Luther McKiver v. Secretary, Florida Department of Corrections

USCA11 Case: 18-14857 Date Filed: 03/25/2021 Page: 1 of 39

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 18-14857
________________________

D.C. Docket No. 5:15-cv-00354-WTH-PRL

LUTHER MCKIVER,

Petitioner-Appellant,

versus

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

Respondents-Appellees.
________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(March 25, 2021)

Before MARTIN, LUCK, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

After a Florida jury convicted Luther McKiver of trafficking oxycodone, a

state postconviction court granted McKiver a new trial based on allegations that his
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trial counsel was ineffective. But McKiver’s success was short-lived. The state

appealed, and an appellate court reversed in a one-sentence order. Eventually,

McKiver filed a federal habeas petition that argued his trial counsel was ineffective

for failing to investigate and present (1) certain witnesses who would cast doubt on

the state’s case and (2) the criminal history of a key state witness. The district court

denied McKiver’s petition, and McKiver appealed.

McKiver’s appeal requires us to answer two questions. First, we must

determine whether the state appellate court unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984), in rejecting the witness-testimony claim. Second,

we must decide whether we may excuse McKiver’s procedural default of his

criminal-history claim under Martinez v. Ryan, 566 U.S. 1 (2012). We conclude that

the state appellate court did not unreasonably apply Strickland in rejecting the

witness-testimony claim and that McKiver cannot surmount the procedural default

of his criminal-history claim. Accordingly, after careful consideration and with the

benefit of oral argument, we affirm the district court’s denial of McKiver’s petition.

I. BACKGROUND

The factual and procedural history of this case consists of four parts:

McKiver’s crime, his trial proceedings, his postconviction proceedings, and the

parties’ subsequent appeals and petitions.

A. McKiver’s Crime

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One Friday in 2008, John Sneed filled three prescriptions for his back injury,

including one for 120 oxycodone pills. The next day, Sneed took six to eight of those

pills. He went out of town for the rest of the weekend and left the pill bottle behind

in his locked house. When he returned to his house on Sunday, he found that it had

been broken into and that his prescriptions were missing. Sneed notified law

enforcement of the break-in, and a detective was sent to investigate.

During the investigation, the detective interviewed Luther McKiver, who

lived across the street from Sneed. McKiver initially denied breaking into Sneed’s

house, stealing the prescriptions, and using drugs, except “a little weed every now

and then.” He also said that he had been away from his house on Saturday and did

not return until Sunday evening. He further alleged that the Sneeds were targeting

him for being “the only dark-colored skin in the neighborhood.” When questioned

further about this statement, McKiver started becoming less coherent and possibly

angry, and the detective ended the interview.

However, just fifteen minutes later, the detective conducted another interview

with McKiver. In this second interview, McKiver confessed that he “lied on the first

one because [he] was afraid” and admitted that he had broken into Sneed’s house,

had stolen the pills, and had a drug-use problem. He specifically admitted that he

stole “prescription bottles full of medicine” and consumed the medicine in the

bottles. The police never recovered any pill bottles or pills.

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McKiver was eventually charged with burglary, grand theft, and trafficking

oxycodone in an amount of 28 grams or more. He pleaded guilty to the burglary and

grand theft charges but went to trial on the trafficking charge. Under Florida law at

the time, unauthorized possession of 28 grams or more of oxycodone was the crime

of trafficking and carried a mandatory 25-year term of imprisonment. FLA. STAT. §§

893.03(2)(a) and 893.135(1)(c). Because McKiver admitted to stealing Sneed’s

oxycodone pills, the only question at trial was whether there were 28 grams or more

of oxycodone in the bottle. And because each pill in the bottle weighed 530

milligrams, the issue became whether McKiver stole 53 pills or more.

B. McKiver’s Trial Proceedings

At some point, the parties became aware that Sneed might have a criminal

history or may have engaged in criminal conduct, and the state moved the trial court

to exclude any evidence of Sneed allegedly selling or trading narcotics as improper

character evidence. After conferring with his client off the record, McKiver’s trial

counsel, Michael Lamberti, consented to the motion as long as the state was not

allowed to introduce evidence that McKiver had taken Sneed’s pills in the past. The

court agreed and excluded that evidence. The court concluded the hearing by asking

McKiver directly: “Are you satisfied with [Lamberti’s] services thus far?” McKiver

replied: “Yes, Your Honor.” The court further asked: “Is there anything that he

hasn’t done that you have asked him to do?” McKiver answered: “No, Your Honor.”

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At trial, only four witnesses testified: Sneed, the pharmacist who had filled

his prescription, the detective, and McKiver. Sneed and the detective testified to the

facts described above, and recordings of McKiver’s two interviews with the

detective were played for the jury. The pharmacist testified that he had carefully

counted and filled Sneed’s bottle with 120 oxycodone pills two days before the

break-in at Sneed’s house. When McKiver testified, he “admit[ted] [his] guilt for

breaking into the house” and taking Sneed’s drugs. Although he recalled seeing pills

in Sneed’s oxycodone bottle, he could not remember how many he had taken

because he was already “too high” at the time.

The jury convicted McKiver of trafficking oxycodone in an amount of 28

grams or more, and the judge sentenced him to a mandatory 25-year term of

imprisonment. McKiver appealed his conviction and sentence, which the state

appellate court affirmed.

C. McKiver’s Postconviction Proceedings

McKiver filed a pro se state postconviction petition arguing that his trial

counsel, Lamberti, was ineffective for several reasons. As relevant here, McKiver

alleged that Lamberti disregarded his request to investigate and call four witnesses

who would have testified that Sneed sold drugs, which in turn would cast doubt on

whether Sneed’s pill bottle was full when McKiver stole it. The state postconviction

court appointed counsel for McKiver and ordered an evidentiary hearing. Almost

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immediately after being appointed, McKiver’s postconviction counsel requested

Sneed’s criminal history. When the request was made, McKiver still had almost

seven months to amend his petition.

At the hearing, three witnesses testified: Lamberti, McKiver, and the

prosecutor. Only Lamberti’s and McKiver’s testimonies are relevant to this appeal.

To begin, Lamberti testified—and his contemporaneous notes confirmed—

that McKiver had given him the names of only two witnesses, neither of which were

mentioned in McKiver’s petition. Lamberti explained that he decided not to

investigate those witnesses because McKiver had admitted multiple times that

Sneed’s oxycodone bottle was “almost full when [McKiver] took” the pills. Indeed,

he testified that McKiver told him in the off-the-record conversation at the motion-

in-limine hearing that calling witnesses to testify about Sneed’s drug-selling history

“would be a waste of time” because he had “taken the whole, entire[,] . . . just-about-

full bottle of pills.” Lamberti also testified that McKiver never told him that the

proposed witnesses knew that Sneed had sold oxycodone pills in the 48-hour period

between the filling of the prescription and the break-in. Lamberti explained that the

trial strategy—which McKiver accepted—was to argue that McKiver took only a

small handful of pills before leaving Sneed’s house and that someone else may have

later entered the open house and taken the remaining pills.

Next, McKiver testified. First, McKiver testified that he had suggested seven

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witnesses to Lamberti and that he had told him that four of them would testify that

Sneed had sold them oxycodone pills within 48 hours of filling his prescription. But

McKiver’s petition mentioned only four witnesses—one of whom was Sneed’s

wife—and never mentioned anyone purchasing oxycodone within the relevant 48-

hour timeframe. Second, McKiver answered a series of yes-or-no questions about

whether his proposed witnesses would have been available and willing to testify at

the time of his trial. He asserted that the witnesses were available and willing to

testify that they had purchased pills from Sneed in the days leading up to the break-

in. Third, McKiver testified that he had always told Lamberti that the bottle

contained very few pills. He also testified that at least one of his suggested witnesses

would have been able to tell the jury how many pills were in the bottle.

The postconviction court granted McKiver’s petition. It noted that neither the

pharmacist nor Sneed could “confirm the exact contents of the bottle.” Accordingly,

it concluded that “[t]he witnesses contemplated by Defendant would have

challenged the testimony of State’s witnesses and provided reasonable doubt as to

the quantity for trafficking.”

D. The Parties’ Subsequent Appeals and Petitions

The state appealed the postconviction court’s order on the ground that it was

not “supported by competent substantial evidence.” The state appellate court

reversed the postconviction court. In a brief order, it quoted from the standard for an

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ineffective assistance claim and wrote “We conclude that [McKiver] failed to meet

his burden of establishing either prong under Strickland and therefore vacate the

order under review and order that the judgment and sentence be reinstated.”

About two years later, McKiver filed a second state postconviction petition.

The petition asserted that Lamberti had been ineffective for failing to investigate

Sneed’s criminal history and impeach him with a 35-year-old conviction for selling

marijuana and a 26-year-old conviction for issuing worthless checks, both of which

were punished with probation. The reviewing court denied the petition because

McKiver had not filed it within the two-year statute of limitations. McKiver

appealed the denial, which the state appellate court affirmed. See generally McKiver

v. State, 187 So.3d 1262 (Fla. Dist. Ct. App. 2016).

McKiver then filed a federal habeas petition raising both the witness-

testimony claim and the criminal-history claim. McKiver also submitted several

affidavits in support of his federal habeas petition that he had not submitted to a state

postconviction court. The district court denied the petition. It held that (1) the state

appellate court was not unreasonable in rejecting McKiver’s witness-testimony

claim, and (2) McKiver’s procedurally defaulted criminal-history claim was not

subject to an exception under Martinez v. Ryan, 566 U.S. 1 (2012), and failed on the

merits anyway.

We granted a certificate of appealability on two issues: (1) whether the district

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court erred in determining that the state appellate court’s rejection of the witness-

testimony claim was not contrary to, or an unreasonable application of, Strickland;

and (2) whether the district court erred in determining that McKiver’s criminal-

history claim was not “substantial” under Martinez such that its procedural default

could not be excused.

II. STANDARD OF REVIEW

We review de novo a district court’s denial of a Section 2254 petition for a

writ of habeas corpus. Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248, 1262

(11th Cir. 2020). Mixed questions of law and fact are also reviewed de novo, but the

district court’s factual findings are reviewed for clear error. See Tuomi v. Sec’y, Fla.

Dep’t of Corr., 980 F.3d 787, 794 (11th Cir. 2020) (quoting Hill v. Humphrey, 662

F.3d 1335, 1343 n.9 (11th Cir. 2011)). Whether a claim is procedurally defaulted is

a mixed question of law and fact and is therefore reviewed de novo. See Harris v.

Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688 (11th Cir. 2017).

Although we review the district court’s denial de novo, we review the

underlying state-court decision under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). See Jenkins, 963 F.3d at 1262–63 (quoting Cullen v.

Pinholster, 563 U.S. 170, 181 (2011)). Under AEDPA, a court cannot grant relief

unless the state court’s decision on the merits was “contrary to, or involved an

unreasonable application of,” Supreme Court precedent, or “was based on an

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unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

A decision is contrary to Supreme Court precedent if the state court applied a

rule contradicting the governing law provided by the Supreme Court or reached a

different result from the Supreme Court when faced with materially

indistinguishable facts. See Tuomi, 980 F.3d at 794–95 (quoting Ward v. Hall, 592

F.3d 1144, 1155 (11th Cir. 2010)). And a decision involves an unreasonable

application of clearly established federal law if the state court correctly identifies the

governing legal principle but applies it to the facts of the petitioner’s case in an

objectively unreasonable manner. See id. at 795 (citing Brown v. Payton, 544 U.S.

133, 141 (2005)). To be objectively unreasonable, the decision must be more than

merely incorrect or erroneous—it must be “so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Id. at 795 (quoting Harrington v. Richter, 562 U.S.

86, 103 (2011)). For this reason, a state court’s determinations are unreasonable only

if no fairminded jurist could agree with them. See Raulerson v. Warden, 928 F.3d

987, 995 (11th Cir. 2019), cert. denied, 140 S.Ct. 2568 (2020).

III. DISCUSSION

McKiver presents two claims for our review: his witness-testimony claim and

his criminal-history claim. His witness-testimony claim asserts that his trial counsel,

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Lamberti, was ineffective because he failed to investigate and call certain witnesses.

His criminal-history claim asserts that Lamberti was ineffective because he failed to

investigate Sneed’s criminal history and impeach him at trial. We address each claim

in turn.

A. The State Appellate Court’s Decision to Deny McKiver’s Witness-Testimony
Claim Did Not Unreasonably Apply Strickland

We begin with McKiver’s witness-testimony claim. The state appellate court

reversed the state postconviction court and denied McKiver’s witness-testimony

claim with one substantive sentence: “We conclude that Appellee failed to meet his

burden of establishing either prong under Strickland.” McKiver argues that the state

appellate court “identified the correct legal rule”—the rule in Strickland v.

Washington, 466 U.S. 668 (1984)—“but unreasonably applied that rule to the facts.”

As an initial matter, we must decide how to review the state court’s one-

sentence order. With one quibble, 1 McKiver concedes that the state appellate court

denied his claims “on the merits” such that AEDPA applies. See 28 U.S.C. § 2254(d).

1
In his reply brief, McKiver argues that the state appellate court should have treated his witness-
testimony claim as two separate claims: a claim about Lamberti’s failure to investigate certain
witnesses and a claim about his failure to call those witnesses at trial. This argument fails for three
reasons. First, arguments raised for the first time in a party’s reply brief are waived. See Haynes v.
McCalla Raymer, LLC, 793 F.3d 1246, 1251 (11th Cir. 2015); Henry v. Warden, Ga. Diagnostic
Prison, 750 F.3d 1226, 1232 (11th Cir. 2014); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008). Second, McKiver framed these issues as a single claim before the state appellate court and
cannot fault the state court for doing the same thing. Third, under the facts of this case, there is no
meaningful difference in treating these assertions as a single claim because McKiver does not
argue that his counsel should have investigated these witnesses for some purpose other than calling
them to testify.
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We agree. Although the state appellate court’s decision was brief, it clearly disposed

of the witness-testimony claim on the merits and not on procedural or jurisdictional

grounds. Because the state court resolved the claim on the merits, AEDPA governs

our review. See Raulerson, 928 F.3d at 995 (11th Cir. 2019).

Moreover, we cannot say that the state appellate court’s ruling was a summary

or unexplained disposition of the claim. Under Strickland, a petitioner making an

ineffective-assistance-of-counsel claim must show both that (1) his counsel

performed deficiently and (2) the deficient performance prejudiced his defense. See

466 U.S. at 687. Unlike a summary disposition, which gives no reason for a decision,

the state appellate court explained why it reversed the postconviction court’s order:

McKiver had not met his burden of proof under either prong of the relevant test. In

applying AEDPA, we must determine whether any fairminded jurist could agree

with that assessment. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (stating that

when a state court explains its decision, “a federal habeas court simply reviews the

specific reasons given by the state court and defers to those reasons if they are

reasonable”).

We believe that fairminded jurists could agree that McKiver’s evidentiary

presentation failed to establish that he met Strickland’s test, especially with respect

to its prejudice prong. Because both prongs of the test must be satisfied, a court need

not address one prong if the petitioner cannot satisfy the other. See Reaves v. Sec’y,

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Fla. Dep’t of Corr., 872 F.3d 1137, 1151 (11th Cir. 2017) (quoting Holladay v.

Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). Indeed, the Supreme Court has

explained that “[i]f it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which [it] expect[s] will often be so, that course

should be followed.” Strickland, 466 U.S. at 697. To establish prejudice, a petitioner

must show that there is a reasonable probability that the result of the proceeding

would have been different if his counsel had not performed deficiently—a showing

sufficient to undermine confidence in the outcome of the proceeding. Id. at 694. “The

likelihood of a different result must be substantial, not just conceivable.” Richter,

562 U.S. at 112.

We have explained that this burden is particularly “heavy where the petitioner

alleges ineffective assistance in failing to call a witness because often allegations of

what a witness would have testified to are largely speculative.” Sullivan v. DeLoach,

459 F.3d 1097, 1109 (11th Cir. 2006) (internal quotation marks omitted) (quoting

United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)); see also Woodfox v.

Cain, 609 F.3d 774, 808 (5th Cir. 2010) (“Claims that counsel failed to call witnesses

are not favored on federal habeas review because . . . speculation about what

witnesses would have said on the stand is too uncertain.”). And, for that reason, we

have held that a petitioner’s own assertions about whether and how a witness would

have testified are usually not enough to establish prejudice from the failure to

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interview or call that witness. See Sullivan, 459 F.3d at 1109; Washington v. Watkins,

655 F.2d 1346, 1364 (5th Cir. 1981) (“All we have is what (the petitioner) says they

would have said. . . . [A]ny inadequacy in [the petitioner’s] representation that is

attributable to his failure to interview [certain nontestifying witnesses] must be

deemed completely nonprejudicial . . . given his utter failure to establish at his

federal habeas hearing that the nontestifying [witnesses] would have corroborated

[his] alibi defense.”); Guerra, 628 F.2d at 413 (denying an ineffective assistance

claim because “[n]one of the alleged witnesses were called at the § 2255 hearing and

no one knows what they would have testified to”). Other circuits have come to a

similar conclusion. See Woodfox, 609 F.3d at 808 (holding that a petitioner must,

among other things, demonstrate “that the witness was available to testify and would

have done so”); Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989) (“Appellant’s

claim also must fail because he has not shown how he was prejudiced” because he

“produced no affidavit or testimony from [the witness] to the effect that she would

have testified at trial that appellant was innocent.”).

We cannot say that the state appellate court was unreasonable in concluding

that McKiver failed to carry his evidentiary burden to establish prejudice. At his

evidentiary hearing before the postconviction court, McKiver—who was

represented by counsel—did not call or submit written testimony from any of the

witnesses who he argues that Lamberti should have investigated and called at trial.

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The only evidence before the state appellate court was McKiver’s own conclusory

testimony about what the witnesses would have said and whether they would have

been available and willing to testify. This testimony is precisely the kind of evidence

that we—and other courts—have held to be “simply inadequate to undermine

confidence in the outcome” of the proceeding. Sanders, 875 F.2d at 210 (internal

quotation marks omitted) (quoting Strickland, 466 U.S. at 694).

Especially considering the particular facts of this case, a reasonable jurist

could conclude that McKiver’s testimony alone failed to establish prejudice.

McKiver’s testimony at the evidentiary hearing was inconsistent with what he had

said on the record at the motion-in-limine hearing—that he was satisfied with his

counsel’s decision not to present evidence about Sneed’s alleged criminal conduct.

And, because the state needed to prove only that McKiver stole 53 of Sneed’s

original 120 pills, the missing witnesses had to account for at least half of the bottle’s

contents to have affected the result. But, for all the state courts knew, McKiver’s

witnesses might have testified to seeing a high enough number of pills to support the

state’s case, not undermine it. For example, McKiver said one witness would “testify

as to how many pills or approximately how many pills were actually in that

oxycodone bottle,” but McKiver never said what he expected that number of pills to

be. Because these witnesses never testified, the state court did not know what they

would have said about the only issue at trial. Under AEDPA, we cannot fault the

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state appellate court for rejecting McKiver’s witness-testimony claim for failing to

meet his burden of proof.

McKiver argues that the state courts were obliged to accept his testimony at

the evidentiary hearing because the state did not object to its admissibility. But this

argument confuses admissibility with sufficiency. The admissibility of evidence and

the sufficiency of that evidence are two different propositions. See, e.g., City of

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 564–65 (11th Cir. 1998) (holding

that courts should avoid “the confusion and conflation of admissibility issues with

issues regarding the sufficiency of [a party’s] evidence”). The issue here is not the

admissibility of McKiver’s testimony under the rules of evidence; the issue is the

sufficiency of that testimony to meet his burden of proof under Strickland. The state

argues, and our caselaw establishes, that speculative testimony like McKiver’s—

about what another person would have said and his or her availability and

willingness to say it—may not be sufficient by itself to establish prejudice,

regardless of its admissibility.

McKiver also argues that we should consider the affidavits that he submitted

to the district court. But we cannot consider evidence that was not presented to the

state courts. Under AEDPA, our “review is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.

170, 180–81 (2011). It would contravene AEDPA “to allow a petitioner to overcome

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an adverse state-court decision with new evidence introduced in a federal habeas

court and reviewed by that court in the first instance effectively de novo.” Id. at 182.

See also Pope v. Sec’y, Fla. Dep’t of Corrs., 752 F.3d 1254, 1263 (11th Cir. 2014).

Accordingly, we are limited to reviewing the reasonableness of the state appellate

court’s decision based on the record that McKiver made in state court.

Although the state appellate court’s decision rejecting McKiver’s witness-

testimony claim was brief, it did not unreasonably apply Strickland. Consequently,

the district court did not err in denying McKiver’s Section 2254 petition with respect

to his witness-testimony claim.

Our dissenting colleague sees things differently and makes at least three

significant errors in doing so. First, she focuses her review on the state

postconviction court instead of the state appellate court. Under AEDPA, we must

evaluate the state appellate court’s decision, not the decision of the lower court that

it reversed and vacated. See Wilson, 138 S.Ct. at 1191–92. In another context, we

have explained that a vacated opinion is “officially gone” and has “no legal effect

whatever,” and “[n]one of the statements made [therein] has any remaining force.”

United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002); see also

United States v. M.C.C. of Fla., Inc., 967 F.2d 1559, 1561 (11th Cir. 1992)

(“[G]eneral vacation by an appellate court of the lower court’s judgment vacates the

entire judgment below, divesting the lower court’s earlier judgment of its binding

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effect”). Second, our dissenting colleague asserts that the state postconviction court

found McKiver’s testimony to be credible and that the state appellate court adopted

that finding. But the state postconviction court never made a credibility

determination of any kind and expressly relied on the lawyer’s testimony, not

McKiver’s. See Doc. 10-6 at 46 (“Mr. Lamberti testified that although Defendant

provided the names of witnesses and their expected testimony he did not investigate

or interview the witnesses or seek a continuance to investigate.”). For its part, the

state appellate court did not adopt—implicitly or expressly—anything that the state

postconviction court said or did. The state appealed on the grounds that McKiver

had not proven his claims by substantial evidence, and the appellate court reversed

because it concluded that McKiver “failed to meet his burden.” Third, our dissenting

colleague makes much of the implausibility of McKiver “ingest[ing] over 100

oxycodone pills in a 48-hour period and somehow surviv[ing].” But nothing in the

state-court record—not even his own testimony at trial or the post-conviction

hearing—suggests that McKiver consumed the stolen pills in two days. The police

interviewed McKiver ten days after the burglary, at which point he said that he had

ingested the pills. Our dissenting colleague’s only support for this assertion is a

sentence in McKiver’s federal habeas petition, which is not evidence of anything

and was not before the state courts in any event.

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B. McKiver’s Criminal-History Claim Was Procedurally Defaulted

We turn now to McKiver’s criminal-history claim. McKiver alleges that

Lamberti was ineffective because he failed to investigate Sneed’s criminal history

such that he could impeach Sneed at trial with a 35-year-old conviction for selling

marijuana and a 26-year-old conviction for issuing worthless checks. Both parties

agree that this claim is procedurally defaulted because McKiver did not timely raise

it in the state courts.

Ordinarily, a state procedural default is fatal to a federal habeas claim. See

Martinez v. Ryan, 566 U.S. 1, 9 (2012) (describing “the doctrine of procedural

default, under which a federal court will not review the merits of claims, including

constitutional claims, that a state court declined to hear because the prisoner failed

to abide by a state procedural rule”). But there is a narrow exception. If a petitioner

can show cause for the default and establish prejudice resulting from the alleged

violation of federal law, then the default will be excused, and federal courts can hear

the claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). As relevant here, a

petitioner can establish cause for defaulting on a claim of ineffective assistance of

trial counsel where four conditions are met: (1) the claim of “ineffective assistance

of trial counsel” was a “substantial” claim; (2) the claim was defaulted because the

petitioner had “no counsel” or “ineffective” counsel during the state collateral

review proceeding; (3) the state collateral review proceeding was the “initial” review

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proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4)

state law requires that an ineffective assistance of trial counsel claim be raised in an

initial-review collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 423, 428

(2013).

McKiver argues that his procedural default may be forgiven under this four-

factor test. The state disputes only the first and second factors.

Under the first factor, to show that an underlying ineffective-assistance-of-

counsel claim is “substantial,” a petitioner must establish that “jurists of reason

would find it debatable.” Hittson v. GDCP Warden, 759 F.3d 1210, 1269–70 (11th

Cir. 2014) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Consequently,

McKiver must prove that such jurists would find it debatable that (1) Lamberti

performed deficiently by failing to investigate Sneed’s criminal history and then use

it to impeach Sneed and (2) that those failures prejudiced his defense. See Strickland,

466 U.S. at 687.

As for the second factor, McKiver must show that his postconviction counsel

was ineffective for failing to raise this claim in his postconviction proceeding.

Although McKiver filed his first state postconviction petition pro se, the

postconviction court appointed counsel almost seven months before the deadline for

amending his petition and before the evidentiary hearing. In such cases where

counsel is appointed while there is still opportunity to include a claim in a state

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postconviction petition, counsel exists for purposes of the Martinez “cause” analysis,

and a petitioner must prove his postconviction counsel’s ineffectiveness to excuse a

state procedural default. See Martinez, 566 U.S. at 14–15. To make that showing,

McKiver must prove that his postconviction counsel performed deficiently and that

the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687.

Under the facts of this case, both factors come down to a single question:

whether there is a substantial likelihood that the result of McKiver’s trial would have

been different if his trial counsel had raised Sneed’s criminal history for the purposes

of impeachment? We need not address the adequacy of any lawyer’s performance—

neither his trial counsel’s failure to investigate nor his postconviction counsel’s

failure to raise the claim—because even assuming that both lawyers performed

deficiently, neither lawyer’s performance prejudiced McKiver. This is so for three

reasons.

First, even if Lamberti had tried to present Sneed’s criminal history, the jury

would not have been able to hear it, which is a necessary precondition for this kind

of ineffective assistance of counsel claim. 2 In Florida, when deciding whether to

2
See Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1362 (11th Cir. 2004) (reasoning that the
unavailability of certain uninvestigated evidence “could not have affected the result of the case so
as to create prejudice” because “[a] reasonable probability of a different result is possible only if
the suppressed information is itself admissible evidence or would have led to admissible
evidence”); Gilreath v. Head, 234 F.3d 547, 551 n.12 (11th Cir. 2000) (“[T]o show prejudice,
Petitioner must show that—but for his counsel’s supposedly unreasonable conduct—helpful
character evidence actually would have been heard by the jury.”); Spaziano v. Singletary, 36 F.3d
1028, 1044 (11th Cir. 1994) (“The result of Spaziano’s trial and sentencing would not have been
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admit evidence of past convictions for impeachment purposes, courts must

“determine whether the past convictions have a bearing on the present character of

the witness.” Trowell v. J.C. Penney Co., 813 So.2d 1042, 1044 (Fla. Dist. Ct. App.

2002). 3 A conviction “so remote in time as to have no bearing on the present

character of the witness” is inadmissible. Children’s Palace, Inc. v. Johnson, 609

So.2d 755, 757 (Fla. Dist. Ct. App. 1992) (citing FLA. STAT. § 90.610). “[T]he

absence of similar conduct for an extensive period of time might suggest that the

conduct is no longer characteristic of the defendant.” Duffey v. State, 741 So.2d

1192, 1197 (Fla. Dist. Ct. App. 1999). Florida courts have held that older convictions

likely do not bear on the witness’s present character if there has been a significant

period without subsequent convictions. See, e.g., Trowell, 813 So.2d at 1044 (finding

that “[e]vidence of theft and shoplifting convictions” almost two decades old “with

no subsequent convictions would tend to suggest that the witness no longer has a

propensity toward dishonesty, and thus such convictions would have little or no

bearing on his present character”); cf. Pryor v. State, 855 So.2d 134, 137 (Fla. Dist.

Ct. App. 2003) (holding that the continued acquisition of felony convictions caused

the older ones to “bear[] on his present character” and be “admissible for

different, because the information in question is not admissible evidence, and it would not have
led to any admissible evidence.”).
3
“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”
Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (emphasis added).
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impeachment”).

Applying Florida law to the facts in this case, there is no reason to believe that

Sneed’s criminal history would have been admitted at McKiver’s trial. Sneed’s

criminal history consists of a 35-year-old conviction for selling marijuana and a 26-

year-old conviction for issuing worthless checks. Sneed had not been convicted of a

felony for 26 years. Consequently, Florida law did not support admitting these

convictions for impeachment purposes. In analogous cases, Florida courts have

affirmed trial courts’ refusal to allow convictions like these to be used for

impeachment. See Jones v. State, 765 So.2d 767, 767–68 (Fla. Dist. Ct. App. 2000)

(affirming the trial court’s discretion in refusing to admit a nearly 30-year-old

conviction); City of Miami v. Ross, 695 So.2d 486, 488 (Fla. Dist. Ct. App. 1997)

(concluding that the trial court did not abuse its discretion by refusing to allow

impeachment with convictions for writing bad checks from “many years ago”).

McKiver cites one Florida case—Riechmann v. State, 581 So.2d 133 (Fla.

1991)—in support of his prejudice argument, but that case is clearly distinguishable.

In Reichmann, the defendant testified and had three potentially admissible prior

convictions that were 21-, 14-, and 13-years-old, 581 So.2d at 135, 139, 140, and

one of those convictions was for perjury, id. at 139. In reviewing the trial court’s

decision to allow impeachment on the basis of those convictions, the Florida

Supreme Court noted that the “remoteness of prior convictions may create a danger

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of unfair prejudice substantially outweighing the probative value of the evidence.”

Id. at 140. But in that case, it ultimately concluded that the trial court had not abused

its discretion in admitting the impeachment evidence. Id. Here, of course, the witness

is not the person on trial, his convictions are significantly more remote, and none of

them is for perjury. See Ward v. State, 343 So.2d 77, 78 (Fla. Dist. Ct. App. 1977)

(“[W]e think perjury falls in a special category. Such a conviction has greater weight

against the credibility of a witness than any other crime.”).

Second, even if the trial court had admitted Sneed’s criminal history, there is

no reasonable probability that the outcome of the trial would have been different. To

begin, if Sneed’s criminal history had been admitted, the precise nature of Sneed’s

crimes would not have been available to the jury. See Jackson v. State, 25 So.3d 518,

526 (Fla. 2009) (“This inquiry [into a witness’s convictions] is generally restricted

to the existence of prior convictions and the number of convictions, unless the

witness answers untruthfully.”); Howard v. Risch, 959 So.2d 308, 313 (Fla. Dist. Ct.

App. 2007) (“Although the fact a witness or party was convicted of a crime may be

relevant and admissible for impeachment purposes, the nature of the crime or any

details about the crime are generally inadmissible.”). Hence, the jury would have

learned only that Sneed had two prior felonies 35 and 26 years before the trial and

perhaps that he received probation for both.

McKiver argues that Sneed’s criminal history would have been enough to

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affect the outcome of the trial because “[t]here was only a single, unimpeached

witness, who testified about the number of pills: Mr. Sneed.” He further asserts that

if “Mr. Sneed was suddenly a convicted felon” in the eyes of the jurors, the “scales

[of credibility] would have been evenly distributed and the jury would have been

required to review the evidence more equally.” But neither assertion is true. Sneed

was not the only witness who testified to the number of oxycodone pills in the bottle:

McKiver concedes that the pharmacist also testified to the number of pills. And

learning of Sneed’s convictions would not have equalized McKiver’s and Sneed’s

credibility in the eyes of the jury. The jury had heard McKiver repeatedly and

elaborately lie to the detective in his first interview—which the jury heard him admit

at the start of the second interview. McKiver’s assertion that the jury would have

found him and Sneed to be equally credible if it had learned of Sneed’s decades-old

convictions is without merit.

Third, only a substantial deviation in the number of pills would have changed

the trial’s outcome. Sneed testified that he consumed six to eight pills, leaving more

than 110 in the bottle. To convict McKiver of trafficking oxycodone, the state simply

had to show that the bottle contained at least 53 pills when he took it. To change the

result, the jury would have needed to believe that Sneed’s estimation of the number

of pills left in the bottle was more than double the actual number of pills that he had.

But McKiver does not explain how undermining Sneed’s credibility with felony

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convictions would have helped him show this kind of discrepancy.

For these reasons, there is no reasonable probability that McKiver’s trial

would have reached a different conclusion if his trial counsel had investigated

Sneed’s criminal history. Moreover, jurists of reason would not find this conclusion

debatable: the cumulative strength of the foregoing reasons is simply too great. We

therefore conclude that McKiver cannot establish that his criminal-history claim is

“substantial” and that his postconviction counsel was ineffective for not raising it.

Under Martinez, the procedural default is not excused, and we cannot reach the

claim. Consequently, the district court did not err in denying McKiver’s Section

2254 petition with respect to his criminal-history claim.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s denial of

McKiver’s Section 2254 petition.

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MARTIN, Circuit Judge, concurring in part and dissenting in part:

Luther McKiver is now serving a mandatory 25-year sentence for a crime he

committed shortly after he graduated high school. He admitted to stealing

oxycodone pills from his neighbor, John Sneed. But Mr. McKiver says, and the

state never disputed, that he consumed those oxycodone pills within 48 hours of

acquiring them. For this crime, the state of Florida charged Mr. McKiver with the

quite serious crime of trafficking oxycodone, which requires a sentence of no less

than 25 years in prison. Without that charge, Mr. McKiver would have still served

a still serious sentence of almost eight years’ imprisonment for the crimes to which

he pled guilty. Under Florida’s statutory scheme, a person does not actually have

to traffic drugs in order to be guilty of trafficking. A person’s guilt or innocence of

Florida’s drug trafficking crime is determined strictly by the weight of the drug

attributed to them. 1 And in order for Mr. McKiver to be guilty of trafficking, a

jury must have found that he possessed at least 28 grams (1 ounce) of oxycodone

between the time he took the pills from Mr. Sneed’s home and the time he

consumed them. All parties seem to agree that it would take 53 oxycodone pills to

meet the weight requirement of 28 grams set by Florida’s drug trafficking statute.

Since Mr. McKiver admitted to taking the pills, the only real issue in dispute

at his trial was whether the bottle he stole had at least 53 oxycodone pills in it.

1
See § 893.135(1)(c)(1)(c) (2008).
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And this appeal presents the question of whether Mr. McKiver’s trial lawyer

rendered ineffective assistance to McKiver in defending him on this point. In

preparing for trial on this lone issue, Mr. McKiver told his attorney, Michael

Lamberti, about several people who would testify (generally) that Mr. Sneed

regularly sold the oxycodone Sneed kept in his house and (specifically) that Sneed

even sold pills from the very bottle McKiver took before McKiver took it. Despite

the obvious effect this testimony would have in undermining the government’s

claim that Mr. McKiver took at least 53 pills from Mr. Sneed, Mr. Lamberti never

even attempted to contact any of the witnesses McKiver identified.

This appeal arises from Mr. McKiver’s attempt to get a new trial on the

ground that Mr. Lamberti gave ineffective assistance of counsel to him on this

important issue of the weight of the drugs he consumed. The state postconviction

court that heard Mr. McKiver’s claims in this regard agreed with him.

Nevertheless, and in a one sentence order, containing no analysis or any reference

to the facts, the Florida appellate court vacated the state postconviction court’s

decision. Upon review here, the majority opinion says this one sentence order

from the Florida appellate court is a reasonable application of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). I say it is not, so I respectfully

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dissent. 2

I.

Mr. McKiver became addicted to prescription opioids prescribed for him

after he had knee surgery during his high school years. In 2008, shortly after

graduating from high school, Mr. McKiver lived with his grandparents across the

street from Mr. Sneed. In December of that year, Mr. Sneed filled three

prescriptions for opioids, including a bottle of 120 oxycodone pills. Mr. Sneed

says he took only six to eight pills per day for personal use. Then, two days after

Mr. Sneed filled that oxycodone prescription, Mr. McKiver broke into Mr. Sneed’s

home, already intoxicated, stole that bottle, and swallowed whatever pills were in

it. The police never recovered the bottle or the pills.

At trial, Mr. McKiver confessed to taking the bottle, but testified that he

could not recall how many pills were in it because he was high at the time. Mr.

Sneed testified that he had only taken out six to eight pills, meaning that there

would have been over 100 pills remaining in the bottle. 3 In October 2009, the trial

2
I agree Mr. McKiver has not made the required showing to overcome his procedurally
defaulted claim that he suffered ineffective assistance of counsel when Mr. Lamberti failed to
investigate Mr. Sneed’s criminal history.
3
The government never offered any evidence to the contrary and so its theory therefore appears
to be that Mr. McKiver ingested over 100 oxycodone pills in a 48-hour period and somehow
survived. The majority opinion says Mr. McKiver never claimed that he consumed whatever
pills soon after acquiring them, but it overlooks the record in this regard. Maj. Op. at 18. See R.
Doc. 1 at 6–7 (“McKiver consumed all of the pills he took from Sneed’s house that day in a
forty-eight hour period. That there were few pills in the bottle is consistent with McKiver’s
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jury found Mr. McKiver guilty of trafficking more than 28 grams but less than 30

kilograms of oxycodone. As a result, Mr. McKiver is now serving the 25-year

term of imprisonment required by Florida’s trafficking statute.

In 2012, Mr. McKiver filed a pro se motion for post-conviction relief in the

state trial court. Mr. McKiver argued, in relevant part, that he suffered ineffective

assistance of counsel because his attorney, Mr. Lamberti, failed to interview

witnesses who would have testified that Mr. Sneed sold his prescription opioids

and that his wife, Mrs. Claudia Sneed, also took his drugs. This would have, of

course, lessened the number of pills in the bottle at the time Mr. McKiver took it.

The state trial court held an evidentiary hearing which revealed important

facts. First, Mr. McKiver provided Mr. Lamberti with the names of at least five

witnesses who would have testified to Mr. Sneed’s illegal drug activity: Daniel

Pulkinan, Tyrone Thomas, Tracy Gates, Corey Denny, and Rodney Jones. Mr.

McKiver further testified that two of them would have testified that Mr. Sneed sold

oxycodone pills during the 48 hours between the time Sneed filled his prescription

and the time McKiver stole the bottle of oxycodone. Second, Mr. Lamberti did not

attempt to contact any of the witnesses Mr. McKiver indicated had exculpatory

information. And finally, Mr. Lamberti’s notes from his pre-trial conversations

statement that all of the pills were consumed by him in a two day period because one hundred
twelve pills of percacet in a two day period would have been lethal.”) Mr. McKiver so stated
under penalty of perjury.
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with Mr. McKiver indicate that McKiver told him he didn’t know how many pills

were in the bottle when he stole it.

The majority opinion correctly points out that Mr. Lamberti testified that Mr.

McKiver told him the oxycodone bottle was almost full when McKiver took it.

Maj. Op. at 6. But Mr. Lamberti’s self-serving testimony was undermined by two

other pieces of evidence. First, Mr. McKiver testified that when he referred to a

full bottle of pills, he was talking about the other drugs he had taken from Mr.

Sneed’s home (and which he subsequently pled guilty to stealing) and that he

always said there were very few pills remaining in the oxycodone bottle. Second,

Mr. Lamberti’s own notes indicate that Mr. McKiver told him he could not

remember how many pills were in the bottle. We also know that when the state

trial court heard this conflicting evidence it found that Mr. Lamberti’s decision to

not even try to contact the potential witnesses “cannot be attributed to strategic

decision.” This seems to be a perfectly reasonable finding based on my read of the

evidence.

The state trial court found Mr. Lamberti’s performance to be constitutionally

deficient because he failed to investigate or interview any of the witnesses Mr.

McKiver named. And it found that Mr. McKiver demonstrated prejudice because

the “narrow issue at trial was the issue of quantity of drugs contained in the bottle”

and the witnesses McKiver identified “would have challenged the testimony of

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State’s witnesses and provided reasonable doubt as to the quantity for trafficking.”

On appeal, the Florida Fifth District Court of Appeal vacated the state

postconviction court’s decision in a one-sentence order simply saying that Mr.

McKiver “failed to meet his burden of establishing either prong under Strickland.”

The state appellate court provided no analysis whatsoever.

In 2015, Mr. McKiver filed a habeas petition in the District Court, seeking to

have his conviction vacated because he did not receive effective assistance of

counsel. Mr. McKiver again argued Mr. Lamberti was deficient because he failed

to interview or call the witnesses with knowledge of Mr. Sneed’s illegal drug

activity. Mr. McKiver provided the District Court with affidavits from the

witnesses he says Mr. Lamberti should have called. Three of those witnesses

swore they had personal knowledge that Mr. Sneed sold prescription drugs in the

time between filling his prescription and Mr. McKiver stealing the oxycodone

bottle. All four said they were available to testify during the trial and would have

done so if someone had only asked.

In 2018, the District Court denied the petition. The District Court found

that, even if the jury had heard the evidence about Mr. Sneed’s drug activity, they

still could have found that Mr. McKiver took the minimum number of pills to

sustain his trafficking charge.

II.

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Upon reviewing a habeas claim previously adjudicated on the merits in state

court, federal courts may grant relief only when the state court’s decision “resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law” 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)(1)–(2). But the state court’s factual findings are “presumed to be

correct,” and can only be overcome by “clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

Mr. McKiver argues the state appellate court unreasonably applied

Strickland to the facts of his case. Strickland provides that a criminal defendant

has been deprived of their Sixth Amendment right to counsel when: (1) counsel’s

performance was deficient, meaning their actions were not sound trial strategy and

(2) counsel’s deficiency prejudiced the defense, meaning there is a reasonable

probability that but for the deficiency, the result of the proceeding would have

been different. King v. Strickland, 748 F.2d 1462, 1463 (11th Cir. 1984);

Strickland, 466 U.S. at 687, 689, 693–94, 104 S. Ct. at 2064, 2065, 2068.

“Reasonable probability” is not a stringent standard. It means only a “probability

sufficient to undermine confidence in the outcome.” King, 748 F.2d at 1463

(quotation marks omitted). It is less than a preponderance of the evidence. Agan

v. Singletary, 12 F.3d 1012, 1018 (11th Cir. 1994). Because the state appellate

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court ruled that Mr. McKiver failed to establish “either prong under Strickland,” I

examine each in turn.

Mr. Lamberti’s failure to interview the witnesses Mr. McKiver identified

was deficient because it could not have been sound trial strategy. At the

evidentiary hearing before the state trial court, Mr. Lamberti said he did not seek

out these witnesses because Mr. McKiver told him he had ingested the whole

bottle of pills and because he did not think the witnesses would admit, on the stand,

to illegally purchasing opioids. But we know that Mr. McKiver clarified that when

he referred to a full bottle of pills, he was talking about drugs other than the

oxycodone that he had taken from Mr. Sneed’s home. And Mr. McKiver always

maintained there were very few pills remaining in the oxycodone bottle when he

took them. Mr. Lamberti admitted Mr. McKiver told him he did not know exactly

how many pills were in the bottle at the time, and this fact is also reflected in

Lamberti’s notes. Thus, even if we credit Mr. Lamberti’s statement that Mr.

McKiver said he ingested the whole bottle, this should not have ended Lamberti’s

inquiry.

Florida does not appear to dispute that Mr. Lamberti’s decision not to

interview the witnesses was deficient. Instead, the state argues that Mr. McKiver

failed to establish, before the state court, that the witnesses existed and that they

were willing and available to testify during his criminal trial. By this argument,

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Florida appears to question Mr. McKiver’s credibility. However, the state court

found to the contrary that Mr. McKiver was credible. 4 In finding that the

witnesses Mr. McKiver identified “would have challenged the testimony of State’s

witnesses and provided reasonable doubt as to the quantity for trafficking,” the

state trial court credited Mr. McKiver’s testimony that these witnesses existed and

that they were available and willing to testify at the time of the trial. This finding

appears to have been adopted by the state appellate court. Florida’s only argument

as to why McKiver’s testimony should not be credited on this point is that it was

“self-serving.” But this is far from the “clear and convincing” evidence necessary

to overcome the state court’s factual finding. See 28 U.S.C. § 2254(e)(1).5

The majority opinion takes the position that we may not look to the decision

made by the state postconviction court who heard Mr. McKiver’s postconviction

4
The majority says the state postconviction court relied on Mr. McKiver’s trial counsel’s
testimony, and not McKiver’s testimony, in finding that a new trial was warranted based on
deficient performance by trial counsel. Maj. Op. at 18. Not so. The state postconviction court
expressly recounted Mr. McKiver’s testimony that he had discussed the case with his trial
counsel and told him that Mr. Sneed sold pills on the day of the incident, as well as advising him
of the names of witnesses who could demonstrate that Sneed sold drugs. The state court’s
conclusion that the trial counsel’s performance was deficient, because “witnesses may have
provided” a “reasonable defense to the charges [by] refut[ing] the amount alleged by the State,”
necessarily relies on this testimony from Mr. McKiver. The majority also says the state
postconviction court made no credibility finding. Maj. Op. at 18. But it is difficult to imagine
how or why the postconviction court found in Mr. McKiver’s favor if it did not credit his
testimony.
5
Of course, the fact that Mr. McKiver was eventually able to provide affidavits from the
witnesses he identified only bolsters the state trial court’s finding that Mr. McKiver’s testimony
was credible.
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claims. In support of this position, the majority relies on cases in which this Court

vacated its own panel decision or recognized generally that a vacation of a

judgment by a federal appellate court divests the lower court’s earlier judgment of

its binding effect. Maj. Op. at 17.

The majority’s reliance on those cases doesn’t work here, however, because

we look to Florida law to determine what (if any) aspects of a Florida state court

decision survives state appellate review. This question is not simply resolved by

asking whether the state postconviction court’s judgment was vacated, but instead,

on what grounds. And, under Florida law, a postconviction court’s factual findings

are deferred to as long as they “are supported by competent, substantial evidence,”

whereas legal conclusions are reviewed de novo. Brown v. State, 304 So.3d 243,

257 (Fla. 2020). I do not look to the postconviction court’s legal conclusions here.

I look only to its findings of fact. Given that this state appellate court offered no

analysis of the postconviction court’s factual findings, I don’t think it proper to

presume that it had “substitute[d] its judgment for that of the trial court on

questions of fact,” especially in the face of conflicting testimony. Lowe v. State, 2

So. 3d. 21, 29–30 (Fla. 2008) (quotation marks omitted).

Notably, the Florida Supreme Court has made clear that it is especially

reluctant to displace the postconviction court’s findings as to “the credibility of the

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witnesses as well as the weight to be given the evidence.” Id. at 30 (quotation

marks omitted).

Furthermore, Mr. McKiver was prejudiced by Mr. Lamberti’s deficiency

because testimony regarding Mr. Sneed’s illegal drug activity would have cast

doubt on the only factual dispute at trial. That dispute, of course, goes to the

number of pills in the bottle at the time Mr. McKiver stole it. The only evidence

that there was a sufficient number of pills in the bottle to support Mr. McKiver’s

trafficking charge was Mr. Sneed’s testimony that only six to eight pills had been

removed from the bottle. Testimony from witnesses (saying they had bought

oxycodone pills from Mr. Sneed in the past and that they had participated in or

witnessed drug transactions with Sneed in the time between when he filled his

prescription and when Mr. McKiver stole the bottle) would have cast doubt on

Florida’s contention that the bottle still had at least 53 pills in it by the time

McKiver took it.

The majority reasons that the state appellate court’s ruling that Mr. McKiver

was not prejudiced could not be unreasonable. This is so, according to the

majority, because even if all that testimony had been admitted, and even if the jury

believed that Mr. Sneed did sell a number of pills from that bottle, the jury could

still believe that at least 53 pills remained. Maj. Op. at 16. But this argument

improperly places the burden on Mr. McKiver to prove that he did not meet the

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trafficking amount. It is Florida’s burden to prove, beyond a reasonable doubt, that

Mr. McKiver took at least 53 pills and not one fewer. See In re Winship, 397 U.S.

358, 363, 90 S. Ct. 1068, 1072 (1970) (the government must prove “beyond a

reasonable doubt the existence of every fact necessary to constitute the crime

charged”) (quotation marks omitted). And the prosecution sought to carry its

burden here based entirely on circumstantial evidence. Based on the limited

evidence heard by the jury, it had no evidentiary basis for believing that Mr. Sneed

would have done anything with the pills but take them himself. Had the jury been

presented with evidence that Mr. Sneed was a drug dealer and that he sold pills

from the very bottle Mr. McKiver stole, I think they would be hard pressed to find,

beyond a reasonable doubt, that any specific number of pills were left in the bottle.

Once Mr. McKiver introduced evidence that several people knew some

unspecified number of pills had been taken from the bottle, he would have

established that no one knew for certain how many remained. It was Florida’s

burden to show it was all but certain that Mr. McKiver took at least 53 pills. Had

the witnesses Mr. McKiver identified testified, I am not convinced Florida could

have carried its burden. I certainly think that Mr. McKiver has raised a

“reasonable . . . probability sufficient to undermine confidence in the outcome.”

King, 748 F.2d at 1463 (quotation marks omitted). Therefore, the state appellate

court’s decision improperly placed the burden on Mr. McKiver to prove he was

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innocent. This was an objectively unreasonable application of Strickland, which

entitles Mr. McKiver to relief.

This record demonstrates that Mr. McKiver was deprived of his right to

effective assistance counsel by Mr. Lamberti’s deficient performance. On this

record, the Florida appellate court’s decision to the contrary was objectively

unreasonable.

I respectfully dissent.

39