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

Filing 18

ORDER denying 1 Melady's petition for writ of habeas corpus; denying 17 Melady's motion for discovery. A certificate of appealability and leave to appeal in forma pauperis are DENIED. The Clerk is DIRECTED to enter judgment against Melady and to CLOSE this case. Signed by Judge Thomas P. Barber on 11/14/2023. (MWC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KYLE MELADY,
Petitioner,
v.

Case No. 8:21-cv-213-TPB-TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________________/
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Kyle Melady, a Florida prisoner, timely filed a counseled petition for
writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Having considered the
petition, Respondent’s response in opposition (Doc. 8), and Melady’s reply
(Doc. 9), the Court DENIES the petition. 1
Procedural History
Following a jury trial, Melady was convicted of one count of burglary of
an occupied dwelling. (Doc. 8-2, Ex. 16.) After finding that he qualified as a
violent career criminal, the state trial court sentenced Melady to a
mandatory term of thirty years’ imprisonment. (Id., Ex. 18, at 7-8.) The state
appellate court per curiam affirmed the conviction and sentence. Melady v.

Melady has also filed a motion for discovery. (Doc. 17.) For the reasons explained below,
that motion is denied as well.

1

1

State, 236 So. 3d 1052 (Fla. 2d DCA 2017). Melady subsequently moved for
postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 82, Ex. 28.) The state postconviction court rejected Melady’s claims, and the
state appellate court per curiam affirmed the denial of relief. (Id., Exs. 29, 33,
37; Melady v. State, 321 So. 3d 184 (Fla. 2d DCA 2020).) Melady separately
filed a petition alleging ineffective assistance of appellate counsel. (Doc. 8-2,
Ex. 44.) The state appellate court denied relief. (Id., Ex. 47.) This federal
habeas petition followed. (Doc. 1.)
Factual Background 2
On the morning of July 27, 2015, Mandy Griffith was eating breakfast
with her two children at her house in New Port Richey, Florida. (Doc. 8-2, Ex.
14, at 119-20.) Around 9:30 a.m., she was “startled” by “repeated knocks at
the door and repeated doorbell rings.” (Id. at 120-21.) Because she was not
expecting anyone, Griffith did not answer the door. (Id. at 121.) Once the
knocking and ringing stopped, she took her children to their rooms so that
she could look outside. (Id. at 121-22.) Griffith returned to the kitchen, looked
out the window, and saw a man in her backyard. (Id. at 122.)
As Griffith walked toward the front door, she noticed that the man had
entered her screened-in patio and was crouching by the sliding glass door.

2

This factual summary is based on the trial transcript.

2

(Id. at 123.) Griffith heard “cracking” and saw the man trying to “break the
door” with a crowbar. (Id. at 124.) Standing “six to eight feet” from the man,
Griffith screamed, “[W]hat are you doing?” (Id.) She made eye contact with
the man and looked at him for “[m]aybe three seconds”—enough time to get
“[a] good look.” (Id. at 125.) The man ran around to the front of the house, got
in a “small silver compact car,” and drove away. (Id. at 125-26.) Griffith
called 911, and the police arrived. (Id. at 126.)
Two days later, law enforcement met with Griffith in her house and
provided her with “three piles” of photographic lineups. (Id. at 132-33.) She
went through each pile of photographs twice, identifying Melady as the
burglar. (Id. at 133-34.) Griffith later testified that she was “one hundred
percent sure” Melady was the perpetrator. (Id. at 135.) The police officer who
conducted the lineup testified that, when Griffith identified Melady, “[s]he
was pointing, she started shaking[,] her eyes got real wide[,] and she sa[id]
that’s him.” (Id. at 177.) Griffith subsequently made an in-court identification
of Melady. (Id. at 136-37.)
Melady testified at trial. He admitted to having seventeen prior felony
convictions, but he denied burglarizing Griffith’s house. (Id. at 194-95.)

3

Standards of Review
AEDPA
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs
this proceeding. Carroll v. Sec’y, DOC, 1354 F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief 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.
A decision is “contrary to” clearly established federal law “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.” Williams
v. Taylor, 529 U.S. 362, 413 (2000). 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.
4

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure
that state-court 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; see also Harrington v. Richter, 562 U.S. 86,
103 (2011) (“As a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on the claim being
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.”).
The state appellate court affirmed Melady’s conviction and sentence, as
well as the denial of postconviction relief, without discussion. These decisions
warrant deference under § 2254(d)(1) because “the summary nature of a state
court’s decision does not lessen the deference that it is due.” Wright v. Moore,
278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a
silent affirmance, “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.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

5

Ineffective Assistance of Counsel
Melady alleges ineffective assistance of trial and appellate counsel.
Ineffective assistance of counsel claims are analyzed under the test
established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland
requires a showing of deficient performance by counsel and resulting
prejudice. Id. at 687. Deficient performance is established if, “in light of all
the circumstances, the identified acts or omissions [of counsel] were outside
the wide range of professionally competent assistance.” Id. at 690. However,
“counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.” Id.
Melady must show that counsel’s alleged error prejudiced the defense
because “[a]n 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, Melady
must show “a reasonable probability that, but for counsel’s unprofessional
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.
The Strickland standard applies to claims of ineffective assistance of
appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v.
6

Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish a claim of
ineffective assistance of appellate counsel, Melady must show that appellate
counsel’s performance was objectively unreasonable, and that there is a
reasonable probability that, but for this performance, he would have
prevailed on his appeal. Robbins, 528 U.S. at 285-86.
Obtaining relief on a claim of ineffective assistance of counsel is
difficult on federal habeas review 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 (internal quotation
and citations omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252,
1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel
claim—which is governed by the deferential Strickland test—through the
lens of AEDPA deference, the resulting standard of review is doubly
deferential.”) (internal quotation and citation omitted). “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)).

7

Exhaustion of State Remedies; Procedural Default
A federal habeas petitioner must exhaust his claims by raising them in
state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A);
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.”). The exhaustion
requirement is satisfied if the petitioner fairly presents his claim in each
appropriate state court and alerts that court to the federal nature of the
claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).
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); see also
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (stating that
unexhausted claims that “would now be procedurally barred in state court
due to a state-law procedural default” provide no basis for federal habeas
relief).
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
8

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.
Discussion
Ground One
Melady contends that appellate counsel was ineffective for failing to
raise two alleged constitutional violations. (Doc. 1 at 9-13.) First, he argues
that appellate counsel should have raised a Giglio 3 claim based on Griffith’s
allegedly false testimony about “her prior crimes of theft and dishonesty.” (Id.
at 12-13.) Second, Melady faults appellate counsel for failing to argue that
the trial court relied on “false information” “when it sentenced [him] as a
[v]iolent [c]areer [c]riminal and imposed a 30-year sentence.” 4 (Doc. 9 at 7; see

3

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

In the heading for Ground One, Melady asserts that appellate counsel failed to raise
“numerous issues” on direct appeal. (Doc. 1 at 9.) But the only issues identified in Ground
One are the alleged Giglio violation and the trial court’s alleged consideration of false
information at sentencing. (Id. at 9-13; see also Doc. 9 at 3-7.) Accordingly, the Court
considers only whether appellate counsel was ineffective for failing to raise these two
issues. Regardless, Melady fails to establish that the state court acted unreasonably in
rejecting any of his claims of ineffective assistance of appellate counsel.
4

9

also Doc. 1 at 12.) Melady separately argues that appellate counsel had an
“obvious conflict of interest” because he also represented Melady at trial.
(Doc. 1 at 9.) For that reason, Melady says, appellate counsel “should not
have agreed to do the appeal.” (Id.) The Court considers each claim in turn.
The Alleged Giglio Violation
During a break in jury selection, Melady’s trial counsel informed the
court that he had spoken to “a private investigator” over the weekend and
discovered that Griffith, the victim, “ha[d] what [counsel] consider[ed] two
qualified misdemeanors from Ohio from a [long] time ago.” (Doc. 8-2, Ex. 14,
at 55.) Counsel explained that the convictions were for passing “worthless
checks,” and that he intended to “elicit information” from Griffith about her
“two prior misdemeanors.” (Id.) Counsel also stated that he had not obtained
“the judgment[s] and sentences” for the convictions. (Id.) The court ultimately
ruled that counsel “could ask” Griffith about the convictions, but that if she
said she had “no prior crimes of dishonesty or false statement,” counsel would
be “stuck with the answer.” (Id. at 113.)
On cross-examination, counsel asked Griffith whether she had “ever
been convicted of a crime involving dishonesty or false statement.” (Id. at
139.) Griffith answered, “No.” (Id.) Neither side objected, and the
examination continued. (Id.)

10

In his federal habeas petition, Melady argues that the prosecution
committed a Giglio violation by “allow[ing] Griffith to lie on the stand about
her prior crimes of theft and dishonesty.” (Doc. 1 at 12.) Thus, according to
Melady, appellate counsel was ineffective for failing to raise the alleged
Giglio violation on direct appeal. (Id. at 12-13.) Melady asserted this
ineffective-assistance claim in his petition alleging ineffective assistance of
appellate counsel. (Doc. 8-2, Ex. 44, at 18-20.) The state appellate court
rejected the claim without explanation. (Id., Ex. 47.)
Because the final state-court decision “is unaccompanied by an
explanation,” Melady must show that “there was no reasonable basis for the
state court to deny relief.” Richter, 562 U.S. at 98. He cannot do so. “[T]o
determine whether [Melady] has shown ineffective appellate counsel, [the
Court] must determine whether [he] has shown underlying meritorious . . .
claims.” Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008). “Appellate
counsel is not ineffective for failing to raise claims reasonably considered to
be without merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.
2000); see also Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013)
(“It is . . . crystal clear that there can be no showing of actual prejudice from
an appellate attorney’s failure to raise a meritless claim.”).
Melady’s Giglio claim is meritless, so appellate counsel was not
ineffective for failing to pursue it. “To establish a Giglio claim, a habeas
11

petitioner must prove: (1) the prosecutor knowingly used perjured testimony
or failed to correct what he subsequently learned was false testimony; and (2)
such use was material, i.e., that there is any reasonable likelihood that the
false testimony could . . . have affected the judgment.” Guzman v. Sec’y, Dep’t
of Corr., 663 F.3d 1336, 1348 (11th Cir. 2011). The petitioner “must identify
evidence the government withheld that would have revealed the falsity of the
testimony.” United States v. Stein, 846 F.3d 1135, 1147 (11th Cir. 2017)
(emphasis added); see also Ford v. Hall, 546 F.3d 1326, 1331 (11th Cir. 2008)
(“Giglio error . . . occurs when the undisclosed evidence demonstrates that
the prosecution’s case included perjured testimony and that the prosecution
knew, or should have known, of the perjury.” (emphasis added)).
Here, “there was no Giglio violation because there was no undisclosed
evidence.” Shuler v. Sec’y, Fla. Dep’t of Corr., 610 F. App’x 856, 858 (11th Cir.
2015). Melady’s trial counsel was aware of the information that supposedly
“revealed the falsity of [Griffith’s] testimony”—namely, her two prior
convictions for passing worthless checks. Stein, 846 F.3d at 1147. Moreover,
there is no indication that, before counsel raised the matter at trial, the
prosecution knew of Griffith’s prior convictions. Because the information in
question “was not suppressed,” Melady’s “Giglio claim based on [Griffith’s]
alleged lies about [her prior convictions] fails.” Hammond v. Hall, 586 F.3d
1289, 1309 (11th Cir. 2009); see also Rentas v. Fla. Att’y Gen. & Sec’y, No.
12

2:15-cv-751-JES-MRM, 2017 WL 11637307, at *5 (M.D. Fla. July 27, 2017)
(“Claim One fails at the outset because a Giglio analysis presupposes that the
evidence at issue was withheld from the defense.”). And because the Giglio
claim lacks merit, appellate counsel was not ineffective for failing to raise it
on direct appeal.
The Alleged Sentencing Error
As noted above, the trial court sentenced Melady as a violent career
criminal to a mandatory term of thirty years in prison. (Doc. 8-2, Ex. 18, at 78.) “[T]o be sentenced as a violent career criminal, a defendant must have
been previously incarcerated in state or federal prison, must have been
convicted three times as an adult of certain violent felonies (listed in the
statute), and must have committed another such offense within” five years of
his release from prison for a qualifying felony. Clines v. State, 912 So. 2d 550,
553 (Fla. 2005). Burglary is a qualifying offense under the statute. Fla. Stat.
§§ 775.084(1)(d)(1), 776.08; see also Fisher v. State, 129 So. 3d 468, 468 (Fla.
2d DCA 2014) (noting that “[b]urglary” is a qualifying felony for purposes of
the violent-career-criminal statute).
The trial court adjudicated Melady a violent career criminal based on
“well more than three qualifying felonies,” including at least seven prior
burglary convictions. (Doc. 8-2, Ex. 18, at 3-4, 8.) Because the jury in this case
convicted Melady of burglary of an occupied dwelling (a second-degree
13

felony), the court was required to sentence him to “a term of years not
exceeding 40, with a mandatory minimum term of 30 years’ imprisonment.” 5
Fla. Stat. § 775.084(4)(d)(2). The court ultimately imposed a sentence of
thirty years in prison. (Doc. 8-2, Ex. 18, at 7.) It also declined to “give
[Melady] a supersedeas bond” pending appeal, explaining that he had
previously “been to prison for this very same crime”—that is, burglary of an
occupied dwelling. (Id. at 8-9.)
Melady contends that the court relied on “false information” when it
“sentenced [him] as a [v]iolent [c]areer [c]riminal and imposed a 30-year
sentence.” (Doc. 9 at 6-7.) He claims that his sentencing scoresheet
incorrectly stated that he had a prior conviction for burglary of a dwelling
when, in fact, the conviction was for burglary of a structure. (Id. at 6.)
According to Melady, the court “took into consideration” his “erroneous [prior
conviction] for burglary of a dwelling” “as an impermissible sentencing
factor.” (Id.) Melady maintains that appellate counsel was ineffective for
failing to raise this issue in a “motion . . . to preserve [] sentencing errors.”
(Id. at 5.)

A trial court “has the discretion not to sentence a defendant as a violent career criminal if
it determines that such a sentence is not necessary for the protection of the public.”
Williams v. State, 249 So. 3d 721, 722 (Fla. 5th DCA 2018). This exception was not at issue
in Melady’s case.

5

14

The state appellate court rejected Melady’s ineffective-assistance claim
without explanation. (Doc. 8-2, Ex. 47.) Thus, Melady must show that “there
was no reasonable basis for the state court to deny relief.” Richter, 562 U.S.
at 98. He cannot meet his burden because the underlying sentencing-error
claim lacks merit, and appellate counsel “cannot be deficient for failing to
raise a meritless claim.” Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir.
2008).
“A defendant has a due process right . . . not to be sentenced based on
false or unreliable information.” United States v. Ghertler, 605 F.3d 1256,
1269 (11th Cir. 2010); see also Roberts v. United States, 445 U.S. 552, 556
(1980) (“We have . . . sustained due process objections to sentences imposed
on the basis of misinformation of constitutional magnitude.”). “To prevail on a
challenge to a sentence based on the consideration of such information, a
defendant must show (1) that the challenged evidence is materially false or
unreliable and (2) that it actually served as the basis for the sentence.”
Ghertler, 605 F.3d at 1269. The defendant must make “a convincing showing
that the introduction of specific constitutionally infirm evidence had an
ascertainable and dramatic impact on the sentencing authority.” United
States v. Sjeklocha, 114 F.3d 1085, 1089 (11th Cir. 1997) (internal quotation
marks omitted).

15

The Court assumes, without deciding, that Melady’s scoresheet
mistakenly listed one of his prior convictions for burglary of a structure as
burglary of a dwelling. Even so, Melady cannot show that this allegedly false
information “actually served as the basis for [his] sentence.” Ghertler, 605
F.3d at 1269. As noted above, Melady received a mandatory thirty-year
sentence based on his designation as a violent career criminal. That
designation would have remained the same even if his scoresheet had not
contained the allegedly false information. Indeed, Melady had at least seven
prior burglary convictions—well over the three qualifying felonies required to
sustain a violent-career-criminal designation. (Doc. 8-2, Ex. 18, at 3-4, 8.)
Moreover, “convictions for burglary of an unoccupied structure qualify for
sentencing as a violent career criminal.” Ubilla v. State, 8 So. 3d 1200, 1201
(Fla. 3d DCA 2009). That means that, even if the conviction in question had
been properly listed as burglary of a structure, it still would have counted
toward Melady’s violent-career-criminal designation.
Thus, because Melady’s mandatory thirty-year sentence was not
affected by the allegedly false information in his scoresheet, that information
did not have “an ascertainable and dramatic impact on the sentencing
authority.” Sjeklocha, 114 F.3d at 1089 (internal quotation marks omitted).
Appellate counsel was not ineffective for failing to raise this meritless claim
of sentencing error.
16

The Alleged Conflict of Interest
As noted above, the same lawyer represented Melady at trial and on
direct appeal. (Doc. 8-2, Ex. 14, at 2; id., Ex. 22, at 1.) Melady contends that
this was an “obvious conflict of interest” because it required counsel to “take
responsibility for his own mistakes” on direct appeal. (Doc. 1 at 12.) Thus,
according to Melady, appellate counsel was ineffective and “should not have
agreed to do the appeal.” (Id. at 9.)
Respondent correctly contends that this claim is unexhausted and
procedurally defaulted. (Doc. 8 at 16.) A petitioner “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.” O’Sullivan, 526 U.S. at 842. Melady never
raised his conflict-of-interest claim in state court. It is therefore unexhausted.
Melady cannot return to state court to present his unexhausted claim
in a second, untimely petition alleging ineffective assistance of appellate
counsel. See Fla. R. App. P. 9.141(d)(5) (“[A] petition alleging ineffective
assistance of appellate counsel on direct review must not be filed more than 2
years after the judgment and sentence become final on direct review. . . .”). As
a result, the claim is procedurally defaulted. See Bailey v. Nagle, 172 F.3d
1299, 1303 (11th Cir. 1999) (“[I]f the petitioner simply never raised a claim in
state court, and it is obvious that the unexhausted claim would now be
procedurally barred due to a state-law procedural default, the federal court
17

may foreclose the petitioner’s filing in state court; the exhaustion
requirement and procedural default principles combine to mandate
dismissal.”). And because Melady has not shown that an exception applies to
overcome the default, the claim is barred from federal habeas review.
Even if Melady had exhausted his conflict-of-interest claim, he would
not be entitled to relief because it fails on the merits. Strickland applies to
claims of “ineffective assistance of appellate counsel based on an alleged
conflict arising from the same counsel representing the [d]efendant both at
trial and on appeal.” Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005). As
explained above, the two claims that Melady believes appellate counsel
should have raised—the alleged Giglio violation and the alleged sentencing
error—lacked merit. “Appellate counsel is not ineffective for failing to raise
claims reasonably considered to be without merit.” Nyhuis, 211 F.3d at 1344
(internal quotation marks omitted). Thus, even if Melady had not defaulted
his conflict-of-interest claim, it would not warrant federal habeas relief.
Ground Two
Melady contends that his “pretrial [c]ourt-appointed counsel” was
ineffective for failing to seek suppression of the victim’s in-court and out-ofcourt identifications. (Doc. 1 at 13-14.) Melady was initially represented by
appointed counsel. Shortly before trial, he retained private counsel, who
proceeded to represent him at trial and on direct appeal. (Doc. 8-2, Ex. 14, at
18

7-11.) On the first day of trial, counsel moved to suppress the victim’s “out-ofcourt photo pack identification,” arguing that (1) the victim “identified
[Melady] [based] on a three [] second visual,” (2) Melady’s photograph was
“the FIRST photo out of all the photos” shown to the victim, (3) after the
identification, law enforcement improperly “advised the [v]ictim that she had
picked the correct photo,” and (4) the victim subsequently “viewed [Melady]
on the Pasco Sheriff’s Office Facebook” page. (Id., Ex. 13, at 1-2.) Counsel
argued that “[a]ny in-court identification would also be tainted” for the same
reasons. (Id. at 1.)
After the prosecution rested, the trial court orally denied Melady’s
motion to suppress. (Id., Ex. 14, at 178-79.) The court held that the victim
had a “significant” opportunity to “view the suspect at the time of the crime.”
(Id. at 179.) The court explained that, although the victim had only “three
seconds” to view the suspect, “it was a very long three seconds in that
witness’s life based on the [c]ourt’s view of her testimony.” (Id.) The court also
found that the victim’s “degree of attention was high” and “she was focused
right at the suspect.” (Id.) In addition, the court noted that the victim
“seemed very clear that [Melady] was the person that did this,” and that she
made the identification only two days after “the crime and confrontation”—
“not a long time for purposes of that identification.” (Id.) Accordingly, the

19

court found “no reason to suppress the identification from the photo lineup or
any reason to suppress the in-court identification.” 6 (Id.)
In his federal habeas petition, Melady does not dispute that trial
counsel moved to suppress the victim’s out-of-court and in-court
identifications. Instead, he argues that his pretrial, appointed counsel was
ineffective for (1) failing to “raise[] the [identification] issue pretrial” and (2)
failing to “obtain the necessary documentation and elicit the necessary
testimony in pretrial depositions to ferret out the issues for a proper pretrial
presentation to the trial court.” (Doc. 1 at 14.) Melady also contends that
counsel should have sought “the aid of an expert on eyewitness testimony or
on eyewitness identification to testify either pretrial or at trial about the
inherent unreliability of identification, especially when the identifying
witness observed the perpetrator for less than 5 seconds, under stress and
through a door.” (Id. at 14-15.)
The state postconviction court rejected Melady’s ineffective-assistance
claim as “meritless and refuted by the record.” (Doc. 8-2, Ex. 29, at 3.) The
court held that, “[t]o the extent [Melady] claim[ed] his appointed counsel
failed to file a motion to suppress,” he was not “prejudiced” because “his hired

The court separately rejected Melady’s argument that the in-court identification must be
suppressed because, before trial began, the prosecutor allegedly “brought [the victim] into
the courtroom” and “pointed [Melady] out [to her] at that point.” (Doc. 8-2, Ex. 14, at 13738, 179; id., Ex. 15, at 207.)

6

20

counsel filed a motion to suppress both [the] in court and out of court
identification[s] of [him], on the very basis [he] claim[ed] that counsel should
have filed such a motion.” (Id.) Moreover, as just noted, the trial court denied
Melady’s request to suppress the identifications, thus refuting his assertion
“that the motion would have been successful.” (Id.)
The rejection of this claim was reasonable. 7 Specifically, Melady failed
to establish a “reasonable probability that the outcome of his suppression
[motion] . . . would have been different” if pretrial counsel had taken the
steps he identifies. Waldrip v. Humphrey, 532 F. App’x 878, 886 (11th Cir.
2013) (internal quotation marks omitted). As noted above, Melady contends
that pretrial counsel failed to “obtain the necessary documentation and elicit
the necessary testimony in pretrial depositions to ferret out the issues for a
proper pretrial presentation to the trial court.” (Doc. 1 at 14.) But Melady
provides no specifics about the “documentation” or “testimony” that he
believes pretrial counsel should have obtained. Nor does he explain how
further investigation would have bolstered his efforts to suppress the
identifications. Simply put, Melady’s “[c]onclusory allegations of ineffective
assistance are insufficient.” Wilson v. United States, 962 F.2d 996, 998 (11th
Respondent contends that Melady did not exhaust his claim concerning counsel’s alleged
failure to seek suppression of the in-court identification. (Doc. 8 at 20-21.) The Court need
not decide whether this claim is procedurally defaulted because it fails on the merits. See
Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip over the
procedural default analysis if a claim would fail on the merits in any event.”).

7

21

Cir. 1992); see also Philpot v. United States, No. 20-CR-60086-RAR, 2023 WL
4560878, at *6 (S.D. Fla. July 17, 2023) (holding that “[m]ovant [] failed to
show that his defense counsel was ineffective in failing to prepare for his
suppression hearing” because there was “no evidence that additional
investigation would have uncovered evidence” that could have affected
outcome of motion to suppress); Savery v. Sec’y, Dep’t of Corr., No. 6:09-cv810-GAP-DAB, 2010 WL 4683773, at *12 (M.D. Fla. Nov. 10, 2010) (“To the
extent that Petitioner alleges that counsel should have discovered additional
exculpatory evidence, this claim is conclusory and cannot maintain a claim
for ineffective assistance of counsel.”).
Melady also failed to establish “a reasonable probability that, but for
counsel’s [failure to hire an expert on eyewitness identifications], the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. The
burden of establishing prejudice under Strickland “is particularly heavy
where the petitioner alleges ineffective assistance in failing to call a witness
because often allegations of what a witness would have testified to are largely
speculative.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1365 (11th
Cir. 2021) (internal quotation marks omitted). For that reason, “a petitioner’s
own assertions about whether and how a witness would have testified are
usually not enough to establish prejudice from the failure to interview or call
that witness.” Id.
22

Here, Melady simply asserts, without explanation, that “it was
incumbent on [c]ounsel to seek the aid of an expert on eyewitness testimony
or on eyewitness identification to testify either pretrial or at trial about the
inherent unreliability of identification.” (Doc. 1 at 14.) Melady provides no
additional information about the substance of the proposed expert testimony.
And he offers no basis to conclude that an expert would testify that the
victim’s identification in this case was unreliable. “Without some specificity
as to the proposed expert’s testimony, any assertion that an expert would
testify consistently with [Melady’s] claims is mere speculation and does not
entitle him to habeas relief.” Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848,
852 (11th Cir. 2016). Accordingly, Melady failed to establish that counsel was
ineffective for failing to retain an expert witness. See Holt v. Sec’y, Fla. Dep’t
of Corr., 489 F. App’x 336, 338 (11th Cir. 2012) (holding that state court
reasonably rejected Strickland claim because “[i]t [was] speculative that an
expert witness would in fact have testified” the way petitioner wanted);
Moore v. Sec’y, Fla. Dep’t of Corr., No. 3:06-cv-127-MMH, 2022 WL 4133198,
at *23 (M.D. Fla. Sept. 12, 2022) (“[Petitioner’s] claim about the testimony of
expert witnesses is speculative because he does not specify the substance of
the proposed experts’ testimony, and he presumes the experts would have
testified favorably to the defense.”).

23

For all these reasons, Ground Two is denied. 8
Ground Three
Melady contends that pretrial counsel was ineffective for failing to
“properly advise” him about the prosecution’s “initial plea offers.” (Doc. 1 at
15.) Specifically, he alleges that during his arraignment, the prosecutor
“offered to resolve the pending matters” for a prison term of “44.4 months.”
(Id. at 16.) According to Melady, had counsel “informed [him] of the pros and
cons of the plea” offer, he “would have received a 44.4-month sentence, not a
360-month sentence.” (Id. at 18.) Melady also faults counsel for not “making
any formal written plea offers before trial.” (Id. at 15.)
During the arraignment, the prosecutor indicated that “right now,” the
“bottom of the guidelines [for Melady] was 44.4” months. (Doc. 8-2, Ex. 3, at
5.) The prosecutor clarified that he had said “right now” because Melady
“qualif[ied] for habitual offender” in light of his “prior burglary convictions,”
and might “qualify for other enhancements” as well. (Id. at 5-6.) The trial
court then asked, “The brass tacks today if he wanted to resolve it, it’s 48
months?” (Id.) The prosecutor answered, “44.4.” (Id.) After outlining Melady’s
options at this stage of the proceedings, the court indicated that “we need to

Melady appears to fault the state postconviction court for rejecting Grounds Two and
Three “without a response from the State or a hearing.” (Doc. 1 at 13, 15.) It is well
established, however, that “an alleged defect in a collateral proceeding does not state a
basis for habeas relief.” Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004).

8

24

get a trial set because it doesn’t seem like there’s any way to resolve the
case.” (Id. at 7.) Melady told the court that he was “not guilty on this
burglary” and offered to “take a polygraph test” to prove his innocence. (Id. at
8.)
At the first pretrial hearing, the prosecutor reiterated that Melady
“score[d] 44.4 months, the bottom of the guidelines.” (Id., Ex. 5, at 3.) The
State subsequently filed a notice of enhanced penalty, stating that Melady
qualified as a habitual felony offender and violent career criminal. (Id., Ex.
6.) At a subsequent pretrial hearing, the court asked the State “what [it was]
seeking in Mr. Melady’s case if he wanted to resolve it.” (Id., Ex. 9, at 3.) The
prosecutor responded, “Judge, he’s an HO and VCC. At this time there has
not been a written offer made.” (Id.)
At the final pretrial hearing, the court asked the State whether it was
“willing to make any deals today.” (Id., Ex. 12, at 12.) The prosecutor said,
“No, Your Honor.” (Id.) Melady subsequently claimed that he had told counsel
“multiple times” that he would “take . . . two years here and end it,” but that
counsel “never told the State” about his offer. (Id. at 13.) The court
responded:
Well, probably because [counsel] realized that somebody
designated as a violent career criminal by the State of Florida
would never get a two-year disposition from the State of Florida.

25

Like you have a better chance of winning the Power Ball lottery
than you do getting them to agree to a two-year DOC sentence on
a 30-year felony VCC designation.
And I know that based on 20 years of being here in the Sixth
Circuit. And as do[] pretty much all the attorneys here know that
[the State Attorney] would never agree to that. I’m not saying it’s
not right or wrong. It doesn’t matter. I just know that he wouldn’t
agree to it, and he has to sign off on that, and he simply wouldn’t
do that, based on 20 years of watching this.
(Id. at 13-14.) The prosecutor confirmed that the State Attorney would have
to approve any plea deal for less than the thirty-year mandatory minimum.
(Id. at 14.) He also stated that any offer “would probably be 10 to 15” given
that Melady had “done five years DOC before” and had “multiple burglaries
in his past.” (Id. at 14-15.) The court indicated that trial would begin “on
Monday” and asked Melady whether he had “any questions.” (Id. at 15.)
Melady said he did not. (Id. at 16.)
As noted above, Melady claims that counsel was ineffective for failing
to “properly advise” him concerning the prosecution’s “initial plea offers.”
(Doc. 1 at 15.) He contends that “[t]he record is abundantly clear” that he
received a “44-month offer” at his arraignment, and that but for counsel’s
deficient performance, “he would have accepted the 44-month offer . . . rather
than risk a 30-year sentence.” (Doc. 9 at 10-11.) He also claims that counsel
was ineffective for “not making any formal written plea offers before trial.”
(Doc. 1 at 15.)
26

The state postconviction court rejected this claim, finding that Melady
failed to establish that he “rejected a plea offer based on misadvice.” (Doc. 82, Ex. 29, at 5.) The court explained that, to prevail on this claim, Melady was
required to “demonstrate a reasonable probability” that “(1) he [] would have
accepted the offer had counsel advised [him] correctly, (2) the prosecutor
would not have withdrawn the offer, (3) the court would have accepted the
offer, and (4) the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and sentence that in
fact were imposed.” (Id. (citing Alcorn v. State, 121 So. 3d 419, 422 (Fla.
2013).)
The court found that Melady failed to satisfy the second prong of this
test—namely, that “the prosecutor would not have withdrawn the offer.” (Id.)
According to the court, “there was never a written offer from the State, and
during multiple pretrial hearings the State appeared to waver on its
certainty regarding its ability to offer the bottom of the guidelines based upon
[Melady’s] criminal history.” (Id.) Citing the transcript of the final pretrial
hearing, the court found that “not only had the State not formally extended []
[a 44-month] offer, but also, if ever such an offer was extended in passing, not
formally or finalized, it would have certainly been withdrawn by the State.”
(Id. at 6.)

27

The rejection of this claim was reasonable. “[C]laims of ineffective
assistance of counsel in the plea bargain context are governed by the two-part
test set forth in Strickland.” Missouri v. Frye, 566 U.S. 134, 140 (2012). To
establish prejudice in the context of a failed plea bargain, the petitioner must
show that, “but for the ineffective assistance of counsel, a reasonable
probability existed that: (1) the plea offer would have been presented to the
court (i.e. the [petitioner] would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening circumstances); (2) the
court would have accepted its terms; and (3) under the offer’s terms, the
conviction or sentence, or both, would have been less severe than under the
judgment and sentence that were, in fact, imposed.” Carmichael v. United
States, 966 F.3d 1250, 1259 (11th Cir. 2020).
Even assuming that the State made a 44-month offer during the
arraignment, Melady cannot show “a reasonable probability that the
prosecution would have adhered to” that offer. Frye, 566 U.S. at 150. Florida
law “authorizes the prosecutor to withdraw a plea offer at any time before it
is formally accepted by the trial judge.” Alcorn, 121 So. 3d at 430; see also
Mitchell v. State, 197 So. 3d 1271, 1273 (Fla. 2d DCA 2016) (“In Florida, trial
courts and prosecutors have the discretion to withdraw a plea offer.”). At the
final pretrial hearing, the prosecutor represented that (1) the State Attorney
would have to approve any plea offer for less than the thirty-year mandatory
28

minimum, and (2) such an offer “would probably be [for] 10 to 15 [years]” in
light of Melady’s criminal history. (Doc. 8-2, Ex. 12, at 14-15.) There is no
indication that the State Attorney approved a 44-month offer in Melady’s
case. Thus, the state postconviction court reasonably concluded that, to the
extent such an offer ever existed, “it would have certainly been withdrawn by
the State.” (Id. at 6; see also Diep Vu Ho v. United States, No. 19-12321-F,
2019 WL 9096027, at *1 (11th Cir. Dec. 3, 2019) (rejecting ineffectiveassistance claim because defendant “failed to show that, even if [the
government] had [made a favorable plea offer], [it] would not have withdrawn
the plea, as it was an ‘enormous, and random, departure—not only from his
proper guideline sentencing range—but also from [the U.S. Attorney’s
Office’s] practice’”); Preston v. Sec’y, Dep’t of Corr., No. 17-14618-H, 2018 WL
8061783, at *4 (11th Cir. Nov. 16, 2018) (“[T]he five-year offer to which
[petitioner] referred was an informal offer, and had not been approved by the
state prosecutor’s supervisor, and, therefore, [petitioner] could not show that
there was a reasonable probability that the five-year offer would have been
presented to the court.”).)

29

Because Melady failed to establish prejudice, the state postconviction
court reasonably rejected his ineffective-assistance claim. Ground Three is
denied. 9
Ground Four
Melady contends that pretrial counsel was ineffective for failing to “file
[a] proper notice of alibi.” (Doc. 1 at 19.) In his Rule 3.850 motion, Melady
elaborated on this claim, alleging that two potential alibi witnesses—
Kimberly Larson and Melady’s sister, Kayle Melady—“would have testified to
[Melady] being at a location other than the victim’s alleged address.” (Doc. 82, Ex. 28, at 13.) According to Melady, counsel’s failure to file a notice of alibi
precluded him from calling these two witnesses and “forced [him] to testify to
advance his [d]efense.” (Doc. 1 at 19.)
The state postconviction court rejected this ineffective-assistance claim.
As for Kayle Melady, the court noted that counsel “spoke on the record about
his decision not to call” her at trial. (Doc. 8-2, Ex. 29, at 4.) Specifically,
counsel stated that, although Melady sometimes “stayed” at Kayle’s house,
she could not “identify a certain date other than she knew he was there a day
to remove her washer and dryer.” (Id., Ex. 14, at 181.) Thus, counsel

To the extent that Melady faults counsel for not making an unspecified “formal written”
plea offer, his claim fails because he does not show that “the outcome of the plea process
would have been different” had counsel made an offer. Lafler v. Cooper, 566 U.S. 156, 163
(2012).

9

30

“worried” that if he called Kayle, the jury would think he was “trying to pull a
fast one over them.” (Id. at 183.) The state postconviction court “interpret[ed]
th[ese] statement[s] as counsel making a strategic decision not to call Kayle
Melady, even had the appropriate paperwork been previously filed.” (Id., Ex.
29, at 4.) Thus, the court concluded that counsel was not ineffective “for
fail[ing] to call and investigate this witness.” (Id.)
As for Kimberly Larson, the court found that, based on her deposition
testimony, she “would not have provided exculpatory evidence.” (Id., Ex. 33,
at 4.) In her deposition, Larson testified that she did not know anything
about Melady’s whereabouts on the day of the burglary. (Id., Ex. 11, at 5.)
She also stated, “I don’t know nothing about this case.” (Id. at 7.) Based on
this testimony, the court found that Melady had not “demonstrated that
counsel was deficient” for failing to call Larson at trial. (Id., Ex. 33, at 4.)
The state postconviction court acted reasonably in rejecting this claim.
“Which witnesses, if any, to call, and when to call them, is the epitome of a
strategic decision, and it is one that [courts] will seldom, if ever, second
guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995); see also Ball v.
United States, 271 F. App’x 880, 884 (11th Cir. 2008) (“Trial counsel’s
decisions with regard to [defendant’s] alibi witnesses were quintessential
trial strategy.”). “[T]o show that counsel’s performance was unreasonable, the
petitioner must establish that no competent counsel would have taken the
31

action that his counsel did take.” Grayson v. Thompson, 257 F.3d 1194, 1216
(11th Cir. 2001). “Even if many reasonable lawyers would not have done as
defense counsel did at trial, no relief can be granted on ineffectiveness
grounds unless it is shown that no reasonable lawyer, in the circumstances,
would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
The state postconviction court reasonably concluded that counsel was
not deficient for failing to file a notice of alibi or otherwise pursue an alibi
defense. As the court explained, the two proposed alibi witnesses—Larson
and Kayle Melady—would not have been able to provide alibis for Melady.
Thus, counsel was not ineffective for failing to take steps to present their
testimony at trial. See Rizo v. United States, 662 F. App’x 901, 914 (11th Cir.
2016) (“[I]t was not unreasonable for [counsel] to conclude pursuit of a
potential alibi defense would likely be fruitless[.]”).
Ground Four is denied.
Ground Five
Melady raises a freestanding claim of actual innocence, arguing that
the “full brea[d]th” of his defense would establish “that [he] was someplace
else at the time of the alleged crime.” (Doc. 1 at 20-21.) Eleventh Circuit
“precedent forecloses habeas relief based on a prisoner’s assertion that he is
actually innocent of the crime of conviction absent an independent
constitutional violation occurring in the underlying state criminal
32

proceeding.” Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019)
(internal quotation marks omitted); see also Cunningham v. Dist. Attorney’s
Office, 592 F.3d 1237, 1273 (11th Cir. 2010) (“[An] assertion of actual
innocence, by itself, is not enough.”). Because Melady fails to establish “an
independent constitutional claim, his freestanding actual innocence claim is
not cognizable” on federal habeas review. Collins v. Sec’y, Dep’t of Corr., 809
F. App’x 694, 696 (11th Cir. 2020). Thus, Ground Five is denied. 10
Motion for Discovery
Finally, Melady has filed a motion for discovery, seeking permission to
“issue subpoenas for records from Facebook, Google, and Yahoo and any other
follow up subpoenas required to obtain IP address information.” (Doc. 17 at 12.) Melady contends that the requested subpoenas would help “identify
certain internet activities [he] was engaged in at the time the alleged incident
occurred.” (Id. at 1.) According to Melady, this evidence would be “vital to the
[] pending actual innocence claim [] in this matter.” (Id.)
“A habeas petitioner, unlike the usual civil litigant in federal court, is
not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley,

In his reply, Melady raises for the first time a claim of cumulative error. (Doc. 9 at 12.)
The Court “need not consider [] new claims raised for the first time in” Melady’s reply.
Foreman v. Sec’y, Fla. Dep’t of Corr., No. 3:19-cv-575-TJC-JBT, 2022 WL 3282652, at *13
(M.D. Fla. Aug. 11, 2022). Regardless, the cumulative-error claim fails because none of
Melady’s “individual claims of error” has “any merit.” Morris v. Sec’y, Dep’t of Corr., 677
F.3d 1117, 1132 (11th Cir. 2012).
10

33

520 U.S. 899, 904 (1997). Still, “[a] judge may, for good cause, authorize a
party to conduct discovery under the Federal Rules of Civil Procedure and
may limit the extent of discovery.” Rule 6(a), Rules Governing § 2254 Cases.
Good cause may be established where “specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520
U.S. at 908-09.
Melady is not entitled to the requested discovery. According to Melady,
the subpoenas would allow him to support his “pending actual innocence
claim.” (Doc. 17 at 1.) But, as noted above, this Court cannot grant “habeas
relief based on a prisoner’s assertion that he is actually innocent of the crime
of conviction absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Raulerson, 928 F.3d at 1004 (internal
quotation marks omitted). Thus, “[t]here is no good cause to allow for
discovery, because even if evidence of actual innocence is found, it would not
provide [Melady] relief due to the fact he has failed to establish an
independent constitutional violation in his underlying state court
proceedings.” Roundtree v. Inch, No. 19-61208-CV, 2020 WL 8458863, at *11
(S.D. Fla. Nov. 25, 2020), adopted by 2021 WL 266280 (S.D. Fla. Jan. 27,
2021); see also Braswell v. Phillips, No. 2:19-cv-02362-TLP-TMP, 2022 WL
696812, at *12 (W.D. Tenn. Mar. 8, 2022) (“Because a freestanding claim of
34

actual innocence is not cognizable, Petitioner has no basis to obtain discovery
to support such a claim.”). For this reason, the request to conduct discovery is
denied. 11
Conclusion
Accordingly, it is ORDERED that Melady’s petition (Doc. 1) is
DENIED. Melady’s motion for discovery (Doc. 17) is also DENIED. The
CLERK is directed to enter judgment against Melady and to CLOSE this
case.
It is further ORDERED that Melady is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court’s denial of his petition. 28 U.S.C.
§ 2253(c)(1). Rather, a court must first issue a certificate of appealability. To
obtain a certificate of appealability, Melady must show that reasonable
jurists would find debatable both (1) the merits of the underlying claims and
(2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Melady has not made the requisite

Melady seeks an evidentiary hearing on his claims. The Court concludes that an
evidentiary hearing is not warranted. See Schriro, 550 U.S. at 474 (stating 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”); Landers v. Warden, 776 F.3d
1288, 1295 (11th Cir. 2015) (“[B]efore a habeas petitioner may be entitled to a federal
evidentiary hearing on a claim that has been adjudicated by the state court, he must
demonstrate a clearly established federal-law error or an unreasonable determination of
fact on the part of the state court, based solely on the state court record.”).

11

35

showing. Accordingly, a certificate of appealability is DENIED. Leave to
appeal in forma pauperis is DENIED. Melady must obtain permission from
the circuit court to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, this 14th day of November,
2023.

TOM BARBER
UNITED STATES DISTRICT JUDGE

36