Wirth v. Secretary, Department of Corrections et al (Lee County)

Filing 16

OPINION AND ORDER. 1.The 28 U.S.C. § 2254 petition for writ of habeas corpus filed by Justin Daniel Wirth is DENIED. 2. The Clerk is DIRECTED to enter judgment in favor of Respondent and against Petitioner, deny any pending motions as moo t, terminate any deadlines, and close this case. The Court declines to issue a COA. Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis. Signed by Judge John L. Badalamenti on 11/15/2023. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JUSTIN DANIEL WIRTH,
Petitioner,
v.

CASE NO.: 2:21-cv-324-JLB-NPM

SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.

/
ORDER

This cause is before the Court on a 28 U.S.C. § 2254 petition for writ of
habeas corpus filed by Justin Daniel Wirth (“Petitioner”), a prisoner of the Florida
Department of Corrections. (Doc. 1.) At the Court’s direction (Doc. 11),
Respondent filed a response to the petition. (Doc. 13.) Petitioner did not file a
reply.
After carefully reviewing the pleadings and the entire record, the Court
concludes that Petitioner is not entitled to federal habeas corpus relief. And
because the Court resolved the petition on the basis of the record, an evidentiary
hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
I.

Background and Procedural History

On May 2, 2012, a grand jury returned an indictment charging sixteen-yearold Justin Wirth (“Petitioner”) with two counts of first-degree murder and one count
of robbery with a firearm. (Doc. 13-2 at 2–3.) On December 12, 2014, Petitioner,
through defense counsel Kevin C. Shirley (“Counsel”), filed a motion to suppress his

statements to the police. (Id. at 5–7.) After an evidentiary hearing (id. at 9–111),
the trial court denied the motion to suppress. (Id. at 113–19.)
Petitioner proceeded to trial on March 1, 2016. (Doc. 13-2 at 121.) The jury
returned a verdict of guilty as charged in the indictment. (Id. at 772–76.) The
trial court sentenced Petitioner to two consecutive life sentences on the first-degree
murder convictions and a concurrent life sentence on the robbery conviction. (Id. at
778–88.) Because Petitioner was a juvenile when he committed the crimes, the
court imposed a judicial review of the sentences on the murder counts after 25
years, as required under Florida Statute § 921.1402. (Id. at 786.)
On January 26, 2018, the Second District Court of Appeal (“Second DCA”) issued a
written opinion finding no reversible error in Petitioner’s convictions and affirmed
without comment. (Doc. 13-2 at 913–14); Wirth v. State, 235 So. 3d 1057 (Fla. 2d
DCA 2018). However, the court remanded the case for resentencing on the robbery
count because “[Petitioner] was sentenced to life for the robbery count [as a
juvenile] without his sentence providing for a meaningful opportunity to obtain
release,” contrary to Graham v. Florida, 560 U.S. 48, 75 (2010) and Florida Statute
§ 921.1402(2)(d). Wirth, 235 So. 3d at 1058. The state court amended Petitioner’s
life sentence for robbery to add a judicial review of his sentence after 20 years.
(Doc. 13-2 at 918–22.)
Thereafter, Petitioner filed a motion for postconviction relief under Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 Motion”). (Doc. 13-2
at 924–55.) The postconviction court denied the motion without holding an

2

evidentiary hearing. (Id. at 1935–78.) The Second DCA affirmed per curiam
without a written opinion. (Id. at 2005.)
Petitioner filed his 28 U.S.C. § 2254 petition on April 13, 2021. (Doc. 1.)
II.
A.

Legal Standards

The Antiterrorism Effective Death Penalty Act (AEDPA)

Under the AEDPA, federal habeas relief may not be granted with respect to a
claim adjudicated on the merits in state court unless the adjudication of the claim:
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). In this context, “clearly established federal law”
consists of the governing legal principles, and not the dicta, set forth in the
decisions of the United States Supreme Court at the time the state court issued its
decision. White v. Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S.
70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
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 the Supreme

3

Court’s precedents 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), or “if the state
court either unreasonably extends a legal principle from [Supreme Court] precedent
to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Bottoson v. Moore, 234 F.3d 526,
531 (11th Cir. 2000) (quoting Williams, 529 U.S. at 406).
The 2254(d) standard is both mandatory and difficult to meet. To
demonstrate entitlement to federal habeas relief, the petitioner must show that the
state court’s ruling was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” White, 572 U.S. at 420 (quoting Harrington v. Richter, 562 U.S. 86,
103 (2011)). Moreover, when reviewing a claim under section 2254(d), a federal
court must presume that any “determination of a factual issue made by a State
court” is correct, and the petitioner bears “the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e).
A state court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits—warranting deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Generally, in the case of a silent
affirmance, a federal habeas court will “look through” the unreasoned opinion and
presume that the affirmance rests upon the specific reasons given by the last court
to provide a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991);

4

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). However, the presumption that the
appellate court relied on the same reasoning as the lower court can be rebutted “by
evidence of, for instance, an alternative ground that was argued [by the state] or
that is clear in the record” showing an alternative likely basis for the silent
affirmance. Sellers, 138 S. Ct. at 1196.
B.

Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part test
for determining whether a convicted person is entitled to relief on the ground that
his counsel rendered ineffective assistance. 466 U.S. 668, 687–88 (1984). A
petitioner must establish that counsel’s performance was deficient and fell below an
objective standard of reasonableness and that the deficient performance prejudiced
the defense. Id.
The focus of inquiry under Strickland’s performance prong is “reasonableness
under prevailing professional norms.” Id. at 688. In reviewing counsel’s
performance, a court must adhere to the presumption that “counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689 (citation
omitted). A court must “judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct,”
applying a highly deferential level of judicial scrutiny. Roe v. Flores-Ortega, 528
U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). Proving Strickland
prejudice “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687.
5

III.

Discussion

On April 8, 2012, 16-year-old William Dalton Haley and his mother, Amy
Lorah, were shot and killed in their home. (Doc. 13-2 at 395.) The perpetrators—
Petitioner and Clayton Combs, who were former friends of Mr. Haley—took the
victims’ gun, a safe, and a cellphone. In exchange for an agreement allowing him
to plead guilty to second-degree murder, Clayton Combs testified at Petitioner’s
trial. (Id. at 408.) Mr. Combs testified that Petitioner initially told him that he
wanted to rob Mr. Haley. (Id. at 412–13.) But after retrieving a gun belonging to
Mr. Combs’s father, Petitioner said that he planned to kill Mr. Haley. (Id. at 412–
13, 415.) The two carried out the plan by shooting Mr. Haley and Ms. Lorah
several times. (Id. at 418–32.) After committing the murders, Petitioner took a
safe, a gun, and Mr. Haley’s cellphone from the home. (Id. at 433-35, 437.)
After interviewing witnesses, the police developed Petitioner as a suspect and
brought him in for questioning. (Doc. 13-2 at 570-71.) During an interview with
Detective Jeff Brown, Petitioner confessed to murdering the victims. (Id. at 575–
603.) Prior to trial, the defense moved to suppress Petitioner’s confession on
several grounds, including the ground that the police did not notify Petitioner’s
parents before questioning him. (Id. at 5.) The trial court denied the motion to
suppress (id. at 113–119), and Petitioner’s confession was played for the jury at his
trial. (Id. at 573–602.)
Petitioner raises three grounds in his section 2254 petition. Each ground
was raised in his Rule 3.850 Motion and affirmed by the Second DCA without a
written opinion. (Doc. 13-2 at 2005.) Therefore, the claims are exhausted, and
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(unless noted otherwise) the Court will look through the Second DCA’s summary
opinion on each claim and presume that the affirmance rested upon the reasons
given by the postconviction court. Sellers, 138 S. Ct. at 1192.
A.

Ground One

Petitioner claims that Counsel “was constitutionally ineffective [for] failing to
inform [Petitioner] as to the ramification of a favorable plea offer given by the
state.” (Doc. 1 at 3.) Specifically, Petitioner alleges that Counsel did not inform
him that his pretrial jail time of 1420 days would offset the state’s 45-year plea offer
and also failed to discuss with him a “best interest” plea deal. (Id. at 4.)
Petitioner raised this claim in his Rule 3.850 Motion, and after ordering a response
from the state, the postconviction court summarized and denied the claim as
follows:
Defendant argued that counsel was ineffective for failing
to inform him of the ramification of the plea offer.
Defendant stated that he rejected a 45-year plea offer
because counsel did not explain that his jail credit would
offset the prison sentence in the plea offer. Defendant
maintained that he would have accepted the 45-year offer
had he known his jail credit would reduce the sentence by
almost three years. Defendant alternatively argued that
counsel should have informed him that the plea was in his
best interest as there was no reasonable theory of defense.
As the State argued, it is not credible that Defendant did
not know he would receive credit for time served, nor that
Defendant would have accepted the 45-year plea offer
merely because he would receive about three years of jail
credit. Defendant had prior experience in criminal cases
09-CJ-2136 and l 1-CJ-5741, in which he would have
learned about jail credit. The plea forms are attached.
As set forth below, the record reflects that Defendant was
apparently unwilling to accept the 45-year plea offer
regardless of the evidence against him, and that
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Defendant would not have been swayed by knowledge he
would receive jail credit.
Defendant concedes in his motion that there was no
reasonable theory of defense. Defendant did not allege
that counsel misadvised him, told him to reject the offer,
or that the decision as to whether the plea was in his best
interest was anything other than his own. The record
refutes Defendant's allegation that counsel did not discuss
whether the plea offer was in his best interest. At a
status conference on July 1, 2014, counsel stated he had
provided discovery to Defendant, and needed to review
and discuss with Defendant so Defendant could determine
what course of action was in Defendant's best interest.
At a status conference on July 14, 2014, counsel stated
that Defendant wanted him to take some depositions
before Defendant made a decision about the plea offer.
Defendant thus discussed with counsel what would be in
his best interest, after reviewing discovery and directing
counsel to take depositions before Defendant made that
decision.
Defendant was provided with discovery and reviewed it
with counsel, he was aware of the evidence against him,
that the motion to suppress was denied and his statement
would be used against him, and he was aware of the
strength of the State's case. Defendant, after
consultation with counsel on more than one occasion,
nonetheless made an informed, independent and
voluntary decision to reject the favorable plea offer and
risk trial. Counsel's performance was not deficient.
Defendant has failed to allege any facts that, if true,
would demonstrate either prong of Strickland.
(Doc. 13-2 at 1936–37 (citations to the record omitted, minor alterations for clarity).)
The Second DCA affirmed without a written opinion. (Id. at 2005.)
Petitioner now seeks federal habeas relief on this claim for two reasons.
First, he argues that the postconviction court erred when it failed to accept the
factual allegations in his Rule 3.850 Motion “as true to the extent they are not
refuted by the record.” (Doc. 1 at 4.) Next, he argues that the record is “silent and

8

void as to counsel affirmatively informing Petitioner of a direct consequence
regarding the State’s plea offer,” resulting in “an unreasonable determination of the
facts in light of the evidence presented in the [s]tate court postconviction
proceeding.” (Id.) Neither argument entitles Petitioner to habeas relief.
To the extent Petitioner argues that the postconviction court and the Second
DCA (by its silent affirmance) erred under Florida law by applying the wrong
standard of review or by denying this claim without first holding an evidentiary
hearing, the state courts, not a federal court on habeas review, is the final arbiter of
state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing that “a
state court’s interpretation of state law . . . binds a federal court sitting in habeas
corpus”); Anderson v. Sec’y, Dep’t of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006)
(“[T]he state court’s failure to hold an evidentiary hearing on a petitioner’s 3.850
motion is not a basis for federal habeas relief.”). Therefore, an allegation of statelaw error (such as not accepting Plaintiff’s Rule 3.850 allegations as true) without a
concomitant constitutional error, is not a ground for habeas relief and does not
overcome the presumption of correctness afforded a state court’s factual findings.
See Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (“[W]hile habeas relief is
available to address defects in a criminal defendant's conviction and sentence, an
alleged defect in a collateral proceeding does not state a basis for habeas relief.”).
Next, Petitioner appears to argue that he is entitled to relief because the
state court did not address Counsel’s alleged failure to inform him of the jail credits.
But even if the postconviction court did not specifically find that Counsel

9

affirmatively informed Petitioner of the jail credits, the court determined that
Petitioner’s after-the-fact assertion that he was unaware that he would receive jail
credit was “not credible,” because he had entered into two plea agreements in other
cases. (Doc. 13-2 at 1936.) Also, the postconviction court discounted Petitioner’s
assertion that he “would have accepted the 45-year plea offer merely because he
would receive about three years of jail credit,” and found that Petitioner “would not
have been swayed by knowledge he would receive jail credit.”

(Id. at 1936.)

Therefore, the postconviction court denied this ground on Strickland’s prejudice
prong, and was not required to consider Counsel’s performance on this issue.
Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective
assistance claim to . . . even address both components of the inquiry if the defendant
makes an insufficient showing on one.”)
And the state court’s rejection of this claim for lack of prejudice was not
unreasonable. To demonstrate prejudice when a defendant improvidently rejects a
plea, the petitioner “must demonstrate [among other things] a reasonable
probability, defined as a probability sufficient to undermine confidence in the
outcome,” that he would have accepted the offer. Alcorn v. State, 121 So. 3d 419,
422 (Fla. 2013); see also Lafler v. Cooper, 566 U.S. 156, 163–64 (2012) (explaining
that, to show prejudice when a plea is improvidently rejected based on ineffective
advice, “a defendant must show that but for the ineffective advice of counsel there is
a reasonable probability that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the prosecution would not

10

have withdrawn it in light of intervening circumstances)[.]”). Petitioner argues
that—had he realized he would have received credit for the 1420 days he spent in
jail pending trial—he would have accepted the state’s 45-year plea offer. (Doc. 1 at
4.) But the postconviction court did not find this assertion credible, and
“[d]etermining 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, 845 (11th Cir. 2011); Martin v. Kemp, 760 F.2d 1244, 1247
(11th Cir. 1985) (“Factual issues include . . . credibility determinations.”).
The state courts’ factual findings that Petitioner was aware of the jail credit
and that the credits did not affect his decision to reject the plea eliminate any basis
for this Court to conclude that Petitioner suffered prejudice from Counsel’s failure
to advise him about jail credit. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a
factual issue made by a State court shall be presumed to be correct.”) Moreover,
even if Petitioner was unaware of how jail credits work (a finding not made by this
Court), he knew that he faced life in prison if convicted at trial (Doc. 13-2 at 134)
and was aware of the state’s 45-year plea offer. (Id. at 133.) A jail credit of less
than four years would have been a minimal reduction from a 45-year sentence.
Given Petitioner’s reluctance to accept the state’s offer in the face of overwhelming
evidence of guilt, it is implausible to now conclude that the credits would have
prompted Petitioner to accept the plea.
Petitioner also asserts that, given the magnitude of the state’s evidence
against him, Counsel was obligated to “encourage Petitioner to accept the offer in a

11

firmest manner.” (Id.) In other words, Petitioner argues that Counsel did not
sufficiently urge him to accept the 45-year offer. “During plea negotiations,
defendants are entitled to the effective assistance of competent counsel.” Lafler,
566 U.S. at 162 (internal quotation omitted). But Petitioner points to no per se rule
establishing that defense counsel must “firmly” recommend that a client accept a
favorable plea offer. Petitioner admits that he was aware of: (1) the state’s 45-year
offer; (2) the evidence against him (which included a co-defendant’s testimony and a
detailed confession to planning and carrying out two murders); and (3) the
maximum sentences (life) he faced if convicted at trial. Thus, Petitioner had the
tools necessary to make an informed decision of whether to accept the offer. See
e.g. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (“[C]ounsel need
only provide his client [who is considering a plea offer] with an understanding of the
law in relation to the facts, so that the accused may make an informed and
conscious choice between accepting the prosecution's offer and going to trial.”);
Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (finding no legal basis for an
argument that “counsel has an obligation to ‘strongly recommend’ the acceptance or
rejection of a plea offer”); Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000)
(“[T]he ultimate decision whether to plead guilty must be made by the defendant.
And a lawyer must take care not to coerce a client into either accepting or rejecting
a plea offer.”).
Finally, as explained by the postconviction court, Petitioner’s argument that
Counsel did not discuss a “best interest” plea deal is refuted by the record. At a

12

July 1, 2014 status conference, Counsel told the trial court that he and Petitioner
were still reviewing the evidence to determine whether accepting the plea would be
in Petitioner’s best interest:
We have discussed [a plea offer]. Mr. Wirth,
unfortunately his previous counsel had not supplied him
with any of the materials from the case, so I went ahead
and printed a copy of all of the materials that Mr.
Justham had sent me with the exception of some
photographs and some phone records that I didn't think
Mr. Wirth needed to be bothered with -...
because they're a little monotonous. I need to get back
and discuss with Mr. Wirth what his review -- following
his review of the materials what he believes in his -- is in
his best interest.
(Doc. 13-2 at 1953.) During the subsequent July 14, 2014 status conference,
Counsel explained to the trial court:
Judge, I’m here with Mr. Wirth. He’s had time to go over
his discovery. I was able to get the discovery to him. And
he and I spoke as recently as yesterday.
The State has an offer on the table. Mr. Wirth’s previous
counsel took some depos, didn’t take depositions of. what
Mr. Justham and I have discussed would be critical and
essential witnesses. My client would like me to talk to
these folks before he makes a final decision.
...
My client understands that at any point in time Mr.
Justham and the State Attorney's Office can pull the plug
on that, and then we’re – we’re open to the Court or we’re
at trial. And I think that we're all trying to see if there is
a way to resolve [the case].]

13

(Doc. 13-2 at 1950–51.) Finally, on March 1, 2016, immediately before trial, the
state told the Court that it had offered Petitioner a 45-year plea deal. (Doc. 13-2 at
133.) Petitioner told the trial court that he had discussed the offer with Counsel,
that he was aware of the maximum penalties he faced, and that he wanted to stand
on his plea of not guilty. (Id. at 134.) The record supports a conclusion that
Counsel and Petitioner discussed whether a plea was in Petitioner’s best interest,
but that Petitioner decided to reject the plea offer The state courts reasonably
adjudicated all portions of Ground One, and Petitioner is not entitled to federal
habeas relief.
B.

Ground Two

Petitioner asserts that Counsel was constitutionally ineffective for failing to
investigate and call his mother, Cassie Parke, to testify at the hearing on his motion
to suppress. (Doc. 1 at 5.) He asserts that he received text messages from his
mother while he was in the presence of law enforcement officers and that Counsel
“failed to call Ms. Parke to testify to the extent of the text messages and that she
was not impaired at the time Detective Anderson entered her home inquiring about
Petitioner.” (Id. at 6.) Petitioner raised a similar claim in his Rule 3.850 Motion,
in which he argued that Ms. Parke’s testimony would have rebutted police
testimony that, shortly before Petitioner’s police interview, she was too intoxicated
to consent to Petitioner’s interrogation. (Doc. 13-2 at 940.) He asserted that she
would have testified to being disoriented by medication and the aggression of law
enforcement, and that, had she been informed of the murder charges, she would
have denied consent to interrogate Petitioner without her being present. (Id. at
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941–43.) He attached phone records from his sister’s phone account and alleged
that the records show he was exchanging texts with his mother while the police
were at his home and while he was allegedly being interrogated. (Id. at 952–54.)
The postconviction court denied this claim on both Strickland prongs. First,
the court concluded that counsel had stated at the hearing on the motion to
suppress that it would not be in Petitioner’s best interest to call Ms. Parke as a
witness during the hearing. (Doc. 13-2 at 1939.) The postconviction court
concluded that this decision was “clear trial strategy.” (Id.) The court further
found that the attached phone records were unauthenticated as to the phone
numbers in question and that, even accepting as true that Petitioner had received
texts from his mother while law enforcement were present, “the phone records do
not show what the text message was, or that his mother was not impaired.” (Id. at
1939.) Next, the postconviction court concluded that Petitioner could not
demonstrate prejudice for two reasons. First, the postconviction court noted that,
even without Petitioner’s confession, there was overwhelming evidence of his guilt.
(Id. at 1339–40.) Second, the court explained that “failure to secure a parent’s
consent or presence does not require suppression of a minor’s statement.” (Id. at
1940 (citing Doerr v. State, 383 So. 2d 905, 906 (Fla. 1980); M.A.B. v. State, 957 So.
2d 1219, 1229 (Fla. 2d DCA 2007)).) The Second DCA affirmed without a written
opinion. (Doc. 13-2 at 2005.)
A review of the record and applicable law supports the state courts’ rejection
of Ground Two. In a pre-trial motion to suppress, Counsel argued, inter alia, that

15

the police did not notify Petitioner’s parents prior to obtaining his statement and
that the parents would not have consented to the police speaking to Petitioner.
(Doc. 13-2 at 5–6.) At the hearing on the motion, Detective Joseph Anderson
testified that he went to Petitioner’s home around 10:30 p.m. on April 13, 2012.
(Id. at 34.) Ms. Parke answered the door and told the police that Petitioner was
not home. (Id. at 35.) She appeared intoxicated and was slurring her words and
staggering. (Id. at 36, 37.) She then “dialed” her television remote in an attempt
to call her son. (Id. at 36.) Shortly thereafter, the police concluded that Petitioner
may have been involved in the crime. (Id. at 48.) Having been advised of Ms.
Parke’s condition and that Petitioner was not at his residence, the police issued a
BOLO for Petitioner. (Id.) On April 14 at 12:01 a.m. (an hour and a half after
Detective Anderson’s visit with Ms. Parke), Detective Jeff Brown interviewed
Petitioner about the murders. (Id. at 52.) When questioned by Counsel as to why
the police had not contacted Ms. Parke for permission to speak with Petitioner,
Detective Brown said that he believed she would be too impaired to give permission
at that time. (Id. at 103.) After the police testimony, Counsel concluded, without
further explanation, that it would not be in Petitioner’s best interest to call Ms.
Parke to testify. (Id. at 104.) Thereafter, the trial court denied the motion to
suppress in a written opinion, addressing the police’s failure to gain Ms. Parke’s
permission as follows:
There was no testimony that Defendant stated a desire
for his parents to accompany him, or to be present during
any questioning. There was no testimony that the
parents would have wanted to be present, or would have

16

denied permission for law enforcement to speak to
Defendant. If a juvenile indicates he wishes his parents
present, there must be no questioning until that occurs.
See State v. S.V., 958 So. 2d 609 (Fla. 4th DCA 2007). It
is error for police to question a juvenile after his parent
has requested to be present. See Ramirez v. State, 739
So. 2d 568 (Fla. 1999) citing Allen v. State, 636 So. 2d 494
(Fla. 1994). However, the fact that a parent was not
notified or present is only one of the factors for
consideration, and does not preclude a finding of
voluntariness under the totality of the circumstances.
Doerr v. State, 383 So. 2d 905, 906 (Fla. 1980); M.A.B. v.
State, 957 So. 2d 1219, 1229 (Fla. 2d DCA 2007). The
Court finds that, since neither Defendant nor his parents
requested a parent be present during the interrogation,
this factor alone does not render involuntary Defendant's
waiver of his rights.
(Id. at 118.)
Presumably, Petitioner now argues that—had Counsel called Ms. Parke to
testify at the hearing—she would have testified that she would have denied
permission for law enforcement to speak with her son or would have asked to be
present at any interview. But this is merely speculation. Petitioner does not offer
sworn testimony from Ms. Parke detailing what she would have said if called to
testify at the hearing. That omission, standing alone, defeats this claim. See
Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) (“Johnson offers only
speculation that the missing witnesses would have been helpful. This kind of
speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.’ ”)
(quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)); see also United
States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony
of a putative witness must generally be presented in the form of actual testimony by
the witness or on affidavit. A defendant cannot simply state that the testimony
17

would have been favorable; self-serving speculation will not sustain an ineffective
assistance claim.”); Jones v. State, 845 So. 2d 55, 64 (Fla. 2003) (“Postconviction
relief cannot be based on speculative assertions.”).
Moreover, the postconviction court reasonably concluded that Petitioner
cannot demonstrate Strickland prejudice because—even without Petitioner’s
confession to the police—there was overwhelming evidence of his guilt. Namely,
Petitioner’s co-defendant testified that Petitioner asked him for a ride to the
victims’ house to kill and rob the victims, and after he was invited inside, Petitioner
shot both victims multiple times and stole a handgun and safe. (Doc. 13-2 at 410,
411–412, 413, 415, 418, 420, 423, 428, 430, 432, 433.) Payton Iles testified that he
purchased a gun from Petitioner later that evening, and Petitioner told him that the
gun “had bodies on it.” (Id. at 478) Given the substantial evidence against
Petitioner, even without his confession, he has not demonstrated Strickland
prejudice from Counsel’s failure to call Ms. Parke as a witness at the motion to
suppress. Petitioner is not entitled to federal habeas corpus relief on Ground Two.
C.

Ground Three

Petitioner asserts that the state knowingly presented false testimony through
Detectives Brown and Anderson at the hearing on his motion to suppress. (Doc. 1
at 7.) He states that the testimony from these witnesses regarding his mother’s
intoxication and the timeline of his interview with the police was false. He claims
that phone records “establish that [he] was not in custody during the 2 hours and 8
minute period of 11:01 p.m. April 13 and 1:09 a.m. April 14.” (Id.) Therefore,
Petitioner contends, Detective Brown must have lied when he testified that he
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interviewed Petitioner between 12:01 a.m. and 12:26 a.m. on April 14. (Id.)
Petitioner also asserts that Detective Anderson’s testimony regarding his mother’s
(Cassie Park’s) state of intoxication shortly before the interview was false. (Id. at
8.)
Petitioner raised this claim in his Rule 3.850 Motion, and the postconviction
court denied it because Petitioner “did not establish that the proposed testimony
was false, merely inconsistent with his version of events.” (Doc. 13-2 at 1940
(emphasis added).) The postconviction court further concluded that Petitioner had
not established that the state knew the testimony was false. (Id.) Finally, the
court found that the evidence was not material because “[Petitioner’s] mother’s
impairment or the length of the interrogation were collateral issues, and there is no
reasonable probability that the outcome of the motion to suppress hearing or trial
would have been different given the overwhelming evidence of Defendant’s guilt.”
(Id. at 1941.)
Petitioner now argues that the state courts’ rejection of the claim was
unreasonable because the postconviction court did not expressly consider phone
records attached to his Rule 3.850 Motion showing texts between Petitioner and Ms.
Parke during the time that Petitioner was in custody and being questioned by
Detective Brown. (Doc. 1 at 7.) Indeed, Petitioner attached a cell phone bill
belonging to Ms. Natasha C. Vail to his Rule 3.850 Motion. (Doc. 13-2 at 952.)
Petitioner asserted that the bill reflected a joint account for phones belonging to
himself, his sister (Ms. Vail), and his mother (Ms. Parke). (Id. at 947.) He further

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asserted that the bill showed that he exchanged several texts with his mother
during the time he was allegedly being interviewed by Detective Brown. Even
when considering the phone bill’s information and the arguments Petitioner made
in his Rule 3.850 Motion, the record supports the state courts’ rejection of Ground
Three.
First, contrary to Petitioner’s assertions, the postconviction court did address
the phone records (albeit in another claim in the Rule 3.850 Motion). (Doc. 13-2 at
1939.) The court discounted the records as follows:
As to the phone records, the Court notes that the phone
records were not authenticated as to the phone numbers
in question. Further, even taking the allegations in the
motion as true that the phone records show Defendant
received a text message from his mother at the time law
enforcement were present, the phone records do not show
what the text message was, or that his mother was not
impaired. These records [d]o not refute law
enforcement's testimony from the hearing on the
motion to suppress.
(Id. at 1939 (emphasis added).) The state courts’ conclusions that Petitioner did
not establish (through witness testimony or documentary evidence) that either
detective’s testimony was false, or that the state knew it was false, were findings of
fact and are presumptively correct. See 28 U.S.C. § 2254(e)(1) (“[A] determination
of a factual issue made by a State court shall be presumed to be correct”); Brown v.
Head, 272 F.3d 1308, 1317–18 (11th Cir. 2001) (recognizing, in the context of a
Giglio claim, that the state court’s conclusion that the witness had not lied was a
finding of fact).

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Next, to prevail on his Giglio 1 claim, Petitioner must establish that “ ‘the
prosecutor knowingly used perjured testimony, or failed to correct what he
subsequently learned was false testimony, and that the falsehood was material.’ ”
Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292, 1312 (11th Cir. 2005) (emphasis in
original) (quoting Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999)).
Petitioner does not allege, and a review of his Rule 3.850 Motion does not reveal,
that Petitioner authenticated the cell phone bill in any manner, provided evidence
showing who owned the numbers in the account, or described the content of the text
messages he received. Rather, Petitioner attached only a photocopied phone bill
without affidavits from his mother, sister, or anyone else establishing ownership of
the numbers in the bill or describing the content of any text messages exchanged.
Finally, that Ms. Parke sent texts to Petitioner does not establish that she
was not impaired during her encounter with Detective Anderson or that she asked
to be present during Petitioner’s interview with the Detective Brown. Nor does it
establish that Petitioner was not in custody and was not being interviewed when
the texts were sent. “In the Giglio context, the suggestion that a statement may
have been false is simply insufficient; the defendant must conclusively show that
the statement was actually false.” Maharaj, 432 F.3d at 1313. Petitioner has not
made the requisite showing.
Because neither detective testified that Petitioner did not exchange texts
with his mother, the cell phone bill (even if properly authenticated) does not

1

Giglio v. United States, 405 U.S. 150 (1972).

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conclusively establish that either detective lied at the suppression hearing.
Petitioner’s allegations and the attached phone bill are not enough to carry his
burden of rebutting by clear and convincing evidence the postconviction court’s
contrary factfinding. 28 U.S.C. § 2254(e)(1). Thus, it follows that the state
postconviction court’s decision that Petitioner failed to establish his Giglio claim is
objectively reasonable within the meaning of section 2254(d). Brown v. Head, 272
F.3d 1308, 1318 (11th Cir. 2001) (“We review the state court’s conclusion that there
was no Giglio violation for objective reasonableness, not per se correctness.”).
Petitioner is not entitled to federal habeas relief on Ground Three.
IV.

Conclusion

Based on the foregoing, Petitioner is not entitled to relief on the habeas
claims presented here. The Court has considered all allegations in the petition,
and concludes that none warrant habeas relief.
Accordingly, it is ORDERED that:
1.

The 28 U.S.C. § 2254 petition for writ of habeas corpus filed by Justin
Daniel Wirth is DENIED.

2.

The Clerk is DIRECTED to enter judgment in favor of Respondent
and against Petitioner, deny any pending motions as moot, terminate
any deadlines, and close this case.

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Certificate of Appealability 2
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 or circuit justice or judge 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
this substantial showing, a petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003).
Upon consideration of the record, the Court declines to issue a COA.
Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma
pauperis.
DONE AND ORDERED in Fort Myers, Florida on November 15, 2023.

SA: FTMP-2
Copies to: Justin Daniel Wirth, Counsel of Record

Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”
2

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