Stratton v. Secretary, Department of Corrections et al

Filing 47

ORDER denying 1 Petition and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 4/7/2020. (ACT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DAVID STRATTON,
Petitioner,
v.

Case No. 3:17-cv-962-J-34JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner David Stratton, an inmate of the Florida penal system, initiated this
action on August 30, 2017,1 by filing a Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2254 (Petition; Doc. 1). In the Petition, Stratton challenges a 2008 state court (Duval
County, Florida) judgment of conviction for first-degree murder and tampering with
evidence. Stratton raises four grounds for relief. See Petition at 4-12.2 Respondents
initially moved to dismiss the Petition as untimely, but the Court denied the motion to
dismiss and directed Respondents to file a response on the merits. See Docs. 11; 12.
Thereafter, Respondents submitted an answer in opposition to the Petition. See Amended
Answer in Response to Order to Show Cause (Response; Doc. 22) with exhibits (Resp.
Ex.). Stratton filed a brief in reply. See Second Amended Reply to State’s Amended

1

See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
2

Answer in Response to an Order to Show Cause (Reply; Doc. 46). This case is ripe for
review.
II. Relevant Procedural History
On January 10, 2008, the State of Florida (State) indicted Stratton on one count of
first-degree murder (count one) and one count of tampering with evidence (count two).
Resp. Ex. A at 34. Stratton proceeded to trial, at the conclusion of which the jury found
him guilty as charged on both counts. Id. at 98-99. On May 23, 2008, the circuit court
sentenced Stratton to a minimum mandatory term of incarceration of life in prison as to
count one and five years in prison as to count two. Id. at 124-30. The circuit court ordered
the sentence imposed on count two to run concurrently with Stratton’s life sentence. Id.
at 128.
Stratton appealed the convictions and sentences to Florida’s First District Court of
Appeal (First DCA). Id. at 151. In his initial brief, Stratton, with the assistance of counsel,
alleged that the circuit court erred when it denied (1) his motion to suppress physical
evidence; and (2) his motion for judgment of acquittal. Resp. Ex. G. The State filed an
answer brief, Resp. Ex. H, and Stratton filed a reply brief. Resp. Ex. I. On December 14,
2009, the First DCA per curiam affirmed the convictions and sentences without issuing a
written opinion and issued the Mandate on December 30, 2009. Resp. Ex. J.
On March 9, 2011, again with the assistance of counsel, Stratton filed a motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850
Motion). Resp. Ex. K at 1-25. In the Rule 3.850 Motion, Stratton alleged his trial counsel
was ineffective because he failed to: (1) produce admissible evidence that would have
established that the witnesses could not have identified him; and (2) cross examine a

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State’s witness regarding the lighting conditions at the scene of the crime. Id. While his
Rule 3.850 Motion was pending, Stratton’s postconviction counsel died, id. at 32, and,
thereafter, Stratton filed three amended pro se motions pursuant to Rule 3.850 (Amended
Rule 3.850 Motions). The Amended Rule 3.850 Motions realleged the two claims raised
in the Rule 3.850 Motion and added the following two claims that alleged counsel was
ineffective for failing to: (1) raise the issue of evidence discovered but not collected by
investigators; and (2) have a couch inside Stratton’s home tested for deoxyribonucleic
acid (DNA). Id. at 34-110. The circuit court denied the two claims Stratton initially raised
in his Rule 3.850 Motion on the merits and denied the remaining claims as untimely. Id.
at 111-20. On July 27, 2017, the First DCA per curiam affirmed the denial of Stratton’s
postconviction motions without a written opinion and issued the Mandate on August 25,
2017. Resp. Ex. M.
On April 14, 2016, Stratton filed a pro se motion requesting DNA testing pursuant
to Florida Rule of Criminal Procedure 3.853 (Rule 3.853 Motion), in which he sought to
have the victim’s fingernail clippings tested for DNA. Resp. Ex. N. The circuit court denied
the motion on April 7, 2017. Resp. Ex. O. On October 4, 2019, following a belated appeal,
the First DCA per curiam affirmed the denial of the Rule 3.853 Motion without issuing a
written opinion. See Stratton v. State, 281 So. 3d 452 (Fla. 1st DCA 2019).
III. One-Year Limitations Period
This proceeding was timely filed within the one-year limitations period. See 28
U.S.C. § 2244(d).

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IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to establish the
need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t
of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).
“It follows that if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary hearing.”
Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record
before the Court. Because the Court can “adequately assess [Stratton’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an
evidentiary hearing will not be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a
state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.
Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137
S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38
(2011) (quotation marks omitted)). As such, federal habeas review of final state court

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decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,
662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state court decision,
if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,
828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion
explaining its rationale in order for the state court’s decision to qualify as an adjudication
on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s
adjudication on the merits is unaccompanied by an explanation, the United States
Supreme Court has instructed:
[T]he federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by
showing that the higher state court’s adjudication most likely relied on different grounds
than the lower state court’s reasoned decision, such as persuasive alternative grounds
that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at
1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation
of the claim unless the state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited
scope of federal review pursuant to § 2254 as follows:
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First, § 2254(d)(1) provides for federal review for claims of
state courts’ erroneous legal conclusions. As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two
distinct clauses: a “contrary to” clause and an “unreasonable
application” clause. The “contrary to” clause allows for relief
only “if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.” Id. at
413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable
application” clause allows for relief only “if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for claims of
state courts’ erroneous factual determinations. Section
2254(d)(2) allows federal courts to grant relief only if the state
court’s denial of the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state court’s
factual findings “by clear and convincing evidence.” See Burt
v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348
(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.
2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.’”[3] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298
(2017). Also, deferential review under § 2254(d) generally is limited to the record that was

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The Eleventh Circuit has described the interaction between § 2254(d)(2) and §
2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th
Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).
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before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)’s “requires an examination
of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16
(2013). “Federal courts may grant habeas relief only when a state court blundered in a
manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in
justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834
F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a
“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s
claims were adjudicated on the merits in the state courts, they must be evaluated under
28 U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254 habeas
action in federal court, a petitioner must exhaust all state court remedies that are available
for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state
remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to
the state’s highest court, either on direct appeal or on collateral review. Castille v.
Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,
“state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court explained:

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Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the “‘“opportunity to pass
upon and correct” alleged violations of its prisoners’ federal
rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,
130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.
Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal
nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.
887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.
1728, 144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies results in a
procedural default which raises a potential bar to federal habeas review. The United
States Supreme Court has explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner’s conviction and sentence are guided by rules
designed to ensure that state-court judgments are accorded
the finality and respect necessary to preserve the integrity of
legal proceedings within our system of federalism. These
rules include the doctrine of procedural default, under which a
federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural rule.
See, e.g., Coleman,[4] supra, at 747–748, 111 S. Ct. 2546;
Sykes,[5] supra, at 84–85, 97 S. Ct. 2497. A state court’s
invocation of a procedural rule to deny a prisoner’s claims
precludes federal review of the claims if, among other
requisites, the state procedural rule is a nonfederal ground
adequate to support the judgment and the rule is firmly
established and consistently followed. See, e.g., Walker v.
Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179
L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring
procedurally defaulted claims from being heard is not without
4
5

Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
8

exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law. See Coleman, 501
U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state habeas petitioner can show
either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage
of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to
establish cause,
the procedural default “must result from some objective factor
external to the defense that prevented [him] from raising the
claim and which cannot be fairly attributable to his own
conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.
1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[6]
Under the prejudice prong, [a petitioner] must show that “the
errors at trial actually and substantially disadvantaged his
defense so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner can establish
that a fundamental miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. “[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural default.”
Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception
6

Murray v. Carrier, 477 U.S. 478 (1986).
9

is exceedingly narrow in scope,” however, and requires proof
of actual innocence, not just legal innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more
likely than not that no reasonable juror would have convicted him’ of the underlying
offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual
innocence must be based on reliable evidence not presented at trial.” Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity
of such evidence, in most cases, allegations of actual innocence are ultimately summarily
rejected. Schlup, 513 U.S. at 324.
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective assistance of
counsel. That right is denied when a defense attorney’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, a person challenging a
conviction must show that “counsel’s representation fell below
an objective standard of reasonableness.” [Strickland,] 466
U.S. at 688, 104 S. Ct. 2052. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of
reasonable professional assistance. Id., at 689, 104 S. Ct.
2052. The challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104 S. Ct.
2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at
693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any ironclad rule requiring a court to tackle one prong of the Strickland test before the other.”
Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is a most
deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But
“[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Id. (citations and quotation marks omitted). “The
question is not whether a federal court believes the state
court’s determination under the Strickland standard was
incorrect but whether that determination was unreasonable a substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court
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decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,
556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of deference--this
one to a state court’s decision--when we are considering whether to grant federal habeas
relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
A. Grounds One and Two
As Ground One, Stratton alleges that his trial counsel was ineffective for failing to
present photographic evidence and documentation from the apartment complex that
would have demonstrated the poor lighting conditions at time of the murder. Petition at 45. Stratton maintains this evidence would have contradicted the identification testimony
of the sole eye witness, Beverly Keaton. Similarly, in Ground Two, Stratton asserts that
his counsel was deficient for failing to cross examine Keaton and the other witnesses,
both civilian and law enforcement, concerning the limited lighting conditions at the
apartment complex at the time of the murder. Id. at 6-7. Stratton contends that the State
had only one witness, Keaton, who identified him as a participant in the murder. Id. at 47. According to Stratton, cross examining the witnesses and producing evidence
concerning the lighting conditions would have cast doubt on the reliability of Keaton’s
testimony and demonstrated that Keaton misidentified him. Id. But for Keaton’s testimony,
Stratton asserts that he would not have been found guilty because he never confessed,
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and no physical evidence linked Stratton to the “out laying scene of the crime.” Id. As
such, Stratton argues that further cross examination and the production of evidence on
this matter would have undermined Keaton’s testimony and resulted in his acquittal. Id.
Stratton raised these claims in his Rule 3.850 Motions. Resp. Ex. K at 104-07. In
denying both of these claims, the circuit court explained:
It is clear from the record that counsel elicited
testimony regarding the lighting conditions and contested the
only eyewitness testimony, presented through Keaton, by
creating doubt about her ability to see the crime and
perpetrators. Defense counsel argued in both opening and
closing statements that Keaton was unable to make a reliable
identification. This argument was prevalent enough that the
State noted counsel’s argument in her closing and rebuttal
arguments. During trial, counsel elicited testimony from
multiple state witnesses regarding this issue to support his
argument.
During the direct examination of Keaton, Keaton stated
she heard a female voice, but could not see the woman
‘because she was in the dark.” However, Keaton testified the
lighting out in the courtyard where the crime took place was
“good” and sufficient enough to “see and distinguish.” On
cross examination, counsel obtained testimony from Keaton
that there were no lights in the courtyard; instead, lights on the
apartment buildings illuminate onto the courtyard. Counsel
elicited testimony that the crime occurred between 3:30 a.m.
and 4 a.m., but that police did not take pictures from her
apartment to show the lighting conditions at that point, nor did
they measure the distance from her apartment to the
courtyard. On cross examination, Keaton admitted she was
not able to see the faces of anyone in the courtyard that night.
Counsel further elicited testimony that, because of the
darkness, she could not see under a tree that was closer to
her apartment than the courtyard and that the light on one of
the apartment buildings had burnt out and was not
operational.
In addition to the cross examination of Keaton, counsel
questioned Detective Patrick Bodine (“Detective Bodine”), a
homicide detective with the Jacksonville Sheriff’s Office
(“JSO”), regarding this issue. Detective Bodine testified he did
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not instruct evidence technicians to take photographs from
Keaton’s bedroom window between 3:30 a.m. and 4 a.m. or
measure the distance from her window to the spot she states
she saw Defendant in the courtyard. Additionally, counsel
asked the crime scene investigator if the detective had
instructed her to take photographs out of Keaton’s window or
measure the distance from her apartment to the courtyard, to
which she responded in the negative.
The cross examination of the other state witnesses on
this topic would have likely been inadmissible. See §
90.612(2), Fla. Stat. (2008) (“Cross-examination of a witness
is limited to the subject matter of the direct examination and
matters affecting the credibility of the witness.”). Moreover,
the presentation of evidence of the lighting conditions at the
crime scene would have undermined counsel’s argument that
the police did not conduct an adequate investigation with
respect to Keaton’s testimony. Moreover, any testimony from
the investigator or apartment complex manager regarding the
lighting conditions at the time of the offense would have been
cumulative to Keaton’s testimony. See Jones v. State, 998 So.
2d 573, 586 (Fla. 2008) (“We have repeatedly held that
counsel is not ineffective for failing to present cumulative
evidence.”). Any testimony regarding lighting conditions after
the crime would be irrelevant and, thus, inadmissible. Lastly,
after the State’s presentation of evidence, this Court
conducted a colloquy with Defendant in which Defendant
stated he believed counsel adequately investigated all
defenses and all witnesses on Defendant’s behalf. Therefore,
this Court does not find counsel was ineffective for failing to
present evidence of the lighting conditions of the crime scene
or failing to conduct further cross examination on the subject.
Assuming arguendo that counsel was ineffective for
these failures, this Court finds Defendant still cannot show
prejudice. At trial, the State presented evidence of
Defendant’s guilt. Keaton testified she saw Defendant and
another male dragging the victim in the courtyard and that she
saw Defendant hit the victim with a “silver object.” Melvin
Sumpter (“Melvin”) testified he was at Defendant’s house on
the night of the incident, drinking with a number of people,
including the victim. Melvin testified the victim become [sic]
inebriated to the point he vomited and passed out. Melvin
stated the victim vomited on Defendant’s bed and that
Defendant became upset. Melvin left the apartment to get
food and asked Defendant to watch the victim, who remained
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passed out in Defendant’s bedroom. At the time Melvin left,
[neither] Defendant nor the victim were injured. When Melvin
returned approximately an hour later, the victim was missing,
and when asked where he was, Defendant stated the victim
had gotten up and left. Melvin noticed Defendant’s hand was
cut and that he was acting “nervously as if something was
wrong.” Melvin’s brother, Michael Sumner [sic] (“Michael”),
also noticed Defendant’s injury and nervous behavior.
Michael testified Defendant eventually stated, “I wasn’t
the one who kept stabbing him.” Michael then noticed drag
marks starting at Defendant’s door, prompting Michael and
Melvin to follow the marks and look for the victim. After
following the drag marks, Melvin and Michael found one of
Kevin’s shoes, as well as droplets of blood, which led to a
large pool of blood by a dumpster near the edge of the woods.
The brothers stopped searching at that point, never entering
the woods, and contacted police. At some point, both brothers
saw Defendant with a knife in his hand. Melvin saw Defendant
walk across the street to the Publix parking lot with the knife,
and later, police were able to find a knife in that parking lot.
Officer Troy Blum “(“Officer Blum”) of JSO testified
Michael approached him while on a traffic stop and brought
him to the dumpster where Officer Blum noticed a large
amount of blood. Officer Blum testified he went into the
woods, searching for the victim, and located the victim’s dead
body. Officer Blum testified after securing the perimeter of the
crime scene, Defendant approached him and told Officer
Blum he knew what happened, so Officer Blum had him
transported to the homicide unit for an interview.
Detective Bobby Bowers (“Detective Bowers”)
interviewed Defendant, and the State presented a videotape
of that interview at trial. Detective Bowers testified Defendant
told him the victim had thrown up on his bed and he got mad,
so he slapped the victim’s face to get him to wake up, but
when the victim woke up, a confrontation ensued. Defendant,
however, stated that two brothers, Jesse and Joesph [sic]
Kozlowski, who were also at Defendant’s house, tried to rob
the victim, beat him, and drug him out of Defendant’s
apartment. Detective Bowers testified that despite
Defendant’s allegations, the victim was found with his wallet
and money in his pocket. Detective Bowers noted Defendant
gave inconsistent accounts of multiple details during his
interview. Defendant also admitted to cleaning up blood after
15

the incident and taking a knife to the Publix parking lot and
leaving it there because he knew police officers were coming.
In light of the evidence against Defendant, this Court
finds no reasonable probability that the result of Defendant’s
trial would have been different but for counsel’s failure to
present evidence of the lighting conditions and to further cross
examine state witnesses on this topic. Defendant is, therefore,
not entitled to relief.
Id. at 114-18 (record citations and footnotes omitted). The First DCA per curiam affirmed
the denial of relief on these claims without issuing a written opinion. Resp. Ex. M.
To the extent that the First DCA decided the claims on the merits,7 the Court will
address the claims in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of these claims was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Stratton is not entitled to
relief on the basis of these claims.
Nevertheless, even if the First DCA’s adjudication of the claims is not entitled to
deference, the claims in Grounds One and Two are without merit. Concerning Ground
One, the Court finds this claim is speculative as Stratton has provided no evidence that
would contradict Keaton’s testimony concerning the lighting conditions at the time of the
incident. Stratton assumes, without evidentiary support, that pictures or unidentified
documents would demonstrate Keaton was unable to see with any clarity into the

Throughout this order, in looking through the appellate court’s per curiam
affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate
court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.
7

16

courtyard that night. Such speculative and conclusory allegations are insufficient to
warrant federal habeas relief. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)
(recognizing that vague, conclusory, speculative, or unsupported claims cannot support
an ineffective assistance of counsel claim). Indeed, Stratton alleges his counsel hired a
private investigator to research the lighting conditions and the investigation revealed the
apartment complex had subsequently upgraded the lighting in the area following the
murder, which demonstrates counsel did investigate this issue. Petition at 4. Moreover,
any new pictures would not have been relevant as the lighting conditions had changed
from the time the incident had occurred.
As to the claim in Ground Two, the record reflects that counsel cross examined
several witnesses concerning the lighting conditions of the courtyard. Counsel elicited
responses from Keaton in which she disclosed there were no lamps or lights on in the
actual courtyard, but lights from each of the apartment buildings helped to illuminate the
area. Resp. Ex. C at 51-52. Keaton further testified on cross examination that law
enforcement officers did not take pictures from her window to document the view or
measure the distance from her window to the courtyard. Id. at 52. Additionally, during
both direct and cross examination, Keaton testified that the light on the apartment building
that housed Stratton’s individual apartment was not functioning that night and a large tree
shaded that area. Id. at 42-44, 61-62. Counsel also cross examined Detectives Patrick
Bodine, Lisa Kicklighter, and Bobby Bowers about their failure to take photographs or
measure the distance between Keaton’s home and the courtyard. Resp. Exs. C at 12930; D at 220; E at 425. Accordingly, the record refutes Stratton’s allegations that counsel
failed to cross-examine Keaton and other witnesses concerning the lighting at the scene

17

of the crime. To the extent Keaton argues counsel should have cross examined additional
witnesses on this matter, the Court finds the claim is speculative because Stratton has
not, and cannot, know how the witnesses would have testified on this matter.
Moreover, Stratton cannot demonstrate prejudice with regard to either claim.
Keaton testified that she did not wear glasses and had no issues with her eyesight. Resp.
Ex. C at 35. Keaton knew Stratton as a neighbor and knew in which apartment Stratton
lived, but did not know his name. Resp. Exs. C at 36-37; E at 411. According to Keaton,
in the early morning hours of January 5, 2007, she heard loud voices outside of her
apartment coming from Stratton’s apartment. Resp. Ex. C at 39-40. When she looked out
the window she observed two males dragging another male into a courtyard area, hitting
him with a steel object, and ultimately dragging the victim out of sight towards the
dumpster area of the complex. Id. at 40-48. Keaton admitted she could not see faces but
testified that the lighting was good enough for her to see and distinguish everyone but a
female who was underneath the shade of a large tree. Id. at 43-44, 47. Even though she
did not see faces, Keaton testified there was no doubt in her mind that one of the attackers
was Stratton because she recognized his muscular build and the fact that Stratton’s right
arm hung down as if it was hurt. Id. at 47, 58, 67-68. This latter fact is notable because
during trial the State presented evidence that Stratton suffered a stroke when he was a
baby that caused poor functionality in his right arm. Resp. Ex. D at 299-307.
Two other witnesses, Melvin and Michael Sumpter, both testified that they and the
victim were hanging out at Stratton’s apartment the night of the murder and had left the
victim, who was drunk and throwing up on Stratton’s bed, at the apartment while they
went to get some food. Resp. Ex. C at 71-86, 103-10. Notably, Melvin Sumpter testified

18

that neither the victim nor Stratton were injured before they left. Id. at 86, 100. However,
when they returned, Stratton had a cut on his hand and was acting nervous. Id. at 89-91,
111-15. Stratton maintained that the victim had simply left. Id. at 90-91, 111. Michael
Sumpter asked Stratton why the victim would leave when he was staying at Michael’s
apartment, to which Stratton spontaneously replied, “I wasn’t the one who kept stabbing
him.” Id. at 112-13. The Sumpter brothers began questioning Stratton concerning the
whereabouts of the victim and eventually discovered drag marks and a blood trail leaving
Stratton’s apartment to the courtyard and from there to the dumpster area. Id. at 87-100,
111-14. After calling the police, the Sumpter brothers again saw Stratton, and this time
Stratton was holding a knife in his hand walking away from the apartment complex. Id. at
93, 99, 112-15.
Stratton approached the officers at the scene, stating he had relevant information,
so officers transported Stratton to their headquarters for an interview. Id. at 137-39.
During the interview, Stratton maintained that Jesse and Joseph Kozlowski, two
individuals who were also present at his apartment that night, were the ones who beat,
dragged, and murdered the victim. Resp. Ex. E at 320-99. However, Stratton gave various
accounts of certain details. For instance, he claimed that he did not know where the
Kozlowski brothers took the victim once they left his apartment but slipped up during the
interview and explained how the brothers purportedly dragged the victim from the
courtyard to the dumpster. Id. at 340-41. Stratton’s explanation as to how he cut his hand
also had timing discrepancies that varied when he told the story throughout the interview.
Id. at 316, 338-39, 342-43, 389. The medical examiner testified that the cut on Stratton’s
hand was consistent with a person holding a knife, stabbing something hard, and having

19

the hand slip off the handle onto the blade. Resp. Ex. D at 266-69. According to the
medical examiner, the victim was stabbed twenty-one times and had suffered blunt force
trauma. Id. at 235-56. Notably, the victim’s blood was discovered on the pants Stratton
wore during the interview. Resp. Ex. E at 464-65.
In light of Keaton’s testimony; witness testimony regarding Stratton’s actions,
injuries, and behavior; the forensic evidence; and Stratton’s own statements to the
witnesses and detectives, the Court finds there is no reasonable probability the outcome
of the trial would have been different had counsel presented additional evidence or further
cross examined the witnesses about the lighting conditions at the apartment complex.
Accordingly, for the above stated reasons, Stratton has failed to demonstrate either
deficient performance or prejudice. Therefore, he is not entitled to federal habeas relief
and the claims in Grounds One and Two are due to be denied.
B. Ground Three
As Ground Three, Stratton does not allege any federal constitutional claim but
contends that the victim’s fingernail clippings were not, but should have been, tested for
DNA. Petition at 8-10. According to Stratton, DNA analysis of the clippings would reveal
that his DNA would not be present and, therefore, exonerate him of the murder charge.
Id. Respondents contend this claim is not cognizable in federal habeas proceedings.
Response at 26-33.
To the extent Stratton requests DNA testing, such a claim is properly brought in a
civil rights action pursuant to 42 U.S.C. § 1983, this is so because successful DNA testing
would not necessarily imply the invalidity of Stratton’s conviction. See Skinner v. Switzer,
562 U.S. 521, 534-37 (2011). Pursuant to Rule 3.853, a movant can file a motion for

20

postconviction DNA testing under sections 925.11 and 925.12, Florida Statutes. Fla. R.
Crim. P. 3.853(a). “If the movant is successful, those procedures culminate only in ‘the
results of the DNA testing ordered by the court [being] provided in writing to the court, the
movant, and the prosecuting authority.’” Brown v. Sec’y for Dep’t of Corr., 530 F.3d 1335,
1337 (11th Cir. 2008) (citing Fla. R. Crim. P. 3.853 and § 925.11(2)(i), Fla. Stat.). As such,
“a Rule 3.853 proceeding involves an application for discovery only, pursuant to which
the court lacks authority to order relief from the movant's sentence or conviction based
on the DNA test results.” Id. Accordingly, “[i]f the movant believes those results provide a
basis for a successful collateral attack on his judgment of conviction, he may then institute
a proceeding under Florida's collateral attack rules and only in that manner secure such
relief.” Id. In light of the fact that DNA testing would not change the fact or duration of
Stratton’s detention, he is not entitled to federal habeas relief. See Skinner, 562 U.S. at
534-37. Moreover, any defect in the Rule 3.853 proceeding would not be a cause for
federal habeas relief. See Carroll v. Sec’y, Dep’t of Corr., 574 F.3d 1354, 1365 (11th Cir.
2009) (“This Court has repeatedly held defects in state collateral proceedings do not
provide a basis for habeas relief.”); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.
1987) (citation omitted) (“Neither the state court's failure to hold a hearing on petitioner's
3.850 motion nor its failure to attach the relevant portions of the record in any way
undermines the validity of petitioner's conviction. Because claim (1) goes to issues
unrelated to the cause of petitioner's detention, it does not state a basis for habeas
relief.”).
If Stratton is arguing that the circuit court erred in denying his Rule 3.853 Motion,
this claim is likewise not cognizable in a federal habeas petition because it is a matter of

21

state law. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (holding errors of state law
are not cognizable in federal habeas review); Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”); Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th
Cir. 2004) (“while 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.”). The Court notes that there is no substantive due process right
to postconviction access to DNA evidence, see Thompson v. Rundle, 393 F. App’x 675,
679 (11th Cir. 2010) (citing Cunningham v. Dist. Atty’s Office for Escambia Cnty., 592
F.3d 1237 (11th Cir. 2010)), and Stratton has not asserted any federal constitutional
violation in Ground Three. Therefore, his request for DNA testing rests solely on state law
and is inappropriate for review in a federal habeas petition. In light of the above analysis,
the claim in Ground Three is due to be denied.
C. Ground Four
Lastly, Stratton contends that the circuit court violated his federal constitutional
rights to due process, a fair trial, and effective assistance of counsel when it denied his
motion for judgment of acquittal. Petition at 11-12. Stratton maintains that the evidence
against him was insufficient to establish beyond a reasonable doubt that he committed
the murder. Id. According to Stratton, Keaton’s testimony was unreliable and there was
no physical evidence linking Stratton to the actual murder. Id. Stratton contends that the
DNA evidence demonstrates the Kozlowski brothers, not him, murdered the victim. Id.

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The record reflects that Stratton’s trial counsel moved for a judgment of acquittal
on the basis that the State had failed to prove Stratton was the killer. Resp. Ex. E at 473.
The circuit court denied the motion, stating:
I think they’ve presented sufficient testimony, one eye
witness who, of course, the jury can make the determination
whether to believe that witness or not, but they have met their
burden of going forward to the jury. So I’ll deny the motion for
judgment of acquittal.
Id. Counsel moved for a judgment of acquittal on the same ground after the defense
rested, which the trial court denied based on the same reasoning. Id. at 482. Stratton
raised the denial of his motion for judgment of acquittal on direct appeal. Resp. Ex. G.
The First DCA per curiam affirmed the denial of relief on this issue without issuing a
written opinion. Resp. Ex. J.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Stratton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of this claim is not entitled to
deference, the claim in Ground Four is meritless. In reviewing a motion for judgment of
acquittal, trial courts must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential

23

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); see also Gudinas v. State, 693 So. 2d 953, 962 (Fla. 1997) (quoting Taylor
v. State, 583 So. 2d 323, 328 (Fla. 1991) (holding a motion for judgment of acquittal
should not be granted unless “there is no view of the evidence which the jury might take
favorable to the opposite party that can be sustained under the law.”)). The Supreme
Court has “made clear that Jackson claims face a high bar in federal habeas proceedings
because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566
U.S. 650, 651 (2012). In particular, the Supreme Court explained:
First, on direct appeal, it is the responsibility of the jury—not
the court—to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the
jury's verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury. And
second, on habeas review, a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the
state court. The federal court instead may do so only if the
state court decision was objectively unreasonable.
Id. (citations and quotations omitted). “[T]he only question under Jackson is whether [the
jury's] finding was so insupportable as to fall below the threshold of bare rationality,” and
the state court's determination that it was not “in turn is entitled to considerable deference
under AEDPA.” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 463 (11th Cir. 2015)
(quoting Coleman, 650 U.S. at 656).
As noted above in the Court’s analysis of Grounds One and Two, the State
presented sufficient evidence against Stratton. Regarding the identification element,
Keaton testified that although she could not make out faces, she had no doubt in her mind
that Stratton participated in the murder because she recognized his muscular frame and
the fact that his right arm looked as if it was hurt. Resp. Ex. C at 36, 43-44, 47, 58, 67-68.
24

The State also introduced evidence that Stratton’s right arm did not function properly due
to a stroke he suffered as a baby, which corroborated Keaton’s eye-witness testimony.
Resp. Ex. D at 306-07, 339-40. Moreover, as detailed above, Stratton made incriminating
statements to one of the witnesses and during his interview with police. Also, the victim’s
blood was found on the pants Stratton wore in the interview that occurred within twentyfour hours of the murder. Resp. Ex. E at 464-65. Evidence of the victim’s blood on
Stratton’s clothes is particularly incriminating in light of the fact that he told detectives
during the interrogation that he never touched the victim other than slapping the victim a
few times to wake him up from a drunken sleep. Resp. Ex. D at 336, 347. This evidence
was sufficient to send the case to the jury. Stratton’s contentions regarding Keaton’s
testimony is a matter for the jury decide, not a trial court considering a motion for judgment
of acquittal, because it is an issue of credibility. See Fitzpatrick v. State, 900 So. 2d 495,
508 (Fla. 2005) (noting that the existence of contradictory, conflicting testimony or
evidence “does not warrant a judgment of acquittal because the weight of the evidence
and the witnesses' credibility are questions solely for the jury.”). Stratton has failed to
establish that there is no view of the evidence which the jury might have taken favorable
to the State’s position nor that the state court’s decision rejecting his sufficiency of the
evidence claim was objectively unreasonable. See Coleman, 566 U.S. at 651; Jackson,
443 U.S. at 319; Gudinas, 693 So. 2d at 962. Accordingly, Stratton’s claim in Ground Four
is due to be denied.

25

VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Stratton seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. The Court should issue a certificate of
appealability only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Stratton
“must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Where a district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of appealability.
Therefore, it is now

26

ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH

PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the Petition and

dismissing this case with prejudice.
3.

If Stratton appeals the denial of the Petition, the Court denies a certificate

of appealability. Because the Court has determined that a certificate of appealability is
not warranted, the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall serve
as a denial of the motion.
4.

The Clerk of the Court is directed to close this case and terminate any

pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of April, 2020.

Jax-8
C:

David Stratton #J32700
Counsel of record

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