Cecil McKinnon v. Secretary, Department of Corrections

Case: 18-13530 Date Filed: 06/12/2019 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 18-13530
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-01350-JDW-MAP

CECIL MCKINNON,

Petitioner - Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents - Appellees.

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Appeals from the United States District Court
for the Middle District of Florida
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(June 12, 2019)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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Cecil McKinnon appeals the district court’s denial of Ground 7 in his petition

for habeas corpus, filed under 28 U.S.C. § 2254, on procedural default grounds. For

the following reasons, we affirm. 1

Mr. McKinnon is currently serving a life sentence, plus a consecutive term of

15 years’ imprisonment, for attempted first-degree murder and shooting into an

occupied vehicle. According to Mr. McKinnon, although he had a firearm on him

at the time of the shooting, it was another individual, standing next to Mr.

McKinnon, who fired the shots into the vehicle which struck and paralyzed the

victim, Deanthony Williams.

At trial, Mr. Williams testified that he and Mr. McKinnon had an altercation

prior to the shooting. The dispute concerned Mr. Williams conducting drug

transactions outside the home of Mr. McKinnon’s girlfriend. The altercation ended

with Mr. Williams heading home to change his shoes in preparation for a fight with

Mr. McKinnon. According to Mr. Williams, Mr. McKinnon did not appear to be

upset following the argument and did not seem to have any idea that Mr. Williams

intended to return for a fight. When Mr. Williams returned, however, he saw Mr.

McKinnon with a gun in his hand and saw him fire at him. Mr. Williams was

1
Because we assume the parties’ familiarity with the facts, we recount only what is necessary to
explain our analysis.
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immediately transported to the hospital by some friends. Though he was questioned

by officers at the hospital, Mr. Williams did not tell them who the shooter was until

13 days after the incident.

The state also called Cathy Wideman as an eyewitness. Ms. Wideman

testified that, immediately following the altercation, Mr. McKinnon appeared angry

and agitated. When Mr. Williams returned to the scene, Ms. Wideman saw a firearm

in Mr. McKinnon’s hand, and heard the gunshots.

Jermaine Colbert, Mr. Williams’ best friend, also testified that he saw Mr.

Williams and Mr. McKinnon argue, and then saw Mr. Williams depart. Upon Mr.

Williams’ return, Mr. Colbert heard gunshots as Mr. Williams exited his vehicle,

and saw Mr. Williams fall to the ground. Though he did not see where the shots

came from, he testified that they sounded as though they were coming from a tree

near the home of Mr. McKinnon’s girlfriend and he thought he saw Mr. McKinnon

and a few other young men running away from her house.

Mr. McKinnon filed his § 2254 petition in 2015, raising nine separate grounds

for relief. The district court denied relief on all grounds, but granted a certificate of

appealability as to Ground 7, which alleged as follows:

Petitioner was denied his right to due process and effective
assistance of counsel as guaranteed under the 6th and 14th
Amendments to the U.S. Constitution when counsel

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misled petitioner on what the state would be permitted to
elicit from him if he chose to testify on his own behalf.

D.E. 1 at 17; D.E. 24 at 21. Specifically, Mr. McKinnon argued that his counsel’s

performance fell below the constitutionally required Sixth Amendment standard

when his attorney led him to believe that, if he were to testify, “the [s]tate would be

permitted to elicit the specific nature of his prior felony convictions.” D.E. 1 at 18.

Mr. McKinnon claims that, had he known the state was only permitted to elicit the

number and not the nature of his prior convictions, he would have taken the stand.

If he had taken the stand, Mr. McKinnon further states, he would have testified to

several salient points that would have changed the outcome of his trial.

For example, Mr. McKinnon would have testified that Mr. Williams was

selling drugs outside the home of Mr. McKinnon’s girlfriend, and that Mr. Williams

became belligerent when Mr. McKinnon asked him to stop. Mr. McKinnon would

have also testified that another individual shot at Mr. Williams, and that he never

raised his firearm, aimed, or shot at Mr. Williams. Mr. McKinnon ran from the scene

down the alley because shots had been fired, and he went to meet his girlfriend to

prepare to leave for a vacation to Fort Pierce. He did not realize Mr. Williams had

been shot and, because he saw Mr. Williams’ car leaving the scene, believed he was

fine.

Mr. McKinnon also says he could have testified about Ms. Wideman’s

romantic interest in him. He would have testified that her testimony was the result
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of her vendetta against Mr. McKinnon for leading her on and refusing to engage in

intercourse with her, and because he had a girlfriend who was pregnant with his

child. Because he did not testify, Mr. McKinnon asserts he could not establish his

defense and “the [s]tate’s theory of prosecution went unrebutted, and the jury found

[him] guilty as charged.”

Though he did not raise this ineffectiveness claim in his state court Rule 3.850

postconviction motion, Mr. McKinnon argues that the claim is “substantial” under

Martinez v. Ryan, 566 U.S. 1 (2012), and, therefore, his failure to exhaust the claim

is excused. We disagree.

“To overcome [a] default, a prisoner must . . . demonstrate that the underlying

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that

the prisoner must demonstrate that the claim has some merit.” Id. at 1318. Mr.

McKinnon has failed to satisfy this standard.

Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner arguing

that he received ineffective assistance of counsel must show both that counsel’s

performance was deficient and that the deficient performance prejudiced the

defense. See id. at 687. “Unless a defendant makes both showings, it cannot be said

that the conviction . . . resulted from a breakdown in the adversary process that

renders the result unreliable.” Id. Because we conclude that Mr. McKinnon has not

adequately demonstrated prejudice, we need not address deficient performance.

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To establish prejudice, a petitioner “must show 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. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

Three separate witnesses connected Mr. McKinnon to the crime. One of them,

the victim, identified Mr. McKinnon as the shooter. And one of the others testified

that Mr. McKinnon had a firearm at the time of the gunshots. Aside from his own

testimony, Mr. McKinnon cannot corroborate his alternate version that another

individual fired the shots at Mr. Williams. And the additional impeachment

evidence Mr. McKinnon wished to raise was already before the jury. Indeed, the

jury already knew from Mr. Williams himself that he waited 13 days to name Mr.

McKinnon to the police, and that Mr. Williams was the one who returned in anger.

As for Ms. Wideman, the prosecution and the defense both inquired as to whether

she had ever had a romantic or sexual relationship with Mr. McKinnon.

Because “[t]he likelihood of a different result must be substantial, [and] not

just conceivable,” Harrington v. Richter, 562 U.S. 86, 112 (2011), Mr. McKinnon’s

arguments fail. Accordingly, we affirm the district court’s order denying habeas

relief on Ground 7. 2

2
For essentially the same reasons, the ineffectiveness claim fails on the merits even if Mr.
McKinnon can overcome the procedural default under Martinez.
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AFFIRMED.