[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 5, 2005
No. 04-13574 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00660-CV-ORL-31KRS
JAMES EUGENE HUNTER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 5, 2005)
Before CARNES, BARKETT and HULL, Circuit Judges.
CARNES, Circuit Judge:
Around midnight on September 16, 1992, four young friends were hanging
out on benches in front of the Munch Shop, a local eatery near the campus of
Bethune-Cookman College in Daytona Beach, Florida. Taurus Cooley, Michael
Howard, Theodore Troutman, and Wayne Simpson were college students who
often gathered there to “talk and chat and carr[y] on” because Simpson’s father
owned the Munch Shop. They did not know that night would be different from
any other.
Not far away, another group of four young men were together but for less
innocent purposes. James Eugene Hunter, also known as “Michael Miller” or
“Psycho,” was one of them. He was in a car headed to Daytona Beach. With him
were Charles Anderson, Eric Boyd, and Bruce Pope. Two young women were also
in the car. One of them was Hunter’s girlfriend, Tammie Cowan. The men had
with them two long-barrel, black BB guns and a chrome .25 caliber automatic
handgun.
In Deland, Florida, about twenty miles west of Daytona, Hunter instructed
Cowan, who was driving, to stop the car. Hunter and the other three men got out
of the car with the guns. They confronted a man, Reggie Barkley, who was riding
his bicycle down the road toward them. Pointing their guns at him, Hunter and the
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others ordered him to lay on the ground, screaming at him to “give it up.” They
searched Barkley’s pockets and then told him to run into the woods, which he did.
After robbing Barkley, Hunter and his friends ran back and jumped into the car,
and Hunter told Cowan to drive to Daytona.
When they arrived in Daytona around midnight, Hunter first had Cowan stop
at a house where he planned to buy marijuana, but no one was home. They left the
house and proceeded to drive through Daytona, presumably looking for drugs.
As they drove near the campus of Bethune-Cookman College, Hunter and the
others saw the four young men sitting on benches in front of the Munch Shop.
After seeing the four young men, Hunter instructed Cowan to stop the car
about three blocks away. All four of the men got out of it there. Hunter carried
the silver automatic handgun, while two of the others carried the long BB guns.
They walked around to the front of the building where Cooley, Howard, Troutman,
and Simpson were sitting. At first the friends didn’t think much about the four
men walking toward them, assuming they were college students, too. When
Hunter and two of his cohorts pulled out their guns and told the young men to
“give it up,” they thought it must be a joke. They realized it was no joke when Eric
Boyd put his “big, long gun” to Troutman’s neck and ordered him to get on the
ground. At the same time, Hunter held his small handgun to Troutman’s neck, and
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one of the other robbers put the long barrel of his gun into Howard’s back.
Because the young men “didn’t want to make no false moves for them to
shoot us,” they complied with every order. Troutman and Simpson both lay on the
ground, as they were told. Howard emptied his pockets, showing that he had only
four pennies and some keys. Unsatisfied, one of Hunter’s group told Howard he
wanted his clothes. Howard obediently stripped down to his underwear and
handed over his Nike tennis shoes, his shirt, his short pants, and his watch. Then,
Howard got down on the ground as well. Nearby, Hunter kept his gun pointed at
Cooley, ordering him to take off his shirt, which Cooley did.
As Cooley was handing over his shirt, he was face-to-face with Hunter. At
that moment, Hunter opened fire, shooting Cooley in the chest, just above his
heart. Cooley dropped the shirt and fell back. Hunter paused a few seconds and
then continued shooting down the line. He stood behind Howard, who had been
sitting on the ground, and shot him in the back as Howard got up and began to flee.
The bullet penetrated Howard’s right shoulder blade, lodging in his body. Hunter
next came to Troutman, who was lying face down on the ground. While Hunter’s
cohorts snatched Troutman’s shoes off his feet and a twenty-dollar watch off his
arm, Hunter stood over Troutman and shot him in the back. Finally, it was
Simpson’s turn. Troutman would later recount that his friend Simpson, who had
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heard the others being shot, must have known he was next. He described how
Simpson was flinching and looking over his shoulder as he lay on the ground.
Hunter shot Simpson in the back.
After being shot, each of the four young men was able to run away. They
fled in a desperate search for help, running up the stairs of an apartment building,
where Wayne Simpson pounded on the door and on a window so hard that he
knocked out the glass. But then, as one of the others described it, “Wayne just
collapsed, Wayne laid down. And then he said—and I ran up to the steps and he
said—I said, Wayne, what’s wrong? He said, I’m going to die.” The bullet from
Hunter’s handgun had ricocheted through Wayne Simpson’s right lung and his
heart, and the young man, only nineteen-years old, bled to death on the steps of the
apartment building where he had gone seeking help.
Hunter was convicted by a jury of the first-degree murder of Wayne
Simpson, as well as for three counts of attempted first-degree murder, three counts
of armed robbery, and one count of attempted armed robbery. Following a
sentence hearing, the jury recommended death by a vote of nine to three, and the
trial court imposed that sentence. The Florida Supreme Court affirmed the
conviction and sentence on direct appeal. Hunter v. State, 660 So. 2d 244, 254
(Fla. 1995) (“Hunter I”). Hunter filed a state collateral petition. After holding an
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evidentiary hearing on some of his claims, the trial court denied relief. The Florida
Supreme Court affirmed that denial of relief and at the same time denied Hunter’s
petition for state habeas relief. Hunter v. State, 817 So. 2d. 786, 799 (Fla. 2002)
(“Hunter II”).
Hunter then filed in the United States District Court for the Middle District
of Florida a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. That
court denied the petition and denied Hunter’s request for a certificate of
appealability. We granted him a certificate on two issues: (1) whether he was
deprived of his right to counsel under the Sixth Amendment as a result of his trial
counsel laboring under a conflict of interest; and (2) whether his trial counsel
rendered ineffective assistance by failing to present the jury with certain evidence
concerning photographs that had been taken of the four robbers shortly after the
crime.
I.
As to the first claim Taurus Cooley, a surviving victim, was one of the most
important witnesses for the State at the guilt stage of the trial; he identified Hunter
as the robber who had fired the shots that killed Wayne Simpson and injured the
other three victims. Hunter was represented by George Burden, a member of the
Volusia County Public Defender’s Office. Before Hunter’s trial, other members of
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that same office had represented Cooley on a number of unrelated criminal
charges. Some of that legal representation of Cooley had occurred within a year
preceding the trial. The record does establish that Cooley had a criminal history,
including some convictions, but it is not clear that there were any charges pending
against him at the time of Hunter’s trial. The issue arises because Burden did not
attempt to use Cooley’s criminal history or any charges that may have been
pending against Cooley to impeach his testimony. That, argues Hunter, entitles
him to relief on his conflict of interest claim.
At the evidentiary hearing on this issue in the state collateral proceeding,
Burden testified that at the time of the trial he did not know anything about any of
Cooley’s convictions or criminal charges. Hunter finds that testimony more
difficult to believe than the state courts did. After hearing Burden testify on the
matter, the state trial court credited his testimony and found as a fact that at the
time of the trial Burden was unaware of any past or pending criminal charges
against Cooley. From that fact the state court reasoned that Burden’s
representation of Hunter could not have been adversely affected by any conflict of
interest stemming from his office having represented Cooley in regard to any prior
criminal matters. See Hunter II, 817 So. 2d at 792–93. The Florida Supreme
Court affirmed that finding and conclusion. Id. at 793 (“[T]he trial court was
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entitled to conclude that since trial counsel was not even aware of the public
defender’s prior representation of Cooley, such prior representation could not have
affected his representation of Hunter.” ). The district court found the state court
factfinding reasonable and the decision neither contrary to, nor an unreasonable
application of, clearly established federal law as delineated in Supreme Court
precedents. See 28 U.S.C. § 2254(d)(1). We agree.
To the extent that Hunter assaults the factual premise of the state court
decision on this issue by contending that Burden must have known that others in
his office had represented Cooley on unrelated matters, his argument is foiled by
the shield that 28 U.S.C. § 2254(e)(1) throws around those findings. Under that
provision of the AEDPA, state court factual determinations are presumed correct
and a federal habeas petitioner is stuck with them unless he can rebut their
presumed correctness with clear and convincing evidence to the contrary. Hunter
has never presented any evidence, much less clear and convincing evidence, to
show that Burden had been aware at the time of this trial that others in the Public
Defender’s Office represented Cooley on past or pending criminal matters. The
factual premise of the state court decision stands.
Hunter’s primary attack on the state court’s decision resolving the conflict of
interest issue focuses on the seemingly unassailable legal premise of that decision:
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An attorney’s performance must be adversely affected by the conflict of interest
before there is a constitutional violation. See Hunter II, 817 So. 2d at 792–93. If a
trial court improperly requires joint representation of co-defendants over timely
objection, reversal is automatic. See Holloway v. Arkansas, 435 U.S. 475, 487–90,
98 S. Ct. 1173, 1180–82 (1978). In all other conflict situations, there is no Sixth
Amendment violation, and thus no reversal, absent a showing that an actual
conflict of interest adversely affected counsel’s performance. See Mickens v.
Taylor, 535 U.S. 162, 167–174, 122 S. Ct. 1237, 1241–45 (2002) (“Since this was
not a case in which (as in Holloway) counsel protested his inability simultaneously
to represent multiple defendants . . . it was at least necessary, to void the
conviction, for petitioner to establish that the conflict of interest adversely affected
his counsel’s performance.”); Strickland v. Washington, 466 U.S. 668, 691, 104 S.
Ct. 2052, 2067 (1984) (“Prejudice is presumed only if the defendant demonstrates
that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict
of interest adversely affected his lawyer’s performance.’” (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348, 350, 100 S. Ct. 1708, 1718, 1719 (1980))).
Against those clear Supreme Court decisions, Hunter offers some loose
language from the opinion in Freund v. Butterworth, 165 F.3d 839 (11th Cir. 1999)
(en banc). One part of that lengthy en banc opinion quotes a passage from the
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panel opinion. Id. at 860. In that passage is a description of the burden a petitioner
must carry in order to obtain relief on conflict of interest grounds. Hunter relies on
the part of the quoted passage that discusses the adverse effect requirement. It
describes that requirement in these terms:
[H]e must show some link between the actual conflict and the decision
to forgo the alternative strategy of defense. In other words, “he must
establish that the alternative defense was inherently in conflict with or
not undertaken due to the attorney’s other loyalties or interests.”
Id. (quoting Freund v. Butterworth , 117 F.3d 1543, 1580 (11th Cir. 1997),
vacated, 135 F.3d 1419 (11th Cir. 1998) (granting rehearing en banc) (quoting
United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985))). Those two sentences,
Hunter argues, establish that a petitioner need not show adverse effect if “the
alternative defense was inherently in conflict with” the attorney’s other loyalties
and interests, even if the attorney was unaware of the conflict. Ergo, he is entitled
to relief from the state court decision rejecting his conflict of interest claim for lack
of adverse effect, and the judgment left intact by that decision. Not counting the
difficulty in differentiating between “inherent” and “non-inherent” conflicts, there
are no fewer than four reasons why Hunter’s argument fails.
First, Hunter’s argument ignores the sentence following the part of the
Freund en banc opinion that he quotes. Lest anyone misunderstand the quoted
passage, the en banc Court immediately said: “It bears repeating, however, that
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‘[p]rejudice is presumed only if the defendant demonstrates that . . . “an actual
conflict of interest adversely affected his lawyer’s performance.”’” Id. at 860
(alterations in original) (quoting Strickland, 466 U.S. at 692, 104 S. Ct. at 2067
(quoting Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718)). Hunter’s argument
misconstrues the Freund opinion.
Second, the Freund en banc Court actually affirmed the denial of relief in
that case, and the opinion explained that the Court did so both because none of the
alleged conflicts amounted to an actual conflict, and because even if the
circumstances in that case had presented actual conflicts of interest, no adverse
effect on counsel’s performance flowed from any of them. Id. at 841, 866. A
decision denying relief because no adverse effect has been shown cannot establish
that relief can be granted without a showing of adverse effect. To suggest it can is
to propose that every proposition establishes the converse of itself.
Third, even if the Freund decision had established that no adverse effect was
necessary in order for relief to be granted on a conflict of interest claim, any such
holding would have been implicitly overruled by the Supreme Court’s later
decision in the Mickens case, which held that an adverse effect showing was
required, save only where counsel was forced over objection to simultaneously
represent co-defendants. See generally In re Provenzano, 215 F.3d 1233, 1235
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(11th Cir. 2000) (per curiam) (“We would, of course, not only be authorized but
also required to depart from [the prior decision of this Court] if an intervening
Supreme Court decision actually overruled or conflicted with it.”); Cottrell v.
Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996) (“Where prior panel precedent
conflicts with a subsequent Supreme Court decision, we follow the Supreme Court
decision.”).
Fourth, in any event, Hunter’s argument that our Freund decision establishes
that he is entitled to relief from the state court judgment against him fails because
state courts are not required to follow our decisions. They, like we, are required to
follow Supreme Court decisions, but we may not set aside state court judgments
because they conflict with our own decisions. Insofar as legal issues are
concerned, only where the state court judgment rests on a decision that “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” may federal habeas
relief be granted. 28 U.S.C. § 2254(d)(1); see also Yarborough v. Alvarado, 541
U.S. 656, ___, 124 S. Ct. 2140, 2147 (2004) (“[C]learly established law as
determined by this Court ‘refers to the holdings, as opposed to the dicta, of this
Court’s decisions as of the time of the relevant state-court decision.’” (quoting
Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000))); id. at 2150
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(“‘[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the state-court decision applied [the
law] incorrectly.’” (alterations in original) (quoting Woodford v. Visciotti, 537
U.S. 19, 24–25, 123 S. Ct. 357, 360 (2002) (per curiam))); Lockyer v. Andrade,
538 U.S. 63, 71–72, 123 S. Ct. 1166, 1172 (2003) (“In other words, ‘clearly
established Federal law’ under § 2254(d)(1) is the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its
decision.”).
There is no clearly established federal law, as determined by Supreme Court
decisions, that supports Hunter’s position. Just the opposite. The Supreme Court’s
Cuyler, Strickland, and Mickens decisions all go against Hunter. It is his position
on this issue, and not the state court’s decision of it, that is contrary to clearly
established federal law as laid down in Supreme Court decisions.
For all four of these reasons, we reject Hunter’s contention that he meets the
requirements of § 2254(d)(1) for relief from the state courts’ decision that he failed
to establish a conflict of interest that violated the Sixth Amendment, because his
counsel could not have been affected by a conflict of which he was unaware.
We also reject Hunter’s argument that an exception to the adverse effect
requirement ought to be carved out for this case because if the State had lived up to
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its disclosure obligations and told his trial counsel Burden about witness Cooley’s
criminal record, Burden would have been aware of the conflict of interest. Hunter
seems to be saying that it is unfair for the attorneys representing the State of
Florida to have deprived him of the opportunity to have been prejudiced by the
conflict of interest. Wholly apart from the strictures of § 2254(d)(1), it ought to be
evident that not even capital defendants have the right to the State’s assistance in
sewing the seeds of reversible error. There is no constitutional right to have
constitutional violations occur or to be prejudiced by any that do.
II.
The second issue for which we granted a certificate of appealability involves
Hunter’s claim that his trial counsel rendered ineffective assistance by failing to
utilize certain color photographs that showed the clothing Hunter and his co-
defendants were wearing a short time after the robberies and murder. The
photographs could and should have been used, Hunter argues, to undermine the
testimony of the surviving victims who identified Hunter as the shooter. No
pretrial motion was filed to suppress that identification testimony, nor were the
photographs used to undermine that testimony before the jury. Although there was
some conflicting testimony surrounding the issue at the evidentiary hearing, the
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state courts did find that trial counsel Burden knew of the photographs at the time
of the trial. Hunter II, 817 So. 2d at 794; Hunter I, 660 So. 2d at 250–51.
Applying the standards set out in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984), the state courts rejected Hunter’s claim after deciding that
he had failed to show prejudice. They concluded he had not shown a reasonable
probability of a different result if Burden had used the photographs to the fullest
possible extent. Hunter II, 817 So. 2d at 793–97. The district court concluded that
Hunter had failed to carry his heavy burden under § 2254(d)(1) of demonstrating
that the state court decision on this issue was either contrary to, or an unreasonable
application of, clearly established federal law set out in Supreme Court decisions.
We agree.
Four black males participated in the robbery, but only one of them fired the
shots that wounded Cooley, Howard, and Troutman, and killed Simpson. The
testimony before the jury was that at least some of the robbers were wearing caps
pulled down over part of the face. Cooley positively identified Hunter as the
shooter and testified that Hunter had been wearing either a red hat or a red shirt, or
both, at the time of the crime. Howard testified that he had seen the one who shot
Cooley, and that one was Hunter. He also said that he then saw the gun waved in
his direction and heard three more shots. He said that the man doing the shooting
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wore “blue jean pants, red shirt, red cap.” Troutman gave varying testimony about
whether he could identify the shooter, but ended up saying on redirect that while he
had seen a silver gun in Hunter’s hand he did not actually see who did the
shooting. He remembered that the shooter was wearing a ball cap, but he could not
recall the color of the shooter’s shirt.
Bruce Pope, one of the robbers, testified for the State at the trial. During
direct examination, Pope told the jury that during the crime Hunter had been
wearing a shirt with some white in it, and that one of the other robbers—he could
not recall which one—was wearing a red shirt. He also suggested that at some
point between the robbery of bicycle-riding Reggie Barkley and the robbery and
murder involved in this case, Hunter and one of the other robbers may have
switched shirts. On cross-examination, Pope did agree with attorney Burden that
“Hunter [had] the same shirt on all that time,” although it is not entirely clear what
Pope understood “all that time” to mean.
The car load of robbers was initially stopped in Ormond Beach by Deputy
Graves around 12:40 a.m., which was approximately twenty-five to forty minutes
after the robberies and murder in this case took place in Daytona Beach. About the
clothing the men were wearing when he pulled the car over, Graves testified at trial
that two of the suspects were wearing clothing that matched the BOLO (Be On the
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Look Out bulletin) arising from the Barkley robbery. The BOLO contained
“[i]nformation like red shorts, white shirt, combinations, color combinations.”
Graves also testified that the field investigation cards he filled out that morning
indicated Bruce Pope was wearing a Miami Hurricanes outfit at the time of the
stop. Those cards were marked as exhibits and discussed as evidence. They show
that Hunter was wearing white when the four robbers were stopped.
In closing argument, Burden repeatedly stressed that the testimony had
established that the shooter was wearing a red shirt, while Hunter was wearing a
white shirt during, or at least only a few minutes following, the robberies and
murder. He pointed out that the field investigation cards Deputy Graves had filled
out showed that Hunter was wearing a white shirt when stopped. Summarizing,
the Florida Supreme Court said that, “a review of trial counsel’s closing argument
reveals at least eleven references to the evidence that Hunter was wearing a white
shirt while witnesses testified that the shooter was wearing red clothing, i.e., a red
shirt or red hat.” Id. at 796; see also id. at 795 (quoting from the trial court’s
findings, which stated, “[f]urther, at trial the uncontroverted evidence was that the
shooter was wearing a red shirt and while, at the time of the arrest minutes after the
shooting, Defendant was wearing a white shirt. Defense counsel argued these facts
extensively during closing argument, including the fact that Deputy Graves’ field
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interview cards also showed the Defendant wearing a white shirt at the time of the
arrest.”).
The prosecutor did not challenge Burden’s argument to the jury that the
evidence established the shooter had worn a red shirt or cap while Hunter had on a
white shirt when stopped. Instead, the prosecutor accepted the premise that Hunter
was wearing a white shirt when the car was stopped in another town at least twenty
minutes after the robberies and murder had taken place. His explanation to the jury
was this: “They had all the time, once again that fifteen to twenty minutes from
the time they left the scene at that Munch Shop after shooting those four men until
the time they got stopped up in Ormond to take off their shirts, to change their
shirts, to get rid of the caps.” Because they had been smart enough to get rid of the
caps they had been wearing, he argued, they were smart enough to have changed
shirts, too. Burden got the last word before the jury, and he responded that it was
uncontroverted Hunter had been wearing a white shirt. He also argued that the
State had presented no evidence any of the robbers had switched shirts.
Hunter’s contention is that Burden should have presented to the jury the
additional evidence that came out at the evidentiary hearing in the state collateral
proceeding, especially the color photographs showing Hunter with a white shirt on.
In rejecting Hunter’s argument on this ineffective assistance claim, the Florida
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Supreme Court reasoned that while the use of the photographs in question might
have aided the defense presentation of the identity issue to some extent, they were
merely cumulative of other evidence that came out at trial, and there was extensive
evidence of Hunter’s guilt. Id. at 796. Based on all of the circumstances, the state
court could not say that Hunter had established the requisite prejudice that
Strickland demands a petitioner show. Id. We cannot say that the Florida
Supreme Court’s decision is contrary to, or involves an unreasonable application
of, clearly established federal law as determined by the Supreme Court of the
United States. See 28 U.S.C. § 2254(d)(1).
The totality of the evidence about the photographs that were taken after
Hunter and the others were arrested would not have helped the defense case and
may well have undermined it. Deputy Graves testified in the evidentiary hearing
that he could not recall whether all of the men were shirtless when he stopped their
car, but at least some of them were. Although his field identification cards show
that Hunter had on a white Florida Gators T-shirt, it is unclear when that specific
information was entered onto the card. Graves testified at the evidentiary hearing
that by the time Officer McLean arrived on the scene the four suspects did not have
on shirts. He did not know when the shirtless ones put shirts on.
Officer McLean, who brought Barkley, the victim of the earlier robbery, to
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the scene of the stop, also testified at the evidentiary hearing. He said that he had
arrived at the scene of the stop at approximately 2:10 a.m., which would have been
approximately two hours after the robberies and murder in this case, which had
occurred about midnight. McLean testified that neither Hunter nor any of the other
three suspects were wearing a shirt at the time. He transported the suspects to the
police station and he testified that Hunter, and probably all of the others, were not
wearing a shirt when they arrived at the police station. Because it was a hot night,
the air conditioning was on at the station. The men complained about being cold,
and McLean permitted them to “grab whatever shirts they claimed to be theirs.”
Although there are color photos taken sometime after the stop that morning
showing that the four men had shirts on and that Hunter’s shirt was white, the
evidentiary hearing also revealed photos from some other time that morning which
showed Hunter and at least two of the others without shirts. Deputy Graves
testified that the photographs showing Hunter and the others without shirts were
taken at the time he pulled over their car. Again, that was from twenty-five to forty
minutes after the robberies and murder in this case took place.
If defense counsel Burden had put into evidence at trial the photos showing
Hunter in a white shirt, that would have invited the State to put in the photos
showing the suspects without shirts. The State could have had the officers explain
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to the jury that, at some point soon after robberies and murder in this case were
committed, the four men were not wearing shirts and that Hunter had an
opportunity to switch shirts. The totality of the new evidence would have netted
out against Hunter. It would have deprived the defense of the chance to argue to
the jury, as Burden did in his closing, that it was clear Hunter had been wearing a
white shirt the entire time and there was no evidence at all to support the
prosecutor’s theory that he had changed shirts. Likewise, nothing about the color
photographs would have compelled suppression of the identification testimony at
trial.
Nor is there anything to Hunter’s additional contention that if Burden had
explored the photographic evidence more thoroughly he would have discovered
that Detective Flynt, who assembled the photos into packages, never showed those
photos to the surviving victims because they had told him they were unable to
identify the robbers. The resulting testimony, Hunter argues, would have made all
the difference at trial. But the record establishes otherwise.
Burden brought out at trial and argued in closing that Detective Flynt had
neither shown the post-arrest photos to any of the surviving victims nor had he
arranged any lineups for them. Burden stressed that the robbers had caps pulled
down to hide their faces, and that none of the surviving victims were able to
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describe the robbers except for the clothing they wore. Typical of his closing
argument on this point is the following:
Did Detective Flynt tell you about the photo lineups he did for
these victims? Did he go through that? Did he go through the
physical lineup he did with all these victims? No. He never
did. And he also told you when he interviewed them they
couldn’t give a description other than clothing. Right after it
happened, that’s all the description they could give. Lack of
evidence. Reasonable doubt.
While conceding at the state collateral evidentiary hearing that the surviving
victims had been unsure of identity, Detective Flynt did not say that any of them
had ever told him they could not identify the robbers.
For all of these reasons, the Florida courts’ decision rejecting this claim is
neither contrary to, nor an unreasonable application of, clearly established federal
law within the meaning of § 2254(d)(1).
AFFIRMED.
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