Kim Jackson v. State of Florida & Kim Jackson v. Ricky D. Dixon, etc.

Supreme Court of Florida
____________

No. SC19-1624
____________

KIM JACKSON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC21-502
____________

KIM JACKSON,
Petitioner,

vs.

RICKY D. DIXON, etc.,
Respondent.

June 30, 2022

PER CURIAM.

Kim Jackson appeals the circuit court’s order denying

numerous guilt-phase claims raised in his postconviction motion

filed under Florida Rule of Criminal Procedure 3.851 and petitions
this Court for a writ of habeas corpus. 1 For the reasons that follow,

we affirm the circuit court’s order and deny the habeas petition.

I. BACKGROUND

Debra Pearce was brutally stabbed to death at her home in

Jacksonville. Responding law enforcement found Pearce’s bloody

and bruised body face-down in the kitchen.

Michael Knox, a crime scene investigator, observed that Pearce

had been stabbed multiple times in the neck and chest. One stab

wound was partially covered by a five-inch-long knife that remained

plunged in Pearce’s chest. Upon further examination, Knox

discovered a detached hair on the back of Pearce’s right calf and a

small folding pocketknife under her body. Both items were later

submitted to the Florida Department of Law Enforcement (FDLE) for

DNA testing. Additionally, Knox noticed a bloody fingerprint on the

kitchen sink, which was located right above Pearce’s body. Knox

processed and photographed the fingerprint, and law enforcement

removed the sink from the home.

1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const;
see also Smith v. State, 330 So. 3d 867, 875 n.2 (Fla. 2021)
(determining that Court has jurisdiction despite circuit court
ordering a new penalty phase in postconviction proceeding).

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 Law enforcement also sought to find witnesses, but none had

observed the crime or the events surrounding it. Consequently, the

investigation, led by Detective Craig Waldrup, focused on the

physical evidence.

Michelle Royal, a fingerprint examiner with the Jacksonville

Sheriff’s Office, analyzed the sink fingerprint and determined that it

was not of value, meaning that it would not be useful in identifying

a suspect. Detective Waldrup sought additional analysis from

another sheriff’s office. However, that further analysis did not

result in any leads.

Meanwhile, almost two years after the murder, Leigh Clark—a

DNA analyst for the FDLE—tested the hair found on Pearce’s leg.

She extracted a full DNA profile from it and later uploaded the

profile to the CODIS2 database. The submitted profile matched the

known DNA profile of Jackson, who was then serving a lengthy

prison sentence in Georgia.

2. CODIS stands for “Combined DNA Index System[,] [which]
connects DNA laboratories at the local, state, and national level.”
Maryland v. King, 569 U.S. 435, 444 (2013).

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 Having learned of the DNA match, Detective Waldrup then

asked the FBI to compare Jackson’s known prints with the sink

fingerprint. An FBI analyst concluded that the fingerprint matched

Jackson’s right ring finger.

Based on these two leads, Detective Waldrup interviewed

Jackson at the Georgia prison where he was housed. During the

interview, Detective Waldrup asked Jackson if he knew Pearce or

had ever been to her house. In conjunction with these questions,

Detective Waldrup showed him pictures of Pearce, her home, and

the surrounding area. Jackson denied ever knowing or seeing

Pearce. Nor, according to him, had he ever been to the home.

Jackson would later concede that these statements were false.

Ultimately, almost four years after the murder, the State

charged Jackson with first-degree murder in connection with

Pearce’s death, later filing a notice of intent to seek the death

penalty. Though Jackson challenged the lawfulness of the death

penalty, he did not seek dismissal of the first-degree-murder

charge.

At Jackson’s trial, the State called a number of witnesses,

including Detective Waldrup, Knox, Clark, and two fingerprint

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experts. Clark testified that the detached hair found on Pearce’s leg

was a full marker match with Jackson’s known DNA. She further

opined that the hair was not naturally shed, briefly alluding to

“several published papers in the Journal of Forensic Sciences.” She

also gave testimony on the pocketknife, indicating that she obtained

a mixed profile from blood on it. Pearce was a contributor, but

Jackson was not. DNA samples were also obtained from inside

Pearce’s vehicle, specifically the steering wheel cover. As for a

mixed sample obtained from that cover, Clark indicated that

Jackson—as a male—could not be excluded as a minor contributor.

The State’s two fingerprint experts offered opinion testimony

on the sink fingerprint, both stating that it matched a known print

from Jackson’s right ring finger. Moreover, both agreed that

Jackson’s right ring finger was coated in something wet at the time

he created the print on the sink. When asked on cross-examination

whether blood could preserve a preexisting print, one of the experts

opined that she had not observed such a situation “in her training

and experience.”

After the State rested, Jackson requested a judgment of

acquittal. He argued that the State presented a wholly

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circumstantial case, which failed to rebut his reasonable hypothesis

of innocence—namely that he was not present for the murder and

that his hair had been become detached while he was inside

Pearce’s home prior to the murder and later came to rest on her leg.

Rejecting that argument, “[t]he trial court ruled the evidence, when

viewed in the light most favorable to the State, negated all

reasonable hypotheses of innocence, and denied the motion.”

Jackson v. State, 180 So. 3d 938, 950 (Fla. 2015). In particular, the

court relied on the evidence of the bloody fingerprint as establishing

Jackson’s presence in the home for the murder.

Jackson then presented his case, which primarily consisted of

evidence in support of an alibi defense. Jackson and four other

witnesses—his father, his wife (Deborah Jackson), his sister (Penny

Williams), and a friend (Rose Franklin)—testified that Jackson had

been in Georgia celebrating his birthday during the period of time

encompassing the murder. In addition, Jackson sought to explain

the incriminating answers given to Detective Waldrup during the

prison interview. Jackson also called as a witness Michelle Royal,

the Jacksonville Sheriff’s Office analyst who determined the sink

fingerprint to be of no value. On cross-examination, she testified

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that “even prints of no value can be used to exclude suspects, . . .

Jackson could not be excluded as the individual who left the sink

fingerprint, and . . . similarities existed between the sink fingerprint

and the known print of Jackson.” Id. at 944.

Ultimately, the jury found Jackson guilty of first-degree

murder, and, following the penalty phase, it recommended a

sentence of death by a vote of 8 to 4. Accepting that

recommendation, the trial court sentenced Jackson to death.

Jackson appealed, raising five issues for our review.3

Rejecting his arguments, we affirmed on all issues. Id. at 949-64.

Jackson then filed a petition for writ of certiorari in the United

States Supreme Court, which was denied. Jackson v. Florida, 578

U.S. 979 (2016).

3. Jackson argued that (1) the State presented insufficient
evidence to establish that (a) he killed Pearce, (b) the murder was
premeditated, or (c) he was an active participant in the murder; (2)
the prosecutor made improper comments during closing argument
rising to the level of fundamental error; (3) the trial court erred in
finding that the heinous, atrocious, or cruel aggravator had been
proven; (4) his death sentence was disproportionate; and (5) Ring v.
Arizona, 536 U.S. 584 (2002), rendered Florida’s death-penalty
statute constitutionally infirm.

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 Less than a year later, Jackson filed a postconviction motion

in circuit court, which, as later amended, raised over twenty claims

for relief. The circuit court ruled that Jackson was entitled to a new

penalty phase based on Hurst v. State, 4 granted an evidentiary

hearing on six guilt-phase claims, 5 and denied or reserved ruling on

the balance of the claims. After the hearing, the court entered an

order denying the pending claims, and, consistent with its prior

ruling, vacated Jackson’s death sentence under Hurst. Jackson

now appeals and seeks a writ of habeas corpus.

4. Hurst v. State, 202 So. 3d 40 (Fla. 2016).

5. Those claims included the following: trial counsel was
ineffective in investigating and challenging the State’s DNA evidence
(claim seven); trial counsel was ineffective in investigating the
fingerprint evidence (claim eight); trial counsel was ineffective for
failing to adequately prepare Jackson to testify at trial (claim ten);
trial counsel was ineffective for failing to file a pretrial motion to
dismiss based on the preindictment and prearrest delays (claim
eleven); trial counsel was ineffective for failing to properly and
timely investigate the alibi defense (claim twelve); trial counsel was
ineffective for failing to properly prepare Deborah Jackson
(Jackson’s wife) for her trial testimony (subclaim of claim twelve).

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 II. ANALYSIS

A. Postconviction Appeal

Jackson argues that the circuit court erred in denying his

claims of ineffective assistance of trial counsel. We disagree and

explain below why his arguments lack merit.

Ineffectiveness claims are governed by the standard set forth

by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). See Nelson v. State, 73 So. 3d 77, 84 (Fla. 2011). We have

recently described that standard as follows:

Under Strickland v. Washington, a defendant alleging that
he received ineffective assistance of counsel has the
burden to demonstrate that counsel’s performance fell
below an objective standard of reasonableness. In order
to prevail on a claim of ineffective assistance of counsel, a
defendant must show both that trial counsel’s
performance was deficient and that the deficient
performance prejudiced the defendant. Strickland, 466
U.S. at 687. “Both prongs of the Strickland test present
mixed questions of law and fact.” Johnson v. State, 135
So. 3d 1002, 1013 (Fla. 2014). “In reviewing a trial
court’s ruling after an evidentiary hearing on an
ineffective assistance of counsel claim, this Court defers
to the factual findings of the trial court to the extent that
they are supported by competent, substantial evidence,
but reviews de novo the application of the law to those
facts.” Id. (quoting Mungin v. State, 932 So. 2d 986, 998
(Fla. 2006)).

As to the first prong, the defendant must establish
“that counsel made errors so serious that counsel was

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 not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U.S. at 687.
A court reviewing the second prong must determine
whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. “[T]here is no
reason for a court deciding an ineffective assistance
claim . . . to address both components of the inquiry if
the defendant makes an insufficient showing on one.”
Id. at 697.

Smith, 330 So. 3d at 875 (some citations omitted).

We now consider each ineffectiveness claim as ruled on by the

circuit court.

1. Fingerprint Evidence

Jackson argues that the circuit court erred in denying his

claim that counsel was ineffective in challenging the State’s

fingerprint evidence. According to him, counsel was ineffective for

presenting inconsistent arguments to the jury as to the fingerprint

evidence and for not objecting to certain testimony from the State’s

fingerprint experts and to the prosecutor’s improper closing

argument denigrating his fingerprint expert, Michelle Royal. His

arguments lack merit.

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 As for the inconsistent-theories argument, the State properly

observes that Jackson failed to raise it in his postconviction motion.

Accordingly, he has failed to timely raise this specific argument,

and it has been waived. State v. Poole, 297 So. 3d 487, 494 (Fla.

2020) (failure to timely raise specific argument results in waiver).

However, even had this argument been properly preserved, it would

not support relief. Trial counsel conceded during opening

statement that the sink fingerprint was Jackson’s but later called

Royal who indicated that the print had no value. Though the

concession might be at odds to some extent with portions of Royal’s

testimony, Jackson has cited no case law which holds counsel

deficient merely for presenting alternative theories to the jury. And

we decline to so hold here.

Jackson’s failure-to-make-objection argument fares no better.

During their testimony, the State’s fingerprint experts made various

references to nontestifying examiners to which trial counsel did not

object. According to Jackson, counsel should have objected on the

ground that such testimony was irrelevant, improperly bolstered in-

court testimony, and violated his confrontation rights under the

Sixth Amendment. However, Jackson’s argument is undeveloped

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and conclusory. See Sheppard v. State, 47 Fla. L. Weekly S65, S70-

S71 (Fla. Mar. 10, 2022) (affirming on subclaim where appellant

presented vague and conclusory argument (citing Hannon v. State,

941 So. 2d 1109, 1139 (Fla. 2006))); Rivera v. State, 260 So. 3d 920,

929 (Fla. 2018). Thus, Jackson has not demonstrated entitlement

to relief based on this argument.

As for the prosecutor’s criticism of Royal—including referring

to her as “old school”—we conclude that Jackson has failed to

establish deficiency. Specifically, he has not demonstrated that

counsel lacked a reasonable strategic reason for not objecting.

Notably, as part of the comments on Royal, the prosecutor praised

Royal in certain respects. Thus, viewing the comments in their

entirety, counsel may have determined that the negative aspects

were not so unfavorable as to warrant an objection. Sheppard, 47

Fla. L. Weekly at S68 (recognizing that defendant bears burden to

“overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial

strategy’ ” (quoting Strickland, 466 U.S. at 689)).

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 In sum, Jackson has not demonstrated entitlement to relief as

to this claim. 6

2. Preparation to Testify

Jackson argues that the circuit court erred in denying his

claim that counsel was ineffective for failing to properly prepare him

to testify at trial. According to Jackson, his attorneys gave him

conflicting advice on whether he should or should not testify, failed

to warn him about the hazard of appearing selfish and callous

toward Pearce, and miscalculated the number of felonies for which

he had been convicted. Jackson is not entitled to relief as to this

claim either.

For starters, Jackson has failed to preserve his conflicting-

advice argument as he did not seek relief or assert ineffectiveness

on this basis in his motion below. See Poole, 297 So. 3d at 494.

6. Jackson appears to suggest that defense counsel was
deficient for not presenting additional evidence undermining the
State’s proof that he was the source of the sink fingerprint. To the
extent he is making this argument, it has no merit. At the hearing,
Jackson presented no evidence undermining that proof.
Accordingly, he has failed to meet his evidentiary burden under
Strickland. See Lynch v. State, 2 So. 3d 47, 70 (Fla. 2008) (“[T]he
burden is on the defendant to affirmatively satisfy both prongs of
the Strickland framework.”).

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But, even if the issue had been preserved, it would not support

relief. Jackson has supplied no authority requiring all attorneys on

a defense team to be in agreement on the defendant’s decision to

testify. See Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997)

(“[T]he ultimate decision regarding whether to testify belongs to the

defendant.”). Here, counsel offered sensible views on the benefits

and drawbacks of testifying—giving Jackson the benefit of both

perspectives but leaving the ultimate decision to him. See Brant v.

State, 197 So. 3d 1051, 1076 (Fla. 2016) (“Trial counsel did not

perform deficiently by explaining all of Brant’s options to him,

including the positives and the negatives of those options, and then

allowing Brant to make the decision on his own.”). We find no

deficient performance in so doing.

Jackson’s failure-to-advise argument fares no better.

Specifically, he argues that counsel failed to instruct him to avoid

looking selfish and insensitive before the jury. However, he

identifies no case finding counsel deficient for failing to offer advice

on something that is quite obvious, i.e., that it may be beneficial to

present oneself positively to the jury. Perhaps more importantly,

Jackson improperly discounts the advice counsel actually gave to

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him. Specifically, counsel offered advice on the following topics: (1)

the testimony he should give, (2) subjects to be avoided—like past

crimes, (3) “the specifics of defense[s],” and (4) the need to be

honest and answer all questions unless an objection has been

sustained. Given the facts of this case, we find that counsel’s

advice meets objective standards of reasonable performance. See

Taylor v. State, 3 So. 3d 986, 996-97 (Fla. 2009).

Jackson’s wrong-number-of-convictions argument also fails.

At trial, Jackson testified to having been convicted of five felonies.

He correctly notes—consistent with the State’s concession just prior

to the penalty phase—that the actual number of felonies was four.

However, Strickland does not provide relief for all errors or

omissions. See Patrick v. State, 302 So. 3d 734, 740 (Fla. 2020).

Rather, a defendant must demonstrate a “serious” error or

omission, meaning an error showing that the defendant’s counsel

was not functioning as the counsel guaranteed by the Sixth

Amendment. Id. Overcalculating—by one—the number of felonies

was an error. But it was not a serious one in light of the fact that

Jackson had four other felony convictions. The difference for

impeachment purposes of five felonies versus four is not significant.

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What is more, Jackson’s credibility had already been sharply

undermined by his dishonesty with Detective Waldrup during the

interview. Thus, based on these specific facts, we conclude that

this miscalculation was not “so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687.

Finally, to the extent Jackson is arguing that one of his

attorneys persuaded him to testify against his better judgment, that

argument is inconsistent with the record. At trial, during a lengthy

colloquy, Jackson affirmed to the court that he had sufficient time

to speak with his attorneys on the issue of testifying. He indicated

that he wanted to testify, and he made that decision freely,

voluntarily, and without coercion. See Reynolds v. State, 99 So. 3d

459, 485 (Fla. 2012) (relying on transcript to reject claim that court

failed to adequately question defendant on his decision to testify);

Johnson v. State, 22 So. 3d 840, 844 (Fla. 1st DCA 2009) (finding

record refuted claim that counsel forced defendant to accept plea

deal).

Accordingly, Jackson has not shown error in the circuit

court’s denial of this claim.

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 3. Alibi

Jackson also challenges the circuit court’s denial of his claim

that counsel was deficient for failing to properly investigate and

present his alibi defense. We affirm that ruling.

Jackson first contends that counsel was ineffective for failing

to bring out additional facts from Penny Williams. At trial, Penny

Williams gave testimony in support of Jackson’s alibi defense, i.e.,

that Jackson was celebrating his birthday in Georgia with his family

when the murder occurred. Later, at the evidentiary hearing,

Williams revealed that she had just lost her job and that the loss of

employment solidified in her mind that this birthday visit was in

2004—the same year in which Pearce was murdered. According to

Jackson, failing to bring out that evidence constitutes deficient

performance. This subclaim lacks merit for two reasons.

First, Jackson failed to timely raise this argument below.

Accordingly, this specific argument has not been preserved for

appeal. See Poole, 297 So. 3d at 494. Second, the argument fails

on the merits. The State properly observes that Penny Williams did

provide a plausible real-world reason for recalling Jackson’s trip to

Georgia and the record supports the State’s point. When asked

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during trial if Williams was certain she saw Jackson that weekend

in 2004, she stated, “Yes, cause I seen his -- he brought his

daughter to see me. That was the only time I could see her . . . .”

In light of this evidence presented at trial, Jackson cannot show

that defense counsel was deficient for refraining from introducing

additional, comparable evidence. See Wheeler v. State, 124 So. 3d

865, 881 (Fla. 2013).

Jackson further claims that counsel was ineffective for failing

to bring out the fact that his birthday in 2004 was his last one

before the Georgia incarceration. This fact, according to him, would

have further bolstered his alibi defense.

At trial, the alibi witnesses avoided this topic, doing so at the

urging of counsel. Later, at the evidentiary hearing, counsel

provided a strategic reason for deciding to avoid the topic. Defense

counsel testified that he did not want to highlight the fact that

Jackson was serving a lengthy sentence for a serious crime. We

agree with the circuit court that this strategic decision was

reasonable under the circumstances. Of note, Jackson committed

this serious crime around the same time as the murders. We

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further stress that avoiding calling attention to his incarceration did

not preclude the presentation of a coherent alibi defense.

Finally, Jackson contends that counsel’s 17-month delay in

investigating the alibi defense was patently unreasonable. That

unreasonable delay, he says, resulted in the loss of evidence

exonerating him. However, as the circuit court properly noted,

Jackson only speculates as to what evidence might have been lost

as a result of the delay. Thus, Jackson has failed to carry his

evidentiary burden on this point and the circuit court correctly

rejected this claim. See Lynch, 2 So. 3d at 70.

4. Deborah Jackson

In addition, Jackson argues that the circuit court erred in

denying his claim that counsel was deficient for failing to properly

prepare Deborah Jackson to testify at trial and for failing to bring

out testimony that would have ameliorated the effect of

impeachment evidence. We disagree.

At the evidentiary hearing, Deborah Jackson testified that

counsel spent only 15 minutes with her in preparation for her trial

testimony. In Jackson’s view, that amount of time was simply too

short to meaningfully prepare her. However, Jackson has

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marshalled no case showing that 15 minutes of trial preparation

necessarily falls below objective standards of reasonable

performance in all circumstances. And, based on our review of the

record, we conclude that Jackson has not demonstrated that the

advice given was unreasonable under Strickland. For one thing,

Deborah Jackson’s trial testimony involved telling the jury a

straightforward account as to Jackson’s whereabouts during the

relevant time frame. For another, Jackson does not identify what

additional testimony she could have given if counsel had simply

spent more time with her or given her more thorough advice.

Jackson also cannot demonstrate error in the court’s rejection

of his subclaim pertaining to counsel’s not bringing out

ameliorating circumstances surrounding Deborah Jackson’s bad-

check conviction. That conviction was used to impeach her during

trial. At the evidentiary hearing, Deborah Jackson testified that the

conviction resulted from conduct occurring over 15 years before the

trial. She also indicated that she wrote the bad check during a

difficult time in her life and did so without any fraudulent intent.

We agree with the circuit court that Jackson failed to show

deficient performance or prejudice. Though Jackson is likely

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correct that defense counsel could have brought out some

circumstances that he deems ameliorating, the State properly notes

that it would have been able on recross-examination to emphasize

the elements of the crime—including the mens rea of “intentional

dishonesty.” Cf. Wilcox v. State, 143 So. 3d 359, 373 (Fla. 2014)

(noting that prosecutor may refute “false impression” witness gives

about conviction (citing Fotopoulos v. State, 608 So. 2d 784, 791

(Fla.1992))); Rogers v. State, 964 So. 2d 221, 223 (Fla. 4th DCA

2007) (discussing circumstances when prosecutor may bring out

details about crime). Thus, if counsel had done what Jackson

claims should have been done, the jury would likely have heard not

only ameliorating circumstances but also additional evidence

undermining her credibility. In light of the strong possibility that

the State would have brought out additional evidence damaging her

credibility, Jackson cannot show that “no competent counsel”

would have refrained from eliciting the ameliorating evidence under

the circumstances of this case. See Hammond v. Hall, 586 F.3d

1289, 1324 (11th Cir. 2009).

Thus, Jackson is not entitled to relief as to this claim.

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 5. Motion to Dismiss Charges

Jackson argues that the circuit court erred in denying his

claim that trial counsel was deficient for failing to file a motion to

dismiss the murder charge on the basis of prosecutorial delay. In

denying this claim, the circuit court ruled that a motion to dismiss

for pretrial delay would have been meritless. We agree that Jackson

is not entitled to relief. In so deciding, we reconsider our case law

on the due process standard for preindictment delay.

In Rogers v. State, 511 So. 2d 526, 531 (Fla. 1987), we

adopted, without significant discussion, a balancing test to

determine if preindictment delay violated due process. That test

traced back to the Fifth Circuit’s decision in United States v.

Townley, 665 F.2d 579 (5th Cir.1982)). We described the Townley

test as follows:

When a defendant asserts a due process violation based
on preindictment delay, he bears the initial burden of
showing actual prejudice. . . . If the defendant meets this
initial burden, the court then must balance the
demonstrable reasons for delay against the gravity of the
particular prejudice on a case-by-case basis. The
outcome turns on whether the delay violates the
fundamental conception of justice, decency[,] and fair
play embodied in the Bill of Rights and fourteenth
amendment.

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Rogers, 511 So. 2d at 531 (citing Townley, 665 F.2d at 581-82).

Since we decided Rogers, the Fifth Circuit has receded from

the Townley balancing test. United States v. Crouch, 84 F.3d 1497

(5th Cir. 1996). In doing so, the Fifth Circuit cogently explained the

flaws in the Townley balancing test, reasoning:

The Townley test purports to weigh or balance the
extent or degree of the actual prejudice against the extent
to which the government’s “good faith reasons” for the
delay deviate from what the court believes to be
appropriate. However, what this test seeks to do is to
compare the incomparable. The items to be placed on
either side of the balance (imprecise in themselves) are
wholly different from each other and have no possible
common denominator that would allow determination of
which “weighs” the most. Not only is there no scale or
conversion table to tell us whether eighty percent of
minimally adequate prosecutorial and investigative
staffing is outweighed by a low-medium amount of actual
prejudice, there are no recognized general standards or
principles to aid us in making that determination and
virtually no body of precedent or historic practice to look
to for guidance. Inevitably, then, a “length of the
Chancellor’s foot” sort of resolution will ensue and judges
will necessarily define due process in each such weighing
by their own “ ‘personal and private notions’ of fairness,”
contrary to the admonition of [United States v. Lovasco,
431 U.S. 783 (1977)].

Apart from the above difficulty, grounding a due
process violation on the basis of good faith but
inadequate, ineffective, or insufficient governmental
personnel or management leading to preindictment delay
runs counter to two basic constitutional principles. In
the first place, “[h]istorically, this guarantee of due

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 process has been applied to deliberate decisions of
government officials to deprive a person of life, liberty, or
property,” Daniels v. Williams, 474 U.S. 327, 331 (1986),
and hence “the Due Process Clause . . . is not implicated
by the lack of due care of an official causing unintended
injury to life, liberty or property.” Davidson v. Cannon,
474 U.S. 344, 347 (1986). Contrary to these principles,
however, the Townley test would find a due process
violation where the government acted in good faith and
did not deliberately seek to prejudice the party ultimately
accused.

Finally, serious separation of powers concerns are
implicated. Here, for example, the panel concluded that
the reasons for the delay—“lack of manpower and the low
priority which this investigation was assigned”—were
“insufficient to outweigh the actual prejudice to Crouch
and Frye.” [United States v. Crouch, 51 F.3d 480, 483
(5th Cir. 1995) (vacated panel decision)]. Finding these
reasons “insufficient” is in substance determining that
greater manpower should generally have been allocated
to investigation and prosecution in that jurisdiction, and
that a higher priority should have been assigned to this
particular investigation. Yet those decisions are ones
essentially committed to the legislative and executive
branches, and the case for judicial second guessing is
particularly weak where it is directed at preindictment
conduct and is supported not by any specific
constitutional guaranty or by any long-established
tradition of judicial oversight, but only by the general
contours of the due process clause.

Crouch, 84 F.3d at 1512-13 (footnotes omitted) (some citations

omitted).

For additional support, the Fifth Circuit looked to the United

States Supreme Court’s decision in Arizona v. Youngblood, 488 U.S.

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51, 58 (1988) (holding in related context of destruction of evidence

that due process is not violated unless loss of evidence resulted

from bad faith on part of police). Crouch, 84 F.3d at 1511, 1513

n.17. The Fifth Circuit further observed that its disapproval of

Townley was consistent with the majority rule in the federal circuit

courts. Id. at 1511.

Based on these persuasive justifications, we conclude that the

Rogers balancing test is clearly erroneous. Having so concluded, we

now consider whether there is any reason for us not to recede from

it. See Poole, 297 So. 3d at 507 (providing stare decisis framework).7

Jackson has not made that showing. He does not claim to

have relied on the Rogers balancing test at all. See id. (“The critical

consideration ordinarily will be reliance.”); cf. State v. Maisonet-

Maldonado, 308 So. 3d 63, 69-70 (Fla. 2020) (noting that defendant

did not claim to have relied on rule of criminal liability from which

Court was receding). Instead, Jackson claims that the Rogers

balancing test has been workable for decades. Even if that were so,

7. We summarily reject Jackson’s argument that the Poole
stare decisis framework does not apply.

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we conclude that this reason alone is insufficient for retaining the

clearly erroneous balancing test.

Thus, based on the analysis above, we recede from the Rogers

balancing test. We now align ourselves with the majority of federal

circuit courts and hold that a due process claim for preindictment

delay requires a showing of substantial prejudice to the defendant

and bad faith on the part of the State. E.g., United States v. Stokes,

124 F.3d 39, 47 (1st Cir. 1997); United States v. Stierwalt, 16 F.3d

282, 285 (8th Cir. 1994); United States v. Foxman, 87 F.3d 1220,

1223 (11th Cir. 1996).

Application of this standard here supports the circuit court’s

denial of Jackson’s claim. There is simply no evidence in the record

that the length of time from the murder to the indictment was the

product of bad faith on the part of the State. And Jackson does not

claim otherwise. Accordingly, without evidence of bad faith,

Jackson cannot establish a due process violation for preindictment

delay; and, as a consequence, he cannot establish the prejudice

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necessary to succeed on an ineffectiveness claim. See Lockhart v.

Fretwell, 506 U.S. 364, 369-72 (1993).8

6. DNA Evidence

Jackson also argues that he is entitled to a new trial because his

counsel was deficient in multiple respects in investigating and

challenging the State’s DNA evidence. He is wrong.

At trial, Clark testified that the DNA profile developed from the

detached hair on Pearce’s leg was a full marker match to Jackson’s

known DNA, that the hair had not been naturally shed based on the

fact that she was able to develop a full profile from it, and that

Jackson could not be excluded as a minor donor to a mixed profile

recovered from the steering wheel cover in Pearce’s van.

Later, at the evidentiary hearing, Jackson presented the

testimony of two DNA experts to demonstrate that trial counsel was

ineffective in challenging Clark’s trial testimony. Both experts

testified that Clark did not fully comply with all FDLE protocols as

8. We reject Jackson’s assertion that we must remand to the
circuit court so that he has an opportunity to develop evidence
pertaining to the bad-faith requirement. Even under the former
standard in Rogers, Jackson had reason to introduce evidence of
bad faith, but he failed to do so.

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to certain samples. 9 One expert asserted that Jackson should have

been excluded as a possible source of the DNA in the van. That

expert also opined that Clark was wrong to say that a full DNA

profile could not be developed from a naturally shed hair. That

expert also posited several theories as to how the detached hair

could have innocently come to rest on Pearce’s leg after she was

killed.

The circuit court denied Jackson’s DNA-based claim on lack-

of-prejudice grounds. We agree that Jackson cannot demonstrate

prejudice and do not address the deficiency prong except to say that

Jackson failed to prove that counsel was deficient for not objecting

to Clark’s reference to the published papers and for not presenting

expert testimony on possible theories of hair transference. 10

9. Those samples did not include the DNA recovered from the
detached hair.

10. Clark’s reference to the published papers was brief and
not particularly prejudicial. See Hubbard v. Haley, 317 F.3d 1245,
1259 (11th Cir. 2003) (“[D]efense counsel, in defending their client’s
interests, need not urge every conceivable objection the law would
provide.”). As for the additional theories of hair transfer, we find
that the theories advanced at the evidentiary hearing were not
beyond the ordinary understanding of jurors. Thus, no expert was
needed to convey them to the jury. See Mitchell v. State, 965 So. 2d
246, 251 (Fla. 4th DCA 2007) (“Expert testimony should be

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 Jackson’s postconviction experts did not undermine Clark’s

primary conclusions. Those conclusions were that the detached

hair on the back of Pearce’s leg was Jackson’s and that the hair was

not naturally shed. At the evidentiary hearing, both of Jackson’s

experts essentially conceded the accuracy of the first conclusion.

And neither expert provided any testimony that the amount of DNA

extracted from the hair at issue could come from a naturally shed

hair.

Additionally, Jackson’s expert testimony—that he should be

excluded as a minor donor to the mixed sample in the van—does

not help him. Of note, the steering wheel DNA evidence was not a

key piece of evidence for the State. Indeed, the jury simply heard

that as a male, Jackson could not be excluded as a possible

contributor to the steering wheel sample. The more damaging

aspect of the van-related evidence was its location. Several weeks

after the murder, police found the van within a mile and a half of

Jackson’s residence. And, even if Jackson should have been

excluded where the facts testified to are of such a nature as not to
require any special knowledge or experience in order for the jury to
form conclusions from the facts.”).

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excluded as a contributor to the steering wheel DNA, that would not

undermine Clark’s two primary conclusions as to the detached hair.

Finally, the hair DNA evidence was not the only proof of

Jackson’s guilt. Jackson left a bloody fingerprint on the kitchen

sink. According to the trial evidence, the nature of the print

demonstrates that Jackson had blood on his finger when he

touched the sink. That evidence establishes Jackson’s presence in

Pearce’s home at the time of the murder. Additionally, during his

prison interview with Detective Waldrup, Jackson lied about not

knowing the victim and falsely indicated that he had never been in

her home. That constitutes evidence of a guilty mind. See

Hayward v. State, 24 So. 3d 17, 39 (Fla. 2009) (“Evidence of

conduct or speech of the accused which demonstrates a

consciousness of guilt is relevant since it supplies the basis for an

inference that the accused is guilty of the offense.”); United States v.

Holbert, 578 F.2d 128, 129 (5th Cir. 1978) (“[F]alse exculpatory

statements may be used . . . as substantive evidence tending to

prove guilt.”). And, as noted above, Pearce’s vehicle was found near

Jackson’s residence several weeks after the murder.

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 In light of the hair DNA evidence (which Jackson has not

undermined) and the existence of other substantial evidence

connecting Jackson to the crime, we hold that Jackson failed to

demonstrate prejudice. Accordingly, the circuit court properly

denied this claim. See Deparvine v. State, 146 So. 3d 1071, 1102-

03 (Fla. 2014) (resolving Strickland issue on lack-of-prejudice

grounds without analyzing performance prong).

7. Cumulative Prejudice

Finally, Jackson argues that the circuit court erred in denying

his claim that the numerous alleged deficiencies of counsel

warranted a new guilt phase. Where multiple instances of deficient

performance are proven or assumed, we “consider the impact of

the[] errors cumulatively to determine whether [the defendant] has

established prejudice.” Brown v. State, 304 So. 3d 243, 258 (Fla.

2020) (second alteration in original) (quoting Sparre v. State, 289

So. 3d 839, 847 (Fla. 2019)). We rejected Jackson’s arguments of

deficient performance as to all but two claims. For those two

claims, we assumed deficient performance but ultimately found no

prejudice. Even considering the combined effect of the assumed

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deficient performance, we find that Jackson cannot establish

prejudice. Accordingly, the circuit court properly denied this claim.

B. Habeas Petition

In his habeas petition, Jackson contends that appellate

counsel rendered deficient performance on direct appeal in failing to

argue all of the instances of improper (but unobjected-to)

prosecutorial comments. 11 Jackson is not entitled to habeas relief.

“In general, claims of ineffective assistance of appellate

counsel are properly presented in a petition for writ of habeas

corpus[.]” Brown, 304 So. 3d at 278 (citing Baker v. State, 214 So.

3d 530, 536 (Fla. 2017); Wickham v. State, 124 So. 3d 841, 863

(Fla. 2013)). “The standard for a claim of ineffective assistance of

appellate counsel mirrors the Strickland standard for ineffective

assistance of trial counsel: the petitioner must demonstrate

deficient performance and resulting prejudice.” Hilton v. State, 326

So. 3d 640, 652 (Fla. 2021) (citing Frances v. State, 143 So. 3d 340,

358 (Fla. 2014)). Therefore, the petitioner must

11. As noted above, on direct appeal, appellate counsel
challenged several prosecutorial comments. See Jackson, 180 So.
3d at 958. We held that, to the extent the comments were
improper, they did not rise to the level of fundamental error. Id.

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 establish [first, that] the alleged omissions are of such
magnitude as to constitute a serious error or substantial
deficiency falling measurably outside the range of
professionally acceptable performance and, second, [that]
the deficiency in performance compromised the appellate
process to such a degree as to undermine confidence in
the correctness of the result.

Brown, 304 So. 3d at 278 (alteration in original).

As relevant here, appellate counsel can be deficient for not

raising meritorious claims of fundamental error, and improper

prosecutorial comments can, in some limited circumstances, rise to

the level of fundamental error. Sheppard, 47 Fla. L. Weekly at S74.

To establish fundamental error, Jackson relies on two unobjected-to

comments. However, because those two comments do not rise to

the level of fundamental error on their own or in combination with

the comments challenged on direct appeal, Jackson has failed to

demonstrate deficient performance.

During the initial closing argument, the prosecutor stated:

Now, he can’t come in here and lie to you
today about knowing her because he has to be
able to explain his DNA and his fingerprints.

His DNA, his fingerprints on her body, in
her blood is as good as a signed confession.

(Emphasis added.)

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 As Jackson notes, his fingerprint was not found on Pearce’s

body; rather, it was found on the kitchen sink. Even accepting

Jackson’s interpretation that the statement did not entirely conform

to the facts, we find that appellate counsel was not deficient for

failing to urge reversal based on it. The statement was brief and the

only occasion where the prosecutor conflated the fingerprint and

DNA evidence. Accordingly, this comment appears to be an

inadvertent “slip of the tongue,” not an instance of prosecutorial

misconduct. See Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008).

Jackson is not entitled to habeas relief as to the second

unbriefed comment either. In rebuttal closing argument, the

prosecutor led off with the following remark:

Defense counsel said in jury selection that there are
two sides to every story. And that’s true. There are two
sides to every story. But there can be only one truth. . . .
And while there are two halves to a basketball game, a
blow-out is still a blow-out when the final score is
determined. And this case, with its evidence being
overwhelming, is a blowout. It is. The evidence of this
man’s guilt is overwhelming.

We find this statement not impermissible. Fairly interpreted,

the prosecutor was merely giving his view of the strength of the

State’s case. See Dessaure v. State, 55 So. 3d 478, 487 (Fla. 2010);

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Dailey v. State, 965 So. 2d 38, 44 (Fla. 2007); Fountain v. State, 275

So. 3d 253, 255 (Fla. 1st DCA 2019); Easterly v. State, 22 So. 3d

807, 817 (Fla. 1st DCA 2009).

There is another reason why this comment was not improper.

We have stated that “[a] prosecutor’s comments are not improper

where they fall into the category of an ‘invited response’ by the

preceding argument of defense counsel concerning the same

subject.” Scott v. State, 66 So. 3d 923, 930 (Fla. 2011) (alteration in

original) (quoting Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006)).

Here, defense counsel characterized the State’s case against

Jackson as weak—asserting that the State produced absolutely no

evidence of his guilt. Accordingly, the prosecutor’s statement of a

contrary view was a fair reply to the defense’s closing argument.

Nevertheless, even if both challenged comments were

improper, they would not—on their own or in combination with the

remarks found (or assumed) improper on direct appeal—rise to the

level of fundamental error. See Alcegaire v. State, 326 So. 3d 656,

665 (Fla. 2021) (noting that unobjected-to comments rise to the

level of fundamental error only when those comments “reach[] down

into the validity of the trial itself to the extent that a verdict of guilty

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could not have been obtained without the[m]”). Both comments

were quite brief, not inflammatory, and not statements on the law

the jury would apply during deliberations. And, though the

fingerprint remark was factually inaccurate, we do not think that

this stray comment confused the jury given the state of the evidence

at trial. Thus, had appellate counsel pressed the arguments

advanced now, we would still have affirmed on the closing-

argument issue on direct appeal.

Accordingly, Jackson has failed to demonstrate ineffective

assistance of appellate counsel and is not entitled to a writ of

habeas corpus. See Brown, 304 So. 3d at 280 (denying habeas

relief “because appellate counsel was not ineffective for failing to

challenge on direct appeal unpreserved issues that do not amount

to fundamental error”).

III. CONCLUSION

For the reasons given above, we affirm the circuit court’s order

and deny Jackson’s habeas petition.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ. concur.
LABARGA, J., concurs in result.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Duval County,
James Hunt Daniel, Judge
Case No. 162008CF010726AXXXMA
And an Original Proceeding – Habeas Corpus

Robert S. Friedman, Capital Collateral Regional Counsel, Thomas
Voracek and Karin L. Moore, Assistant Capital Collateral Regional
Counsel, North Region, Tallahassee, Florida, and Stacy R. Biggart,
Special Assistant Capital Collateral Regional Counsel, Gainesville,
Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, and Jason W. Rodriguez, Assistant
Attorney General, Tallahassee, Florida,

for Appellee/Respondent

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