Ferro v. Inch.

Filing 20

Order Denying Habeas Petition re First AMENDED COMPLAINT Petition for Writ of Habeas Corpus by a person in State Custody. Closing Case. Signed by Judge Robert N. Scola, Jr on 5/5/2022. See attached document for full details. (mee) Modified on 5/6/2022 (mee).

United States District Court
for the
Southern District of Florida
Nicholas Christopher Ferro,
Petitioner,

)
)
)
v.
)
Civil Action No. 21-24097-Civ-Scola
)
)
Mark S. Inch, Secretary, Florida
Department of Corrections,
)
Respondent.
)
Order Denying Habeas Petition
Before the Court is the Petitioner Nicholas Christopher Ferro’s amended
petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 8.) The
Respondent filed a response arguing why the Court should not grant the
petition (ECF No. 13), and the Petitioner filed a reply brief in support of the
petition (ECF No. 19). After careful consideration of the record, the briefing,
and the relevant legal authorities, the Court denies the amended petition. (ECF
No. 8.)
1. Background and Procedural History
A. Trial
On November 30, 2009, Petitioner Nicholas Christopher Ferro was
charged by information in state court with one count of second-degree murder
and one count of resisting an officer without violence. (ECF No. 14-1 at 19.)
Ferro was charged in connection with an altercation that took place in Key
West on October 30–31, 2009. (See id.); (see ECF No. 15-18 at 9–28). Ferro was
first tried in a jury trial in March 2012; however, a mistrial was declared once
the jury reached a deadlock. (ECF No. 15-1 at 10, 12.) Ferro was retried in
September 2013. (See ECF No. 15-2.)
The defense’s primary trial theory was that Ferro stabbed the victim in
self-defense. To establish self-defense, Ferro testified at trial. He testified that,
on the night of October 30, 2009, he and some friends travelled to Key West to
attend “Fantasy Fest.” (ECF No. 15-18 at 9.) Ferro testified that later that
night, he saw a group of people attacking his friend, Jorge Averoff. (Id. at 18.)
Ferro entered the fray to help his friend, and during this fracas, Ferro testified
that he was hit on the back of the head, causing him to fall to his knees. (Id.
at 19, 22–23.) Ferro testified that, once on the ground, he took out a
pocketknife and “stuck it in front” in self-defense. (Id. at 26–27.) The victim was

stabbed in the abdomen and later died at a hospital. (ECF No. 15-11 at 39–40,
67.)
Among other things, the parties disputed the location and angle of the
stab wound. The State argued, relying on the testimony of Dr. Rhoda Smith
and Dr. Emma Lew, that the evidence established that the location and angle
of the wound was inconsistent with Ferro stabbing upwards from his knees
while the victim bent over Ferro. (ECF No. 15-19 at 38.) The State further
argued, pointing to the testimony of Dr. Lew (who did not testify in the first
trial), that if the victim had been bent over Ferro at the time of the stabbing, as
the defense argued, the victim’s omentum and intestines would have been
damaged. (Id. at 39.)
The defense’s medical expert, Dr. Ronald Wright, testified that the stab
wound was consistent with self-defense. (ECF No. 15-4 at 30); (ECF No. 15-15
at 34.) Dr. Wright initially testified erroneously that the omentum had been
damaged, although he later noted that the medical reports did not indicate
such damage. (ECF No. 15-15 at 69–70, 72, 79.) Nonetheless, Dr. Wright
testified that while he would have expected damage to the omentum, the
omentum is mobile and the omentum may have moved and avoided damage
from the knife. (Id. at 71, 74, 79, 112.) In all, Dr. Wright testified that the
nature of the stab wound was consistent with a scenario where Ferro was
kneeling and the victim was standing or bent over him. (Id. at 114.)
After the second trial, on February 7, 2014, Ferro was convicted of one
count of second-degree murder and one count of resisting an officer without
violence. (ECF No. 8 at 2.) Ferro was sentenced to 28 years in prison. (ECF
No. 14-1 at 26.)
B. Post-Conviction Proceedings
On February 14, 2014, Ferro filed a direct appeal, raising five claims.
(ECF No. 14-1 at 31, 65–89.) The district court affirmed on October 14, 2015.
See Ferro v. State, 206 So.3d 52 (Fla. 3d DCA 2015).
On November 4, 2016, Ferro filed a motion to vacate judgment of
conviction and sentence, raising seven claims. (ECF No. 14-1 at 153–201.) The
trial court held an evidentiary hearing on January 17–19, 2019, and denied the
motion in a written order dated August 14, 2019. (ECF No. 14-2 at 2–19); (ECF
No. 7-1 at 1262–1279.)
On September 11, 2019, Ferro filed a notice of appeal to the Third
District Court of Appeal and raised only two claims on appeal: (1) “Defense
counsel was ineffective because he failed to investigate and adequately
understand the critical medical evidence in this case “ and he “failed to obtain
a credible expert”; and (2) “Defense counsel was likewise ineffective for failing to

object to the prosecutor’s comments, which compared him to the devil and
portrayed the Key West combatants as innocent fun-loving kids.” (ECF
No. 14-2 at 20, 87–89.) The state appellate court affirmed. See Ferro v. State,
322 So.3d 234 (Fla. 3d DCA 2021).
C. August 14, 2019 Order
As discussed above, the Circuit Court of the Sixteenth Judicial Circuit
issued an order denying Ferro’s state court motion for post-conviction relief on
August 14, 2019. 1 Relevant here, Ferro raised claims of ineffective assistance of
counsel, arguing that his trial counsel failed to (1) “adequately investigate the
State’s forensic evidence and secure the assistance of a new forensic medical
examiner expert witness at the second trial” and (2) “object to pervasive
improper argument during closing argument.” (ECF No. 7-1 at 1263, 1276.)
The Court will summarize the state court’s decision on these grounds.
1. Failure to Investigate Forensic Evidence
The state court held that trial counsel adequately investigated the
medical forensic evidence and reasonably retained Dr. Wright at the retrial.
First, the state court found that trial counsel’s decision to retain Dr. Wright at
the retrial was a reasonable “strategic decision” based on trial counsel’s
evaluation of Dr. Wright’s performance in the first trial and Dr. Wright’s
qualifications. (Id. at 1265, 1270.) Therefore, the state court concluded that
trial counsel’s decision to retain Dr. Wright, rather than hire a new medical
examiner expert, was not deficient under Strickland. (Id.)
Second, the state court found that trial counsel did not ignore the
medical evidence or fail to investigate the forensic medical evidence in the case.
(Id. at 1266.) While the state court noted that trial counsel “probably could
have focused more on the medical aspect of this case,” the court warned that
habeas courts cannot review the trial with the benefit of hindsight. (Id.)
Without such hindsight, the state court determined that trial counsel
adequately prepared Dr. Wright, finding that trial counsel provided Dr. Wright
with all of the medical evidence and that the two discussed the relevant
medical evidence, including the location of the stab wound and its significance
1

In applying § 2254(d), the Court will “look through” the Third District Court of Appeal’s
opinion and review the rationales provided in the Circuit Court of the Sixteenth Judicial
Circuit’s decision dated August 14, 2019. (ECF No. 7-1 at 1262–1279); see Wilson v. Sellers,
138 S.Ct. 1188, 1192 (2018) (holding that where the last state court decision is “unexplained,”
federal habeas courts must “‘look through’ the unexplained decision to the last related statecourt decision that does provide a relevant rationale” and “presume that the unexplained
decision adopted the same reasoning”).

once “facts surfaced that changed the location of the entry wound.” (Id.
at 1266–68.) The state court concluded that trial counsel had an adequate
understanding of the medical evidence and that it was reasonable to rely on Dr.
Wright’s expertise, even if Dr. Wright’s evaluations were “incomplete in the
opinion of others.” (Id. at 1271.)
The state court also held that trial counsel did not fail to meaningfully
depose the State’s medical witnesses. The state court held that trial counsel
understood the discrepancies between the medical witnesses as to the location
of the stab wound, discussed these discrepancies with Dr. Wright, and made a
“strategic decision” not to question Dr. Smith about the location of the stab
wound at her deposition. (Id. at 1268.)
In any event, the state court also held that there was no prejudice to
Ferro under Strickland. The state court found that even if trial counsel retained
a different medical expert to explain the location of the stab wound and lack of
damage to the omentum, the jury still would have been left with competing
experts on medical evidence that “cuts both ways.” (Id. at 1272.) Moreover, the
state court walked through the additional evidence that weighed against Ferro’s
claim of self-defense. The state court pointed to Ferro’s trial testimony
concerning his attempts to evade the police and deny culpability, the lack of
evidence corroborating Ferro’s theory that he was trying to protect his friend,
and the testimony of several witnesses who were at the scene. (Id. at 1272–74.)
In all, the state court concluded that “[f]or the jury to believe that [Ferro] acted
in self-defense, the witness testimony, [Ferro’s] testimony, and [Ferro’s]
credibility were paramount” and that “it was the testimonial evidence, and
[Ferro’s] lack of credibility, not the actions of trial counsel or the defense’s
medical expert, that led to the conviction in this case.” (Id. at 1274.)
2. Failure to Object
As to the second relevant claim of ineffective assistance of counsel, the
state court held that trial counsel was not ineffective for failing to object to
certain comments made in the prosecutor’s closing argument. The state court
held that to prevail on such a claim, the comments had to be objectionable,
there must have been “no tactical reason for failing to object,” and the
comments must have been “so prejudicial that they deprived [Ferro] of a fair
trial.” (Id. at 1277.) The state court concluded that as the prosecutor’s
reference to the devil was “an isolated remark that was not [] made a theme or
feature of the State’s case,” the comment was not so prejudicial that it deprived
Ferro of a fair trial. (Id. at 1278.) Last, the state court held that trial counsel
made a strategic decision not to object to the prosecutor’s reference to the
victim as part of a group of “fun-loving kids” without a history of violence. (Id.)

The state court held that the prosecutor’s statement was a “reasonable
inference[]” from the evidence presented, and therefore Ferro had not carried
his burden to show that it was an objectionable statement. (Id.)
2. Legal Standard
Under 28 U.S.C. § 2254(d), a federal court may only grant habeas corpus
from a state court judgment where the state court’s decision on the merits was
(1) “contrary to, or an unreasonable application of, clearly established federal
law as determined by the Supreme Court of the United States” or (2) “was
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” 28 U.S.C. §2254(d). 2 In evaluating the
reasonableness of the state court’s decision, the state court must be “given the
benefit of the doubt,” applying a “highly deferential standard.” See Woodford v.
Visciotti, 537 U.S. 19, 24 (2002); see also Harrington v. Richter, 562 U.S. 86,
105 (2011). In addition, the state court is not required to support its reasoning
with Supreme Court cases, “so long as neither the reasoning nor the result of
[its] decision contradicts them.” See Early v. Packer, 537 U.S. 3, 8 (2002).
When performing a review under § 2254(d), the federal court presumes
that all factual determinations made by the state court are correct. 3 See 28
U.S.C. § 2254(e)(1). The petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” Id.; see, e.g.,
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (explaining that a federal court
can disagree with a state court’s factual finding only if “the factual premise was
incorrect by clear and convincing evidence”).
Here, Ferro brings two claims of ineffective assistance of counsel. Courts
evaluate ineffective assistance of counsel claims with a two-prong test. See
Strickland v. Washington, 466 U.S. 668 (1986). First, the petitioner must show
that counsel’s performance was deficient, meaning that counsel’s
representation “fell below an objective standard of reasonableness.” See id.
at 687–88. To prove deficient performance, the petitioner must show that
counsel’s errors were “so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” See id. at 687. Second, the
petitioner must show that counsel’s deficient performance prejudiced the
Moreover, a petitioner may only bring a claim under § 2254 if the applicant has “exhausted
the remedies available in the courts of the State.” See 28 U.S.C. § 2254(b)(1). The State agrees
that Ferro has exhausted the claims that he brings to federal court. (ECF No. 13 at 35, 40–41.)
2

Section 2254(e)(2) “prohibits an evidentiary hearing to develop the relevant claims in federal
court, unless the statute’s other stringent requirements are met.” Williams v. Taylor, 529 U.S.
420, 437 (2000). The Petitioner does not argue that any of the grounds permitting an
evidentiary hearing in § 2254(e)(2) are met; therefore, the Court denies an evidentiary hearing.
3

defense. See id. at 691. Petitioners must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See id. at 694. The two-prong test
places a burden on the petitioner to show that his counsel’s errors were “so
serious as to deprive the defendant of a fair trial.” See id. at 687.
“The petitioner’s burden to prove, by a preponderance of the evidence,
that counsel’s performance was unreasonable is a heavy one.” Jones v.
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006) (citing Chandler v. U.S., 218
F.3d 1305, 1313 (11th Cir. 2000)). “Judicial scrutiny of counsel’s performance
must be highly deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction,” and “it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable.” See Strickland, 466
U.S. at 687. A court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the
circumstances,” the challenged action “might be considered sound trial
strategy.” See id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Even if a decision seems unwise in retrospect, it will only be held to have been
ineffective assistance if it was “so patently unreasonable that no competent
attorney would have chosen it.” Dingle v. Sec’y for Dep’t of Corrs., 480 F.3d
1092, 1099 (11th Cir. 2007).
3. Analysis
Ferro filed his petition for writ of habeas corpus under 28 U.S.C. § 2254
in this Court on November 19, 2021. (ECF No. 1.) On December 28, 2021,
Ferro filed an amended petition. (ECF No. 8.) Ferro raises in this Court two
claims that he raised in state court, arguing that his trial defense counsel was
ineffective for (1) “failing to adequately investigate the State’s forensic evidence
and for failing to secure the assistance of a new medical expert for the retrial”
and (2) “failing to object to the prosecutor’s improper argument.” (ECF No. 8
at 28, 45.) The State contends that the petition is untimely and that, even if the
petition is considered timely, neither ground provides relief. The Court will
address each argument in turn.
A. Statute of Limitations
A state prisoner must file a federal habeas corpus petition within one
year of, relevant here, 4 “the date on which the judgment became final by the
4

Ferro does not contend that any of the other grounds of § 2244(d)(1) apply here.

conclusion of direct review or the expiration of the time for seeking such
review.” See Jimenez v. Quarterman, 555 U.S. 113, 114 (2009) (discussing 28
U.S.C. § 2244(d)(1)(A)). Time during which “a properly filed application for State
post-conviction or other collateral review . . . is pending” does not count
towards the one-year limitations period. See 28 U.S.C. 2244(d)(2).
The parties here dispute when the judgment at issue became final by
virtue of the “expiration of the time for seeking such review.” See 28 U.S.C.
§ 2244(d)(1)(A). In other words, the parties dispute (and, as to the statute of
limitations, only dispute 5) from what date the one-year limitations period
begins. The State argues that the clock started running on January 12, 2016,
which is ninety days after the denial of Ferro’s direct appeal was affirmed on
October 14, 2015. (ECF No. 13 at 31.) Ferro argues that the clock should have
started on February 3, 2016, which is ninety days after the state court denied
his motion for a written order, filed pursuant to Florida Rule of Appellate
Procedure 9.330(a)(2)(D), on November 5, 2015. (ECF No. 19 at 7); (ECF
No. 14-1 at 32.) Under the State’s calculation, Ferro’s petition is untimely.
Unsurprisingly, under Ferro’s calculation, the petition is timely. 6
A conviction becomes final after the expiration of time to petition for
certiorari following the entry of judgment on direct appeal. See 28 U.S.C.
§ 2244(d)(1)(A); see also Jimenez, 555 U.S. at 119–20 (holding that a
petitioner’s conviction became final once the “time for seeking certiorari review
in this Court expired”). Petitioners have ninety days after the entry of judgment
to petition the United States Supreme Court for a writ of certiorari. See Sup.
Ct. R. 13.
Key here is determining when judgment was entered. To do so, courts
look to state law. See Chamblee v. Florida, 905 F.3d 1192, 1196 (11th Cir.
2018) (holding that to “determine whether the [petitioner’s] judgment was
‘final’” under § 2244(d)(1)(A), courts “must look to the actions taken by the
state court and the relevant state law”) (citing Jimenez, 555 U.S. at 120). Under
Florida law, an appellate order is “deemed rendered” only after “any timely and
Both parties agree that the one-year limitations period was tolled from November 4, 2016,
when Ferro filed a motion to vacate judgment of conviction and sentence (ECF No. 14-1 at 153–
201), to August 23, 2021, when the mandate was issued denying the motion and affirming the
conviction (ECF No. 14-2 at 43). See Brown v. Sec’y for Dep’t of Corr., 530 F.3d 1335, 1338
(11th Cir. 2008) (noting that “a properly filed Rule 3.850 motion seeking to set aside a
conviction would undoubtedly toll AEDPA’s limitations period during its pendency”); 28 U.S.C.
§ 2244(d)(2).
5

The Court notes that Ferro has not argued that any equitable tolling should apply. See Cole v.
Warden, Ga. State Prison, 768 F.3d 1150, 1157–58 (11th Cir. 2014) (holding that, in “rare and
exceptional circumstances,” equitable tolling may be available to render an untimely petition
timely).
6

authorized motion under rule 9.330 or 9.331” is “withdrawn or resolved.” See
Fla. R. App. P. 9.020(i). Relevant here, a motion for a written opinion is a
motion under Rule 9.330. See Fla. R. App. P. 9.330(a)(2)(D). Therefore, Ferro
argues, under state law, Ferro’s conviction was final—as measured by Florida
Rule of Appellate Procedure 9.020(i)—only after resolution of his motion for a
written opinion under Rule 9.330.
The State argues that a motion for a written opinion should not delay the
finality of Ferro’s conviction. The State only cites to one case, which held that a
motion for written opinion under Florida law “does not toll the limitations
period for filing a petition for certiorari review.” See Holybrice v. Sec’y, Dep’t of
Corrs., No. 8:18-cv-2374-T-17AEP, 2019 WL 11505330, at *3 (M.D. Fla. Feb.
28, 2019). The court in Holybrice reached that conclusion by relying on
Supreme Court Rule 13, which, as explained above, gives parties ninety days
from the “date of entry of the judgment or order sought to be reviewed” to seek
certiorari review. See id. The court reasoned that as Rule 13 only contains one
exception, which provides that the ninety-day clock runs after resolution of any
petitions for rehearing, there can be no exception for other types of motions,
such as a motion for a written opinion. See id.
But, as explained above, courts do not look to federal rules to determine
when a state conviction is final; rather, courts must look to state law. See
Chamblee, 905 F.3d at 1196. Therefore, here, the Court must look to
Rule 9.020(i) to determine when a judgment in Florida is final for purposes of
§ 2244(d)(1)(A) and Supreme Court Rule 13. Applying Rule 9.020(i) in this case,
judgment was entered on November 5, 2015, and AEDPA’s one-year limitation
period began to run on February 3, 2016, or ninety days after the entry of
judgment. Using February 3, 2016, as the relevant date, and excluding any
periods where the one-year limitations period was tolled, 7 the Court holds that
Ferro’s petition is timely.
B. Ground One
First, the Court turns to Ferro’s argument that his trial counsel was
ineffective for “failing to adequately investigate the State’s forensic evidence and
for failing to secure the assistance of a new medical expert for the retrial.” (ECF
No. 8 at 28.) In particular, Ferro argues that his trial counsel failed to
adequately understand both the science and importance of the medical forensic
evidence at issue—the location of the stab wound and the organs damaged in
the stabbing—and failed to ensure that the defense’s medical expert, Dr.
As noted above, the parties agree on the relevant tolling periods. The parties only disagree on
when the conviction was final.
7

Ronald Wright, was prepared. Moreover, Ferro argues that counsel was
ineffective for failing to retain a new medical expert in the retrial.
Ferro’s petition draws heavily on the connection between Ferro’s selfdefense theory and the medical forensic evidence. Ferro’s trial theory was that
he had been knocked down to his knees just before he stabbed the victim—who
was standing over Ferro—in self-defense. (ECF No. 15-4 at 31.) At trial, the
State countered that Ferro approached the victim and that the stabbing was
not in self-defense. (See ECF No. 15-19 at 40.) To prove their respective
theories, the parties disputed the location and angle of the stabbing, as well as
the organs damaged. (See ECF No. 15-4 at 23–24.)
At the retrial, the State bolstered its case by introducing a new medical
expert, Dr. Emma Lew, and designating Dr. Rhoda Smith as an expert witness.
(ECF No. 8 at 9.) Ferro argues that at the retrial, his trial counsel did not
adequately adjust his trial strategy. (Id.) Rather, Ferro argues that his trial
counsel did not review photographic evidence concerning the location of the
wound and did not prepare Dr. Wright regarding the lack of damage to the
omentum. Moreover, Ferro argues that trial counsel erred in failing to present
the “flexion theory” to explain the lack of damage to the omentum. 8
The Court finds that this claim fails, as the state court’s adjudication of
this claim was not contrary to, or an unreasonable application of, clearly
established federal law and it was not based on an unreasonable determination
of the facts.
1. Deficient
Starting with the first prong of the Strickland inquiry, the Court finds
that the state court reasonably determined that Ferro’s trial counsel was not
constitutionally deficient. Trial counsel has a “duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Daniel v. Comm’r, Ala. Dept’ of Corrs., 822 F.3d
1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 691). However,
“strategic choices made [by trial counsel] after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Id.
(quoting Strickland, 466 U.S. at 690–91). Moreover, decisions regarding
“[w]hich witnesses, if any, to call, and when to call them, is the epitome of a
8 At the state court evidentiary hearing, Dr. John Marraccini testified regarding the “flexion
theory.” (ECF No. 7-1 at 858.) Flexion refers to the bending of the waist, which Dr. Marraccini
testified would cause the omentum to shift, thereby potentially explaining why the omentum
was not damaged here and making Ferro’s account of the stabbing more probable. (Id. at 858–
64.)

strategic decision, and it is one that [courts] will seldom, if ever, second guess.”
Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004) (quoting Waters v.
Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)); see also Chaney v. Sec’y, Fla.
Dep’t of Corrs., 447 F. App’x 68, 70 (11th Cir. 2011) (“Ineffective assistance
claims based on ‘complaints of uncalled witnesses are not favored, because the
presentation of testimonial evidence is a matter of trial strategy and because all
allegations of what a witness would have testified are largely speculative.’”)
(quoting Buckelew v. U.S., 575 F.2d 515, 521 (5th Cir. 1978)).
Ferro’s challenges to his trial counsel’s performance largely center
around his trial strategy—namely, his trial counsel’s failure “to adequately reinvestigate the State’s forensic evidence” and his failure “to secure a new
medical examiner expert witness for the retrial.” (ECF No. 8 at 29.) In
particular, the crux of Ferro’s argument is that his trial counsel was deficient
for failing “to present the Flexion theory to the jury to explain why the
omentum was not damaged.” (Id. at 30.)
As this argument boils down to trial counsel’s strategy, the argument
depends on whether trial counsel adequately investigated the case. See Daniel,
822 F.3d at 1262 (holding that trial counsel has a “duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary”). Ferro argues that his trial counsel failed to
adequately investigate the case by:
• Failing to “previously review and understand” photographs of the
stab wound and failing to prepare Dr. Wright (ECF No. 8 at 34–37);
• Failing to adequately depose the State’s medical experts (Id. at 35);
• Failing to consult with, and hire, a different medical expert (Id.
at 39, 43).
The Court finds that the state court reasonably concluded that Ferro’s
trial counsel adequately investigated the case prior to the retrial. First, Ferro
argues that trial counsel “ignored or overlooked” the importance of one
photograph, introduced in the retrial, that depicted the location of the stab
wound and that trial counsel failed to adequately prepare Dr. Wright on the
location and nature of the stab wound. (ECF No. 8 at 34); (ECF No. 7-1 at 497.)
While attorneys may not overlook “readily available document[s] that would
have opened doors to undiscovered mitigation evidence,” attorneys are entitled
to rely on the opinions of their experts, if it is reasonable to do so. See Harvey
v. Warden, Union Corr. Inst., 629 F.3d 1228, 1262–63 (11th Cir. 2011)
(concluding that “we cannot conclude that [the petitioner’s attorney] was
deficient for trusting his own expert”); Darling v. State, 966 So.2d 366, 377 (Fla.
2007) (holding that counsel was not ineffective for relying on a qualified

expert’s opinion, even if that opinion was “somehow incomplete or deficient in
the opinion of others”). Here, as the state court held, trial counsel provided Dr.
Wright with everything that he received from the State. (ECF No. 15-20 at 130–
31.) After reviewing these materials and discussing the case with trial counsel,
Dr. Wright came to a conclusion regarding the location of the stab wound, and
the state court reasonably held that trial counsel had no reason to secondguess Dr. Wright’s opinion. (Id. at 115.)
Additionally, trial counsel did not fail to adequately investigate the case
through his depositions of the medical witnesses. While trial counsel redeposed the medical witnesses before the retrial (see id. at 120), Ferro now
attacks trial counsel for failing to ask certain questions about the stab wound
and the omentum. (ECF No. 8 at 35.) However, lawyers are not constitutionally
defective for failing to ask certain questions, let alone any questions, in
depositions. See Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985).
Moreover, claims of deficiency are even weaker when the petitioner cannot
point to any “specific information” that would have been obtained in the
deposition if the petitioner’s favored line of questioning had been asked. See id.
at 637. Here, Ferro argues that trial counsel’s failure to ask witnesses about
the omentum was deficient, but Ferro does not identify any information that
could have been obtained if such questions were asked. Indeed, as the state
court noted, at the retrial, Dr. Lew and Dr. Smith agreed with Dr. Wright that
the omentum is mobile and that it could have moved, thus explaining the lack
of damage. (ECF No. 15-21 at 79); (ECF No. 7-1 at 1269.) Absent any surprise
at trial that should have alerted trial counsel to the need to ask about the
omentum at the second depositions, the Court will not use hindsight to hold
trial counsel to a level above that which is constitutionally required. Therefore,
the Court holds that the state court reasonably applied federal law when it
rejected Ferro’s claim.
Last, Ferro argues that trial counsel failed to investigate the case by
failing to consult with, and retain, a different medical expert. As noted above,
“[w]hich witnesses, if any, to call, and when to call them, is the epitome of a
strategic decision, and it is one that [courts] will seldom, if ever, second guess.”
See Conklin, 366 F.3d at 1204. The state court reasonably concluded that Dr.
Wright was a “well-qualified medical examiner” and that the decision to retain
him was reasonable. (ECF No. 7-1 at 1270.) Moreover, trial counsel’s failure to
consult another expert before the retrial was not unreasonable, as he already
had retained an expert (Dr. Wright) who he believed performed well and
presented favorably to the jury in the first trial. (ECF No. 15-20 at 119.) While
Ferro may now point to another expert that trial counsel could have consulted
and who could have explained, in a different manner, the lack of damage to the

victim’s omentum, the Court will not hold trial counsel’s decision unreasonable
with the benefit of hindsight. See Strickland, 466 U.S. at 689 (holding that
courts must “eliminate the distorting effects of hindsight” and “evaluate the
conduct from counsel’s perspective at the time”).
For the reasons set out above, the Court finds that the state court’s
conclusion that Ferro’s trial counsel conducted an adequate investigation into
the case was not contrary to, or an unreasonable application of, federal law,
nor was it based on an unreasonable determination of the facts. The Court
declines to second-guess trial counsel’s strategic decisions, such as whether to
call another expert witness or whether to ask certain questions in depositions.
And the Court holds that trial counsel reasonably relied on Dr. Wright’s
medical opinions, including those opinions relating to the location of the
wound and the organs damaged. For these reasons, the Court denies the
petition.
2. Prejudice
Turning to the second prong of the Strickland test, even if trial counsel’s
performance was deficient, the Court finds that the state court’s decision that
any deficiency was not prejudicial was not contrary to, or an unreasonable
application of, federal law, nor was it based on an unreasonable determination
of the facts. As described above, the prejudice prong requires that petitioners
show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
See Strickland, 466 U.S. at 694.
As the state court held, this case at trial did not rest on medical forensic
evidence alone. Rather, “[f]or the jury to believe that [Ferro] acted in selfdefense, the witness testimony, [Ferro’s] testimony, and [Ferro’s] credibility
were paramount.” (ECF No. 7-1 at 1274.) And the state court reasonably held
that Ferro was not credible, given his testimony concerning his initial efforts to
evade the police and obfuscate his involvement in the stabbing—testimony that
was inconsistent with a claim of self-defense. (Id. at 1272.) The state court
concluded that “it was the testimonial evidence, and [Ferro’s] lack of credibility,
not the actions of trial counsel or the defense’s medical expert, that led to the
conviction in this case.” (ECF No. 7-1 at 1274.)
Even if trial counsel put forward expert testimony regarding the “flexion”
theory to explain the lack of damage to the omentum, there is no indication
that the result would have been different. Rather, Dr. Wright, Dr. Lew, and Dr.
Smith all agreed at the retrial that the omentum is mobile. (ECF No. 15-21
at 79.) The “flexion theory” would have merely presented another theory to the
jury regarding how the omentum may have avoided damage in the stabbing.

And, as the state court noted, Dr. Lew testified that even if presented with the
flexion theory, she would not have changed her opinion that the angle and
location of the stabbing were inconsistent with Ferro’s claim of self-defense.
(ECF No. 7-1 at 1272.)
At most, even if Ferro’s trial counsel had presented a different expert
witness who testified on the “flexion” theory, the jury still would have had to
weigh such testimony against the testimony of Dr. Smith and Dr. Lew, and the
jury would have had to evaluate the credibility of Ferro’s testimony. For the
reasons set out above, the Court finds that the state court’s determination that
there was no prejudice was not contrary to, or an unreasonable application of,
federal law, nor was it based on an unreasonable determination of the facts.
C. Ground Two
Next, Ferro argues that his trial counsel was ineffective for “failing to
object to the prosecutor’s improper argument” during closing argument. (See
ECF No. 8 at 45.) In particular, Ferro argues that trial counsel should have
objected to two comments made by the State attorney in closing argument:
(1) when the State prosecutor “compared Ferro to the devil,” and (2) when the
prosecutor referred to the victim as part of a group of “fun loving kids” who had
no criminal history. (Id. at 47.)
“Ineffective assistance of counsel may be established where a defense
counsel fails to object to the prosecutor’s ‘very serious instances of
prosecutorial misconduct.’” Fugate v. Head, 261 F.3d 1206, 1223 (11th Cir.
2001) (quoting Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996)). Such
misconduct arises when a prosecutor’s objectionable remarks at closing
argument “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” See Donnelly v. DeChristoforo, 416 U.S.
637, 644 (1974); see also Sneed v. Fla. Dep’t of Corrs., 496 F. App’x 20, 28
(11th Cir. 2012) (citing Donnelly, 416 U.S. at 642–45). Moreover, the petitioner
must show that “there is a reasonabl[e] probability that, in the absence of the
improper remarks, the outcome of the trial would have been different.” See
Williams v. Weldon, 826 F.2d 1018, 1023 (11th Cir. 1987).
The Court holds that the state court’s rejection of this claim was not
contrary to, or an unreasonable application of, federal law, nor was it based on
an unreasonable determination of the facts. First, Ferro complains that the
prosecutor compared him to the devil in closing argument when the prosecutor
referenced the movie The Usual Suspects. (ECF No. 8 at 46.) The prosecutor
stated, “Every great story has a speckle of truth, a little bit of reality that gives
it that edge to make it believable. Or as Kevin Spacey said in the Usual
Suspects, the greatest trick the devil ever played was convincing the world he

didn’t exist.” (ECF No. 7-3 at 4334.) The state court held that this comment did
not infect the trial and deprive Ferro of his due process rights as the comment
was an “isolated remark that was not [] made a theme or feature of the State’s
case.” (ECF No. 7-1 at 1278); see also Crimi v. U.S., No. 6:07-cv-1858-Orl31GJK, 2008 WL 2949518, at *4 (M.D. Fla. July 28, 2008) (holding that courts
“commonly reject” ineffective assistance of counsel claims based on a failure to
object to a statement comparing a criminal defendant to the devil) (collecting
cases). The Court holds that this comment did not deprive Ferro of a fair trial
and that the state court’s determination was not contrary to, or an
unreasonable application of, federal law, nor was it based on an unreasonable
determination of the facts.
Second, Ferro complains that the prosecutor unlawfully referred to the
victim as part of a group of “fun-loving kids” without a history of violence. (ECF
No. 8 at 47.) The state court held that Ferro failed to carry his burden to show
that this was an objectionable statement, as the statement was a “reasonable
inference” from the evidence presented. (ECF No. 7-1 at 1278.) At closing,
prosecutors may “argue both facts in evidence and reasonable inferences from
those facts.” See U.S. v. Gonzalez, 834 F.3d 1206, 1226 (11th Cir. 2016). The
Court holds that the state court’s determination that Ferro failed to show that
this statement was objectionable was not contrary to, or an unreasonable
application of, federal law, nor was it based on an unreasonable determination
of the facts.
4. Conclusion
For the reasons explained above, the Court denies Ferro’s petition (ECF
No. 8), and the Court holds that the state court’s adjudication of Ferro’s claims
was not contrary to, or an unreasonable application of, federal law, nor was the
state court’s adjudication based on an unreasonable determination of the facts.
The Court declines to issue a certificate of appealability. 9 The Clerk is directed
to close the case. Any pending motions are denied as moot.
Done and ordered at Miami, Florida on May 5, 2022.
________________________________
Robert N. Scola, Jr.
United States District Judge

A certificate of appealability may only issue “if the applicant has made a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). For the reasons explained
above, the Court finds that Ferro did not make such a showing.
9