Davis v. Secretary, Department of Corrections et al, (Pasco County)

Filing 16

ORDER: Davis's petition is DENIED. The CLERK is directed to enter judgment against Davis and in Respondent's favor and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge Kathryn Kimball Mizelle on 1/7/2022. (MLH)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SINCLAIR DAVIS,
Petitioner,
v.

Case No. 8:18-cv-2700-KKM-TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________
ORDER
Sinclair Davis, a Florida prisoner, timely 1 filed a pro se Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 challenging his state court convictions based on alleged
errors of the state trial court and failures of his trial counsel. (Doc. 1.) Having considered
the petition (id.), the response in opposition (Doc. 7), and the reply (Doc. 10), the Court
denies the petition. Furthermore, a certificate of appealability is not warranted.

A state prisoner has one year from the date his judgment becomes final to file a § 2254 petition. See
§ 2244(d)(1). This one-year limitations period is tolled during the pendency of a properly filed state motion
seeking collateral relief. See § 2244(d)(2). Davis’s convictions and sentences were affirmed on December 4,
2015. His judgment became final 90 days later, on March 3, 2016, when the period to file a petition for
writ of certiorari in the Supreme Court of the United States expired. See Bond v. Moore, 309 F.3d 770,
774 (11th Cir. 2002). After 74 days of untolled time passed, on May 17, 2016, Davis filed a motion for
postconviction relief. That motion remained pending until the state appellate court’s mandate issued on
June 5, 2018. After another 145 days, for a total of 219 days of untolled time, Davis filed his § 2254 petition
on October 29, 2018. Less than one year of untolled time expired, and the petition is therefore timely.
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I. BACKGROUND
A. Procedural History
A state court jury convicted Davis of attempted second degree murder with a firearm
and armed burglary. (Doc. 7-2, Ex. 4.) The state court sentenced him to life in prison for
each count. (Doc. 7-2, Ex. 5.) However, the court granted Davis’s motion to correct
sentencing errors filed under Florida Rule of Criminal Procedure 3.800(b)(2). (Doc. 7-2,
Exs. 9 & 12.) He was resentenced to 30 years in prison with a 25-year mandatory minimum
term for attempted second degree murder with a firearm and to life in prison for armed
burglary. (Doc. 7-2, Ex. 13.) The state appellate court per curiam affirmed Davis’s
convictions and sentences. (Doc. 7-2, Ex. 15.)
Davis filed a motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Doc. 7-3, Ex. 17.) The state postconviction court struck some of Davis’s
claims without prejudice to amending them, and it reserved ruling on the remaining claims.
(Doc. 7-3, Ex. 18.) After Davis filed an amended motion, the court summarily denied relief
on all claims. (Doc. 7-3, Exs. 19 & 21.) The state appellate court per curiam affirmed the
denial. (Doc. 7-3, Ex. 27.)

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B.

Facts 2

Earon Hicks lived with a roommate, who Hicks knew was involved in selling
marijuana. (Doc. 7-2, Ex. 3, pp. 201-03.) Hicks was home by himself around 11:00 p.m.
on December 6, 2012, when Davis and another man, Edner Dely, arrived in a car and
parked near the residence. (Id., pp. 203, 206-10.)
Hicks looked out the window and saw one of the car’s doors opening; when the car’s
dome light illuminated, he recognized Davis in the driver’s seat. (Id., pp. 207-08.) Hicks
had known Davis for about 10 years from “just playing ball together, seeing him around,
being around” and he saw Davis on a regular basis. (Id., pp. 201-02.) Hicks also knew Dely,
who Hicks described as a cousin. (Id., p. 202.) 3 Hicks had no problems with Davis or Dely.
(Id., pp. 202-03.) Hicks initially believed that Davis and Dely came to pick up another car.
(Id., pp. 209-10.)
A few minutes later, Hicks looked out the window again and saw both Davis and
Dely getting out of the car. (Id., p. 211.) Hicks also noticed that Davis was carrying a gun,
while Dely was not. (Id., pp. 211.) At that moment, Davis was pointing the gun towards
the residence. (Id., p. 212.) Hicks called the police, but—because his phone only worked
on speaker—he hung up as Davis and Dely approached. (Id., p. 215.) From his hiding spot

The factual background is based on the trial transcript unless otherwise noted.
It is unclear whether Hicks and Dely were in fact related, or whether Hicks merely referred to Dely as a
cousin. (Doc. 7-2, Ex. 3, p. 202, 260.)

2
3

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near the refrigerator, Hicks saw the door open and watched a gun slowly moving in through
the door. (Id., p. 217.) Davis, who was holding the gun, came into the house. (Id.) Davis
turned the lights on, and Hicks had an unobstructed view of him. (Id., p. 218.) Dely
remained outside. (Id., p. 223.) When Hicks heard Davis rummaging through items in the
living room, he decided to try to run out the back door. (Id., pp. 218-19.) As Hicks ran
around the refrigerator, he slipped on a puddle of water on the kitchen floor and fell to the
ground. (Id., p. 221.) When Hicks fell, Davis “came out and he just started firing off shots.”
(Id., pp. 221-22.) Hicks was shot in the foot and knee. (Id., p. 223.) Hicks saw Davis shoot
him; at some point, Dely came into the residence but only Davis fired shots. (Id.) Hicks
managed to get up after he was shot. (Id., pp. 223-24.) He ran out the back door and
jumped over the fence, but when he landed on the other side, his leg gave out and he could
not get up again. (Id., p. 224.) Hicks then saw Davis and Dely leave the property. (Id., p.
225.) Hicks, who had carried his phone with him, again called the police. (Id., p. 224.)
When Davis was arrested several hours later, he told Detective Todd Koenig that
he was at the house of a friend named Davasha Watts at the time of the offenses. (Id., pp.
430-31.) Detective Koenig asked Davis if that information could be verified. (Id., p. 431.)
Davis replied that Watts’s contact information was on his phone, which police had taken
during a pat down. (Id., pp. 431-32.) Detective Koenig testified that when he asked Davis
for consent to look through his phone to try to make contact with Watts, Davis granted
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permission to go through his phone. (Id., p. 432.) Detective Koenig testified that he found
a number for Watts and that in looking through the phone, he located text messages from
Davis to Watts. (Id., p. 433.) He testified that he found a text sent from Davis to Watts at
3:10 a.m. on December 7, 2012, which read, “I was with you until about 11:00.” (Id., p.
435.)
II. STANDARD OF REVIEW UNDER SECTION 2254
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
under the AEDPA can be granted only if a petitioner is in custody “in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d)
provides that federal habeas relief cannot be granted on a claim adjudicated on the merits
in state court unless the state court’s adjudication:
(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.
For purposes of § 2254(d)(1), a decision is “contrary to” clearly established federal
law “if the state court arrives at a conclusion opposite to that reached by [the Supreme]
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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.” Williams v. Taylor, 529 U.S. 362,
413 (2000). The phrase “clearly established Federal law” encompasses the holdings only of
the Supreme Court of the United States “as of the time of the relevant state-court decision.”

Id. at 412. A decision involves an “unreasonable application” of clearly established federal
law “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.
For purposes of § 2254(d)(2), a state court’s findings of fact are presumed correct.

See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (“The factual findings of the
state court, including the credibility findings, are presumed to be correct . . . .”). A
petitioner can rebut the presumption of correctness afforded to a state court’s factual
findings only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that statecourt convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application
of clearly established federal law is objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.” Id. at 694. As a result, to obtain relief under
the AEDPA, “a state prisoner must show that the state court’s ruling on the claim being
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presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Lockyer v.

Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of clearly
established federal law must be objectively unreasonable” for a federal habeas petitioner to
prevail and that the state court’s “clear error” is insufficient).
When the last state court to decide a federal claim explains its decision in a reasoned
opinion, a federal habeas court reviews the specific reasons as stated in the opinion and
defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018). When the relevant state-court decision is not accompanied with reasons for the
decision—such as a summary affirmance without discussion—the federal court “should
‘look through’ the unexplained decision to the last related state-court decision that does
provide a relevant rationale [and] presume that the unexplained decision adopted the same
reasoning.” Id. The state may contest “the presumption by showing that the unexplained
affirmance relied or most likely did rely on different grounds than the lower state court’s
decision . . . .” Id.
In addition to satisfying the deferential standard of federal court review of a state
court adjudication, a federal habeas petitioner must exhaust his claims by raising them in
state court before presenting them in a federal petition. See 28 U.S.C. § 2254(b)(1)(A);
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O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state
courts an opportunity to act on his claims before he presents those claims to a federal court
in a habeas petition.”). A petitioner satisfies this exhaustion requirement if he fairly presents
the claim in each appropriate state court and alerts that court to the federal nature of the
claim. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010).
The doctrine of procedural default provides that “[i]f the petitioner has failed to
exhaust state remedies that are no longer available, that failure is a procedural default which
will bar federal habeas relief, unless either the cause and prejudice or the fundamental
miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th
Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates “that
some objective factor external to the defense impeded the effort to raise the claim properly
in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner
demonstrates prejudice by showing that “there is at least a reasonable probability that the
result of the proceeding would have been different” absent the constitutional violation.

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental miscarriage
of justice’ occurs in an extraordinary case, where a constitutional violation has resulted in
the conviction of someone who is actually innocent.” Id.

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III. INEFFECTIVE ASSISTANCE OF COUNSEL
Davis brings several claims for ineffective assistance of trial counsel under the Sixth
Amendment. Under the well-known, two-part standard articulated in Strickland v.

Washington, 466 U.S. 668 (1984), to succeed, he must show both deficient performance
by his counsel and prejudice resulting from those errors. Id. at 687.
The first part “requires showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
The lynchpin of this analysis is whether counsel’s conduct “was reasonable considering all
the circumstances.” Id. at 688. A petitioner establishes deficient performance if “the
identified acts or omissions [of counsel] were outside the wide range of professionally
competent assistance.” Id. at 690. 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.” Id. “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id.
The second part requires showing that the deficient performance prejudiced the
defense. Id. at 687. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Id. at 691. To demonstrate prejudice, a petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
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have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
“The question [on federal habeas review of an ineffective assistance claim] ‘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 (2009) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)). Consequently, federal petitioners rarely prevail on
claims of ineffective assistance of counsel because “[t]he standards created by Strickland
and § 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so.” Richter, 562 U.S. at 105 (quotation and citations omitted).
IV. ANALYSIS
A. Ground One
Davis argues that the trial court erred in allowing the jury “unlimited access to [his]
cell phone data when the cell phone was admitted into evidence only for one specific text
message.” (Doc. 1, p. 3.) He claims violations of his rights under the Fourth, Fifth, Sixth,
and Fourteenth Amendments. (Id.) 4

During deliberations, the jurors asked if they could “look at other messages on the cell phone.” (Doc. 72, Ex. 3, p. 547.) The state trial court responded, “You have to rely on what is in evidence. The cell phone
is in evidence, so whatever you choose to do.” (Id., p. 550.)

4

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Davis did not raise this claim of trial court error on direct appeal, but he did present
it in his postconviction motion. (Doc. 7-2, Ex. 14; Doc. 7-3, Ex. 17, pp. 36-38.) 5 The state
postconviction court found that “[t]his is not a cognizable claim under rule 3.850. Claims
of trial court error are not reviewable in postconviction motions because they should have
been raised on direct appeal.” (Doc. 7-3, Ex. 21, p. 6.) The court denied Davis’s claim on
this basis, which the state appellate court affirmed per curiam. (Id.)
Respondent contends that Ground One is procedurally barred because the state
court resolved it by applying a state procedural rule. A petitioner’s failure to comply with
state procedural rules governing the proper presentation of a claim generally bars federal
review of that claim in a subsequent federal habeas proceeding. See Coleman v. Thompson,
501 U.S. 722, 729 (1991) (“This Court will not review a question of federal law decided by
a state court if the decision . . . rests on a state law ground that is independent of the federal
question and adequate to support the judgment.”); Caniff v. Moore, 269 F.3d 1245, 1247
(11th Cir. 2001) (“[C]laims that have been held to be procedurally defaulted under state
law cannot be addressed by federal courts.”). A state court’s rejection of a petitioner’s federal
constitutional claim on state procedural grounds precludes federal review if the state
procedural ruling rests on an “independent and adequate” state law ground. Ferguson v.

On direct appeal, appellate counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), stating
that she could find no meritorious argument to support a contention that the trial court committed
significant reversible error. (Doc. 7-2, Ex. 10.)
5

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Sec’y, Dep’t of Corr., 580 F.3d 1183, 1212 (11th Cir. 2009); see also Kimbrough v. Sec’y,
Fla. Dep’t of Corr., 809 F. App’x 684, 691-92 (11th Cir. 2020); Judd v. Haley, 250 F.3d
1308, 1313 (11th Cir. 2001).
A state court’s procedural ruling constitutes an independent and adequate state rule
of decision if (1) the last state court rendering a judgment in the case clearly and expressly
states that it is relying on a state procedural rule to resolve the federal claim without
reaching the merits of the claim, (2) the state court’s decision rests solidly on state law
grounds and is not intertwined with an interpretation of federal law, and (3) the state
procedural rule is not applied in an “arbitrary or unprecedented fashion” or in a “manifestly
unfair manner.” Judd, 250 F.3d at 1313 (citing Card v. Dugger, 911 F.2d 1494 (11th Cir.
1990)). A rule must be firmly established and regularly followed by state courts to be
considered adequate to foreclose review of a federal claim. Lee v. Kemna, 534 U.S. 362,
376 (2002).
Florida courts regularly follow the firmly established rule that claims of trial court
error are not cognizable on state collateral review. See State v. Coney, 845 So.2d 120, 137
(Fla. 2003) (“To the extent Coney’s claims . . . are claims of trial court error, such claims
generally are not cognizable in a rule 3.850 motion”); Bruno v. State, 807 So.2d 55, 63
(Fla. 2001) (“A claim of trial court error generally can be raised on direct appeal but not in
a rule 3.850 motion.”). Davis does not establish that the state court applied this rule to him
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in an arbitrary or manifestly unfair manner. As the state court’s decision was based on an
independent and adequate state law rule to support the decision and was not intertwined
with the merits of the federal constitutional question, Davis’s federal claim is procedurally
defaulted on federal habeas review. It can be considered only if Davis establishes that either
the cause and prejudice or fundamental miscarriage of justice exception applies to overcome
the default. See Harris v. Reed, 489 U.S. 255, 262 (1989) (“[A]n adequate and independent
finding of procedural default will bar federal habeas review of the federal claim, unless the
habeas petitioner can show” one of these exceptions).
Davis does not argue or establish that the fundamental miscarriage of justice
exception applies. Davis appears to argue in his reply that he meets the cause and prejudice
exception under Martinez v. Ryan, 566 U.S. 1 (2012). In recognizing a narrow exception
to the rule that ineffective assistance of postconviction counsel does not constitute cause to
overcome a procedural default, Martinez held:
Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective

assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.

Id. at 17 (emphasis added).

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Thus, Martinez applies only to defaulted claims of ineffective assistance of trial
counsel; it does not apply to defaulted claims of trial court error. See Arthur v. Thomas,
739 F.3d 611, 630 (11th Cir. 2014) (“[T]he Martinez rule explicitly relates to excusing a
procedural default of ineffective-trial-counsel claims[.]”); Gore v. Crews, 720 F.3d 811,
815-16 (11th Cir. 2013) (“Martinez . . . clearly does not apply in the circumstances of this
case because Gore’s claim . . . is not a claim that trial counsel was ineffective. . . . By its
own emphatic terms, the Supreme Court’s decision in Martinez is limited to claims of
ineffective assistance of trial counsel that are otherwise procedurally barred.”). Accordingly,

Martinez is not available to Davis to overcome the procedural default of Ground One.
Davis does not establish another basis to apply the cause and prejudice exception. Since
Davis has not overcome the procedural default, Ground One is barred from federal habeas
review.
B. Ground Two
Davis contends that trial counsel was ineffective for failing to move to suppress
evidence obtained after “Detective Todd Koenig illegally searched the contents of [his]
cellular telephone without his permission or a search warrant.” (Doc. 1, p. 7.) Davis argues
that counsel’s failure “allowed highly prejudicial evidence” of his text message to Davasha
Watts “to be presented against [Davis] that resulted in his conviction.” (Id., p. 8.)

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As addressed, Detective Koenig testified that he asked for Davis’s consent to look
through his phone “to try to make contact with” Watts and that Davis gave him permission.
(Doc. 7-2, Ex. 3, p. 432.) While looking through Davis’s phone, Detective Koenig found
a text message from Davis to Watts sent at 3:10 a.m. on December 7, 2012, several hours
after the offenses. (Doc. 7-2, Ex. 3, p. 435.) The text message read, “I was with you until
about 11:00.” (Id.) The State did not introduce the text message during its case-in-chief.
Instead, after Davis testified at trial that he was not with Edner Dely and was not around
Earon Hicks on the night of the offenses, the State asked him about Davasha Watts on
cross-examination. (Id., pp. 344-45, 351-53.) On cross-examination, Davis testified that
he was with Watts and denied asking her for an alibi through a statement such as “if
anybody asks you, I was with you all night.” (Id., pp. 352-53.) The State then presented
the text message when it called Detective Koenig during its rebuttal case to impeach Davis’s
testimony. (Id., p. 435.) The State also called Watts in its rebuttal case. She testified that
she was not with Davis at the time of the offenses. (Id. pp. 439-43.)
The state postconviction court denied Davis’s claim that trial counsel was ineffective
in not moving to suppress the text message. The court found that “it is clear from the record
that law enforcement had probable cause to detain and arrest Defendant. The victim, who
knew Defendant very well, was able to identify him and provide his name and description
to police.” (Doc. 7-3, Ex. 21, p. 3.) The court also noted that Davis “admits in his sworn
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motions that he allowed Detective Koenig to retrieve Ms. Watts’ number from his cell
phone. In looking for the number, police found a text message to Ms. Watts asking her to
provide Defendant with an alibi for the night of the burglary and shooting.” (Id.)
Therefore, the court found, “there would have been no grounds for counsel to file a motion
to suppress evidence developed as a result of this arrest. . . . Counsel cannot be ineffective
for failing to file motions that lack merit and would not succeed.” (Id., pp. 3-4.)
Davis has not shown entitlement to relief. Even assuming that Davis has shown the
state court unreasonably applied Strickland by finding that counsel did not perform
deficiently, Davis has not established resulting prejudice. The Fourth Amendment protects
individuals against unreasonable searches and seizures. U.S. Const. amend IV. “A search
of property, without warrant or probable cause, is proper under the Fourth Amendment
when preceded by valid consent.” Ziegler v. Martin Cnty. School Dist., 831 F.3d 1309,
1321 (11th Cir. 2016) (quoting United States v. Harris, 526 F.3d 1334, 1339 (11th Cir.
2008)). But an officer “violates the Fourth Amendment if he goes beyond the scope of
consent.” Fuqua v. Turner, 996 F.3d 1140, 1151 (11th Cir. 2021) (citing Florida v. Jimeno,
500 U.S. 248, 251 (1991)). “The standard for measuring the scope of consent is an objective
one—the question is ‘what would the typical reasonable person have understood by the
exchange between the officer and the suspect?’ ” Fuqua, 996 F.3d at 1151 (quoting Jimeno,

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500 U.S. at 251). “The scope of a search is generally defined by its expressed object.” Fuqua,
996 F.3d at 1151 (quoting Jimeno, 500 U.S. at 251).
The state court recognized that Davis’s sworn postconviction motion indicated that
he gave Detective Koenig permission “to retrieve Ms. Watts’s number from his cell phone.”
(Doc. 7-3, Ex. 21, p. 3.) Further, as Detective Koenig testified, Davis indicated that “the
information to get in touch with” Watts was on his phone, and Detective Koenig asked for
permission to look through the phone “to try to make contact with” Watts in order to verify
Davis’s alibi:
Q.

And did you ask [Davis] specifically about his whereabouts in the hour

before and after this offense occurred?
A.

I did.

Q.

And what was his response to you as to where he was and who he was

with at that time?
A.

He stated he was at Davasha Watts’ house.

...
Q.

Did you confront Mr. Davis about his allegation of being with Ms.

Watts that night?
A.

I did.
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Q.

And did you ask him if there would be a way that you would be able

to confirm this alibi?
A.

Yes, sir.

Q.

And what was his response?

A.

He stated the information to get in touch with Davasha was on his

phone.
Q.

Okay. Did he have a cell phone on his person?

A.

He had when I first made contact with him, but a detective, as we

patted him down, took the phone.
Q.

Okay. So a phone was removed off of his person?

A.

Yes, sir.

Q.

And was that phone impounded for evidentiary purposes?

A.

Yes, sir.

Q.

Prior to it being impounded - - well, scratch that.

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Did you ask Mr. Davis for consent to look through his phone in order
to find any information relating to what he had told you about Davasha
Watts?
A.

Yes, to try to make contact with her.

Q.

Did he grant you permission to go through his phone?

A.

Yes, sir.

Q.

And did you go through his phone?

A.

Yes, sir.

(Doc. 7-2, Ex. 3, pp. 430-32.) On cross-examination, Detective Koenig testified:
Q.

Okay. Did you tell [Davis] you were going to start looking through

his text messages?
A.

No, sir.

Q.

Did you have permission to look through the text messages?

A.

I assumed I had permission to look through the phone at that time.

Q.

But that’s not what he told you, did he? He said you can get the

contact information for Davasha, right?
A.

That was the first button I pushed on to try to get to her information.
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(Id., pp. 436-37.)
Thus, the “expressed object” of the cell phone search, as a “typical reasonable person”
would have understood it, was to obtain Watts’s contact information. See Fuqua, 996 F.3d
at 1151. While Detective Koenig’s testimony indicates that in attempting to retrieve
Watts’s contact information, he saw the text message, his examination of the text message’s
content appears to have exceeded the scope of the permission granted by Davis and might
have resulted in a Fourth Amendment violation at least under the consent doctrine. See

Fuqua, 996 F.3d at 1151. Of course, had trial counsel moved to suppress, the record as to
the precise scope of consent and whether Detective Koenig’s selection of Watts’s text
message as a reasonable action consistent with Davis’s consent would likely have been
better developed for this Court to assess.
In addition to consent, the state court’s order also indicates that Detective Koenig
properly recovered the text message during a search incident to a lawful arrest. See, e.g.,

Arizona v. Gant, 556 U.S. 332, 338 (2009) (explaining that “[a]mong the exceptions [to
the general rule that warrantless searches are unreasonable under the Fourth Amendment]
is a search incident to a lawful arrest. The exception derives from the interests in officer
safety and evidence preservation that are typically implicated in arrest situations.”)
(citations omitted). But at the time of Davis’s January 2014 trial, the Florida Supreme
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Court had decided Smallwood v. State, 113 So.3d 724 (Fla. 2013). There, the Florida
Supreme Court answered the following certified question in the negative: “Does the
holding in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 39 L.Ed.2d 427 (1973),
allow a police officer to search through photographs contained within a cell phone which
on an arrestee’s person at the time of a valid arrest, notwithstanding that there is no
reasonable belief that the cell phone contains evidence of any crime?” Smallwood, 113
So.3d at 726. 6
In Smallwood, police conducted a warrantless search of Smallwood’s cell phone
following his arrest. Id. at 727. Police found five incriminating photographs, which the
State introduced at trial. Id. at 727-28. The Florida Supreme Court determined that,
“while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee
is physically separated from an item or thing, and thereby separated from any possible
weapon or destructible evidence, the dual rationales for this search exception no longer
apply.” Smallwood, 113 So.3d at 735. Thus, “while law enforcement officers properly
separated and assumed possession of a cell phone from Smallwood’s person during the
search incident to arrest, a warrant was required before the information, data, and content
of the cell phone could be accessed and searched by law enforcement” consistent with the

Robinson addressed the search incident to arrest exception, holding that “in the case of a lawful custodial
arrest a full search of the person is not only an exception to the warrant requirement of the Fourth
Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 U.S. at 235.
6

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Fourth Amendment Id. at 740. Under Smallwood, a motion to exclude the text message
from Davis to Watts would have had a strong likelihood of success based on the similar
facts involving a warrantless search of a cell phone’s contents when there was no indication
that evidence of a crime was on the phone. Of course, in June 2014, after Davis’s trial, the
Supreme Court of the United States issued Riley v. California, 573 U.S. 373 (2014), which
held that officers generally must secure a warrant before conducting a search of information
on a cell phone.
Although trial counsel performed deficiently in not seeking to exclude the text
message and the state court’s application of Strickland’s deficient performance prong was
thus unreasonable, Davis cannot obtain federal habeas relief on this claim of ineffective
assistance because he cannot establish prejudice as a result of counsel’s performance. See

Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006) (explaining that to
prevail on a claim of ineffective assistance of trial counsel for failing to file a motion to
suppress, a petitioner must prove both deficient performance and a reasonable probability
of a different verdict if not for the excludable evidence).
Because the state court did not reach the Strickland prejudice prong in deciding
Davis’s ineffective assistance claim, this Court assesses prejudice de novo. 7 See Rompilla v.

In his reply, Davis claims that the Court should find prejudice under United States v. Cronic, 466 U.S.
648 (1984), which identifies three exceptional circumstances where prejudice from counsel’s deficient
performance may be presumed. “Prejudice may be presumed under Cronic where, and only where, (1) there
7

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Beard, 545 U.S. 374, 390 (2005) (finding that when deficient performance is established,
“there is a further question about prejudice . . . Because the state courts found the
representation adequate, they never reached the issue of prejudice . . . and so we examine
this element of the Strickland claim de novo”); Whatley v. Warden, Ga. Diagnostic and

Classification Center, 927 F.3d 1150, 1181 (11th Cir. 2019) (“If the district court decides
the state court’s decision was based on an unreasonable application of Supreme Court
precedent . . . only then can it review the claim de novo”); DeBruce v. Comm’r, Ala. Dep’t

of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (“If we determine that the state court’s
adjudication of DeBruce’s Strickland claims was unreasonable under § 2254(d), we must
then undertake a de novo review of the record.”).
Even under de novo review, Davis fails to show a reasonable probability of a
different outcome at trial had counsel successfully moved to exclude the text message. As
addressed, Hicks testified that he knew Davis, and that Davis was the person who came
into the home with the gun and shot him. The jury heard that Hicks initially told Detective

is a complete denial of counsel at a critical stage of the trial, (2) counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing, or (3) under the circumstances the likelihood that
counsel could have performed as an effective adversary was so remote as to have made the trial inherently
unfair.” Castillo v. Fla. Sec’y of DOC, 722 F.3d 1281, 1286-87 (11th Cir. 2013) (internal quotation marks
omitted) (emphasis in original). But Cronic’s presumption of prejudice “applies to only a very narrow
spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the
defendant was in effect denied any meaningful assistance at all.” Stano v. Dugger, 921 F.2d 1125, 1153
(11th Cir. 1991) (en banc). Davis has not established that any of these three exceptional circumstances were
present in his case.

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Koenig that both perpetrators were armed and that he told Deputy Aaron Ziegler, who
responded to his 911 call, that he was shot by someone named Sinclair and someone named
Edner. (Doc. 7-2, Ex. 3, pp. 273, 311.) Hicks also selected Dely in a photopack as the
person who shot at him, but at one point asked for charges against Dely to be dropped.
(Id., pp. 236-39.) Despite these earlier statements, Hicks testified at trial that he identified
Dely in the photopack because he believed Dely was equally as responsible for the shooting
as Davis and he wanted Dely to receive the same punishment as Davis. (Id., pp. 256-57.)
Hicks testified that he asked for the charges to be dropped because Dely’s family offered
him money, which he needed for bills including his medical bills related to this shooting.
(Id., pp. 241-43.) Hicks testified that he did not receive any money and that he then
cooperated with the prosecution of Dely. (Id., p. 243.) Hicks unequivocally and repeatedly
testified that only Davis shot him, and identified Davis in court:
Q.

And what, if anything happened at the moment you landed on the tile

floor of the kitchen [after slipping and falling while trying to flee]?
A.

That’s when he came out and he just started firing off shots.

Q.

You talking about Sinclair Davis?

A.

Yes.

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Q.

Mr. Hicks, do you see the person who shot those rounds into you here

in the courtroom today?
A.

Yes, sir.

Q.

Would you please point to that person and identify an article of

clothing they’re wearing. What are they wearing?
A.

Black suit, gray vest.

Q.

Is it the gentleman without a tie on?

A.

Yes.
[PROSECUTOR]: Your Honor, may the record reflect the witness

identified the defendant?
THE COURT:

The record may so reflect.

...
Q.

Were you able to see who the person was that shot these rounds in

your direction?
A.

Yes.

Q.

And was that Sinclair Davis?

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A.

Yes, sir.

Q.

While this was occurring, where was Edner Dely, if you know?

A.

He was still on the outside, but he had stepped in I guess to see what

was happening.
Q.

Okay. At some point he entered your home as well?

A.

Yes, sir.

Q.

Is the only person that shot you Mr. Davis?

A.

Yes, sir.

...
Q.

All right. And is it your testimony today that there were no shots fired

from Mr. Dely towards you?
A.

Yes.

Q.

That’s your testimony today?

A.

Yes.

...

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Q.

Mr. Hicks, so we’re clear, was the only person that shot you that night

Sinclair Davis?
A.

Yes, sir.

(Id., pp. 221-23, 235, 241.)
In addition, Davasha Watts testified that Davis was not with her at the time of the
offenses, as Davis asserted on the stand. Thus, the text message from Davis to Watts, even
if it could have been suppressed, did not constitute the only evidence impeaching his alibi
theory. Considering the evidence contradicting Davis’s alibi—including critical eyewitness
testimony from the victim, who knew Davis and identified Davis as having entered the
home and shot him and Watts denying that Davis was with him—Davis fails to show a
reasonable probability of a different outcome at trial if the jury had not learned of the text
message. Accordingly, because Davis fails to show prejudice under Strickland, he fails to
establish entitlement to relief on his claim of ineffective assistance of trial counsel for not
filing a motion to suppress. Davis is not entitled to federal habeas relief on Ground Two.
C. Grounds Three and Four
In Ground Three, Davis argues that trial counsel was ineffective for not deposing
“material witnesses” prior to trial. (Doc. 1, p. 9.) In Ground Four, Davis contends that trial

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counsel was ineffective for failing to object to improper prosecutorial comments. 8 When
Davis raised these ineffective assistance of trial counsel claims in his first postconviction
motion, the state postconviction court struck them as facially insufficient and gave Davis
leave to amend. (Doc. 7-3, Ex. 18, pp. 2-4.) The court found that both claims failed to
allege prejudice resulting from counsel’s alleged deficient performance and also found that
Davis’s claim of ineffective assistance with respect to material witnesses lacked required
factual allegations about the witnesses. (Id.)
Accordingly, the court gave Davis 60 days to cure the identified pleading
deficiencies. (Id., pp. 3-4.) See Spera v. State, 971 So.2d 754, 761-62 (Fla. 2007) (holding
that when a defendant’s initial Rule 3.850 motion is “deemed facially insufficient to support
relief [because the claims] fail to contain required allegations” the trial court “abuses its
discretion when it fails to allow the defendant at least one opportunity to amend the
motion.”). The state court warned Davis that the failure to timely amend his claims would
result in their denial with prejudice. (Id.)
Davis’s amended motion also lacked the required information identified by the state
court. (Doc. 7-3, Ex. 19.) Therefore, the state court denied Davis’s claims under Spera,
In his reply, Davis mentions ineffective assistance of appellate counsel with respect to Grounds Three and
Four. (Doc. 10, pp. 11, 13.) This appears to be a typographical error, as the claims concerned trial counsel’s
performance, and Davis raises no independent claims of ineffective assistance of appellate counsel in his
§ 2254 petition. Further, a petitioner may not bring a new claim in his reply. See Herring v. Sec’y, Dep’t
of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (“[A]rguments raised for the first time in a reply brief are
not properly before a reviewing court.”) (citations omitted).
8

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971 So.2d 754 (Fla. 2007), for failure to timely amend them under its earlier order. (Doc.
7-3, Ex. 21, pp. 5-6.) The denial for failure to amend the claims to include necessary
allegations, including failure to allege Strickland prejudice, was an adjudication of the
claims on the merits. See Borden v. Allen, 646 F.3d 785, 808-16 (11th Cir. 2011)
(examining a state postconviction court’s rejection of a claim for failure to plead the claim
with sufficient specificity and stating that the state court’s “consideration of the sufficiency
of the pleadings concerning a federal constitutional claim [in a postconviction motion]
necessarily entails a determination on the merits of the underlying claim”); Gaedtke v.

Sec’y, Dep’t of Corr., 369 F. App’x 12, 13-14, 16 n.2 (11th Cir. 2010) (stating that a state
court’s denial of an ineffective assistance claim as facially insufficient when the petitioner
did not allege he was prejudiced and therefore “failed the prejudice prong of Strickland”
was a denial on the merits entitled to deference under § 2254(d)(1)).
Davis does not show that the state court’s denial of his claims involved an
unreasonable application of Strickland. A petitioner carries the burden of establishing a
reasonable probability that the outcome of the proceeding would have been different due
to counsel’s alleged deficient performance before he can obtain relief under Strickland. See,

e.g., Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001) (“A petitioner has the burden
of establishing his right to federal habeas relief and of proving all facts necessary to show a
constitutional violation.”). Davis did not allege Strickland prejudice when he presented his
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claims to the state postconviction court, even after the court gave him an opportunity to
amend his claims by including such allegations. Because Davis’s failure to plead any facts
sufficient to support a finding of prejudice in his amended postconviction motion results
in a failure to establish prejudice as he must to obtain relief, he does not show that the state
court’s denial of his claims involved an unreasonable application of Strickland. As a result,
Davis is not entitled to federal habeas relief on Ground Three or Ground Four.
V. CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a district court or
court of appeals must first issue a certificate of appealability (COA). Id. “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 obtain a COA, Davis must show that
reasonable jurists would find debatable both the merits of the underlying claims and the
procedural issues he seeks to raise. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Davis
has not made the requisite showing. Finally, because Davis is not entitled to a COA, he is
not entitled to appeal in forma pauperis.
It is therefore ORDERED that Davis’s Petition for Writ of Habeas Corpus (Doc.
1) is DENIED. The CLERK is directed to enter judgment against Davis and in
Respondent’s favor and to CLOSE this case.
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ORDERED in Tampa, Florida, on January 7, 2022.

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