions, when taken as a whole, do not shift the
burden of proof to the defendant.”). For these reasons,
the postconviction court correctly denied this claim.
FN19.
Foster's
brief
does
not
allege
ineffective assistance of counsel in this
claim, but had he done so it would lack merit.
Our precedent is clear that counsel cannot be
deemed ineffective for failing to raise a
meritless claim. See, e.g., Troy v. State, 57
So. 3d 828, 843 (Fla. 2011).
Foster II, 132 So. 3d at 76.
As in Ground 4, Foster argues this ground is not procedurally
barred because the Florida Supreme Court addressed its merits.
But, again, that is not the standard.
Federal habeas courts “will
not take up a question of federal law in a case if the decision of
the state court rests on a state law ground that is independent of
the federal question and adequate to support the judgment.” Cruz,
- 59 -
598 U.S. at 25 (cleaned up).
Foster failed to preserve this
argument by making a contemporaneous objection to the prosecutor’s
statement or the jury instruction.
The Florida procedural rule
Foster failed to follow was an independent and adequate ground for
rejection of this claim.
Foster does not argue otherwise.
Nor
does he argue any exception to procedural default applies here.
Ground 7 is procedurally defaulted.
h. Ground 8: Whether there was cumulative error
Foster argues he was denied a fundamentally fair trial due to
the cumulative effect of errors in his trial.
The Florida Supreme
Court rejected this claim in its postconviction review:
On direct appeal, this Court did find several errors in
improper admission of hearsay, which we held were
harmless. However, because we find no error has been
demonstrated in this appeal that can be considered
cumulatively with any other errors, relief is denied on
this claim.
Foster II, 132 So. 3d at 74.
The Florida Supreme Court’s rejection of this ground is
consistent
with
the
federal
cumulative-error
doctrine,
which
“provides that an aggregation of non-reversible errors…can yield
a denial of the constitutional right to a fair trial, which calls
for reversal.”
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117,
1132 (11th Cir. 2012).
Federal habeas courts “address claims of
cumulative error by first considering the validity of each claim
individually, and then examining any errors that we find in the
- 60 -
aggregate and in light of the trial as a whole to determine whether
the appellant was afforded a fundamentally fair trial.”
Id.
Foster did not present any successful claim in his state
postconviction
motion,
so
the
Florida
denied his cumulative-error claim.
Supreme
Court
properly
Likewise, none of Foster’s
preceding federal habeas claims had any merit, so there is no error
to accumulate.
Ground 8 is denied.
i. Ground
9:
Whether
proportionate
Foster’s
death
sentence
is
Foster asserts the Florida courts failed to conduct a proper
proportionality analysis.
He argues a proper analysis would show
that his sentence is not proportional when compared with defendants
in other cases.
Foster also argues he is no more culpable than
his codefendants, so he should not receive a harsher sentence.
The
Florida
Supreme
Court
rejected
both
prongs
of
Foster’s
proportionality claim:
Due to the uniqueness and the finality of death, we
address the propriety of all death sentences in a
proportionality review. See Porter v. State, 564 So. 2d
1060, 1064 (Fla. 1990). To ensure uniformity in the
imposition of the death sentence, we review and consider
all the circumstances in a case relative to other capital
cases. See Terry v. State, 668 So. 2d 954, 965 (Fla.
1996); Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991)
(“[P]roportionality review is a unique and highly
serious function of this Court, the purpose of which is
to foster uniformity in death-penalty law.”).
Here, the trial court found two serious aggravators
(avoid arrest and CCP), no statutory mitigators and some
nonstatutory mitigators. The trial court accorded great
weight to both aggravators and assigned very little
- 61 -
weight to the mitigators proposed by Foster. As
discussed above, the avoid arrest aggravator was proven
beyond a reasonable doubt.
Although Foster does not challenge the CCP finding, a
brief analysis of the aggravator is appropriate. In
essence this aggravator applies to an execution-style
killing that has been calmly and coldly planned in
advance. As an example, we have found CCP where a
defendant “told others in prison that when he got out he
was going to kill the victim; told [someone] that he was
going to escape, get his shotgun, kill the first person
he saw, steal the person’s vehicle, and leave the area;
concealed himself in the victim’s barn and waited for
him; and then kidnapped and murdered the victim and stole
his truck.” Monlyn v. State, 705 So. 2d 1, 6 (Fla. 1997).
Accordingly, to establish CCP:
[T]he jury must first determine that the
killing was the product of cool and calm
reflection and not an act prompted by
emotional frenzy, panic, or a fit of rage
(cold); and that the defendant had a careful
plan or prearranged design to commit murder
before the fatal incident (calculated); and
that
the
defendant
exhibited
heightened
premeditation (premeditated); and that the
defendant had no pretense of moral or legal
justification.
Woods v. State, 733 So. 2d 980, 991 (Fla. 1999) (quoting
Gordon v. State, 704 So. 2d 107, 114 (Fla. 1997)). To
avoid any confusion with the premeditation element
required to prove first-degree murder, the trial court
is required to instruct and emphasize to the jury that
CCP involves a much higher degree of premeditation.
This case appears to present a classic case of a cold
and ruthless execution-style killing by a group of young
men who knew exactly what they were doing. The sentencing
order and the record reveal that Foster and the group
carefully planned the killing of Schwebes. To begin,
Foster and the group discussed several alternatives
before ultimately choosing Foster's plan. Foster got his
shotgun and replaced the birdshot it carried with the
more lethal #1 buckshot to ensure Schwebes’ death.
Foster and the group then obtained gloves and ski masks
- 62 -
to hide their identities. Each member of the group had
a specific assignment as directed by Foster. Finally,
Foster looked Schwebes right in the eye before shooting
him in the face and the buttock. These facts strongly
support the finding of CCP, as found by this Court in
somewhat similar circumstances. See Bell v. State, 699
So. 2d 674, 677 (Fla. 1997).
Recently, we affirmed the imposition of a death sentence
upon an eighteen-year old where the trial court found
three aggravators (HAC, CCP, and commission during a
robbery), one statutory mitigator (age of eighteen), and
a number of nonstatutory mitigators. See Nelson v.
State, 748 So. 2d 237 (Fla. 1999). Similarly, we conclude
the death penalty is not disproportionate here in light
of the presence of two strong aggravators and the absence
of statutory and nonstatutory mitigators. See, e.g.,
Davis v. State, 703 So. 2d 1055, 1061-62 (Fla. 1997)
(“Where there are one or more valid aggravating factors
that support a death sentence and no mitigating
circumstances to weigh against the aggravating factors,
death is presumed to be the appropriate penalty.”)
(quoting Blanco v. State, 452 So. 2d 520, 526 (Fla.
1984)); Sliney v. State, 699 So. 2d 662, 672 (Fla. 1997)
(finding the death penalty proportional with the
existence of two aggravators (commission during a
robbery and avoid arrest), two statutory mitigators (age
and lack of criminal history), and a number of
nonstatutory mitigators); Hayes v. State, 581 So. 2d
121, 126-27 (Fla. 1991) (upholding the death penalty
where there were two aggravators (CCP and commission
during a robbery), one statutory mitigator (age), and
other nonstatutory mitigators).
Foster also points out that he was the only one sentenced
to death out of the four participants in the crime,
further
arguing
the
disproportionality
of
his
sentence.FN9
While
a
death
sentence
is
not
disproportionate per se because a codefendant receives
a lesser punishment for the same crime, especially when
he is less culpable, see Hannon v. State, 638 So. 2d 39
(Fla. 1994), we agree the sentence of an accomplice may
indeed affect the imposition of a death sentence upon a
defendant. See Gafford v. State, 387 So. 2d 333, 337
(Fla. 1980); Salvatore v. State, 366 So. 2d 745, 751
(Fla. 1978). However, we have found with some limited
exceptions that the defendant who actually plans and
- 63 -
kills the victim is usually the most culpable, and his
death sentence will not be considered disproportionate
in comparison to his codefendants’ lesser sentences. See
Sliney, 699 So. 2d at 672 (death sentence not
disproportionate because defendant was more culpable
than codefendant); Cook v. State, 581 So. 2d 141, 143
(Fla. 1991) (defendant’s death sentence was not
disproportionate to sentences of his accomplices, whose
level of participation in murder was clearly less than
defendant’s, and where it was defendant, not his
accomplices, who killed victims). Here, the record
reveals that Foster was the dominant person in the crime,
he planned the killing, assigned the various tasks to
the
participants, procured
the
shotgun
and
the
ammunition, and actually shot and killed Schwebes. Under
these circumstances we conclude the death penalty is not
disproportionate.
FN9. We note that immediately before jury
selection, Foster turned down a plea offer of
life without parole on the murder count:
[State]: Yesterday afternoon I did contact Mr.
Jacobs at the public defender's office and we
did extend an offer in this case of life
imprisonment ... That offer I guess up until
this time is still open. However, it's my
understanding that he would be rejecting that.
[Defense counsel]: I spoke to my client last
night upon receipt of the offer at the jail.
I told him I wanted to [sic] him to sleep on
it. I talked to him this morning, and it's my
understanding that he is turning down the
offer; is that correct, Kevin?
[Foster]: Yes, sir.
[Defense counsel]: Do you understand that if
you accepted the State's offer the case will
be over today and you will receive a sentence
of life without parole; you understand that?
[Foster]: Yes.
- 64 -
[Defense counsel]: The State would be willing
to waive the death penalty at this point in
time.
[Foster]: I understand that.
[Defense counsel]: And knowing all those
facts, is it your decision to turn down the
State's offer?
[Foster]: Yes, it is.
[State]: At
withdrawn.
this
point
the
offer
will
be
Foster I, 778 So. 2d at 921-23.
This ground does not present a cognizable federal habeas
claim.
The
federal
proportionality review.
(1984)
(“There
comparative
is
no
constitution
does
not
require
a
Pulley v. Harris, 465 U.S. 37, 50-51
basis
proportionality
in
our
review
by
cases
an
for
holding
appellate
that
court
is
required in every case in which the death penalty is imposed and
the defendant requests it.”).
If that is not clear enough, the
Eleventh Circuit has expressly instructed district courts not to
conduct proportionality reviews.
1273, 1282 (11th Cir. 1998).
Mills v. Singletary, 161 F.3d
Ground 9 is denied.
j. Ground 10: Whether the jury made the findings of fact
necessary for the death penalty
This is the first of three grounds first presented in Foster’s
Amended Petition.
Respondent argues these new grounds are barred
by the AEDPA’s one-year statute of limitations.
Foster counters
with two alternative theories: (1) the trigger date for the new
- 65 -
claims was the discovery of the underlying factual predicates, not
the date Foster’s conviction became final; and (2) the Amended
Petition relates back to the original petition.
Title
28
limitation.
U.S.C.
§
2244(d)
is
the
AEDPA’s
statute
of
For most habeas claims, the limitation period begins
on “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review.”
28 U.S.C. § 2244(d)(1)(A).
Foster argues the trigger
date for his new claims was “the date on which the factual
predicate
of
the
claim
or
claims
presented
could
discovered through the exercise of due diligence.”
2244(d)(1)(D).
have
been
28 U.S.C. §
He claims the factual predicates for Grounds 10
and 11 are the United States Supreme Court’s decision in Hurst v.
Florida,
136
S.
Ct.
616
(2015),
the
Florida
Supreme
Court’s
decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), and the
Florida legislature’s enactment of Chapter 2017-1.
Neither Hurst opinion constitutes a “factual predicate” of
Foster’s claims under § 2244(d)(1)(D).
Chapter
2017-1.
The
triggering
Nor does the enactment of
provision
codified
as
§
2244(d)(1)(D) “depends on presenting newly discovered evidence[,]”
not newly enacted or clarified law.
Frederick v. McNeil, 300 F.
App’x 731, 733 (11th Cir. 2008) (emphasis added).
The Hurst
decisions are not “facts subject to proof or disproof[,]” and
Foster does not purport to present them as evidence.
- 66 -
Lo v.
Endicott, 506 F.3d 572, 575 (7th Cir. 2007).
Moreover, accepting
court decisions with no evidentiary value in this case as “factual
predicates” under § 2244(d)(1)(D) would render § 2244(d)(1)(C)—
“the primary vehicle through which court decisions restart the
limitations
period”—meaningless.
Id.
at
575-76.
Section
2244(d)(1)(D) does not apply to Grounds 10 and 11, so they are
timely only if they relate back to his original petition.
Federal Rule of Civil Procedure 15 governs amendment of habeas
petitions.
See 28 U.S.C. § 2242 (An application for a writ of
habeas corpus “may be amended or supplemented as provided in the
rules of procedure applicable to civil actions.”).
“An amendment
to a pleading relates back to the date of the original pleading
when…the amendment asserts a claim…that arose out of the conduct,
transaction, or occurrence set out…in the original pleading[.]”
Fed. R. Civ. P. 15(c).
In the habeas context, an amended claim
does not relate back just because it arose from the same trial,
conviction, or sentence as the original petition.
545 U.S. 644, 664 (2005).
Mayle v. Felix,
Rather, the amended claims must be
“tied to a common core of operative facts[.]”
Id.
Mayle and cases cited therein illustrate the limits of the
“relation back” doctrine in the habeas context.
In Mayle, the
petitioner timely asserted that the trial court violated the
Confrontation
Clause
of
the
Sixth
Amendment
witness’s videotaped statement to the jury.
- 67 -
by
publishing
Id. at 650.
a
An
amended petition asserted a Fifth Amendment self-incrimination
claim
arising
from
admission
statements to the police.
of
the
Id. at 651.
petitioner’s
pretrial
The Supreme Court rejected
the petitioner’s claim that the trial itself was the “transaction”
or “occurrence” relevant for relation-back purposes.
The Fifth
Amendment claim did not relate back to the Sixth Amendment claim
because
the
claims
“targeted
“different in time and place[.]”
separate
episodes”
Id. at 659.
that
were
Compare that with
two cases the Supreme Court cited of examples of the “relation
back” doctrine at work:
[I]n Mandacina v. United States, 328 F.3d 995, 1000–1001
(C.A.8 2003), the original petition alleged violations
of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963), while the amended petition alleged
the Government's failure to disclose a particular
report. Both pleadings related to evidence obtained at
the same time by the same police department. The Court
of Appeals approved relation back. And in Woodward v.
Williams, 263 F.3d 1135, 1142 (C.A. 10 2001), the appeals
court upheld relation back where the original petition
challenged the trial court's admission of recanted
statements, while the amended petition challenged the
court's refusal to allow the defendant to show that the
statements had been recanted. See also 3 J. Moore, et
al., Moore's Federal Practice § 15.19[2], p. 15–82 (3d
ed. 2004) (relation back ordinarily allowed “when the
new claim is based on the same facts as the original
pleading and only changes the legal theory”).
Id. at 664 n.7.
In Ground 10 of his Amended Petition, Foster claims his death
sentence
violates
the
Eighth
and
Fourteenth
Amendments’
prohibitions against arbitrary and capricious imposition of the
- 68 -
death penalty because the jury did not unanimously recommend the
death penalty.
original
Foster argues the claim relates back because his
petition
challenged
the
reliability
of
the
death
sentence, thereby putting the State on notice of the factual basis
of Ground 10.
But the pleading standard that applies to habeas
cases requires more than fair notice.
Id. at 655.
A habeas
petition “must ‘specify all the grounds for relief available to
the petitioner’ and ‘state the facts supporting each ground.’”
Id. (quoting Habeas Corpus Rule 2(c)).
It is not enough that the
original petition gave Respondent fair notice of Ground 10’s
factual basis.
And because none of Foster’s timely habeas claims
were
the
based
on
non-unanimous
nature
of
the
jury’s
recommendation, Ground 10 does not relate back.
death
It is thus
untimely.
Even if Foster timely filed Ground 10, it would not warrant
federal
habeas
relief.
The
Florida
Supreme
Court
denied
it
because under Florida law, Hurst v. State and Hurst v. Florida do
not apply retroactively to Foster’s sentence.
Foster v. State,
235 So. 3d 294, 295 (Fla. 2018) (hereafter “Foster III”).
In
Hurst v. Florida, 577 U.S. 92 (2016), the Supreme Court extended
its decision in Ring v. Arizona, 536 U.S. 584 (2002) to Florida’s
capital sentencing scheme and held that Florida’s scheme violated
the Sixth Amendment.
The Hurst Court summarized the pre-Hurst
- 69 -
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
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).
The
Supreme
Court
found
it
unconstitutional because it required a judge, rather than a jury,
to make the critical factual findings necessary to impose the death
penalty—i.e., the existence of aggravating circumstances.
Id. at
98.
On remand of Hurst, the Florida Supreme Court went a step
further.
Along with the existence of aggravating circumstances,
it
that
held
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.”
Hurst v. State, 202 So. 3d 40, 54 (Fla. 2016).
- 70 -
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
‘elements’ that must be found by a jury[.]”
sentence
are
Id. at 57.
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
statutory
doubt.”
aggravating
circumstance
beyond
a
reasonable
Id. at 491.
Foster mounts two attacks on the Florida Supreme Court’s
denial
of
his
retroactivity
Amendments’
Hurst
claim.
approach
First,
violates
prohibition
the
against
imposition of the death penalty.
he
argues
Eighth
and
Fourteenth
and
capricious
arbitrary
Florida’s
In Asay v. State, 210 So. 3d 1
(Fla. 2016), the Florida Supreme Court held that Hurst should not
be applied retroactively to cases that became final before Ring.
Later that year, the court decided to apply Hurst to defendants
sentenced to death after Ring.
Mosley v. State, 209 So. 3d 1248,
1283 (Fla. 2016).
Florida
is
free
to
“make
its
own
choice
about
retroactivity of a given case as a matter of state law.”
- 71 -
the
Knight
v. Fla. Dep’t of Corr., 936 F.3d 1322, 1333 (Fla. 2019).
And
“that state-law retroactivity determination has no significance in
federal court.”
Id.
Florida’s retroactivity rule is an adequate
and independent state law basis for the denial of Foster’s Hurst
claim.
Thus, this Court cannot grant habeas relief.
Coleman v.
Thomas, 501 U.S. 722, 729 (1991) (“This Court will not review a
question of federal law decided by a state court if the decision
of that court rests on a state law ground that is independent of
the federal question and adequate to support the judgment.”).
What is more, Florida’s retroactivity analysis, as applied here,
is
not
contrary
to
well-established
federal
law.
Under
the
federal retroactivity analysis set out in Teague v. Lane, 489 U.S.
288
(1989),
“Ring
and
collateral review.”
Hurst
do
not
apply
retroactively
on
McKinney v. Arizona, 140 S. Ct. 702, 708
(2020) (citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)).
Ground 10 is denied as both untimely and meritless.
k. Ground 11: Whether Florida’s revised capital sentencing
statute authorizes Foster’s sentence
This ground is similar to the previous one, and it suffers
the same defects.
The Florida legislature codified Hurst v.
State’s heightened capital sentencing standard in 2017.
Under the
revised 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
- 72 -
sentenced to death.
Foster argues his death sentence violates his
due process and Eighth Amendment rights because the jury did not
unanimously recommend the death penalty.
Like Ground 10, this claim is barred by the statute of
limitations.
It is not based on newly discovered evidence, so §
2244(d)(1)(D) does not apply.
supra.
See Frederick, supra, and Lo,
Moreover, Ground 11 does not relate back to the original
petition because it does not share a common core of operative facts
with any of Foster’s original claims.
See Mayle, supra.
Also like Ground 10, the state court denied this claim based
on adequate and independent state-law principles.
Rule
3.851
motion,
Foster
argued
his
due
In a successive
process
and
Eighth
Amendment rights were violated because the State did not prove
every element of “capital first-degree murder” set out in the
revised § 921.141.
The Florida Supreme Court again noted that
Hurst does not apply retroactively to Foster’s sentence.
Foster
v. State, 258 So. 3d 1248, 1251 (Fla. 2018) (hereafter, “Foster
IV”).
The court then explained that Foster’s argument is based
on a misunderstanding of Florida law.
“capital first-degree murder.”
Florida has no crime called
Foster was convicted of the crime
of first-degree murder, which is a capital felony, and “Foster’s
jury did find all of the elements necessary to convict him of the
capital felony of first-degree murder—during the guilt phase.”
Foster IV, 258 So. 3d at 1252.
- 73 -
Foster argues this ground is not about retroactivity, but of
course
it
is.
Foster
seeks
to
overturn
his
sentence
by
retroactively applying Hurst and the revised § 921.141 to his
sentence.
The
Florida
Supreme
Court’s
decision
not
to
retroactively apply either to Foster’s case is an adequate and
independent state-law basis for the denial of Ground 11.
And that
retroactivity decision is not contrary to well-established federal
law.
Lambrix v. Sec’y, DOC, 872 F.3d 1170, 1183 (11th Cir. 2017)
(“[N]o U.S. Supreme Court decision holds that the failure of a
state legislature to make revisions in a capital sentencing statute
retroactively applicable to all those who have been sentenced to
death before the effective date of the new statute violates the
Equal Protection Clause, the Due Process Clause, or the Eighth
Amendment.”).
Foster’s
argument
is
built
on
the
incorrect
assumption that his sentence must comply with the subsequently
enacted § 921.141.
Because federal law does not require the
retroactive application of the statute, Foster is not entitled to
habeas relief here.
Ground 11 is denied as untimely and meritless.
l. Ground 12: Whether Foster’s death sentence is cruel and
unusual punishment because he was 18 years old at the
time of the crime
In his final habeas claim, Foster argues his sentence violates
“evolving standards of decency” because he was 18 years old when
he committed the murder.
Foster acknowledges that current Supreme
- 74 -
Court precedence does not support this ground, but he argues the
law should change based on new scientific evidence.
The Florida
Supreme Court declined to extend the restrictions on the death
penalty beyond what current federal precedent requires:
Foster, who was eighteen years old at the time of the
murder, argues that the trial court erred when it
summarily denied his claim that his death sentence is
unconstitutional. He encourages this Court to adopt a
more expansive view than that in Roper v. Simmons, 543
U.S. 551, 577, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)
(holding unconstitutional the imposition of the death
penalty upon individuals who were under the age of
eighteen at the time the murder was committed). In Roper,
the Court said:
Drawing the line at 18 years of age is subject,
of course, to the objections always raised
against categorical rules. The qualities that
distinguish juveniles from adults do not
disappear when an individual turns 18. By the
same token, some under 18 have already
attained a level of maturity some adults will
never
reach.
For
the
reasons
we
have
discussed, however, a line must be drawn. ...
The age of 18 is the point where society draws
the line for many purposes between childhood
and adulthood. It is, we conclude, the age at
which the line for death eligibility ought to
rest.
Id. at 574, 125 S. Ct. 1183. Foster argues that newly
discovered evidence reveals an emerging consensus in the
scientific
community
that
young
adults
are
developmentally akin to juveniles, and he asks this
Court to extend the protection in Roper. For the reasons
explained below, Foster is not entitled to relief.
In order to obtain relief on the basis of newly
discovered evidence, “the evidence must not have been
known by the trial court, the party, or counsel at the
time of trial, and it must appear that the defendant or
defense counsel could not have known of it by the use of
diligence.” Marek v. State, 14 So. 3d 985, 990 (Fla.
- 75 -
2009). Additionally, the newly discovered evidence must
be of such nature that it would probably produce an
acquittal on retrial. Id. As newly discovered evidence,
Foster cites articles from 2016, 2017, and earlier that
focused on young adults ages eighteen to twenty-one and
concluded that their cognitive development renders them
more likely to engage in impulsive and risky behavior
such as criminal activity. He also highlights objective
indicia of consensus, including a national trend against
sentencing young adult offenders to death and against
carrying out the execution of those already sentenced.
Foster
suggests
that
recent
actions
by
state
legislatures support the prohibition of death sentences
for defendants who were age twenty-one and under at the
time of their crimes, but he admits that no state has
passed a law specifically geared toward that age group.
Foster also cites a 2018 American Bar Association
resolution which recommended that the death penalty be
prohibited as to defendants twenty-one years of age and
younger at the time of their crimes. In sum, Foster
argues that evolving standards of decency render his
death sentence invalid under the Eighth Amendment. As he
acknowledges, however, this Court has rejected similar
claims of newly discovered evidence—most recently in
Branch v. State, 236 So. 3d 981 (Fla. 2018).
Eric Scott Branch, while under a death warrant, argued
that his death sentence was unconstitutional because he
was twenty-one years old at the time of the murder. Id.
at 985. In a manner very similar to Foster, and citing
some of the same research, Branch argued that newly
discovered evidence demonstrates that young people in
their late teens and early twenties lack the cognitive
development that is necessary to be eligible for the
death penalty. Id. This Court rejected Branch’s argument
on procedural grounds and also rejected the claim of
newly discovered evidence, saying: “[W]e have rejected
similar claims on the basis that scientific research
with respect to brain development does not qualify as
newly discovered evidence.” Id. at 986. Importantly,
this Court also reaffirmed its adherence to the United
States Supreme Court’s holding in Roper. Id. at 987.
This Court observed:
Finally, the United States Supreme Court has
continued to identify eighteen as the critical
age
for
purposes
of
Eighth
Amendment
- 76 -
jurisprudence. See Miller v. Alabama, 567 U.S.
460, 465, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012) (prohibiting mandatory sentences of
life without parole for homicide offenders who
committed their crimes before the age of
eighteen); Graham v. Florida, 560 U.S. 48, 7475, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)
(prohibiting sentences of life without parole
for nonhomicide offenders who committed their
crimes before the age of eighteen). Therefore,
unless the United States Supreme Court
determines that the age of ineligibility for
the death penalty should be extended, we will
continue to adhere to Roper.
Branch, 236 So. 3d at 987. Foster attempts to distinguish
his case from Branch because Branch was twenty-one years
old while Foster was eighteen years old at the time of
their respective crimes. In light of Roper, this
distinction has no merit. As we did in Branch, we
reaffirm our adherence to Roper. Foster is not entitled
to relief.
Foster IV, 258 So. 3d at 1253-54.
Foster concedes that the United States Supreme Court has not
extended Roper to defendants over the age of 18.
The Florida
Supreme Court’s rejection of this ground is thus not contrary to
“clearly established Federal law, as determined by the Supreme
Court of the United States[.]”
28 U.S.C. § 2254(d)(1).
The
Eleventh Circuit “has clarified that state courts are not obligated
to extend legal principles set forth by the Supreme Court because
AEDPA requires only that state courts “fully, faithfully and
reasonably follow legal rules already clearly established by the
Supreme Court.’”
Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d
1239, 1259 (11th Cir. 2015) (quoting Hawkins v. Alabama, 318 F.3d
- 77 -
1302, 1307 n.3 (11th Cir. 2003)) (rejecting a Roper argument by a
defendant who was 19 years old when he committed murder).
The Florida Supreme Court correctly applied Roper.
Ground
12 is denied.
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 show 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). Foster has not made the requisite
showing here and may not have a certificate of appealability on
any ground of his original or supplemental petitions.
Accordingly, it is hereby
ORDERED:
- 78 -
(1)
Petitioner Kevin Don Foster’s Amended Petition for Writ
of Habeas Corpus by a Person in State Custody (Doc.# 89)
is DENIED.
(2)
Foster
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 October 2023.
SA: FTMP-1
Copies:
Counsel of Record
- 79 -
30th
day
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