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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10105
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D.C. 3:04-cv-00943-MMH-MCR
MARK ANTHONY HOLLAND,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA, DEPARTMENT OF
CORRECTIONS, FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 10, 2015)
Before HULL, WILSON, and ANDERSON, Circuit Judges.
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PER CURIAM:
Holland was convicted in state court of armed robbery and first degree
murder. His first trial ended in a deadlocked jury; the record indicates that the jury
was split 11-1 in favor of not guilty. At Holland’s second trial, the state presented
most of the same evidence as at the first trial, except the state did not present the
testimony of the jailhouse informant who had testified at the first trial that Holland
had made incriminating statements while incarcerated. Moreover, the state did not
call a second such informant who had come forward after the hung jury. Although
Holland’s defense attorneys had planned to present a vigorous defense, as they had
done in the first trial, after the prosecution rested, they changed their mind after
careful consideration over a lunch break. They reasoned that the state’s decision
not to present the testimony of the informants eliminated the only direct testimony
incriminating Holland, leaving only circumstantial evidence against Holland.
Although counsel acknowledged that it was a very difficult trial strategy decision,
after consulting among themselves and with Holland, they concluded that they had
a very good jury and an excellent chance of acquittal. The jury, however, convicted
Holland of armed robbery and first degree murder. The Florida appellate court
affirmed. Holland v. State, 35 So.2d 114 (Fla. 1st DCA 2002). Holland timely
filed for post-conviction relief, which was denied. Holland thereafter filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The district court
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addressed and rejected the several claims raised. This court granted Holland’s
certificate of appeal (“COA”) on the following issues: (1) whether trial counsel
was constitutionally ineffective for failing to present a defense; (2) whether the
trial court violated Holland’s due process rights by failing to grant his motion for
judgment of acquittal for armed robbery; and (3) whether the trial court violated
Holland’s due process rights by failing to grant his motion for judgment of
acquittal for first degree murder. We assume that Holland exhausted the three
claims identified in the COA.
In his briefs on appeal, Holland does not dispute the state’s assertion that the
claims were rejected by the state court on the merits, and that deference is due to
the state court’s ruling pursuant to 28 U.S.C. §2254(d)(1). Thus, the district
court’s rejection of these three claims is due to be affirmed unless we conclude that
the state court proceedings “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law, as determined by
the Supreme Court of the United States.” §2254(d)(1). We address the three
claims in turn.
I.
Holland first claims that his trial counsel rendered ineffective assistance of
counsel for failing to present a defense. Holland’s primary argument on appeal is
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that the evidence adduced at his first trial, and which could have been adduced at
his second trial, was deemed persuasive by 11 of the 12 jurors, and thus that it was
unreasonable not to present that evidence again in the second trial.
We cannot conclude that the decision of the state courts rejecting this claim
was either contrary to, or an unreasonable application of Strickland v. Washington,
466 U.S. 668 (1984). It is clear that the challenged decision of counsel was a trial
strategy decision. Even without the additional deference required by §2254(d)(1),
there is a strong presumption that a tactical decision by counsel falls within the
wide range of reasonable professional assistance. The instant decision by counsel
gave the defense two significant benefits. First, by declining to present evidence in
defense, the defense ensured that the state would not be able to introduce the direct
evidence in the form of the testimony of the two informants whom the defense had
anticipated would testify that Holland had made incriminating statements while
incarcerated. Thus, the defense ensured that the only direct evidence of Holland’s
guilt would not be heard by the jury. Second, the defense gained a significant
procedural advantage – the right to make both the opening and closing arguments
to the jury. Moreover, defense counsel was able in his rebuttal closing argument
to the jury to explain to the jury why he had not presented evidence, noting the law
that there was no burden on the defense to present evidence and that the state had
the burden to prove guilt beyond a reasonable doubt. Thus, the defense was able to
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suggest to the jury that there was additional evidence of Holland’s innocence, in
addition to the evidence already adduced before the jury in cross-examination of
the government witnesses. For example, the defense had elicited from government
witnesses that, although the experts suggested that a struggle probably preceded
the victim’s death, the drug dealer who sold drugs to Holland very shortly after the
probable time of the murder saw no cuts, bruises or blood on Holland and the
officers who searched Holland’s residence and vehicle found no bloody clothes or
other indications suggesting Holland had struggled with the victim.
In sum, we cannot conclude that the state court’s rejection of Holland’s
ineffective assistance of counsel claims is either contrary to or an unreasonable
application of Strickland v. Washington.
II.
Similarly, with respect to Holland’s claims that the trial court should have
granted his motions for judgment of acquittal on the armed robbery count and the
first degree murder count, we cannot conclude that the decision of the state court
was either contrary to or an unreasonable application of Jackson v. Virginia, 443
U.S. 307 (1979). We agree with the state courts and with the district court that
there was sufficient evidence to support the jury’s verdict with respect to both
counts. Based on the testimony of the victim’s mother, the jury could have
reasonably found: that Holland was constantly with her son, the victim, during the
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evening preceding the murder, and up until the time of the murder; that Holland
accompanied her son to the bank to cash a $2,000 check, returned with him, and
was aware that her son had in his pants pocket $1,000 of the cash. The money was
in new $100 bills. She also testified: that Holland and her son remained in his
bedroom while she was in her bedroom down the hall with her door open such that
she would have seen Holland had he left; that although she went to sleep about
4:00 a.m., she heard the water running about 7:00 a.m., called out and was
answered by a familiar voice other than that of her son’s; that she shortly thereafter
heard the door close and Holland’s vehicle crank up and leave; and that no one else
entered the residence that night. She said that, when she finally awoke at about
11:00 a.m., she found her son’s body in a puddle of blood, found the $1,000 gone
from her son’s pocket and also found money taken from her own billfold. She also
testified: that no one knew where her billfold was or that there was money in her
son’s pants pocket except Holland, her son and herself; and that her son had told
her that he planned to wear a gold dress shirt to work the next day.
There was also testimony from a drug dealer that Holland was with the
victim on the day prior to the murder as the victim was buying drugs from him.
The drug dealer also testified that, at 8:30 on the morning of the murder, Holland
bought drugs from him using a crisp $100 bill and that Holland was wearing a gold
dress shirt. The officers who searched Holland’s residence on the second day after
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the murder also found three crisp $100 bills in Holland’s wallet. There was also
evidence from the officers who investigated the scene of the crime that there were
no indications of a forcible entry into the house. Thus, that tended to undermine
the defense theory that someone other than Holland killed the victim. The officers
investigating the scene of the crime also found a tank top with blood on it. One
state expert witness opined that the tank top contained a mixture of the DNA of
two people, but could opine only that Holland could not be excluded as providing
some of the DNA on the tank top. Another state expert witness agreed that the
tank top contained a mixture of DNA from two different people, and although the
mixture of DNA could have come from others, it was likely that it was a mixture of
the victim’s and Holland’s DNA.
We agree with the conclusion of the state court and the district court that
there was sufficient evidence to support the jury verdicts, both for the armed
robbery count and the first degree murder count. Thus, we cannot conclude that the
decision of the state court was either contrary to or an unreasonable application of
Jackson v. Virginia.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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