Dennis v. Florida Department of Corrections

Filing 16

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Labrant D Dennis. Signed by Judge William J. Zloch on 12/3/2015. (bc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-21064-CIV-ZLOCH
LABRANT D. DENNIS,
Petitioner,
O R D E R

vs.
MICHAEL D. CREWS, Secretary,
Florida Department of Corrections
Respondent.
__________________________________/

THIS MATTER is before the Court upon Petitioner Labrant D.
Dennis’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§2254 (DE 1).

Petitioner, Labrant Dennis (“Mr. Dennis”), is on

death row at Union Correctional Institution in Raiford, Florida,
following convictions in 1998 for the first degree murders of
Marlin Barnes and Timwanika Lumpkins.

The instant Petition For

Writ Of Habeas Corpus (DE 1) was filed March 26, 2013.

On June 26,

2013, the State filed its Response To Order To Show Cause Why
Petition For Writ Of Habeas Corpus Should Not Be Granted (DE 10).
Mr. Dennis filed his Reply (DE 15) on September 9, 2013.
The Court has carefully reviewed said Petition (DE 1), the
entire court file and is otherwise fully advised in premises.

For

the reasons that follow, the Petition for Writ of Habeas Corpus (DE
1) will be DENIED.
I. FACTUAL BACKGROUND
The Supreme Court of Florida gave the following summary of the
pertinent and salient facts:

On the morning of April 13, 1996, University of Miami
football player Earl Little arrived at his on-campus
apartment to pick up the keys to his truck, a black Ford
Explorer, he had loaned to his roommate and teammate,
Marlin Barnes. Little loaned Barnes the truck the
previous evening to attend a party at Club Salvation in
Miami Beach and advised him that he would return to the
apartment early the next morning to retrieve his vehicle.
Little, who spent the night at another on-campus
apartment, arrived at the apartment complex between 7 and
7:30 a.m. As he approached his third-floor apartment he
noticed that his truck, which was parked outside the
apartment, was tilting towards its right side. Little
examined his truck and observed a puncture mark in his
right rear tire. He then went upstairs to his apartment.
When Little attempted to open the door to his apartment
he discovered that it was unlocked, but when he tried to
push the door open he experienced resistance. Finally,
after several attempts the door gave way enough for him
to peer inside the apartment where he discovered Barnes'
body lying against the front door. Little called Barnes'
name and Barnes drew only a heavy breath in response.
Upon calling his name a second time, Barnes turned his
head and Little saw for the first time that Barnes' face
was badly beaten and bloodied. Little raced to a nearby
apartment and called police.
Dan Oppert of the Coral Gables Police Department arrived
on the scene at 7:34 a.m. Upon entering the apartment
Oppert observed Barnes lying on the floor with his head
leaning against the front door. As Oppert proceeded
through the apartment to secure the premises he
discovered the body of Timwanika Lumpkins in a bedroom.
Lumpkins was lying face down and had severe trauma to the
back of her head. As he continued his search of the
apartment he observed that the back door was dead-bolted.
When Oppert returned to the living room he watched Barnes
make an attempt to get up and then collapse.
Wayne Sibley of the Coral Gables Fire Rescue arrived at
the scene at 7:39 a.m. and Barnes was no longer
breathing. Sibley and other emergency personnel quickly
attended to Lumpkins who was still breathing. Barnes was
pronounced dead at the scene and Lumpkins was pronounced
dead after being airlifted to a nearby hospital.
Dennis v. State, 817 So.2d 741 (2002).
2

II. PROCEDURAL BACKGROUND
On October 27, 1998, Mr. Dennis was convicted of two counts of
first degree murder, one count of burglary with assault or battery
while armed, and one count of criminal mischief. Dennis, 817 So.2d
at 751.

The jury recommended the death penalty by a vote of eleven

to one. Id. The presiding judge adopted the jury’s recommendation
finding

four

aggravating

circumstances1

and,

while

the

court

considered seven statutory and non-statutory mitigating factors, it
only assigned weight to three.2
On direct appeal to the Florida Supreme Court, Mr. Dennis

1

(1) that the defendant had been convicted of a prior
capital felony (the contemporaneous murder); (2) that the murder
was committed in the course of a felony (burglary); (3) that the
murder was especially heinous, atrocious, or cruel (HAC); and (4)
that the murder was committed in a cold, calculated, and
premeditated manner without any pretense of legal or moral
justification (CCP).
2

(1) that the defendant did not have a significant history
of prior criminal activity (not found and therefore given no
weight); (2) that the defendant was under the influence of
extreme mental or emotional disturbance (given little weight);
(3) the capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the requirements of
the law was substantially impaired (given no weight); (4) a
catchall category of mitigation—the defendant's kindness to
others and love and affection towards his family (given some
weight); (5) that defendant's demeanor at trial was good (given
some weight); (6) the length of sentence defendant could receive
if not sentenced to death (found not to be mitigating and
therefore given no weight); and (7) lingering or residual doubt
as to defendant's guilt (found not to be mitigating and therefore
given no weight)
3

raised thirteen claims.3

Dennis v. State, 109 So.3d 680 (Fla.

2012). The Florida Supreme Court affirmed the convictions and
sentence.
In November 2003, Mr. Dennis filed a motion for postconviction
relief. On October 7, 2004, the trial judge entered an order
denying all of Mr. Dennis’s claims. However, this order did not
include the reason for the denial or any findings of fact. On
November 15, 2004, the trial court issued an amended order. The
amended order still did not include findings of fact for all of Mr.
Dennis’s claims. On appeal, the Florida Supreme Court remanded the
case to the trial court for a new proceeding on Mr. Dennis’s
postconviction motion and dismissed his habeas petition without
prejudice.

Dennis v. State, 999 So.2d 644 (Fla. 2008).

Upon remand, the circuit judge allowed Mr. Dennis to file an

3

(1) the trial court failed to provide the jury with a
cautionary instruction on accomplices; (2) the State improperly
bolstered the credibility of several of its witnesses; (3) the
State improperly impeached its own witness, Watisha Wallace; (4)
the trial court erred in denying a motion to suppress the
identification of the car; (5) the trial court erred in allowing
the State to impeach its own witness, Jessie Pitts; (6) the trial
court erred in admitting collateral evidence that Dennis stalked,
threatened, and assaulted Lumpkins; (7) the trial court erred in
allowing the State to introduce evidence that Dennis had a
jealous character; (8) the trial court erred in admitting several
autopsy photographs; (9) the sentencing order provided an
inadequate basis for review in that it contained several factual
inaccuracies; (10) the trial court erred in finding the CCP
aggravator; (11) the trial court erred in finding the HAC
aggravator; (12) the trial court erred in giving little or no
weight to the extreme mental or emotional disturbance mitigator;
and (13) the death sentence is not proportionate because this was
a crime of passion.
4

amendment to his postconviction motion, an amendment which included
two new claims. A Huff hearing4 was held on May 11, 2009.

On June

12, 2009, without holding an evidentiary hearing, the trial court
entered an order denying postconviction relief.
On appeal, the Florida Supreme Court again remanded the case
for the trial court to hold an evidentiary hearing on two claims.
Specifically, the court ordered the trial court to conduct an
evidentiary hearing on Mr. Dennis’s claims that:
ineffective
mitigation

for

failing

evidence

at

to
the

investigate
penalty

and

(1) counsel was

phase;

and

present
(2)

further

the

State

violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to
disclose the assistant state attorney’s memo to Dr. Rao, the
medical examiner who testified during the penalty phase.

After

holding an evidentiary hearing, the trial court denied these
claims.
Mr.

Dennis

appealed

to

the

Florida

Supreme

Court

and

petitioned for a writ of habeas corpus. Mr. Dennis asserted ten
claims for postconviction relief5 and four claims for state habeas

4

Huff v. State, 622 So.2d 982, 983 (Fla. 1993) (requiring a
hearing upon the filing of a postconviction motion and answer to
determine whether an evidentiary hearing is needed and to hear
argument on legal issues).
5

(1) ineffective assistance during the guilt phase; (2)
ineffective assistance during the penalty phase; (3) Brady claim;
(4) alleged conflict of interest; (5) improper comments and
improper examination of witnesses; (6) Florida bar rules for
interviewing jurors; and (7) error in denying public records
requests; (8)newly discovered evidence; (9) Florida’s lethal
5

relief.6

The Florida Supreme Court affirmed the denial of Mr.

Dennis’s postconviction motion and denied habeas relief. Dennis,
109 So.3d at 704. Rehearing was denied on March 8, 2013.
On March 26, 2013, Mr. Dennis filed his federal Petition (DE
1) for a writ of habeas corpus asserting six claims.

This matter

is now ripe. The State has not argued that the Petition was
untimely. The Court will review the merit of his claims.
III. STANDARD OF REVIEW
Mr. Dennis’s habeas corpus Petition is governed by the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
104-132, 110 Stat. 1214 (1996) (codified at various provisions in
Title 28

of

the U.S.

Code),

which

significantly

changed

the

standards of review that federal courts apply in habeas corpus
proceedings.

Under the AEDPA, if a claim was adjudicated on the

merits in state court, habeas corpus relief can only be granted if
the state court’s adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the
United States,” or “resulted in a decision that was based on an

injection statute and procedure is unconstitutional; and (10)
insufficient evidence
6

Ineffective assistance of appellate counsel for failing
to:(1)raise claims regarding improper testimony; (2) raise claims
regarding juror interactions and judicial bias; (3)argue error in
admission of Dr. Rao’s testimony; and (4)raise Mr. Dennis’s
absence from pretrial hearings.
6

unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.”
(2)(2014).

28 U.S.C. § 2254(d)(1)-

This is an “exacting standard.”

Maharaj v. Sec’y,

Dept. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
Pursuant to § 2254(d)(1), a state court decision is “contrary
to” Supreme Court precedent if it “arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law” or
“confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at [an] [opposite]
result.”

Williams v. Taylor, 529 U.S. 362, 405 (2000) (opinion of

O’Connor, J., for a majority of the Court).

In other words, the

“contrary to” prong means that “the state court’s decision must be
substantially

different

Supreme] Court.”

from

the

relevant

precedent

of

[the

Id.

With respect to the “unreasonable application” prong of §
2254(d)(1), which applies when a state court identifies the correct
legal principle but purportedly applies it incorrectly to the facts
before it, a federal habeas court “should ask whether the state
court’s

application

of

clearly

objectively unreasonable.”

established

federal

law

was

Id. at 409; see also Wiggins v. Smith,

539 U.S. 510, 520-21 (2003).

Significantly, an “objectively

unreasonable application of federal law is different from an
incorrect application of federal law.”
U.S. 19, 24-25 (2002).

Woodford v. Visciotti, 537

An “unreasonable application” can also

7

occur if a state court “unreasonably extends, or unreasonably
declines to extend, a legal principle from Supreme Court case law
to a new context.”

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.

2001).
As noted above, § 2254(d)(2) provides an alternative avenue
for relief.

Habeas relief may be granted if the state court’s

determination of the facts was unreasonable.

“A state court’s

determination of the facts, however, is entitled to deference”
under § 2254(e)(1). See Maharaj, 432 F.3d at 1309. This means that
a federal habeas court must presume that findings of fact by a
state court are correct, and a habeas petitioner must rebut that
presumption by clear and convincing evidence. See Hunter v. Sec’y,
Dept. of Corr., 395 F.3d 1196, 1200 (11th Cir. 2005).
Finally, where a federal court would “deny relief under a de
novo review standard, relief must be denied under the much narrower
AEDPA standard.”

Jefferson v. Fountain, 382 F.3d 1286, 1295 n.5

(11th Cir. 2004).

Even if the Court believed the Florida Supreme

Court’s determination to be an incorrect one, under AEDPA deference
that alone is not enough to grant habeas relief, the Court must
also find that “there is no possibility fair-minded jurists could
disagree that the state court’s decision conflicts with [United
States Supreme Court] precedents.”
86, 102 (2011).

Harrison v. Richter, 562 U.S.

In other words, as a condition for obtaining

habeas corpus from a federal court, a state prisoner must show that
8

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. See id.
IV. ANALYSIS
Mr. Dennis asserts six claims for federal habeas relief.
First, he contends that his penalty phase counsel was ineffective.
Second, Mr. Dennis argues that the State withheld evidence in
violation of his rights as established in Brady v. Maryland. Third,
Mr. Dennis asserts that the trial court erred in denying a motion
to exclude witness testimony regarding the car seen at the time of
the murders because the police investigation was unduly suggestive.
Fourth, he contends that his due process rights were violated by
trial court error which cumulatively amounted to constitutional
error.

Fifth, Mr. Dennis argues that he was denied the effective

assistance

of

counsel

during

the

guilt

phase

of

his

trial.

Finally, Mr. Dennis asserts a claim for ineffective assistance of
appellate counsel.
A. Ineffective Assistance of Penalty Phase Counsel
Mr. Dennis’s first claim for federal habeas relief is that his
counsel rendered a deficient performance during the penalty phase
of

his

trial

because

counsel

“made

a

‘less

than

complete

investigation’ and that his omissions were the result of either no
strategic decision at all, or of a ‘strategic decision’ that was

9

itself unreasonable, being based on an inadequate investigation.”
DE 1 at 46.

Mr. Dennis also argues that this deficient performance

prejudiced him because the jury never heard substantial mitigating
evidence

“including

abandonment

by

his

the

deprivation

mother,

the

he

suffered

poverty

he

due

to

endured,

the
the

posttraumatic stress disorder resulting from having grown up in an
environment rife with drugs, prostitution, and violence which he
had witnessed.”

DE 1 at 60.

Mr. Dennis contends that “[h]aving

this new information before it, Mr. Dennis’s jury could certainly
have considered it significantly mitigating.”

Id. at 69.

Mr.

Dennis asserts that the Florida Supreme Court unreasonably applied
clearly established federal law because it conducted a “flawed” and
“truncated” prejudice analysis which was rejected by the United
States Supreme Court in Porter v. McCollum, 558 U.S. 30 (2009).
In order to meet the standard for federal habeas relief, Mr.
Dennis must show that the Florida Supreme Court’s determination
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States,” or “resulted
in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding.”

28 U.S.C. § 2254(d)(1)-(2).

this high standard.

Mr. Dennis has not met

The record reflects that the state court’s

determination that Mr. Dennis failed to show prejudice was not

10

unreasonable.
The Strickland Standard
Mr. Dennis’s claims are governed by Strickland v. Washington,
466

U.S.

668

(1984).

These

claims

are

deferential standards of the AEDPA.

also

governed

by

the

In Strickland, the United

States Supreme Court set forth the two-prong test that a convicted
defendant must meet to demonstrate that his or her counsel rendered
ineffective
counsel’s

assistance.

First,

representation

fell

a

defendant

below

an

“must

objective

reasonableness under prevailing professional norms.”
466 U.S. at 688.
reasonable

show

that

standard

of

Strickland,

Second, a defendant “must show that there is a

probability

that,

but

for

counsel’s

unprofessional

errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

The Court defines a “reasonable

probability” as one “sufficient to undermine confidence in the
outcome.”

Id.

“It is not enough for the defendant to show that

the errors had some conceivable effect on the outcome of the
proceeding.”
established

Id. at 693.
federal

law

There is no dispute that the clearly
applicable

here

is

Strickland

Washington.
In Strickland, this Court made clear that “the purpose of
the effective assistance guarantee of the Sixth Amendment
is not to improve the quality of legal representation ...
[but] simply to ensure that criminal defendants receive
a fair trial.” 466 U.S., at 689, 104 S.Ct. 2052. Thus,
“[t]he benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the
11

v.

trial cannot be relied on as having produced a just
result.” Id., at 686, 104 S.Ct. 2052 (emphasis added).
The Court acknowledged that “[t]here are countless ways
to provide effective assistance in any given case,” and
that “[e]ven the best criminal defense attorneys would
not defend a particular client in the same way.” Id., at
689, 104 S.Ct. 2052.
Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011).
reviews

Mr.

federal law

Dennis’s
of

claims

Strickland

applying

and

its

the

The Court

clearly

progeny while

established
also

giving

deference to the state court’s decisions as required by the AEDPA.
i. Penalty Phase Testimony
At

the

penalty

phase

of

Mr.

Dennis’s

trial,

the

State

presented five witnesses during its case in chief: (1) Charlie
Postell, Marlin Barnes’s mother; (2) Earl Lee, Marlin Barnes’s best
friend and roommate at the University of Miami; (3) Dwayne Lee,
Timwanika Lumpkins’ father, (4) Chaka Khan Dekeisha Williams,
Timwanika Lumpkins’ best friend; and (5) Dr. Valerie Rao, associate
medical examiner for Miami-Dade County. DE 13-147, DE 13-148. The
friends and family testified about the impact the death of each
victim has had on their lives and the lives of their families.
The

defense

then

presented

three

witnesses:

(1)

Elaine

Williams, Mr. Dennis’s mother; (2) Annie Siplin, Mr. Dennis’s
maternal grandmother; (3) Virginia Dennis, Mr. Dennis’s paternal
grandmother.

DE 13-149.

Mr. Dennis’s witnesses all testified

about essentially the same things which were that his parents had
not been married, his mother was a teenager when he was born, he

12

graduated high school and went to college on a football scholarship
but left before he graduated to pursue a career in rap music.

The

witnesses testified that Mr. Dennis’s career in the music industry
had some mild success until the group disbanded and then Mr. Dennis
became otherwise employed in the local community.

They also

testified that Mr. Dennis had a loving relationship with his three
children, had not been in trouble with the law before, and did not
take drugs or abuse alcohol.

All three witnesses’ testimony

comprised a mere fifteen pages of the trial transcript.

DE 13-149

at 55-70.
The

State

presented

two

rebuttal

witnesses:

(1)

Patrick

McKeithan, Timwanika Lumpkins’s uncle; and (2) Katina Lynn, a
former girlfriend of Mr. Dennis.

DE 13-149.

Both witnesses

testified as to violent altercations that they had with Mr. Dennis
wherein he had threatened them with a gun.
At the Spencer hearing,7 neither side presented any additional
testimony. Counsel for Mr. Dennis gave argument as to why his
client should be spared the death penalty.

Mr. Dennis did not

testify.
The trial court adopted the sentencing recommendation of the
jury and sentenced Mr. Dennis to death.
affirmed on direct appeal.

The Florida Supreme Court

During postconviction, Mr. Dennis

contended that his counsel was ineffective during the penalty

7

Spencer v. State, 615 So.2d 688 (Fla. 1993).
13

phase. The trial court summarily denied the claim, but the Florida
Supreme Court ordered the trial court to conduct an evidentiary
hearing.

The testimony is summarized below.
ii. Postconviction Testimony

Mr. Dennis first called Ronald Guralnick, Esq., to the stand.
DE 13-238 at 21.

Mr. Guralnick represented Mr. Dennis at both the

guilt and penalty phases of trial. Mr. Guralnick testified that he
did

not

hire

a

second

chair

attorney

because

“[i]t

was

not

mandatorilly [sic] required and I thought I was perfectly capable
of doing both.”

Id. at 34.

Mr. Guralnick also testified that he

did not retain or seek the assistance of a mental health expert
because he did not have any indication that Mr. Dennis had mental
health issues.
Next, the defense called Dr. Sherrie Bourg Carter.
at 36.
Bourg

Dr. Bourg Carter is a licensed psychologist.
Carter

evaluated

Mr.

Dennis.

She

conducted

DE 13-240

In 2003, Dr.
a

clinical

interview, mental status examination and a penalty phase interview.
Dr. Bourg Carter also reviewed Mr. Dennis’s public school records,
employment records and department of corrections records. She also
performed

three

tests;

the

MMPI,

Posttraumatic Stress, and the PCL-R.

the

Detail

Id. at 63.

Assessment

Dr. Bourg Carter

ultimately diagnosed Mr. Dennis with “mild posttraumatic stress.”
Id. at 70.

Dr. Bourg Carter concluded that Mr. Dennis did not meet

the criteria for statutory mitigation but that he would have

14

established posttraumatic stress disorder and a history of exposure
to

violence

in

his

community

as

a

child

as

non-statutory

mitigation.
Mr. Dennis also called his maternal grandmother, Annie Siplin,
to the stand.

DE 13-241 at 73.

She testified to the type of

community where Mr. Dennis grew up and the circumstances in which
he was raised.

She also testified that she met with trial counsel

on three occasions.

Ms. Siplin testified that Mr. Guralnick never

asked her any questions about Mr. Dennis’s childhood, relationship
with his parents, or any other questions about possible mitigation.
Ms. Siplin also testified that trial counsel never told her that
her grandson was facing the death penalty.
Thereafter, Mr. Dennis’s mother, Elaine Williams, testified.
DE 13-242 at 32. Ms. Williams recounted her substance abuse issues
and use of cocaine and alcohol during Mr. Dennis’s youth. She also
testified that she only met with trial counsel twice during his
representation of her son.

Ms. Williams testified that she was

never asked about the neighborhood, the circumstances of his
childhood, or her drug and alcohol abuse.
Similar to

Ms.

Siplin,

Ms.

Williams

also

DE 13-243 at 11.
testified

that Mr.

Guralnick did not advise her that Mr. Dennis was facing the death
penalty.
Mr.

Dennis’s

testified.

paternal

grandmother,

DE 13-243 at 26.

Virginia

Dennis,

also

Ms. Dennis testified that her

15

grandson came to live with her when he was two weeks old.

She also

testified that Mr. Dennis’s mother would occasionally come to pick
him

up

and

would

appear

to

be

under

the

influence

of

some

substance. Ms. Dennis remembered meeting with trial counsel on two
occasions.

However, she testified that Mr. Guralnick did not tell

her that Mr. Dennis was facing the death penalty if he was
convicted.
Finally, the defense presented Marvin Dunn, PhD, as an expert
in community and school psychology.

DE 13-243 at 52.

Dr. Dunn had

interviewed Mr. Dennis, his mother, grandmothers and father in
2004.

Dr. Dunn re-interviewed Ms. Williams and Ms. Siplin within

a month of the hearing.

Dr. Dunn testified that given the level of

dysfunction at home that Mr. Dennis “basically raised himself.”
Id. at 73.

Dr. Dunn testified that children who are consciously

abandoned “tend never to get over that sort of abandonment.”

DE

13-245 at 10.
The State presented the testimony of Enrique M. Suarez, PhD.
DE

13-246

at

27.

Dr.

Suarez

reviewed

the

educational

and

employment records of Mr. Dennis, as well as certain transcripts of
testimony of the defense experts, police reports, and conducted a
clinical interview of Mr. Dennis.

Id. at 59.

Dr. Suarez also

administered the MMPI exam and reviewed the results of the PTSD
exam which had been conducted by the defense expert in 2003.

Dr.

Suarez testified that Mr. Dennis did not score a likelihood for the

16

presence of PTSD.

In sum, Dr. Suarez testified that Mr. Dennis

does not suffer from posttraumatic stress disorder.

After the

conclusion of the evidentiary hearing, the trial court denied the
claim.
iii.

The State Court’s Decision

On appeal, the Florida Supreme Court affirmed the finding that
Mr. Dennis failed to show prejudice.
Dennis did not meet his burden of demonstrating
prejudice. During the evidentiary hearing after the
second remand, Dennis presented evidence of an upbringing
in poor and violent neighborhoods primarily with two
different grandmothers as well as expert testimony
establishing that this upbringing would have left him
feeling isolated, abandoned, and desensitized to
violence. However, the testimony also demonstrated that
the family that raised him loved him and did not abuse
him. Furthermore, while there was conflicting mental
health evidence that he suffered from post-traumatic
stress disorder, even the evidence supporting the
presence of this disorder demonstrated that the disorder
was mild and in partial remission. Thus, considering the
evidence presented during the evidentiary hearing as well
as the evidence presented during the penalty phase, the
mitigating circumstances would not have outweighed the
four aggravating circumstances present in this case,
namely HAC, CCP, during the course of a burglary, and
conviction of a capital felony. See Porter, 130 S.Ct. at
453–54; Breedlove v. State, 692 So.2d 874, 878 (Fla.
1997). Therefore, confidence in the outcome of the
penalty phase is not undermined.
Dennis v. State, 109, So.3d 680, 695-96 (Fla. 2012).

As the

Florida Supreme Court reached the merits of this claim, the Court
must

deny

habeas

relief

unless

the

Florida

Supreme

Court’s

determination resulted in a decision that was contrary to, or
involved

an

unreasonable

application

17

of,

clearly

established

federal law or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.

In other words, Mr.

Dennis must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.
The Court has reviewed the evidence presented at both the
penalty phase and the evidentiary hearing and finds that the
Florida

Supreme

reasonable.

Court’s

prejudice

analysis

was

more

than

It is true that there was evidence presented at the

evidentiary hearing which was not presented during the penalty
phase.

However, when re-weighing the postconviction evidence in

conjunction with the testimony from the penalty phase of trial
against the heavily weighted aggravation in this case, the Court
does not find it unreasonable for the Florida Supreme Court to have
found that prejudice was not demonstrated.

Mr. Dennis offered a

troubled upbringing in a poor and crime ridden neighborhood; yet,
he did not fall into drug or alcohol abuse.

Mr. Dennis also earned

a

enjoyed

football

scholarship

to

college

and

successful career in the music industry.

a

moderately

Even his own expert

testified that he only exhibited a mild form of posttraumatic
stress

disorder.

aggravating

Considering

factors

including

that
that

the
the

State

established

crimes

were

four

heinous,

atrocious, and cruel, and committed in a cold, calculated, and

18

premeditated

manner,

the

Court

does

not

find

the

prejudice

determination of the Florida Supreme Court unreasonable.

Habeas

relief must be denied.
B. Violation of Brady v. Maryland
Mr. Dennis’s second claim for federal habeas relief is that
the State of Florida violated his rights under Brady v. Maryland,
373 U.S. 83 (1963).

DE 1 at 69.

The substance of his claim is

that “the State was in possession of a memorandum it sent to Dr.
Rao, prepared as an ‘outline of the medical testimony we need to
present to the jury in the upcoming death penalty proceedings’” but
did not turn this document over to the defense.

Id. at 70.

Mr.

Dennis argues that had he been in possession of this memo, he would
have

been

able

to

impeach

the

testimony

and

challenge

the

credibility and opinions of Dr. Rao when she testified during the
penalty phase of his trial.
The precursor to this claim is that the medical examiner, Dr.
Sam P. Gulino, who had performed the autopsies on the two victims
and who had testified during the guilt phase of the trial was no
longer available when the penalty phase began. DE 13-149 at 11.
Therefore, the State put on the testimony of Dr. Valerie Rao, who
was an associate medical examiner for Miami-Dade County.

Counsel

for Mr. Dennis objected to her testimony on the grounds that
another medical examiner’s report is hearsay.

The State argued

that “[s]he has read through the trial transcript of Dr. Guilno.

19

She has prepared by reading the medical examiner protocols, as well
as seen information. She’s intimately familiar with all aspects of
this case.” Id. at 12-13.

The objection was overruled and Dr. Rao

testified.
In response to a postconviction public records request, the
State produced a memorandum from Joshua Weintraub, Assistant State
Attorney, to Dr. Rao outlining “the medical testimony we need to
present to the jury in the upcoming death penalty proceedings.” DE
13-232 at 50.

This memorandum is the subject of the instant claim.

Mr. Dennis asserts that this memorandum “went well beyond mere
witness preparation.”

DE 1 at 71.

Mr. Dennis argues that “[w]hen

Dr. Rao’s testimony is considered under all the circumstances – and compared in detail to Dr. Gulino’s testimony - - it is apparent
that the memo is tantamount to witness coaching.”

Id.

Here, the Florida Supreme Court declined to analyze whether or
not this evidence was favorable or even suppressed by the State
because the court found that it was not material.
So.3d

at

697.

As

such,

determination either.

the

Court

declines

See Dennis, 109
to

make

such

a

It is the Court’s duty to first review the

Florida Supreme Court’s application of clearly established federal
law to the facts of the case for reasonableness.

The facts show as

follows:
i.

Guilt Phase

At trial, the State presented the testimony of Dr. Sam Gulino.

20

DE 13-135 at 13.

Dr. Gulino performed the autopsies on both

victims in this case and surveyed the crime scene.

Dr. Gulino

authenticated the autopsy photographs of the victim’s injuries,
which were published to the jury. He described victim Timwanika
Lumpkins as having multiple lacerations to her scalp and ear and
skull fractures, resulting in the bone lacerating the brain.

Id.

at 46-47. Dr. Gulino testified that these injuries were the result
of being struck with a great amount of force by a shotgun.

He

testified that the level of force present was “normally the type
that you would see in fatal highway speed motor vehicle accidents.”
Id. at 51.

Dr. Gulino further testified that several of Ms.

Lumpkins synthetic nails had been broken off and there was bruising
on her hands consistent with defensive wounds. Id. at 63-66.

When

asked if Ms. Lumpkins knew that she was being beaten to death Mr.
Gulino responded “I can’t say that she would know she was being
beaten to death.

She would know she was being beaten as indicated

by the fact she has defensive wounds on her hands.” Id. at 66-67.
Dr. Gulino also conducted the autopsy of victim Marlin Barnes.
He testified that Mr. Barnes had “multiple lacerations and bruises
all over the face and forehead, on both cheeks, and on the lower
lip, bruising on both cheeks and around the eyes.”

Id. at 68.

Dr.

Gulino testified that Mr. Barnes’s wounds were consistent with
having been beaten with a trigger guard from a shotgun. Mr. Barnes
also suffered multiple lacerations to his lip and several teeth

21

were “broken and missing.”

Id. at 74.

Dr. Gulino testified that

Mr. Barnes had injuries to both his forearms and hands consistent
with defensive wounds.

Mr. Barnes sustained injuries that caused

hemorrhaging around the eyes and the tissue inside the eyeballs
such that he was likely blinded during the assault.

Dr. Gulino

testified that Mr. Barnes would have been aware as to what was
happening to him.
Likewise, Mr. Barnes’s roommate, Earl Little, testified that
Mr. Barnes was alive when he first arrived at the apartment.

Mr.

Little said that Mr. Barnes responded “a little bit” when he called
out his name and that he could hear Mr. Barnes “breathing hard.”
DE 13-115 at 60.

Mr. Little testified that Mr. Barnes turned his

head “just enough for me to see his face.”

Id. at 62.

The record

further shows that Ms. Lumpkins was still alive when she was
transported to Jackson Memorial Hospital before she was later
pronounced dead.
ii.

Penalty Phase

At the penalty phase, the State called Dr. Valerie Rao,
assistant medical examiner, Miami-Dade County.

DE 13-149 at 8.

Dr. Rao testified that the victim’s defensive wounds were evidence
of the victims’ consciousness during the time when they were being
attacked. Dr. Rao testified that Ms. Lumpkins was likely conscious
until she suffered a hinge fracture at the base of her skull which
“is so lethal that she would not be able to respond by trying to

22

shield herself.”

DE 13-149 at 19. Dr. Rao also testified that Ms.

Lumpkins would have had the ability to hear what was taking place
prior to her suffering the hinge fracture.

When asked about the

level of pain that Ms. Lumpkins must have experienced, Dr. Rao
responded that “you look at what this girl suffered while she was
aware of what was going on, she suffered a remarkable degree of
pain.”

Id. at 22.

Unlike Dr. Gulino, Dr. Rao testified that Ms.

Lumpkins “probably had a good idea that she was going to die.”
13-149 at 24.

DE

Dr. Rao also testified that, based on his defensive

wounds, Mr. Barnes suffered a similar amount of pain to that
suffered by Ms. Lumpkins.

Dr. Rao described Mr. Barnes’s pain as

“fairly marked,” based on the degree of the bleeding.

Id. at 25.

Dr. Rao testified that Mr. Barnes would have been able “to hear
cries of pain or anguish coming from a back bedroom” while he would
have attempted to get up and render aid.
Rao

testified

that

Mr.

Barnes

would

Id. at 27.
have

been

Further, Dr.
aware

of

his

surroundings until he lost consciousness and would have been able
to feel pain.

While still conscious, Mr. Barnes would have been

able to hear “cries or moaning from a back bedroom.”

Id. at 30.

Dr. Rao ascribed a 98 percent certainty to her testimony as to
these facts.
iii. the State Court Decision
Mr. Dennis raised this claim in his Rule 3.851 motion. The
trial court

denied

the

claim,

and

23

the Florida

Supreme Court

affirmed.
Here, Dennis’ argument regarding prejudice centers upon
the possibility of using the memo to impeach Dr. Rao's
penalty phase testimony, which Dennis argues was
improperly inflammatory and coached in support of the HAC
aggravator. However, other evidence supporting HAC would
not have been affected by this impeachment. For instance,
it is undisputed that both victims in this case died as
a result of brutal beatings and that both sustained
defensive wounds. Dr. Gulino testified to those facts.
Dr. Gulino also testified that the victims remained
conscious and possibly heard the attacks on each other.
Earl Little testified that Barnes was alive when Little
entered the apartment. Furthermore, a police officer
testified that Lumpkins was alive when he arrived at the
apartment.
In fact, on direct appeal, this Court upheld the trial
court's finding of the HAC aggravator based upon Dr.
Gulino's and Toby Wolson's guilt phase testimony, not Dr.
Rao's penalty phase testimony. Specifically, this Court
stated:
Both victims in this case suffered horrid injuries. The
medical examiner, Dr. Gulino, testified that both
victims suffered skull fractures as a result of the
brutal beating they endured. Moreover, the evidence
supports the trial court's finding that the victims
were conscious for at least part of the attack as they
had defensive wounds to their hands and forearms.
Further, the State's blood stain pattern expert, Toby
Wolson, testified that the bloodiness of the crime
scene and the patterns of the blood stains strewn about
the apartment supported the conclusion that Barnes got
to his feet and struggled about the room after Dennis
had already left. Accordingly, we find no error in the
trial court's application of the HAC aggravator.
Dennis, 817 So.2d at 766. Similarly, when this Court
upheld the CCP aggravator, it did not do so based upon
Dr. Rao's testimony during the penalty phase. See id. at
766 (“There is substantial evidence in the record
supporting the trial court's finding of the CCP
aggravator. In addition to the record evidence recited in
the trial court's sentencing order, Stewart testified
that Dennis told him, ‘Don't worry about it. Nobody would
think to come here. I just had to do what I had to do and
24

I didn't even go in my car.’”). Confidence in the outcome
of the penalty phase is not undermined. As a result,
Dennis cannot demonstrate the materiality prong of Brady.
Dennis, 109 So.3d at 696-97.

The first step for the Court is to

review the opinion of the Florida Supreme Court to determine if it
applied the clearly established federal law that is applicable to
Mr. Dennis’s claim.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
established three criteria a criminal defendant must prove in order
to

establish

a

violation

of

due

process

resulting

from

the

prosecution’s withholding of evidence. Specifically, the defendant
alleging

a

Brady

violation

must

demonstrate:

(1)

that

the

prosecution suppressed evidence, (2) that the evidence suppressed
was favorable to the defendant or exculpatory, and (3) that the
evidence suppressed was material.
F.2d 1556, 1558 (11th Cir. 1986).

United States v. Severdija, 790
Evidence is material “only if

there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” United States v. Stewart, 820 F.2d 370, 374 (11th
Cir. 1987) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)).

This was the standard applied by the Florida Supreme

Court to the facts of Mr. Dennis’s claim.

In doing so, the court

found that Mr. Dennis had failed to show materiality.
In order to establish materiality under Brady, Mr. Dennis must
show a reasonable probability that, had the suppressed evidence

25

been disclosed, the jury would have reached a different result.

A

reasonable probability is a “probability sufficient to undermine
confidence

in

the

outcome.”

See

Strickler,

527

U.S.

at

290.

Without establishing that essential fact, Mr. Dennis cannot prevail
on

this

claim.

The

Supreme

Court

has

explained

that

the

“touchstone of materiality is a ‘reasonable probability’ of a
different result . . . . The question is not whether the defendant
would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995).

Moreover, materiality

“is not a sufficiency of evidence test. A defendant need not
demonstrate that after discounting the inculpatory evidence in
light of the undisclosed evidence, there would not have been enough
left to convict.”

Id. at 434-35.

Materiality is to be evaluated

in light of the cumulative effect of the undisclosed evidence. See
id. at 436.
The

Under this standard, Mr. Dennis’s claim fails.

Florida

Supreme

Court

did

not

make

an

unreasonable

determination of fact based on the record before it.

As the court

found, there was a multitude of evidence presented during the guilt
phase which would have supported both the HAC and CCP statutory
aggravators

found

by

the

trial

judge.

Aside

from

the

direct

testimony of Dr. Gulino and Earl Little, the State introduced a
vast quantity of crime scene and autopsy photos which clearly

26

illustrated the brutal death suffered by each of the victims.
Indeed, common sense would dictate that the jurors would have
deduced from the physical evidence alone that this was a heinous,
atrocious, and cruel crime.
Moreover, the Florida Supreme Court identified citations in
both the trial court’s sentencing order and its own opinion on
direct appeal that showed that those two aggravators were supported
by testimony other than Dr. Rao’s.

As such, being able to impeach

Dr.

State’s

Rao’s

credibility

with

the

memorandum

does

not

establish “a reasonable probability that had this evidence [the
memorandum] been disclosed to the defense, the result of the
proceeding would have been different.”
Bagley,

473

U.S.

667,

678

(1985)

See United States v.
(recognizing

that

“a

constitutional error occurs, and the conviction must be reversed,
only if the evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial”).
Supreme Court’s determination was not unreasonable.

The Florida
Habeas relief

is denied.
C.

Trial Court Error in Admission of Testimony

Mr. Dennis’s third claim for federal habeas relief is that the
trial court erred when it denied a defense motion to exclude an
unreliable identification of the car seen near the nightclub where
the victims were before they were murdered.

DE 1 at 80.

Mr.

Dennis asserts that the Florida Supreme Court made a “patently

27

unreasonable

determination

of

the

facts

given

the

evidence

presented at trial” when it found that the witness’s initial
description of the car was “fairly accurate.”

Id. at 83.

Dennis does

not

Florida

Supreme

application

of

argues

that

take
the

issue
law;

with

rather,

the
he

Court’s

the

misinterpreted the facts when applying them to the law.

Mr.

court

The State

asserts that Mr. Dennis’s claim is different from most unduly
suggestive identifications because the challenge was not to the
identification of a person but the identification of a car.

The

State argues that, since the United States Supreme Court has not
addressed the issue, then the Florida Supreme Court’s determination
cannot

be

an

unreasonable

application

of

clearly

established

federal law as there is no clearly established federal law on
point.

However, as Mr. Dennis has not asserted an unreasonable

application of law but contends that the Florida Supreme Court made
an

unreasonable

determination

of

the

facts,

the

Court

first

considers this contention.
On

direct

appeal,

the

Florida

Supreme

Court

found

following:
At trial, El–Djeije testified that she worked as an
attendant at a Miami Beach Amoco station near Club
Salvation on the night of April 12, 1996, until 8:30 a.m.
the following morning. That night, El–Djeije called
police when she became suspicious of a black man dressed
entirely in black wearing a hooded sweatshirt standing
next to a Nissan parked at the station. In that call, the
tape of which was introduced at trial, El–Djeije
described the vehicle as a gray four-door 1986 or 1987
Nissan. Although not on the aforementioned tape,
28

the

El–Djeije observed that the car did not have a license
plate. Following the discovery of the bodies, Detective
Juan Sanchez of the Miami–Dade Police Department met with
El–Djeije at the gas station and showed her a photograph
of Dennis’ car, a Mazda Protégé. El–Djeije told Sanchez
that she did not recognize the Mazda and informed him
that the car she saw was a Nissan. Several weeks later
Sanchez returned to the gas station and showed her a
picture of Wallace's Nissan Sentra. According to Sanchez,
El–Djeije identified Wallace's car without hesitation.
Dennis argues that this procedure was unduly suggestive.
We disagree. A two-pronged test is used to determine
whether suppression of an out-of-court identification is
warranted: “(1) did the police use an unnecessarily
suggestive
procedure
to
obtain
the
out-of-court
identification; (2) and if so, considering all the
circumstances, did the suggestive procedure give rise to
a
substantial
likelihood
of
irreparable
misidentification.” Thomas v. State, 748 So.2d 970, 981
(Fla. 1999). The factors to be considered in the
determination of whether the identification of the
vehicle was reliable are all comparable to factors
considered in a witness's identification of a suspect:
[T]he opportunity of the witness to view the
criminal at the time of the crime, the witness'
degree of attention, the accuracy of the witness'
prior description of the criminal, the level of
certainty demonstrated by the witness at the
confrontation, and the length of time between the
crime and the confrontation.
Pittman v. State, 646 So.2d 167, 171 (Fla. 1994) (quoting
Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972)).
Although the State argues that there is no support to
apply the aforementioned analysis to the identification
of physical evidence, this Court in Pittman applied the
aforementioned analysis to physical evidence.
In Pittman, the defendant claimed error in the court's
admission of the out-of-court identification of the
defendant's wrecker. Pittman was convicted of murdering
three members of his estranged wife's family in their
home and burning the home thereafter. On the morning of
the fire a construction worker noticed a car belonging to
29

one of the victims in a ditch near his job site and
observed a homemade wrecker approach the car. Shortly
thereafter he observed a cloud of smoke coming from the
car's direction. Later that evening the police drove the
witness to Pittman's home to observe Pittman's wrecker.
The witness was unable to recognize the wrecker as it had
been disassembled. After the police reassembled the
wrecker, the police brought the witness back to Pittman's
home and the witness positively identified the wrecker.
Another witness, who had observed a homemade wrecker in
the early morning hours following the murders, identified
Pittman's wrecker weeks later from a photo-pak that
consisted solely of photographs of Pittman's wrecker.
In rejecting Pittman's claim we explained: “We have
reviewed the record and find that, under the facts of
this case, none of the identifications described above
were unduly suggestive under the NeilFN7 test. The first
and second witnesses had a sufficient opportunity to view
the wrecker and had given fairly accurate descriptions
before the in-person identification.” We conclude
similarly here.
FN7. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972).
El–Djeije's initial description of Wallace's car was
fairly accurate. She accurately described the color and
make of the car. Moreover, she observed that the vehicle
did not have a license plate in the place where one would
be typically displayed. The discrepancies in El–Djeije's
description were the proper subject of cross-examination,
but not sufficient to amount to a bar to admissibility.
Dennis, 817 So.2d at 760-61.

Here, the court found that the

witness’s initial description (before the unduly suggestive photo
identification) of the car was “fairly accurate.” Mr. Dennis
asserts that this was a “patently unreasonable determination of the
facts given the evidence presented at trial.”

DE 1 at 83.

The

State denies this and asserts that the Florida Supreme Court’s
interpretation of the facts are entitled to a presumption of

30

correctness which must be rebutted by clear and convincing evidence
without

first

determination.8

considering

the

reasonableness

of

the

factual

DE 10 at 168.

The standard of review here calls into question the interplay
between and the application of § 2254(d)(2) and § 2254(e). The
United State Supreme Court has twice rejected the opportunity to
specifically address this issue.
AEDPA instructs that, when a federal habeas
petitioner challenges the factual basis for a prior
state-court decision rejecting a claim, the federal
court may overturn the state court's decision only
if it was “based on an unreasonable determination
of the facts in light of the evidence presented in
the
State
court
proceeding.”
28
U.S.C.
§
2254(d)(2). The prisoner bears the burden of
rebutting the state court's factual findings “by
clear and convincing evidence.” § 2254(e)(1). We
have not defined the precise relationship between §
2254(d)(2) and § 2254(e)(1), and we need not do so
here. See Wood v. Allen, 558 U.S. 290, 293, 130
S.Ct. 841, 175 L.Ed.2d 738 (2010). For present
purposes, it is enough to reiterate “that a
state-court
factual
determination
is
not
unreasonable merely because the federal habeas
court would have reached a different conclusion in

8

The Court rejects the State’s interpretation of federal
law on this issue. Here, the State cites to Sumner v. Mata, 455
U.S. 539 (1981) and Gilliam v. Sec’y, Dep’t of Corr., 480 F.3d
1027 (11th Cir. 2007). Sumner is pre-AEDPA law. AEDPA changed
the standard of review for federal habeas petitions in 1996.
Moreover, the State takes the “presumption of correctness”
obligation and conflates it with the clear and convincing
evidence standard of 28 U.S.C. 2254(e) without consideration of
the reasonableness standard of 2254(d)(2).
This is not what
Gilliam says. Rather Gilliam stated that “[a]nd, for a writ to
issue because the state court made an ‘unreasonable determination
of the facts,’ the petitioner must rebut ‘the presumption of
correctness [of a state court's factual findings] by clear and
convincing evidence.’ 28 U.S.C. § 2254(e)(1).” 480 F.3d at 1032.
31

the first instance.” Id., at 301, 130 S.Ct. 841.
AEDPA likewise imposes a highly deferential
standard for reviewing claims of legal error by the
state courts: A writ of habeas corpus may issue
only if the state court's decision “was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined by”
this Court. § 2254(d)(1).
Burt v. Titlow, 134 S.Ct. 10, 15 (2013)(quoting Wood v. Allen, 558
U.S. 290 (2010)(“We granted certiorari to address the relationship
between §§ 2254(d)(2) and (e)(1).

We conclude, however, that the

state court's factual determination was reasonable even under
petitioner's reading of § 2254(d)(2), and therefore we need not
address that provision’s relationship to § 2254(e)(1).”)).
Here, the Court applies the analytic approach of the United
States Supreme Court and will first determine the reasonableness of
the

Florida

Supreme

Court’s

finding

that

Ms.

El-Djeije’s

description was “fairly accurate” before considering any rebuttal
by clear and convincing evidence.

The record shows the following:

Prior to trial, counsel for Mr. Dennis argued that the photo
identification of Mr. Dennis’s girlfriend’s car was the product of
an unduly suggestive line-up because the line-up consisted of only
one photo.

DE 13-50 at 19-26.

After argument, the court denied

the motion to exclude but advised counsel that he “can crossexamine extensively on it.”

Id. at 26.

At trial, the State called Nidia El-Djeije to testify. DE 13120 at 9.

Ms. El-Djeije was employed at Beach Amoco on the night

of the murders.

Beach Amoco is in front of a nightclub called
32

Salvation.

The victims had attended a party at that nightclub on

the night of the murder.

Ms. El-Djeije testified that she saw “a

gray Nissan parked next to [the] stop sign on the gas station
premises.”

Id. at 11.

She testified that there was a black man

wandering around the car.

At one point, she called the police and

reported that she thought this man was trying to steal the car. The
police had not arrived before this man began walking around the
parking lot and close to the gas station so Ms. El-Djeije called
the police again.

By the time the police had arrived, the Nissan

had left, but it returned later.

This time Ms. El-Djeije called

the towing company who typically removes unauthorized cars from the
Amoco property.

The tow truck driver spoke to the driver of the

Nissan and left. Ms. El-Djeije was unable to see inside the Nissan
because it had tinted windows.

Id. at 24.

At trial, Ms. El-Djeije testified that she knew the car was a
Nissan because she saw the emblem, and she noted that she did not
see a license plate “where your tag usually normally is installed.”
Id. at 25. Ms. El-Djeije testified that the following week the
police came and showed her a photograph of a gray Nissan and she
identified it as the car that she saw on the night in question.
However, on cross-examination, she testified that on the 911
calls regarding the car, she identified the car as a four door ‘86
or ‘87 Nissan.

Also, the 911 initial call did not reflect her

description that the car had no license plate, but Ms. El-Djeije

33

testified that she did advise the police of that fact during her
second 911 call.

Likewise, Ms. El-Djeije testified that she

advised the police about the missing license plate in her sworn
statement.

Id. at 46.

Afterwards, the State called Jose Rodriguez who was the tow
truck driver who spoke with the

driver of the Nissan.

Mr.

Rodriguez testified that the car he saw that night was a light
silver Nissan.

Id. at 53. He also testified that there is not a

vast difference between a ‘85 or ‘86 model and a model from the
early 90's.
Finally, Detective Juan Sanchez, who spoke with Ms. El-Djeije
regarding the car and the photo identification, testified.
121 at 22.

DE 13-

Detective Sanchez testified that Ms. El-Djeije made a

positive identification of Ms. Wallace’s Nissan as the car she saw
the night of the murder.
29.

She did so without hesitation.

Id. at

On cross-examination, Detective Sanchez testified that, while

Ms. El-Djeije did not mention that the vehicle she saw on the night
of the murder had any damage on the passenger side of the vehicle,
she also did not change her testimony regarding the car not having
a license plate.

Detective Sanchez testified that when Ms. El-

Djeije saw the photograph of the car taken during the day and it
did have a license plate in the tinted back window that she
understood why she did not think the car had a license plate.
at 33.

34

Id.

In order for the Court to grant Mr. Dennis habeas relief,

the

Court would have to find that the state court decision “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). More importantly, “a state-court factual determination
is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Burt v.
Titlow,

134

S.Ct.

at

15

(internal

quotation

marks

omitted).

Indeed, “even if reasonable minds reviewing the record might
disagree about the [fact] finding in question, on habeas review
that does not suffice to supersede the [state] trial court's
determination.”

Wood v. Allen, 558 U.S. 290, 301 (2010) (quoting

Rice v. Collins, 546 U.S. 333, 341–42 (2006))(alterations omitted).
Here,

the

record

reflects

that

Ms.

El-Djeije’s

initial

description included the accurate color of the car, the fact that
it was a Nissan made within a span of years where the body type had
not markedly changed, and that no license plate was in the space
where license plates are typically placed on automobiles.
that

this

description

unreasonable.

is

“fairly

accurate”

is

To find

certainly

not

Habeas relief is denied.

D. Cumulative Effect of Trial Court Errors
Mr. Dennis asserts that the trial court committed several
errors which cumulatively amounted to constitutional error and
deprived him of the rights guaranteed to him by the Sixth, Eighth,

35

and Fourteenth amendments to the Constitution.

Specifically, Mr.

Dennis contends that he was denied a fair trial and penalty phase
because of: (1) the State’s introduction of evidence that Mr.
Dennis’s girlfriend, Watisha Wallace, burned the car which the
State alleged had been used in the crimes; (2) the admission of
hearsay and opinions and the unsworn testimony of the prosecutor;
and (3) the trial court’s failure to instruct the jurors that they
should use great caution in relying on the testimony of a witness
who was involved in the crime.

Mr. Dennis asserts that “[t]he

Florida Supreme Court failed to view those claims cumulatively and
instead addressed them in a piecemeal fashion, finding no single
claim to, in and of itself, amount to a constitutional error.”
1 at 85.

DE

This claim suffers from multiple infirmities.
Exhaustion

First, the Court has reviewed Mr. Dennis’s initial brief to
the Florida Supreme Court on direct appeal.

There is a simple and

straightforward reason that the Florida Supreme Court did not
review Mr. Dennis’s claims for the cumulative effect of errors:
Mr. Dennis did not ask them to do so.

Therefore, any cumulative

effect of trial court error claim is unexhausted and procedurally
barred from review.
To exhaust state remedies, a petitioner must fairly present
every issue raised in his federal petition to the state’s highest
court.

Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis

36

added).

“When a petitioner fails to properly raise his federal

claims in state court, he deprives the State of ‘an opportunity to
address those claims in the first instance’ and frustrates the
State’s ability to honor his constitutional rights.” Cone v. Bell,
556 U.S. 449, 465 (2009)(internal citations omitted).
Ordinarily, a federal habeas corpus petition which contains
unexhausted claims is dismissed pursuant to Rose v. Lundy, 455 U.S.
509 (1982), allowing Mr. Dennis to return to the state forum to
present his unexhausted claim or claims. However, such a result in
this instance would be futile, since Mr. Dennis’s unexhausted claim
is now incapable of exhaustion at the state level and would be
procedurally barred under Florida law.

Mr. Dennis has already

pursued a direct appeal and post-conviction motions in state court,
with the denial of the motions affirmed on appeal.9
As there are no procedural avenues remaining available in
Florida which would allow Mr. Dennis to return to the state forum
and exhaust the subject claim, the claim is likewise procedurally

9

In Florida, issues which could be but are not raised on
direct appeal may not be the subject of a subsequent Rule 3.850
motion for post-conviction relief. Kennedy v. State, 547 So.2d
912 (Fla. 1989). Further, even if the subject claim was amenable
to challenge pursuant to a Rule 3.850 motion, it cannot now be
raised in a later Rule 3.850 motion because, except under limited
circumstances not present here, Florida law bars successive Rule
3.850 motions. See Fla. R. Crim. P. 3.850(f); see also Moore v.
State, 820 So.2d 199, 205 (Fla. 2002)(holding that a second or
successive motion for post-conviction relief can be denied on the
ground that it is an abuse of process if there is no reason for
failing to raise the issues in the previous motion).
37

defaulted from federal review. Collier v. Jones, 910 F.2d 770, 773
(11th

Cir.

1990)

(where

dismissal

to

allow

exhaustion

of

unexhausted claims would be futile due to state procedural bar,
claims are procedurally barred in federal court as well).

“A

State’s procedural rules are of vital importance to the orderly
administration of its criminal courts; when a federal court permits
them to be readily evaded, it undermines the criminal justice
system.”
28

U.S.C.

Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (citing
§

2254(b)(2)).

Claims

that

are

unexhausted

and

procedurally defaulted in state court are not reviewable by the
Court unless the petitioner can demonstrate cause for the default
and actual prejudice, Wainwright v. Sykes, 433 U.S. 72 (1977), or
establish the kind of fundamental miscarriage of justice occasioned
by a constitutional violation that resulted in the conviction of a
defendant who was “actually innocent,” as contemplated in Murray v.
Carrier, 477 U.S. 478 (1986).

See House v. Bell, 547 U.S. 518

(2006); Dretke v. Haley, 541 U.S. 386 (2004); see also United
States v. Frady, 456 U.S. 152, 168 (1982).

Since Mr. Dennis has

not alleged, let alone established, cause to excuse his default, it
need not be determined whether he suffered actual prejudice.

See

Glover v. Cain, 128 F.3d 900, 904 n.5 (5th Cir. 1997).
On direct appeal, Mr. Dennis asserted these claims as three
separate and distinct claims which were individually analyzed by
the Florida Supreme Court. DE 13-1.

38

Here, however, Mr. Dennis has

grouped these three separate and distinct claims as they were made
in

the

state

court

but

combined

them

to

assert

a

broader

accumulated claim that Mr. Dennis’s Sixth, Eighth, and Fourteenth
Amendment rights were violated due to the cumulative effects of the
errors.10

As

articulated

Moreover,

the

underlying

Dennis’s

cumulative

above,

Mr.

individual

effects

claim

Dennis
claims

are

cannot
that

without

do

this.

support
merit

or

Mr.
not

cognizable claims for federal habeas review.
i.

Watisha Wallace’s car

Mr. Dennis’s first contention is that the trial court erred
when it allowed evidence to be admitted at trial regarding a burned
automobile which belonged to his girlfriend.

DE 1 at 86.

This

issue arose when the State called Watisha Wallace to the stand.
Ms. Wallace was Mr. Dennis’s girlfriend and the owner of a 1992
gray Nissan.

The State contends that it was her gray Nissan that

Mr. Dennis drove on the night of the murders.

It was alleged that

this is the same Nissan that Ms. El-Djeije identified as being the
car at the Amoco station when she was shown a photo of the car by
the detective.

In short, the State needed the car to establish

that Mr. Dennis had premeditated and planned the murders by sitting

10

It is worthy of note that whether or not “under the
current state of Supreme Court precedent, cumulative error claims
reviewed through the lens of AEDPA can ever succeed in showing
that the state court's decision on the merits was contrary to or
an unreasonable application of clearly established law” is an
open question. See Morris v. Sec’y Dep’t of Corr., 677 F.3d 1117,
1132, n.3 (11th Cir. 2012).
39

outside the nightclub where the victims were prior to their deaths.
At trial, Ms. Wallace testified that she was the sole driver
and only had one key to her car at the time of the murder.

On the

day of the murder, she was in Daytona Beach and testified that she
had her key with her at the time.

DE 13-122 at 1.

As such, she

testified that Mr. Dennis did not have access to her car.
Prior

to

trial,

Ms.

Wallace

destroying the 1992 gray Nissan.

pled

guilty

to

arson

for

The State then sought to admit

into evidence Ms. Wallace’s guilty plea to arson charges and the
photographs of the burned vehicle.

This evidence had been the

subject of pre-trial motions to exclude.
granted.

Those motions were

While the court specifically disallowed the admission of

such evidence, during trial, the court allowed this evidence to
come in under the guise of showing the jury that Ms. Wallace was
biased against the State.

Mr. Dennis claimed error.

Supreme Court agreed. Dennis, 817 So.2d at 758-59.

The Florida
However, the

Florida Supreme Court found this error to be harmless.
Although error, we find the admission of this evidence to
be harmless error. See, e.g., Rodriguez v. State, 753
So.2d 29 (Fla. 2000) (applying harmless error analysis to
the erroneous admission of evidence). The evidence of the
car burning was not a feature of this lengthy trial, in
which over forty witnesses took the stand. See, e.g.,
Consalvo v. State, 697 So.2d 805, 813–14 (Fla. 1996)
(holding prosecutor's closing argument, which highlighted
the similarities between another burglary and the charged
offense where the burglary was not admitted for that
purpose, harmless error where the similarities between
the crimes was [sic] not a feature of the trial).
Further, the defense made the jury aware during its
cross-examination of Wallace that she burned the vehicle
40

only after it was seized and searched by police.
Moreover,
Detective
Romagni
testified
during
cross-examination that the search of Wallace's vehicle
netted no evidence. The defense emphasized this point to
the jury in closing argument:
The burning of that vehicle had absolutely nothing to
do with this case. The police had that vehicle. They
tested it in every way imaginable and they found
nothing. So some act that she does that's illegal while
he is in jail. He has never been charged with that and
he has got nothing to do with it. That vehicle was
burned merely for insurance fraud. It had nothing to do
with this incident. The police already tested it. There
was nothing there.
While the State referenced the car burning in its
closing, it did so as part of its general attack on the
credibility and perceived bias of Wallace, of which there
was ample evidence absent the introduction of the car
burning. FN6. This coupled with the fact that the jury
was given a cautionary instruction prior to each instance
in which the subject was approached leads us to conclude
that the error in the admission of this evidence was
harmless.
FN6. The following is the extent of the State's
discussion of Wallace's burning of her car in its
closing argument:
He had a key to her car and she saw the key. Watisha
said “no” he helped pay for my car, but he didn't
have a key. Watisha who says that the car was in the
same exact spot and Watisha who a few weeks after
getting the car back from the police went out and
burned it.
The car used in this homicide she burned it and she
pled guilty to burning it....
By the way going back to Watisha. She said that she
and the defendant were just friends and yet she told
you that when he was arrested he was undressed, in
his underwear, in her bed.
What is she trying to hide here. Columbus Stafford
told you he was investigating the arson of the car
and somebody anonymous sent the factory key in the
41

mail. Bob Love, the detective with the insurance
commission told you that it was a factory key. It
fit the car and two of them usually comes [sic] with
the car.
Id. at 759.

Mr. Dennis asserts that the Florida Supreme Court’s

analysis is flawed and that he was denied a fair trial and fair
penalty phase.

Mr. Dennis avers that the testimony of the State’s

star witness, Joseph Stewart, was questionable as, according to Mr.
Dennis, Mr. Stewart had reason to lie about his own involvement and
motivation to accuse someone else.
Mr.

Dennis

suggestion

was
that

largely
evidence

Therefore, as the case against

circumstantial,
of

guilt

had

he

asserts

been

that

“any

destroyed

and,

especially, that it had been destroyed by someone connected to the
defendant, cannot be harmless.”

DE 1 at 103.

However, what is

absent from Mr. Dennis’s argument is why the Florida Supreme
Court’s harmless error analysis was an unreasonable application of
clearly established federal law.
In support of this claim, Mr. Dennis cites to §§ 90.401,
90.402, Fla. Stat. (1999); Charles W. Ehrhardt, Florida Evidence
(2000 ed.), p.144, n.1 (§ 90.402 excludes, by implication, evidence
which is not relevant.”); “§ 90.403, Fla. Stat. (1999)”, “§ 90.608
Fla. Stat. (1999)”; “Ehrhardt at § 608.20"; “R. Regulating Fla.
Bar. 4.3.4(e)” and multiple cases from the Florida Supreme Court.11

11

The lone citation to federal law was to U.S. v. Peterman,
841 F.2d 1474, 1479, n.3 (10th Cir. 1988) for the proposition
that “evidence that is admissible for substantive purposes may
not be purposely introduced under the pretense of impeachment.”
42

State law and evidence rules offer Mr. Dennis no support on federal
habeas review.
Here, the claim is whether or not the admission of evidence
regarding Ms. Wallace’s burned car was an error and, if so, whether
that error was harmless. The Florida Supreme Court determined that
it was error but it was harmless.

In order to be an unreasonable

application of clearly established federal law, Mr. Dennis must
show that this decision was contrary to United States Supreme Court
precedent.

Mr. Dennis has not done so.

“A constitutional error is

harmless when “it appears ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’”
v.

United

States,

527

U.S.

1,

15

(1999)(quoting

Neder

Chapman

v.

California, 386 U.S. 18, 24 (1967)); see also Delaware v. Van
Arsdall, 475 U.S. 673 (1986).

There was ample evidence in the

record to support a guilty verdict and the erroneous admission of
this evidence did not contribute to the verdict.

The Florida

Supreme Court’s determination was not unreasonable.

Habeas relief

is unavailable to Mr. Dennis for this claim.
ii. Hearsay Testimony of the two Detectives
Mr. Dennis’s next claim is regarding the hearsay testimony of
two detectives.12 Mr. Dennis argues that the trial court erred when

12

Mr.
elicit the
Dennis was
Mr. Dennis
considered

Dennis contends that the State was permitted to
testimony of Detective “Hellman” who opined that Mr.
guilty because of the domestic abuse history between
and Ms. Lumpkins. Id. This claim will not be
on the merits because there is no evidence in the
43

it allowed certain hearsay testimony from Detectives Romagni and
Hellman.

DE 1 at 104.

Detective

Romagni

eyewitnesses

to

was

Mr.

Specifically, Mr. Dennis asserts that
allowed

Dennis’s

to

testify

abuse

and

that

threats

he

knew

towards

of
Ms.

Lumpkins; Mr. Dennis’s jealousy and spying on Ms. Lumpkins; Mr.
Dennis’s discovering where Mr. Barnes lived; Mr. Dennis’s knowledge
that Ms. Wallace’s car was available the weekend of the murders;
Mr. Dennis’s appearance at Zemoria Wilson’s apartment on the
morning after the murders while dressed in all black, and Mr.
Dennis’s possession of the murder weapon.

See DE 1 at 104.

At

trial, Mr. Dennis’s counsel objected but the trial court overruled
the objection.

Whether or not this evidence was admitted is an

issue of state law.
claim

because

Mr.

Here, the Florida Supreme Court denied the
Dennis

“opened

the

door”

to

this

line

of

questioning during cross-examination.13

record that Detective “Hellman” testified to the above referenced
information.
What is, perhaps, most remarkable about this claim is that
this misidentification was brought to Mr. Dennis’s attention
during briefing on direct appeal at the Florida Supreme Court,
and he advised the court in his reply brief that “Detective
Poiter was mistakenly identified as Detective Hellman in
appellant’s initial brief, at 41...” DE 13-2 at 66. Yet, here,
Mr. Dennis again asserted his claim as being based on the
testimony of a Detective “Hellman.” The State pointed this out in
its Response to the Order to Show Cause (DE 10), but Mr. Dennis
failed to address the issue in his Reply. See DE 15.
13

The Florida Supreme Court also found that had there been
error, it would have been harmless.
44

In Rodriguez v. State, 753 So.2d 29 (Fla. 2000), we
explained the concept of “opening the door”: “As an
evidentiary principle, the concept of ‘opening the door’
allows the admission of otherwise inadmissible testimony
to ‘qualify, explain, or limit’ testimony or evidence
previously admitted. The concept of ‘opening the door’ is
‘based
on
considerations
of
fairness
and
the
truth-seeking function of a trial.’” Id. at 42 (citations
omitted). Here the defense's cross-examination of Romagni
opened the door to the State's line of questioning aimed
at rebutting the defense's implication that the officers'
investigation was less than thorough, relying solely on
Stewart's word to arrest the defendant.
Dennis, 817 So.2d at 753.

Whether or not defense counsel opened

the door such that inadmissible hearsay became admissible is an
issue of state law, not a violation of the Constitution, laws, or
treaties of the United States.

28 U.S.C. § 2241 (2014).

Mr.

Dennis cannot raise, on federal habeas review, what is simply an
argument that the trial court erred in applying state law.
We have stated many times that “federal habeas corpus
relief does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111
L.Ed.2d 606 (1990); see also Pulley v. Harris, 465 U.S.
37, 41, 104 S.Ct. 871, 874–75, 79 L.Ed.2d 29 (1984).
Today, we reemphasize that it is not the province of a
federal
habeas
court
to
reexamine
state-court

Even if we were to conclude that it was error to allow
the State to pursue this line of questioning, any such
error was harmless. Each and every point mentioned in
Romagni’s testimony on redirect was properly admitted
into evidence through the testimony of other witnesses.
See, e.g., Kearse v. State, 662 So.2d 677, 684–85 (Fla.
1995) (finding no error in the admission of hearsay
evidence concerning the sequence of events and why the
police focused their investigation on the defendant
where the same evidence was admitted through the
testimony of other witnesses).
Dennis, 817 So.2d at 753.
45

determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or
treaties of the United States. 28 U.S.C. § 2241; Rose v.
Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d
162 (1975)(per curiam).
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Habeas relief
is denied.
iii. Jury Instruction
Finally, Mr. Dennis asserts that the trial court erred by not
giving an instruction to the jury that they should “treat Mr.
Stewart’s testimony with great caution.”
Mr. Stewart testified against Mr. Dennis.

DE 1 at 108.

At trial,

Mr. Stewart testified

that Mr. Dennis asked him if he had any guns he could borrow. See
Dennis, 817 So.2d at 747.

Mr. Stewart provided Mr. Dennis with a

shotgun but advised him that he was unsure whether it worked.
Nonetheless, Mr. Dennis took the shotgun and later returned it to
Mr. Stewart by leaving it behind some bushes at Mr. Stewart’s
mother’s house.
Mr. Dennis argues that Mr. Stewart was an essential witness
who “had some involvement in the crimes – at a minimum, the weapon
used belonged to him, and he got rid, not only of the weapon, but
of other evidence as well.”

DE 1 at 107.

Therefore, Mr. Dennis

contends that the court’s failure to instruct the jury that “the
testimony of state witnesses who are involved in the crime must be
closely scrutinized and treated with great caution, and the jurors

46

should be instructed to that effect” was in error.

DE 1 at 108.

In support of this argument, Mr. Dennis cites to Padgett v. State,
53 So.2d 106, 109 (Fla. 1951); Fla. Std. Jury Instr. (Crim)
2.04(b).
The Florida Supreme Court rejected the claim citing Boykin v.
State, 257 So.2d 251 (Fla. 1971) and Archer v. State, 673 So.2d 17,
20, n.3 (Fla. 1996).
This reasoning applies with equal force here. The
defense's cross-examination of Stewart was dedicated to
highlighting omissions in Stewart's early statements to
police and his decision to hide the evidence out of fear
of being considered a suspect. These facts were argued
extensively by the defense in closing argument to urge
the jury to disbelieve Stewart and to suggest that
Stewart was the murderer and was merely attempting to lay
the blame on Dennis. Accordingly, under the circumstances
the general jury instruction on how to weigh the evidence
was more than adequate to address Dennis’ concerns.
Dennis v. State, 817 So.2d at 752.

Mr. Dennis’s success on appeal

to the Florida Supreme Court was based on the proposition that the
trial court erred in construing the laws of Florida.

In fact, Mr.

Dennis’s claim involves a pure question of state law. Questions of
pure state law do not raise issues of constitutional dimension for
federal habeas corpus purposes. Carrizales v. Wainwright, 699 F.2d
1053 (11th Cir. 1983)(citing Llamas-Almaguer v. Wainwright, 666
F.2d 191, 193 (5th Cir., Unit B, 1982)). A state’s interpretation
of its own laws or rules provides no basis for federal habeas
corpus relief, since no question of a constitutional nature is
involved. Id. (citing Bronstein v. Wainwright, 646 F.2d 1048, 1050

47

(5th Cir. 1981)). The pronouncement by the Florida Supreme Court
that

section

2.04(b)

was

satisfied

by

the

defense’s

closing

argument, cross examination of Mr. Stewart, and the general jury
instruction on how the jury is to treat the testimony of witnesses
at his trial is binding on this Court. Habeas relief must be
denied.
iv. Unsworn Testimony
Mr. Dennis’s final assertion is that the prosecutor offered
what amounted to unsworn testimony during her closing argument. DE
1 at 104.

The comments at issue were made when the assistant state

attorney told the jury that Mr. Stewart was not threatened or
intimidated

in

an

effort

to

garner

additional

incriminating

evidence against Mr. Dennis.
Joseph Stewart told that statement to myself and another
state attorney on July 2nd in the State Attorney's
Office. The defendant had been in custody for these
murders since April 30th, 1996, and he was still in
custody on July 2nd and nobody had ever threatened. You
heard the questions.
Nobody ever threatened Joseph Stewart for being arrested
for anything so the argument that Joseph Stewart came up
with his because he was scared of getting arrested is
[absurd]. The defendant was arrested and into custody.
Joseph Stewart was out. Nobody ever said you are going to
be arrested. Nobody ever said if you don't come up with
some more evidence you are going to be arrested. Nobody
said it looks bad for you Joseph.
Dennis, 817 So.2d at 755.

The defense did not object. Therefore,

the Florida Supreme Court applied a fundamental error standard when

48

analyzing his claim.
The State argues that the prosecutor's closing alluded to
nothing the jury was not already aware of. We disagree. The
import of Dennis’ challenge to the State's closing argument
was the prosecutor's “testimony” that no threats were made to
Stewart
during
that
interview
to
garner
additional
incriminating evidence against Dennis. Although the State's
argument was improper, the record does not support a finding
of fundamental error and the error was at best harmless.
Detective Romagni's testimony made it clear to the jury that
Stewart was never threatened with being arrested. Moreover,
Stewart's statement to the prosecutor came well after Dennis
was taken into custody on the strength of Stewart's initial
statement to police. Accordingly, we reject Dennis’ attempt to
hold the prosecutor's argument fundamental error. Cf. Muhammad
v. State, 782 So.2d 343 (Fla. 2001) (prosecutor's closing
argument referring to facts not in evidence regarding the
police's receipt of information from a BOLO, which evidence
was ruled inadmissible pre-trial, not fundamental error); Pope
v. Wainwright, 496 So.2d 798 (Fla. 1986) (holding prosecutor's
reference in closing argument to having seen the defendant
“grinning from ear to ear” during the testimony of a State
witness was not fundamental error).
Id.
The

best

evidence

of

this

claim

being

one

that

is

not

cognizable for federal habeas review is that Mr. Dennis does not
argue that it is cognizable for federal habeas review. Rather, Mr.
Dennis cites to the Rules Regulating the Florida Bar and multiple
opinions from district courts of appeal in Florida in support of
his claim.

DE 1 at 105. “Questions of pure state law do not raise

issues

constitutional

of

dimension

for

federal

habeas

corpus

purposes.” Carrizales v. Wainwright, 699 F.2d 1053, 1054–55 (11th
Cir. 1983).

A precedent of a state court about an issue of state

law can never establish an entitlement to a federal writ of habeas
corpus. See Reese v. Sec’y, Dep’t of Corr., 675 F.3d 1277, 1287
49

(11th Cir. 2012).
Moreover, Mr. Dennis did not argue that the Florida Supreme
Court made an unreasonable application of clearly established
federal law. Perhaps this is so because there is no clearly
established federal law in support of this claim. “Our inquiry is
limited to whether the state court unreasonably applied a holding
of the Supreme Court, Williams, 529 U.S. at 412, and the Supreme
Court has never held that a prosecutor’s closing arguments were so
unfair as to violate the right of a defendant to due process.”
Reese, 675 F.3d at 1287.14

Therefore, the Court does not consider

the merits of this claim.
As

the

cumulative

effects

claim

is

unexhausted

and

the

individual claims, as drafted, are without merit or not cognizable
in a federal habeas petition, habeas relief is unavailable to Mr.
Dennis on this claim.

Habeas relief is denied.

E. Ineffective Assistance of Guilt Phase Counsel
Mr. Dennis’s fifth claim for federal habeas relief is that he
received ineffective assistance of counsel during the guilt phase

14

But see, Reese, 675 F.3d at 1294 (Martin, J.
concurring).(“It is true that the Supreme Court has never granted
habeas relief based upon a prosecutor's closing argument. But
that fact alone does not mean the Supreme Court has not clearly
established a standard by which such claims should be evaluated.
Said another way, the Supreme Court can clearly establish federal
law sufficient to support relief under AEDPA by establishing
standards even in cases where the habeas petition is denied under
that standard.”)

50

of his trial.

He asserts two claims with multiple sub-claims. The

first assertion is that his counsel was operating under an actual
conflict of interest.

DE 1 at 115.

The second is that he was

denied effective assistance of counsel at trial.
i. Actual Conflict of Interest
Mr. Dennis asserts that his counsel had a conflict of interest
because of his “work load” and because counsel “over the years
ha[d] made a practice of taking high profile cases on a pro bono or
‘defacto’ pro bono basis.”

DE 1 at 116.

Mr. Dennis asserts that

he does not need to show actual prejudice but if he did he could
because the record shows “that trial counsel failed to adequately
challenge the prosecution’s case.”
of his prejudice argument.

Id. at 117.

This is the extent

On its face, the prejudice argument is

insufficiently pled.

Mr. Dennis has failed to identify with any

specificity

the

what

in

record

reflects

counsel’s

failings.

Therefore, Mr. Dennis could only prevail on this claim if he did
not need to show prejudice.

Mr. Dennis does not meet that

standard.
“We hold that the possibility of conflict is insufficient to
impugn a criminal conviction. In order to demonstrate a violation
of his Sixth Amendment rights, a defendant must establish that an
actual

conflict

of

interest

adversely

affected

his

lawyer’s

performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
We will not find an actual conflict unless [the
defendant] can point to specific instances in the record
51

to suggest an actual conflict or impairment of [her
interest]. The defendant must make a factual showing of
inconsistent interests and must demonstrate that the
attorney made a choice between possible alternative
courses of action, such as eliciting (or failing to
elicit) evidence that favors an interest in competition
with that of the defendant. If [the attorney] did not
make such a choice, the conflict remained hypothetical.
Ferrell v. Hall, 640 F.3d 1199, 1244 (11th Cir. 2011) (citing
Buenoano, 74 F.3d at 1086 n.6) (quoting Smith, 815 F.2d at 1404
(internal citations and quotation marks omitted)).
On appeal from the denial of his postconviction motion, the
Florida Supreme Court denied the claim.
Here, instead of identifying anything specific in the
record suggesting that his interests were compromised by
an actual conflict, Dennis alleges that trial counsel's
“work load” related to his other clients, including
clients involved in other high profile cases, adversely
affected his representation. This allegation of a
conflict is overly speculative and hypothetical. Dennis
failed to allege that counsel actively represented
conflicting interests, and we affirm the denial of
relief.
Dennis v. State, 109 So.3d 680, 697 (Fla. 2012).
not find this to be unreasonable.

The Court does

Given that Mr. Dennis is unable

to show that his counsel failed to act based on a conflict and has
not

shown

the

Florida

Supreme

Court’s

rejection

of

his

conflict-of-interest claim to be an unreasonable application of the
law or facts, he is not entitled to habeas relief.

Therefore,

habeas relief is denied.
ii. Ineffective Assistance of Counsel
Mr. Dennis argues seven sub-claims in which he alleges that
52

his counsel was ineffective during the guilt phase of the trial.
They are as follows: (1) counsel requested a continuance which
violated his right to a speedy trial; (2) counsel failed to
adequately prepare for trial; (3) counsel failed to object to
improper bolstering by State witness; (4) counsel failed to object
to an improper comment on the defendant’s right to remain silent;
(5) counsel failed to object to irrelevant and highly prejudicial
evidence; (6) counsel failed to investigate other suspects; and (7)
counsel failed to hire a crime scene expert.

Mr. Dennis concludes

by asserting “that the cumulative effects of these violations
renders the result of Mr. Dennis’ trial unreliable.”

DE 1 at 119.

First, the Court must note that all of these sub-claims were
denied by the trial court, with the denial affirmed by the Florida
Supreme Court because Mr. Dennis did not sufficiently allege
prejudice.
this

Dennis, 109 So.3d at 690-695.

determination

is

correct

and

that

Based on the record,
failure

is

likewise

pervasive here.
It is more than troubling that counsel who is tasked with
representing capital defendants during postconviction would assert
seven sub-claims for ineffective assistance of counsel during the
guilt phase and, not once, with the limited exception of the
introductory paragraph, cite Strickland v. Washington, 466 U.S. 668
(1984).

See DE 1 at 117-147.

Here, counsel failed to acknowledge

that the burden placed upon a petitioner asserting a Strickland

53

claim is to show deficiency and prejudice.15 Indeed, the instant
Petition shows that counsel lacks a fundamental understanding of
what prejudice means and how it is shown.
believes that

if

a deficiency

is

It appears that counsel

asserted

that

prejudice

is

presumed.
Further the Petition (DE 1) appears to suffer from a mistaken
belief that if Mr. Dennis can show that trial counsel failed to do
something, then the Court will find that there must have been
something worthy to have been done.

For example, Mr. Dennis

asserts that counsel failed to hire a crime scene expert.

Yet,

postconviction counsel did not retain a crime scene expert in order
to show what the expert would have said or done had that expert
been retained by trial counsel.

The Court is not in a position to

speculate or to assume what an expert who had never been retained
might have said.
failed

to

do

It is not as though simply showing that counsel
something

Strickland requires more.

results

in

per

se

ineffectiveness.

In order to determine if Mr. Dennis was

prejudiced, the Court must be able to evaluate what could have been
said

or

done

probability
different.

before

that

the

it

can

outcome

say
of

that
the

there
trial

is

a

would

reasonable
have

been

Mr. Dennis’s arguments assume that because something

15

At the federal habeas level, this burden is even greater
because Mr. Dennis must also show that the Florida Supreme
Court’s determination was unreasonable. A far higher standard
than a de novo review of the claim.
54

was not done - had it been done - it would have made a difference.
That is not always the case.

Suppose that trial counsel did hire

a crime scene expert but the expert did not testify to a single
thing which would have been helpful to Mr. Dennis. Surely, counsel
would

not

be

ineffective

irrelevant witness.

for

failing

to

put

on

an

entirely

Of course, the Court has no way of knowing

because Mr. Dennis has failed to even proffer what the testimony
would have been. Unfortunately, this claim is largely based purely
on the speculation of counsel. Nonetheless, the Court takes each
sub-claim in turn.
a. Speedy Trial
Mr. Dennis contends that his attorney was ineffective during
the guilt phase of his trial because he “sacrificed Mr. Dennis’s
right to a speedy trial when the lead detective had failed to
timely turn over his report of the investigation.”

DE 1 at 120.

Further, Mr. Dennis asserts that his counsel should have objected
to the trial court setting an early trial setting when it was clear
that he would not be prepared for trial in such a short period of
time. The Florida Supreme Court found the claim to be without
merit.
Dennis
did
not
sufficiently
allege
either
deficiency or prejudice. Specifically, given that
Dennis did not allege that trial counsel could have
been prepared for this capital trial involving two
victims by the initial trial date or within the
speedy trial period, Dennis did not sufficiently
allege that trial counsel's decisions were outside
the range of reasonable professional performance.
55

Moreover, Dennis did not include any allegations
regarding how he was prejudiced by trial counsel's
decisions. He vaguely implied that there was
prejudice because a continuance was not charged to
the State (and Dennis was not released) as a result
of the State's failure to provide a copy of a
police report that was not in existence during the
speedy trial period. However, before a defendant
may have a continuance charged to the State based
upon a discovery violation, the defendant must
demonstrate that the discovery violation prejudiced
his ability to prepare for trial in a manner that
could not be corrected within the speedy trial
period. State v. Guzman, 697 So.2d 1263, 1264 (Fla.
3d DCA 1997). Here, Dennis did not allege that, but
for the lack of access to this police report,
Dennis could have been prepared for trial within
the speedy trial period.
Dennis,

109

So.3d

at

690.

The

determination to be unreasonable.

Court

does

not

find

this

This claim cannot be for simply

a violation of the speedy trial rights that Mr. Dennis may have
under state law because, if so, it would not be cognizable in a
federal habeas proceeding.

“A violation of Florida’s speedy trial

rules does not ‘go to the fundamental fairness of the trial’ so
that it is cognizable in a § 2254 petition.”
547 F.2d 261, 264 (5th Cir. 1977).

Rather, this claim must be one

of ineffective assistance of counsel.
show deficiency and prejudice.

Davis v. Wainwright,

Therefore, Mr. Dennis must

He has shown neither.

This claim

is particularly problematic in that the Florida Supreme Court found
that Mr. Dennis did “not include any allegations regarding how he
was prejudiced by trial counsel’s decisions” in his state court
pleadings. Yet, when he filed his claim here, he again failed to
assert a single allegation of how he was prejudiced by counsel’s
56

alleged deficiency.

In fact, the word prejudice does not appear

anywhere in the text of this argument.
assures

denial

prejudice.

of

this

claim.

Mr.

Failure to show prejudice
Dennis

has

not

alleged

Habeas relief is denied.
b. Failure to Adequately Prepare for Trial

Mr. Dennis’s next claim is that his counsel was ineffective
for not adequately preparing for trial.

DE 1 at 120.

Mr. Dennis’s

claim is widely speculative as to counsel’s inadequate preparation
and suggests that he must not have adequately prepared because he
failed to seek the appointment of a second attorney to assist him
and because counsel was also representing another capital defendant
“as well as trying to earn a living running his practice.”
121.

DE 1 at

The only specific assertion regarding counsel’s alleged

inadequate preparation was that the State “brought to the [sic]
Judge Platzer’s attention the fact that Mr. Guralnick had taken
only a small number of depositions of the witnesses in this case
and that they planned on calling at least 60 witnesses in the
State’s case-in-chief.”

Id. at 122.

assert how this prejudiced him.

However, Mr. Dennis fails to

Mr. Dennis has not cited to any

particular witness who testified and where his counsel was clearly
unprepared to cross-examine the witness.

In other words, Mr.

Dennis has failed to provide the Court with any basis for a
prejudice analysis other than mere supposition.
Mr. Dennis raised this claim in his postconviction proceedings

57

in state court.

The Florida Supreme Court affirmed the denial

finding that the claim was insufficiently pled.
Next, Dennis argues that trial counsel was ineffective
for failing to secure a second chair and for representing
other clients while representing Dennis. However, this
claim is facially insufficient as Dennis failed to
include any allegations regarding the prejudice prong of
Strickland. Dennis generally claimed that trial counsel
failed to adequately prepare for Dennis' trial. But he
did not include any allegation that there is a reasonable
probability that, but for trial counsel's failure to
secure a second chair and his failure to represent only
Dennis, the result of Dennis' trial would have been
different or that confidence in the outcome is
undermined. See Ragsdale, 720 So.2d at 208 (finding that
trial judge properly denied evidentiary hearing where
defendant provided insufficient facts as to “how the
outcome would have been different had counsel acted
otherwise”). Moreover, the record reflects that it was
Dennis' desire that Guralnick be his sole attorney at
both phases of the trial. And counsel is not ineffective
for following his client's wishes. See Cole v. State, 841
So.2d 409, 426 (Fla. 2003) (holding that counsel is not
ineffective for following his client's wish to not call
his mother to testify).
Dennis, 109 So.3d at 691.

Given the clear insufficiency of Mr.

Dennis’s claim in his pleadings before this Court, the Court cannot
find the Florida Supreme Court’s determination to be unreasonable.
Habeas relief is denied.
c. Failure to Object to Improper Bolstering by State Witnesses
Mr.

Dennis’s

third

sub-claim

is

that

his

counsel

was

ineffective for failing “to object, and do so adequately when
called for.”

DE 1 at 123.

Mr. Dennis identifies four witnesses

whose testimony was bolstered by the State and should have been
objected to during the guilt phase. Mr. Dennis asserted this claim

58

in his postconviction motion and subsequent appeal to the Florida
Supreme Court.
claim

was

The Florida Supreme Court determined that this

insufficiently

plead,

refuted

by

the

record,

or

procedurally barred.
First, this claim is facially insufficient because
Dennis' postconviction motion did not allege prejudice.
See Lott v. State, 931 So.2d 807, 816 (Fla. 2006) (“‘[W]e
have repeatedly held that ‘conclusory allegations are
insufficient to warrant relief’ on an ineffective
assistance claim.”) (quoting Wright v. State, 857 So.2d
861, 877 (Fla. 2003)).
Dennis, 109 So.3d at 692.
The Court finds the Florida Supreme Court’s determination
regarding the insufficiency of his pleadings to be reasonable.
Here, Mr. Dennis did not argue that he was prejudiced.
fatal to his claim.

This is

See Strickland, 466 U.S. at 697 (“[A] court

need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.”); accord Holladay v. Haley,
209 F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court need not address
the performance prong if the defendant cannot meet the prejudice
prong, or vice versa.” (citation omitted)).
It appears as though Mr. Dennis does not think that he must
prove the second prong of Strickland because he failed to make the
most cursory of arguments that he was prejudiced by counsel’s
deficiencies.

In truth, Mr. Dennis does not reference prejudice

anywhere in the text of this claim.

59

Instead, Mr. Dennis attempted

to assert this claim by making such simplistic and conclusory
arguments as “[t]rial counsel’s failure to object, and do so
adequately when called for, made him ineffective”; “trial counsel’s
failure to object to this testimony rendered him ineffective”;
“trial counsel was ineffective for failing to object to this
testimony”; and “[t]rial counsel’s failure to object, and do so
adequately when called for, made him ineffective.” DE 1 at 122-29.
Mr. Dennis also asserts that there is nothing “in the record
to suggest that trial counsel did not object because he thought
there was no valid objection.”
specious argument.

Id. at 126.

Obviously, this is a

The best evidence in the record that trial

counsel did not object because he thought there was no valid
objection was the fact that he did not object. “‘We presume counsel
was effective and conduct the Strickland analysis in a ‘highly
deferential’ manner, ‘considering all the circumstances . . . from
counsel’s perspective at the time,’ Strickland, 466 U.S. at 689.”
Dell v. U.S. 710 F.3d 1267, 1273 (11th Cir. 2013).
Putting

aside

the

lack

of

merit

to

Mr.

Dennis’s

bald

assertions regarding his counsel’s ineffectiveness, it is clear
that he continues to suffer from a fundamental misunderstanding of
the Strickland two-prong test which is required to establish
ineffective assistance of counsel.

If his assertions here are

true, Mr. Dennis has merely shown that counsel was deficient, not
ineffective.

Counsel would not be ineffective unless Mr. Dennis

60

was prejudiced by counsel’s deficiencies, and Mr. Dennis has not
alleged that he was prejudiced.

The Court cannot and does not make

arguments that were omitted by the parties.
Of course, all of these principles of law would
mean nothing if district courts were required to
mine the record, prospecting for facts that the
habeas petitioner overlooked and could have, but
did not, bring to the surface in his petition.
Making district courts dig through volumes of
documents and transcripts would shift the burden of
sifting from petitioners to the courts. With a
typically heavy caseload and always limited
resources, a district court cannot be expected to
do a petitioner's work for him. Cf. Adler v. Duval
Cnty. Sch. Bd., 112 F.3d 1475, 1481 n.12 (11th Cir.
1997) (noting in a civil case that, absent plain
error, “it is not our place as an appellate court
to second guess the litigants before us and grant
them relief ... based on facts they did not
relate.”); Johnson v. City of Fort Lauderdale, 126
F.3d 1372, 1373 (11th Cir. 1997) (“[W]e are not
obligated to cull the record ourselves in search of
facts not included in the statements of fact.”).
The Seventh Circuit memorably said that appellate
judges “are not like pigs, hunting for truffles
buried in briefs.” United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991). Likewise, district
court judges are not required to ferret out
delectable facts buried in a massive record, like
the one in this case, which was more than 25,000
pages of documents and transcripts.
Chavez v. Sec’y, Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir.
2011).

Habeas relief is denied.

d. Improper Comment on the Defendant’s Right to Remain Silent
Mr. Dennis’s fourth sub-claim for federal habeas relief is
that his counsel was ineffective for failing to object when the
State commented on his right to remain silent.

DE 1 at 129.

Mr.

Dennis raised this claim during postconviction and the Florida
61

Supreme Court found it to be without merit.
During cross-examination, trial counsel elicited testimony
from Romagni tending to indicate that Dennis was completely
cooperative with police. On redirect, the State attempted to
demonstrate that Dennis was not entirely cooperative.
Therefore, Romagni's testimony regarding his inability to
interview Dennis for a second time was relevant to Dennis'
lack of complete cooperation with police. Accordingly, trial
counsel was not ineffective for failing to raise what would
have been a meritless objection. See Melendez v. State, 612
So.2d 1366, 1369 (Fla. 1992), receded from on other grounds by
Deren v. State, 985 So.2d 1087, 1088 (Fla. 2008).
Dennis,

109

So.3d

at

694.

Here,

the

state

court

made

its

determination on the deficiency prong by analyzing an issue of
state law (i.e., whether or not counsel essentially opened the door
for the State to ask the questions which elicited the testimony at
issue).

However, the Court need not engage in an analysis of the

admissibility or inadmissibility of evidence in state court because
Mr. Dennis has not shown prejudice.

The Court does not expound on

the deficiency prong because the claim is resolved on the prejudice
prong.

See Hall v. Head, 310 F.3d 683, 699 (11th Cir. 2002)

(“[A]lthough

there

is

evidence in

the

record

to

support

the

district court’s finding of deficient performance, we need not and
do not ‘reach the performance prong of the ineffective assistance
test [because we are] convinced that the prejudice prong cannot be
satisfied.’”).
claims,

here,

prejudiced.

Indeed, just as he failed to do in all his subMr.
As

Dennis

also

prejudice

is

does

not

essential

claim
to

any

that

he

was

ineffective

assistance of counsel claim, this claim is insufficiently pled.

62

“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face, see 28
U.S.C. § 2254 Rule 4.”

McFarland v. Scott, 512 U.S. 849 (1994);

see also Spillers v. Lockhart, 802 F.2d 1007, 1010 (8th Cir. 1986)
(holding that it is proper to dismiss a petitioner’s claims that do
not provide “any specifics to identify precisely how his counsel
failed to fulfill those obligations”).

Habeas relief is denied.

e. Irrelevant and Highly Prejudicial Evidence Admitted Without
Objection.
Mr. Dennis’s fifth sub-claim for federal habeas relief is that
his counsel was ineffective for failing to object when irrelevant
and highly prejudicial evidence was admitted.

Specifically, Mr.

Dennis asserts that counsel should have objected when the State
admitted into evidence a sexual assault kit, when a detective gave
improper testimony on the ultimate issue of guilt, when the State
elicited testimony regarding other guns owned by the defendant, and
when the State elicited testimony regarding a cloned cell phone in
possession of the defendant.

DE 1 at 136.

These claims were made during postconviction, and the denial
was affirmed by the Florida Supreme Court.
Like
the
above
guilt
phase
claims
of
ineffectiveness,
this
claim
is
facially
insufficient because Dennis' postconviction motion
did not allege prejudice. He did not explain how
there is a reasonable probability that the outcome
would have been different had trial counsel
objected to this testimony. He did not explain how
the confidence in the outcome of the trial is
undermined.
63

With
regard
to
Watisha
Wallace's
allegedly
irrelevant and prejudicial testimony that she and
Dennis purchased a gun in her name for Dennis, the
record refutes that there was any prejudice. On
cross-examination, trial counsel elicited testimony
from Wallace explaining that the gun was later
transferred into Dennis' name. Moreover, during
closing argument, trial counsel argued that Dennis
would not have needed to borrow the shotgun used in
the crimes since Dennis owned a gun.
Additionally, Dennis' subclaim that trial counsel
was ineffective for not objecting to the cloned
cell phone testimony is without merit. While the
testimony implied that Dennis had illegally used a
cloned cell phone, the record demonstrates that
this testimony was relevant to the State's case.
The State's case included presenting evidence that
Dennis made a call to a friend and, during that
call, he admitted information about the murders
that was not generally available. Moreover, the
State's case included evidence that Dennis had made
particular phone calls to Stewart from his cell
phone. Thus, this cell phone testimony was
admissible. See Bryan v. State, 533 So.2d 744, 747
(Fla. 1988) (evidence that defendant committed
robbery using the murder weapon admissible to
demonstrate that defendant possessed the murder
weapon). And counsel cannot be ineffective for
failing to raise a meritless objection.
Furthermore, most of Dennis' subclaim regarding
Detective Poitier's testimony was addressed on
direct appeal and is therefore procedurally barred.
See Jones v. State, 949 So.2d 1021, 1033 (Fla.
2006) (“Jones' allegation of ineffective assistance
of counsel is merely a variant of the issues raised
on direct appeal and is therefore procedurally
barred.”). During his direct appeal, Dennis argued
that the State was permitted to elicit, over a
defense hearsay objection, Poitier's testimony that
he had concluded Dennis committed the crimes
because of his history of domestic abuse of the
victim and because of Dennis' interview with
Romagni. Dennis, 817 So.2d at 753–54. He argued
that this constituted inadmissible hearsay and an
impermissible opinion as to Dennis' guilt. Id. at
754. This Court held that Poitier's testimony
64

regarding Romagni's interview and the domestic
abuse history was harmless “as everything the
detective referred to on redirect was testified in
detail by other witnesses.” Id. Moreover, this
Court held that Poitier's testimony regarding
Dennis' guilt did not reach the level of
fundamental error. Id. The only thing not raised on
direct appeal in regard to Poitier's testimony was
Poitier's identification of the sexual assault kit.
While the sexual assault kit was irrelevant to
proving the State's case as Dennis was never
accused of raping Lumpkins, it does demonstrate
that the State conducted a thorough investigation,
including investigating the possibility of a rape
motive. And, as Dennis acknowledged in his
postconviction motion, “[a]ccording to the defense,
this was a case of negligent investigation.” Thus,
this
testimony
was
relevant
because
Dennis
challenged
the
completeness
of
the
police
investigation, and trial counsel cannot be rendered
ineffective for failing to raise a meritless issue.
Dennis, 109 So.3d at 692-93.

As was the case with Mr. Dennis’s

prior sub-claims this sub-claim was also insufficiently pled.16

To

establish prejudice under Strickland, Mr. Dennis “must show that
there

is

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.”

466 U.S. at 694.

Here, Mr.

Dennis offers no explanation as to how or why if this “irrelevant

16

This sub-claim unlike those before it does contain the
word “prejudicial”. However, it is used only in a conclusory
fashion while referring to evidence which was prejudicial; rather
than arguing Mr. Dennis was prejudiced. See DE 1 at 134-36
(“This information was highly prejudicial”; “This answer was not
only prejudicial but was also nonresponsive to the question
asked”; and “Mr. Dennis should have been adequately represented
against these improper and highly prejudicial pieces of
testimony.”).
65

and highly” prejudicial evidence had been objected to, that there
is a reasonable probability that the outcome of his trial would
have been different.

In other words, had this testimony not been

admitted, he would not have been convicted of two counts of first
degree murder, one count of burglary with assault or battery while
armed, and one count of criminal mischief.

However, he has failed

to show this to a probability sufficient to undermine the outcome
of his trial.
Moreover,

the

Florida

Supreme

Court

did

not

make

unreasonable application of clearly established federal law.

an
The

court identified the applicable prejudice standard for ineffective
assistance of counsel claims and found that Mr. Dennis had not met
that standard for two principle reasons. First, that the claim was
insufficiently pled.

Second, that counsel’s performance cannot be

deemed deficient if the objection would have been meritless.
Neither of these two determinations were unreasonable.

Habeas

relief is denied.
f. Failure to Investigate Other Suspects
Mr. Dennis’s sixth sub-claim for habeas relief is that his
counsel was ineffective for failing to investigate other possible
suspects.

Mr. Dennis asserts that “[d]espite having preliminary

information regarding other boyfriends, and therefore other persons
with a similar jealous motive, trial counsel failed to investigate
the information.”

DE 1 at 137.

Specifically, Mr. Dennis contends

66

that trial counsel did not properly investigate two persons who
appeared in Ms. Lumpkins’ diary.
counsel

did

boyfriends

argue
with

to

the

similar

jury

motives

Mr. Dennis argues that while
that
for

Ms.
the

Lumpkins
murder,

had
he

other

did

not

investigate or interview them; therefore, it appeared to the jury
that this theory was simply speculation.
once again failed to allege prejudice.

However, Mr. Dennis has
This failure did not go

unnoticed by the Florida Supreme Court.
Like Dennis' other ineffectiveness claims, this
claim is facially insufficient. Dennis did not
specifically
allege
what
information
an
investigation
would
have
revealed
and
what
information could have been presented at trial. See
Nelson v. State, 875 So.2d 579, 583 (Fla. 2004)
(“Under the circumstances of this case, a defendant
would be required to allege what testimony defense
counsel could have elicited from witnesses and how
defense counsel's failure to call, interview, or
present the witnesses who would have so testified
prejudiced the case.”). He also did not allege that
there is a reasonable probability that the outcome
of the trial would have been different had counsel
investigated Lumpkins' boyfriends and had counsel
presented
any
evidence
revealed
by
the
investigation to the jury. He did not allege that
the confidence in the outcome is undermined due to
trial counsel's failure to investigate other
suspects.
Further, the record demonstrates that trial counsel
did present the arguments that Dennis now contends
were inadequately presented due to trial counsel's
failure to investigate other suspects. During the
guilt phase, trial counsel argued that Lumpkins had
other boyfriends, that Dennis had not been bothered
by these other boyfriends, and that these other
boyfriends might have had a motive to kill her.
Specifically, trial counsel raised this issue
during open [sic] arguments and during the
cross-examination of Romagni. Therefore, as the
67

trial court's order pointed out when denying this
claim, “since counsel did present this information,
he was not ineffective for failing to do so.”
Dennis, 109 So.3d at 694.

Similar to his prior sub-claims, Mr.

Dennis has not sufficiently argued prejudice.
Court’s

determination

was

not

The Florida Supreme

unreasonable.

The

Strickland

prejudice prong requires that a defendant “must show that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
466 U.S. at 694.

This is the clearly established federal law that

was applied by the Florida Supreme Court. Habeas relief is denied.
g.

Failure to Hire a Crime Scene Expert

Mr. Dennis’s final sub-claim is that counsel failed to hire a
crime scene expert.

DE 1 at 144.

Mr. Dennis asserts that “it was

imperative for trial counsel to obtain a crime scene expert, crime
scene reconstructionist and/or forensic pathologist to provide the
jury with

the

evidentiary

support

for

[his]

argument

and

challenge the unsupported assumptions of the State’s case.”
at 147.

to

DE 1

The Florida Supreme Court affirmed the denial of this

claim as follows:
As the trial court explained in its order denying
relief, Dennis “fail[ed] to allege what experts
should have been hired, what these experts would
have
testified about
and how
this
failure
prejudiced the Defendant.” See Ragsdale, 720 So.2d
at 207 (explaining that conclusory allegations are
insufficient to state a claim for postconviction
relief). Instead, Dennis argued that evidence that
this crime could not have been committed by one
person and that the assailants would not have been
68

able to leave the scene without some blood on their
persons is the type of evidence that would have
supported Dennis' defense that he did not commit
the crime. However, on cross-examination of State
witnesses, trial counsel elicited that the evidence
did not establish the number of perpetrators and
that whoever committed the crime may have gotten
blood or other biological material on them. Thus,
trial counsel, without hiring a crime scene expert,
actually
elicited
the
information
Dennis'
postconviction motion mentioned.
Dennis, 109 So.3d at 694-95.

As detailed above, Mr. Dennis failed

to provide the Court with the crucial information that it needs to
make a prejudice analysis.

Therefore, the Court finds the Florida

Supreme Court’s determination that the claim was insufficiently
pled to be reasonable.

In the absence of proffered testimony to

the contrary, the Florida Supreme Court’s determination that trial
counsel elicited the information without retaining an expert was
reasonable.

Not knowing what the expert would have said had he

been retained, there can be no showing of unreasonableness by the
court.

Habeas relief is denied.
F. Ineffective Assistance of Appellate Counsel

In his final claim for federal habeas relief, Mr. Dennis
asserts that his appellate counsel was ineffective on direct
appeal. He asserts three sub-claims. First, appellate counsel was
ineffective

for

failing

to

raise

a

claim

inflammatory testimony offered by the State.

of

improper

and

Second, appellate

counsel was ineffective for failing to raise fundamental error.
Third,

failure

to

assert

that

69

the

jury

was

tainted

due

to

misconduct by the State and the trial court.

DE 1 at 148-62.

Claims of ineffective assistance of appellate counsel are
governed by the standard articulated in Philmore v. McNeil:
In assessing an appellate attorney’s performance, we are
mindful that “the Sixth Amendment does not require
appellate advocates to raise every non-frivolous issue.”
Id. at 1130-31. Rather, an effective attorney will weed
out weaker arguments, even though they may have merit.
See id. at 1131. In order to establish prejudice, we must
first review the merits of the omitted claim. See id. at
1132.Counsel’s performance will be deemed prejudicial if
we find that “the neglected claim would have a reasonable
probability of success on appeal.” Id.
575 F.3d 1251, 1264-65 (11th Cir. 2009).

For the reasons that

follow, Mr. Dennis’s three sub-claims of ineffective assistance of
appellate counsel are denied.
i. Improper and Inflammatory Testimony
Mr. Dennis first asserts that “[m]ultiple witnesses gave
improper and inflammatory testimony during Mr. Dennis’ trial.”

DE

1 at 150. Specifically, Mr. Dennis argues: (1) Detective Edward
Hudak was allowed to testify regarding the reactions of the other
players on the University of Miami football team upon hearing about
the crime; (2) Robin Gore, Timwanika Lumpkins’ aunt, testified that
Mr. Dennis once came to the parking area of her apartment wearing
a hooded black pullover and carrying a gun; and (3) Dr. Sam Gulino,
the medical examiner, testified during the guilt phase that the
blood smears on the door were consistent with Mr. Barnes being
blinded before he died.

According to Mr. Dennis, defense counsel

objected during this testimony, but appellate counsel failed to
70

raise this issue on direct appeal.

Mr. Dennis first raised the

issue in his petition for a writ of habeas corpus in state court.
The Florida Supreme Court denied the writ. Assuming deficiency for
the sake of the analysis, the court found that Mr. Dennis had not
shown prejudice.
Here, even if the admission of this testimony was
erroneous, Dennis cannot demonstrate prejudice
because any error was harmless. See id. (“If that
error was harmless, the petitioner ... would not
have been prejudiced.” (quoting Jones, 794 So.2d at
584)). The State's blood pattern expert testified
“that the pooling and smearing of blood near the
front door of the apartment and other nearby
patterns were consistent with Barnes struggling and
flailing about.” Dennis, 817 So.2d at 749.
Furthermore, multiple witnesses testified that
Dennis possessed a gun. In fact, Stewart testified
that he had loaned Dennis a sawed-off shotgun, a
gun that was consistent with having been used to
inflict the victims' wounds. Stewart, who led the
police to the gun, testified that the gun was
damaged when Dennis returned it. And the State's
expert
“testified
that
the
metal
fragments
recovered from Barnes' apartment conclusively
matched the trigger guard of the recovered
shotgun.” Id. at 749. There was also testimony
that, a month prior to the murders, Dennis visited
a friend on the University of Miami campus and
asked that friend where Barnes lived, explaining
that “he wanted the information because he wanted
to find out if [Barnes] was ‘f–––ing around with
his baby's mother.’” Id. at 748. Therefore, we
conclude beyond a reasonable doubt that the
admission of the allegedly improper testimony to
which trial counsel objected did not affect the
jury's verdict.
Dennis, 109 So.3d at 701-02.

A review of the record supports the

determination of the Florida Supreme Court.

More evidence than

just the three witnesses complained of here was admitted at trial.

71

Those additional witnesses’ testimony was duplicative of other
witnesses who testified.

Moreover, Mr. Dennis has not shown nor

has he even alleged prejudice.

The single reference to prejudice

in this sub-claim is that “[t]he prejudice from [Dr. Gulino’s]
assumptions about the blood is compounded by the fact that he never
was qualified as a blood expert.” DE 1 at 152.

Of course, this is

insufficient to show prejudice.
Therefore, even if the Court disagreed with the Florida
Supreme Court’s determination, this claim would fail under a de
novo review. Berghuis v. Thompkins, 560 U.S. 370 (2010)(courts can
deny writs of habeas corpus under § 2254 by engaging in de novo
review because a habeas petitioner will not be entitled to a writ
of habeas corpus if his or her claim is rejected on de novo
review).

Habeas relief is denied.
ii. Fundamental Error

Mr. Dennis’s second sub-claim for federal habeas relief is
that his appellate counsel failed to raise certain issues which
were not preserved for appeal but did represent fundamental error.
DE 1 at 152.

Mr. Dennis’s claim is based on the testimony of four

people. First, Wayne Sibley, a Coral Gables Fire Rescue paramedic,
testified that “there was so much blood smeared around the floor .
. . the carpet was heavily saturated with blood and other types of
tissue [and] it was probably the worst things I’ve seen in a long
time.”

Id. at 153. Second, Detective Melgarejo, a crime scene

72

detective, testified that “one of the victim’s skull was ‘very
mushy.’” Id. Third, Randy Shannon, Marlin Barnes’s position coach
at the University of Miami, “testified that he called Ray Lewis,
another nationally-known sports celebrity, in Lakeland about the
murder and had to talk to him for 20 minutes ‘just to calm him
down.’”

Id.

Fourth,

Dr.

Guilno

testified

“that

the

victim’s

injuries were ‘very typical’ of high speed motor vehicle crashes.”
Id. at 154.

Finally, Detective Charles testified that “the blood

near the front door was ‘consistent with [when] a person’s hands
and arms are soaked in blood [and] flailing or moving . . . and
striking a wall . . .’” Id.

At trial, counsel did not object.

Appellate counsel did not raise the issue on direct appeal.
Mr. Dennis raised this claim in his state petition for habeas
corpus.

The Florida Supreme Court found no fundamental error.
The next portion of Dennis' ineffectiveness of
appellate counsel claim relates to allegedly
improper testimony that trial counsel did not
object to, namely a paramedic's testimony that the
crime scene was bloody, a detective's testimony
that the skull of one of the victims was “mushy,”
Dr. Gulino's testimony that the victim's head
injuries were consistent with being hit with the
blunt side of the shotgun, and Coach Shannon's
testimony that he called Ray Lewis in Lakeland the
morning of the murders.FN7 If a claim “was not
preserved at trial by objection, appellate counsel
cannot be ineffective for failing to raise this
claim on appeal unless the claim constituted
fundamental error.' ” Valle, 837 So.2d at 909.
“Fundamental error is error that reaches down into
the validity of the trial itself to the extent that
a verdict of guilty could not have been obtained
without the assistance of the alleged error.' ”
Jones, 949 So.2d at 1037 (Fla. 2006) (quoting State
73

v. Delva, 575 So.2d 643, 644–45 (Fla. 1991)).
FN7. Dennis' allegations regarding Dr. Rao's
testimony, Detective Charles' testimony, and
other portions of Dr. Gulino's testimony are
simply variations of claims raised in his
postconviction
motion.
“[C]laims
of
ineffective assistance of appellate counsel
may not be used to camouflage issues that
should have been raised on direct appeal or
in a postconviction motion.” Rutherford, 774
So.2d at 643.
We conclude that this portion of Dennis’ claim does
not rise to the level of fundamental error. Several
witnesses testified that the crime scene was
bloody, including the States [sic] blood pattern
expert. See Dennis, 817 So.2d at 749. Moreover, Dr.
Gulino, the medical examiner, properly testified
about the gruesome injuries to the victims head.
See id. at 749–50. Furthermore, the trial court did
not abuse its discretion in allowing Dr. Gulino to
testify about the consistency between the wounds
and the shotgun. See Cox v. State, 966 So.2d 337,
352–54 (Fla. 2007). Even if this had been an abuse
of discretion, it would not be fundamental error
because, as this Court explained on direct appeal,
“the State introduced several composite pictures
comparing the victims wounds with the shotgun that
made it readily apparent that the victims were
struck with such force that their skin retained
what amounted to the shotgun’s ‘fingerprints.’”
Dennis, 817 So.2d at 750.
Dennis,

109

determination

So.3d
to

at

be

702.

The

unreasonable.

Court
As

does
this

not
is

a

find

this

claim

of

ineffective assistance of appellate counsel, Mr. Dennis must show
that his appellate counsel was deficient for not making this claim
on direct appeal.17 However, in order for appellate counsel to have

17

It goes without saying that Strickland also requires that
Mr. Dennis prove prejudice. As has been the case for the
majority of his ineffective assistance of counsel claims, Mr.
74

asserted this claim, the admission of this testimony would have had
to have been fundamental error because trial counsel failed to
object at trial. “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) (quotation
marks omitted).
Applying the facts here to the law in Florida at the time of
Mr. Dennis’s direct appeal, the Court does not conclude that the
Florida Supreme Court’s determination that appellate counsel was
not ineffective was unreasonable.

According to Florida law, once

trial counsel failed to object, appellate counsel could only assert
this

claim

if

he

could

show

fundamental

error.

In

Florida,

fundamental error is defined as “error which reaches down into the
validity of the trial itself to the extent that a verdict of guilty
could not have been obtained without the assistance of the alleged
error.”

State v. Wilson, 686 So.2d 569, 570 (Fla. 1996).

After

finding Mr. Dennis could not show fundamental error, the state
court concluded that appellate counsel was not ineffective for
failing to raise a nonmeritorious claim.

Even if the Court were to

disagree with this conclusion, AEDPA demands more.
find

the

state

court’s

determination

In order to

unreasonable

under

§2254(d)(1), “a habeas court must determine what arguments or
theories supported or, as here, could have supported, the state

Dennis has failed to properly argue that he was prejudiced.
75

court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the
United States Supreme] Court.” Harrington v. Richter, 562 U.S. 86,
102 (2011).

Applying the facts of this case to the standard in

Harrington, the Court cannot grant habeas relief. The record
reflects that the Florida Supreme Court’s determination that there
was ample evidence apart from the witnesses complained of such that
Mr. Dennis had not shown fundamental error was reasonable and
supported by the facts.

Habeas relief is, therefore, denied.

iii. Jury was Tainted due to Misconduct by the State of Florida
and Trial Court
Mr. Dennis’s final claim for habeas relief is that appellate
counsel

failed

to

raise

on

direct

appeal

that

there

were

inappropriate interactions with jurors by both the prosecutor and
the judge.18

DE 1 at 155.

Specifically, Mr. Dennis asserts that

the trial court and the state attorney engaged in improper ex parte
18

Mr. Dennis also asserts a cumulative effects claim. DE 1
at 159-160. A cumulative effects claim is not cognizable for
federal habeas review except in very limited circumstances not
applicable here. When the Court engaged in a sub-claim by
sub-claim analysis and has found each to be without merit, unless
the trial was rendered fundamentally unfair, the Eleventh Circuit
Court of Appeals has declined to entertain “cumulative error”
claims. See Cargill v. Turpin, 120 F.3d 1366, 1386-87 (11th Cir.
1997). The Florida Supreme Court has determined, and the Court
agrees, Mr. Dennis’s trial was not rendered fundamentally unfair.
Further, as the Court has found no errors, there can be no
cumulative error. See United States v. Waldon, 363 F.3d 1103
(11th Cir. 2004)(citing United States v. Allen, 269 F.3d 842, 847
(7th Cir. 2001)(“If there are no errors or a single error, there
can be no cumulative error”)).
76

communications with Jurors Reid and Thomas.

Mr. Dennis also

asserts that some impropriety must have occurred because one day
the

jurors

requested

that

they

be

escorted

to

their

cars

individually as opposed to simply being escorted to the street.
Finally, Mr. Dennis asserts that because the trial court made a
statement that he would “speak to [the jury] like I did the last
time” that the judge must have had prior ex parte communications
with the

jurors.

The Florida

Supreme

Court

found

this

claim

speculative and meritless.
Dennis has not pointed to anything in the record that
indicates that potentially prejudicial juror misconduct
occurred. See Morris v. State, 811 So.2d 661, 667 (Fla.
2002) (“[P]otentially harmful misconduct is presumptively
prejudicial, but the defendant has the initial burden of
establishing a prima facie case that the conduct is
potentially prejudicial.”) (quoting Amazon v. State, 487
So.2d 8, 11 (Fla. 1986)). Instead, Dennis’ petition
expresses hypothetical arguments about (1) what could
have happened in addressing Juror Reids scheduling
problem, (2) why the State may have asked whether Juror
Thomas was fired, and (3) why jurors may have asked to be
escorted to their cars. Such speculation would not
provide a basis for this Court to conclude that the trial
court abused its discretion in failing to adequately
inquire about the alleged misconduct. Cf. Kelley v.
State, 569 So.2d 754, 761–62 (Fla. 1990) (relinquishing
jurisdiction for trial court to interview jurors based
upon a specific report from attorneys that one juror
informed the attorneys of certain misconduct on the part
of another juror during trial). Therefore, such
speculation does not provide this Court with a basis to
conclude that fundamental error occurred.
Next, Dennis asserts that judicial bias is evidenced by
adverse rulings, an alleged ex parte communication with
the jury, and a friendship with Dr. Rao. However, none of
these allegations rises to the level of fundamental
error. As this Court has explained, adverse trial court
rulings do not generally provide a legally sufficient
basis for disqualification. Waterhouse v. State, 792
77

So.2d 1176, 1194 (Fla. 2001). Additionally, when viewed
in context, it is clear that the record does not support
Dennis' claim that an ex parte conversation regarding the
jury
instructions
occurred.
Furthermore,
Dennis'
allegation regarding the judge's friendship with Dr. Rao
is based upon information disclosed at an evidentiary
hearing that took place during the first proceeding on
Dennis' postconviction motion. It is not based upon the
appellate record. See Rutherford, 774 So.2d at 646.
Accordingly, appellate counsel was not ineffective for
failing to present these alleged instances of fundamental
error, and Dennis is not entitled to relief.
Dennis, 109 So.3d at 702-03.
determination to be reasonable.
than

take

excerpts

from

the

The Court agrees and finds this
Mr. Dennis has done little more
transcript

and

make

assumptions

regarding what things may have been done or what statements may
have been made.

Mr. Dennis has offered no evidence of juror bias

or impropriety on the part of the assistant state attorney or the
trial judge.

Appellate counsel cannot be deemed ineffective for

failing to raise issues which have no support in the record and are
without merit.

United States v. Nyhuis, 211 F.3d 1340, 1344 (11th

Cir. 2000)(“In order to do so, however, the claim of ineffective
assistance must have merit.”).
V.

Habeas relief is denied.

CONCLUSION
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that Petitioner Labrant D. Dennis’s

Petition for Writ of Habeas Corpus (DE 1) is DENIED.

All pending

motions are denied as moot. A Certificate of Appealability is
DENIED.

The Court is not persuaded that Mr. Dennis has shown that

78

“jurists

of

reason

could

disagree

with

the

district

court’s

resolution of his constitutional claim or that jurists could
conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003)(citation omitted).

The Clerk of the Court is instructed to

CLOSE the case.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward
County, Florida this

3rd

day of December, 2015.

WILLIAM J. ZLOCH
United States District Judge
Copies furnished:
All Counsel of Record

79