Crosley Alexander Green v. Secretary, Department of Corrections ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-13524
____________________
CROSLEY ALEXANDER GREEN,
Petitioner-Appellee,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellants,
HARDEE CORRECTIONAL INSTITUTION WARDEN,
Respondent.
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2 Opinion of the Court 18-13524
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:14-cv-00330-RBD-TBS
____________________
Before JORDAN, TJOFLAT, and TRAXLER,* Circuit Judges.
TJOFLAT, Circuit Judge:
The power of the federal courts to grant a writ of habeas
corpus setting aside a state prisoner’s conviction on a claim that his
conviction was obtained in violation of the United States Constitu-
tion is strictly circumscribed. First, the prisoner must have ex-
hausted his state remedies. 28 U.S.C. § 2254(b)(1)(A). He pre-
sented the claim to the state courts, and they denied it on the mer-
its. Second, the federal court may not grant the writ on an ex-
hausted claim unless it finds that the state courts’ adjudication of
the claim “was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the Su-
preme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “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). Additionally, factual findings made by state courts are
presumed correct until rebutted by “clear and convincing
*The Honorable William. B. Traxler, Jr., Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
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18-13524 Opinion of the Court 3
evidence.” 28 U.S.C. § 2254(e)(1). Finally, the federal court may
only consider the merits of an unexhausted claim if the prisoner
establishes “cause and prejudice” for his failure to exhaust, Engle v.
Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573 (1982), or that he is
“actually innocent” of the crime for which he was convicted. Mur-
ray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2646-49 (1986).
In this case, Crosley Alexander Green, a state prisoner, peti-
tioned the District Court for a writ of habeas corpus vacating his
convictions for murder, armed robbery, and kidnapping with bod-
ily injury. His petition presented nineteen constitutional claims.
Most had not been exhausted. The Court granted the writ on an
unexhausted claim and denied the writ on the rest. The State ap-
peals the granting of the writ, and we reverse. The prisoner cross-
appeals the Court’s denial of the writ on six of the claims, and we
affirm.
We begin by describing the circumstances that led to the
prisoner’s convictions. From there, we portray step by step the
complex and confusing litigation history—initially in state court,
and then in federal court—of the claims we decide in these appeals.
I.
A. 1
1 The facts set out in subpart A depicting the commission of the crimes charged
against Green are based solely on Kim Hallock’s trial testimony.
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At approximately 10:00 p.m. on April 3, 1989, in the rural
part of Brevard County, Florida, Charles “Chip” Flynn Jr., age
twenty-one, went to visit his on-again, off-again girlfriend Kim Hal-
lock, age nineteen. About an hour later after watching a movie,
they decided to go for a drive in Flynn’s pick-up truck. Around
11:25 p.m., the two ended up in a secluded area of Holder Park next
to some sand dunes. Flynn parked his truck there, and he and Hal-
lock smoked marijuana and discussed the nature of their relation-
ship.
Hallock and Flynn had been seeing each other for about a
year and a half. And while they had once gone steady, their rela-
tionship was now an open one. Not only was Flynn seeing Hallock,
he was involved with other women as well, including a Patti Lar-
ney.
As Hallock and Flynn smoked and discussed their relation-
ship, a sheriff’s car drove by but continued on without stopping. 2
Almost immediately after the car passed, a black male approached
Flynn’s truck and warned Hallock and Flynn, both white, to watch
out for police. The man then disappeared into the darkness.
A few minutes later, Flynn, barefoot, got out of the truck to
relieve himself. He immediately found himself face to face with
the same black male as before, who was now holding a handgun.
2Brevard County Sheriff’s Deputy Mark Rixey testified that he was on patrol
that evening and drove through Holder Park sometime between 11:30 p.m.
and 1:30 a.m.
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Hallock heard Flynn say nervously, “Hold on. Wait a minute,
man. Hold on. Put it down.” At that point, she retrieved Flynn’s
handgun from the glove box beneath the dashboard and hid it un-
der a pair of jeans lying next to her on the truck’s seat. The man
ordered Flynn to his knees and demanded at gunpoint that Hallock
and Flynn give him any money they had. Hallock gave the man
five dollars, but Flynn insisted that he had no money.
The man told Hallock to give him a shoelace from one of
Flynn’s shoes, which were on the floorboard on the driver’s side of
the truck, and then used the shoelace to tie Flynn’s hands behind
his back. While tying Flynn’s hands, the man accidentally dis-
charged his weapon, but no one was injured. At this point, the man
noticed that Flynn had a wallet in his back pocket. He pulled it out,
threw it to Hallock, and told her to count the money it contained.
It amounted to $185.
The man ordered Hallock to start the truck and forced Flynn
to get in and sit next to the passenger door. Then, he got in and
positioned himself behind the steering wheel. Hallock sat between
the man and Flynn. The man drove east on Parrish Road across
U.S. 1 until he reached Hammock Road, all the while holding a gun
to Hallock’s side. At Hammock Road, the man turned left and
drove north 200 to 300 yards before pulling into a remote orange
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grove adjacent to Indian River Lagoon3 and approximately 2.5
miles from Holder Park.
After coming to a stop in the orange grove, the man pulled
Hallock out of the truck. Hallock broke free of the man’s grip and
tried to run away. While the man was regaining control of her,
Flynn, with his hands still tied behind his back, grabbed the hand-
gun Hallock had hidden beneath the pair of jeans and exited the
truck on the passenger side. He fell to the ground in the process
and attempted to shoot at the man. When the man turned his at-
tention to Flynn, Hallock jumped in the truck and drove off. She
heard gun shots as she fled.
Hallock headed south back down Hammock Road to Jay Jay
Road and took Jay Jay Road west to U.S. 1. Once on U.S. 1, she
headed south for about half a mile to LaGrange Road, at which
point she turned right and proceeded to Flynn’s best friend David
Stroup’s house trailer. In driving there, she chose not to stop at
houses along the way, to proceed on to a hospital located nearby
on U.S. 1, or to go to her parent’s home.4 From Stroup’s trailer,
Hallock called 911 and reached the communications center at the
Sheriff’s Office.
B.
3Indian River Lagoon is a grouping of three lagoons on Florida’s Atlantic
Coast. The lagoon contains five state parks and a national seashore.
4The hospital is located on U.S. 1 approximately eight-tenths of a mile south
of LaGrange Road.
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The communications center documented the 911 call at 1:11
a.m. on April 4, 1989. The caller identified herself as Kim Hallock.
She stated that a black guy had pulled a gun on her and her boy-
friend and “took us somewhere” in the woods “off of Jay Jay Road.”
She said this was “all I know . . . but I know how to get there.” The
operator advised her to “just stay right there . . . and we’ll have a
deputy come out and then he’ll take you out to where . . . this is
at.” At 1:12 a.m., Sergeant Diane Clarke and Deputy Mark Rixey,
driving separate patrol cars, responded to the call.5 The communi-
cations center dispatcher initially sent them to the corner of Jay Jay
Road and U.S. 1, but on arriving there, they saw nothing of signifi-
cance. They requested further direction from the dispatcher, who
sent them east on Jay Jay Road.
Deputy Wade Walker was dispatched to Hallock’s location
at the trailer park. He arrived at around 1:30 a.m. By that time,
Hallock had called her mother, who told her not to leave until she
got there. Walker advised Hallock to wait on her mother, delaying
them about two minutes. In the meantime, Clarke and Rixey had
been unable to find the orange grove and were requesting addi-
tional directions. Walker and Hallock met up with Clarke and
Rixey and Hallock directed them to Flynn. Upon arriving at the
5 Sergeant Clarke, a supervisor in the Sheriff’s Office, heard the 911 call, Hal-
lock’s description of her and Flynn’s abduction, and what had occurred at the
orange grove. Clarke told the communications center dispatcher that she
would go with Deputy Rixey, who was working the night-time patrol shift, to
try to find the orange grove.
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orange grove, Clarke and Rixey parked their patrol cars and pro-
ceeded on foot. Walker stayed behind with Hallock.
At 1:42 a.m., Clarke and Rixey found Flynn lying face down,
covered in blood, with his arms tied behind his back. His loaded
.22-caliber revolver was a few feet away. After untying Flynn’s
hands, they repeatedly asked Flynn what had happened. His sole
response was, “Get me out of here. I want to go home.”
Clarke had the dispatcher send a rescue unit to the scene and
with Rixey attempted to staunch the bleeding. But they were una-
ble to locate its source, a single gunshot wound in the chest. They
initiated a breathing exercise twice while awaiting the rescue unit’s
arrival. Unfortunately, by the time it arrived, at 1:57 a.m., Flynn
had succumbed.6
Clarke and Rixey remained on site until Agent Debbie
Demers, 7 a criminalist, and Agent Scott Nyquist, 8 a homicide
6 Flynn was officially pronounced dead upon arrival at the hospital.
7Agent Demers, a member of the Sheriff’s Office Criminalistics Unit handling
crime scene investigation, preserved the crime scene in the orange grove and
took photographs. These photographs included pictures of footprints found at
Holder Park, where Flynn had parked his truck and encountered Green.
8 Agent Nyquist, a member of the Sheriff’s Office Homicide Unit, became the
case agent. He was “responsible for maintenance of the case file [and] liaison
with [the] crime labs, [the] evidence technicians, [and] the State Attorney’s Of-
fice. If there [were] any documents that [were] prepared, such as search war-
rants, etc., he [was] responsible for the preparation of those documents.”
Nyquist also interviewed witnesses and assimilated the information he re-
ceived from all who were working under his direction.
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investigator, arrived and assumed control of the crime scene. At
no point before or after their arrival did Clarke or Rixey see or
speak with Hallock, who stayed in Deputy Walker’s patrol car with
Walker a good distance from the spot where Flynn’s body was
found. Once Clarke and Rixey left the scene, neither had any fur-
ther involvement in the homicide investigation.
Walker took Hallock to the North Precinct station of the
Brevard County Sheriff’s Office in Titusville for questioning.
Agent Nyquist interviewed Hallock at around 4:45 a.m., and in a
tape-recorded statement she related what had transpired while she
was with Flynn. About two hours later, Sergeant Tom Fair, 9 hav-
ing obtained from the Homicide Unit a box of sixty to seventy mug
shot photographs of black males, showed the photographs to Hal-
lock to see if she could identify the individual who had assaulted
her and Flynn. She was unable to identify his photograph.
Meanwhile, at 5:10 a.m., Deputy O’Dell Kiser, the Sheriff’s
Office canine officer, and his dog, Czar, were called to the area in
Holder Park where Flynn had purportedly parked his truck.10
Agents Debbie Demers, Barry Liford, and Randy Arieux of the
9 Sergeant Fair was head of the Homicide Unit of the Sheriff’s Office. He des-
ignated Nyquist as the case agent.
10 Czar had been trained in Germany. Kiser was assigned to the dog in 1985.
He had worked with Czar for one week in Brooksville, Florida, then for 480
hours at Mid Florida Technical Institute School. These times were spent track-
ing scent from clothing and footprints. Czar had done scent work for Kiser on
at least 700 occasions and had been recertified annually since 1985.
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Sheriff’s Office Criminalistics Unit were there to meet him. They
directed Kiser’s attention to some visible footprints. The footprints
were “fresh,” made by “some type of tennis shoe.” Kiser put Czar
on the footprints and “told him to track.” 11 The footprints were
“headed north.” Kiser could “tell [that] by the point of the shoe.”
But he and Czar went “the opposite way of the track,” “south on
Glendale Boulevard . . . for probably 200 yards,” where the “road
turns from dirt to pavement,”12 toward Briarcliff Way. Czar turned
right on to Briarcliff Way and “continued west on Briarcliff to a
house . . . on the northeast corner of the intersection of Briarcliff
and Belvedere.” Czar stopped “in the front yard” of the house.
They stopped there because two dogs in the carport “started bark-
ing.” The address for the house was 3658 Briarcliff Way. Two days
later, on April 6, Celestine Peterkin, Green’s older sister, ques-
tioned and said that the house was her residence and that Green
“stayed [there] some of the time.”13
Kiser had Czar run a “second track.” Czar started with the
former scent, the one picked up at the spot where the first track
11Kiser selected isolated footprints far from any other footprints “within that
general vicinity.”
12Glendale Boulevard runs north and south. It extends from Parrish Road
(which runs east and west) north to Holder Park.
13Peterkin said this while testifying in Green’s defense in the guilt-innocence
phase of the trial.
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began, and “went around the baseball fields.” That track ended
where the first track began.
Shortly after 6:00 a.m. on April 4, Hallock, still at the North
Precinct station, met with a police sketch artist who created a com-
posite of the man she and Flynn had encountered at Holder Park.
She told the sketch artist that the man “had a wide nose like a flar-
ing nose . . . . His eyes were not big but not small . . . . His lips
weren’t big.” She further described him as wearing “a green like
army jacket, jeans, and shoes like a work boot because it was
heavy.”
The next day, April 5, Florida Today, the major daily news-
paper serving Brevard County, reported on the Flynn homicide in
its morning edition. The report included a description of the al-
leged assailant and the composite the sketch artist had created of
his face. 14 Dale Carlisle read the report, concluded that the com-
posite sketch was of Crosley Green, and called the Brevard County
Sheriff’s Office with the following information. He, his wife, and
his children had visited Holder Park on the evening of April 3 to
watch a baseball game. While there, he saw a man he thought he
knew from junior high school days. His nickname back then was
14 Florida
Today ran a follow up story on April 6 which included a photograph
of Green’s face.
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Papa Green. So, he approached the man and asked him whether
he was “Papa Green.” The man replied that he was. 15
Willie B. Hampton, formerly an auxiliary police officer with
the Titusville Police Department, also read the Florida Today April
5 report on the Flynn homicide. He recognized the individual in
the artist’s sketch and contacted the Brevard County Sheriff’s Of-
fice to relate what he had observed on the evening of April 3 at
Holder Park. At the time, he was umpiring Little League games
and saw Crosley Green standing outside the fence watching a
game. He recognized Green because he had known Green and his
family, his brothers, sisters, and mother, for years. Green stood
there behind the fence for the whole game, until it ended at around
10:00 p.m.
Hallock was summoned to the North Precinct station late in
the evening of April 5. Her father, Robert Hallock, accompanied
her. Sergeant Fair had Agent Nyquist put a photographic lineup
together. It contained the photographs of “six black males of simi-
lar physical characteristics . . . numbered 1 through 6.” Fair told
Hallock that one of the photographs “may or may not [be] of the
individual who had done these things.” She identified the
15 According to the Florida Department of Law Enforcement (“FDLE”) “In-
vestigative Summary” dated July 25, 2000, and made part of the postconvic-
tion record in this case, Carlisle provided the Sheriff’s Office with a sworn rec-
orded statement containing the information indicated in the above text on
April 5, 1989, at 1:30 p.m.
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photograph in position No. 2 as being the individual who had kid-
napped her and shot Flynn. No. 2 was a photograph of Crosley
Green. 16
After Hallock identified Green as the assailant, a warrant
was obtained for his arrest. On June 8, 1989, he was found in the
Town of Mims and taken into custody.
C.
On June 20, 1989, a grand jury returned an indictment to the
Circuit Court of Broward County charging Green with first-degree
felony murder (Count I), a capital crime, robbery with a firearm
(Counts II and III), and kidnapping (Counts IV and V). 17 At
16 At trial, the jury received evidence that established the facts set out in sub-
part B with the exception of how Sergeant Fair obtained Green’s photograph.
The jury was not made privy to that information; it is contained in the FDLE
Investigative Summary. Copies of the composite sketch of Flynn’s suspected
assailant were “circulated within the Mims community.” “On April 4, Deputy
J.A. Copenhaver showed the sketch to a Ruby Moorer” who said it looked like
“Papa” Green. A black man identified as “Wilbur” said it looked like “Pop”
Green. On April 5, a Kerwin Hepburn told two relatives of Flynn’s that he
had heard that “‘Papa’ Green” committed the murder. Armed with this and
other information suggesting Green’s involvement in the Flynn homicide,
Agent Nyquist attempted to locate a photograph of Green. The Sheriff’s Of-
fice did not have one. On learning that Green had recently been released from
a Florida prison, Nyquist obtained a photograph of Green from the Florida
Department of Corrections. It became No. 2 in the photo array Sergeant Fair
showed Hallock.
17See Fla. Stat. §§ 782.04(1)(a)(2) (murder in the first degree, a capital felony),
812.13(1) and (2)(a) (robbery with a firearm), and 787.01(a)(2) and (a)(3)
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arraignment, Green pled not guilty to all counts. The prosecutor
subsequently notified Green that the State would seek the death
penalty on Count I. This required the Circuit Court to conduct
Green’s trial in two phases, a guilt-innocence phase and a penalty
phase.
After months of discovery, 18 the Circuit Court set the case
for trial to begin on August 27, 1990. It started on schedule.
1.
In the guilt-innocence phase, the State established the facts
presented in subparts A and B, supra, with evidentiary exhibits, wit-
nesses Agent Nyquist and his team identified prior to Green’s in-
dictment, and three individuals the team uncovered as their inves-
tigation progressed. These three individuals were Sheila Green,
Lonnie Hillery, and Jerome Murray; each testified that Green had
confessed to killing Flynn.
Sheila Green 19 said Green was “my oldest brother.” The day
after Flynn’s murder, she was with Green at her sister Celestine
(kidnapping). Counts II and IV alleged offenses against Flynn, while Counts
III and V alleged offenses against Hallock.
18 Discovery under Florida Rules of Criminal Procedure 3.330 is extensive and
reciprocal. In this case, scores of depositions were taken, even of witnesses
who would not be testifying at trial.
19 Sheila Green, Lonnie Hillery, and several others had been indicted in federal
court for “conspiracy with intent to distribute and possession with intent to
distribute cocaine.” All were convicted except Hillery. Sheila Green was
awaiting sentencing when she testified as a prosecution witness at Green’s
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Peterkin’s house at 3658 Briarcliff Way in Mims. The “rumor was
out” that Green had killed Flynn. She asked him if he “did kill that
dude.” He said he “didn’t intentionally make it happen that way,”
that “the dude pulled the gun . . . and motioned for the . . . the girl
to run for help.” “He said he went struggling with the dude. It was
him or either the dude, [sic] but the dude had the gun.”
Lonnie Hillery, Sheila Green’s boyfriend and the father of
two of her children, saw Green in the early morning hours of April
4, 1989, in a field by the government housing project located “by
[Green’s] ‘grandfather’s barbecue stand.’” Hillery, who knew
“Papa” Green, said he seemed “shaky” and “scared,” “like he was
high on something,” and he was dirty, “like really scuffed up like,
you know, like he’d been in the dirt or something.” When he asked
Green what was wrong, Green said, “I fucked up, man. I fucked
up.” “Man, some people came through and was trying to buy
something from [me] and they tried to get [me], and [I] just fucked
up.” “[I]t was a man and woman.” “He said they tried to get him,
they hustled a little bit and the girl took off and that’s where he
fucked up.” A few days later, Green told Hillery that he had gotten
rid of his clothes and that everything was going to be all right.
trial. The presentence report recommended that she be imprisoned for ten
years. She anticipated that Christopher White (who was prosecuting the
charges against Green) would appear at her sentencing hearing and inform the
federal judge of the testimony she gave for the State at Green’s trial.
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Jerome Murray was in Mims one afternoon standing and
talking with twenty or thirty “cocaine heads” on a street corner.
Murray was drunk. At some point, Green “came and said he just
killed a man.” Green said, “I’m going to disappear” but nothing
else. Murray added: “I heard what he said, and then I read it in the
paper the next day, but the description didn’t fit it until another
paper came out and then had his name underneath of it.”
After presenting evidence sufficient to establish the facts
stated in subparts A and B, the State rested its case in chief. Green
moved for a directed verdict and made multiple motions for mis-
trial. 20 The Court denied the motions.
Green’s attorney called five witnesses to testify in Green’s
defense: Terrell Kingery, Charles Smith, Brenda Harper, James
Carn, and Celestine Peterkin. Kingery, the first called, was an ex-
pert in the “field of shoe and tire impressions.” He testified that he
had examined four of the plaster casts that had been made (at the
Sheriff’s Office request) of foot impressions Deputy Kiser had ob-
served while Czar was following the scent in the Holder Park area.
According to Kingery, all four impressions were of tennis shoes of
“a size ten and not larger than a size twelve.” The impressions
were made of several named brands, perhaps more than ten.
20Green moved for a mistrial on the basis of objections he made regarding
Hallock’s photographic and in-court identifications of him, Czar’s tracking at
the hands of Deputy Kiser, and Robert Hallock’s testimony involving conver-
sations he had with Hallock, his daughter.
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Charles Smith was the “Chief Umpire” at the Holder Park
baseball fields. He was at the Park umpiring a game in the evening
of April 3, 1989. Green was there too. 21 Smith umpired a game
and visited with Green “between innings, and . . . talked to him
after the game.” Green “was wearing tennis shoes.” He was “sure”
that Green wasn’t wearing “any kind of field jacket or army jacket.”
Before Smith left Holder Park “a few minutes after 9:00,” Green
asked him for money. “It was probably more than $2.”
Brenda Harper lived across the street from Hallock. Hallock
came to her house on April 4 at around 11:00 a.m. on Hallock’s way
home from the Sheriff’s office. Harper said Hallock “had a grass
stain, dirt, right here on her shirt” and then indicated where the
stain was located.
James Carn, a maintenance mechanic, was employed by
North Hydro in Rockledge, Florida. On April 3, 1989, he got off
work at 11:00 p.m. and went to Carleen Brothers’ house in Mims.
Carn was seeing Brothers, a cousin of Green’s, at the time. When
he arrived at 11:50 p.m., he discovered that another man was in the
house. An argument ensued and the man left. At that point, Broth-
ers, followed by Carn, went across the street to a “friend’s house,
Aretha’s,” arriving “at about 12:10 or 12:15.” They stayed there
“another ten or fifteen minutes, and arrived back at Brothers’
house around 12:30 p.m.” “About five or ten minutes after that
21Smith drove to Holder Park with Green’s brother, O’Connor Green. Smith
had known Green for “as long as I’ve been here.”
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that’s when Papa came to the door . . . . Mr. Green.” He entered
and stayed, “sitting there with us watching TV” for a while. Then
Carn went to bed, at “about [a] quarter to 2:00.” Between Green’s
arrival at Brothers’ house and “about [a] quarter to 2:00,” Green
was with Carn “the entire time.” 22
Celestine Peterkin testified that when she visited her
younger sister Sheila Green in prison, Sheila never told her that
Green admitted to killing Flynn. Sheila was in prison pending sen-
tencing for cocaine distribution. 23 Peterkin said Sheila loved her
kids and “would do anything to be with her kids.” Peterkin told
the police on April 6, 1989, that Green “was living with [her] and
her cousin in Mims, Carleen.”
The defense rested after Peterkin testified. The State, in re-
buttal, called one witness, Agent Nyquist. He testified that on April
5, 1989, in an article about the Flynn murder, Florida Today pub-
lished the artist’s sketch of Hallock’s description of the murder sus-
pect. The sketch had been made at around 6:00 a.m. The
22 On cross-examination by prosecutor White, Carn admitted the following:
when law enforcement subsequently questioned Brothers at her house about
Green’s possible involvement in the Flynn homicide, he was present and never
mentioned seeing Green at Brothers’ house as he testified on direct examina-
tion. The first time he told the police or the State Attorney or any attorney
for the defendant about seeing Green at Brothers’ house on April 4, 1989, was
shortly before prosecutor White took his deposition on May 14, 1990.
23 See supra note 19.
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newspaper ran a second story the next day, and it contained a
photo of Green’s face.
Nyquist was asked about the distance between the orange
grove where Flynn was found and Brothers’ house in Mims. He
said it was 1.5 miles. On cross-examination by defense counsel, he
was asked about the distance between Holder Park and the orange
grove and how long it took to drive it. He said the distance was 2.9
miles, and he drove it in five to six minutes.
Green presented no surrebuttal, and following a charge con-
ference with the Court, the parties delivered their closing argu-
ments to the jury. The State’s first chair, Christopher White, deliv-
ered the State’s opening argument. It was relatively brief. White
summarized what the evidence disclosed—namely, the facts re-
cited in subparts A and B—and asked the jury to return a verdict of
guilty on all charges.
John Parker responded for the defense. His strategy was to
focus on the holes he saw in the State’s case. He claimed that the
problems with Hallock’s story began with the fact that she was un-
der the influence of marijuana the night of the murder—something
she initially lied about to police. Add to that the fact that it was
pitch black that night—with no artificial lighting in the park (and
potentially no interior light on in the truck)24—and it became prac-
tically impossible for her to have gotten a “good look, as the State
24Green’s counsel noted that “Miss Hallock [could not] recall whether or not
the interior light even came on.”
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20 Opinion of the Court 18-13524
would have [the jury] believe, at [the] man who committed” the
crimes.
Parker reminded the jury that Hallock initially told police
that the first time she saw the black man he was a “blur.” And
when the police asked whether the man had any facial hair, Hallock
responded that she was “not really sure.” She, in her own words,
“didn’t even get a good look at him” because she was “really
scared.”
He argued that Hallock was simply “relying on what the po-
lice told her.” When showing Hallock the photo line-up, the police
informed her that their suspect’s photograph was one of the pho-
tos. Once she picked Green, they confirmed that she had picked
the right person. Then, after the line-up, Hallock read all of the
newspaper articles, some of which contained Green’s name and
photograph, and saw Green on a trip to the Brevard County Jail for
school. So, Parker argued that while Hallock believed Green com-
mitted the crime, this belief was based not on her own observation
but on her having seen his picture in the paper and having been
told by the police that he was the suspect.
Parker claimed that Hallock was likely drawn to Green’s
photograph in the line-up because Green had the darkest skin color
in the line-up. It was also possible that Green’s photograph was the
only new image she was shown. The loose box of photographs had
vanished, so for all they knew, Hallock could have already seen
photos of the five other men and concluded they were not the kid-
napper. Plus, Hallock was, at first, only “pretty positive” Green
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18-13524 Opinion of the Court 21
was the perpetrator. It was not until police repeatedly asked
whether she was sure that she confirmed that it was him. In Par-
ker’s mind, when you keep being asked if you are sure, “sooner or
later you get the message.”
He also suggested that none of the witnesses to whom
Green allegedly confessed, or who supposedly saw Green at the
ballpark in a green army jacket, could be trusted. Jerome Murray’s
timing of events did not line up; he claimed that Green confessed
to him at 10:30 p.m., several hours before the kidnapping and mur-
der. Murray was also “wasted,” having consumed two six-packs of
sixteen-ounce malt liquor before speaking with Green. The prose-
cutor also spoke to a judge on Murray’s behalf, getting Murray out
of jail once after he was arrested.
Parker also reminded the jury that Sheila Green was facing
many years in prison on federal drug charges during which she
would be separated from her four children. Parker claimed that
she did not come forward on her own before she was convicted,
and she never told her sister Celestine Peterkin that her brother
had confessed to killing someone. What’s more, Peterkin testified
that Sheila did not even live in Mims during the time she suppos-
edly heard this “tale” at Peterkin’s house.
Nor did Lonnie Hillery, Sheila’s lover and the father of two
of her children, come forward originally. Parker asked the jury to
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22 Opinion of the Court 18-13524
think about what he would be willing to say to keep Sheila from
going to prison.25
Parker further argued that Green’s appearance did not
match Hallock’s description of the assailant on the night of Flynn’s
murder. Dale Carlisle, who before the baseball game had not seen
Green since the ninth grade, claimed Green had short, cropped hair
the day of the murder. Parker pointed out that this contrasted with
Green’s hair at the time of the offense, 26 his hair in the photo line-
up, and Hallock’s description of the man’s hair at her deposition:
greasy hair with a sort of sheen or perm. Carlisle also said Green
was wearing desert boots or casual-type wear, not the heavy work
boots Hallock described.
Willie Hampton, in his initial statement to the police, said
Green was wearing some sort of garment but not a field jacket. At
the time, he could not remember if it was black or blue. Parker
claimed it was only the newspaper article that “refreshed” Hamp-
ton’s memory.
Green’s witness, Charles Smith, on the other hand, said
Green was not wearing an army jacket and that he was wearing
tennis shoes. Furthermore, James Carn testified that Green was
with him at the time of the murder. Contrary to the State’s claim
25 Hillery
was acquitted of the same federal drug offenses for which Sheila was
convicted.
26 Green’s counsel cited Hampton and Smith’s testimony that Green’s hair was
very short at the ballpark on the day of the murder.
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18-13524 Opinion of the Court 23
that Carn might be mis-remembering which night he saw Green—
Carn did not come forward until a year later—Parker argued that
Carn remembered the night he saw Green because of the argument
at Brothers’ house.
Parker also argued that it was impossible to know how Czar
tracked to Peterkin’s house. The scent of other animals or humans
could have disturbed the track, and the smell of the dogs at Peter-
kin’s home could have attracted Czar. The police also neglected to
have Czar attempt to track the individual or individuals who made
additional prints at the Holder Park scene.
In the end, Parker highlighted a litany of facts which he be-
lieved pointed to Hallock as the killer, not Green: Flynn’s hands
were tied “for comfort” rather than security; Hallock was allegedly
jerked from the truck more than once but had no injuries; her left
handprint and fingerprints were all over the truck, but Green’s
were not; Hallock initially told police she did not know where the
perpetrator was when she fled but later claimed she saw the man
poised to shoot as she drove away; Hallock was consistently able
to escape the armed kidnapper’s grasp without getting shot; there
were no tracks in the grove, which would indicate the black man
fled on foot; Flynn failed to identify the shooter when asked, re-
peating only “I want to go home. Just get me out of here”; the
handgun Flynn supposedly fired was found four to five feet away
from him; Flynn suffered an injury to his right rear thigh, consistent
with someone dragging him headfirst; Hallock drove to Flynn’s
best friend’s house to get help, not her parent’s house, or the
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24 Opinion of the Court 18-13524
hospital on US 1; miraculously, no one was injured when the gun
discharged while the man was tying Flynn’s hands behind his back;
Flynn was sleeping with another woman at the same time as Hal-
lock, and Hallock was not happy about it; the bullet that killed
Flynn could have come from his own gun; and the truck’s glove
box was broken, causing it to dump its contents on the floor when
opened, yet the perpetrator somehow did not notice when Hallock
opened it and removed Flynn’s gun. While he never explicitly
named Hallock as the killer, Parker left the firm impression with
the jury that, in his mind, she was the culprit.
Philip Williams, the State’s second chair, gave the State’s re-
buttal. He focused on what the State considered to be Green’s real
defense—that Hallock, “a jealous lover,” did the killing. Except
that Parker would not come right out and say it. Parker “alluded
to the fact that the killer . . . may have been Kim Hallock.” So,
Williams asked, “why wouldn’t Parker just say it?” The answer:
“He wouldn’t because it’s ludicrous, and he doesn’t have the cour-
age just to come right out and say it. I think she killed” Flynn. Par-
ker, he said, was just “grasping at straws.”
Williams accused Parker of misrepresenting Hallock’s testi-
mony about the alleged encounter with Green. So, he proceeded
to review Hallock’s testimony about it in detail. Then, he turned
to Czar’s tracking of the footprints to Peterkin’s house on Briarcliff
Way, where Green lived according to his sister, Sheila. From there,
it was only a “quarter of a mile by foot on a road . . . up to the
dunes” where Flynn parked his pickup truck.
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18-13524 Opinion of the Court 25
Williams explained the absence of Green’s fingerprints on
Flynn’s truck. “They couldn’t [even] find the prints of the guy who
owned the truck,” he said. Finally, to rebut Parker’s criticism of
Hallock’s identification of Green based on her observations of him
that night, Williams walked the jury through her testimony.
Williams closed by reminding the jury of the damning testi-
mony of Sheila Green, Lonnie Hillery, and Jerome Murray, and
asked the jury to use its common sense.
2.
At the end of the guilt-innocence phase, the jury found
Green guilty of all charges. The penalty phase on the trial of Count
I followed. The State introduced proof that Green had been con-
victed of armed robbery in New York in 1977 and urged the jury to
recommend a death sentence based on four aggravating factors: (1)
Green was previously convicted of a violent felony; (2) the capital
felony was committed while Green was engaged in kidnapping; (3)
the murder was committed for pecuniary gain; and (4) the murder
was especially heinous, atrocious, and cruel. With that, the State
rested.
Green’s defense was brief. Parker called two witnesses,
Shirley and Damon Jones. They testified about Green’s upbringing
in a dysfunctional family. When Green was in prison in New York,
his father shot and killed his mother before committing suicide; this
tragedy had a devastating effect on Green.
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26 Opinion of the Court 18-13524
The jury recommended the imposition of a death sentence
by a vote of eight to four, and the Circuit Judge imposed the sen-
tence after finding the aggravating factors listed by the State and no
statutory or non-statutory mitigating factors. Green v. State
(Green I), 641 So. 2d 391, 395–96 (Fla. 1994).
D.
Green appealed his convictions and death sentence to the
Supreme Court of Florida. Green I, 641 So. 2d at 391. He chal-
lenged the validity of his convictions on four grounds 27 and his
death sentence on five. 28 He was unsuccessful. The Florida
27 The four grounds for overturning Green’s conviction were:
Whether (1) the trial court erred in admitting evidence of dog
scent tracking; (2) the trial court erred in denying Green’s mo-
tion to suppress Kim Hallock’s identification; (3) the trial court
erred in denying Green’s motion for the jury to view the mur-
der scene; (4) the trial court erred in instructing the jury on
flight.
Green I, 641 So. 2d at 394 n.1.
28 The five grounds for overturning Green’s death sentence were:
(5) the trial court erred in considering as separate aggravating
circumstances that Green committed the murder for pecuni-
ary gain and Green committed the murder during a kidnap-
ping; (6) the trial court erred in finding that the murder was
heinous, atrocious, and cruel; (7) the trial court improperly re-
fused to find mitigating circumstances; (8) the death penalty is
disproportionate; and (9) the heinous, atrocious, or cruel ag-
gravator is unconstitutionally vague.
Green I, 641 So. 2d at 394 n.1.
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18-13524 Opinion of the Court 27
Supreme Court rejected all but one of the grounds 29 on the merits
and affirmed the Circuit Court’s judgment. One of the grounds the
Court rejected is pertinent here: the Florida Supreme Court re-
jected Green’s argument that the Circuit Court erred in denying
Green’s motion to suppress Hallock’s identification of him as
Flynn’s killer in the pretrial photographic lineup and at trial. Id. at
395 n.2.
II.
On March 18, 1997, Green, represented by Capital Collateral
Regional Counsel (“Collateral Counsel”), moved the Circuit Court
of Brevard County pursuant to Florida Rule of Criminal Procedure
3.850 30 to vacate his convictions and death sentence. 31 The motion
was amended on November 30, 2001. In the interim, the Florida
Department of Law Enforcement (“FDLE”) conducted a post-trial
29The Florida Supreme Court ruled in Green’s favor on the ground (9) chal-
lenge to his death sentence but did not set aside the sentence. As indicated
infra part II.C, however, the sentence was subsequently vacated, and Green
was sentenced to life imprisonment instead.
30Green filed the motion under Rule 3.851 as well as Rule 3.850 because Rule
3.851 applies to capital cases. For purposes here, the rules are identical. We
refer to them as Rule 3.850.
31The motion was a mere “shell.” It had to be filed in skeleton fashion to toll
the time in which Green would have to petition a federal court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the event the state courts failed
to grant him the relief he requested.
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28 Opinion of the Court 18-13524
investigation into Green’s case, portions of which were relied upon
by Green in the amended motion.
As amended, Green’s motion contained twelve numbered
claims, I through XII. All were brought under the First and/or Fifth
and/or Sixth and/or Eighth Amendments and the Fourteenth
Amendment. Many contained multiple independent claims and
subclaims, some of which were mutually exclusive. 32
A.
Of the twelve claims presented to the Circuit Court, only
the first five challenged Green’s conviction and thus are relevant
here; the remaining seven claims challenged Green’s death sen-
tence. Claims I and III incorporated numerous subclaims: Claim I
had three subclaims, while Claim III had eight subclaims denoted
A through H, with Claim III-H having an additional five subclaims
of its own. The Circuit Court only considered the four claims33 the
Court deemed as stating a plausible claim for relief: Claim I-2,
Claim III-F, Claim III-H-4, and Claim IV.
32 One of the Circuit Court’s tasks in ruling on Green’s Rule 3.850 motion was
to identify the claims rendered legally insufficient because other claims effec-
tively foreclosed them.
33These four claims were all based on the Due Process Clause of the Four-
teenth Amendment and/or the “Assistance of Counsel Clause” of the Sixth
Amendment as made applicable to the States. Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792 (1963).
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18-13524 Opinion of the Court 29
Claim I-2 alleged that defense counsel rendered ineffective
assistance of counsel under the Strickland v. Washington34 stand-
ard in failing to move the trial court to excuse a prospective juror
for cause or strike the juror peremptorily. Claim III-F alleged that
defense counsel was ineffective under Strickland in failing to obtain
and impeach Hallock at trial with a statement defense counsel was
or should have been aware of—that Green made her tie Flynn’s
hands behind his back with a shoelace. Claim III-H presented five
claims for violations of the Brady and Giglio rules. 35 Claim III-H-4,
34466 U.S. 668, 104 S. Ct. 2052 (1984).
35Claim III-H, entitled “Suppression of favorable impeaching and/or exculpa-
tory evidence,” alleged the following four additional Brady claims, none of
which are at issue in this appeal.
Claim III-H-1 alleged that Green was with Lori Rains at the time of
Flynn’s murder and that Sheriff’s Office “agents Fair and Nyquist . . . threat-
ened to . . . charge her with accessory to murder” if she testified in Green’s
defense as an alibi witness. As a result, Rains did not appear for trial.
Claim III-H-2 alleged that Sergeant Fair failed to disclose to the defense
as required by the Brady rule “around 70 loose photographs” that he showed
to Hallock at the North Precinct station on April 4, 1989.
Claim III-H-3 alleged Agent Nyquist failed to disclose to the defense as
required by the Brady rule notes Sheryl Mattieu, Kim Hallock’s sister, made
during an interview with Agent Nyquist about a conversation she had with
Hallock regarding the murder.
Claim III-H-5 was presented in a written argument Collateral Counsel
submitted to the Circuit Court following the evidentiary hearing it held sub-
sequent to the Huff hearing. The Court therefore considered it. The claim
concerned the State’s failure to disclose some three by five cards of the
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30 Opinion of the Court 18-13524
which provided the principal basis for the writ of habeas corpus the
District Court issued, 36 alleged that the prosecutor failed to disclose
to the defense as required by Brady the handwritten notes he made
of a pretrial conversation he had with Diane Clarke and Mark
Rixey. These notes included several investigative facts from the
night of the murder, some of which Clarke and Rixey personally
observed on the night of the murder and some of which were based
on hearsay, that led them to suspect that Hallock killed Flynn.
Claim IV alleged that newly discovered evidence consisting of the
recantation of the trial testimony of three prosecution witnesses,
Sheila Green, Lonnie Hillery, and Jerome Murray, rendered
Green’s convictions constitutionally unreliable. 37
After the State responded to the amended Rule 3.850 mo-
tion, the Circuit Court convened a hearing with the parties’ coun-
sel on May 13, 2002, pursuant to Huff v. State, 622 So. 2d 982 (Fla.
1993). This hearing, known as a Huff hearing, provides counsel
approximately seventy mugshots Sergeant Fair and Agent Nyquist showed to
Hallock at the North Precinct station on April 4, 1989.
36 See infra part V.
37Claim IV sought a new trial under Florida law based on newly discovered
evidence, and that is how the Florida Supreme Court viewed the claim. It
decided the claim based on Florida law, not a holding of the United States Su-
preme Court. See Green II, 975 So. 2d at 1099. Later, in a successive Rule
3.850 motion, Green would present a claim that the State induced Sheila
Green, Lonnie Hillery, and Jerome Murray to testify falsely at trial in violation
of the Supreme Court’s holding in United States v. Giglio, 405 U.S. 159, 92 S.
Ct. 763 (1972). See infra part VI.C.
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18-13524 Opinion of the Court 31
with an opportunity to be heard on an initial (as distinguished from
a successive) 3.850 motion. Id. at 983. At the hearing, the court
entertains argument on the legal sufficiency of the claims the mo-
tion presents. It identifies the claims that can be adjudicated with-
out an evidentiary hearing solely on the basis of the record of the
movant’s criminal prosecution and the claims that require an evi-
dentiary hearing. Id.
After considering what counsel had to say, the Circuit Court
identified the plausible claims. Of the claims relevant here, it con-
cluded that Claims I-2, III-F, and IV required an evidentiary hearing
but Claim III-H-4 did not. The Court therefore adjudicated Claim
III-H-4 based on the records of the pre-trial and trial proceedings in
Green’s prosecution, the Huff hearing, and Claim III-H-4’s factual
allegations. On July 22, 2002, the Circuit Court issued a written
order denying relief on Claim III-H-4.
The Circuit Court held evidentiary hearings on the remain-
ing three claims on April 24–25, 2003, October 28–29, 2003, Febru-
ary 24–26, 2004, June 24–25, 2004, and October 4, 2004. Then, in
an order entered on November 22, 2005, the Court decided Claims
I-2, III-F, and IV based on the record of Green’s prosecution and
the testimony and other evidence the parties presented during the
evidentiary hearing.
Below, we describe these four claims in full and relate the
findings of fact and conclusions of law the Circuit Court made in
denying them. We start with Claim III-H-4 because the Court de-
cided it without an evidentiary hearing.
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32 Opinion of the Court 18-13524
1.
Claim III-H-4 consisted of two paragraphs:38
38 The style of Claim III-H reads:
Claim III
MR. GREEN WAS DENIED THE [1] EFFECTIVE
ASSISTANCE OF COUNSEL PRETRIAL AND AT
THE GUILT/INNOCENCE PHASE OF HIS TRIAL
IN VIOLATION OF THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS. COUNSEL
FAILED TO ADEQUATELY INVESTIGATE,
PREPARE AND PRESENT THE DEFENSE CASE
AND CHALLENGE THE STATE’S CASE. [2]
WHERE EXCULPATORY EVIDENCE WAS
SUPPRESSED OR CONCEALED, MR. GREEN IS
ENTITLED TO RELIEF UNDER BRADY AND/OR
GIGLIO.
....
H. SUPPRESSION OF FAVORABLE
IMPEACHING AND/OR EXCULPATORY
EVIDENCE.
Although the style of the heading of Claim III combines Green’s claims that
defense counsel provided ineffective assistance of counsel under Strickland
with his very different claims that the State concealed exculpatory evidence in
violation of the Brady and/or Giglio rules, neither counsel nor the Court men-
tioned the ineffective assistance language in the style of Claim III when they
considered Claim III-H at the Huff hearing on May 31, 2002. The Circuit
Court reduced Claim III-H-4 to a claim that the State—specifically, prosecutor
White—failed to disclose the August 28, 1989, notes to the defense in violation
of the Brady rule. The Claim III claims of ineffective assistance of counsel
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18-13524 Opinion of the Court 33
51. A handwritten police statement dated 8/28/89
with the names Diane Clarke and Mark Rixey under-
lined on the front page . . . was not disclosed to the
defense at trial. 39 It contains the following state-
ments:
Found gun on the ground around 4-5 ft. from
W/M. There was no indication that he had
moved. 40
were explicitly asserted elsewhere in Claims III, in A through G, as follows:
“Defense counsel rendered prejudicially ineffective assistance of counsel dur-
ing the guilt/innocence phase of the trial in ways including but not limited to
the following”—A, “Failure to obtain and maintain file”; B, “Failure to Inves-
tigate and Develop issues Relating to Cross-Race Identification, 1. Failure to
retain an expert witness, 2. Failure to request a special instruction, 3. Failure
to cross examine and argue”; C, “Failure to Investigate and Preserve Exculpa-
tory and Impeaching Evidence Relating to Impressions”; D, Failure to Investi-
gate and Present Exculpatory and Impeaching Evidence Relating to Footprint
Impressions”; E, Failure to Investigate and Present Exculpatory and Impeach-
ing Evidence Relating to the Alleged Murder Weapon”; F, “Failure to Investi-
gate and Present Exculpatory and Impeaching Evidence Relating to the Initial
Police Investigation”; G, Failure to Investigate and Challenge the State’s The-
ory of Flight.”
39 The “police statement” was actually prosecutor White’s notes. Green ob-
tained the notes in a public records request made pursuant to Chapter 119 of
the Florida Code, i.e., Fla. Stat. § 119.01.
40Clarke and Rixey observed the first two investigative facts after arriving in
the orange grove where they found Flynn.
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34 Opinion of the Court 18-13524
Did see puddle of blood right under the V. Also
saw clothes near the victim & another location
saw blood on the ground a foot or two from
the gun.
....
Mark [Rixey] & Diane [Clarke] suspect girl did
it, She changed her story couple time 41 . . . . [?]
She [?] said she tied his hands behind his back.42
Thinks she gave them very good [?] directions
(J.J.[?] & U.S. 1) and had driven all the way to
Oak. Park Tr. Pk.
Also noticed she never asked how victim was
while at homicide. 43
41 Clarke and Rixey left the orange grove scene after Criminalist Demers and
Agent Nyquist arrived and had no further involvement in the homicide inves-
tigation. Their source for this statement in White’s notes likely came from
Deputy Walker or one or more Sheriff’s Office investigators involved in the
investigation—or from pure scuttlebutt.
42Clarke and Rixey never saw or spoke to Hallock. The only other reference
to Hallock tying Flynn’s hands appeared in Deputy Walker’s police report,
which was approved by Sgt. Clarke. In his deposition, Walker testified that he
did not recall speaking with Clarke or Rixey about the investigation. There-
fore, Clarke and Rixey probably learned of this “tied his hands” statement from
Walker’s report.
43 Clarke and Rixey likely learned this from Walker.
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18-13524 Opinion of the Court 35
Didn’t see any footprint – didn’t see any cas-
ing. 44
She wouldn’t go down there to the scene. 45
Why wouldn’t guy say who shot him. Just said
“I want to go home.”46 Was fairly calm while
there.
52. The first sentence indicates that Flynn went
down right where he was shot. That the gun was four
to five feet away from the victim and that there was
no indication that he had moved indicates that he was
not in possession of the gun at the time he was shot.
This contradicts Ms. Hallock’s version of a gunfight.
The fact that Ms. Hallock refused to lead the police to
the scene where her companion lay bleeding to death,
gave bad directions, coupled with other evidence
such as the fact that she drove past the hospital when
supposedly fleeing the scene, strongly suggest that
44Clarke and Rixey either observed this at the orange grove or acquired the
information from those who came to the orange grove after they left.
45 The source of this statement is also unknown, and its meaning questionable.
In his deposition, Rixey testified that he “was a little nervous being out there,
because it “was dark, [b]oth of [our] flashlights had died,” they “[w]ere hearing
noises,” and “there was somebody running around with a gun.” Clarke testi-
fied that Hallock “didn’t dare go down there,” so she “told Deputy Walker to
. . . stay with her.” Walker also testified that Hallock “refused to go any fur-
ther,” so Clark and Rixey proceeded alone.
46Unlike many of the other claims in this handwritten statement, Clarke and
Rixey personally heard Flynn say this.
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36 Opinion of the Court 18-13524
she did not want the victim to live to tell the truth.
The statements should have been disclosed to defense
counsel, but were not. 47
During the Huff hearing, Collateral Counsel, Christopher
White, and the Court engaged in a free-flowing discussion about
these statements to determine whether an evidentiary hearing
would be necessary to flesh them out. This is what was said:
COLLATERAL COUNSEL: [Claim III-H is] a very
general claim about . . . possible suppression of excul-
patory evidence. I go through a number of instances.
....
[T]here were notes . . . made by Mr. White.
They reflect the results of his speaking to . . . Diane
Clark[e] and Mark Rixey.
And they include statements to the effect that they
think the girl did it and some specific questions about
the crime scene and so on and so forth.
I allege those should have been turned over to the de-
fense counsel at the time. The State won’t agree with
that position.
The Circuit Court omitted paragraph fifty-two, which consists of Collateral
47
Counsel’s interpretation of White’s notes, in adjudicating Claim III-H-4.
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18-13524 Opinion of the Court 37
Now that they are there, I argue the information
should [have been] made available to defense coun-
sel.
I think that concludes that.
THE COURT: Mr. White. 48
....
MR. WHITE:
....
It’s not as if Mr. Parker failed to understand that there
was an issue here with Kim.
[In his closing argument to the jury,] he walked right
up the line of trying to accuse her of actually being
the killer which is the point of the gun.
There is only one gun and actually Kim shot it.
He even went so far as to say at one point on page
1864 of the trial transcript.
48After responding to Collateral Counsel’s other Claim III-H Brady claims
(which the Court and counsel had been discussing), White addressed the claim
based on his handwritten notes. What follows are White’s comments on
whether defense counsel, John Parker, was aware of what the notes revealed,
including Clarke’s and Rixey’s suspicion that Hallock shot Flynn.
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38 Opinion of the Court 18-13524
Chip was sleeping with another woman while he was
sleeping with Kim and we know that Kim wasn’t very
happy about it.
So that is one of the more dramatic statements they
made.
He walked right up to the line and he never came
right out and said ladies and gentlemen Kim Hallock
killed Flynn.
The reasons he didn’t was because of all the evidence
that indicates that there was someone else there; all
the footprints; the wallet at the scene and so on and
on.
But at any rate that is my argument as to that
....
The only other issue . . . under this claim are the ar-
guments relating to Walker and Clark[e].
The first one is the allegation in the notes that I made,
those are my notes that indicate that they saw a pud-
dle of blood on the ground four or five feet from the
white male. This was Chip.
There is no indication that he had moved.
I guess from that they extrapolate that the gun is four
or five feet away and it is really too far away for it to
have been caused to be there by Chip.
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18-13524 Opinion of the Court 39
I’m not sure how [Collateral Counsel] reaches that
conclusion.
But somehow he appears to be headed to somehow
exculpatory evidence I should have given [Parker],
and this puddle of blood within a foot or two of the
gun and obviously . . . where Chip was.
All of those things are in the photographs and they’re
all available in testimony of witnesses.
I don’t believe I have any duty to say to the defense
have you guys thought about this angle and this an-
gle?
I gave them all the evidence.
Mark and Diane suspect – most – to the idea to try to
make it out Kim did it.
Their testimony and their opinions are not going to
be (unintelligible). Why do I have to tell Mr. Parker
that they have opinions and (unintelligible) that she
did not.
I don’t have this obligation.
....
Nothing in the testimony other than that Mark and
Diane . . . think she had done it.
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40 Opinion of the Court 18-13524
There was nothing in the form of Brady evidence and
neither of them talked to Kim.
And all of the stuff lying (phonetic) from this or that
they are getting out of the records in the case Mr. Par-
ker already ha[d].
I submit to you an evidence hearing is not required
and Brady violation fails for all of those reasons.
I think that pretty much covers it.
THE COURT: Rebuttal?
(Emphasis added).
Collateral Counsel offered no rebuttal to White’s comments
about the handwritten notes of August 28, 1989, instead changing
topics to an unrelated matter. More to the point, he did not ask for
an evidentiary hearing to dispel White’s statement to the effect that
what Clarke and Rixey told White came “out of the records in the
case Mr. Parker already ha[d].”
In its July 22 order denying Claim III-H-4, the Circuit Court
found no merit in the allegation that White’s failure to disclose the
notes violated the Brady rule. “All of the information in the . . .
notes [was] disclosed and known by [Parker] before trial,” and “the
Defendant has shown no prejudice.” Parker acquired most of the
information during the extensive pretrial discovery he and the As-
sistant Public Defender who preceded him conducted, particularly
in examining Sergeant Clarke, Deputy Rixey, Deputy Walker, and
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18-13524 Opinion of the Court 41
Hallock on deposition. 49 After quoting White’s notes as set out in
Claim III-H-4, supra, the Circuit Court also identified what Parker
knew and its source:
Deputy Rixey testified that he found a .22 revolver
four to five feet from the victim. Deputy Rixey testi-
fied at trial that when he found the victim, he was ly-
ing in blood. Deputy Rixey also testified that he
found clothes items along the side of the road. In his
deposition, Deputy Rixey testified that he found
clothes near the body. During his deposition, Deputy
Rixey testified that also he found blood near the vic-
tim. The purported opinion of Deputies Rixey and
Clarke that they suspected that Hallock murdered
Flynn would not have been admissible at trial. The
Defendant also alleges that Hallock gave bad direc-
tions, but that issue was also known by defense coun-
sel as demonstrated by the deposition of Diane
Clark[e]. Furthermore, the allegation that evidence
was suppressed regarding Hallock’s failure to ask
49The Assistant Public Defender, Greg Hammel, took Rixey’s deposition on
September 6, 1989. Parker deposed Clarke on February 12, 1990, Hallock on
February 13, 1990, and Walker on March 5, 1990, all well prior to the com-
mencement of Green’s trial. In addition to the testimony of these deponents,
Parker had copies of the statements Hallock made during questioning at the
Sheriff’s North Precinct station on April 4, 1989, at 8:20 a.m., 9:20 p.m., and
9:32 p.m. Parker also had the report Walker filed with the Sheriff’s Office on
April 5, 1989, which included what Hallock related to him about her encounter
with Green, Rixey’s police report, and access to several other reports and ex-
hibits the State disclosed, some of which were introduced into evidence at
Green’s trial.
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42 Opinion of the Court 18-13524
about the victim’s welfare is without merit as Deputy
Wade Walker’s deposition demonstrates that counsel
knew there was no reference to her asking how he
was. The fact that Hallock did not drive to the hospi-
tal after the shooting and refused to go back to the
scene was a matter of record at trial. The hospital was
an option as a place to go for help, but she turned off
U.S. 1 and drove an equal distance to the home of a
friend, David Stroup, to call for help. During cross-
examination of Hallock, Parker questioned her failure
to stop at houses of other friends, her decision not to
go to the hospital, and why she did not just drive to
her parents’ house. During closing argument, Mr.
Parker noted that she could have gone to houses
along the roads near the orange grove and that she
did not go to the hospital. Moreover, any suggestion
that Kim Hallock was the murderer defense counsel
knew both before and at trial as evidenced by argu-
ment at trial and a pre-trial motion in which he re-
quested Hallock’s father’s gun to see if it was the mur-
der weapon. Parker knew at trial that no casings were
found at the scene, as he specifically questioned Ser-
geant Russell Cockriel about this fact. Moreover, Par-
ker was aware that no bare footprints were at the
scene, as evidenced by his cross-examination at trial
of Sergeant Russell Cockriel as to this fact. Flynn’s
failure to identify the suspect while he was dying was
also known to counsel as shown by the depositions of
Deputy Rixey and Clark[e].
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18-13524 Opinion of the Court 43
Thus, the Court found that White’s failure to disclose his
notes could not have prejudiced the defense. 50 The facts underly-
ing Rixey and Clarke’s suspicion were known to defense counsel
prior to trial and, the non-disclosure aside, “[t]he purported
50The Circuit Court did not recite the elements of a Brady claim when decid-
ing Claim III-H-4. The Supreme Court of Florida, in reviewing one of Green’s
other Brady claims, correctly recited the elements of a Brady claim and the
defendant’s burden in proving it:
To establish a Brady violation, the defendant has the burden
to show (1) that favorable evidence—either exculpatory or im-
peaching, (2) was willfully or inadvertently suppressed by the
State, and (3) because the evidence was material, the defendant
was prejudiced. Strickler v. Greene, 527 U.S. 263, 281–82, 119
S. Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760
So. 2d 903, 910 (Fla.2000). To meet the materiality prong, the
defendant must demonstrate a reasonable probability that had
the suppressed evidence been disclosed the jury would have
reached a different verdict. Strickler, 527 U.S. at 289, 119 S. Ct.
1936. A reasonable probability is a probability sufficient to un-
dermine confidence in the outcome. Way, 760 So. 2d at 913;
see also Strickler, 527 U.S. at 290, 119 S. Ct. 1936. The remedy
of retrial for the State's suppression of evidence favorable to
the defense is available when “the favorable evidence could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Strickler, 527
U.S. at 290, 119 S. Ct. 1936 (quoting Kyles v. Whitley, 514 U.S.
419, 435, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995))
Green II, 975 So. 2d 1101–02. Green made no objection in the Circuit Court
to the Court’s application of Brady to Claim III-H-4. As indicated infra, he did
not appeal the Circuit Court’s disposition of the claim to the Supreme Court
of Florida.
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44 Opinion of the Court 18-13524
opinion of Deputies Rixey and Clark[e] that they suspected that
Hallock murdered Flynn would not have been admissible at trial.”
Clarke and Rixey were the first law enforcement officers to respond
to the scene of the murder. After Criminalist Debbie Demers and
case agent Scott Nyquist arrived, Clarke and Rixey left the scene
and had no further involvement in the criminal investigation. Ob-
viously, their suspicion that Hallock shot Flynn was based on hear-
say. As the Circuit Court found, “any suggestion that Kim was the
murderer” was known and exploited by Parker before and at trial.
Rixey and Clarke simply connected the dots much like Parker did
in his argument to the jury at the close of the guilt-innocence phase
of Green’s trial.
* * *
In identifying in its July 22 order what Parker knew and its
source, the Circuit Court did not mention the statement in White’s
notes, “She [?] said she tied his hands behind his back.” The source
of the statement was the report Deputy Walker filed in the Sheriff’s
Office on April 5, 1989. It reads as follows:
I responded to Oak Park Trailer Park, Lot #33 and
met with Kim S. Hallock. Ms. Hallock stated that her
boyfriend, Charles L. Flynn Jr. had been shot in an or-
ange grove. I stated to Ms. Hallock that she should
go with me to show where the incident occurred. She
agreed and led myself and Deputy Rixey . . . and Sgt.
Clarke . . . to the scene where the shooting occurred.
Ms. Hallock stated that she and Mr. Flynn were in his
1982 Chevy pickup at Holder Park when this black
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18-13524 Opinion of the Court 45
male approached the pickup. Mr. Flynn exited the
pickup and then Ms. Hallock was told to tie Mr.
Flynn’s hands behind his back with a shoe string. The
black male then told both Mr. Flynn and Ms. Hallock
to sit in the truck and look at the floorboard. The
truck was then driven by the black male to the orange
groves off Hammock Rd. . . .
Parker was in possession of Walker’s report no later than
when he deposed Deputy Walker on March 5, 1990. Clarke and
Rixey, who never saw or spoke to Hallock and had no further in-
vestigative role, simply told White what they had heard from
Walker. This explains the statement’s appearance in White’s notes
of August 28, 1989.
At the Huff hearing, Collateral Counsel said nothing in re-
sponse to White’s comment that what Clarke and Rixey told him
came “out of the records in the case Mr. Parker already ha[d].” Par-
ker had all the information White’s notes contained including the
“she tied his hands” statement. The statement was in Walker’s re-
port that had been disclosed to Parker.
Did Collateral Counsel say nothing about the hands-tying
statement because he knew that Parker had access to Walker’s re-
port? This is inferable from the allegations Collateral Counsel
made in Green’s Rule 3.850 motion in support of Claim III-F.
Claim III-F alleged that Parker had access to Hallock’s hands-tying
statement but failed to confront Hallock with it in cross-examining
her at trial and that the failure constituted ineffective assistance of
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46 Opinion of the Court 18-13524
counsel. As indicated in our discussion of Claim III-F, see infra part
II.A.3, the statement was memorialized in Deputy Walker’s report
and presumably in the notes Walker made on a notepad he kept.
Parker questioned Walker about his report and the notepad when
he took Walker’s deposition on March 5, 1990. Walker testified
that Hallock told him nothing about what happened other than
what was included in his report, but agreed to hold onto the note-
pad at Parker’s request.
2.
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18-13524 Opinion of the Court 47
Claim I-2 51 alleged that Parker was ineffective under the
Strickland standard52 for failing to move the trial court to excuse
prospective Juror Harold Guiles for cause or to strike him from the
jury venire peremptorily. During voir dire, Guiles revealed that his
niece had been murdered three years earlier. He was also “ineffec-
tive for failing to ask follow-up questions after Juror Guiles stated
that his niece had been murdered.”
51 The style of Claims I reads:
CLAIM I
MR. GREEN WAS DENIED HIS RIGHTS UNDER
THE FIRST, SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION. . . . [1] BECAUSE OF JUROR
MISCONDUCT. [2] DEFENSE COUNSEL WAS
INEFFECTIVE FOR FAILING TO QUESTION
JUROR GUILES REGARDING THE MURDER OF
HIS NIECE, CHALLENGE HIM FOR CAUSES, OR
TO HAVE HIM EXCUSED BY EXERCISING A
PEREMPTORY CHALLENGE. [3] THE COURT
COMMITTED FUNDAMENTAL ERROR BY
FAILING TO EXCUSE JUROR GUILES SUA
SPONTE.
Of the three subclaims in Claim I, only Claim I-2 is relevant here.
52 The Strickland standard is set out in note 119 infra. There is no question that
in deciding Green’s ineffective assistance claims—Claims I-2 and III-F—the
Circuit Court and the Florida Supreme Court applied the Strickland standard.
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48 Opinion of the Court 18-13524
This is the part of Guiles’ voir dire which, according to
Green, should have prompted Parker to ensure that Guiles did not
serve on his jury:
The Court: Have any of you been the victim of a
crime or has any member of your immediate family
been the victim of a crime?
....
Mr. Guiles: My niece was murdered, but that's not
immediate family.
The Court: How long ago was that?
Mr. Guiles: Three years ago.
The Court: Three years ago?
Mr. Guiles: (Nods head.)
The Court: Where was it?
Mr. Guiles: In Naples.
The Court: Would you be able to set aside that?
Mr. Guiles: Well, it doesn't seem like it's the same
kind of thing.
The Court: Would you be able to set it aside and not
let it affect the case?
Mr. Guiles: Yes.
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18-13524 Opinion of the Court 49
Neither the Court nor Parker nor the prosecutor questioned
Guiles further regarding his niece’s murder. Parker did not move
the Court to excuse Guiles from the venire for cause on this basis,
and he did not remove him with a peremptory challenge.
The Circuit Court concluded that Green failed to establish
both prongs of a Strickland ineffective assistance claim—deficient
performance and resulting prejudice—and therefore denied Claim
I-2. Parker could not have challenged Guiles for cause because, as
the Circuit Court found, Guiles demonstrated that he could serve
as an impartial juror by answering “yes” to the last question put to
him. This answer, in the Court’s view, “rehabilitat[ed]” Guiles as
a potential juror.
In denying Claim I-2, the Court did not overlook that Parker
could have pursued a challenge for cause by questioning Guiles fur-
ther or, if unsuccessful, could have exercised a peremptory chal-
lenge. But Parker’s testimony during the evidentiary hearing
demonstrated to the Court’s satisfaction that he was not Strickland
deficient in neglecting to pursue either course.
Parker testified that he tried to dismiss Guiles because of pre-
trial publicity, but the judge denied that motion. Parker also had
legitimate reasons for not peremptorily striking Guiles. The Circuit
Court stated in its November 22, 2005, order that Parker
did not exercise a peremptory challenge to strike Mr.
Guiles because he was concerned “that by exercising
peremptories, that we may, indeed, get people that
we wish we didn’t have.” Mr. Parker testified that he
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50 Opinion of the Court 18-13524
was quite pleased that there were eight women on
the jury, which he believed would be more favorable
to the defense, and that he feared that by exercising
additional peremptory challenges that more men
could end up on [Green’s] jury than women. Mr. Par-
ker testified that he thought that female jurors would
not believe Kim Hallock’s testimony. Mr. Parker fur-
ther testified that he discussed “heavily” with [Green]
and his paralegal, Ms. Quinn, whether Juror Guiles
should be removed from the jury. Mr. Parker testified
that “we were satisfied that Mr. Guiles would be able
to follow the law regarding the weighing of the evi-
dence, [and] separate himself from the fact that his
niece had been killed.”
The Circuit Court concluded that these reasons for not per-
emptorily striking Guiles were more than sufficient to defeat
an ineffective assistance claim.
3.
Claim III-F53 alleged that Parker was ineffective under the
Strickland standard for failing “to investigate and present
53 The style of Claim III-F reads:
Claim III
MR. GREEN WAS [1] DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL PRETRIAL AND AT
THE GUILT/INNOCENCE PHASE OF HIS TRIAL
IN VIOLATION OF THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS. COUNSEL
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18-13524 Opinion of the Court 51
FAILED TO ADEQUATELY INVESTIGATE,
PREPARE AND PRESENT THE DEFENSE CASE
AND CHALLENGE THE STATE’S CASE. WHERE
[2] EXCULPATORY EVIDENCE WAS SUPPRESSED
OR CONCEALED. MR. GREEN IS ENTITLED TO
RELIEF UNDER BRADY AND/OR GIGLIO.
....
F. FAILURE TO INVESTIGATE AND
PRESENT EXCULPATORY AND
IMPEACHING EVIDENCE RELATING TO
THE INITIAL POLICE INVESTIGATION.
(Emphasis added). Green’s position in the District Court and here on appeal
was and is that Claim III-F presented essentially two claims, one alleging inef-
fective assistance of counsel and the other a Brady violation. We disagree.
Claim III-F was based on the explicit allegation that Parker should have
been aware of Hallock’s statement to Deputy Walker on April 4, 1989, that
she tied Flynn’s hands behind his back, because Parker had access to Walker’s
police report. Parker rendered ineffective assistance because he failed to cross-
examine Hallock with her statement at Green’s trial. Parker also knew that
Walker kept a notepad where he wrote down what Hallock told him. Walker
agreed to hold on to the notepad so Parker could see it, but Green alleged that
Parker was “deficient . . . in failing to obtain this notebook or notepad.” Claim
III-F further alleged that what Walker wrote in his report was consistent with
what White’s notes of August 28, 1989, revealed: “Mark & Diane suspect the
girl did it. She changed her story couple of times. . . [?] She [?] said she tied his
hands behind his back.” It was also alleged to be consistent with the FDLE
report of its interview of Walker in 1999, which did not exist at the time of the
trial.
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52 Opinion of the Court 18-13524
exculpatory and impeaching evidence relating to the police inves-
tigation.” Specifically, Claim III-F alleged that Parker was ineffec-
tive for failing to investigate the “hands-tying” statement in Deputy
Walker’s report and impeach Hallock’s testimony at trial with it.
Hallock testified at trial that Green ordered her to give him a shoe-
lace from one of Flynn’s shoes, which he then used to tie Flynn’s
hands behind his back. However, Claim III-F alleged that Hallock
told Deputy Walker that “she was the one who tied Flynn’s hands
behind his back” per Green’s orders. In the report he filed in the
Sheriff’s Office on “4/5/89, at 2:05:50,” Walker wrote: “Ms. Hal-
lock stated that she and Flynn were in his 1982 Chevy pickup when
this black male approached the pickup. Mr. Flynn exited the pickup
and then Ms. Hallock was told to tie Mr. Flynn’s hands behind his
back.” 54
Claim III-F also relied upon the FDLE interview of Walker
that took place in 1999—well after the trial—and White’s notes
from his 1989 interview of Clarke and Rixey that said: “Mark & Di-
ane suspect the girl did it. She changed her story couple of times. .
Green’s position that Claim III-F pled a Brady claim was based on the
inclusion of this quotation in Claim III-F’s factual allegations. However, Claim
III-F cannot be fairly read as presenting the same Brady claim that was alleged
in Claim III-H-4. And even if it had, the Brady claim fell by the wayside during
the discussions and ruling at the Huff hearing.
54At that moment, Flynn was on his knees and Green was holding a gun to
Flynn’s head. A reasonable inference is that Hallock did what Green told her
to do.
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18-13524 Opinion of the Court 53
. [?] She [?] said she tied his hands behind his back.” Claim III-F
alleged that what “Diane Clarke and Mark Rixey” told White about
the tying of Flynn’s hands was “consistent with Dep. Walker’s rec-
ollection that Hallock said that she was the one who did the actual
tying of Flynn’s hands, and inconsistent with Hallock’s subsequent
statements and eventual trial testimony.” What Clarke and Rixey
told White about the tying of Flynn’s hands was consistent with
what Walker wrote in his report because what they told White
came from Walker. He was their source.
Green’s factual position was that Parker should have been
aware of what Walker wrote in his report, but
[Parker] did not confront Hallock at trial . . . with
Deputy Walker’s report that she had been the one to
tie Flynn’s hands . . . . [He] should have known about
the hands-tying issue because it was contained in
Deputy Walker’s report, but [he] did not ask any
questions about it in Walker’s deposition or at any
time during the trial.
To Green, this constituted ineffective assistance of counsel
under Strickland.
To prevail on Claim III-F, however, Green had to prove that
Hallock actually told Walker that she was the one who tied Flynn’s
hands and that Parker knew this prior to Green’s trial. 55 If he could
Unless he was armed with Hallock’s alleged statement to Walker, Parker
55
would not have been able to confront Hallock about a prior inconsistent
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54 Opinion of the Court 18-13524
have, Green should have proved the point during the evidentiary
hearing the Circuit Court held on Claim III-F. But he did not.
First, Green did not summon Walker to testify at the eviden-
tiary hearing. If he had summoned him and Walker had difficulty
recalling what Hallock told him on April 4, 1989, Green could have
used his report to refresh his recollection.56 Second, Green could
have obtained the notepad on which Walker jotted down what
Hallock said. Walker told Parker about the notepad when Parker
took his deposition pre-trial, on March 3, 1990. The notepad hap-
pened to be in Walker’s “locker” at the time. Parker asked him to
“hold on to it,” and Walker said he would. 57 Green alleged that
Parker “was ineffective for failing to obtain the notepad or notes.”
Without Walker’s testimony or his report or notepad in ev-
idence, 58 the Circuit Court realized that it would have to speculate
in order to find that Hallock told Walker that she tied Flynn’s hands
statement in the event she insisted that she told Walker that Green tied Flynn’s
hands. Parker needed Hallock’s alleged statement to Walker to impeach her
testimony that Green was the one who tied Flynn’s hands.
56It may also have been admissible in evidence under the official records rule
or as Walker’s past recollection recorded. See Fla. Stat. § 90.803(5), (8) (2001).
57Like the report, the notepad could be used to refresh Walker’s recollection
of what Hallock told him. If that failed, the notepad may have been admissible
as Walker’s past recollection recorded. See Fla. Stat. §§ 90.613, 90.803(5)
(2001).
58According to the Court, the location of the notepad at the time of the evi-
dentiary hearing was “unknown.”
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18-13524 Opinion of the Court 55
and thus that Parker rendered ineffective assistance of counsel in
failing to use the statement to impeach her testimony at trial, as
Claim III-F alleged. 59 But, the Court said, the “ineffective assistance
of counsel claim [could] not be based on speculation.”60
At the evidentiary hearing, Officer Walker was not
called to testify. Consequently, this Court is only left
with the allegation made by the Defendant in his post-
conviction motion as to what Officer Walker purport-
edly said in 1999 to FDLE concerning what Kim Hal-
lock told him. There has been no evidence produced
to establish the truthfulness that Kim make this state-
ment to Officer Walker. As to counsel’s alleged fail-
ure to obtain the notepad or notes, an ineffective as-
sistance of counsel claim cannot be based on specula-
tion that such notes might have contained helpful in-
formation.
Because speculation was all that Green had to rely on, the
Court denied Claim III-F.
* * *
Green’s position in the District Court was that Claim III-F
alleged both ineffective assistance of counsel and a Brady violation.
That is his position here as well. That position enabled him to
59 In deciding Claim III-F, the Circuit Court applied the Strickland standard.
60Collateral Counsel had White’s notes prior to the evidentiary hearing the
Circuit Court held on Claim III-F. Neither Clarke nor Rixey was asked who
told them that Hallock made the statements White’s notes reflected.
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56 Opinion of the Court 18-13524
convince the District Court to reject the State’s argument that
Claim III-H-4 had not been exhausted. And he hopes we will reject
the State’s argument too.
Collateral Counsel, who drafted the Rule 3.850 motion, did
not see the Brady violation Green saw in the District Court and
sees here now. Collateral Counsel included the “she did it” and
“she tied his hands” statements (from White’s notes) in presenting
Claim III-F—to buttress the claim’s allegation that Parker was
aware of the statements and was derelict in failing to cross-examine
Hallock with the hands-tying statement at trial. That Collateral
Counsel was pleading an ineffective assistance claim, not a Brady
claim, becomes clear when one reads the transcript of the Huff
hearing. It was readily agreed that Claim III-F, alleging ineffective
assistance, would receive an evidentiary hearing, while Claim III-
H-4, based on White’s notes, would not. This no doubt explains
why Collateral Counsel, during the discussion about White’s
notes, said nothing in response to White’s statement, obviously
made with reference to his notes, that “Parker already ha[d]” “all
of the stuff.”
To put a lid on this discussion, consider the brief Green filed
in the Florida Supreme Court in appealing the Circuit Court’s de-
termination of his Rule 3.850 motion. It contains not a word about
the Circuit Court’s denial of Claim III-H-4—but it does challenge
the Circuit Court’s denial of Claim III-F. The argument that the
Circuit Court’s Claim III-F ruling should be reversed replicates the
White notes’ statements Claim III-F cited in Green’s Rule 3.850
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18-13524 Opinion of the Court 57
motion. But the argument contains not even a hint that the state-
ments were there to prove a Brady violation. The Florida Supreme
Court, in affirming the Claim III-F ruling, did not see a Brady claim
at all. All it saw was an ineffective assistance of counsel claim.
Green v. State (Green II), 975 So. 2d 1090, 1104 (Fla. 2008).
4.
Claim IV61 alleged that Green’s convictions were constitu-
tionally unreliable in light of the fact that Sheila Green, Lonnie
Hillery, and Jerome Murray had recanted the testimony they gave
during the guilt-innocence phase of Green’s trial. The Circuit
61As expressed in the “Table of Contents” of Green’s brief to the Florida Su-
preme Court in the appeal of the Circuit Court’s disposition of his Rule 3.850
motion, Claim IV was this:
Green’s Convictions are Constitutionally Unreliable in Viola-
tion of the Fifth, Sixth, and Fourteenth Amendments as Estab-
lished by newly Discovered Evidence.
1. The Court erred in rejecting Shelia Green’s recan-
tation.
2. The Court erred in rejecting Lonnie Hillary’s re-
cantation by relying on trial testimony which was
shown to be incredible.
3. The Court erred in relying on the State’s presenta-
tion of newly discovered evidence of guilt,
4. The Court erred in considering MDNA testing re-
sults.
5. The Court erred in considering newly discovered
evidence of guilt, thereby violating the Defend-
ant’s right to trial by jury under the Sixth and Four-
teenth Amendments.
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58 Opinion of the Court 18-13524
Court denied Claim IV based on these findings of fact, which the
Florida Supreme Court effectively adopted: 62
First, Green argues that his convictions are
constitutionally unreliable in light of the fact that
Sheila Green, Lonnie Hillery, and Jerome Murray,
three of the State guilt phase witnesses, have recanted
their trial testimony. The trial court made the follow-
ing factual findings: First, Jerome Murray testified at
Green's trial that, shortly after the murder, Green ad-
mitted committing it and said he was going to
62The Florida Supreme Court effectively adopted the Circuit Court’s findings
of fact in adjudicating Claim IV under the “competent, substantial evidence”
standard:
When the trial court rules on a newly discovered evidence
claim after an evidentiary hearing, we review the trial court's
findings on questions of fact, the credibility of witnesses, and
the weight of the evidence for competent, substantial evi-
dence. Melendez v. State, 718 So. 2d 746, 747–48 (Fla.1998);
Blanco v. State, 702 So. 2d 1250, 1251 (Fla.1997). As with rul-
ings on other post-convictions claims, we review the trial
court's application of the law to the facts de novo. Cf. Hendrix
v. State, 908 So. 2d 412, 423 (Fla.2005) (reviewing de novo the
trial court's application of the law to the facts in ruling on a
postconviction claim that the government withheld material
evidence); Gore v. State, 846 So. 2d 461, 468 (Fla.2003) (review-
ing de novo the application of the law to the facts on a claim
of ineffective assistance of trial counsel).
Green II, 975 So. 2d at 1100 (emphasis added).
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18-13524 Opinion of the Court 59
disappear. At the postconviction evidentiary hearing,
the defense introduced three out-of-court statements
made by Murray in which he recanted his trial testi-
mony. In these statements, Murray stated that his en-
tire testimony was a lie and that he was under pres-
sure from law enforcement to fabricate. However, at
the evidentiary hearing, Murray claimed that he did
not remember making these post-trial statements be-
cause he was either tired or drunk. When questioned
about whether his post-sentencing statements were
inconsistent with his trial testimony, Murray exer-
cised his Fifth Amendment privilege against self-in-
crimination.63
Second, Sheila Green is Crosley Green's sister.
At Green's trial, Sheila testified that the day after the
homicide, Green admitted his involvement in the
shooting to her. Sheila had been convicted in federal
court for drug offenses and testified against Green in
return for consideration for a more lenient sentence
63 Murray gave the first of the three statements in writing to defense investi-
gator, Paul Ciolino, on August 3, 1999, the second statement via videotape to
Ciolino on August 3, 1999, and the third statement to the FDLE on October
13, 1999. In the first two statements, Murray said that his “trial testimony ‘was
a lie’.” In the third statement, he said he lied about Green saying that he had
killed a man. At the evidentiary hearing, Murray testified that “when FDLE
took his statement, he was advised that if he did not make the statement, he
could go to jail.” When asked at the evidentiary hearing “whether his post-
sentencing statements were inconsistent with his trial testimony,” he “exer-
cised his Fifth Amendment privilege against self-incrimination” and refused to
answer.
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60 Opinion of the Court 18-13524
for herself. At the evidentiary hearing, Sheila testified
that her testimony at Green's trial was untrue and
that Green never confessed to murdering Charles
Flynn.
Third, Lonnie Hillery is the father of Sheila
Green's child, and was her boyfriend at the time of
Green's trial. Hillery also testified that Green admit-
ted his involvement in the shooting to him. At the ev-
identiary hearing, Hillery said that he made up the
story as part of a plea deal to help Sheila receive a
more lenient sentence in her case.
Green II, 975 So. 2d at 1100.
The Circuit Court found that Murray’s statements, if intro-
duced as substantive evidence on retrial, would not change the out-
come of the trial, stating: “There [was] not a reasonable probability
that this would produce an acquittal on re-trial, given the other ev-
idence presented at trial.” Sheila Green “was not being forthright
at the evidentiary hearing regarding the alleged falsification of her
trial testimony.” Indeed, her testimony at the evidentiary hearing
was not credible. She was “presenting this unbelievable testimony
at the evidentiary hearing in an effort to please her brother (the
Defendant) and her family.” The Court likewise found Lonnie
Hillery’s testimony at the evidentiary hearing not credible and that
the outcome of the trial would not have been different if [he] had
not testified.
* * *
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18-13524 Opinion of the Court 61
Claim IV alleged that Green’s convictions were unreliable in
violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.64
But Claim IV was nothing more than a Rule 3.850 motion based on
state law. See Green II, 975 So. 2d at 1100–01. In his habeas peti-
tion to the District Court, though, Green transformed the claim
into a Giglio claim: “[T]he State ‘elicited or allowed to go uncor-
rected critical false testimony from key witnesses in violation of Gi-
glio v. United States . . . [T]he State ‘clearly relied on the false tes-
timony of’ Sheila Green, Hillery, and Murray.’” The District Court
recognized Claim IV as a Giglio claim—“based on these witnesses’
recantation of their trial testimony”—and concluded that the Cir-
cuit Court and the Florida Supreme Court treated it as such in
denying relief.
B.
The Circuit Court granted Green’s Rule 3.850 motion in
part and denied it in part. The Court granted the motion and va-
cated Green’s death sentence after finding that defense counsel was
ineffective under Strickland v. Washington during the penalty
phase of Green’s trial.65 The Court therefore held that Green was
64 We assume that the constitutional provision reasonably in play was the Due
Process Clause of the Fourteenth Amendment. Since Green was prosecuted
under state law and was represented by counsel, the Fifth, Sixth, and Eighth
Amendments could not be used to challenge his convictions.
65During the penalty phase, the prosecution introduced evidence of Green’s
prior unrelated felony convictions in New York as an aggravating factor.
These convictions were vacated prior to Green’s trial for the Flynn murder.
The Circuit Court found that Parker was ineffective in failing to investigate
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62 Opinion of the Court 18-13524
“entitled to a new penalty phase” proceeding on Count I of the in-
dictment. The Circuit Court denied the Rule 3.850 motion as to
Green’s convictions, concluding that he was “not entitled to a new
guilt phase” proceeding.
Green appealed the Circuit Court’s denial of the motion as
to his convictions. The State cross-appealed the vacation of
Green’s death sentence and grant of a new trial of the penalty
phase. Green II, 975 So. 2d at 1099, 1109.
C.
Green’s appellee brief to the Supreme Court of Florida pre-
sented twelve arguments. Arguments IV through IX 66 were
and discover the current status of the New York convictions and that the fail-
ure “was sufficiently prejudicial to [Green] in the penalty phase of this case to
warrant a new penalty phase proceeding.”
66The Table of Contents of Green’s brief labeled the six arguments in
this way:
ARGUMENT IV
GREEN’S CONVICTIONS ARE CONSTITUTIONALLY
UNRELIABLE IN VIOLATION OF THE FIFTH, SIXTH,
EIGHTH, AND FOURTEENTH AMENDMENTS AS
ESTABLISHED BY NEWLY DISCOVERED EVIDENCE.
....
ARGUMENT V
THE COURT ERRED IN DENYING GREEN’S BRADY
CLAIM BASED ON SUPPRESSION OF 3 X 5 CARDS AND
RELATED DOCUMENTS.
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18-13524 Opinion of the Court 63
ARGUMENT VI
THE COURT ERRED IN DENYING GREEN’S CLAIM FOR
RELIEF BASED ON INDIVIDUAL INSTANCES OF
INEFFECTIVE ASSISTANCE OF COUNSEL AND
NONDISCLOSURE OF EXCULPATORY EVIDENCE.
Ineffective assistance for failure to maintain file
Exculpatory and impeaching evidence relating to the
initial police investigation
Failure to impeach Jerome Murray
ARGUMENT VII
THE COURT ERRED IN SUMMARILY DENYING GREEN’S
CLAIM BASED ON DEFENSE COUNSEL’S FAILURE TO
CHALLENGE CROSS-RACE IDENTIFICATION.
....
ARGUMENT VIII
THE COURT ERRED IN DENYING RELIEF WITH
REGARD TO DOG TRACKING EVIDENCE.
ARGUMENT IX
THE COURT ERRED IN DENYING GREEN’S
INEFFECTIVENESS CLAIM BASED ON TRIAL
COUNSEL’S FAILURE TO CHALLENGE A PROSPECTIVE
JUROR.
ARGUMENT X
THE COURT ERRED IN SUMMARILY DENYING GREEN’S
DUE PROCESS CLAIM BASED ON JUROR MISCONDUCT.
The Supreme Court of Florida, in an obvious effort to align the brief’s
arguments with the claims as alleged in Green’s Rule 3.850 motion and as
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64 Opinion of the Court 18-13524
addressed to the Circuit Court’s denial of relief from his convic-
tions. In presenting these arguments, the brief rearranged some of
the claims as pled in Green’s Rule 3.850 motion so that the claims
as pled and the arguments in the brief did not coincide. The brief
also expanded some claims to include facts not presented to the
Circuit Court when it adjudicated the claims.
For clarity, we will refer to the claims challenging Green’s
convictions by their designations in the Rule 3.850 motion, not by
considered by the Circuit Court, treated the appellee brief as presenting “six
guilt phase issues”:
(1) Green's convictions are constitutionally unreliable as estab-
lished by newly discovered evidence; (2) Green was denied due
process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L.Ed.2d 215 (1963), when the State suppressed evidence; (3)
trial counsel provided constitutionally ineffective assistance;
(4) the trial court erred in denying relief with regard to dog
tracking evidence; (5) the rules prohibiting Green's lawyers
from interviewing jurors are unconstitutional; and (6) the trial
court erred in summarily denying Green's claims regarding ju-
ror misconduct and counsel's failure to challenge cross-race
identification.
Green II, 975 So. 2d at 1099. In addition to these guilt phase issues, the brief
addressed and defended the Circuit Court’s decision vacating Green’s death
sentence based on defense counsel’s ineffective assistance “in failing to inves-
tigate” the disposition of Green’s New York conviction. Green II, 975 So. 2d
at 1109–10. As alternative grounds for affirming the vacation of his death sen-
tence, Green argued that the Circuit Court erred in rejecting the other claims
relating to the sentence’s validity. Those claims are inapposite here because
the retrial of the penalty phase did not occur, and Green was sentenced to life
imprisonment on the Count I murder charge.
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18-13524 Opinion of the Court 65
their corresponding designations in the appeal of that motion to
the Supreme Court of Florida. Green’s appellee brief addressed
Claim I-2 as Argument IX and Claim III-F as Argument VI. The
brief did not deal with Claim III-H-4, which the Circuit Court adju-
dicated without an evidentiary hearing, although the brief does re-
fer to the notes White made on August 28, 1989, in Argument VI.67
The brief addressed Claim IV in Argument IV.
67Argument VI was based on the evidence presented at the evidentiary hear-
ings the Circuit Court held following the Huff hearing. Argument VI con-
tained three headings: “Ineffective Assistance for Failure to Maintain File,”
“Exculpatory and Impeaching Evidence Relating to the Initial Police Investi-
gation,” and “Failure to Impeach Jerome Murray.” In presenting argument
under the second heading, the brief alluded to White’s notes of August 28,
1989, in these words:
A handwritten police statement dated 8/28/89 with the names
Diane Clark[e] and Mark Rixey underlined on the front page
was obtained through the Ch. 119. It was not disclosed to the
defense at trial. It contains the following statement: “Mark and
Diane suspect the girl did it, she changed her story couple
times . . . . [?] She [?] said she tied his hands behind his back.
The brief then stated that
[t]his is consistent with Dep. Walker’s recollection that Hal-
lock said that she was the one who did the actual tying of
Flynn’s hands, and inconsistent with Hallock’s subsequent
statements and eventual trial testimony.
Defense counsel testified during the evidentiary hear-
ing on October 29, 2003, having reviewed the 1999 written
statement by Deputy Walker to the FDLE, that had he had the
information contained in the statement by Deputy Walker at
the time of trial he would have used it to impeach Ms. Hallock
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66 Opinion of the Court 18-13524
The Florida Supreme Court affirmed both the Circuit
Court’s decision granting a new trial of the penalty phase, Green II,
975 So. 2d at 1109–14, and the Court’s denial of relief as to Green’s
convictions. Id. at 1116. The Florida Supreme Court ruled on the
merits of three claims that the Circuit Court decided and that are
pertinent here: Claims I-2 and III-F, both alleging ineffective assis-
tance of counsel under the Strickland v. Washington standard, and
Claim IV, alleging that Sheila Green, Lonnie Hillery, and Jerome
Murray recanting their trial testimony made Green’s conviction
constitutionally unreliable. As Green did not brief Claim III-H-4 to
the Florida Supreme Court, the Court did not review it.
1.
The Florida Supreme Court affirmed the Circuit Court’s de-
nial of Claim I-2 with this statement:
. . . . Defense counsel did not confront Hallock at trial with . .
. Deputy Walker’s report that she had been the one to tie
Flynn’s hands. Defense counsel did, however, argue to the
jury that Flynn’s hands appeared to have been tied “for com-
fort.”
. . . . As the prosecutor put it, defense counsel was “alluding”
to the theory that Kim Hallock, “a jealous lover of Chip
Flynn,” was the real killer.
In alluding to White’s notes dated August 28, 1989, Argument VI made no
mention of the Circuit Court’s adjudication of Claim III-H-4. The argument
was written as if that adjudication had not occurred.
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18-13524 Opinion of the Court 67
We affirm the trial court's denial of this claim because
Green fails to meet both prongs of the Strickland
standard. First, Green was not prejudiced by Parker's
failure to remove Guiles for cause because the trial
court inquired whether the murder of Guiles' niece
would affect his decision in the case. Guiles said that
it would not. Thus, Guiles met the test for juror com-
petency enunciated in Davis v. State, 461 So. 2d 67, 70
(Fla.1984) (“The test for determining juror compe-
tency is whether the juror can lay aside any bias or
prejudice and render his verdict solely upon the evi-
dence presented and the instructions on the law given
... by the court.”). Second, Parker did not render in-
effective assistance in failing to ask Guiles more ques-
tions, because an allegation that there would have
been a basis for a for cause challenge if counsel had
followed up during voir dire with more specific ques-
tions is speculative. Johnson v. State, 903 So. 2d 888,
896 (Fla.2005); Reaves v. State, 826 So. 2d 932, 939
(Fla.2002). Third, Parker's performance was not defi-
cient for failing to exercise a peremptory strike to re-
move Guiles. At the evidentiary hearing, Parker testi-
fied that he was satisfied that juror Guiles would be
able to follow the law regarding the weighing of the
evidence and separate himself from the fact that his
niece had been killed. This decision does not fall out-
side the wide range of professionally competent assis-
tance. See Davis, 461 So. 2d at 70.
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68 Opinion of the Court 18-13524
Green II, 975 So. 2d at 1104–05. 68
2.
The Florida Supreme Court affirmed the Circuit Court’s de-
nial of Claim III-F with this statement:
Green claims that defense counsel Parker rendered in-
effective assistance in failing to impeach Kim Hallock
at trial with a police report 69 containing an alleged
68 The Florida Supreme Court articulated the Strickland standard thus:
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984), the [Supreme] Court established a two-
prong standard for determining whether counsel provided
constitutionally ineffective assistance. First, a defendant must
point to specific acts or omissions of counsel that are “so seri-
ous that counsel was not functioning as the ‘counsel’ guaran-
teed the defendant by the Sixth Amendment.” Id. at 687, 104
S. Ct. 2052. Second, the defendant must establish prejudice by
“show[ing] that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. at 694, 104 S. Ct. 2052. A rea-
sonable probability is a “probability sufficient to undermine
confidence in the outcome.” Id.Green II, 975 So. 2d at 1103. The Florida Supreme Court applied this standard
in adjudicating Claims I-2 and III-F.
69 In referringto “a police report,” the Florida Supreme Court must have been
referring to the report Deputy Walker filed on April 5, 1989, the day after the
Flynn homicide occurred. According to Green’s Rule 3.850 motion, the report
was “stamped 4/5/89 at 2:05:50 a.m.” See supra part II.A.3. This report was
disclosed to Parker prior to trial and he discussed it with Walker when he took
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18-13524 Opinion of the Court 69
prior inconsistent statement that she, rather than
Green, had been the one to tie Charles Flynn's hands.
According to Green, Deputy Wade Walker stated in
a report filed in 1999 pursuant to a Florida Depart-
ment of Law Enforcement (FDLE) investigation that
Hallock told him that the perpetrator made her tie
Flynn's hands behind his back with a shoestring.
Green argues that the information in the FDLE report
contradicts Hallock's subsequent statements and trial
testimony that Green himself tied Flynn's hands.
However, Walker was not called to testify at the evi-
dentiary hearing. Therefore, the trial court was left
only with the allegations in Green's postconviction
motion as to what Walker purportedly said in the
FDLE report.
Id. at 1104 (emphasis added). In short, the Florida Supreme Court
affirmed the denial of Claim III-F because Green provided “no sup-
porting evidence” to establish that Hallock actually told Deputy
Walker that she tied Flynn’s hands.70 Id.
3.
Walker’s deposition on March 5, 1990. The Court could not have been refer-
ring to what Walker is reported to have told the FDLE in 1999 since the FDLE
Investigative Summary did not exist at the time of Green’s trial.
70Collateral Counsel did not present Walker as a witness or introduce the re-
port filed on April 5, 1989.
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70 Opinion of the Court 18-13524
The Florida Supreme Court affirmed the Circuit Court’s de-
nial of Claim IV. 71 In doing so, it explained that to obtain a new
trial under Florida law based on newly discovered evidence, Green
had to satisfy two requirements:
First, the evidence must not have been known by the
trial court, [Green], or counsel at the time of trial, and
it must appear that [Green] or defense counsel could
not have known of it by the use of diligence. Second,
the newly discovered evidence must be of such na-
ture that it would probably produce an acquittal on
retrial. See Jones v. State, 709 So. 2d 512, 521
(Fla.1998) (Jones II ). Newly discovered evidence sat-
isfies the second prong of this test if it “weakens the
case against [the defendant] so as to give rise to a rea-
sonable doubt as to his culpability.” Id. at 526 (quot-
ing Jones v. State, 678 So. 2d 309, 315 (Fla.1996) (Jones
I)).
Id. at 1099 (quoting Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)).
If Green met these requirements, the trial court must then “‘con-
sider all newly discovered evidence which would be admissible,’
71 Claim IV alleged that the recantations of Murray, Sheila Green, and Hillery
rendered Green’s verdict “constitutionally unreliable.” But the brief cited no
United States Supreme Court constitutional holding, much less a lower federal
court decision, in support of its reliability argument. Rather, the brief sup-
ported the argument only with state law cases. As indicated from the Green
II passages quoted in the following text, the Supreme Court treated Claim IV
as a Fla. R. Crim. P. 3.850(c)(7) motion for a new trial based on newly discov-
ered evidence.
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18-13524 Opinion of the Court 71
and must ‘evaluate the weight of both the newly discovered evi-
dence and the evidence which was introduced at the trial.’” Id.(quoting Jones v. State, 591 So. 2d 911, 916 (Fla.1991)). In doing so,
the court would have to consider “whether the evidence [was] cu-
mulative to other evidence in the case . . . and any inconsistencies
in the newly discovered evidence.” Id. at 1099–1100 (quoting
Jones, 709 So. 2d at 521).
The Court explained that Green’s new evidence was insuffi-
cient to warrant a new trial because
Jerome Murray's out of court recantation would not
likely produce an acquittal on retrial because it would
only serve as impeachment to his original testimony.
. . . [B]oth Sheila Green's and Lonnie Hillery's recan-
tations [were] incredible based on their responses, de-
meanor, and body language. Moreover, when
weighed against the other admissible evidence, the
recantations of Jerome Murray, Sheila Green, and
Lonnie Hillery d[id] not create a reasonable probabil-
ity of acquittal on retrial.
Id. at 1100–02.
* * *
Following the Florida Supreme Court’s decision, the State
filed a notice stating that it would not proceed with a retrial of the
penalty phase and requested that the Circuit Court sentence Green
to a term of life imprisonment. On August 31, 2009, after enter-
taining evidence Green presented in support of his argument that
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72 Opinion of the Court 18-13524
he was actually innocent of the offenses of which he had been con-
victed, the Circuit Court resentenced him to life imprisonment on
Count I and concurrent prison terms of seventeen years on Counts
II through V, with the Count I sentence to run consecutively to
those counts. Green appealed his sentences to the Fifth District
Court of Appeal. The Court affirmed the sentences per curiam on
August 24, 2010. Green v. State, 43 So. 3d 707 (Fla. 5th DCA 2010)
(Table).
III.
A.
On February 4, 2011, Green filed a Successive Motion to Va-
cate Judgment of Convictions and Sentences in the Brevard County
Circuit Court, under Rule 3.850 (“Successive Motion” or “Mo-
tion”).72 By this time, Green was no longer represented by
72Rule 3.850 governs successive motions. Subsection (h) of the rule states in
pertinent part:
(h) Successive Motions.
(1) A second or successive motion must be titled: “Sec-
ond or Successive Motion for Postconviction Relief.”
(2) A second or successive motion is an extraordinary
pleading. Accordingly, a court may dismiss a second or
successive motion if the court finds that it fails to allege
new or different grounds for relief and the prior deter-
mination was on the merits or, if new and different
grounds are alleged, the judge finds that the failure of
the defendant or the attorney to assert those grounds
in a prior motion constituted an abuse of the proce-
dure or there was no good cause for the failure of the
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18-13524 Opinion of the Court 73
Collateral Counsel. He had been replaced by private appointed
counsel. The Motion presented three “Grounds for Post-Convic-
tion Relief.” All appeared under this heading: “NEWLY
DISCOVERED EVIDENCE OF INNOCENCE ESTABLISHES
THAT MR. GREEN’S CONVICTION AND SENTENCE
VIOLATE THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES AND FLORIDA
CONSTITUTIONS.” 73 The second and third grounds are relevant
defendant or defendant's counsel to have asserted
those grounds in a prior motion. When a motion is dis-
missed under this subdivision, a copy of that portion of
the files and records necessary to support the court's
ruling shall accompany the order denying the motion.
Fla. R. Crim. P. 3.850(h). The text of this subdivision formerly appeared in
Fla. R. Crim. P. 3.850(f). We cite to subdivision (h) in this opinion.
This was Green’s third attempt to file a successive Rule 3.850 motion
to vacate his convictions. Green filed a “First Amended Successive Motion”
on September 27, 2010, and a “Second Amended Successive Motion” on Janu-
ary 7, 2011. The February 4, 2011, motion (referred to in the above text) was
also styled as the “Second Amended Successive Motion.” On January 24, 2011,
the Circuit Court denied the January 7 motion without prejudice because the
oath appended to the January 7 motion failed to comply with Fla. R. Crim. P.
3.987 and instructed Green to file a corrected motion within thirty days.
Green v. Sec’y Dep’t of Corrs., 877 F.3d 1244, 1246 (11th Cir. 2017). Green
filed a corrective motion on February 4, 2011, as indicated in the above text.
73Rule 3.850 addresses newly discovered evidence. Subsection (b), which the
Successive Motion cited as the basis for the motion’s grounds for relief, states
in pertinent part:
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74 Opinion of the Court 18-13524
here, but only insofar as counsel has sought to reassert them on
federal habeas review. 74
1.
The second ground, “The State Withheld Exculpatory Evi-
dence,” constituted a reassertion of Claim III-H-4 from the first mo-
tion, but with a significantly expanded, and purportedly “newly dis-
covered,” factual base. 75 Recall that the record before the Circuit
Court when it ruled on Claim III-H-4 on July 22, 2002, following
b) Time Limitations. A motion to vacate a sentence that ex-
ceeds the limits provided by law may be filed at any time. No
other motion shall be filed or considered pursuant to this rule
if filed more than 2 years after the judgment and sentence be-
come final unless it alleges that:
(1) the facts on which the claim is predicated were un-
known to the movant or the movant's attorney and
could not have been ascertained by the exercise of due
diligence, and the claim is made within 2 years of the
time the new facts were or could have been discovered
with the exercise of due diligence.
Fla. R. Crim. P 3.850(b).
74The first ground was “Layman Layne’s Recantation Demonstrates Mr.
Green’s Rights Were Violated.”
75 In its response to the Successive Motion, the State argued that the second
ground was barred by Rule 3.850(h) as impermissibly successive because the
second ground had been presented and litigated as Claim III-H-4 at the Huff
hearing held on Green’s first Rule 3.850 motion. Alternatively, assuming the
second ground was not barred as impermissibly successive, the State argued
that statements Clarke and Rixey made to White speculating that Hallock
killed Flynn would have been inadmissible at Green’s trial.
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18-13524 Opinion of the Court 75
the Huff hearing, consisted of the record of Green’s prosecution
and direct appeal in Green I, Claim III-H-4’s factual allegations, and
the statements the Court, the State’s attorney, and Collateral
Counsel made on the record at the Huff hearing. In contrast, the
record before the Circuit Court in the proceedings held on the Suc-
cessive Motion included the evidence presented at the evidentiary
hearings the Court held in 2003 and 2004 on Claims I-2, III-F, and
IV, the facts asserted in the Successive Motion, and affidavits Diane
Clarke and Mike Rixey executed in June 2010 that accompanied the
Motion.76
Addressing the Circuit Court’s July 22, 2002, adjudication of
Claim III-H-4 (as presented at the Huff hearing) in light of the ad-
ditional evidence presented in support of the Successive Motion,
Green argued that the Circuit Court erred in denying Claim III-H-
4 for two fundamental reasons. First, Green argued the Court mis-
takenly held that “the purported opinion[s] of Deputies Rixey and
Clarke that they suspected Hallock murdered Flynn would not
have been admissible at trial” and that their opinions “were . . . not
Brady material.” Second, Green argued the Court erred in finding
as fact that “all information in [White’s] notes was disclosed and
known by defense counsel before trial.’” In other words, Green
new postconviction counsel sought to raise arguments in the
76As indicated in the affidavits, Clarke signed her affidavit on June 15,
2010, and Rixey signed his on June 1, 2010.
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76 Opinion of the Court 18-13524
Successive Motion that Collateral Counsel did not raise to the Flor-
ida Supreme Court on direct appeal from the Circuit Court’s deci-
sion.
Drawing on the expanded factual base supporting the Suc-
cessive Motion, Green elaborated at length on why Claim III-H-4
was meritorious and should have been upheld by the Circuit Court
in its order of July 22, 2002: 77
The fact that Flynn’s ex-girlfriend was the ini-
tial prime suspect of police officers who investigated
Flynn’s murder would have been admissible at trial
under clearly established Florida law. . . . The real im-
pact of Clarke and Rixey’s statements to the investi-
gators and prosecutors is revealed in the witness
statements that resulted from interviews only re-
cently conducted by Mr. Green’s current counsel in
the last year.
[T]he recently-obtained sworn affidavits of
Sergeant Clarke and Deputy Rixey do tend to prove
that Mr. Green is innocent and that a third party – the
State’s sole eyewitness and the victim’s ex-girlfriend
Hallock – was the true perpetrator of the crime and,
at the very least, had a strong motive to fabricate her
testimony to cast blame on someone else. Specifi-
cally, their statements point out that: (1) Hallock
changed the details of her story several times that
77This order was adopted and incorporated into the Circuit Court’s final deci-
sion on November 22, 2005.
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18-13524 Opinion of the Court 77
night, including the location of the grove and who
tied Flynn’s hands; (2) Hallock appeared emotionally
detached when she was brought to the crime scene,
seemed unconcerned about Flynn’s condition, and
never once asked how Flynn was doing; (3) the phys-
ical evidence at the crime scene was not consistent
with Hallock’s story, including that the clear and un-
marred tire tracks at the grove indicated a slow and
deliberate exit; (4) Hallock drove all the way to
Stroup’s trailer for help, bypassing numerous houses
and at least one public telephone and a hospital to
seek immediate assistance, which could have saved
Flynn’s life; (5) Hallock never mentioned an abduc-
tion in her initial statement transmitted over the ra-
dio; and (6) when the officers asked Flynn – who was
still lucid – who shot him, he only replied that he
wanted to go home, never once mentioning an assail-
ant or a “black guy”. Clarke’s and Rixey’s conclu-
sions, when taken in conjunction with the demon-
strated contradictions between Hallock’s version of
the events and the physical evidence, the numerous
material inconsistencies in her statements, and the
fact that there is no physical evidence linking Mr.
Green to the crime, are strong evidence of Hallock’s
guilt and Mr. Green’s innocence. At the very least;
they are more than sufficient to establish that a rea-
sonable jury likely would not find guilt beyond a rea-
sonable doubt.
....
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78 Opinion of the Court 18-13524
The new evidence presented here could not be
previously presented to this Court because the State
withheld its existence from Mr. Green’s counsel. It
was only discovered recently by the efforts of Mr.
Green’s subsequently retained counsel. Further,
these affidavits evince facts not contained in White’s
notes. White’s notes only contained Clarke’s and
Rixey’s conclusions that Hallock killed Flynn.
Clarke’s and Rixey’s affidavits contain their impres-
sions based on the facts and circumstances of that
night. This information was neither available to Mr.
Green’s counsel at trial nor during the first 3.850 pro-
ceeding – but it was known by the State.
....
The testimony of the officers – alone and in
tandem with the other compelling evidence of Mr.
Green’s innocence – would certainly have had a pow-
erful impact on any jury and would likely have re-
sulted in Mr. Green’s acquittal of the charges for
which he was convicted.
To Green, all of this showed that the prosecution’s failure to
disclose this exculpatory evidence violated the Brady rule and de-
prived him of his right to present a defense. “There is more than ‘a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’”
The Circuit Court denied the claim, apparently agreeing
with the State that the second ground amounted to nothing more
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18-13524 Opinion of the Court 79
than Claim III-H-4 recast with a new evidentiary foundation and
thus impermissibly successive under Rule 3.850(h). 78 The Court
concluded that Green’s argument that “Deputy Rixey and Sergeant
Clarke observed facts indicating that Hallock shot Chip Flynn . . .
was addressed in the first post-conviction motion and denied.”
2.
The third ground the Successive Motion presented was that
Green’s trial attorney Parker rendered ineffective assistance of
counsel in failing to investigate and establish Green’s alibi. Several
prosecution witnesses, including Sheila Green, Lonnie Hillery, and
Jerome Murray, had recanted their testimony after the trial, and
eight potential alibi witnesses had stated in sworn affidavits that at
the time of Flynn’s murder, Green was in the “projects” in Mims,
far from the scene of the crime. The eight affiants were Brandon
Wright, Reginald Peters, Lori Rains, Carleen Brothers, Tyrone
Torres, O’Conner Green, Kerwin Hepburn, and Cheryl Ander-
son.79
78 Citing Fla. R. Crim. P. 3.850(h) and Schoenwetter v. State, 46 So. 3d 535, 561
(Fla. 2010), the Circuit Court observed that “a successive post-conviction[]
motion is not intended to be a second appeal, nor is it appropriate to use a
different argument to re-litigate issues already decided.”
79 In its response to the Successive Motion, the State argued that the third
ground was barred by Rule 3.850(h) as impermissibly successive. In his first
Rule 3.850 motion, Green presented the claim that Parker rendered ineffective
assistance of counsel under Strickland v. Washington in not calling Lori Rains
as an alibi witness, and the Circuit Court denied the claim. As for Reginald
Peters and Brandon Wright, whose testimony (according to the Court) would
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80 Opinion of the Court 18-13524
The Circuit Court realized that Green’s attorneys were at-
tempting to avoid the dismissal of the third ground as procedurally
defaulted (because they failed to present the ground in Green’s first
Rule 3.850 motion)80 by representing that Green only recently
“found three additional witnesses who attest[ed] that [he] was with
them in the Mims projects during the night of the murder,” Re-
ginald Peters, Brandon Wright, and Randy Brown. However, the
Court decided to proceed regardless and held an evidentiary hear-
ing on Green’s new ineffective assistance claim.
The Court heard the testimony of Peters and Wright on
May 27, 2011, and along with their testimony, received Brown’s
affidavit in evidence. Assuming the truth of what they said, these
are the facts their testimony would have established at Green’s
trial:
Peters, then age nineteen, sold drugs to Green “throughout
the night” of April 3 and into the early morning hours of April 4,
1989, in Mims at Lori Rains’ residence. Peters would be impeached
with his criminal record, which he acknowledged; Peters had
“do nothing to add to the arguments made previously,” Green could have
found the two witnesses and presented their statements to the Circuit Court
“[t]hrough due diligence” in advancing his first Rule 3.850 motion.
80 Impermissibly successive claims cannot be relitigated in later post-convic-
tion relief proceedings. See supra note 78. Merely adding three more alibi wit-
nesses does not change the underlying nature of the claim when those alibi
witnesses could have been found through due diligence in the first post-con-
viction relief motion.
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18-13524 Opinion of the Court 81
“approximately ten felony convictions and four retail theft convic-
tions.”
Wright, 81 then fourteen, saw Green at Rains’ house around
11:15 p.m. and “on and off again the rest of the night.” Wright was
“one of several juveniles referred to as the ‘jitterbugs’ who sold
drugs from Lori Rains’ house . . . [Green] was ‘getting high’ the
night of April 3,” which is why he was at “Rains’ house.” Green
was “‘in and out’ that evening going from Carleen Brothers’ house
to Lori Rains’ house.” Wright was “a drug seller. . . [also going] ‘in
and out’ between 11:15 p.m. on April 3 and 3:00 a.m. on April 4,
1989.” The Circuit Court found that “Wright’s testimony that he
did not know until last year [2010] that [Green] was convicted of
murder and sentenced to death was wholly unbelievable, given his
testimony that he was with [Green] off and on during the night of
Chip Flynn’s murder, observed the police in the area investigating
[the] murder, and saw the police sketch of the suspected mur-
derer.”
Brown saw Green “on the evening of April 3, 1989, and the
early morning hours of April 4, 1989, ‘in the projects in Mims’ at
the home of Lori Rains.”
The Circuit Court concluded that even if the testimony of
these witnesses was true and not barred, it would not “constitute
81Like Peters, Wright would also be impeached at trial with his criminal rec-
ord, which contained several felony convictions.
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82 Opinion of the Court 18-13524
alibi evidence.” Moreover, “there [was] not a reasonable probabil-
ity that the testimony . . . would produce an acquittal on re-trial.”
The Circuit Court recalled Parker’s testimony at the hearing
on Green’s first Rule 3.850 motion: Green told him that he had
been at Lori Rains’ house the evening of the murder. They were
smoking crack and he was falling asleep, so Green could not specify
times. Parker said that he “could see [Green] testifying, well, I was
cracked out of my mind. I don’t remember, really, what happened,
but you talk to Lori.’” Parker testified, “there was no way that I
was going to try and utilize that as an alibi.” The Circuit Court
concluded that Parker was not constitutionally deficient for failing
to investigate or call them to testify at Green’s trial.
In the end, the Circuit Court denied the Successive Motion
in full as barred by Rule 3.850(h). The Court denied the Motion’s
third ground as it related to Lori Rains because the claim that “trial
counsel was ineffective for not calling Lori Rains and others to es-
tablish an alibi was made previously [in the first Rule 3.850 motion]
and denied.” “Rains was known to [Green’s] counsel at trial.” As
for Wright, Peters, and Brown, who could put Green in the pro-
jects in Mims around the time of the Flynn homicide, the Court
found that by “[u]sing due diligence the Defendant could have dis-
covered the names and obtained the statements of these three ad-
ditional witnesses.” Green’s new counsel “discovered the names
of these witnesses by interviewing Lori Rains.”
The Court held alternatively that Green failed to establish a
claim of ineffective assistance under Strickland v. Washington.
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18-13524 Opinion of the Court 83
“There [was] not a reasonable probability that the testimony of
these witnesses would produce an acquittal on re-trial, given the
plethora of other evidence presented.” The Court also noted that
“[t]he testimony of the ‘alibi witnesses’ placing Green in the Mims
projects during the early morning hours of the murder is damning
and further implicates the Defendant by putting him near the crime
scene right after the crime was completed.”
B.
Green appealed the Circuit Court’s decisions denying his
Brady and Strickland claims in his Successive Motion for postcon-
viction relief under Rule 3.850 to the Florida Fifth District Court of
Appeal. 82 The State’s answer brief argued that the claims were pro-
cedurally barred under Rule 3.850. The Brady claim was foreclosed
on two grounds: (1) it had been raised and denied in Green’s first
Rule 3.850 motion and (2) it was procedurally barred, having been
raised in a successive motion filed “well beyond the two year time
limitation set forth in Florida Rule of Criminal Procedure 3.850 for
raising claims of ineffective assistance of counsel.” The Strickland
claim was barred by Rule 3.850(h) because using due diligence,
Green could have found witnesses Wright, Peters, and Brown prior
to the evidentiary hearing held on his first Rule 3.850 motion. The
Florida Fifth District Court of Appeal affirmed per curiam without
82 Green also appealed the Circuit Court’s denial of his state-law
based motion
for a new trial due to the three prosecution witnesses recanting.
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84 Opinion of the Court 18-13524
opinion. Green v. State (Green III), 145 So. 3d 116 (Fla. DCA 2013)
(Table).
IV.
A.
On February 27, 2014, Green filed a petition for a writ of ha-
beas corpus under 28 U.S.C. § 2254 in the United States District
Court for the Middle District of Florida seeking relief from his con-
victions; Green later amended this petition on March 26, 2014. The
petition presented six “grounds” for relief.83 They included claims
83 The grounds for relief consisted of claims under multiple constitutional pro-
visions. In its Amended Order granting Green’s petition in part and denying
it in part, the District Court identified six “claims,” some of which consisted of
multiple independent claims. The six grounds as presented in Green’s habeas
petition were:
Ground One: Mr. Green was deprived of his constitu-
tional rights under the Fifth, Sixth, and Fourteenth Amend-
ments by the State’s improper suppression of exculpatory and
impeachment evidence and its knowing reliance on false testi-
mony.
Ground Two: Mr. Green was denied due process of
law and a fair trial in violation of the Fifth, Sixth, and Four-
teenth Amendments by the trial court's failure to suppress his
out-of-court photographic identification and subsequent in-
court identification.
Ground Three: Mr. Green's constitutional rights under
the Fifth, Sixth, and Fourteenth Amendments were violated by
the admission of unreliable dog-tracking evidence.
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18-13524 Opinion of the Court 85
of Circuit Court error the Florida Supreme Court rejected on the
merits in the direct appeal of Green’s convictions in 1994 in Green
I and in its review of the Circuit Court’s disposition of Green’s first
Rule 3.850 motion in 2008 in Green II. The petition also included
a claim Green presented in his first Rule 3.850 motion that was de-
nied on the merits but not appealed; claims Green presented in his
Successive Motion that were denied as impermissibly successive by
the Circuit Court and the Fifth District Court of Appeal in Green
III; and claims not presented to the Florida courts at all. Green ar-
gued that the District Court should review the merits of all the
claims the Florida courts would reject as procedurally defaulted as
Ground Four: Mr. Green’s trial counsel provided assis-
tance that falls well below the standard for effective assistance
of counsel mandated by the Sixth and Fourteenth Amend-
ments.
Ground Five: Mr. Green was denied his constitutional
rights under the Fifth, Sixth, and Fourteenth Amendments by
the State’s repeated improper references to Mr. Green’s race
and making knowingly false representations of the facts and
the evidence to the jury and to the court.
Ground Six: Mr. Green was denied his constitutional
due-process rights under the Fifth, Sixth, and Fourteenth
Amendments because the jury prejudged him guilty based on
their exposure to external publicity.
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86 Opinion of the Court 18-13524
well as those he never presented to the state courts 84 because he
had shown legal cause for the procedural defaults.
The State responded to the petition by moving the District
Court to dismiss it as time-barred because Green had not filed it
within the one-year limitations period established by 28 U.S.C. §
2244(d)(1)(A). The Court granted the State’s motion and dismissed
the petition with prejudice. Green appealed. This Court held
Green’s petition timely filed and remanded his case for further pro-
ceedings. Green v. Sec’y, Dep’t of Corrs., 877 F.3d 1244, 1249 (11th
Cir. 2017). On remand, the State responded to the claims the peti-
tion presented, and the District Court took those claims and the
State’s response under advisement without oral argument.
B.
The District Court’s authority to grant a writ of habeas cor-
pus vacating Green’s convictions was circumscribed by the Anti-
terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub.L. No. 104–132, 110 Stat. 1214 (codified as amended at 28
U.S.C. §§ 2241–55). A district court may not grant a state prisoner
a writ of habeas corpus on a federal claim unless the prisoner estab-
lishes that the state courts adjudicated the federal claim on the mer-
its and that the adjudication “was contrary to, or involved an un-
reasonable application of, clearly established Federal law, as
84If Green attempted at this point in time to exhaust such claims, we assume
the Florida courts would deny them pursuant to Rule 3.850(h) as impermissi-
bly successive.
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18-13524 Opinion of the Court 87
determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court pro-
ceeding,” § 2254(d)(2).
The Supreme Court has explained the meaning of the three
phrases contained in § 2254(d)(1). The phrase “clearly established
Federal law” refers only to “the holdings, as opposed to the dicta,
of [Supreme] Court's decisions as of the time of the relevant state-
court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct.
1495, 1523 (2000). A state court decision is “contrary to” a Supreme
Court holding “if the state court arrives at a conclusion opposite to
that reached by [the] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Id. at 412–13, 120 S. Ct. at 1523.
A state court decision “involve[s] an unreasonable application of”
a Supreme Court holding “if the state court identifies the correct
governing legal principle from [the] Court's decisions but unrea-
sonably applies that principle to the facts of the prisoner's case.” Id.
at 413, 120 S. Ct. at 1523. A merely incorrect application of federal
law, however, is not enough to warrant habeas relief. As for
whether the state court decision “was based on an unreasonable
determination of the facts,” we must bear in mind that AEDPA es-
tablishes a presumption that the state court's findings of fact are
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88 Opinion of the Court 18-13524
correct, and only “clear and convincing evidence” can rebut that
presumption. § 2254(e)(1). 85
Therefore, any federal claims presented to a district court in
a habeas petition from a state prisoner must have first been ex-
hausted in the state court system. 86 Comity requires that the state
courts be given the “opportunity to pass upon” the prisoner’s
claims and, should they find any valid claims, to take appropriate
corrective action. Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347,
1349 (2004). Specifically, the prisoner must “use the State's estab-
lished appellate review procedures before he presents his claims to
85 The precise relationship between the “unreasonable application” standard
of § 2254(d)(2) and the “clear and convincing” standard of § 2254(e)(1) when
reviewing a state court’s factual determinations under AEDPA is unclear. See
Burt v. Titlow, 571 U.S. 12, 18, 134 S. Ct. 10, 15 (2013) (“we have not defined
the precise relationship between § 2254(d)(2) and § 2254(e)(1)”); Wood v. Al-
len, 558 U.S. 290, 300, 130 S. Ct. 841, 849 (2010) (“we have explicitly left open
the question whether § 2254(e)(1) applies in every case presenting a challenge
under § 2254(d)(2)”). As Green’s arguments fail under either standard, we de-
cline to address the nature of the relationship between § 2254(d)(2) and §
2254(e)(1) at this time.
86 In Florida, a claim for postconviction relief in a capital case is exhausted once
it is reviewed by the Florida Supreme Court. Fla. Const. art. V § 3 (providing
for the review in the Florida Supreme Court of judgments in capital cases). In
a non-capital case, which this case became once the Florida Supreme Court
affirmed the vacation of Green’s death sentence and he was resentenced to a
prison term, exhaustion is complete when the Florida District Court of Appeal
decides the claim on the merits. Barritt v. Sec’y, Fla. Dep’t of Corrs., 968 F.3d
1246, 1249 n.3 (11th Cir. 2020).
USCA11 Case: 18-13524 Date Filed: 03/14/2022 Page: 89 of 182
18-13524 Opinion of the Court 89
a federal court.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.
Ct. 1728, 1733 (1999).
Comity also requires that the claims the prisoner presents to
the district court be the same claims the prisoner exhausted in the
state courts. To the extent the claims are not the same—in terms
of their “legal theory and facts on which [they] rest[]”—as the
claims exhausted in the state courts, the federal court will treat the
claims as unexhausted. Henderson v. Campbell, 353 F.3d 880, 898
n.25 (11th Cir. 2003); see also Kelly v. Sec’y, Dep’t of Corrs., 377
F.3d 1317, 1344 (11th Cir. 2004) (“the prohibition against raising
nonexhausted claims in federal court extends not only to theories
of relief, but also to the specific assertions of fact that might support
relief”).
A federal court may only entertain the merits of an unex-
hausted claim if the prisoner establishes one of two exceptions.
The first is the “cause and actual prejudice” exception. Engle v.
Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573 (1982). The second is
the "actually innocent" exception, also known as the "fundamental
miscarriage of justice" exception, applicable in extraordinary cir-
cumstances. Murray v. Carrier, 477 U.S. 478, 495–96, 106 S. Ct.
2639, 2646–49 (1986); Johnson v. Singletary, 938 F.2d 1166, 1174–
76 (11th Cir. 1991). Green relies on the actually innocent exception
as his excuse for failing to exhaust the claims the Florida courts
would not now entertain.
C.
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90 Opinion of the Court 18-13524
The District Court identified nineteen separate claims
amongst the six “claims” Green presented in his habeas petition87
and explicitly ruled on seven, implicitly denying the other twelve
as meritless. 88 The Court concluded that four of the seven had been
exhausted and accordingly undertook the task of determining
whether the state appellate court’s adjudication of each claim was
entitled to AEDPA deference. The four claims were as follows:
first, the State denied Green due process of law under Brady v. Mar-
yland when the prosecutor, Christopher White, withheld from the
defense the notes he made on August 28, 1989, of the conversation
he had with Diane Clarke and Mark Rixey. Second, the State de-
nied Green due process of law when the Circuit Court overruled
his motion to suppress Hallock’s out-of-court identification of him
as unduly suggestive and his objection to Hallock’s in-court identi-
fication as unreliable. Third, John Parker denied Green his Sixth
Amendment right to the effective assistance of counsel under
87The District Court essentially ignored the several constitutional provisions
Green’s petition cited in support of its six grounds for relief. Some of the six
claims the Court identified consisted of several separate subclaims. For exam-
ple, the Court treated “Claim One” as consisting of five Brady claims, which
the Court labeled as “Issues.” The Court granted the writ of habeas corpus on
“Issue One of Claim One.” The Court treated “Claim Four” as presenting
eight instances of ineffective assistance of counsel. Claims Five and Six were
based on additional instances of ineffective assistance of counsel.
88 The claims rejected as meritless included Green’s Claim III-F claim that Par-
ker was ineffective for failing to develop the hands-tying statement contained
in Walker’s 1989 report. Green has not appealed the district court’s denial of
this claim.
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18-13524 Opinion of the Court 91
Strickland v. Washington in failing to challenge Juror Guiles,
whose niece had been murdered. Fourth, the State denied Green
due process of law under United States v. Giglio when the prose-
cutor introduced false testimony from Sheila Green, Lonnie
Hillery, and Jerome Murray and allowed it to remain uncorrected.
The District Court found merit in the first claim and granted
Green relief, a writ of habeas corpus vacating his convictions. The
State appeals the ruling. We consider the State’s appeal in part V.
The Court denied the writ on the second, third, and fourth claims,
and Green cross-appeals those rulings. Because we reverse the
Court’s decision on the first claim, we must consider Green’s cross-
appeal. We do so in part VI.
The District Court denied relief on the remaining three of
the seven claims on the ground that they had been procedurally
defaulted and were therefore unexhausted. Green cross-appeals
those rulings, arguing that the Court should have decided the
claims on the merits because he established a lawful excuse for the
defaults, his actual innocence of the crimes for which he stands con-
victed. In part VII, we consider those three claims and whether the
Court erred in rejecting Green’s actually innocent excuse for the
defaults. In part VIII, we address the litigation tactics that have
been employed by Collateral Counsel and Green’s current counsel
which, in large part, led to the District Court’s erroneous grant of
federal habeas relief to Green. In Part IX, we conclude.
V.
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92 Opinion of the Court 18-13524
A.
The District Court found the first claim, Claim III-H-4, in
“Ground One” of Green’s habeas petition.89 Claim III-H-4 alleged
that in violation of the Brady rule, the State withheld the notes
White made on August 28, 1989, of a conversation he had with Di-
ane Clarke and Mark Rixey. Green’s petition to the District Court
stated that:
During the course of the investigation, first respond-
ers and experienced officers Deputy Mark Rixey and
Sergeant Diane Clarke told . . . Assistant State Attor-
ney Christopher White, that the evidence pointed to
Hallock as Flynn’s killer. Handwritten notes from
White’s August 1989 interview of Rixey and Clarke .
. . contain the following statement: “Mark & Diane
suspect girl did it, she changed her story couple times
. . . . She 1st said she tied his hands behind his back.”
White wrote that Rixey and Clarke were suspicious
because Hallock never asked about Flynn’s condition,
would not go to the scene, and drove all the way to
the trailer park to ask for help. There were also no
footprints or shell casings at the orange grove. The
89Ground One alleged that Green was “deprived of his constitutional rights
under the Fifth, Sixth, and Fourteenth Amendments by the State’s improper
suppression of exculpatory and impeachment evidence and its knowing reli-
ance on false testimony.”
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18-13524 Opinion of the Court 93
2010 sworn affidavits of Clarke and Rixey further de-
tail their suspicions. 90
Green went on to suggest that Rixey and Clarke’s suspicion
that Hallock killed Flynn was based on the following facts:
The gun found at the scene was Flynn’s, and there
was no physical evidence linking Mr. Green to the
crime. No fingerprints of Mr. Green were found.
The only evidence at trial that the State connected to
Mr. Green were Win Streak shoe prints found at
Holder Park, where many people had attended a
baseball game the evening of April 3. No proof was
presented at trial that these were Mr. Green’s shoe
prints, yet the prosecutors told the jury that they
were.
The District Court correctly stated the Brady standard under
which Green had to prevail for Claim III-H-4: “[t]he evidence at
issue must be favorable to the accused, either because it is exculpa-
tory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prej-
udice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–
82, 119 S. Ct. 1936, 1948 (1999). The Court also stated the correct
prejudice standard: to establish prejudice a petitioner must show
that “there is a reasonable probability that, had the evidence been
90Ground One, to the extent it alleged a Brady violation based on White’s
notes, mimicked the allegations of Claim III-H-4 of Green’s first Rule 3.850
motion. In Part II.A.1, supra, we quote the claim as alleged in that motion.
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94 Opinion of the Court 18-13524
disclosed to the defense, the result of the proceeding would have
been different.” Wright v. Sec'y, Fla. Dep’t of Corrs., 761 F.3d 1256,
1278 (11th Cir. 2014) (quoting Kyles v. Whitley, 514 U.S. 419, 433,
115 S. Ct. 1555, 1565 (1995)). “A ‘reasonable probability’ is a prob-
ability sufficient to undermine confidence in the outcome.” United
States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985).
The State, in its response to Green’s petition, argued that the
District Court was precluded from reviewing Claim III-H-4 be-
cause the claim had not been exhausted in the Florida state courts.
Specifically, in appealing to the Florida Supreme Court in Green II
the Circuit Court’s order denying Claim III-H-4, Green did not as-
sign the denial of the claim as error in his appellate brief, nor did he
offer any factual basis or argument in support of the claim. The
State argued alternatively that Green failed to show that the Circuit
Court’s adjudication of Claim III-H-4 was not entitled to AEDPA
deference.
Green countered the State’s arguments in his reply to the
State’s response. Regarding exhaustion, he represented that in
Green II he asserted as error the Circuit Court’s denial of Claim III-
H-4 and that the Supreme Court affirmed the denial “with no ex-
planation.” 91 According to Green, this means the District Court
91 In his habeas petition, Green represented that the Florida Supreme Court
affirmed the Circuit Court’s denial of Claim III-H-4 in Green II. He made the
same representation in his reply to the State’s response to his habeas petition:
“the issue was raised on appeal of his first post-conviction motion and ‘af-
firmed on appeal to the Supreme Court of Florida.’” The quotation is taken
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18-13524 Opinion of the Court 95
had to “look through” the Green II decision to the last “reasoned
decision” on Claim III-H-4, i.e., the decision the Circuit Court
reached on July 22, 2002. See Ylst v. Nunnemaker, 501 U.S. 797,
804, 111 S. Ct. 2590, 2595 (1991). If the District Court did so, Green
argued that it would come to two conclusions: (1) that the Circuit
Court’s denial of Claim III-H-4 constituted an “unreasonable appli-
cation of Brady v. Maryland” under § 2254(d)(1) and (2) that the
Circuit Court’s determination that the defense had access to all of
the information contained in White’s notes was an “unreasonable
determination of the facts” under § 2254(d)(2). Having so con-
cluded, Green contended the Court would have to consider Claim
III-H-4 de novo.
B.
The District Court accepted Green’s representation that
Claim III-H-4 had been exhausted in Green II without mention or
explanation.92 The District Court instead proceeded directly to the
from the Circuit Court’s order of August 31, 2011, denying Green’s Successive
Motion. The Circuit Court could not have read the opinion in Green II as
affirming the denial of Claim III-H-4 because the opinion contains no mention
of Claim III-H-4 or any of the facts underpinning the claim—specifically,
White’s notes of August 28, 1989, or any of the contents of the notes. The
quoted statement that Claim III-H-4 was “affirmed on appeal to the Supreme
Court of Florida” finds no support in the Green II decision, and had to have
come from another source, one that we were unable to identify.
The District Court did so notwithstanding the fact that in Green II neither
92
Green’s brief nor the Florida Supreme Court’s decision contained one word
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96 Opinion of the Court 18-13524
merits and looked through the Green II opinion to examine the
Circuit Court’s decision adjudicating Claim III-H-4; if the Circuit
Court’s decision failed under either § 2254(d)(1) or § 2254(d)(2), the
Court would decide Claim III-H-4 de novo.
The District Court concluded that the adjudication of Claim
III-H-4 failed both tests. It failed the § 2254(d)(1) test because the
Circuit Court ceased its inquiry into the matter of Brady prejudice
after concluding that Clarke’s and Rixey’s suspicion—that Hallock
“did it”—would have been inadmissible as opinion testimony at
Green’s trial. 93 The Circuit Court erred because it ceased its preju-
dice inquiry without determining whether the officers’ suspicion
that Hallock killed Flynn was material, i.e., whether it could have
been helpful to the defense. The District Court concluded it would
have been:
[T]he information that the first officers at the scene
evaluated the evidence as implicating Hallock as a
suspect went to the heart of the defense strategy.
It is difficult to conceive of information more
material to the defense and the development of
about Claim-III-H-4. Both Green’s brief and the Florida Supreme Court’s de-
cision in Green II were part of the record before the District Court.
93 The District Court mind read the Circuit Court as having based its eviden-
tiary ruling on Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000) (“We
begin . . . with the basic proposition that a witness’s opinion as to the guilt or
innocence of the accused is not admissible.”).
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18-13524 Opinion of the Court 97
defense strategy than the fact that the initial respond-
ing officers evaluated the totality of the evidence as
suggesting that the investigation should be directed
toward someone other than Petitioner. Thus, the
withheld evidence was clearly material and the failure
to disclose it was a Brady violation which undermines
confidence in the outcome of the trial. 94
To the District Court, the Circuit Court’s failure to recog-
nize the materiality of Clarke’s and Rixey’s suspicion constituted
an unreasonable application of Brady. The Court determined that
“[i]t was contrary to established federal law, as set down in Brady,
and objectively unreasonable for the State court to end the preju-
dice inquiry once it made an admissibility determination on the
prosecutor’s notes concerning the Deputies’ suspicions that Hal-
lock murdered Flynn.”
The District Court also found that the Circuit Court made
an “unreasonable determination of the facts” when it concluded
that the defense had access to all the information contained in
White’s notes. As the District Court expressed it,
94In finding that Clarke’s and Rixey’s suspicion went to “the heart of the de-
fense strategy,” the District Court drew on testimony Parker gave at the evi-
dentiary hearings the Circuit Court held on Claims I-2, III-F, and IV. These
evidentiary hearings did not, however, address Claim III-H-4, as the Circuit
Court determined Claim III-H-4 did not require an evidentiary hearing.
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98 Opinion of the Court 18-13524
Conspicuously absent from this list 95 is the infor-
mation contained in the prosecutor’s note that “[H?]
said she tied his hands behind his back.” Hallock was
never cross examined as to whether she, as opposed
to the assailant, tied Flynn’s hands behind his back.
This was a critical issue at trial as the defense focused
instead on the theory that the hands were tied “for
comfort.” Defense counsel testified that this issue was
“the heart of the defense” and that he would have
used the information at trial, had he known of it.
The District Court seized on the absence of the hands-tying
statement in the Circuit Court’s Order of July 22, 2002, as proof
that the Circuit Court did not consider the statement in deciding
95 In referring to “this list,” the District Court is citing the Circuit Court’s order
denying Claim III-H-4, in which the Circuit Court set out the information
known to defense counsel pretrial. See supra part II.A.1. Immediately prior
to setting out the list, the Circuit Court recited the statements contained in
White’s notes, including: “Mark & Diane suspect the girl did it. She changed
her story couple times. . . [?] She [?] said she tied his hands behind his back.”
The Circuit Court’s order stated that Parker was aware of “[a]ll of the infor-
mation in [White’s] notes,” and this obviously included the hands-tying state-
ment. Moreover, in prosecuting Claim III-F, Green alleged that Parker had
access to Deputy Walker’s April 5, 1989, report and thus the hands-tying state-
ment. This was part of Green’s claim that Parker rendered ineffective assis-
tance of counsel in failing to cross-examine Hallock with the statement from
Walker’s report. See supra part II.A.3 (discussing the allegation and the inef-
fective-assistance claim); see also Green II, 975 So. 2d at 1104 (discussing and
affirming the Circuit Court’s denial of this ineffective-assistance-of-counsel
claim).
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18-13524 Opinion of the Court 99
Claim III-H-4. Then, turning to whether the non-disclosure of this
information prejudiced Green’s defense, the District Court said:
Hallock was never cross examined as to whether she,
as opposed to the assailant, tied Flynn’s hands behind
his back. This was a critical issue at trial as the defense
focused instead on the theory that the hands were
tied “for comfort.” Defense counsel testified that this
issue was “the heart of the defense” and that he would
have used the information at trial, had he known of
it. This impeachment information contained in the
prosecutor’s notes was unquestionably material as it
seriously undermined the testimony of Hallock that
the assailant tied Flynn’s hands behind his back and
that the gun discharged in the process. The initial sus-
picion that Hallock was the shooter coupled with this
significant inconsistency in her story would have pro-
vided powerful impeachment material and a basis to
argue that Hallock had some motivation to fabricate.
The failure to disclose this information, was a Brady
violation considering the totality of the circumstances
and the absence of any direct evidence of guilt beyond
the identification by Hallock. The trial court’s deter-
mination otherwise was contrary to, or an unreason-
able application of Brady. 96
96 In relying on Parker’s testimony, which was given at the evidentiary hearing
held after the Circuit Court adjudicated Claim III-H-4, the District Court was
effectively deciding a new Claim III-H-4, one that had not been exhausted. We
point this out in the text infra part V.C.1.
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100 Opinion of the Court 18-13524
The District Court thus concluded that the Circuit Court’s
adjudication of Claim III-H-4 was based on an unreasonable appli-
cation of Brady per § 2254(d)(1) and an unreasonable determination
of the facts in light of the evidence presented to the Circuit Court
per § 2254(d)(2). Given these circumstances, the District Court
proceeded to decide Claim III-H-4 de novo.
In doing so, the District Court considered the record that
was before the Circuit Court when it adjudicated the claim on July
22, 2002, i.e., the records of the pre-trial and trial proceedings in
Green’s prosecution, the Huff hearing, and Claim III-H-4’s factual
allegations. The District Court also considered the record of the
evidentiary hearings the Circuit Court held in 2003 and 2004 on
Claims I-2, III-F, and IV, and therefore Parker’s testimony; Green’s
Successive Motion, which included the record of the evidentiary
hearing the Circuit Court held on the Motion; and the affidavits
Clarke and Rixey executed in June 2010, which contradicted the
testimony they gave on deposition prior to Green’s trial and after-
wards at his trial. 97 None of that was before the Circuit Court when
it decided Claim III-H-4 on July 22, 2002.
97 The District Court recognized the contradiction. In testifying on deposition
and at trial, Clarke and Rixey stated that they had no involvement at all in the
investigation of the Flynn murder. Indeed, their participation in the case
ended when the criminologist and the homicide case agent arrived at the or-
ange grove. Moreover, and as the District Court observed, they never saw or
spoke to Hallock while they were at the orange grove. She was with Deputy
Walker in his car. Therefore, Clarke and Rixey had no first-hand knowledge
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18-13524 Opinion of the Court 101
On this expanded record, the District Court concluded that
Green had shown Brady prejudice. The Court concluded there
was a reasonable probability that had White’s notes been disclosed
to the defense pretrial—specifically, Clarke’s and Rixey’s suspicion
that Hallock killed Flynn and Hallock’s statement that she was the
one who tied Flynn’s hands—the result of the guilt-innocence
phase of Green’s trial might have been different. The District
Court ruled, contrary to the Circuit Court’s ruling, that Green had
shown prejudice because it was “unknown and unknowable”
whether Parker could have elicited the essence of the testimony
from the officers in a fashion that may have persuaded the Circuit
Court to allow the evidence to come in under Rule 402. The Court
therefore issued a writ of habeas corpus vacating Green’s convic-
tions.
C.
The State appeals the District Court’s Claim III-H-4 decision
on two grounds. First, Claim III-H-4 was not exhausted because
Green did not assign as error in Green II the Circuit Court’s denial
of the claim. Second, assuming Claim III-H-4 was exhausted in
Green II, in reviewing the Circuit Court’s decision on the claim as
Ylst directed, the District Court erred in failing to accord the deci-
sion AEDPA deference. We consider these two grounds in order.
of the investigation and so had no basis for contradicting their earlier testi-
mony.
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102 Opinion of the Court 18-13524
1.
Under 28 U.S.C. § 2254(b)(1)(A), we may not grant federal
habeas relief to a state prisoner unless the prisoner “has exhausted
the remedies available in the courts of the State.” The State courts
must have been given a “fair opportunity” to act on their claims.”
Baldwin, 541 U.S. at 29, 124 S. Ct. at 1349. “To provide the State
with the necessary ‘opportunity,’ the prisoner must “fairly present”
his claim in each appropriate state court (including a state supreme
court . . ., thereby alerting that court to the federal nature of the
claim.” Id. The exhaustion requirement applies “not only to broad
legal theories of relief, but also to the specific assertions of fact that
might support relief.” Kelley, 377 F.3d at 1344. Presentation of a
claim “under the same general legal umbrella but with entirely dif-
ferent factual underpinnings [also] does not constitute fair presen-
tation of the . . . claim.” Henderson, 353 F.3d at 898 n.25. We
“require that petitioners present their claims to the state courts
such that the reasonable reader would understand each claim’s par-
ticular legal basis and specific factual foundation.” Kelley, 377 F.3d
at 1344-45.
a.
The State supports its failure-to-exhaust argument by point-
ing to Green’s brief in Green II. The brief contains not a word
about Claim III-H-4, much less a statement that the State violated
the Brady rule when White withheld his notes from the defense. It
also contains no semblance of the arguments that Green’s current
counsel presents to this Court in support of the claim. The brief
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18-13524 Opinion of the Court 103
does assign as error, though, the denial of a different Brady claim,
Claim III-H-5, which alleged that the State violated the Brady rule
in failing to disclose the mugshots, in the form of three by five
cards, shown to Hallock on April 4, 1989. 98 Appellant-Cross Appel-
lee Br. at ii. The opinion in Green II confirms this. Having had
that claim “fairly presented” to it, the Florida Supreme Court dis-
cusses that Brady claim at length in the section headed “B. Suppres-
sion of Evidence” and affirms the Circuit Court’s decision rejecting
the claim. Green II, 975 So. 2d at 1101–03. But that section con-
tains no mention of White’s notes or Green’s claim that the State’s
failure to disclose them violated the Brady rule.
Green responds to the State’s failure-to-exhaust argument
with a point he did not raise in the District Court. We nonetheless
consider it. The point is that he exhausted the Circuit Court’s de-
nial of Claim III-H-4 in Green II in assigning as error the Circuit
Court’s denial of Claim III-F. Here’s what his brief tells us about
that:
In Green’s 2006 Florida Supreme Court Appeal Brief,
under a heading stating “The Court Erred in Denying
Green’s Claim For Relief Based on …NonDisclosure
of Exculpatory Evidence,” 99 Green devoted three
98 See supra note 35. This claim is not before us.
99The heading (as set forth by Green) makes it appear that the discussion fol-
lowing it related to the Claim III-H-4 Brady violation due to the words: “Based
on. . . NonDisclosure of Exculpatory Evidence.” However, the brief writer
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104 Opinion of the Court 18-13524
pages of argument to both the law and facts related to
the very issue [the State] claims now was defaulted.
This Claim was plead as Claim III in the motion for
postconviction . . . relief.[] As for the facts, under the
heading “Exculpatory and impeaching evidence relat-
ing to the initial police investigation,” Green specifi-
cally identifies the suppressed notes: “Mark and Diane
suspect girl did it, she changed her story a couple of
times…[?] She [?] said that she tied his hands behind
his back.” Green’s 2006 Florida Supreme Court Ap-
peal Brief then argues at length that the prosecutor’s
notes and other suppressed facts constituted exculpa-
tory evidence that went to the “heart of” the defense
strategy. Indeed, Green’s 2006 Florida Supreme
Court Appeal Brief quoted the exact same testimony
from Parker as was quoted by the District Court in
used an ellipsis to omit the following words, which we highlight. When those
words are included, the claim reads:
ARGUMENT VI
THE COURT ERRED IN DENYING GREEN’S
CLAIM FOR RELIEF BASED ON INDIVIDUAL
INSTANCES OF INEFFECTIVE ASSISTANCE OF
COUNSEL AND NONDISCLOSURE OF
EXCULPATORY EVIDENCE.
Ineffective assistance for failure to maintain file
Exculpatory and impeaching evidence relating
to the initial police investigation
Failure to impeach Jerome Murray
(Emphasis added).
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18-13524 Opinion of the Court 105
support of its habeas finding that the notes “went to
the heart” of the defense strategy. Thus, Parker’s ev-
identiary hearing testimony about the dramatic im-
pact disclosure of the Brady material would have had
at trial was presented to both the Florida Supreme
Court in Green’s 2006 Florida Supreme Court Appeal
Brief, and the District Court to demonstrate that the
suppressed notes went to the heart of the defense
case. [The State’s] sleight-of-hand argument that
Green never appealed a non-appealable order to the
Florida Supreme Court is wholly without merit.
(First emphasis added).
The brief is correct in that Green’s brief to the Florida Su-
preme Court in Green II did include the quotation from White’s
notes: “Mark and Diane suspect the girl did it, she changed her
story a couple of times. . . [?] She [?] said that she tied his hands
behind his back.” Green II, 975 So. 2d at 1104 (“[S]he, rather than
Green, had been the one to tie Charles Flynn's hands.”). However,
the quotation was included solely to support Green’s argument
that the Circuit Court erred in denying Claim III-F, not Claim III-
H-4. Claim III-F alleged that Parker rendered ineffective assistance
of counsel in failing to cross-examine Hallock with her statement
to Deputy Walker that she was the one who tied Flynn’s hands be-
hind his back. At the outset, the brief referenced the evidentiary
hearing that was held on Claim III-F and argued that Parker had
failed “to investigate and present exculpatory and impeaching evi-
dence relating to the initial police investigation.” The brief relied
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106 Opinion of the Court 18-13524
upon the hands-tying statement in the 1999 FDLE investigation to
bolster the ineffectiveness claim. It also quoted that statement
from White’s notes, “She [?] said that she tied his hands behind his
back,” because, as the State points out, it was “consistent with Dep.
Walker’s recollection that Hallock said that she was the one who
did the actual tying of Flynn’s hands, and inconsistent with Hal-
lock’s subsequent statements and eventual trial testimony.” Par-
ker’s alleged dereliction of duty was his failure to develop and im-
peach Hallock at trial with the inconsistent statement she suppos-
edly gave Walker on the night of the murder, as indicated in the
report he filed on April 5, 1989, 100 which had been disclosed to Par-
ker prior to the trial. Green II, 975 So. 2d at 1104.
It is clear to us that in Green II, Collateral Counsel appealed
and the Florida Supreme Court addressed only the Claim III-F
Strickland allegation—founded on the statement Hallock purport-
edly made to Deputy Walker—not a Brady claim founded on the
statement that, according to White’s notes, Hallock made to some-
one other than Clarke and Rixey. Green alleged in Claim III-F that
Parker should have known about the hands-tying statement be-
cause he had Walker’s report. 101 He also had access to the notepad
100See supra part II.A.3., discussing Green’s argument in support of Claim III-
F in Green II.
101Recall White’s comment at the Huff hearing suggesting that Collateral
Counsel found the information contained in White’s notes in “the records in
the case Mr. Parker already ha[d].” Collateral Counsel did not disagree and
ask the Court to hold an evidentiary hearing on, for example, whether Parker
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18-13524 Opinion of the Court 107
on which Walker jotted down what Hallock told him. The Florida
Supreme Court could not have read Green’s brief as representing
that Claim III-F alleged a Brady violation on the one hand—the
State’s withholding of Hallock’s alleged prior inconsistent state-
ment contained in White’s notes—and a Strickland violation on the
other hand—Parker’s failure to use Hallock’s alleged prior incon-
sistent statement contained in Walker’s report in cross-examining
Hallock. To conclude, Green failed to exhaust Claim III-H-4 in the
state courts because he failed to “present the[] claim[]” to the Flor-
ida Supreme Court “such that the reasonable reader would under-
stand [the] claim’s particular legal basis and specific factual founda-
tion.” Kelly, 377 F.3d at 1344-45.
b.
But this is not the only problem with Green’s argument that
he exhausted Claim III-H-4 in the state courts, because the Brady
claim that Green raised before the District Court is not the same
claim that he presented to the state courts.
In fine, the Circuit Court decided the Claim III-F Strickland
claim following a lengthy set of evidentiary hearings (April 2003–
October 2004) in which Parker appeared and gave the exact same
testimony quoted by the District Court in support of its habeas
finding that White’s notes “went to the heart” of the defense strat-
egy. At that hearing, the Circuit Court was adjudicating a
actually knew of Hallock’s hands-tying statement. Collateral Counsel ac-
cepted White’s comment as true.
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108 Opinion of the Court 18-13524
Strickland claim, not a Brady claim.102 The Brady claim the District
Court granted habeas relief on was a brand spanking new “Claim
III-H-4.” That Brady claim was actually the same claim Green pre-
sented to the Circuit Court in his Successive Motion in state
court—a claim supported by the testimony given (principally by
Parker) at the evidentiary hearings held in 2003 and 2004 and the
affidavits Clarke and Rixey provided years later, in June 2010. The
Circuit Court denied this substantially expanded Brady claim as an
impermissibly successive one under Florida Rule 3.850(h). 103
The AEDPA forbids a district court from entertaining a
claim that is not the same claim the prisoner presented to and ad-
judicated by the state courts on the merits. See Henderson, 353
F.3d at 898 n.25. Because the Claim III-H-4 claim presented on fed-
eral habeas review rests upon “different factual underpinnings,” it
was also unexhausted in state court and procedurally defaulted on
federal habeas. Henderson, 353 F.3d at 898 n.25. Accordingly, the
District Court’s conclusion that Green exhausted Claim III-H-4,
whether as it was originally presented to the state court or as pre-
sented to the District Court, cannot stand.
2.
The State’s alternative argument assumes that the Claim III-
H-4 presented in the first state postconviction motion was
102 See supra part II.A.3.
103The state courts rejection of this new claim is not subject to federal habeas
review.
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18-13524 Opinion of the Court 109
exhausted, but argues that the District Court erred in concluding
that the Circuit Court’s adjudication of the claim on the merits was
unreasonable under §§ 2254(d)(1) and (d)(2), and erred in conclud-
ing, de novo, that the State’s nondisclosure of two statements in
White’s notes— “Mark [Rixey] & Diane [Clarke] [1] suspect girl did
it, She changed her story couple time . . . . [?] She [?] said [2] she tied
his hands behind his back”—violated the Brady rule. We agree the
District Court erred. 104
a.
At the outset, we note that the District Court erred in con-
sidering evidence that was not before the state court when it adju-
dicated Claim III-H-4 on the merits. This includes, primarily, Par-
ker’s testimony and the affidavits of Rixey and Clarke that were
executed in 2010 and submitted as “new evidence” in Green’s Suc-
cessive Motion in the state court. As Cullen v. Pinholster holds,
“review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.” 563 U.S.
170, 181, 131 S. Ct. 1388, 1398 (2011). The same limitation logically
applies in review under § 2254(d)(2). Thus, in deciding whether the
Circuit Court’s Claim III-H-4 decision was “unreasonable” under
104 Whether the District Court erred in concluding that the State violated the
Brady rule in failing to disclose White’s notes is a mixed question of law and
fact. We review the Court’s application of the law de novo and its findings of
fact for clear error. As indicated in the following text, the factual findings on
which the District Court based its conclusion that the State’s withholding of
White’s notes violated the Brady rule are clearly erroneous.
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110 Opinion of the Court 18-13524
the AEDPA standards, the District Court was restricted to “the ev-
idence presented in the [Circuit Court] proceeding,” i.e., the Huff
hearing which adjourned on May 13, 2002. The District Court dis-
regarded the Pinholster limitation.
Accordingly, we review Green’s Claim III-H-4 in his § 2254
petition de novo, but with the deference to the state habeas court’s
decision demanded by AEDPA, Reed v. Sec’y, Fla. Dep’t of Corr.,
593 F.3d 1217, 1239 (11th Cir. 2010), and we do so based upon the
record that was before the Circuit Court when it decided the claim,
Cullen, 563 U.S. at 181, 131 S. Ct. at 1398.
b.
The Circuit Court ruled that the “opinion of Deputies Rixey
and Clarke that they suspected that Hallock murdered Flynn
would not have been admissible at Green’s trial.” 105 According to
the District Court, once the Circuit Court so ruled, it ceased inquir-
ing as to whether the officers’ opinion was material in that it would
have been helpful to the defense. The District Court considered
this error on the Circuit Court’s part, holding that Brady required
the Circuit Court to take one step further and inquire into the “use
105 Green made no attempt to convince the Circuit Court that the opinion was
admissible under Florida law. At the Huff hearing, Collateral Counsel could
have requested, but did not, an evidentiary hearing for two purposes: (1) so he
could question Clarke and Rixey about their opinion and seek an evidentiary
ruling on the admissibility of their testimony and (2) so he could question the
officers involved in the homicide investigation in an effort to show that they
focused their investigation on the wrong person.
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18-13524 Opinion of the Court 111
[defense counsel] might have made” of the opinion. But the Circuit
Court failed to take that step, and, according to the District Court,
its failure to do so rendered its application of the Brady rule unrea-
sonable under § 2254(d)(1).
We are not persuaded. First, the Circuit Court’s Order of
July 22, 2002, does not support the District Court’s finding that the
Circuit Court ceased its inquiry into Brady prejudice once it ruled
Clarke’s and Rixey’s opinion inadmissible. It is obvious from a
straightforward reading of the Circuit Court’s order that the Court
based its ruling on the fact that White’s notes would have provided
the defense with nothing it did not already have, and, therefore,
Green “ha[d] shown no prejudice.”106 More to the point, Green
failed to show how knowledge of the officers’ opinion would have
benefitted the defense. 107 Parker had the same opinion; Hallock
was the culprit. He based his opinion on the same information the
officers relied on in expressing their opinion. In his closing
106 Thefinding of that fact is entitled to a presumption of correctness under 28
U.S.C. § 2254(e)(1).
107 At the Huff hearing, Collateral Counsel, now in possession of White’s notes
and the officers’ opinion, could have requested, but did not, an evidentiary
hearing so he could question the officers and attempt to establish a basis for
the admission of their opinion testimony at Green’s trial. In addition, Collat-
eral Counsel could have questioned the officers actually involved in the inves-
tigation, like Sergeant Fair Agent Nyquist, to show that they deliberately ig-
nored the possibility that Hallock killed Flynn.
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112 Opinion of the Court 18-13524
argument in the guilt-innocence phase of Green’s trial, Parker all
but told the jury flat out that Hallock was the murderer.
In sum, the State’s nondisclosure of the officers’ opinion was
immaterial—it would have been of no demonstrable benefit to the
defense. Because the opinions of Rixey and Clarke were not ad-
missible under state law, they were “not ‘evidence’ at all.” See
Wood v. Bartholomew, 516 U.S. 1, 6, 116 S. Ct. 7, 10 (1995). 108 And
Green failed to argue or demonstrate that the suspicions would
have led to material, admissible evidence sufficient to create a “rea-
sonable probability” that the outcome of his trial would have been
different. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
3383 (1985). The District Court’s finding that the disclosure of the
opinion would have been helpful to the defense in “unknown and
unknowable” ways also falls well short of the Brady mark. Alt-
hough a “reviewing court may consider directly any adverse effect
that the prosecutor’s failure to respond might have had on the
preparation or presentation of the defendant’s case,” Bagley, 473
U.S. at 683, 105 S. Ct. at 3384, Green was still required to “specify
what particular evidence [he] had in mind,” Wood, 516 U.S. at 6,
116 S. Ct. at 10. The Circuit Court held that Green failed to meet
108The District Court also erred in finding that Parker might have been able
to circumvent Florida caselaw and the Circuit Court’s ruling that the opinion
testimony of Clarke and Rixey was not admissible under that law. See Estelle
v. McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (“We have stated many
times that federal habeas corpus relief does not lie for errors of state law. To-
day, we reemphasize that it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
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18-13524 Opinion of the Court 113
his burden to demonstrate prejudice, and its adjudication is not
contrary to or an unreasonable application of Supreme Court prec-
edent.
c.
The Circuit Court also found that all the information con-
tained in White’s notes was disclosed to the defense and known by
Parker prior to trial. This included Hallock’s hands-tying state-
ment, “She [?] said she tied his hands behind his back.” Green was
convinced that Parker had, or should have had, Hallock’s state-
ment because he had the report Deputy Walker filed on April 5,
1989, and it contained the statement. See Green II, 975 So. 2d. at
1104; see also supra part II.C.2. He also had access to the notepad
in which Walker jotted down what Hallock told him. This explains
why Claim III-F alleged that Parker was ineffective under Strick-
land in failing to cross-examine Hallock with the statement. 109
At the Huff hearing, White stated that Parker had the factual
information contained in his notes because it was in “the records in
the case Mr. Parker already ha[d].” Collateral Counsel did not
109 Green also alleged in Claim III-F that Parker was ineffective in failing to
obtain Walker’s notepad. As we have explained, Green’s allegations in Claim
III-F are inherently contradictory; Green would have the Court believe that
Parker was ineffective for not cross-examining Hallock with a statement he
also alleged the prosecution never disclosed. At most, only one of these two
claims could be true, and the Circuit Court concluded that Parker had access
to the notepad. Therefore, Claim III-F must be a Strickland claim, not a Brady
claim.
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114 Opinion of the Court 18-13524
dispute this. If Collateral Counsel had any doubt about whether
Parker had access to the information in White’s notes in the case
records, he could have asked the Court to hold an evidentiary hear-
ing to determine what Parker actually knew. But Collateral Coun-
sel did not do so.
In finding a Brady violation, the District Court overlooked
the facts Collateral Counsel alleged in support of Claim III-F and
Collateral Counsel’s silent reaction to White’s statement at the
Huff hearing about the records Parker already had. The District
Court also overlooked what the Circuit Court was referring to
when it found that the defense had all the information White’s
notes disclosed. The Court was not referring to the notes them-
selves as those had not been disclosed. Rather, the Court was re-
ferring to the facts the notes disclosed. 110
Finally, and putting aside the question of whether Parker
was aware of Hallock’s hands-tying statement to Walker, Green
failed to prove that the statement ever existed. 111 That Hallock
110The only fact the notes did not disclose was Clarke’s and Rixey’s suspicion
that Hallock killed Flynn. Every other fact the notes disclosed was well known
to those involved in the homicide investigation and amongst other officers in
the Sheriff’s Office. Parker also learned of the facts in White’s note via the
extended pretrial discovery conducted in the case.
111Neither Clarke nor Rixey could have repeated Hallock’s statement on the
witness stand (as a prior inconsistent statement impeaching Hallock’s testi-
mony that Green tied Flynn’s hands) because Hallock never spoke to them.
Indeed, they never saw her. They learned of the statement from someone
else, presumably Walker.
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18-13524 Opinion of the Court 115
actually made the statement to Walker (or someone else who re-
layed it to Clarke and Rixey) is the sine qua non of Claim III-H-4
and Claim III-F. If evidence of the statement—whether documen-
tary or testimonial—never existed, its nondisclosure could not
have violated the Brady rule and Parker could not have been inef-
fective in failing to use it in cross-examining Hallock.
The Circuit Court found that at the evidentiary hearing on
Claim III-F, Collateral Counsel failed to introduce any evidence
that Hallock told Walker she was the one who tied Flynn’s hands
behind his back. Collateral Counsel could have called Walker but
did not. He could have presented the report Walker filed on April
5, 1989, which supposedly contained the statement, or Walker’s
notepad. He presented neither. Consequently, to find that Hallock
actually made the hands-tying statement, the Circuit Court would
have to speculate. And that it refused to do. So, it denied Claim
III-F.
The Florida Supreme Court affirmed the denial foursquare.
Green II, 975 So. 2d at 1104. Without proof that Hallock told some-
one that she was the one who tied Flynn’s hands behind his back,
the District Court could not have concluded that the State violated
the Brady rule in failing to disclose to the defense that Clarke and
Rixey told White what Hallock had said. The District Court’s issu-
ance of the writ based on Hallock’s statement constituted reversi-
ble error.
VI.
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116 Opinion of the Court 18-13524
Green asserts as an alternative basis for sustaining the Dis-
trict Court’s judgment the second, third, and fourth claims the Dis-
trict Court found exhausted. The District Court afforded the state
courts’ decisions denying the claims AEDPA deference. Green ar-
gues that the District Court erred. His argument lacks merit. We
explain why in the subparts that follow.
A.
The second claim concerns Hallock’s identification of Green
as the perpetrator of the crimes in this case. Green contends that
the Circuit Court should have granted his pretrial motion in limine
to suppress Hallock’s identification of him in the photo lineup the
police showed her on April 5, 1989, because the lineup was imper-
missibly suggestive, and the identification was unreliable. Green
argues that in denying his motion in limine and allowing the State
to introduce the lineup identification into evidence, the trial judge
denied him due process of law. 112
We begin our discussion of the second claim with the hear-
ing the Circuit Court held on May 31, 1990, on the motion in
limine. 113 Next, we consider sequentially the Circuit Court’s ad-
verse ruling on the motion, Hallock’s subsequent identification of
Green at trial, the argument Green advanced in the Florida
Green brought the second claim under the Fifth, Sixth, and Fourteenth
112
Amendments.
113At the hearing on the motion, Philip Williams and Robert Holmes repre-
sented the State. John Parker represented Green.
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18-13524 Opinion of the Court 117
Supreme Court in appealing the identification, the Florida Su-
preme Court’s decision rejecting the argument, Green’s presenta-
tion of his identification claim to the District Court, and its decision
denying the claim. Lastly, we explain why the District Court’s de-
cision was not erroneous.
1.
Four witnesses testified at the May 31, 1990, hearing: Hal-
lock, her father, Robert Hallock, who was present when she iden-
tified Green’s photograph, Sergeant Fair, who conducted the pho-
tographic lineup, and Agent Nyquist, who put the lineup together
under Fair’s supervision. Parker questioned Hallock extensively
about the photographic lineup when Parker took her deposition on
February 13, 1990, and he used a transcript of the deposition to re-
fresh her recollection in cross-examining her at the hearing on May
31.
The witnesses collectively described in detail what led up to
Hallock’s identification of Green’s photograph on April 5. After
arriving at the North Precinct early in the morning of April 4, Ser-
geant Fair had Hallock look at sixty-three to sixty-eight photo-
graphs of black males the Sheriff’s Office had in its “intelligence
files” to see if any depicted her assailant. She selected the photo-
graphs of “two or three” males who had facial hair features similar
to the assailant’s and showed the photographs to a sketch artist
who prepared a composite sketch.
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118 Opinion of the Court 18-13524
The sketch appeared with an article about the Flynn homi-
cide in the Florida Today newspaper the following morning, April
5. Dale Carlisle read the article, recognized the face shown in the
sketch, and called the Sheriff’s Office at around 1:00 p.m. Carlisle
spoke to Agent Nyquist and told him that the face portrayed in the
sketch resembled that of a man he had seen at a Holder Park base-
ball game in the evening of April 3. The man Carlisle identified
was Crosley Green. Nyquist, upon learning that Green had served
time in a Florida prison, then obtained his photograph from the
Florida Department of Corrections.
Under Sergeant Fair’s supervision, Agent Nyquist prepared
a lineup of six photographs of black males. Sergeant Fair looked at
the lineup and was concerned about the “skin tone of [Green’s]
photograph,” that it was “a bit darker than the rest.” So, Nyquist
obtained photographs of “darker skinned black males” and pre-
pared another lineup that included their photographs along with
Green’s. Responding to Parker’s question at the hearing: “You are
of the opinion this [lineup] was just fine?” Sergeant Fair answered
“Yes.”
Late in the evening of April 5, Hallock was summoned to
the North Precinct to look at the photographic lineup. She arrived
with her father. Agent Nyquist told her that she would be shown
a photographic lineup that included a photograph of the suspect.
Sergeant Fair then had her view the lineup. Hallock testified that
she looked at the photographs for “three to four minutes.” She
picked “number two” and said to Fair: “I’m pretty sure it [is]
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18-13524 Opinion of the Court 119
number two.” She was asked more than once if she was sure, and
“finally” said: “I’m sure.” Afterwards, she was told that number
two was a photograph of the suspect.
Sergeant Fair recalled that Hallock looked at the lineup “and
indicated within a very short period of time that number two was
the individual who was responsible for the crimes against herself
and Mr. Flynn.” When he asked her if she was “certain,” she “in-
dicat[ed that] she was positively certain that the person depicted in
position number two was in fact the killer of Chip Flynn.”
At the close of the hearing in limine, the Court entertained
counsel’s arguments. Counsel agreed that the hearing presented
two issues: whether the lineup was unnecessarily suggestive and if
it was, whether the suggestive procedure created a substantial like-
lihood that Hallock would mistakenly identify Green at the trial.
2.
The Circuit Court found that the State did not employ an
unnecessarily suggestive procedure in obtaining Hallock’s photo-
graphic identification of Green.
The Court also found that Hallock’s opportunity to observe
Green at Holder Park and in the orange grove indicated that the
identification was reliable enough that the jury could consider Hal-
lock’s identification. Assuming that the photographic lineup and
Hallock’s identification of Green’s photograph were admitted into
evidence at Green’s trial, the jury could then decide the extent to
which it wished to rely on Hallock’s identification.
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120 Opinion of the Court 18-13524
3.
At the trial, Hallock identified Green without objection.
And the State introduced the photographic lineup into evidence,
again without objection. After the State rested its case in chief,
Green renewed his pretrial motion to suppress. Adhering to its
pretrial ruling, the Circuit Court denied the motion. Green then
moved the Court for a mistrial, which the Court also denied.
4.
In appealing his convictions (and death sentence) to the Flor-
ida Supreme Court in Green I, Green assigned as error the Circuit
Court’s denial of his motion to suppress made pretrial and renewed
at trial. In his brief, he advanced two arguments sequentially. First,
“the photo line-up . . . was unduly suggestive and . . . the proce-
dures employed by the police in obtaining the identification were
tainted.” Second, because the procedures were unduly suggestive,
the factors the United States Supreme Court listed in Neil v. Big-
gers, 114 for determining whether an unduly suggestive procedure
created a “likelihood of misidentification,” counseled suppressing
the photo lineup identification and barring Hallock from identify-
ing Green at trial.
Prior to addressing Green’s first argument, the Florida Su-
preme Court observed what took place after Hallock and her father
came to the North Precinct in the evening of April 5, 1989:
114 409 U.S. 188, 199–200, 93 S. Ct. 375, 382 (1972),
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18-13524 Opinion of the Court 121
Police conducted a photo lineup with six pictures that
included a recent picture of Green. An officer told
Hallock, “We have six pictures we want you to look
at. We have a suspect within these six pictures. You
can take as long as you want ... and if you can't iden-
tify him, fine.” Hallock said she was “pretty sure”
Green was her assailant. After identifying Green, the
police told her she had identified the right person.
Green I, 641 So. 2d at 394. With that, the Florida Supreme Court
turned to Green’s first argument, that the photo lineup procedure
was “unnecessarily suggestive.” Id. It applied a two-part test in
assessing the argument:
First, whether police used an unnecessarily sugges-
tive procedure to obtain [the] out-of-court identifica-
tion, and, second, if so, considering all the circum-
stances, whether the suggestive procedure gave rise
to a substantial likelihood of irreparable misidentifica-
tion [of Green at his trial]. Grant v. State, 390 So. 2d
341, 343 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.
Ct. 1987, 68 L.Ed.2d 303 (1981).
Id. 115 The Court found that “the police did not use an unnecessarily
suggestive procedure to obtain Hallock's out-of-court
115 Grant v. State’s two-part test is based on the United States Supreme Court’s
holdings in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972), Simmons v.
United States, 390 U.S. 377, 88 S. Ct. 967 (1968), and Stovall v. Denno, 388 U.S.
293, 87 S. Ct. 1967 (1967). The Florida Supreme Court justified its test in Grant
with the following:
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122 Opinion of the Court 18-13524
[T]he primary evil to be avoided [in the introduction of an out-
of-court identification] is a very substantial likelihood of misi-
dentification . . . . It is the likelihood of misidentification which
violates a defendant’s right to due process . . . . Suggestive
confrontations are disapproved because they increase the like-
lihood of misidentification, and unnecessarily suggestive ones
are condemned for the further reason that the increased
chance of misidentification is gratuitous.” Neil v. Biggers, 409
U.S. at 198, 93 S. Ct. at 381-82. But as the analysis has evolved,
a suggestive confrontation procedure, by itself, is not enough
to require exclusion of the out-of-court identification; the con-
frontation evidence will be admissible if, despite its suggestive
aspects, the out-of-court identification possesses certain fea-
tures of reliability. Manson v. Brathwaite, 432 U.S. 98, 110, 97
S. Ct. 2243, 2250, 53 L.Ed.2d 140 (1977). Hence the appropriate
test is twofold: (1) did the police employ an unnecessarily sug-
gestive procedure in obtaining an out-of-court identification;
(2) if so, considering all the circumstances, did the suggestive
procedure give rise to a substantial likelihood of irreparable
misidentification. Id. The factors to be considered in evaluat-
ing the likelihood of misidentification include
the opportunity of the witness to view the
criminal at the time of the crime, the witness'
degree of attention, the accuracy of the wit-
ness' 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.
Neil v. Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382.
Grant v. State, 390 So.2d at 343. This is the same two-part test this Court has
consistently followed. United States v. Smith, 967 F.3d 1196, 1203 (11th Cir.
2020); Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988). If an out-of-court
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18-13524 Opinion of the Court 123
identification of Green.” Id. Consequently, there was no need to
consider the second part of the test. Id. As the Florida Supreme
Court explained:
The police showed Hallock an array of six photo-
graphs, all of which depicted men with similar char-
acteristics. Although police indicated the suspect was
in the photo lineup and Green's photograph was
darker than the others, there is no indication that of-
ficers directed Hallock's attention to any particular
photograph. See Johnson v. State, 438 So. 2d 774, 777
(Fla.1983) (photo lineup not impermissibly suggestive
even though only the defendant had a suntan and his
inmate uniform was a lighter blue than those of other
inmates in the lineup), cert. denied, 465 U.S. 1051, 104
S. Ct. 1329, 79 L.Ed.2d 724 (1984). Thus, the trial
court did not err in refusing to suppress the photo
identification.
Id. at 394–95. Having disposed of Green’s argument that the Cir-
cuit Court erred in denying his motion to suppress, the Florida Su-
preme Court dispatched his argument that the Court erred in al-
lowing Hallock to identify him at trial. “Hallock’s in-court
identification via a photo array is not unnecessarily suggestive and thus does
not meet the first test, “we need not proceed to the five factors of the Neil v.
Biggers test.” Cikora, 840 F.2d at 895–96.
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124 Opinion of the Court 18-13524
identification was based on her observation of Green at the crime
scene.”116 Id. at 395.
5.
The claim Green presented to the District Court was the
same as the claim he presented to the Florida Supreme Court on
direct appeal, to-wit: the Florida Supreme Court unreasonably ap-
plied United States Supreme Court precedent under § 2254(d)(1),
namely Neil v. Biggers, and unreasonably determined the facts un-
der § 2254(d)(2) in affirming the Circuit Court’s denial of his mo-
tion to suppress. The argument under § 2254(d)(1) depends on
whether the denial was based on an unreasonable determination of
the facts under § 2254(d)(2). The District Court tacitly agreed. Ac-
cordingly, its analysis of Green’s claim focused on whether the
Florida Supreme Court’s finding that the police did not use an un-
necessarily suggestive procedure in obtaining Hallock’s identifica-
tion of Green as the assailant was entitled to a presumption of cor-
rectness under § 2254(e)(1). The presumption provides the stand-
ard for reviewing the finding because the finding resolved a ques-
tion of fact. See United States v. Smith, 967 F.3d 1196, 1203 (11th
Cir. 2020) (applying clear error standard when reviewing state trial
court finding that the identification procedure was not unduly
116 This observation was stated gratuitously since Green did not object to Hal-
lock’s in-court identification at trial. His position was, and is, that the Circuit
Court should have granted his motion to suppress pretrial and ordered that
Hallock would not be permitted to identify him at trial.
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18-13524 Opinion of the Court 125
suggestive); Cikora v. Dugger, 840 F.2d 893, 896 (11th Cir. 1988)
(applying clear error standard when reviewing state trial finding
that “photo array was not impermissibly suggestive”).
The District Court did not mention the presumption in de-
ciding whether the photo array procedure used here was unduly
suggestive. 117 Instead, the Court effectively decided de novo
whether the procedure was faulty as Green alleged. In doing so, it
responded to the pieces of evidence Green principally relied on.
One such piece was that Green’s “photograph was darker
than the others” and so Hallock probably selected it for that reason.
The District Court observed that there was “no evidence that the
darkness of Petitioner's picture influenced Hallock’s selection of
Petitioner's photograph.” Referring to Hallock’s testimony at the
May 31, 1990, suppression hearing, the District Court noted that
“Hallock identified Petitioner's picture based on other factors, in-
cluding Petitioner's nose, complexion, face, and eyes, which all
matched Hallock's recollection of the shooter.” In fact, Hallock
specifically stated that she made her photo lineup identification of
Petitioner “based upon his face.”
As for Hallock’s in-court identification, the District Court
agreed with the Florida Supreme Court that Hallock’s in-court
identification was based on her observation of the assailant at the
117 Nor did Green mention the presumption while litigating the issue.
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126 Opinion of the Court 18-13524
scene of the crime. Green I, 641 So. 2d at 395. As the District Court
explained:
Hallock testified that she was ‘absolutely sure’ that
Petitioner was the perpetrator. Hallock’s testimony
reflects that there was sufficient time and light for her
to view Petitioner at the crime scene. In fact, Hallock
was able to provide law enforcement with a physical
description of the perpetrator, a description of the
perpetrator’s clothing, and assist in putting together a
sketch. Therefore, Petitioner . . . failed to demon-
strate that the in-court identification should have
been suppressed.
In sum, the District Court found no merit in Green’s §
2254(d)(2) argument. Since that argument failed, his § 2254(d)(1)
argument necessarily failed as well; if the photo lineup was not un-
duly suggestive, then the trial court did not unreasonably apply Su-
preme Court precedent when it denied Green’s motion to sup-
press.
6.
In his brief to us, Green argues that Hallock should have
been precluded from identifying him at trial because the photo
lineup from which she selected his photograph was “impermissibly
suggestive” and the selection was “unreliable.” Regarding the lat-
ter point, Green says that the District Court’s findings “to the con-
trary are incorrect and belied by the facts.” He implies the same
with respect to the first point. He acknowledges, however, that his
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18-13524 Opinion of the Court 127
real burden is not to convince us that the District Court erred. Ra-
ther, it is to show that the Florida Supreme Court’s adjudication of
his claim fails scrutiny under § 2254(d)(1) or (2).
Green has the added burden under § 2254(e)(1) of rebutting
by “clear and convincing evidence” the presumption of correctness
given to state court factual findings, both express and implied. Tay-
lor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007) (“Implicit factual find-
ings are presumed correct under § 2254(e)(1) to the same extent as
express factual findings.”). The Florida Supreme Court found that
the procedures the police used to obtain Hallock’s photo lineup
identification were not unduly suggestive and that her identifica-
tion of his photograph was reliable. Green’s brief, however, makes
no mention of his burden under § 2254(e)(1). Instead, it presents
his claim of misidentification as if he were on direct appeal before
the Florida Supreme Court. That observation aside, we consider
what Green has to say.
His brief dwells on the fact that Hallock was informed that
the suspect’s photograph was included in the photo array she
would be shown.118 That happened in Cikora, 840 F.2d at 894–97.
118As Green’s brief states, Hallock was told that “‘a suspect was in the lineup
before she viewed it.’” Green contends that this, together with the fact that
she was “praise[d]” by law enforcement for her selection of Green, “tainted
[her] ability to provide a fair, impartial identification both at the time of the
photo array and later at trial.” The Circuit Court was well aware of both
points in passing on Green’s pretrial motion to suppress.
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128 Opinion of the Court 18-13524
There the police told the witnesses that the suspect’s photo was in
the photographic array, but they did not reveal which photograph
it was. Id. We found no undue suggestiveness in the procedure.
Id.Informing an eyewitness that the suspect’s photo will be part
of the photo array is generally of no moment in the mine run of
cases. When a witness is presented with a lineup and asked
whether he or she can identify any of the individuals in the lineup,
the witness will expect that the individual the police believes to be
the suspect will be included. This is so whether the lineup consists
of individuals in person or via their photographs. Why else would
the police go to the trouble of summoning the witness to the sta-
tionhouse? Especially in circumstances like those here, in which an
artist’s sketch of the suspect made with the witness’ considerable
assistance has appeared in the local newspaper and hours later the
police summon the witness to the police station.
Putting aside the fact that Hallock was aware that the lineup
would include the suspect’s photograph, there was nothing sugges-
tive about this lineup. The Florida Supreme Court gave deference
to the Circuit Court’s finding that Hallock’s identification of
Green’s photo was reliable. The deference was warranted. The
suppression hearing the Circuit Court held was comprehensive.
The Court observed Hallock testify about her interaction with
Green at Holder Park and at the orange grove, as well as what took
place during the photo lineup. Parker, armed with the testimony
she gave when he deposed her three and a half months before,
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18-13524 Opinion of the Court 129
cross-examined her at length about her ability to identify Green.
At the suppression hearing and on deposition, she was questioned
about the opportunities she had to observe the assailant’s face. She
was subjected to the same questioning at trial.
Although the Florida Supreme Court’s opinion in Green I
does not mention the sketch that appeared in Florida Today on
April 5 and Hallock’s involvement in its preparation, that the
sketch prompted Carlisle and Hampton to call the police to say that
Green was at Holder Park the evening of April 3, 1989, was signifi-
cant. Carlisle recognized Green as a fellow junior high school stu-
dent he knew from years earlier. Hampton had known the Green
family and Crosley Green for years. The accuracy of the sketch no
doubt buttressed the Circuit Court’s finding that Hallock’s identifi-
cation of Green was reliable.
We close this discussion with the firm view that Green failed
to rebut by clear and convincing evidence the presumption of cor-
rectness that attached to the Florida Supreme Court findings re-
garding procedures the police employed in conducting the photo
lineup and the reliability of Hallock’s identification of Green’s pho-
tograph. The District Court did not err in affording the Florida
Supreme Court’s adjudication of Green’s identification claim
AEDPA deference.
B.
Green’s third claim, Claim I-2, alleged that Parker rendered
ineffective performance of counsel under Strickland v. Washington
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130 Opinion of the Court 18-13524
in failing to challenge Juror Guiles for cause or to strike him from
the jury venire peremptorily because Guiles’ niece had been mur-
dered three years earlier. 119 Green asserted the claim in his first
Rule 3.850 motion. The Circuit Court held an evidentiary hearing
on the claim and denied it on November 22, 2005, concluding that
Green satisfied neither prong of the Strickland standard, perfor-
mance or prejudice. The Florida Supreme Court agreed and af-
firmed. Green II, 975 So. 2d at 1104–05.
The District Court found the claim “without merit” and de-
nied it. As the District Court explained:
First, Guiles informed the trial court the he [sic]
would be able to set aside his feelings and not let them
affect his decision-making. Second, Parker made a
119 An ineffective assistance of counsel claim under Strickland requires proof
of two elements: (1) the petitioner must show that his counsel’s performance
was constitutionally deficient, and (2) the petitioner must show that his coun-
sel’s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064. Prejudice is established if 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.” Id. at 694, 104 S. Ct. at 2068.
The Strickland standard for deficient performance is deferential to
counsel. “[C]ounsel is strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise of reasonable profes-
sional judgment.” Id. at 690, 104 S. Ct. at 2066. Additionally, in a habeas case,
AEDPA creates a second layer of deference for defense counsel’s perfor-
mance—we must deny habeas relief on an ineffective assistance of counsel
claim if “there is any reasonable argument that counsel satisfied Strickland’s
[already] deferential standard.” Harrington v. Richter, 562 U.S. 86, 105, 131 S.
Ct. 770, 788 (2011) (emphasis added).
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18-13524 Opinion of the Court 131
strategic decision not to challenge Guiles. Under the
circumstances, there has been no showing that Parker
acted deficiently with regard to this matter or that Pe-
titioner sustained prejudice.
In his brief to us, Green devotes one paragraph to this claim:
Juror Guiles’s niece had recently been murdered, yet
Parker inexplicably failed to challenge him. The Dis-
trict Court excuses this behavior as a “strategic deci-
sion,” but nothing could be further from the truth.
Parker himself admitted in post-conviction deposi-
tion testimony that he “can’t tell you why” he did not
strike Juror Guiles with his available peremptory chal-
lenge. Parker also essentially admitted to his own in-
effectiveness, conceding that “if I didn’t make a mo-
tion to excuse [Juror Guiles] for cause because of a
family member[’s murder], I should have.” 120
The Florida Supreme Court found that a for cause objection
would have failed. Green II, 975 So. 2d at 1104–05. Guiles in-
formed the trial judge that he would “be able to set aside [his
niece’s murder] and not let it affect the case.” Id. The judge be-
lieved him, and the Florida Supreme Court accepted the judge’s
finding. Id.120 The words, “I should have,” were taken from a deposition Parker had given
earlier in the litigation of Claim I-2 at the behest of Collateral Counsel. Col-
lateral Counsel used the words in an effort to impeach Parker’s testimony at
the evidentiary hearing held on Claim I-2.
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132 Opinion of the Court 18-13524
The Florida Supreme Court’s finding that the for cause ob-
jection would have failed is a finding of ultimate fact. This finding
also necessarily included subsidiary findings that Guiles was truth-
ful and that the trial judge based his belief on Guiles’ statements
and demeanor. A state court’s findings on subsidiary factual ques-
tions are entitled to § 2254(e)(1)’s presumption of correct-
ness. 121 Austin v. Davis, 876 F.3d 757, 783 (5th Cir. 2017). This is
true even when the factual findings are merely implicit. Tay-
lor, 504 F.3d at 433. Also entitled to the presumption is the Circuit
Court’s express finding that Parker’s decision not to peremptorily
excuse Guiles from the jury venire was a strategic decision made
soundly.
As Green did not address his burden under § 2254(e)(1) and
thus failed to rebut the presumption of correctness the state courts’
factual findings were entitled to, the District Court’s judgment on
Green’s third claim, Claim I-2, is accordingly affirmed.
C.
Green’s fourth claim is that the prosecution violated Giglio
v. United States by “elicit[ing] or allow[ing] to go uncorrected crit-
ical false testimony from key witnesses,” namely Sheila Green,
Lonnie Hillery, and Jerome Murray. The District Court found the
claim in Petitioner’s Memorandum of Law in Support of Habeas
Corpus Petition with Request for Evidentiary Hearing. Claim IV
121As noted supra part VI.A.6, Green’s brief is silent regarding the application
of § 2254 (e)(1).
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18-13524 Opinion of the Court 133
of the first Rule 3.850 motion alleged that Green’s convictions were
“constitutionally unreliable” because they were based on the false
testimony of the three witnesses which had recently recanted. See
supra part II.A.4. The Circuit Court distilled Claim IV thus: “Under
claim four . . . the Defendant makes a newly discovered evidence
claim based upon the recantation of . . . trial testimony.” The Cir-
cuit Court then denied this claim after finding that the recantations
would not have changed the outcome at trial.
In his habeas petition, Green transformed Claim IV, a pure
state law claim, into a Giglio claim founded on the Claim IV evi-
dence, and the District Court treated it as such. It then denied the
claim out of the “special deference . . . due when a trial court's find-
ings are based on the credibility of witnesses.” “Here, the trial
court's credibility determination and implicit factual findings are
supported in the record.” Green failed to present “clear and con-
vincing evidence that the trial court's findings were unreasona-
ble.” 122 We affirm the District Court’s judgment on Claim IV on
the ground that it was not cognizable under § 2254. As presented
to the state courts in Green’s first Rule 3.850 motion, it failed to
allege the denial of a federal constitutional right.
VII.
122 TheDistrict Court was referring to the Florida Supreme Court’s discussion
of Green’s motion for a new trial under the original, state law based Claim IV.
Green II, 975 So. 2d at 1099–1101.
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134 Opinion of the Court 18-13524
The District Court denied Green relief on three claims it
found procedurally defaulted and thus unexhausted. Green con-
tends that the Court should have decided the claims on the merits
because he established a lawful excuse for the defaults, his actual
innocence. In subpart A, we state the reasons why the Court de-
nied the three claims as procedurally defaulted. 123 In subpart B, we
turn to Green’s argument that his procedural defaults should be
excused. He contends, as a blanket matter, that all the procedural
defaults are excusable under the fundamental miscarriage of jus-
tice—i.e., the “actually innocent”—exception. We conclude that
the procedural defaults are not excused under this exception. 124
A.
The first of the three claims the District Court rejected as
procedurally defaulted was Green’s claim that the State violated
In this part, we do not address claims the District Court rejected and that
123
Green did not present here. They are abandoned. See Access Now, Inc., v.
Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argu-
ment that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.”).
124In addition to the claims the District Court expressly declared procedurally
defaulted, we include in this discussion two other claims we analyzed earlier
in this opinion: (1) the Brady claim based on the State’s failure to disclose the
statement in White’s notes that Clarke and Rixey suspected that Hallock killed
Flynn, and (2) the Giglio claim we refer to in part VI.C. supra. The Brady
claim was part of Claim III-H-4, which we find defaulted. See supra part V.C.1.
The Giglio claim was defaulted because Green never raised it in state court in
the form he raised it before the District Court.
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18-13524 Opinion of the Court 135
the Brady rule by suppressing a recording of a phone call between
Hallock and Flynn’s father. 125 In this recording, Hallock described
the events that led to Flynn’s death.126 The District Court found
this claim procedurally defaulted because (1) Green had not raised
it in state court and (2) he was not entitled to the fundamental mis-
carriage of justice exception to excuse the default.
The second claim the District Court rejected consisted of
three Brady subclaims. These subclaims alleged that the State
failed to disclose threats, promises, and special benefits the prose-
cution gave Sheila Green, Lonnie Hillery, and Jerome Murray to
induce them to testify falsely against Green. Specifically, Green al-
leged the prosecution threatened Sheila by telling her that she
would lose custody of her four young children if she did not coop-
erate. Moreover, Green alleged the prosecution led her to believe
that she would receive leniency when sentenced on her federal
drug conviction if she testified against Green. Green further al-
leged that the prosecution secured special treatment for Sheila and
Hillery, 127 such as the opportunity to speak privately on the
125 In the District Court, Green also claimed that the prosecution suppressed a
recording of Hallock’s 911 call. Green abandoned that claim by failing to raise
it in his brief here. See Access Now, 385 F.3d at 1330.
126Before us, Green argues that Hallock’s version of the events in this record-
ing was materially different from her trial testimony and thus should have
been disclosed to the defense for impeachment purposes.
127Recall that Hillery was a co-conspirator in the pending federal drug case
against Sheila and the father of two of Sheila’s children. See supra note 19.
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136 Opinion of the Court 18-13524
prosecutor’s phone twice a week before they testified, that the
prosecution threatened to re-prosecute Hillery for committing fed-
eral drug offenses, and that the prosecution threatened to encour-
age the federal court to sentence Sheila to a lengthy term of impris-
onment on her federal drug conviction. Lastly, Green alleged that
Murray felt compelled to cooperate because there was a warrant
outstanding for his arrest.
The District Court found these subclaims procedurally de-
faulted because Green had not raised them in state court. The
Court also found that Green failed to establish that he was “entitled
to the fundamental miscarriage of justice exception” to the exhaus-
tion rule. 128
Third, the District Court rejected Green’s claim that Parker
was constitutionally ineffective for failing to investigate and use
Lori Rains, Cheryl Anderson, and Tyrone Torres as alibi
128 Ruling in the alternative, the District Court rejected the defaulted claims
on the merits. The Court found that Green was aware of the benefits that
Sheila, Hillery, and Murray received in exchange for their testimony: (1) Sheila
(a) acknowledged that she was awaiting sentencing for her federal drug offense
and that the prosecutor had agreed to speak on her behalf at sentencing, and
(b) testified that it was, in fact, her lawyer who initiated discussions with the
prosecutor about her testifying against Green rather than vice versa, which
contradicted any claim that the prosecutor “induced” her false testimony; (2)
Hillery admitted that he was also charged in the federal drug case; and (3)
Murray acknowledged that the prosecutor had talked to the judge on his be-
half regarding the outstanding warrant for his arrest. We affirm, in the alter-
native, the District Court’s denial of these claims because Green and the jury
were aware of these benefits Sheila, Hillery, and Murray received.
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18-13524 Opinion of the Court 137
witnesses. 129 In Green’s first Rule 3.850 motion, he argued that
Parker was ineffective for failing to investigate or use Rains as a
potential alibi witness. The Circuit Court denied his claim, and
Green did not appeal the ruling. The District Court accordingly
found that any claim involving Rains was procedurally defaulted.
Likewise, the Court found that Green procedurally defaulted any
ineffective assistance of counsel claims based on Parker’s failure to
investigate or use Anderson and/or Torres as alibi witnesses be-
cause Green never asserted such claims in state court. The Court
denied these claims after finding that Green was not entitled to the
fundamental miscarriage of justice exception to the exhaustion
rule. 130
Because Green does not argue that the District Court
wrongly concluded that these three claims were procedurally de-
faulted, we turn to his argument that the District Court should
have found his procedural defaults excused.
B.
129In the District Court, Green also argued that Parker was ineffective for fail-
ing to investigate and use Carleen Brothers, Brandon Wright, Reginald Peters,
Randy Brown, Kerwin Hepburn, and James Carn as alibi witnesses. Green
abandoned these claims by failing to raise them here on appeal. See Access
Now, 385 F.3d at 1330.
130In the alternative, the District Court also denied on the merits Green’s in-
effective assistance claim regarding Rains. Amended Order at 34–36.
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138 Opinion of the Court 18-13524
Green argues that all his procedural defaults should be ex-
cused, as a blanket matter, because he is actually innocent of the
crimes for which he stands convicted. We disagree.
Under Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995), a
federal court may consider the merits of a habeas petitioner’s pro-
cedurally defaulted constitutional claims if the petitioner can show
his actual innocence. To make such a showing, a petitioner must
“support his allegations of constitutional error with new reliable
evidence [of actual innocence]—whether it be exculpatory scien-
tific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Id. at 324, 115 S. Ct. at
865. We then consider whether, in light of all of the evidence in
the record, “old and new, incriminating and exculpatory,” House
v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077 (2006), the petitioner
has established that “it is more likely than not that no reasonable
juror would have convicted him.” Schlup, 513 U.S. at 327, 115 S.
Ct. at 867.
Green points to six pieces of evidence that show his inno-
cence. In subpart 1, we examine each piece. In subpart 2, following
Schlup’s teaching, we consider the evidence of Green’s guilt. In
subpart 3, we analyze whether, considering all this evidence, Green
has shown that no reasonable juror would have convicted him.
1.
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18-13524 Opinion of the Court 139
Green argues that six pieces of newly discovered evidence
show his innocence of the crime.131 The new evidence of his inno-
cence consists of (1) an audio tape of Hallock recounting her ver-
sion of events to Flynn’s father, which is allegedly inconsistent with
her other testimony about the crime; (2) the recantations of
Sheila’s, Hillery’s, and Murray’s testimony that Green confessed to
the crime; (3) the prosecution’s alleged coercion of Sheila, Hillery,
and Murray to testify against Green; (4) alibi witnesses that were
not called at trial; (5) post-trial analysis of Flynn’s truck, and (6)
post-trial analysis of Flynn’s revolver. We address these pieces of
evidence in turn.
First, Green argues that “the audio tape of Hallock recount-
ing her version of events to Flynn’s father soon after Flynn was
killed . . . contained statements materially different from Hallock’s
police interviews, deposition, and court testimony,” and therefore
could have been used to impeach her at trial. But Green never says
how the audio tape is inconsistent with Hallock’s other statements.
And, having independently reviewed the transcript of the audi-
otape, we find no glaring inconsistencies.
Second, Green points out that Sheila, Hillery, and Murray
recanted their trial testimony that Green confessed to shooting
Flynn. However, the Circuit Court found Sheila’s recantation not
131The following facts may seem similar to those discussed in other portions
of this opinion because Green used many of these same facts to support his
substantive constitutional claims.
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140 Opinion of the Court 18-13524
credible. In fact, “[i]t was obvious to [the Circuit] Court that based
upon [Sheila’s] responses, demeanor, and body language, [she] was
not being forthright at the evidentiary hearing regarding the al-
leged falsification of her trial testimony.” Rather, “Sheila Green
was presenting [her] unbelievable testimony at the evidentiary
hearing in an effort now to please her brother [Green] and her fam-
ily.”
The Circuit Court likewise found Hillery’s recantation not
credible. And regarding Murray’s testimony, Murray stated that he
did not remember making his postconviction recantations because
he was either tired or drunk, and he thereafter exercised his privi-
lege against self-incrimination. It is accordingly unclear whether
Murray, in fact, intended to recant his testimony. As a result, it
would not be unreasonable for a jury to credit these witnesses’
original testimony and discredit their new versions, just as the Cir-
cuit Court did. See Schlup, 513 U.S. at 327, 115 S. Ct. at 867 (“[I]t
[must be] more likely than not that no reasonable juror would have
convicted [the defendant].”).
Third, Green argues that the prosecution coerced or in-
duced Sheila, Hillery, and Murray to testify against him. But the
prosecution did not coerce Sheila. It was Sheila’s own attorney
who contacted the prosecution about the possibility of her testify-
ing against Green. And, at trial, all three witnesses testified about
the inducements they received for their testimony. The jury at
Green’s first trial considered their ulterior motives in finding Green
guilty.
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18-13524 Opinion of the Court 141
Fourth, Green asserts that Reginald Peters, Brandon Wright,
and Randy Brown contend that, on the night of the murder, they
saw him in and around the residence of Lori Rains, which was
roughly two miles away from the crime scene. 132 Specifically, all
three said they saw him that night from around 10:00 or 11:00 p.m.
until between 1:30 and 4:30 a.m. 133
Wright testified at an evidentiary hearing the Circuit Court
held in 2011 that he saw Green at Rains’ residence around 11:00
p.m. He saw Green again around 3:00 a.m. Wright insisted that
Green never left the area long enough to go to Holder Park.
Wright acknowledged, though, that he was selling drugs that night
and that he, Green, and several other people were moving freely
between Rains’ and Carleen Brothers’ residences, which were sep-
arated by a field roughly a couple hundred feet long. Peters’ testi-
mony at the evidentiary hearing was essentially the same as
132 There is a circuit split regarding whether the testimony of these alibi wit-
nesses qualifies under Schlup as “new” evidence of innocence. In Rozzelle v.
Sec’y, Fla. Dep’t of Corrs., we noted that some circuits require that the evi-
dence be newly discovered, meaning it was not available or discoverable at
the time of the trial, while others require that the evidence be merely newly
presented, meaning its availability or discoverability at the time of trial is irrel-
evant. 672 F.3d 1000, 1018 n. 21 (11th Cir. 2012). We declined in Rozzelle to
adopt either approach because even if the evidence in Rozzelle had been
“new,” the petitioner failed to make the necessary showing under Schlup that
no reasonable juror would have convicted him. Id. at 1017–21. Here, we de-
cline to adopt either approach for the same reason.
133Recall that Officer Rixey received a call at around 1:12 a.m. to go to the
orange grove, the scene of Flynn’s murder.
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142 Opinion of the Court 18-13524
Wright’s. And while Brown did not testify at the hearing, he at-
tested in an affidavit that he saw Green around Rains’ residence
“off and on” from around 9:00 or 10:00 p.m. until 1:30 or 2:00 a.m.
Green is correct that this evidence offers some support for
his alibi, but its strength is questionable. For one thing, although
Wright claimed that he knew for a fact that Green never left the
area that night, his testimony, along with Peters’ and Brown’s,
makes clear that people were coming and going between two resi-
dences (separated by a couple hundred feet) throughout the night,
and that they saw Green only “off and on.” Moreover, their testi-
mony was potentially damaging to Green. Peters testified that
Green was smoking crack that night, and Wright testified that he
could tell Green was high. It would be a permissible inference for
a jury to draw that someone who is high on crack cocaine—a pow-
erful stimulant—is more likely to act aggressively, violently, or
without regard to the consequences of his actions.
So, these three alibi witnesses placed Green only two miles
from the crime scene, high on crack cocaine—and therefore more
likely to act violently—on the night Flynn was killed. And they can-
not establish that Green was indisputably in their presence
throughout the entire night, leaving no opportunity for him to
have killed Flynn. Such testimony could certainly hurt Green more
than help.
And even if the jury ignored the potential damaging aspects
of the testimony, the Circuit Court found Wright and Peters to be
not credible:
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18-13524 Opinion of the Court 143
Both Wright and Peters are convicted felons who
have committed numerous felonies, admittedly were
selling drugs the evening of the crime as juveniles,
and given their demeanor at the evidentiary hearing
before the undersigned judge, their credibility and
memory recall is questionable at best. Mr. Wright’s
testimony that he did not know until last year that
[Green] was convicted of murder and sentenced to
death, was wholly unbelievable, given his other testi-
mony that he was with [Green] on and off during the
night of Chip Flynn’s murder, observed the police in
the area investigating Flynn’s murder after it oc-
curred, and saw the police sketch of the suspected
murderer. Chip Flynn’s murder was big news in
Mims, Wright knew [Green] and his family, and
Wright was living in Mims when the case came to
trial.
It would not be unreasonable for a jury to make a similar credibility
determination about these witnesses. See Schlup, 513 U.S. at 327,
115 S. Ct. at 867.
Fifth, Green points out that post-trial analysis failed to find
Green’s fingerprints on Flynn’s truck. However, as we discuss in
the next subpart, post-trial DNA evidence found in the truck un-
dermines the value of this evidence.
Sixth, Green argues that “post-trial analysis by the Florida
Department of Law Enforcement concluded that the .22 caliber
bullet recovered from Flynn had ‘similar class characteristics’ to
Flynn’s revolver, which disproves the prosecution’s main trial
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144 Opinion of the Court 18-13524
theory that Flynn was shot by the ‘black guy’s’ weapon.” But this
information is not new, and it does not disprove anything about
the prosecution’s case.
Recall that Flynn’s revolver was recovered from the crime
scene. In Flynn’s revolver, the authorities found six unfired car-
tridges and three fired cartridges, meaning that Flynn’s revolver
had fired three bullets at some point. Part of the defense’s theory
was that Hallock was somehow involved in the shooting. There-
fore, it would have been beneficial for the defense if an analysis of
the revolver and the bullet recovered from Flynn’s body suggested
that he was shot by one of these three bullets. This would have
suggested that Hallock was involved in the shooting, and it would
have conflicted with her testimony that Green shot Flynn with
Green’s own gun.
Now, some background regarding firearm forensics is in or-
der. When examining a bullet to determine if it could have been
shot from a specific firearm, there are two types of relevant charac-
teristics: class characteristics and individual characteristics.
Class characteristics merely establish the type or manufac-
turer of a firearm that could have fired a bullet. On the other hand,
individual characteristics can identify—with near certainty—that a
specific firearm fired a specific bullet. Individual characteristics are
based on the imperfections of the lands and grooves in the barrel
of a firearm, which are translated or transcribed onto the surface of
a bullet when the bullet is fired. Essentially, if a forensic examina-
tion reveals that a fired bullet’s markings correspond to a given
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18-13524 Opinion of the Court 145
firearm’s unique imperfections,134 it is very likely that the bullet
was fired from that firearm.
On appeal, Green does not argue that post-trial analysis re-
vealed individual characteristics that matched the bullet recovered
from Flynn’s body to Flynn’s revolver. Instead, he claims that post-
trial analysis revealed that the bullet and Flynn’s revolver had sim-
ilar class characteristics. This merely means that, based on the
make, model, and infrastructure of Flynn’s revolver, it was capable
of firing the bullet recovered from his body. But this evidence is
not new because the fact that Flynn might have been shot with his
own revolver was established at Green’s trial; the prosecution’s fo-
rensic firearm examiner explicitly testified that this was a possibil-
ity. And the post-trial analysis does not disprove the prosecution’s
theory that Green had a gun and fired the bullet that killed Flynn
because, based on class characteristics, there were thirty or more
types of weapons that could have fired that bullet.
2.
Having explored Green’s new evidence of his innocence, we
now consider the evidence of his guilt. First, Hallock—the only
surviving victim of the crime—identified Green as the shooter. See
Green I, 641 So. 2d at 393. Second, two witnesses, Willie Hampton
and Dale Carlisle, testified that they saw Green at Holder Park
134These examinations are done by firing other bullets through the firearm
and comparing them under a microscope with the bullet recovered from the
crime scene.
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146 Opinion of the Court 18-13524
watching a baseball game in the evening of April 3, 1989, and they
both identified Green from the composite sketch that the police
prepared from Hallock’s description of the murderer. 135 Third, a
police dog tracked a scent from the crime scene to the nearby resi-
dence of Green’s sister, Celestine Peterkin. Green II, 975 So. 2d at
1101. Fourth, Sheila, Hillery, and Murray testified that Green ad-
mitted to the shooting. And even though they recanted such testi-
mony, if the case were retried, the jury would still hear the original
versions of their testimony and would be free to credit those ver-
sions. Fifth, post-trial DNA analysis was performed on a hair found
in Flynn’s truck,136 and Green could not be ruled out as a contribu-
tor. See Green II, 975 So. 2d at 1101. The analysis revealed that
the hair could not have come from 99.58% of the population.
However, Green is a member of the 0.42% of the population from
which it could have come.
3.
Having laid out all the relevant evidence of guilt and inno-
cence, we consider whether Green has shown that no reasonable
juror would find him guilty on a retrial. See Schlup, 513 U.S. at
135 However, Hampton described Green’s hair as “short,” which was incon-
sistent with Hallock’s description of Green as having a “geri-curl.”
136We may consider new evidence of guilt along with new evidence of inno-
cence when a petitioner makes a Schlup claim of actual innocence. See House,
547 U.S. at 538, 126 S. Ct. at 2077 (stating that all evidence, old and new, in-
criminating and exculpatory, is considered when deciding a Schlup claim).
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18-13524 Opinion of the Court 147
327, 115 S. Ct. at 867. We conclude that Green has failed to make
that showing.
In our view, none of Green’s new evidence of innocence is
particularly compelling. First, Green has not demonstrated how
the recording of the conversation between Hallock and Flynn’s fa-
ther was inconsistent with her other testimony. And even if he
had, Hallock had been impeached “with numerous other incon-
sistent statements.” See Green II, 975 So. 2d at 1104. Therefore,
additional, cumulative impeachment evidence would not have
been particularly valuable. See id.Second, a reasonable juror could have disbelieved Sheila’s,
Hillery’s, and Murray’s recantations, and credited their original tes-
timony. As the Circuit Court stated, Sheila and Hillery had strong
incentives to please their family by recanting their original testi-
mony, whether it was truthful or not. “[W]e repeatedly have noted
that ‘recantations are viewed with extreme suspicion by the
courts,’” In re Davis, 565 F.3d 810, 825 (11th Cir. 2009) (quoting
United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988)), and
it would not be unreasonable for a jury to be similarly suspicious
of them.137 See Schlup, 513 U.S. at 327, 115 S. Ct. at 867. Moreover,
the jury in Green’s trial knew of the incentives that these witnesses
had to testify. See supra note 128127.
137 It is also unclear whether Murray’s recantation was actually a recantation
at all. Recall, he claimed not to remember recanting his testimony, and there-
after exercised his privilege against self-incrimination.
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148 Opinion of the Court 18-13524
Third, a reasonable juror would be free to find that Green’s
new alibi witnesses were not credible, as the Circuit Court did. See
Schlup, 513 U.S. at 327, 115 S. Ct. at 867. But even if the jury cred-
ited their testimony, these witnesses cannot establish that they
were with Green when the crime was committed. Rather, their
testimony makes clear that they only saw him “off and on”
throughout the night, leaving gaps in time during which Green
could have killed Flynn. Moreover, Green ignores the potential
damage that these witnesses’ testimony could have on his defense.
Their testimony establishes that, on the night Flynn was killed,
Green was high on crack cocaine only two miles away from the
crime scene.
Fourth, the post-trial DNA analysis of the hair found in
Flynn’s truck substantially undermines Green’s lack-of-fingerprints
claim. This DNA analysis, as mentioned above, ruled out 99.58%
of the population as a contributor. However, Green is part of the
0.42% of the population that could not be ruled out as a contribu-
tor.
Fifth, post-trial analysis of Flynn’s revolver provided no new
information for a jury to consider on a retrial. At the original trial,
the prosecution’s expert specifically stated that Flynn could have
been shot by his own revolver.
In contrast to this new evidence of innocence, the evidence
of Green’s guilt is compelling. First, the only surviving victim of
the crime—Hallock—identified Green as the perpetrator. She told
the police that he was wearing an army jacket and boots, which
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18-13524 Opinion of the Court 149
was corroborated by two witnesses who saw Green in the park ear-
lier that night. Second, a dog tracked a scent from the crime scene
to Green’s sister’s residence. Third, three witnesses testified that
Green confessed. While it is true that those witnesses have since
recanted that testimony, a jury would be free to conclude that
Green’s sister (Sheila) and her fiancé (Hillery) would not have pro-
vided false testimony to help wrongfully convict Green of murder.
Fourth, as mentioned above, DNA analysis revealed that a hair
found in Flynn’s truck could only have been left behind by 0.42%
of the population, and Green is a member of that small portion of
the population.
Summing up, Green has failed to meet Schlup’s demanding
standard. Having considered Green’s new evidence of innocence
alongside the evidence of guilt, Green has failed to demonstrate
that “it is more likely than not that no reasonable juror would have
convicted [Green].” Schlup, 513 U.S. at 327, 115 S. Ct. at 867. Ac-
cordingly, the District Court ruled correctly in deciding not to en-
tertain his procedurally defaulted claims.
VIII.
In this opinion, we have attempted to lay out as clearly as
possible the complex litigation history of Green’s postconviction
proceedings for a single reason: to demonstrate how his deliber-
ately ambiguous litigation strategy in the Circuit Court, Florida Su-
preme Court, District Court, and this Court has delayed and con-
fused the judicial system for decades, culminating in the District
Court’s erroneous decision to grant Green’s habeas petition.
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150 Opinion of the Court 18-13524
This strategy began with Green’s very first Rule 3.850 mo-
tion. In that motion, Green (through Collateral Counsel) nomi-
nally presented five claims for relief from his conviction and six
claims for relief from his death sentence. However, Green actually
presented many more claims; Claim III alone had eight subclaims
denoted “A” through “H,” with subclaim “H” itself having five sub-
subclaims. Green’s first Rule 3.850 motion was the pleading equiv-
alent of a Russian nesting doll—every claim contained more claims
within it.
Adding to the confusion was how several of Green’s claims
were inherently contradictory. The heading of Claim III attempted
to lump Green’s Strickland claims for ineffective assistance of coun-
sel (Claims III-A through III-G) with Green’s very different Brady
claims (which were contained in Claim III-H). Obviously, counsel
cannot be constitutionally deficient under Strickland for failing to
present evidence the prosecutor withheld in violation of Brady.
Luckily for Green, however, Florida precedent forced the Circuit
Court into effectively rewriting his Rule 3.850 motion for him at
the Huff hearing, rewarding Collateral Counsel’s poor pleading by
having the Court draft Green’s motion. See Huff, 622 So. 2d at 983.
The Circuit Court found four claims for relief from Green’s con-
viction plausible: I-2, III-F, III-H-4, and IV.
Not that Green presented these claims by those names to
the Florida Supreme Court. Instead, Green renamed and reor-
dered these claims on appeal, forcing the Florida Supreme Court
to align Green’s appeals claims with his Rule 3.850 claims as sorted
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18-13524 Opinion of the Court 151
out by the Circuit Court. See Green II, 975 So. 2d at 1099; see also
supra note 6666. The confusion caused by these litigation tactics
in the state courts would later be leveraged by Green’s new, private
counsel in the federal courts to erroneously claim that Green ex-
hausted Claim III-H-4—which Green did not appeal to the Florida
Supreme Court—by appealing Claim III-F.
To make matters worse, the Claim III-H-4 that Green’s new
counsel presented to the District Court was not the same Claim III-
H-4 that Green’s Collateral Counsel litigated in his first Rule 3.850
motion. Instead, the “Claim III-H-4” that Green presented was re-
ally the second claim Green raised in his successive Rule 3.850 mo-
tion. See supra part V.C.1. Unlike Claim III-H-4, which the Circuit
Court decided without an evidentiary hearing, this successive
claim alleged the same grounds but utilized an expanded factual
basis, including evidence that Green found in the Claims I-2, III-F,
and IV evidentiary hearings under the first Rule 3.850 proceedings.
The successive motion also relied on affidavits from Clarke and
Rixey acquired in 2010. See supra part III.A.1. The Circuit Court
denied the successive version of Claim III-H-4 as already addressed
by the first Rule 3.850 motion. See supra note 7878 and accompa-
nying text.
Green’s habeas petition to the District Court employed the
same “Russian nesting doll” pleading tactics as his first Rule 3.850
claim. While nominally alleging six “grounds” for relief, Green ac-
tually made nineteen separate claims. Of these nineteen claims,
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152 Opinion of the Court 18-13524
the District Court found only four that were exhausted—and two
of those four were transformed beyond recognition.
Green’s “Issue One” of “Ground One,” on which the District
Court granted the habeas petition, asserts that the “State withheld
evidence from the defense that [Clarke and Rixey] concluded . . .
that Hallock’s description of events lacked credibility and that it
was she, not ‘a black guy,’ who killed Flynn.” This aligns most
closely with Claim III-H-4, which alleged a Brady violation stem-
ming from the alleged suppression of White’s notes containing
Clarke and Rixey’s suspicions. However, Claim III-H-4 was never
exhausted in the Florida state courts because Green did not appeal
it to the Florida Supreme Court following the Circuit Court’s de-
nial in its July 22, 2002, order. Green attempts to side-step this in-
convenient fact by transforming his appeal of the Circuit Court’s
denial of Claim III-F into an appeal of the Court’s denial of Claim
III-H-4, but this is simply unsupported by the record. Neither
Green’s briefs to the Florida Supreme Court nor the Court’s opin-
ion contained any mention of Claim III-H-4, and both the Circuit
Court and the Florida Supreme Court treated Claim III-F as a
Strickland claim—Claim III-H-4, meanwhile, was treated by the
Circuit Court as a Brady claim. Green can only argue that Claim
III-F somehow covered Claim III-H-4 as well because the Claim III
heading broadly referenced both Brady and Strickland violations,
and the Claim III-F Strickland claim, which relied on Walker’s re-
port, referenced the prosecutor’s notes disputed in Claim III-H-4 as
being consistent with Walker’s report. In effect, Green seeks to
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18-13524 Opinion of the Court 153
leverage the ambiguity he created in his first Rule 3.850 motion to
exhaust Claim III-H-4 through sheer vagueness alone. We cannot,
however, treat the appeal of a Strickland claim as exhausting a sep-
arate, un-appealed Brady claim, shared heading or not.
Green performed an even greater transformation with his
Giglio claim, which the District Court referred to as “Issue Four”
of “Ground One.” In the Circuit Court, this was Claim IV and al-
leged Green’s convictions were “constitutionally unreliable” under
the “Fifth, Sixth, Eighth, and Fourteenth Amendments” due to the
State’s use of Sheila, Hillery, and Murray’s testimony. However,
Green never cited any federal constitutional law when litigating
Claim IV in the state courts; instead, both Collateral Counsel and
the state courts treated Claim IV as a state law-based claim and
cited Florida state court cases. See Green II, 975 So. 2d 1099–1101;
see also supra note 7171. Yet because Green described the claim as
“constitutional[]” in the heading of his Rule 3.850 claim, he pro-
ceeded to characterize Claim IV as a Giglio claim to the District
Court.138
Such an approach runs afoul of the Supreme Court’s holding
in Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347 (2004). In Baldwin,
an Oregon state prisoner claimed ineffective assistance of counsel
138Green never actually made the argument to this Court that Claim IV was
exhausted. Instead, he seemed to rely on the District Court’s finding that the
argument was exhausted. We find his Claim IV exhaustion argument in
Green’s response to the State’s answer to his amended habeas petition.
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154 Opinion of the Court 18-13524
under both the state and federal constitutions to the trial court but
only appealed the state constitutional claim to the Oregon Su-
preme Court. Id. at 29–30, 124 S. Ct. at 1349–50. The prisoner then
sought habeas relief in federal court under the federal constitu-
tional claim. Id. at 30, 124 S. Ct. at 1350. The Supreme Court held
that the prisoner had failed to exhaust the federal constitutional
claim in the Oregon Supreme Court because his argument to that
court lacked any description of the claim as federal or any citations
to federal law. Id. at 31, 124 S. Ct. at 1350. Baldwin teaches that
state appellate courts are not required to read lower court briefing
to exhaust a prisoner’s habeas claims. Id. It stands to reason that
the logic of Baldwin would not require a state appellate court to
address every possible argument for relief under federal law to ex-
haust the prisoner’s claims when the prisoner makes only a passing
reference to a federal claim. While Green did nominally assert a
federal claim to the Florida Supreme Court, he made no argument
under any federal constitutional provision, statute, or case for why
his conviction should be vacated due to the recantations, much less
a Giglio argument. The mere mention of a “constitutional[]” claim
cannot, standing alone, provide a state appellate court with a suffi-
cient “opportunity to pass upon and correct” a federal constitu-
tional violation. Id. at 29, 124 S. Ct. at 1349 (quoting Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888 (1995)).
Tellingly, Green spent very little time discussing exhaustion
in his briefing to the District Court. In his habeas petition and its
supporting memorandum of law, Green merely listed the headings
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18-13524 Opinion of the Court 155
of his Rule 3.850 motions and then broadly stated that he exhausted
all his claims. 139 When this was challenged by the State in its reply,
Green devoted only four short paragraphs to explaining how he
exhausted both Claim III-H-4 and Claim IV—essentially, that ap-
pealing Claim III-F exhausted all Claim III subclaims and that Claim
IV stated Green’s convictions were “constitutionally unreliable”
and so Claim IV must also be an exhausted Giglio claim. In doing
so, Green obscured the much more complex nature of the claims
and arguments the state courts actually considered, from the Huff
hearing onwards.
Green’s litigation tactics ultimately paid off when the Dis-
trict Court granted his habeas petition based on Claim III-H-4. Had
the pleadings in both state and federal court been clearer, especially
regarding the exhaustion issue, we have little doubt that the Dis-
trict Court would have recognized both Claim III-H-4 and Claim
IV as unexhausted and thus unreviewable under AEDPA.
AEDPA exists to protect important interests of finality, fed-
eralism, and comity between state and federal courts. Williams v.
Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 1490 (2000). It is vital to
the maintenance of those interests that federal courts do not enter-
tain a state prisoner’s claim challenging his sentence on constitu-
tional grounds if the prisoner has not afforded the state courts an
139Green did, however, spend substantially more time (about ten pages) dis-
cussing why any procedural defaults should be excused by the actually inno-
cent exception in his supporting memorandum.
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156 Opinion of the Court 18-13524
opportunity to consider the claim and, if valid, to take corrective
action. Id. at 436–37, 120 S. Ct. at 1490–91. Only then may the
state prisoner present that exact same claim to the federal courts—
adjacent claims or nominally similar claims do not make the cut.
Pickard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512 (1971). Fed-
eral courts may only consider unexhausted constitutional claims
brought by state prisoners to the extent necessary to determine
whether the state prisoner has excused the procedural default.
Had the State recognized the problem, it could have moved
the District Court to require Green to replead his petition pursuant
to Rule 12(e) of the Federal Rules of Civil Procedure, for the State’s
own benefit if not for the Court’s. Rule 12(e) authorizes a party to
move for a more definite statement “of a pleading to which a re-
sponsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a response.”140 A re-
pleader would have revealed that Claim III-H-4 had not been
140 Rule 12(e) was applicable. Nothing in the Rules Governing Section 2254
Cases would have precluded the State from filing a Rule 12(e) motion. Rule
81(a)(4) of the Federal Rules of Civil Procedure provides that the Rules of Civil
Procedure “apply to proceedings for habeas corpus . . . to the extent that the
practice in those proceedings . . . is not specified in a federal statute [or] the
Rules Governing Section 2254 Cases. . . and has previously conformed to the
practice in civil actions.” Rule 12 of the Rules Governing Section 2254 Cases
is to the same effect. It provides that “The Federal Rules of Civil Procedure,
to the extent that they are not inconsistent with . . . these rules, may be applied
to a proceeding under these rules.” We see nothing in Rule 12(e) that could
reasonably be considered inconsistent with the Rules Governing Section 2254
Cases.
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18-13524 Opinion of the Court 157
exhausted in Green II, that Claim III-F (which was exhausted in
Green II) did not allege a Brady violation based on the Clarke and
Rixey statements in White’s notes, and that Claim IV was nothing
more than a state law motion for a new trial based on newly dis-
covered evidence. A repleader would have revealed this infor-
mation because the effect of the District Court order requiring it
would have been to remind Green’s counsel of his obligation under
Rule 11 of the Federal Rules of Civil Procedure—in particular, his
representation that his “allegations and other factual contentions
have evidentiary support,” and are “not being presented for an im-
proper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation.”
The State did not seek a more definite statement; instead, it
answered Green’s petition. It was not until Green replied to the
State’s answer that Green’s petition took shape and his claims ac-
tually appeared. Like with the Huff hearing in the Circuit Court,
the District Court had to separate out Green’s claims for him. The
District Court identified nineteen claims, but as many claims were
pled under multiple constitutional provisions, Green theoretically
had more claims.141
141 Clisby v. Jones, 960 F.3d 925 (11th Cir. 1992) (en banc), required the District
Court to address these additional, implicit claims. See Senter v. United States,
980 F.3d 777, 781 (11th Cir. 2020) (“Clisby requires a federal district court ‘to
resolve all claims for relief raised in a petition for writ of habeas corpus pursu-
ant to 28 U.S.C. § 2254 (1988), regardless of whether habeas relief is granted
or denied.’”). We must remand for further proceedings any case where a dis-
trict court failed to address all claims raised in a habeas petition. Id. We
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158 Opinion of the Court 18-13524
The District Court need not have waited for a Rule 12(e)
motion from the State, either. District courts may require re-
pleader sua sponte when counsel fails in its obligations under Rule
8(a) to provide a “short and plain statement.” Vibe Micro, Inc. v.
Shabanets, 878 F.3d 1291, 1294–95 (11th Cir. 2018). The repleaded
petition must also comply with the good faith representation re-
quirement of Rule 11(b). Cramer v. State of Fla., 117 F.3d 1258,
1263 (11th Cir. 1997). Had the District Court required repleader
here, Green (and especially his counsel) would have been forced to
either clearly align Green’s federal court claims with exhausted
state court claims or attempt to otherwise excuse the procedural
default. Doing so would have brought a quick resolution to this
case. 142
Judicial toleration of the litigation stratagems employed
here by Green will lead inexorably to the abuse of the post-convic-
tion process in both state and federal courts. While this Court can-
not do more than recommend to the state courts that they consider
requiring more straightforward post-conviction pleading, state
prisoners seeking post-conviction relief in federal court may
assume that the District Court here dismissed the implicit additional claims
pursuant to Rule 4 of the Rules Governing Section 2254 Cases. That rule re-
quires the dismissal of a petition or part thereof when it plainly appears the
petitioner is not entitled to relief.
District Court had already sua sponte required Green to replead
142 In fact, the
his petition once before in this case. Green’s first petition and accompanying
memorandum of law were struck for “greatly exceed[ing]” the Court’s page
limit.
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18-13524 Opinion of the Court 159
consider themselves on notice that this Court will vigorously en-
force both AEDPA and Rules 8 and 11.
IX.
On the State’s appeal, we reverse the District Court’s grant
of habeas relief. On Green’s cross-appeal, we affirm the District
Court’s denial of relief.
AFFIRMED IN PART AND REVERSED IN PART.
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18-13524 JORDAN, J., dissenting in part & concurring in part 1
JORDAN, Circuit Judge, dissenting in part and concurring in part:
The majority opinion, which is 158 pages long, covers a
huge swath of law. Without taking anything away from the ex-
haustive nature of the opinion, I do not join it. The reason is that,
from my perspective, it is too long and says too much about too
many things unnecessarily. As I see things, the case is not as com-
plex as the majority makes it out to be.
Passages in judicial opinions tend to take on a life of their
own as time passes. The danger is that they will later be used in
cases far removed from the context in which they were written.
See Snyder v. Massachusetts, 291 U.S. 97, 114 (1934). If “[b]revity
is the soul of wit,” William Shakespeare, Hamlet act 2, sc. 2, l. 90
(1603), it should also be the aspirational goal of legal writing.
That said, I concur in the judgment. Although I strongly
disagree with the majority’s conclusion that Mr. Green did not ex-
haust his Brady claim as to the handwritten notes, I do not believe
that habeas relief is warranted on that claim. As to Mr. Green’s
other claims, I agree with the district court and the majority that
they fail.
I
To exhaust available state remedies as required by 28 U.S.C.
§ 2254(b)(1), a habeas petitioner must “fairly present” his federal
claim in “each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting that
court to the federal nature of the claim.” Baldwin v. Reese, 541
USCA11 Case: 18-13524 Date Filed: 03/14/2022 Page: 161 of 182
2 JORDAN, J., dissenting in part & concurring in part 18-13524
U.S. 27, 29 (2004). Exhaustion does not require a petitioner to “cite
book and verse on the federal constitution.” Duncan v. Henry, 513
U.S. 364, 365 (1995). It only demands that the “substance” of the
federal claim be presented to the state courts. See Picard v. Con-
nor, 404 U.S. 270, 278 (1971) (internal quotation marks and citation
omitted). As we have put it, “[t]he petitioner must have presented
the claim in a manner that affords the [s]tate a full and fair oppor-
tunity to address and resolve the claim on the merits.” Raleigh v.
Secretary, 827 F.3d 938, 956-57 (11th Cir. 2016) (internal quotation
marks and citation omitted). “We are not so draconian or formal-
istic as to require petitioners to give a separate federal law heading
to each of the claims they raise in state court to ensure exhaustion
for federal review[;]” a claim is fairly presented for habeas purposes
if it is set out in a fashion “such that the reasonable reader would
understand [the] claim’s particular legal basis and specific factual
foundation.” Kelly v. Sec., Dep’t of Corr., 377 F.3d 1317, 1344–45
(11th Cir. 2004).
With these principles in mind, I turn to the state-court rec-
ord. I begin with what Mr. Green raised in the state post-convic-
tion court, and then move on to the arguments he presented on
appeal to the Florida Supreme Court. After reviewing the record
in this case, I agree with the district court that Mr. Green properly
exhausted his Brady claim concerning the handwritten notes.
A
When he filed his federal habeas corpus petition, Mr. Green
alleged in part that the state violated Brady v. Maryland, 373 U.S.
USCA11 Case: 18-13524 Date Filed: 03/14/2022 Page: 162 of 182
18-13524 JORDAN, J., dissenting in part & concurring in part 3
83 (1963), and its progeny by failing to turn over the handwritten
notes of Assistant State Attorney Christopher White. Those notes
reflected that the officers who responded to the scene suspected
the murder victim’s girlfriend (Kim Hallock) of the crime and
noted that she initially told the police that she was the one who tied
the hands of the victim (Charles Flynn) behind his back. So let’s
take a look at whether Mr. Green presented that Brady claim in the
post-conviction proceedings.
In his first post-conviction motion—filed in November of
2001—Mr. Green asserted two independent grounds for relief in
Claim III. First, he argued that he had been denied the effective
assistance of counsel at the guilt phase of his trial. Second, he main-
tained that exculpatory evidence had been withheld in violation of
Brady and Giglio v. United States, 405 U.S. 150 (1972).
As to the latter claim, the heading of Claim III read in rele-
vant part that “WHERE EXCULPATORY EVIDENCE WAS
SUPPRESSED OR CONCEALED, MR. GREEN IS ENTITLED
TO RELIEF UNDER BRADY AND/OR GIGLIO.” D.E. 3-43 at
39 (emphasis added as to case names). In the body of Claim III, Mr.
Green alleged the following facts over three pages:
39. A handwritten police statement
dated 8/28/89 with the names Diane
Clarke and Mark Rixey underlined on
the front page was obtained through the
Ch. 119 process [Florida’s public records
act] only after the [s]tate claimed it was
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4 JORDAN, J., dissenting in part & concurring in part 18-13524
exempt from disclosure and the [c]ourt
determined in camera that it was poten-
tially Brady material. It was not dis-
closed to the defense at trial. It contains
the following statement: Mark & Diane
suspect girl did it, She changed her story
couple times. . . . [?] She [?] said she tied
his hands behind his back. This is con-
sistent with Dep. Walker’s recollection
that Hallock said she was the one who
did the actual tying of Flynn’s hands,
and inconsistent with Hallock’s subse-
quent statements and eventual trial tes-
timony.
40. Clark[e]’s police report contains no
mention of any statements by Hallock,
and in her deposition, Clark[e] said she
‘never laid eyes on the girl [Hallock]. I
never saw her at all. I left her with Dep-
uty Walker and she stayed with Walker
until Agent Nyquist – she was released
to Agent Nyquist at that point on his ar-
rival.’ Deposition, page 13. . . . Rixie’s
police report does not mention any-
thing about a drug deal gone bad or
about who tied Flynn’s hands. At trial
he said he never saw Hallock. Tr. 518.
These circumstances show that Walker
told Rixie and Clarke what Hallock had
told him at the time of the investigation,
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18-13524 JORDAN, J., dissenting in part & concurring in part 5
it is not something Walker came up
with ten years later.
41. Defense counsel did not confront
Hallock at trial with either the drug deal
gone bad scenario or with Deputy
Walker’s report that she had been the
one to tie up Flynn’s hands. There is no
indication anywhere in the record or in
any disclosed records that defense coun-
sel knew about the drug deal gone bad
scenario. Defense counsel should have
known about the hand tying issue be-
cause it was contained in Deputy
Walker’s report, but defense counsel did
not ask any questions about it in
Walker’s deposition or at any time dur-
ing the trial. Defense counsel did, how-
ever, argue to the jury that Flynn’s
hands appeared to have been tied ‘for
comfort.’” . . . . As the prosecutor put it,
defense counsel was ‘alluding’ to the
theory that [Ms.] Hallock[,] ‘a jealous
lover of [Mr.] Flynn,’ was the real killer.
Tr. Vol. X, 1875.
D.E. 3-43 at 58–60. The “handwritten police statement” referred
to in Mr. Green’s motion consisted of the handwritten notes of Mr.
White, obtained by Mr. Green’s counsel pursuant to a Chapter 119
public records request. See Fla. Stat. § 119.01.
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6 JORDAN, J., dissenting in part & concurring in part 18-13524
In Paragraph H of Claim III, Mr. Green then set out a claim
for “Suppression of favorable impeaching and/or exculpatory evi-
dence.” D.E. 3-43 at 62-65. With respect to that claim, Mr. Green
alleged that the individuals “investigating this case . . . repeatedly
suppressed evidence favorable to the defense in violation of Brady
v. Maryland, 373 U.S. 83 (1963).” D.E. 3-43 at 62. As an example
of the suppression of favorable or exculpatory evidence, Mr. Green
referenced—for a second time—Mr. White’s handwritten notes
about what Ms. Hallock had told the police:
51. A handwritten police statement
dated 8/28/89 with the names Diane
Clarke and Mark Rixey underlined on
the front page was obtained through the
Ch. 119 process only after the [s]tate
claimed it was exempt and the [c]ourt
determined that it was potentially Brady
material. It was not disclosed to the de-
fense at trial. It contains the following
statements:
Found gun on ground around 4-5 ft.
from W/M. There was no indication he
had moved.
Did see puddle of blood right under the
V. Also saw clothes near the victim &
another location saw blood on the
ground a foot or two from the gun.
....
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18-13524 JORDAN, J., dissenting in part & concurring in part 7
Mark and Diane suspect girl [Hallock]
did it, She changed her story couple
times. . . . [?] She [?] said she tied his
hands behind his back.
[. . . . ]
52. The first sentence indicates that
Flynn went down right where he was
shot. That the gun was four to five feet
away from the victim and that there was
no indication that he had moved indi-
cates that he was not in possession of the
gun at the time he was shot. This con-
tradicts Ms. Hallock’s version of a gun-
fight. The fact that Ms. Hallock refused
to lead the police to the scene where her
companion lay bleeding to death, gave
bad directions, coupled with other evi-
dence such as the fact that she drove
past the hospital when supposedly flee-
ing the scene, strongly suggest that she
did not want the victim to live to tell the
truth. The statements should have been
disclosed to defense counsel, but were
not.
Id. at 63–65 (emphasis added).
Given this level of detail, the state post-conviction court un-
derstood and addressed Mr. Green’s Brady claim concerning the
handwritten notes on the merits when it issued its first order in July
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8 JORDAN, J., dissenting in part & concurring in part 18-13524
of 2002. In Section H of that first order, which addressed “Suppres-
sion of Favorable Impeaching and/or Exculpatory Evidence,” the
state post-conviction court expressly considered the Brady claim.
Subsection 4 of Section H, entitled “Handwritten police statement
dated 8/28/89,” explained that Mr. Green claimed a Brady viola-
tion based on the undisclosed handwritten notes and the state-
ments contained in those notes. See D.E. 3-78 at 31 (“The Defend-
ant next alleges that a handwritten police statement dated 8/28/89
with the names, Diane Clark and Mark Rixey, which the defense
obtained through the Chapter 119 process[,] should have been dis-
closed pre-trial. The note contains the following statements . . . .”).
The state post-conviction court denied the Brady claim on two
grounds. First, “[a]ll of the information in the above notes was dis-
closed and known by defense counsel before trial; therefore[,] the
Defendant has shown no prejudice.” Id. at 32. Second, the undis-
closed evidence was not admissible. See id. See also id. at 32–34
(further explaining reasoning for the denial of the Brady claim). 1
In sum, Mr. Green devoted five to six pages of his post-con-
viction motion to laying out the facts underlying his Brady claim—
the suppression of Mr. White’s notes indicating that Ms. Haddock
1 After issuing this order, the state post-conviction court held additional evi-
dentiary hearings regarding certain other claims, after which it issued a second
order granting Mr. Green’s post-conviction motion for a new penalty phase
trial and denying the motion insofar as it sought a new guilt phase trial. Once
that second order was issued, Mr. Green’s appeal to the Florida Supreme
Court followed.
USCA11 Case: 18-13524 Date Filed: 03/14/2022 Page: 168 of 182
18-13524 JORDAN, J., dissenting in part & concurring in part 9
had said she was the one who tied Mr. Flynn’s hands behind his
back and that the officers on the scene suspected her of the murder.
He cited to Brady, and explained why the evidence mattered (i.e.,
why it was material). The state post-conviction court correctly un-
derstood the claim and denied it on the merits with several pages
of analysis. Mr. Green therefore exhausted the Brady claim in the
state post-conviction court.
B
In the Florida Supreme Court, Mr. Green presented his
Brady claim in roughly the same way he had presented it to the
state post-conviction court. Argument VI of his brief was entitled
“THE COURT ERRED IN DENYING GREEN’S CLAIM FOR
RELIEF BASED ON INDIVIDUAL INSTANCES OF
INEFFECTIVE ASSISTANCE OF COUNSEL AND
NONDISCLOSURE OF EXCULPATORY EVIDENCE.” Mr.
Green’s Br. to the Florida Supreme Court, 2006 WL 2363999, at *81
(Aug. 2, 2006).
The introduction to Argument VI asserted that “[w]here ex-
culpatory evidence was suppressed or concealed, Mr. Green is en-
titled to relief under Brady and/or Giglio,” and explained that this
claim was pled as Claim III in the state post-conviction court. See
id. at *81–*82. Mr. Green did not again set out the elements of a
Brady claim, as he had already done so in Argument II, which pre-
sented a different Brady claim. See id. at *41 (“There are three ele-
ments of a Brady claim . . . .”) (citing, in part, to United States v.
Agurs, 427 U.S. 97, 107 (1976)).
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10 JORDAN, J., dissenting in part & concurring in part 18-13524
In the body of Argument VI, Mr. Green included a separate
subsection entitled “Exculpatory and impeaching evidence relating
to the initial police investigation.” In that subsection, which was
several pages long, Mr. Green set out the contents of the non-dis-
closed notes: “A handwritten police statement dated 8/28/89 with
the names Diana Clarke and Mark Rixey underlined on the front
page was obtained through the Ch. 119 [process.] . . . It contains
the following statement: ‘Mark & Diane suspect girl did it, she
changed her story couple times . . . [?] She [?] said she tied his hands
behind his back.’” Id. at *84. Mr. Green also argued that these
notes were “not disclosed to the defense at trial.” Id. Finally, Mr.
Green explained that, due to the non-disclosure of the notes, de-
fense counsel did not confront Ms. Hallock at trial with either the
drug deal gone bad scenario or with her statement that she had
been the one to tie Mr. Flynn’s hands. The evidence set out in the
notes, he continued, “was inconsistent with the [s]tate’s entire the-
ory of the case. It tends to show that the killing was the result of a
prearranged plan committed by one or more persons who knew
the victim, not a chance encounter robbery gone bad.” Id. at *87. 2
2At oral argument, the state conceded that Mr. Green raised a Brady claim in
his brief to the Florida Supreme Court as to the improper withholding of Mr.
White’s handwritten notes but argued that he failed to raise a “discrete” theory
with respect to the significance of the notes:
JUDGE JORDAN: We need to go step by step
. . . Did Mr. Green identify—if you want to say
quote, that is fine too—[Mr. White’s
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18-13524 JORDAN, J., dissenting in part & concurring in part 11
handwritten notes] in his brief to the Florida
Supreme Court?
STATE: Yes.
JUDGE JORDAN: Did he claim that there was
an improper withholding of [Mr. White’s
handwritten notes] from the defense?
STATE: His claim was entitled something to
the effect of he was denied effective assistance
of counsel, there was a Brady claim and there
was a Giglio claim, and that was pretty much
the extent of his argument.
JUDGE JORDAN: Did he say that the Brady
claim was based on the withholding of [Mr.
White’s handwritten notes]?
STATE: If you really read into it, it could have.
For example, Judge, the first question you
asked me – the state trial court made this find-
ing, is that a correct materiality finding? That
was never argued to the state court. If that’s
the basis of his argument, that had to have
been presented to the state court. None of
these arguments were ever presented to the
state court.
JUDGE JORDAN: So, your argument is that it
wasn’t a Brady claim that wasn’t presented – it
was the Brady theory that wasn’t presented?
Because what I’m hearing is that he made a
Brady claim on appeal, whatever you thought
of it.
STATE: Yes, he said, “I have a Brady claim,”
and that’s all he said.
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12 JORDAN, J., dissenting in part & concurring in part 18-13524
Unlike the state post-conviction court, the Florida Supreme
Court did not address Mr. Green’s Brady claim concerning the non-
disclosure of Mr. White’s handwritten notes. See Green v. State,
975 So. 2d 1090, 1101-03 (Fla. 2008). Instead, the Florida Supreme
Court discussed a separate Brady claim based on a box of loose pho-
tographs, but not the state’s failure to disclose the notes. See id.The Florida Supreme Court’s omission does not, however, change
the fact that Mr. Green met the exhaustion requirement when he
presented his claim in his brief. See generally O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (holding that, to ensure exhaus-
tion a petitioner must present their claims throughout “one com-
plete round of the State’s established appellate review process.”).
C
In his second state post-conviction motion—filed in Febru-
ary of 2011—Mr. Green again raised a Brady claim based on the
JUDGE JORDAN: And he identified [Mr.
White’s handwritten notes]?
STATE: And he said, “here’s these notes.” He
didn’t say why they were Brady material, how
they provided any exculpatory evidence, or
impeaching evidence, how they were material,
no. He never argued any of that as a discrete
point in his brief. Because if he had, we’d have
all those findings to rely on now.
Oral Argument at 29:54, Green v. Sec., Dep’t Corr., No. 18-13524 (11th Cir.
2022), https://www.ca11.uscourts.gov/oral-argument-recordings?title=18-
13524.
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18-13524 JORDAN, J., dissenting in part & concurring in part 13
non-disclosure of the handwritten notes containing the impres-
sions of Deputies Rixey and Clarke about the crime scene and Ms.
Hallock. Under the heading “The State Withheld Exculpatory Ev-
idence,” Mr. Green quoted Mr. White’s notes and the sworn affi-
davits of Deputies Rixey and Clarke, which “point[ed] out that . . .
[Ms.] Hallock changed the details of her story several times that
night, including . . . who tied [Mr.] Flynn’s hands[.]” D.E. 26-9 at
11–12. Mr. Green argued that the notes were Brady material and
that he suffered prejudice as a result of the state’s non-disclosure.
See id. at 13.
Both the state and the state post-conviction court under-
stood that Mr. Green had already raised this Brady claim in his first
state post-conviction motion. The state’s response to Mr. Green’s
motion reveals as much. Under the heading “EXCULPATORY
EVIDENCE WAS WITHHELD,” the state argued that Mr. Green
sought to “revisit the allegations made in the prior post[-]convic-
tion motion” regarding Mr. White’s handwritten notes and as-
serted that the “argument [was] barred because it was previously
heard” and “[a] successive 3.850 is not intended as a second appeal.”
Id. at 47 (emphasis added). The state post-conviction court agreed
with the state, holding that Mr. Green’s Brady claim regarding Mr.
White’s handwritten notes was barred as successive because it
“was addressed in the first post-conviction motion . . . and affirmed
on appeal to the Supreme Court of Florida.” Order in State v.
Green, No. 05-1989-CF-004942-AXXX-XX, at ___ (Fla. 18th Cir. Ct.
Aug. 31, 2011) (emphasis added). In 2011, then, both the state and
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14 JORDAN, J., dissenting in part & concurring in part 18-13524
the state post-conviction court were satisfied that Mr. Green had
exhausted his Brady claim concerning the handwritten notes in his
first round of post-conviction proceedings. Nothing has changed
since then.
In concluding that Mr. Green did not exhaust his Brady
claim concerning the handwritten notes, the majority has focused
(fixated might be a better word) on the numbering of the claims in
the Florida post-conviction proceedings instead of analyzing the
substance of the arguments that Mr. Green presented. That is not
the correct approach, for “the ‘policy of federal state comity’ un-
derlying the exhaustion doctrine does not compel the triumph of
form over substance.” Henry v. Dep’t of Corr., 197 F.3d 1361, 1367
(11th Cir. 1999) (citation omitted).
II
On to the merits of the Brady claim concerning Mr. White’s
notes. As explained below, the issue is close, but I ultimately con-
clude that Mr. Green is not entitled to relief.
A
The Brady materiality standard is well-settled. The “Consti-
tution is not violated every time the government fails or chooses
not to disclose evidence that might prove helpful to the defense.”
Kyles v. Whitley, 514 U.S. 419, 436–37 (1995). “[E]vidence is ‘ma-
terial’ under Brady, and the failure to disclose it justifies setting
aside a conviction, only where there exists a ‘reasonable probabil-
ity’ that had the evidence been disclosed the result at trial would
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18-13524 JORDAN, J., dissenting in part & concurring in part 15
have been different.” Wood v. Bartholomew, 516 U.S. 1, 5 (1995).
A reasonable probability is something more than a possibility that
the evidence might have produced a different result. See Kyles, 516
U.S. at 433. We do not ask “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.” Id.Our review on habeas of the Brady claim concerning the
handwritten notes is not plenary. Although the Florida Supreme
Court did not address the Brady claim, it affirmed the denial of
post-conviction relief on all guilt-phase issues after the state post-
conviction court had expressly rejected the Brady claim on the
merits. See Green, 975 So.2d at 1116. Under these circumstances,
there is a rebuttable presumption that the Florida Supreme Court
adjudicated the Brady claim on the merits. See Johnson v. Wil-
liams, 568 U.S. 289, 292 (2013). Because Mr. Green does not at-
tempt to rebut that presumption, and in fact agrees that AEDPA
deference applies, we can grant habeas relief (as relevant here) only
if the rejection of the Brady claim was unreasonable under clearly
established federal law as determined by the Supreme Court. See
28 U.S.C. § 2254(d)(1). This means that the writ should be issued
only if the state court’s ruling on the claim “was so lacking in justi-
fication that there was an error well understood and compre-
hended in existing law beyond any possibility for fair[-]minded dis-
agreement.” Harrington v. Richter, 562 U.S. 86, 102 (2011). If
“some fair[-]minded jurists could agree with the state court[’s]
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16 JORDAN, J., dissenting in part & concurring in part 18-13524
decision . . . federal habeas relief must be denied.” Loggins v.
Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).
As noted, the Florida Supreme Court did not provide any
reasons for its rejection of the Brady claim. In such a case, federal
habeas law employs a “look through” presumption to figure out
the basis for the denial. See Wilson v. Sellers, 138 S.Ct. 1188, 1193
(2018). In other words, when a state-court decision on the merits
does not come accompanied with reasons for its decision, we “look
though” the unexplained decision to the last related state-court de-
cision that does provide a relevant rationale and then presume that
the unexplained decision adopted the same reasoning. See id. at
1194. Because the Florida Supreme Court summarily affirmed the
state post-conviction court’s rejection of Mr. Green’s Brady claim,
we look through the Florida Supreme Court’s decision to the ra-
tionale applied by the state post-conviction court in its order deny-
ing Mr. Green’s Brady claim.
B
To recap, the Brady claim at issue concerns the non-disclo-
sure of Mr. White’s handwritten notes reflecting that the officers
who responded to the scene (Deputies Rixey and Clarke) suspected
Ms. Hallock of the murder and noted that she initially told the po-
lice that she was the one who tied Mr. Flynn’s hands behind his
back. Because it is undisputed that the state did not disclose these
notes to Mr. Green before or during trial, the critical question is
whether they were material within the meaning of Brady.
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18-13524 JORDAN, J., dissenting in part & concurring in part 17
The state post-conviction court rejected the Brady claim for
two reasons. First, all of the information contained in the notes
was disclosed to and known by Mr. Green’s counsel before trial.
Second, the opinion/suspicion of Deputies Rixey and Clarke that
Ms. Hallock murdered Mr. Flynn would not have been admissible
at trial.
Starting with the information about the tying of Mr. Flynn’s
hands by Ms. Hallock, Mr. Green’s counsel had a report by Deputy
Wade Walker prior to trial. According to that report, Ms. Hallock
told the police that she “was told to tie Mr. Flynn’s hands behind
his back with a shoe string.” Brevard Cnty. Sheriff’s Dept. Supp.
Report, Case No. 89033497, at 1 (April 5, 1989). When Mr. Green’s
counsel took her deposition, Ms. Hallock changed her story and
said that she had given Mr. Flynn’s shoelaces to the assailant, who
then tied Mr. Flynn’s hands with it. See Deposition of Kim Hallock
at 78–79, 81–82 (Feb. 13, 1990). Be that as it may, Mr. Green’s coun-
sel knew from Deputy Walker’s report that Ms. Hallock had said
she was the one who was told to tie Mr. Flynn’s hands. Although
Deputy Walker’s report does not state that Ms. Hallock expressly
admitted tying Mr. Flynn’s hands, that is a fair inference that the
state post-conviction court could have drawn. When a defendant,
“prior to trial, had within [his] knowledge the information by
which [he] could have ascertained the alleged Brady material,” Ma-
haraj v. Sec’y Dep’t of Corr., 432 F.3d 1292, 1315 (11th Cir. 2005)
(internal quotations and citation omitted), non-disclosed evidence
is not material under Brady. The state post-conviction court’s
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18 JORDAN, J., dissenting in part & concurring in part 18-13524
adjudication as to the “tying” statement in the notes therefore was
not unreasonable.
That leaves the information that Deputies Rixey and Clarke
suspected that Ms. Hallock had murdered Mr. Flynn. The state
post-conviction court ruled that this information would have been
inadmissible at trial. That may be so as a matter of state law, see
Jackson v. State, 107 So.3d 328, 339 (Fla. 2012), but admissibility is
not the touchstone (or a requirement) of Brady materiality. See
Wood, 516 U.S. at 7 (considering, under Brady, the effect of sup-
pressing the results of polygraph examinations even though the re-
sults themselves would have been inadmissible under state law).
Exculpatory information can exist in an inadmissible form (like a
hearsay statement contained in a police report or details about a
witness’ prior inconsistent statements) but can be used by the de-
fense to uncover evidence that is admissible or material that can be
used at trial. See Kyles, 514 U.S. at 446 (evidence can be material
under Brady if the defense can use it to “attack the reliability of the
investigation”); Wright v. Hopper, 169 F.3d 695, 703 & n.1 (11th
Cir. 1999) (“Inadmissible evidence may be material [under Brady]
if the evidence would have led to admissible evidence.”) (discussing
Wood in footnote 1). Indeed, impeachment material comes within
the ambit of Brady even though it is not itself admissible evidence.
See, e.g., United States v. Bagley, 473 U.S. 667, 678 (1985). I agree
with the district court that, insofar as the state post-conviction
court grafted an admissibility requirement onto Brady, it unreason-
ably applied federal law as established by the Supreme Court. See
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18-13524 JORDAN, J., dissenting in part & concurring in part 19
Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 309 (3d Cir. 2016)
(en banc) (“[I]t is unreasonable to graft an admissibility require-
ment onto Brady’s traditional three-pronged inquiry.”).
This error leads to the disappearance of AEDPA deference
with respect to the suspicions of Deputies Rixey and Clarke, and
results in de novo review. See Williams v. Taylor, 529 U.S. 362, 406
(2000); Daniel v. Comm’r, 822 F.3d 1248, 1260 (11th Cir. 2016). But
this plenary review still does not lead to relief for Mr. Green under
Brady. Playing out the sequence of hypothetical events, had Mr.
Green’s counsel been informed about the suspicions of Deputies
Rixey and Clarke, he could have deposed them and found out the
bases for their opinions. They, in turn, would have told him that
they never met Ms. Hallock—they went to where Mr. Flynn’s body
was found and Ms. Hallock was not present there—but neverthe-
less suspected her because they had heard from Deputy Walker
that Ms. Hallock had changed her story and said that she had tied
Mr. Flynn’s hands. The problem for Mr. Green is that his counsel
knew about Ms. Hallock saying that she had tied Mr. Flynn’s hands
from Deputy Walker’s report. And when he took her deposition,
Mr. Green’s counsel also learned that Ms. Hallock had changed her
story. See D.E. 74 at 11 (“[P]rior to trial, [Mr.] Parker [(Mr. Green’s
counsel)] knew about much of the information relied on by [Dep-
uties] Rixey and Clarke in suspecting [Ms.] Hallock’s involvement
in the crime.”). Even under de novo review, Mr. Green’s Brady
claim fails.
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20 JORDAN, J., dissenting in part & concurring in part 18-13524
III
Because he prevailed in the district court on the Brady claim
relating to the notes, on appeal Mr. Green can defend the judgment
awarding him a new trial by asserting the claims on which he lost.
And he is able to do that without filing a cross-appeal or obtaining
a certificate of appealability. See Jennings v. Stephens, 574 U.S. 271,
276–83 (2016).
Mr. Green has presented three such claims in his brief: (1) a
claim that Ms. Hallock’s identification of him violated his Fifth,
Sixth, and Fourteenth Amendment rights; (2) a claim that the state
violated those same rights by suppressing evidence that it coerced
witnesses into testifying and then eliciting or failing to correct false
testimony; and (3) a claim that his counsel rendered ineffective as-
sistance at trial by (a) failing to present several alibi witnesses and
(b) failing to challenge one of the jurors. See Appellee’s Br. at 41–
57. As to these claims, I conclude that Mr. Green is not entitled to
relief.
First, the Florida courts found that the photographic lineup
shown to Ms. Hallock was not unduly suggestive and that her in-
court identification of Mr. Green was based on her observation of
him at the time of the murder. See Green v. State, 641 So.2d 391,
394–95 (Fla. 1994). I agree with the district court and the majority
that this finding is entitled to a presumption of correctness that Mr.
Green has not overcome. See 28 U.S.C. § 2254(d)(2); D.E. 74 at 24-
29; Maj. Op. at Part VI.A.
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18-13524 JORDAN, J., dissenting in part & concurring in part 21
Second, as to the alleged coercion of witnesses, the alleged
elicitation and failure to correct false testimony, and the failure to
present alibi witnesses, the district court concluded that these
claims had not been properly presented to the Florida courts and
were therefore not exhausted and procedurally defaulted. See D.E.
74 at 18, 32–33. Mr. Green does not challenge these rulings on ap-
peal, and instead contests the district court’s alternative denial of
the claims on the merits. See Mr. Green’s Br. at 47–53. Because
the district court’s procedural bar determinations have gone un-
challenged, they stand: “When an appellant fails to challenge
properly on appeal one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge
of that ground, and it follows that the judgment is due to be af-
firmed.’’ Sappupo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014).
I recognize that, at the end of his brief, Mr. Green has argued
that he is entitled to overcome all of his procedural defaults because
he has made a sufficient showing of actual innocence. See Mr.
Green’s Br. at 55–57. With respect to new evidence of innocence,
Mr. Green points to the recantation of the three witnesses who tes-
tified that he had confessed to the murder, the alleged coercion of
those same witnesses by the state, an audiotape of a conversation
between Ms. Hallcock and Mr. Flynn’s father, and certain alibi wit-
nesses who never testified for the defense.
In my view, Mr. Green has not made the necessary inno-
cence showing, which is to establish that, in light of new evidence,
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22 JORDAN, J., dissenting in part & concurring in part 18-13524
it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt. See House v. Bell,
547 U.S. 518, 536–37 (2006). The state post-conviction court found
that two of the recantations were not credible, and that finding is
entitled to some weight. But even if the three recanting witnesses
are completely removed from the evidentiary equation, that still
leaves Ms. Hallock’s eyewitness testimony to the murder and the
testimony of the witnesses who saw Mr. Green at a baseball game
until 10:00 p.m. the night of the murder. As for the alibi witnesses,
the majority correctly explains that their testimony, though sup-
portive of Mr. Green’s innocence, is not airtight. See Maj. Op. at
Part VII.B.
Third, with respect to counsel’s failure to challenge a juror
whose niece had recently been murdered, that juror explained at
voir dire that he would be able to put that matter aside and not let
it affect his participation in the case. Based on that testimony, the
Florida Supreme Court concluded in part that Mr. Green could not
show any prejudice from his counsel’s failure to challenge that ju-
ror. See Green, 975 So.2d at 1104–05. The district court agreed,
see D.E. 74 at 40, and Mr. Green does not challenge this prejudice
determination in his brief, as he only argues that counsel’s perfor-
mance was deficient. See Mr. Green’s Br. at 54. The denial of this
claim, then, must also be affirmed. See Sappupo, 739 F.3d at 680.
IV
Unlike the majority, I conclude that Mr. Green properly ex-
hausted his Brady claim relating to Mr. White’s handwritten notes.
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18-13524 JORDAN, J., dissenting in part & concurring in part 23
But, for the reasons stated above, I do not think that he is entitled
to habeas relief on that claim or on any of the others he raises in
defense of the judgment.