USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 1 of 38
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10621
________________________
D.C. Docket No. 3:15-cv-00741-BJD-MCR
MARVIN TYRONE TARLETON,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 23, 2021)
Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 2 of 38
Marvin Tarleton appeals the denial of his petition for writ of habeas corpus,
brought under 28 U.S.C. § 2254. He asserts the district court erred when it held
that he was not prejudiced by his attorney’s failure to object to the introduction of
hearsay evidence and it erred when it denied his Confrontation Clause claim. He
also argues the district court erred when it denied his argument for cumulative
error.
I. FACTS AND PROCEDURAL HISTORY
Marvin Tarleton was charged with one count of unarmed robbery in state
court in Duval County, Florida. The robbery occurred at a Bank of America branch
where approximately $3500 was stolen. The case proceeded to a jury trial on
February 3, 2011. The State called Elva Braho, the teller who was the victim of
the robbery, who testified that at around 10:40 a.m., the perpetrator of the robbery
approached her teller window. Before he walked up to her window, she had not
noticed him in the bank. She testified that the perpetrator was a white male, with
brown hair, brown eyes, and a clean-shaven face and was wearing a blue button-up
shirt, hat, and thin-rimmed glasses. She testified that he was approximately 5’8”
tall and that he was in his early 40s. When she spoke with law enforcement shortly
after the robbery, she estimated the perpetrator’s weight at 170 pounds and
described him as “slim.” The perpetrator approached the window, placed a black
2
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 3 of 38
briefcase on the counter, and said, “I want 100s, 20s, and 50s” in a soft voice. The
teller then provided the perpetrator with various currency without any tracking
devices. He then turned and left the bank through the back door, at which point the
teller triggered an alarm. The perpetrator was not wearing gloves and during the
encounter, he touched both the counter and the briefcase containing the currency.
Bank surveillance captured the encounter on video recording, which the State
showed to the jury during the teller’s testimony.
Approximately two weeks after the robbery, law enforcement showed the
teller a photopack that contained photographs of six individuals, which included a
picture of Tarleton. In her testimony at trial, Ms. Braho confirmed that when law
enforcement showed her the photopack, she picked out the photo of Tarleton, and
excluded the other five individuals in the photopack. She testified it was the eyes
that gave it away more than anything else. As the surveillance video played for the
jury, Ms. Braho pointed out the man in the video who robbed her. On cross-
examination, Ms. Braho confirmed that she had not been able to positively identify
for law enforcement any one of the six photos in the photopack. And when the
person showing her the photopack showed her Tarleton’s photo, she confirmed
that, although she had picked out the photo because of the eyes, she told the officer
3
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 4 of 38
that she could not positively identify it as the person who robbed her. 1 She also
confirmed that the photo of Tarleton in the photopack was different from the
perpetrator from the nose down; his chin was heavier, wider; his whole face was
bigger. She also testified that the photo of Tarleton was heavier than the
perpetrator.
The State also called several of Tarleton’s relatives. A detective contacted
Tarleton’s stepmother, Joyce Tarleton, showed her two photographs, and asked her
if she recognized the person in the photographs. She identified Tarleton in one of
the photographs but said she could not identify who the person in the other
photograph was. She testified that the shirt the person in the photograph was
wearing looked like a shirt she had given Tarleton for Christmas. She described
the shirt as being blue, which matched the description by Ms. Braho of the blue
shirt worn by the perpetrator. On cross-examination, she acknowledged that she
gave the shirt to Mr. Tarleton at least four Christmases prior because she had had
little contact with Mr. Tarleton in the past four years. Afterwards, Joyce Tarleton
1
The question in cross-examination was: “And, in fact, you told the person showing you
that photo spread no to the picture of Marvin Tarleton; is that correct?” Answer: “Because he
said, Are you positive? I said, No.” Doc. 18-2, at 295, lines 9-12.
4
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 5 of 38
called some relatives and non-relatives “to try to confirm what [she was]
suspecting.” At trial, she testified that she was “pretty sure” that the person in the
photograph was Tarleton and that she believed the person in the surveillance video
was also he. She testified that the briefcase that the person in the bank was
carrying looked like a briefcase Tarleton’s father had. On cross-examination,
Joyce Tarleton testified that Tarleton’s father passed away in 2007. She confirmed
that, shortly before his passing, she had a dispute with Tarleton and his sister and
since that time, had had little contact with Tarleton. She testified that she had told
Tarleton and his sisters not to have contact with her.
Ashley Hoffman, Joyce Tarleton’s granddaughter, was also called by the
State. She testified that her grandmother called her one day and told her to look up
news coverage of the robbery. Hoffman testified that she did so and then
recognized Tarleton as the purported suspect shown in the pictures in the news
coverage. She testified at trial that she recognized the smile, the briefcase, the
trucker-style hat, and the shirt that the suspect was wearing. She also testified on
cross-examination that she had not seen Mr. Tarleton in the last four years, since
she was 16 years old.
The State called Franchesca Swierz, Tarleton’s ex-wife, who testified she
had been approached by a detective, shown a photograph, and asked if she
5
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 6 of 38
recognized the person depicted therein. She responded that it looked like her ex-
husband. She also testified that the person in bank surveillance video looked like
her ex-husband.2 Swierz and Tarleton divorced in 2001, however, and she had not
seen, nor had any contact with him since 2003 or 2004, “almost a decade” earlier.
Jacksonville Sheriff’s Office Detective James Venosh, Jr. testified that upon
responding to the scene, he had patrol officers canvas the area and deployed K-9s
to search for the suspect. Law enforcement was not able to find a suspect or any
information helpful to the investigation. He released pictures from the bank
surveillance to the media in the hope of finding a suspect, and on November 22,
the detective received two crime stopper tips. One of the tips was that the suspect
was a person named Robin Zidberry, but he ruled out Zidberry after examining
photos of him, and Zidberry had green eyes, while the bank teller said the
perpetrator had brown eyes. The other anonymous crime stoppers tip was that the
suspect may have been Tarleton, and after reviewing pictures of Tarleton, the
2
The detective who investigated the robbery, James Venosh, Jr., testified about having
shown the photo and surveillance video to Swierz. “She was fairly sure when I showed her the
photograph, but she said she wasn’t 100 percent positive. She asked if she could see the movie
video and she would be able to tell me 100 percent. She viewed that and, when she saw it, she
said, Absolutely, that is him.” Doc. 18-3, at 16, lines 8-12.
6
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 7 of 38
detective opined that there were “strong similarities” between Tarleton and the
suspect.
He created a photopack that contained a picture of Tarleton, which he
showed to the bank teller, Ms. Braho, and two other bank employees who were
present on the day of the robbery. Only Ms. Braho had a good look at the
perpetrator. She picked out the picture of Tarleton as looking very similar to the
suspect; the facial features and eyes looked very similar. But because he looked
larger in the photo than the person she remembered, she “didn’t feel it was possibly
the same person.” Overall, the detective’s testimony suggests that he believed Ms.
Braho had identified Tarleton, although the differences prevented her from making
a positive identification.3
The detective testified that he then showed the photopack to the stepmother,
Joyce Tarleton. After Joyce Tarleton identified Tarleton as the person in the
3
The detective was asked at that point: “So her ID was basically on eyes and face?”
Answer: “Correct . . . Overall facial features is what she told me.” Doc. 18-2, at 346, lines 5-8.
See also Doc. 18-3, at 5, lines 13-15 (the detective was asked on cross-examination: “Yet when
you brought [Ms. Braho] the photo spread she was not able to positively identify Martin
Tarleton?” Answer: “Not positively, no.”).
7
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 8 of 38
surveillance, the detective had Tarleton arrested. At the time of his arrest, Tarleton
was 40 years old, 5’8” tall, and weighed 200 pounds.
The detective testified that he showed the bank surveillance to one of
Tarleton’s sisters, Angela Tarleton. Angela cried when she viewed the photo and
told him that she could not be sure, but that the person looked like Tarleton. After
viewing the photo, Angela gave the officer permission to search her home, where
Tarleton had been residing prior to his arrest. Law enforcement found no potential
evidence during that search.
A vehicle Tarleton had been driving was also later searched and no evidence
was found in it. The detective testified that he found no evidence of Tarleton
having made any extravagant purchases after the robbery occurred. The detective
showed the surveillance photo to another of Tarleton’s sisters, Kimberly
McClenton, who testified that she did not recognize the person in the photo.
The detective showed the surveillance photo to another niece of Tarleton’s
by marriage, April Hoffman. The detective stated at trial that April said she
recognized the person in the photo as her uncle but that she did not wish to be
involved in the investigation.
A DNA sample from Tarleton was compared to DNA samples collected
from the bank counter, and Tarleton was excluded as a contributor of any of the
8
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 9 of 38
DNA samples obtained from the counter. Tarleton’s fingerprints were compared
to latent prints recovered from the bank entry/exit door and Tarleton was excluded
as a match to any of the latent prints.
On cross-examination, defense counsel asked the detective if he also showed
the photo to Tarleton’s brother, James. He testified that James could not
“positively identify” Tarleton as the suspect. On redirect examination, however,
the detective testified that James told him that the suspect in the photo looked like
his brother, but he could not be sure that it was. The detective testified on redirect
that he also showed James’s wife the surveillance photo and she said that the
person in the photo could be Tarleton.
Angela Tarleton later testified as a defense witness and stated that she did
not recognize the person in the surveillance photo as her brother. She testified that
she cried when she was shown the photo by the detective because she feared that
she would be evicted from her public housing.
In closing arguments, the State relied on the detective’s testimony about the
three non-testifying family members. The State argued: “April Hoffman said that
she recognized the suspect in the surveillance photograph as Ty Tarleton. She did
not want to sign it because she did not want to get involved with the investigation.
That is still an identity. That is still her identifying Ty Tarleton as the person in
9
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 10 of 38
those photographs, the same person that robbed the bank on December 16, 2009.”
It later told the jury to remember what those non-testifying family members said
“when the defense gets up here and says and argues to you that the only people that
are identifying Marvin Tyrone Tarleton are people that have something to gain.”
During deliberations, the jury asked two questions:
1) When was photo (mugshot) JPICS ID 1148849 taken?
2) Can we get sequential order of when all photos were taken?
The court replied, “the only answer I can give you, is that you will have to rely on
your individual and collective memories of the evidence that you saw and heard
and make your decision based on that.”
Tarleton filed pro se motions for mistrial/new trial and for judgment of
acquittal. At the hearing on the motion for new trial, Tarleton argued the issue of
having been denied an opportunity to cross-examine the various witnesses who did
not testify but whose out-of-court statements were admitted. The state circuit court
informed Tarleton that it had ruled on the matters, that it was now up to the
appellate court to address the issues, and it denied the motions. On March 10,
2011, the court sentenced Tarleton to 30 years’ imprisonment. Tarleton appealed
to the First District Court of Appeal of Florida, which issued a per curiam
10
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 11 of 38
affirmance on August 13, 2012. Tarleton v. State, 94 So. 3d 589 (Fla. 1st DCA
2012).
On November 26, 2012, Tarleton filed in the First District Court of Appeal a
petition for a writ of habeas corpus asserting ineffective assistance of appellate
counsel. The court denied that petition without discussion. Tarleton v. State, 103
So. 3d 272 (Fla. 1st DCA 2012). On January 29, 2013, Tarleton filed in the state
circuit court a motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850. He later filed an amended motion with leave of the
court. The motion raised six total claims, which included, for purposes of this
appeal:
(1) ineffective assistance of counsel for failure to object to
inadmissible hearsay from non-testifying witness April Hoffman;
(2) ineffective assistance of counsel for failure to object to
inadmissible hearsay from the crime stopper tipster;
(3) ineffective assistance of counsel for failure to object to
inadmissible hearsay from Tarleton’s brother;
(4) ineffective assistance of counsel for failure to object to
inadmissible hearsay from Tarleton’s sister-in-law; and
(6) ineffective assistance of counsel based on the cumulative effect of
the errors and omissions of counsel presented in grounds one, two and
three.
The court denied relief on all grounds.
11
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 12 of 38
The court did make a finding that “the record does not reflect that Defendant had a
prior opportunity to cross-examine April Hoffman.” While addressing ground one,
the state circuit court specifically found
[o]ne of the witnesses who identified the robber was the victim, the
Bank of America teller. The victim testified at trial that she had
identified Defendant from a photo spread approximately two weeks
after the robbery. (Ex. E at 166, 168-76.) During trial, the victim also
identified Defendant as the individual who robbed her, from the photo
spread, and the jury was shown the photograph that the victim selected.
(Ex. E at 176-79.) Further, Defendant’s stepmother, niece, and ex-wife
identified Defendant as the individual who had robbed the Bank of
America on November 16, 2009, at trial. (Ex. E at 188-89, 191-96, 206-
21.)
The court further observed that the jury viewed the bank surveillance video and
still photos and Tarleton’s booking photograph from his arrest. Although the court
found that April Hoffman’s testimony was hearsay, it held that
Ms. Hoffman’s statements are inconsequential and far from damaging
when considering the testimony presented at trial in its entirety. The
testimony of the four witnesses at trial who identified Defendant as the
robber - including that of the victim - provided much more in the way
of near overwhelming evidence that Defendant was the robber, than the
few references to Ms. Hoffman’s statements made during the course of
the Defendant’s trial.
Similarly, the state court found, and the State conceded, that the detective’s
testimony about the crime stopper tip was inadmissible hearsay. Relying on the
same evidence it relied on in denying relief on the April Hoffman ineffective
12
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 13 of 38
counsel issue, the court found that prejudice was not established from the
admission of the out-of-court statements of the crime stopper tipster, the brother,
and the sister-in-law. Finally, the state court denied the cumulative error issue,
reasoning that “[b]ecause all of Defendant’s grounds for relief have been denied,
Defendant’s claim of cumulative error must be similarly rejected.” Tarleton
appealed to the First District Court of Appeal, who again issued a per curiam
affirmance on October 3, 2014. Tarleton v. State, 151 So. 3d 1239 (Fla. 1st DCA
2014).
On June 19, 2015, Tarleton filed in the United States District Court for the
Middle District of Florida, Jacksonville Division, a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The motion raised as grounds relevant to this
appeal:
(1) ineffective assistance of counsel for failure to object to inadmissible
hearsay from non-testifying witness April Hoffman; (2) ineffective
assistance of counsel for failure to object to inadmissible hearsay from
non-testifying witnesses James and Nynce Tarleton; (3) ineffective
assistance of counsel for failure to object to inadmissible hearsay from
non-testifying crime stoppers’ witness; (4) ineffective assistance of
counsel based on the cumulative effect of the errors and omissions of
counsel presented in grounds one, two and three; . . . and (6) a Sixth
Amendment Confrontation Clause claim based on Detective John
Venosh’s testimony that non-testifying witness April Hoffman
identified Petitioner as the perpetrator of the crime after Ms. Hoffman
viewed photographs taken during the robbery.
13
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 14 of 38
The district court addressed the first three claims together. First, the district court
noted that the state court had properly referenced the Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984), standard, and noted that its standard for
prejudice in this context asked if there was a reasonable probability that a different
jury verdict would have resulted. Specifically, in the hearsay context, the state
court had asked the proper question of whether the introduction of the hearsay
evidence as corroborative evidence “‘was profoundly damaging’” and the non-
hearsay evidence was “‘far from overwhelming.’” The district court noted that the
state court found all three to be inadmissible hearsay but that Tarleton had not
established prejudice. This conclusion, the district court stated, was based on the
state court’s reliance on the “substantial impact” of the four witnesses who actually
testified at trial and who identified Tarleton as the perpetrator in the bank’s
surveillance videotape and still shots. The district court acknowledged that the
trial court “liberally construed the testimony of Elva Braho” when it stated that she
identified the robber but stated that there was “certainly” strong testimony from
Braho describing the robber and verifying that she selected Tarleton from the
photospread. The district court also noted that the trial court relied on the three
witnesses who identified Tarleton from the photos and on the jury’s own viewing
of the video and stills as well as Tarleton’s photo taken during the booking process.
14
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 15 of 38
Given this evidence, the trial court found no prejudice and the district court held
that this decision was not inconsistent with Strickland. Further, because there was
a qualifying decision by the state court, the district court held that deference must
be given.
Ground Four was the cumulative error claim and the district court rejected it
because the none of the grounds for claiming ineffective assistance of counsel
provided a basis for relief, so the cumulative effect did not provide the foundation
for granting habeas relief. It cited the state court for a similar holding and held that
decision entitled to deference. Ground Six was the Crawford4 claim based on the
detective’s statement about April Hoffman’s identification of Tarleton. First, the
court held that Tarleton had not procedurally defaulted the claim because he
included two sentences about it in his direct appeal, and the reference to Crawford
put the state appellate court on notice that the Confrontation Clause was involved.
Because the First District Court of Appeal affirmed per curiam, the district court
presumed that it adjudicated the claim on the merits because there was no
indication that procedural grounds existed. The petitioner, the district court held,
4
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
15
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 16 of 38
failed to demonstrate that there was no reasonable ground for the presumed
rejection of the claim. The court returned to the prejudice analysis and determined
the error was harmless.
This Court granted a Certificate of Appealability on three issues:
Whether Mr. Tarleton is entitled to habeas relief on his claims that
trial counsel rendered ineffective assistance of counsel by failing to
object, on Confrontation Clause and state law grounds, to the
admission and use of hearsay statements from three non-testifying
witnesses—April Hoffman, James Tarleton, and Nynce Tarleton—and
an anonymous tipster;
Whether Mr. Tarleton is entitled to habeas relief on his claim that the
trial court erroneously admitted April Hoffman’s out-of-court
statements in violation of his rights under the Confrontation Clause;
Whether Mr. Tarleton is entitled to habeas relief on his claim that the
errors listed in grounds (1) and (2) cumulatively denied him the right
to a fair trial in violation of the Sixth Amendment.
II. DISCUSSION
A. Ineffective Assistance of Counsel–Admission of Hearsay Statements
Tarleton argues that the district court erred when it accepted the state court’s
conclusion of no prejudice when his attorney failed to object to the introduction of
hearsay statements from three declarants. He argues that the court based this
conclusion on the state court’s unreasonable fact finding that the bank teller
identified Tarleton as the perpetrator and reliance on three witnesses who viewed
16
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 17 of 38
the surveillance video and stated the person was Tarleton despite not having seen
him for several years. Tarleton also points to physical evidence such as DNA and
fingerprints that excluded him. The evidence, when properly construed, he argues,
was not overwhelming.
Under well-established law, a person in custody pursuant to a state court
judgment cannot be granted habeas relief in federal court on a claim that was
“adjudicated on the merits in State court proceedings” unless the state court
decision 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), or unless the state court decision “resulted in a decision that was
based on an unreasonable determination of facts in light of the evidence presented
in the state court proceeding,” § 2254(d)(2). The primary focus of Tarleton’s
attempt to avoid the preemptive force of § 2254 with respect to his ineffective
assistance of counsel claim relies on § 2254(d)(2) and his argument that the Rule
3.850 judge’s rejection of his claim was an unreasonable determination of the facts
because that judge unreasonably found that the bank teller, Ms. Braho, identified
Tarleton as the perpetrator. Tarleton also argues that the Rule 3.850 judge made an
unreasonable application of the clearly established Strickland law. His argument
in that regard relies primarily on his view that the Rule 3.850 judge unreasonably
17
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 18 of 38
found that Ms. Braho had identified him, but he also argues that the several
hearsay errors were prejudicial and contributed to making the state court decision
an unreasonable application of Strickland’s prejudice prong.
A state court decision involves an “unreasonable application” of Supreme
Court precedent 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. Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1439 (2005). In
such a case, the decision must be more than incorrect or erroneous—it must be
“objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166,
1174 (2003). Thus, to prevail the petitioner must show that the state court’s ruling
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 135 S. Ct. 770, 786-87
(2011).
In applying § 2254(d)(2)—a decision based on an unreasonable
determination of the facts in light of the evidence in the state court proceedings—
the Supreme Court “requires that we accord the state trial court substantial
deference.” Brumfield v. Cain, 576 U.S. 305, 314, 135 S. Ct. 2269, 2277 (2015).
“If ‘[r]easonable minds reviewing the record might disagree about the finding in
18
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 19 of 38
question, on habeas review that does not suffice to supersede the trial court’s . . .
determination.’” Id. (alteration and ellipsis in original) (quoting Wood v. Allen,
558 U.S. 290, 301, 130 S. Ct. 841, 849 (2010)).
In order to prevail on an ineffective assistance of counsel claim, a habeas
petitioner must show both that his counsel’s performance was deficient and that
counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 687, 104
S. Ct. at 2064. To prove prejudice under Strickland, 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, 104 S. Ct. at 2068.
A “reasonable probability” does not mean that counsel’s performance “more likely
than not altered the outcome.” Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct.
988, 998 (1986). Rather, a “reasonable probability” is a “probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. Further, the burden is heavier still when a federal court is reviewing a state
court:
As difficult as it is to prevail on an ineffective assistance prejudice issue
in the first court to decide it, the Antiterrorism and Effective Death
Penalty Act of 1996 makes it even harder to succeed on that issue in a
federal habeas proceeding after a state court has ruled that the petitioner
failed to show prejudice. To obtain habeas relief, the petitioner must
show that the state court’s ruling “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
19
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 20 of 38
established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). That is a highly deferential
standard that is intentionally difficult to meet. . . .
To overcome AEDPA deference under § 2254(d)(1), the petitioner
must “show that the state court’s ruling . . . was so lacking in
justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.”
[Virginia v. LeBlanc, 582 U.S. __, 137 S. Ct. 1726, 1728 (2017)] “[I]f
some fairminded jurists could agree with the state court’s decision,
although others might disagree, federal habeas relief must be denied.”
Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th
Cir. 2012).
Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1348-49 (11th Cir.
2019) (footnote omitted) (internal quotations and citations omitted).
We agree with the district court that the conclusion of the Rule 3.850 state
court that Tarleton could not show prejudice under the Strickland standard was
neither an unreasonable application of Supreme Court precedent nor an
unreasonable determination of the facts. Undertaking the § 2254(d)(2) inquiry
first, and applying that deferential standard of review, we cannot conclude that the
Rule 3.850 court’s statement that Ms. Braho identified Tarleton as the perpetrator
was an unreasonable determination of fact in light of the evidence presented in
state court. She testified that the perpetrator was 5’8”, clean-shaven, wore glasses,
and that she got a good look at his eyes. She testified that she picked Tarleton’s
photo out of the photospread two weeks after the robbery because “[i]t was the
20
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 21 of 38
eyes that gave it away more than anything else,” while conceding that enough time
had passed that she was not sure that she could recognize the person who robbed
her. At trial, she again selected the photo of Tarleton as “the photograph that
depicts the individual that had the eyes that you were talking about.” She then
watched the video and narrated, with the questions from the prosecutor, what
happened. On cross-examination, she conceded that she had described the
perpetrator as “slim” to the detectives and as weighing about 170. She also
conceded that she had told the detective that she was not positive in her
identification of Tarleton. She thought the photo had the same eyes, but looked
heavier, and the face and chin in the photo looked heavier and wider from the nose
down. While certainly this is not an unequivocal identification of Tarleton as the
perpetrator, her confidence about the eyes came through in the testimony. And she
picked out Tarleton’s picture from the photopack while excluding the other five.
Although she admitted on cross-examination that she could not be positive about
her identification, and although she noted some differences, we cannot conclude
that a reasonable jurist might not deem her testimony an identification. Even if
“reasonable minds reviewing the record might disagree about the finding in
21
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 22 of 38
question, on habeas review, that does not suffice to supersede the trial court’s . . .
determination.” Brumfield, 576 U.S. at 314, 135 S. Ct. at 2277 (cleaned up).5
Second, we undertake the § 2254(d)(1) inquiry—whether the state court
decision involved an unreasonable application of clearly established law as
determined by the Supreme Court of the United States. We have examined the
evidence—the trial witnesses (i.e., the testimony of Ms. Braho, the stepmother
Joyce Tarleton, Ashley Hoffman, and the ex-wife Swierz), as well as the video and
still photos which the jury itself viewed—and we have compared that evidence to
the weak, cumulative hearsay that Tarleton challenges. We cannot conclude that
the Rule 3.850 court’s decision—that there was not a reasonable probability that
the result would have been different if the hearsay evidence had been challenged
and excluded—was an unreasonable application of clearly established federal law.
We discussed above the testimony of the victim-teller Ms. Braho. The three
5
We follow the Supreme Court in Wood, 558 U.S. at 301, 130 S. Ct. at 849, and assume
arguendo but decline to decide, that “the factual determination at issue should be reviewed . . .
only under § 2254(d)(2) and not under § 2254(e)(1).” Because the Rule 3.850 judge’s
determination of the factual issue challenged by Tarleton “was not an unreasonable
determination of the facts in light of the evidence presented in the state court proceedings[,] [w]e
therefore do not need to decide whether that determination should be reviewed under the
arguably more deferential standard set out in § 2254(e)(1).” Id.
22
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 23 of 38
relatives who testified at the trial—Joyce Tarleton, Ashley Hoffman, and
Franchesca Swierz—provided strong evidence that Tarleton was the man in the
surveillance video and still photos derived therefrom. Joyce Tarleton, his
stepmother, had known Tarleton since childhood, and was “pretty sure” that
Tarleton was the man in the surveillance video and stills. She recognized the
briefcase he carried and the blue shirt he wore. Ashley Hoffman testified that she
recognized Tarleton as the perpetrator in the news coverage of the robbery. She
testified that she recognized Tarleton in the surveillance video, and she recognized
his smile, the briefcase, the trucker-style hat, and his shirt. Tarleton’s ex-wife,
Swierz, identified Tarleton as the perpetrator, testifying that the person in the
surveillance video looked like Tarleton, and told the detective that “it absolutely
was him.”
By contrast, the detective’s report of the hearsay declarants was equivocal
and not likely to have had a significant impact on the jury. Tarleton’s brother
James merely told the detective that the photo looked like Tarleton but he was not
sure. The report with respect to James’ wife was similar. Although April Hoffman
told the detective she recognized Tarleton, she said she did not want to be involved
and she provided no details or reasons that might make her testimony influential
with the jury. Unlike trial witnesses Joyce Tarleton and Ashley Hoffman, she
23
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 24 of 38
mentioned recognizing no details like the briefcase, the blue shirt, or the smile that
would tend to make her testimony persuasive to the jury. With respect to the
crimestopper’s tip, the jury likely surmised that came from one of the trial
witnesses, and it would not have had much impact on the jury. By contrast, strong
evidence was properly before the jury in the form of the three trial witnesses who
identified persuasive reasons why their recognition of Tarleton was sound and
whose association with Tarleton was extensive and intimate (at least with respect
to his stepmother, Joyce Tarleton, and ex-wife, Swierz). Significantly, there was
also the strong evidence of the surveillance video itself, as well as the still photos,
which the jury viewed. The jury could make its own identification, comparing the
photos and video to Tarleton. From the jury questions about the photos after
deliberations began, it is clear that the photos were viewed as significant evidence
by the jury.
In short, the hearsay testimony challenged by Tarleton was brief and
cumulative, and weak in comparison to the evidence properly submitted to the jury
from the trial witnesses and the surveillance video and stills. Especially in light of
our narrow standard of review pursuant to § 2254(d)(1), we cannot conclude that
the state court decision—that Tarleton has not shown there was a reasonable
probability of a different result if the hearsay evidence had been challenged and
24
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 25 of 38
excluded—was an unreasonable application of clearly established federal law. The
Rule 3.850 judge correctly identified the governing legal principle—Strickland v.
Washington—and her application of Strickland to the facts was not “so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at
103, 135 S. Ct. at 786-87.
B. Confrontation Clause
Tarleton argues that the detective’s hearsay testimony relating what April
Hoffman said violated the Confrontation Clause because the declarant’s statements
were testimonial statements made in anticipation of litigation because they were
made to law enforcement during an investigation.6 Further, the State did not
establish that the declarant was unavailable for testimony. Tarleton argues that the
district court erred as a matter of law in finding that the state courts’ denial of the
claim was not contrary to or an unreasonable application of Crawford.
6
We granted a certificate of appealability with respect to only one Confrontation Clause
claim—detective Venosh’s testimony that April Hoffman told him that the bank’s surveillance
photo looked like Tarleton but that she did not want to get involved.
25
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 26 of 38
The State replies that this issue was not exhausted and thus is procedurally
barred. We agree with the district court that Tarleton exhausted this claim. In
Taylor v. Secretary, Florida Department of Corrections, 760 F.3d 1284, 1295
(2014), we deemed a claim fairly presented when the petitioner stated he was
entitled to introduce testimony under the Sixth Amendment and twice cited to
Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973). Here, Tarleton
argued, in his initial brief on direct appeal from the state court’s judgment, that
admission of the detective’s testimony about April Hoffman violated the
Confrontation Clause, with a reference to Crawford. This is sufficient, under
Taylor, to have raised the claim with respect to April Hoffman’s statement.
However, the First District Court of Appeal rejected Tarleton’s direct appeal per
curiam (i.e., without opinion).
There is no indication that any state court addressed this issue and stated
reasons for rejecting it. “When a federal claim has been presented to a state court
and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Richter, 562 U.S. at 99, 131 S. Ct. at 784-
85. Only if there is reason to believe another explanation for the state court’s
decision is more likely can this presumption be overcome. Id. at 99-100, 131 S.
26
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 27 of 38
Ct. at 785. Tarleton argues the instruction in the recent Supreme Court case
Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188 (2018)—that we “look through” to
the last related case that provided a relevant rationale—means that because there is
no such relevant case, we cannot defer to a presumed state court decision.
However, the Court expressly rejected that argument in Wilson, distinguishing
Richter because in that case, “there was no lower court opinion to look to.” __
U.S. at __, 138 S. Ct. at 1195. As in Richter, in this case too, there was no lower
court decision to look to because there was no contemporaneous objection and thus
no ruling by the trial judge. Accordingly, we follow the instruction in Richter and
assume an on-the-merits ruling by the First District Court of Appeal. 7
Tarleton thus finds himself in the following situation. His Confrontation
Clause claim was rejected on the merits by the First District Court of Appeal, and
there has been no statement of reasons by any state court for rejecting the claim.
7
Following Richter, the district court presumed that the First District Court of Appeal
rejected Tarleton’s Confrontation Clause claim on the merits, holding that there was “an absence
of any indication or state law procedural principles to the contrary.” D.C. opinion, Docket 21, at
25-26. Tarleton does not challenge the district court’s holding that the state appellate court ruled
on the merits and not on the basis of a procedural default, and thus has waived any such
challenge. Of course, Tarleton would have no incentive to prefer procedural default to a ruling
on the merits because Tarleton could not satisfy the cause and prejudice requirement to
overcome the procedural bar which would have faced him in federal habeas court.
27
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 28 of 38
Under Richter, Tarleton’s burden is to demonstrate that there was no reasonable
basis for the decision of the First District Court of Appeal to deny his claim. See
Richter, 562 U.S. at 98, 131 S. Ct. at 784 (“Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden still must be met
by showing there was no reasonable basis for the state court to deny relief.”).
Tarleton cannot satisfy this burden because the First District Court of Appeal
could reasonably have concluded that the admission of the detective’s hearsay
testimony of what April Hoffman told him was harmless error. In evaluating
whether there was a reasonable basis for the state court decision, we apply the
standard enunciated in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710,
1722 (1993), which held that error is harmless unless it “had substantial and
injurious effect or influence in determining the jury’s verdict.”8 “Under this
standard, habeas petitioners may obtain plenary review of their constitutional
8
See Fry v. Pliler, 551 U.S. 112, 121-22, 127 S. Ct. 2321, 2328 (2007) (“We hold that in
§ 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-
court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht, supra,
whether or not the state appellate court recognized the error and reviewed it for harmlessness
under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman[ v. California],
386 U.S. 18, 87 S. Ct. 824 [(1967].”); Raheem v. GDCP Warden, 995 F.3d 895, 937 (11th Cir.
2021).
28
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 29 of 38
claims, but they are not entitled to habeas relief based on trial error unless they can
establish that it resulted in ‘actual prejudice.’” Id. This Tarleton cannot do.
As discussed above, the hearsay attributed by the detective to April Hoffman
was not only cumulative to, but was also much weaker than, the strong evidence
provided by the three trial witnesses and the photos and surveillance video that the
jurors themselves could compare to the defendant Tarleton sitting before them.
April’s brief comment not only expressed lack of interest, but also was
accompanied by no reasons or details that might have made her opinion influential
with the jury. By contrast, the testimony of the three trial witnesses was
accompanied by numerous details that would have made their identification of
Tarleton persuasive to the jury. Also, there is no indication that April Hoffman
had an extensive association with Tarleton as had his stepmother, Joyce Tarleton,
or an intimate association as had the ex-wife, Swierz. And it is hard to imagine
that April’s brief comment had much impact on the jury which had the surveillance
video and still photos to compare to Tarleton himself. It is not only probable that
the video and photos were the most powerful evidence before the jury, we actually
know from the jury’s questions that they were foremost in the minds of the jurors.
We cannot conclude that no “fair-minded jurists” sitting in the shoes of the
First District Court of Appeal on Tarleton’s direct appeal could have concluded
29
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 30 of 38
that the Confrontation Clause claim was harmless. Richter, 562 U.S. at 101, 131
S. Ct. at 786. Accordingly, we cannot conclude that Tarleton has met his burden
under Richter to show that “there was no reasonable basis for the state court to
deny relief.” Id. at 98, 131 S. Ct. at 784.
C. Cumulative Error
Tarleton argues that the cumulative effect of these incidents of ineffective
assistance of counsel and violation of the Confrontation Clause prejudiced him and
warrant vacating his conviction. The State argues that cumulative error is not a
cognizable claim in federal habeas petitions because the Supreme Court has not
held that distinct constitutional claims can be aggregated.
In this case, we need not reach the issue of whether cumulative error is
cognizable in habeas proceedings. We can assume arguendo, although we
expressly do not decide, that the prejudicial effect of Tarleton’s alleged errors can
be aggregated. Tarleton presented three hearsay ineffective assistance of counsel
incidents together with one Confrontation Clause argument that all had very weak
prejudicial effect on the jury. However, as discussed more fully above, we cannot
conclude that Tarleton can satisfy his burden of avoiding the preemptive effect of
the state court decisions and of establishing prejudice.
30
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 31 of 38
III. CONCLUSION
For the foregoing reasons, we reject Tarleton’s § 2254 petition. The
judgment of the district court is
AFFIRMED.
31
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 32 of 38
ROSENBAUM, Circuit Judge, concurring in part and dissenting in part:
Marvin Tarleton is spending 30 years in prison after a jury found he stole
$3,429 from a Bank of America branch. But the admissible evidence against him
was so underwhelming that the State apparently felt it had to rely on inadmissible
hearsay evidence from three witnesses it could have chosen to subpoena (but didn’t)
to convict him. And Tarleton’s lawyer did not object to a lick of it. In my view, this
ineffective performance and the resulting admission of the inadmissible hearsay
evidence seriously “undermine[s] confidence in the outcome,” Strickland v.
Washington, 466 U.S. 668, 694 (1984), of Tarleton’s trial, and the state court’s
conclusion to the contrary represents an unreasonable determination of facts. I
would therefore find prejudice and grant the habeas petition on Tarleton’s Strickland
claim. 1
I.
To prove ineffective assistance of counsel under Strickland, Tarleton must
show that (1) his counsel’s performance was deficient and (2) he was prejudiced as
a result. Strickland, 466 U.S. at 687. Here, everyone assumes that Tarleton’s
counsel performed deficiently; the sole issue is whether Tarleton was prejudiced.
1
I concur in the panel’s holding that Tarleton is not entitled to relief on his Confrontation
Clause and cumulative-error claims.
32
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 33 of 38
When we apply the proper standard of Antiterrorism and Effective Death
Penalty Act (“AEDPA”) deference here, counsel’s error prejudiced Tarleton. For
starters, there wasn’t much admissible evidence against Tarleton at trial: Though
the State collected DNA and a fingerprint from the scene, Tarleton was excluded as
a possible match from each bit of material tested. Though the State searched
Tarleton’s residence twice and the vehicle he drove once, it found no evidence at all
to connect Tarleton to the crime. Though three eyewitnesses saw the robbery occur,
two could not identify Tarleton at all as the robber, and a third (bank teller Elva
Braho) who selected Tarleton from a photo lineup based on his eyes admitted she
was “not able to positively identify anyone.” And though the robber stole $3,429
and the State did not recover any of that money, the State presented no evidence that
Tarleton ever spent a penny of it. To the contrary, Tarleton’s sister Angela testified
that, after the robbery, the power company turned off the electricity at Tarleton’s and
her residence for failure to pay the electrical bill.
In all, the only admissible evidence positively tying Tarleton to the robbery
was the photo identification three of Tarleton’s estranged relatives made of the
pictures below, taken from the surveillance footage of the robbery, which, along with
the stills were provided to the jury:
33
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 34 of 38
But at least one of these three estranged relatives—Joyce Tarleton, who was
Tarleton’s stepmother, did not much like Tarleton. In fact, she admitted that after
Tarleton’s father (her husband) died (more than two years before she originally
identified Tarleton as the robber and more than four years before she testified against
Tarleton), she did not want Tarleton in her house, and she told him to “stay away”
from her. A second of these identifying witnesses—Ashley Hoffman, Joyce
34
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 35 of 38
Tarleton’s granddaughter and Tarleton’s niece by marriage—also conceded that she
“did not have a close relationship” with Tarleton and described Tarleton as
“technically” her uncle. As for the third of these identifying witnesses—Franchesca
Swierz—she was Tarleton’s ex-wife, and she had not seen Tarleton for “almost a
decade” when she identified him from the surveillance photos.
And that’s it. That is the totality of the admissible evidence that the State
presented against Tarleton. True, this evidence would have been enough to sustain
a guilty verdict, had a jury reached that decision based on only this evidence. But
that’s not what happened. And a guilty verdict was nowhere near certain based on
this meager evidence alone. Contrary to the state trial court’s unreasonable
conclusion, this was no “near overwhelming evidence.” Rather, it left a lot of room
for reasonable doubt.
Even the State was apparently concerned with its admissible evidence because
it bolstered its case by eliciting from Detective Venosh inadmissible hearsay
evidence. Then in closing, the State relied heavily on those hearsay statements to
convince the jury to return a guilty verdict.
More specifically, Venosh testified that April Hoffman, another of Tarleton’s
stepnieces, identified the man in the surveillance photos as Tarleton, but she refused
to sign the photo and said she did not wish to be involved in the investigation.
35
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 36 of 38
Venosh also testified that James (Tarleton’s brother) and his wife both said that the
surveillance pictures “could be” Tarleton.
These hearsay identifications came in handy during the State’s closing, when
it argued that James Tarleton’s wife “said [the man in the surveillance photo] was
possibly . . . Tarleton[—]another family member who also provides identification of
this man. How about James Tarleton, his brother, stated that he looked like he could
be his brother. His whole family is identifying this man.” (emphasis added). And
just to be sure his reliance on the hearsay evidence hit its mark, the State prosecutor
continued, “The people who know him best are telling the police, are telling the
sheriff’s office and even taking the stand and telling y’all. They know who this man
is. They knew who that man is.”
The State even used the hearsay evidence to help respond directly to the
defense’s contention that the three estranged relatives who testified against Tarleton
had an ax to grind: the prosecutor remarked, “So keep in mind, members of the jury,
when the defense gets up here and says and argues to you that the only people that
are identifying . . . Tarleton are people that have something to gain[,] [w]ell, that is
36
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 37 of 38
not necessarily true when you take into consideration what Angela Tarleton,[ 2] a
defense witness, had to say[;] [w]hen you take into consideration what James and
[his wife] and April [Hoffman] had to say as well.”
These arguments were not incidental to the State’s closing arguments; they
were central ingredients to the theme of it—that Tarleton was identified from the
surveillance photos by “[h]is whole family.” The implication of this theme is clear:
even if the jurors thought the three estranged relatives who testified at trial might
have been biased, that didn’t matter because other family members sealed the deal.
The State’s emphasis of this inadmissible hearsay evidence from three different
witnesses in its closing arguments shows that even the State recognized the power
of that evidence. So in my view, a simple review of the trial transcript reveals that
counsel’s ineffective assistance in failing to object to the evidence and its use was
not harmless. And that’s enough to undermine confidence in the outcome here.
2
Tarleton called Angela Tarleton, his sister, as a witness in his case. She testified that
when she was shown the surveillance photo of Tarleton, she told the officer that “it favored him,
but it did not look like him to me.” To remove any question, she also testified that she was “100
percent” sure it was not Tarleton.
37
USCA11 Case: 18-10621 Date Filed: 07/23/2021 Page: 38 of 38
But for extra measure, I note that, during its deliberations, the jury asked when
a particular mugshot of Tarleton was taken, and it requested a sequential order of all
photos of Tarleton. These questions, which suggest that the jury had some trouble
identifying Tarleton as the robber, further emphasize the importance of the hearsay
evidence to the outcome of the trial here.
For all these reasons, I think the state court made an unreasonable
determination of the facts when it found that the State had “near overwhelming
evidence”—even absent the hearsay evidence. Because the state court’s decision is
unreasonable under AEDPA, I would review Tarleton’s Strickland claim de novo.
Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1280 (11th Cir. 2016)
(explaining that once we determine a state court decision is “unreasonable under §
2254(d), [then] we must review the merits of [a] claim de novo”). Under de novo
review, I would find that counsel’s errors here seriously undermine confidence in
the outcome, and I would grant Tarleton’s habeas petition.
II.
I have substantial concerns about the outcome of Tarleton’s trial, and I would
grant the habeas petition. For these reasons, I respectfully dissent.
38