Mark Allen Geralds v. Attorney General, State of Florida ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13562
________________________
D.C. Docket No. 5:13-cv-00167-MW-EMT
MARK ALLEN GERALDS,
Petitioner - Appellant,
versus
ATTORNEY GENERAL, STATE OF FLORIDA,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 12, 2021)
Before ROSENBAUM, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
A Florida jury convicted Mark Allen Geralds of first-degree murder, armed
robbery, burglary of a dwelling, and theft of an automobile. The state trial court
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sentenced Geralds to death, and the Florida Supreme Court vacated his sentence on
direct appeal. Following additional penalty-phase proceedings, a jury again
recommended a death sentence, which the trial court imposed and the Florida
Supreme Court affirmed.
Geralds unsuccessfully challenged his conviction and sentence during state
postconviction review and then filed a federal habeas petition in the Northern
District of Florida. Among other claims, his petition asserts that the state courts
unreasonably rejected his claims of prosecutorial misconduct in violation of Brady
v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972);
ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S.
668 (1984); and infringement of due process by wrongly denying for-cause
challenges to two prospective jurors. The district court denied his petition, and
Geralds appealed. After careful consideration, and with the benefit of oral argument,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
On February 7, 1990, a Florida jury convicted Geralds of first-degree murder,
among other offenses, for the killing of Tressa Lynn Pettibone. One year earlier, on
February 1, 1989, Pettibone’s eight-year-old son found her body when he came
home from school. She had been stabbed multiple times, and bruises from blunt
trauma covered the upper half of her body. Blood patterns showed that she had
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struggled with her attacker in at least three different parts of the home’s kitchen and
dining area. The medical examiner determined that her wrists had been bound with
a plastic tie for at least twenty minutes before she died. At trial, family members
testified that a herringbone chain necklace, red-frame Bucci sunglasses, and a
Mercedes car were missing from the home.
Geralds was a carpenter who had done work on the Pettibones’ home. About
a week before the crime, he encountered her and her two children at a mall. At that
time, she mentioned that her husband was out of town on business. Geralds later
approached her son in the video arcade and asked when he and his sister left and
came back from school. Geralds also asked when their father would return from his
trip.
A collection of circumstantial evidence linked Geralds to the events of
February 1. That afternoon, Geralds had pawned a gold herringbone chain necklace.
Lab testing later showed that a stain on the necklace was blood, consistent with
Pettibone’s blood type. The police also found plastic ties in Geralds’s car that
matched the ties found on her wrists, as well as shoes in his residence that were
consistent with tracks identified at the crime scene. Finally, Geralds had gone to his
grandfather’s house on the day of the crime to take a shower; while leaving, he said
that he was taking a pair of sunglasses to some friends. A witness testified that
Geralds gave her a pair of red Bucci sunglasses in late January or early February
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1989. And as we have mentioned, Pettibone’s family reported that red Bucci
sunglasses were missing from their home after Pettibone was killed. After the State
rested its case, Geralds moved for judgment of acquittal, arguing that the evidence
was insufficient to support the charges against him. The court denied that motion,
and the defense immediately rested without calling any witnesses or otherwise
presenting evidence.
The jury found Geralds guilty of first-degree murder, armed robbery, burglary
of a dwelling, and theft of an automobile.1 It recommended a death sentence for the
murder conviction. The trial judge agreed, finding that four statutory aggravating
factors and no mitigating factors were satisfied, and he sentenced Geralds to death.
The Florida Supreme Court affirmed Geralds’s convictions but remanded the
case for resentencing following a new hearing on application of the death penalty.
Geralds v. State (“Geralds I”), 601 So. 2d 1157, 1164 (Fla. 1992). The court held
that the trial judge had erred in allowing the State to refer to Geralds’s prior
convictions during the original penalty-phase proceedings. See id. at 1161–63.
However, the court rejected Geralds’s arguments about errors from the trial’s guilt
phase, including—as relevant here—that the court had improperly denied two for-
1
The Mercedes was found in the parking lot of a school near the Pettibones’ home.
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cause challenges to prospective jurors who were exposed to pretrial media coverage.
See id. at 1159.
Following a second penalty-phase hearing, a jury again recommended the
death penalty, and on April 13, 1993, the trial judge sentenced Geralds to death. The
Florida Supreme Court affirmed this sentence, and the U.S. Supreme Court denied
review of its decision. Geralds v. State (“Geralds II”), 674 So. 2d 96, 105 (Fla.) (per
curiam), cert. denied, 519 U.S. 891 (1996).
Geralds moved for postconviction relief before the sentencing court. In an
amended motion, dated January 25, 2002, he raised twenty-six claims for relief. On
February 12, 2003, the court summarily denied twenty of those claims and set an
evidentiary hearing for the remaining six. Among other arguments, the remaining
claims alleged that Geralds’s trial counsel, who died before the evidentiary hearings
began, was unconstitutionally ineffective for failing to present evidence from the
crime scene and for failing to investigate and present witnesses. Geralds’s amended
motion also alleged that the prosecution had suppressed material exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83, and knowingly presented
or failed to correct false testimony at trial in violation of Giglio v. United States, 405
U.S. 150.
Following two evidentiary hearings, the sentencing court denied Geralds’s
remaining claims in a series of orders issued in 2005 and 2006. The court also denied
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several motions for reconsideration of these orders. On September 16, 2010, the
Florida Supreme Court affirmed these orders and denied an original petition for writ
of habeas corpus. Geralds v. State (“Geralds III”), 111 So. 3d 778, 810 (Fla. 2010)
(per curiam).2
On April 29, 2013, Geralds filed a petition for writ of habeas corpus in the
Northern District of Florida. He asserted eight grounds for relief. The district court
denied the petition in an opinion issued May 13, 2019. In that opinion, the court
held that Geralds was not entitled to an evidentiary hearing on his claims. However,
the court issued a certificate of appealability under 28 U.S.C. § 2253(c)(2) as to three
claims: (1) that counsel was unconstitutionally ineffective for failing to present
crime-scene evidence at his original trial, (2) that counsel was ineffective for failing
to investigate and present witnesses, and (3) that the state trial court erred in denying
his for-cause challenges to the two prospective jurors. Geralds moved to alter the
judgment and expand the certificate of appealability, but the district court denied his
motion. He filed a timely notice of appeal.
On appeal, Geralds moved to expand the certificate of appealability. We
granted this motion in part, issuing a certificate of appealability as to three additional
2
Geralds later filed a successive motion for postconviction relief based on Hurst v. Florida,
577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). The state trial court denied his
motion, and the Florida Supreme Court affirmed. Geralds v. State, 237 So. 3d 923 (Fla. 2018)
(per curiam). The U.S. Supreme Court denied Geralds’s petition for writ of certiorari. Geralds v.
Florida, 139 S. Ct. 324 (2018).
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claims: (1) whether the State violated Brady in failing to disclose reports or
handwritten notes prepared by the Florida Department of Law Enforcement, (2)
whether the State violated Giglio in permitting its investigator to testify that he had
confirmed the alibi of another suspect, and (3) whether the State violated Giglio in
permitting the investigator to testify that Geralds’s left shoe had tested positive for
blood.
II. STANDARDS OF REVIEW
We review de novo the district court’s denial of a habeas petition. Ward v.
Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Under 28 U.S.C. § 2254(d), as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may
not grant habeas relief to a state prisoner unless the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or was “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (quoting 28
U.S.C. § 2254(d)(1), (2)). The state court’s findings of fact are presumed to be
correct, and the petitioner must rebut that presumption by clear and convincing
evidence. Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 844 (11th Cir. 2011)
(per curiam); see 28 U.S.C. § 2254(e)(1).
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The Supreme Court has explained that “clearly established Federal law” under
§ 2254(d)(1) means the holdings, rather than the dicta, of its opinions. Lockyer v.
Andrade, 538 U.S. 63, 71 (2003). A state-court decision can be “contrary to” this
established law in two ways: (1) if the state court arrives at a conclusion on a
question of law opposite that of the Supreme Court; or (2) if the court confronts facts
that are “materially indistinguishable” from relevant Supreme Court precedent but
reaches a different result. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). “A
state-court decision that correctly identifies the governing legal rule but applies it
unreasonably to the facts” of a particular case is an “unreasonable application” of
clearly established law. Id. at 407–08.
To determine whether the state court’s decisions involved an “unreasonable
application” of established law, we look to the reasons provided by the last state
court to address an issue. Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018). A
decision is reasonable “so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). It is not
enough to show that the state court’s application of law to fact led to an incorrect
result. Lockyer, 538 U.S. at 75. Only if the state court’s application of law is
“objectively unreasonable” may we grant the habeas petition on this basis. Id.8
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III. DISCUSSION
Geralds has received a certificate of appealability on six claims: (1) whether
the State violated Brady by failing to disclose records from the Florida Department
of Law Enforcement, (2) whether the State violated Giglio by presenting false
testimony about blood on Geralds’s shoe, (3) whether the State violated Giglio by
presenting false testimony about confirming another suspect’s alibi, (4) whether
Geralds’s counsel was unconstitutionally ineffective for failing to present evidence
from the crime scene, (5) whether Geralds’s counsel was unconstitutionally
ineffective for failing to investigate and present a witness who sold Geralds a
herringbone necklace before the crime, and (6) whether the state court violated due
process by denying Geralds’s for-cause challenges to two prospective jurors. We
address each claim in turn.
1. Claim of undisclosed evidence
Geralds argues that the prosecution failed to disclose reports and handwritten
notes from the Florida Department of Law Enforcement (“FDLE”), violating Brady
v. Maryland, 373 U.S. 83. The documents at issue include (1) a lab report containing
blood typing analysis by FDLE analyst Shirley Zeigler (Defense Exhibit 20), (2)
handwritten notes indicating that a bloodied handkerchief was found on top of a
sewing machine at the crime scene (Defense Exhibit 28), (3) handwritten notes
concerning the location of fingerprints and palmprints at the crime scene (Defense
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Exhibit 31), (4) handwritten notes discussing hair evidence collected from
Pettibone’s body, including from her left hand, which did not match Geralds’s hair
samples (Defense Exhibit 34), and (5) a lab report by FDLE analyst Larry Smith,
which indicates that the hair collected from Pettibone did not match samples from
Geralds (Defense Exhibit 36).3
With regard to Zeigler’s and Smith’s lab reports, the district court held that
Geralds had failed to rebut by clear and convincing evidence the Florida Supreme
Court’s findings that the reports had been disclosed. As for the handwritten notes
about the hair and print analysis, the district court observed that the state court had
not found that these documents were suppressed. Even so, the district court
concluded that Geralds had not shown that the state court erred in concluding that
the outcome at trial would not have been different had the allegedly suppressed
evidence been disclosed.
In Brady, the Supreme Court held that due process requires the prosecution,
upon request, to disclose evidence that is favorable to a defendant. 373 U.S. at 87.
This principle extends to both impeachment and exculpatory evidence. United
States v. Bagley, 473 U.S. 667, 676 (1985). And it includes evidence known to
3
The exhibit numbers reflect the labels assigned at the evidentiary hearings on Geralds’s
motion for postconviction relief. Geralds’s brief also lists Defense Exhibits 23 and 32 in this claim,
but he makes no argument about them. Those exhibits are an evidence log sheet with some
handwritten notes and a description of evidence submitted for analysis, respectively.
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police investigators but not to a prosecutor. See Kyles v. Whitley, 514 U.S. 419, 438
(1995). Thus, to comply with Brady, a prosecutor must determine what evidence is
known to other government actors so that the prosecutor can disclose it, if necessary.
Id. at 437. For a Brady violation to exist, the suppressed evidence must be material,
meaning that there is a reasonable probability that the evidence, assessed
cumulatively, would have changed the outcome at trial. See id. at 433–35.
On appeal, Geralds argues that the state court’s decisions were based on an
unreasonable determination of the facts and were both contrary to and an
unreasonable application of clearly established federal law. 4 Below, we consider
these arguments with respect to each piece of evidence. We conclude by addressing
Geralds’s argument that this evidence is material when viewed collectively. Zeigler
lab report
First, the Zeigler lab report (Defense Exhibit 20), which is dated April 3, 1989,
indicates that the blood on a handkerchief from the crime scene was found to be of
Type O. It further states that neither Geralds nor Pettibone had that blood type, but
4
Regarding the alleged legal errors, Geralds contends that the Florida Supreme Court and
the district court improperly analyzed his Brady claim by requiring a showing of diligence. This
argument draws on an issue left unanswered in Strickler v. Greene, 527 U.S. 263 (1999), namely,
“the impact of a showing by the State that the defendant was aware of the existence of the
documents in question and knew, or could reasonably discover, how to obtain them.” See id. at
288 n.33. However, we need not reach this issue because the Florida Supreme Court did not reject
the Brady claims that remain in this case because of a diligence requirement. See Geralds III, 111
So. 3d at 786–88, 791.
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Kenneth Dewey Mayo, another suspect in the case, did. The report also indicates
that no human bloodstaining “could be demonstrated” on two tennis shoes.
In rejecting Geralds’s Brady claim as to the Zeigler report, the Florida
Supreme Court concluded,
At best, Geralds has only demonstrated that the record is
ambiguous as to whether Zeigler’s report was disclosed.
He has not, however, carried his burden of demonstrating
that the State suppressed Zeigler’s report. In reviewing the
State’s discovery produced on April 14, 1989, it is not
clear whether Zeigler’s report was included. Although
Zeigler is listed as a person known to have information
that may be relevant, Zeigler’s report is not specifically
identified. At the evidentiary hearing on September 23,
2003, [prosecutor Joe] Grammer testified, “I’m absolutely
positive that [defense counsel] Bob Adams had this report
before he talked to Shirley Zeigler in preparation for the
trial.” However, at the evidentiary hearing on February
25, 2004, Grammer testified that he did “not have a clear
memory” of providing the report to the defense, but
believed that “if we got it, which we did, we shared it with
Bob.” In looking at his file marked “lab reports,”
Grammer found Zeigler’s report. Grammer further
testified that the report is the type of document that he
would have provided to the defense and that it was
possible that if the State did not have it on April 14, 1989,
it was given to the defense afterwards. James Appleman,
state attorney and Grammer’s co-counsel, testified during
the evidentiary hearing that Zeigler’s report was available
to trial counsel.
Geralds III, 111 So. 3d at 788.
Geralds offers five reasons why the Florida Supreme Court’s conclusion that
he failed to show that the State had not provided the Zeigler report was based on an
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unreasonable determination of the facts. First, he contends that this report was not
enumerated on the State’s list of discovery responses, which generally identified
FDLE reports—among other documents—that the prosecutors provided. The record
generally supports this contention, with one exception. The State’s June 1, 1989,
supplemental discovery filing did not enumerate each of the documents it contained;
it stated only that it enclosed approximately 543 pages of “investigative material.”
And, unlike the State’s other discovery responses, the record does not include the
documents that were enclosed with this filing. Given the June 1, 1989, discovery
response, we cannot conclude that it was unreasonable for the state court to
determine that prosecutors had provided the Zeigler report to defense counsel, even
though the report was not listed on any of these filings.5
Second, Geralds points out that during the February 25, 2004, evidentiary
hearing on his motion for postconviction relief, Grammer testified on cross-
examination that he did not have an independent memory of providing the Zeigler
report to Geralds’s trial counsel. 6 At the earlier evidentiary hearing, on September
5
At the evidentiary hearings on Geralds’s motion for postconviction relief, Grammer
described the June 1, 1989, set of documents as material from the early stages of the investigation
into the crime. Geralds argues that this testimony was an “admission” that this discovery did not
include the Zeigler report. But Grammer’s testimony broadly characterizing the material does not
rule out that the Zeigler report was enclosed with it.
6
Appleman, the state attorney, testified at the evidentiary hearings that the Zeigler report
would have been provided to defense counsel, but he also stated that he did not have a specific
memory of providing it because discovery was the responsibility of Grammer, his assistant.
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23, 2003, Grammer had said he was certain that the report had been provided. But
at the second hearing, Grammer’s testimony on direct examination was less
conclusive:
Q. Do you have any recollection as to why you would
have listed Ms. Ziggler’s [sic] name as a possible witness?
A. If we had the report or if her name had been
provided by law enforcement.
Q. Is this report the type of document that you would
have provided to the Defense?
A. Yes.
Q. Do you believe that it was provided to the Defense?
A. You know, I do not have a clear memory of this one,
but I believe if we got it, which we did, we shared it with
Bob.
Q. Looking at Pages 2246 and 2247, did you see this
report listed?
A. No.
Q. Is it possible that it did not, it just did not get typed
in in [sic] your list of attachments?
A. It’s possible that we didn’t have it that day, we gave
it to him afterwards. It’s possible that it did not make it on
the list. I don’t—it’s all speculation, I don’t know.
Q. Is it your practice to disclose the name of someone
who would have information and then withhold—
A. No.
Q. —an exhibit or—
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A. No.
Q. —document?
A. No. That does not make much sense.
On cross-examination, Grammer subsequently testified,
Q. Do you have any independent recollection in this
particular case that, and we will go through the specific
documents, but that everything you received was given to
[Mr. Adams]?
...
A. The only thing that I don’t have a specific
memory—well let me rephrase that. My memory for
many of these documents is based upon the written record,
and those two lab reports are the only ones that I don’t
show on the written record and that I don’t have an
independent recollection of. That would be the Larry
Smith report and I think the first Shirley Ziggler [sic]
report.
Despite Grammer’s hesitation on cross-examination at the second evidentiary
hearing, we cannot say that this record provides clear and convincing evidence that
the Zeigler report was suppressed. Even if he lacked a specific recollection of having
disclosed the report some fifteen years earlier, Grammer’s testimony about his
discovery practices render not unreasonable the state court’s finding that the report
was not suppressed.
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Third, Geralds notes that his trial counsel’s file did not contain a copy of the
Zeigler report. 7 But the state trial court found that this file was incomplete in that it
did not include everything in Geralds’s trial counsel’s files. Geralds has not shown
by clear and convincing evidence that this finding of fact was incorrect. See Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (“[Section 2254(e)(1)’s] presumption
of correctness applies equally to factual determinations made by state trial and
appellate courts.”). So once again, we cannot say that the state court’s conclusion
that the Zeigler report was produced was unreasonable.
Fourth, Geralds points to his counsel’s cross-examination at trial of a different
FDLE analyst, Laura Rousseau, as evidence that he was unaware of the Zeigler
report. That exchange went as follows:
Q. Ma’am, what do you mean by presumptive tests?
A. That’s just a pre-test that it could be blood.
Q. And in your training and experience, those
presumptive tests which is a pre-test meaning it could be
blood, would that differentiate between human and fish
blood?
A. No, it would not.
Q. To your knowledge was any further testing done
with regard to those items in front of you?
7
Although the files of Geralds’s trial counsel (Defense Exhibit 53) are not part of the record
before this Court, the State does not dispute that they do not include the Zeigler report.
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A. Not to my knowledge, I don’t know. I have not seen
the shoes since then.
Geralds argues that if his trial counsel had known of the Zeigler report, he would not
have asked Rousseau if there was follow-up testing. We cannot conclude that that
is necessarily the case. While Geralds’s counsel’s cross-examination of Rousseau
could suggest that he was unaware of the Zeigler report, it does not unambiguously
evidence that conclusion. Rather, he may have asked about any follow-up
analysis—knowing that it, in fact, existed—to undermine Rousseau’s testimony by
drawing attention to the preliminary and inconclusive nature of her findings.
Fifth and finally, Geralds observes that his trial counsel’s theory of the case
was grounded in the existence of another perpetrator, so he contends that his attorney
would have referred to the Zeigler report had he known of it. Zeigler testified at
trial, and Geralds’s counsel did not ask about her analysis of the handkerchief during
cross-examination. It’s not clear, however, whether he attempted to ask about it.
That cross-examination ended as follows:
Q. Okay. Oh. One more thing. We’ve got these things
you have identified in evidence. Did you test anything
else?
MR. APPLEMAN [the prosecutor]: Objection, Your
Honor. Exceeds the scope of direct examination.
THE COURT: I’ll sustain that objection.
Q. (Mr. Adams continuing) You’re the blood expert,
aren’t you?
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A. Yes, I am.
Q. Serology.
A. That’s correct.
Q. Okay. I’ll have to leave that one hanging. Thank
you very much.
MR. APPLEMAN: I have no questions for the witness
and ask that she be excused and allowed to return to
Jacksonville.
THE COURT: You may step down and you’re free to go.
MR. ADAMS: Well, Judge, she’s from Jacksonville,
could we have her stay here through the next break and
with the Court’s permission I would liek [sic] to speak to
her briefly.
THE COURT: All right.
Geralds’s trial counsel did not bring up Zeigler again before closing arguments. But
during his closing argument, he stated,
. . . That’s a lack of evidence. Laura Russo [sic] was
called. And talked about. I only see one . . . [ellipsis in
original] well, here’s another one. The Nikes. Oh, yeah,
there was blood on them, I identified a little area that might
be blood. What do you do with them? Sent them to the
lab. Did you hear Ms. Zigler [sic] say, yes, there is blood
on those shoes? No. Did you hear Ms. Zigler [sic] say I
checked those shoes in Jacksonville laboratory? No. You
didn’t hear any testimony about that. Or did Ms. Zigler
[sic] test those shoes and find no blood? You’re left in the
realm of guessing. And even Ms. Russo [sic] at that time
told us about that presumptive test which was really a pre
test which could show blood and it couldn’t even tell
whether it was human or fish blood because she was asked
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that by me. The answer was she couldn’t even tell the
difference on that pre test.
And later, he again portrayed Zeigler’s analysis as incomplete, noting that she
neither studied the prevalence of certain blood enzymes that she identified on the
herringbone necklace within the general population nor conducted DNA testing.
Contrary to Geralds’s argument, we cannot conclude that his trial counsel’s
lack of reference to the Zeigler report necessarily occurred because he was unaware
of it. As we recount above, counsel’s closing arguments suggest a strategy of
pointing to an incomplete investigation by law enforcement. He may have
concluded that not bringing up the Zeigler report would support that strategy.
Alternatively, he may have sought to ask about the report in his final question on
cross-examination but was stymied by the prosecutor’s successful objection. At any
rate, we cannot say that this record presents clear and convincing evidence that the
Florida Supreme Court erred in finding that the Zeigler report was not suppressed.
Nor do Geralds’s five arguments, taken collectively, clear that bar. During
cross-examination, Zeigler testified that she had written two reports in this case,
including the April 3, 1989, report at issue here. Geralds’s trial counsel did not file
a motion for mistrial or continuance after this exchange. In contrast, Geralds’s trial
counsel immediately moved for a mistrial when he learned during trial that the State
had not disclosed the handwritten notes of analyst Rousseau.
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We note, as well, that Zeigler testified again at the resentencing proceedings.
In that testimony, unlike at the original trial, she discussed the handkerchief and how
it had a small blood stain, “about maybe the size of a tip of a finger.” Geralds’s trial
counsel, who continued to represent him during those proceedings, questioned
Zeigler on recross examination immediately after that discussion. Nothing in his
questioning suggests any surprise from or interest in testimony about the
handkerchief. Handwritten notes discussing “blooded handkerchief”
Second, a set of handwritten notes (Defense Exhibit 28) indicates that a
“blooded handkerchief” was found on a sewing machine at the crime scene. The
state courts did not address a Brady claim as to this document in their rulings on
Geralds’s motion for postconviction relief. Assuming without deciding that Geralds
exhausted his Brady claim as to this document, our review is de novo. See Rompilla
v. Beard, 545 U.S. 374, 390 (2005).
There is conflicting evidence as to whether this document was provided to
Geralds’s trial counsel. At the September 2003 evidentiary hearing on Geralds’s
motion for postconviction relief, Grammer testified that he did not recall providing
defense counsel with this exhibit and that he did not think that prosecutors had
possession of it. But at the later hearing, in February 2004, Grammer testified that
he located the exhibit among records of the 543 pages of “investigative material”
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provided in discovery and that it is the type of document that would have been
disclosed to defense counsel.
Regardless, Geralds has not shown an entitlement to relief on Brady’s
materiality requirement—i.e., a reasonable probability that the verdict would have
been different had the evidence been disclosed. Rimmer v. Sec’y, Fla. Dep’t of
Corr., 876 F.3d 1039, 1054 (11th Cir. 2017). This document adds nothing of
substance beyond the blood analysis in the Zeigler report, which the state courts
determined had been disclosed, and the fact that investigators found a small amount
of blood on a handkerchief at the crime scene does not undermine the record of guilt
in this case. Indeed, as discussed above, Geralds’s counsel was not interested in
discussing the handkerchief when it came up during the resentencing proceedings.
i. Handwritten evidence list
The third piece of evidence at issue in Geralds’s Brady claim is handwritten
notes logging evidence collected from the crime scene (Defense Exhibit 31). The
notes provide some explanation of where certain evidence—including fingerprints,
palmprints, and shoe tracks—was located within the Pettibones’ house. The Florida
Supreme Court analyzed this document in a short discussion that also addressed
several other exhibits. See Geralds III, 111 So. 3d at 791. That discussion concluded
that “Geralds failed to demonstrate either that the information was suppressed by the
State or that the information was material.” Id. Because of the disjunctive logic of
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this phrasing and because the court was addressing several pieces of evidence at
once, it is not clear whether the court’s ruling as to Defense Exhibit 31 in particular
was grounded in lack of suppression, immateriality, or both. See id.Grammer’s testimony at the September 2003 evidentiary hearing suggests that
this exhibit was not provided to defense counsel. Assuming that this exhibit was
suppressed, Geralds has still not shown that it is material under Brady. Geralds
concedes that his counsel had access to the FDLE report showing that fingerprints
and palmprints taken at the crime scene did not belong to him. Any new information
in these notes—concerning the location of fingerprints, palmprints, and shoe tracks
taken from the crime scene—is not more probative of Geralds’s or someone else’s
guilt than the fact that the prints were not Geralds’s, which was disclosed. Indeed,
Geralds does not explain how this exhibit might have made a difference in the
outcome at trial. 8
ii. Smith lab report
The fourth piece of evidence at issue in Geralds’s Brady claim is a lab report
by FDLE analyst Smith (Defense Exhibit 36). This report, which was dated January
25, 1990, concluded that debris and hairs from Pettibone’s body, including from her
8
Geralds asserts that the Florida Supreme Court did not analyze Brady’s materiality prong.
With respect to this exhibit, as well as the two that we analyze below, the state court’s conclusion
on materiality—though brief—is still entitled to deference under AEDPA. See Rimmer, 876 F.3d
at 1055.
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left hand, did not match samples from Geralds. The Florida Supreme Court
addressed this document together with the handwritten evidence list discussed
above. See Geralds III, 111 So. 3d at 791. As with that document, it is not clear
whether the court reached its conclusion that the State did not violate Brady with
respect to this exhibit on the grounds of lack of suppression, immateriality, or both.
See id.Assuming that the Florida Supreme Court reached its conclusion because it
found that the State had not suppressed the Smith report, Geralds would need to
demonstrate by clear and convincing evidence that this finding was incorrect.9 Many
of Geralds’s arguments as to the Smith report overlap with his arguments on the
Zeigler report. He contends that the report does not appear on any of the
prosecution’s discovery responses. He also refers to Grammer’s testimony that he
lacked an “independent recollection” of providing the Smith report to Geralds’s trial
counsel. And Geralds states that the Smith report, like the Zeigler report, was not
contained in trial counsel’s files. Geralds also adds two arguments specific to the
Smith report. First, he contends that if his trial counsel had received the Smith
report, he would have would have used it in support of his theory that someone else
9
As the Florida Supreme Court noted, the lower state court did not address this document
in its orders denying Geralds’s motion for postconviction relief. Geralds III, 111 So. 3d at 791.
Nevertheless, the presumption of correctness under 28 U.S.C. § 2254(e)(1) extends to the appellate
court’s factual determinations. Bui, 321 F.3d at 1312.
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struggled with Pettibone and therefore committed the crime. Second, Geralds notes
that Smith’s report was issued only four days before trial and suggests that the State
may have accidentally failed to disclose it.
Several of these arguments are unavailing for the same reasons as with the
Zeigler report. For example, the state trial court found that trial counsel’s files were
incomplete. And, as we have noted, counsel’s strategy at trial emphasized the State’s
lack of investigation. Even if the Smith report included findings that were helpful
to Geralds’s case, counsel might have believed it better not to draw attention to
additional lab work done by the FDLE.
Nevertheless, the Smith report presents a closer question than the Zeigler
report did. Smith’s name was disclosed as a witness on January 24, 1990. The
record contains two discovery responses after that date. The first one disclosed other
potential witnesses but did not state that it enclosed any documents. The second one
enclosed a different lab report but not the Smith report. And unlike with the Zeigler
report, there was no omnibus discovery filing dated after January 25, 1990, that
might have enclosed the Smith report without listing it.
During the evidentiary hearings on Geralds’s motion for postconviction relief,
Grammer stated that he might have hand-delivered the Smith report to Geralds’s trial
counsel. The record demonstrates that, at least some of the time, Grammer
composed formal discovery filings even when he provided documents by hand. But
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not always. Grammer recalled hand-delivering a different lab report to Geralds’s
trial counsel during jury selection, and, as with the Smith report, the record does not
contain a formal discovery filing for that report. Thus, Grammer did not always
draft formal discovery filings when he exchanged lab reports at the last minute
before trial. And he testified that Smith’s report is “the type of item that would have
been disclosed as soon as we received it” and that he “would not have withheld his
report.” Thus, while the supporting evidence is thin, to the extent that the state court
found that the Smith report was not suppressed, AEDPA’s standard of review—
requiring us to find factual error by clear and convincing evidence—once again
precludes us from concluding that the state court erred in this finding.
If, instead or in addition, the Florida Supreme Court reached its decision
because it determined that the Smith report was immaterial under Brady, Geralds
has not shown that this result was objectively unreasonable. The record provides
support for the state court to have concluded that there was not a reasonable
probability that Geralds would not have been convicted, even if the evidence from
the Smith report had been presented at trial. The State presented evidence that
Geralds had done work on the Pettibones’ house and had inquired about a week
before the crime about where the various Pettibones would be during the time that
the crime was committed. Plus, on the very afternoon of the murder, Geralds pawned
a herringbone necklace with blood on it matching Pettibone’s type, and the
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Pettibones reported that a herringbone necklace had been stolen during the robbery;
Geralds had told his father that same day after the murder and robbery that he needed
to bring a friend sunglasses, and the Pettibones reported the same type and color of
sunglasses missing from their home; in Geralds’s car, police found the same plastic
ties used to tie Pettibone’s wrists and shoes; and shoe tracks found at the crime scene
were consistent with shoes found in Geralds’s residence. While the fact that the hair
in Pettibone’s hand was not Geralds’s may have provided some contrary evidence,
Smith’s report did not rule out a match with other members of the Pettibone
household, and under the circumstances, we cannot conclude that it was objectively
unreasonable for the state court to determine that there was not a reasonable
probability that the verdict would have been different had the Smith report been
disclosed.
iii. Handwritten notes on hair samples
The final portion of Geralds’s Brady claim relates to handwritten notes
discussing hair samples taken from Pettibone’s body, including from her left hand
(Defense Exhibit 34). They appear to be written by Smith in preparation of his
report. The notes indicate that these hairs are “microscopically different from” a
hair sample from Geralds. The Florida Supreme Court addressed this exhibit
together with the handwritten evidence log and the Smith lab report. See Geralds
III, 111 So. 3d at 791. As the record suggests these handwritten notes were not
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disclosed to Geralds’s counsel, we understand the Florida Supreme Court to have
rejected the Brady claim as to this exhibit on grounds of immateriality. See id.For the same reasons we must find that the state court’s resolution of the claim
involving the Smith lab report survives AEDPA scrutiny, we must conclude that the
state court’s determination concerning the handwritten notes does. As we have
noted, the record of circumstantial evidence—Geralds’s inquiries concerning the
Pettibones’ whereabouts, the herringbone necklace with Pettibone’s blood type on
it, the sunglasses, shoe tracks, and plastic ties—support the conclusion that there was
not a reasonable probability that Geralds would not have been convicted, even if the
hair evidence had been presented at trial.
iv. Cumulative analysis of materiality
Finally, Geralds argues that Brady’s materiality prong requires analyzing the
set of evidence collectively. This principle, which is clearly established under
Supreme Court precedent, applies to only evidence that was suppressed. See Kyles,
514 U.S. at 436. The Florida Supreme Court correctly identified this rule, see
Geralds III, 111 So. 3d at 787, and the court’s application of it was not objectively
unreasonable.10
10
To the extent that the district court relied on the state court’s determination as to the
sufficiency of the evidence from Geralds I, we agree with Geralds that Brady’s materiality prong
requires analyzing the undisclosed evidence, rather than just the evidence presented at trial.
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As noted above, the Florida Supreme Court’s finding that the Zeigler report
was not suppressed is entitled to deference. So the cumulative analysis extends only
to the remaining evidence. Even assuming that the four other exhibits—the Smith
report and the handwritten notes on a “blooded handkerchief,” evidence log, and hair
samples—were suppressed, we conclude that when they are considered together, the
Florida Supreme Court’s conclusion as to immateriality remains objectively
reasonable. As our previous discussion indicates, the notes discussing the “blooded
handkerchief” and the locations of fingerprints (Defense Exhibits 28 and 31) do not
contain significant information beyond what is in the corresponding lab reports that
Geralds’s counsel received. It makes no difference to our conclusion whether we
assess these exhibits by themselves or alongside other evidence. That leaves the two
exhibits discussing hair samples: the handwritten notes about them and the Smith
report (Defense Exhibits 34 and 36). Any extra information contained in the
handwritten notes, as opposed to Smith’s report, is relatively minor; the report
summarizes the conclusion that the evidence taken from Pettibone “contained no
hairs like the hairs in the head or pubic hair standards . . . from Geralds.” Analyzing
the materiality of these documents jointly does not change our conclusion. 11
11
As he had argued before the state courts and district court, Geralds also contends that the
prejudice from his Brady and Strickland claims should have been analyzed collectively. Although
he cites a Tenth Circuit decision, Cargle v. Mullin, 317 F.3d 1196, 1206–07 (10th Cir. 2003), he
provides no Supreme Court precedent in support of this proposition. Under AEDPA, then, this
rule was not clearly established, and the state court’s decision was not contrary to law. See 28
U.S.C. § 2254(d)(1). In Cargle, the Tenth Circuit reached the merits of a cumulative error claim,
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2. Claims of false testimony by the prosecution
In his second category of claims, Geralds argues that the State violated Giglio
v. United States, 405 U.S. 150, in presenting two lines of false testimony by its
investigator, Bob Jimerson,12 during the second trial. First, Jimerson testified that a
chemical test for blood reacted positively to Geralds’s left shoe, even though lab
testing later failed to demonstrate human bloodstaining. Second, Jimerson testified
that he had confirmed that William Pelton, another suspect, was at work on the day
Pettibone was killed, even though Jimerson’s notes show that Pelton could have left
work. The district court denied relief on both issues, concluding that Geralds had
not shown that the state court’s decisions were not entitled to deference.
Due process bars a prosecutor from knowingly presenting false evidence at
trial and from failing to correct false testimony, even when unsolicited. See Giglio,
405 U.S. at 153. This rule applies to impeachment and exculpatory evidence alike.
which it analyzed de novo. See 317 F.3d at 1206–07. However, we do not reach de novo review
because the state court correctly identified the clearly established law applicable to Geralds’s
claims. See Rimmer, 876 F.3d at 1054–55.
Even if we did, though, Geralds would not fare any better. As we explain later, the record
supports the conclusion that counsel made a strategic decision to forfeit any benefits from putting
on an affirmative case, including offering evidence like the lab reports (as opposed to engaging in
cross-examination only), so that he could take advantage of a procedural maneuver known as the
“sandwich,” which allowed him to present closing argument both before and after the State did.
We conclude that competent attorneys could have reasonably chosen such a strategy, such that
there is no Strickland error to evaluate cumulatively.
12
The record also contains several instances where Jimerson’s name is spelled
“Jimmerson.” We use the single-“m” spelling of Jimerson’s last name because that is the spelling
he himself used on the investigation report that he wrote in 1989.
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Bagley, 473 U.S. at 676. And as with Brady claims, the evidence must be material
to constitute a constitutional violation. See Giglio, 405 U.S. at 154. In this context,
materiality means that “there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.” See United States v. Agurs, 427 U.S.
97, 103 (1976).
We first address Jimerson’s testimony about the blood testing and then turn to
his testimony about Pelton’s alibi.
i. Testimony about blood on left shoe
Geralds contends that Jimerson testified falsely on direct examination during
the resentencing proceedings when he discussed a preliminary test that indicated
blood on Geralds’s left shoe. The exchange between James Appleman, the state
attorney, and Jimerson elicited the following testimony:
Q. With respect to those shoes were you present when
testing was done on the bottom of the shoes?
A. Yes, sir.
Q. Were they sprayed with what is known as Luminol?
A. Luminol and ---
MR. ADAMS: I object. He’s not qualified, Your
Honor.
THE COURT: Overrule the objection.
MR. APPLEMAN: You may answer.
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THE WITNESS: It is a chemical test to detect
human blood or blood.
Q. (Mr. Appleman continuing) Was those shoes
sprayed?
A. Yes, sir.
Q. And did the test come positive, showing there was
blood on the shoes?
A. Positive on the left shoe.
Q. Now, you couldn’t tell whether it was fish blood,
animal blood or what kind of blood it may be?
A. No, sir.
Q. You had a positive reaction for blood?
A. That’s correct.
However, follow-up testing by FDLE analyst Zeigler failed to demonstrate the
presence of human bloodstaining on either shoe. Nevertheless, the Florida Supreme
Court concluded that Jimerson had testified to what he personally observed and that
Geralds had not shown that this testimony was false. Geralds III, 111 So. 3d at 792–
93.
Geralds argues that the state court’s analysis of this testimony was premised
on an incorrect rule of law—that evidence needed to be “clearly false” under Giglio.
Citing the Supreme Court’s decisions in United States v. Bagley, 473 U.S. 667, and
Alcorta v. Texas, 355 U.S. 28 (1957) (per curiam), he contends that clearly
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established federal law holds that testimony can violate due process when it is simply
misleading.
To the extent Geralds argues that Bagley and Alcorta held that misleading but
literally correct material testimony necessarily violates Giglio, we disagree. Geralds
quotes language in which the Bagley plurality credited the misleading effect of a
prosecutor’s “technically correct” discovery response, but a majority of the Court
did not join that part of the opinion. Compare Bagley, 473 U.S. at 684 (plurality
opinion), with id. at 685 (White, J., concurring). Thus, these statements are not
clearly established federal law. See Lockyer, 538 U.S. at 71–72. And while Alcorta
discussed testimony that “gave the jury [a] false impression,” the opinion also
explained that the witness had “been allowed to testify falsely.” 355 U.S. at 31–32.
Accordingly, the Florida Supreme Court’s decision in Geralds III was not “contrary
to” Supreme Court precedent on a pure question of law. See Williams, 529 U.S. at405–06.
Nor was Geralds III otherwise “contrary to” clearly established law because
it reached a conclusion opposite the Supreme Court in the face of “materially
indistinguishable” facts. See id. at 406. We recognize that the line between “false
testimony” and testimony that gives a “false impression” is not always clear-cut.
But to resolve this appeal, it suffices to observe that the facts here do not resemble
Alcorta. In that case, the only witness to a murder testified that he and the victim
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were not in love with each other and that they had not dated. Alcorta, 355 U.S. at
30. The defendant was the victim’s husband, and his defense to the death penalty
required showing that he had caught his wife and the witness kissing. Id. at 28–29.
In fact, the witness and victim were engaged in an affair and had sexual intercourse
on multiple occasions. Id. at 30–31. By contrast, as the state court noted, Jimerson
testified accurately as to his personal observations of the Luminol blood testing. See
Geralds III, 111 So. 3d at 792–93. Even if we agreed that Jimerson’s testimony was
misleading, it remains distinguishable from the situation in Alcorta.
Thus, to demonstrate that legal error entitles him to habeas relief, Geralds
must show that the state court’s decision on this issue was objectively unreasonable.
See Williams, 529 U.S. at 407–09. He cannot do so. The Supreme Court has
explained that the purpose of Brady—the genesis of Giglio claims—“is not to
displace the adversary system as the primary means by which truth is uncovered, but
to ensure that a miscarriage of justice does not occur.” Bagley, 473 U.S. at 675. In
allowing Jimerson to testify accurately as to his observations of the preliminary
blood test, the Florida Supreme Court reasonably balanced this principle with the
requirements of due process. See Geralds III, 111 So. 3d at 792–93. As a result, we
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are constrained to conclude that the state court’s decision in this regard was not error
under AEDPA.13
ii. Testimony about William Pelton’s alibi
Geralds also contends that Jimerson violated Giglio by testifying that he had
confirmed the alibi of William Pelton, who was another suspect. Pelton, a friend of
Geralds, was working on a remodeling project at Club LaVela in Panama City
Beach. During the resentencing proceedings, Jimerson testified on redirect
examination that he had verified with Gregg Toriac, the Club’s general manager,
that Pelton was at work on the day that Pettibone was killed:
Q. Do you know any reason why Mr. Toriak [sic]
would lie about Mr. Pelton’s presence at work the day of
this crime?
A. No reason.
Q. As a matter of fact he provided you a document;
didn’t he, saying that I know on February 1st he, William
Pelton[,] was here from 8 a.m. to 12 and from 1 ’til 6?
A. That’s correct.
Q. So, you verified that William Pelton was at work on
the date of this crime?
13
In his opening brief, Geralds does not argue that the Florida Supreme Court’s decision
as to Jimerson’s testimony about the blood testing was based on an unreasonable determination of
the facts. As the State points out, the record contains evidence that the failure to demonstrate blood
in Zeigler’s follow-up testing could indicate that the preliminary testing “consumed everything”
and was not false. For this reason, to the extent that Geralds argues in his reply brief that Luminol
testing is not reliable, we conclude that he has not shown that the state court’s factual determination
that Jimerson testified accurately was an unreasonable one.
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A. Yes, sir.
The record on Geralds’s motion for postconviction relief contains Jimerson’s
notes from his interview with Toriac. Those notes state,
Gregg Toriac
Middlebrooks & myself were discussing William Pelton
(01-26-90) & we know he would leave work alot &
stopped at Radio Shack & would bring in a reciept [sic] to
show or cover why he was missing or gone so long.
Dave Meadows did write his time in on Feb. 1, 1989 but
he is like us wouldn’t really know if William stayed or left
that day.
Meadows, who worked under Toriac in a management position at Club LaVela,
testified at the evidentiary hearing. He described the Club’s timekeeping procedures
as informal: he would record who showed up for work each morning, but there was
no timecard system. He explained that the Club’s records might credit someone for
working from 8 to 12 and 1 to 6, but that person could have come and gone from the
workplace during those hours. Pelton, for example, often left to go to Radio Shack.
The Florida Supreme Court concluded that Geralds had failed to show that
Jimerson did not confirm Pelton’s alibi. Geralds III, 111 So. 3d at 792. The court
reasoned that Jimerson’s interview with Toriac “only indicates that Toriac, not
Jimerson, did not confirm Pelton’s alibi.” Id. Geralds argues that this result was
based on an unreasonable determination of the facts. He views the notes from
Jimerson’s interview with Toriac as showing that nobody could have verified
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Pelton’s alibi. In this way, according to Geralds, the notes “directly contradicted”
Jimerson’s testimony.
Even if we accepted Geralds’s understanding of Jimerson’s interview notes—
as proof that nobody could have verified Pelton’s alibi—we would not conclude that
he is entitled to relief on this claim. That’s because Jimerson’s testimony, taken as
a whole, was not inconsistent with this understanding. Jimerson said he verified that
Pelton “was at work on the date of this crime,” not that Pelton remained at the
workplace for the entire time. And he had previously acknowledged, on cross-
examination by Geralds’s counsel, that there was no record of Pelton staying at Club
LaVela during those hours. Because Geralds has not shown that Jimerson testified
falsely, we cannot say the state court wrongly denied this claim.
3. Claims of ineffective assistance of counsel
Next, Geralds contends that his trial counsel was unconstitutionally
ineffective during the guilt phase of his trial in failing to present certain evidence
from the crime scene and in failing to investigate and present testimony of a jeweler
who had sold Geralds a herringbone necklace before Pettibone was killed. As to
both claims, the district court concluded that Geralds had not shown that the state
court erred in determining that his counsel’s performance was not deficient.
Regarding the jeweler’s testimony, the court also concluded Geralds had not shown
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that the state court erred in holding that his counsel’s actions, even if deficient, did
not prejudice his defense.
The Sixth Amendment guarantees the right to reasonably effective assistance
of counsel for defendants in criminal proceedings. See Strickland, 466 U.S. at 687.
Under Strickland, the petitioner must show both that his attorney’s performance was
deficient and that this deficiency prejudiced his defense. Id. Each prong of this test
is a mixed question of law and fact. Id. at 698.
The performance prong requires demonstrating that counsel’s performance
was objectively unreasonable, as determined by prevailing professional norms. Id.
at 688. Counsel must exercise sufficient skill and knowledge for the defendant’s
trial to be “a reliable adversarial testing process.” Id. The Supreme Court has
recognized that this standard encompasses a wide range of tactical decisions;
accordingly, the standard is “highly deferential.” See id. at 688–89. “A fair
assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Id. at 689. The upshot is that the court must apply a “strong presumption”
that counsel’s performance was reasonable. Id.The prejudice prong requires showing a reasonable probability that the
outcome would have been different absent counsel’s errors. Id. at 694. The court
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must consider prejudice in light of the totality of the evidence before the
decisionmaker. Id. at 695. “When a defendant challenges a death sentence such as
the one at issue in this case, the question is whether there is a reasonable probability
that, absent the errors, the sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Id.The Supreme Court has explained that Strickland is a difficult test to satisfy.
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). And when federal courts review
state courts’ decisions regarding counsel’s performance, AEDPA makes the “highly
deferential” Strickland standard “doubly so.” Harrington, 562 U.S. at 105.
As we have noted, the defense at Geralds’s original trial rested its case
immediately, without presenting witnesses or other evidence. We first address
Geralds’s argument as to counsel’s failure to present evidence and then turn to his
argument that counsel failed to investigate and present a witness.
i. Failure to present evidence
Geralds’s first Strickland claim is that his counsel was ineffective for failing
to present certain physical evidence from the crime scene during his trial. The
evidence at issue is as follows: (1) the hair collected from the crime scene and
victim’s body, which did not match Geralds’s hair, (2) the handkerchief with blood
that did not match Geralds’s or the victim’s blood type, (3) fingerprints and
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palmprints, including on the victim’s jewelry box, which did not match Geralds or
any member of the Pettibone family, (4) a photograph of a shoeprint, which
Geralds’s expert said “appears to” depict a different tread from that on his own
sneakers, (5) the conclusion of an FDLE analyst that no blood was found on the
driver’s side floor mat of the victim’s car, (6) the Zeigler report’s conclusion that no
blood was ultimately demonstrated on Geralds’s Nike sneakers, (7) shoe impressions
in what looked like dry paint in the Pettibones’ carport, which appeared to resemble
the bloody shoe print inside the house,14 and (8) a broken fingernail, which came
from the victim rather than Geralds. Geralds also contends that his attorney should
have elicited additional testimony that no blood was apparent on Geralds when he
arrived at his grandfather’s house on the day Pettibone was killed. Given the State’s
testimony that the perpetrator engaged in a struggle with Pettibone and then dragged
her body across the floor, Geralds argues that this additional evidence would have
suggested that he was not guilty.15
14
Geralds argues that this evidence would have shown that the tread design of his shoes
was common.
15
Geralds also argues that counsel should have made clear that the gloves that Geralds’s
grandfather saw him wearing were driving gloves, which did not cover his fingertips. Geralds’s
grandfather testified to this effect on direct examination, but the prosecutor stated during closing
argument that the gloves were the “kind that don’t leave fingerprints in housesWe note that the
district court rejected Geralds’s Strickland argument that counsel was ineffective for failing to
object to this statement, and Geralds did not receive a certificate of appealability to proceed with
his appeal on this basis. ]
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As we have noted, Geralds’s trial counsel died before the evidentiary hearings
on his motion for postconviction relief. His testimony is therefore not part of this
record. Geralds also emphasizes that his attorney was ill with acute Hepatitis B in
the summer of 1989 and confined to bedrest. Although counsel informed the court
of his illness and offered to withdraw, the trial judge encouraged him to continue
representing Geralds if he felt able to do so. In September, his physician restricted
him to a part-time work schedule. Geralds suggests that this illness explains why
trial counsel did not take more than six depositions, which did not conclude any
FDLE lab analysts.
In denying this claim, the Florida Supreme Court observed that the strategy
of Geralds’s counsel was to create doubt at trial by emphasizing the State’s lack of
evidence. Geralds III, 111 So. 3d at 794. The court pointed to counsel’s closing
argument, which referred to the lack of evidence of blood in the car, the non-
definitive showing of blood on Geralds’s sneakers, the absence of testimony about
Geralds’s clothes being bloody, the commonness of the shoes’ tread design, the
broken fingernail, and the lack of fingerprint and hair evidence, despite the samples
having been taken from Geralds. Id. at 794–95. The court then rejected Geralds’s
Strickland argument “that trial counsel should have presented evidence of this lack
of evidence instead of merely arguing in closing that there was no evidence.” Id. at
795. The court underscored that closing argument, while not itself evidence, is a
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“powerful tool” and concluded that counsel did not perform deficiently by
highlighting the holes in the State’s case in closing argument, rather than through
Geralds’s own witnesses. See id. As an example, the court noted that by bringing
up the broken fingernail in closing argument, counsel was able to suggest that it
belonged to a different perpetrator, rather than—as the FDLE analyst had
concluded—to Tressa Pettibone herself. See id. But even if counsel’s performance
was deficient, the court further concluded that Geralds’s argument failed on
Strickland’s prejudice prong because “counsel referenced the lack of evidence in
closing argument and the jury was aware of it.” Id.Geralds contends that the Florida Supreme Court’s conclusion was both
contrary to and an unreasonable application of clearly established federal law. He
does not, however, identify a question of pure law on which the state court
contradicted Supreme Court precedent, nor does he identify a “materially
indistinguishable” set of facts from such case law. See Williams, 529 U.S. at 405–
06. Accordingly, to prevail on this claim, he must show that the state court’s
decision “involved an unreasonable application” of Supreme Court decisions. See
id. at 406–09; 28 U.S.C. § 2254(d)(1).
The heart of Geralds’s argument is that, on the performance prong, the state
court erred in treating closing argument as a constitutionally adequate substitute for
presenting exculpatory evidence. He further contends that, in failing to present this
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evidence at trial, his counsel misunderstood a fundamental point of law—that
attorneys’ arguments before the jury are not evidence. However, as the broken
fingernail example shows, rebutting opposing counsel’s case by argument rather
than evidence can be an effective approach. And Strickland affords attorneys wide
latitude to make these kinds of strategic decisions. See Horton v. Zant, 941 F.2d
1449, 1460–61 (11th Cir. 1991). For this reason, we have rejected applying bright-
line rules to determine what constitutes reasonable performance by counsel.
Chandler v. United States, 218 F.3d 1305, 1317 (11th Cir. 2000) (en banc).
Even assuming without deciding that we accept Geralds’s argument that the
state court erred, then we would review the claim de novo. McGahee v. Ala. Dep’t
of Corr., 560 F.3d 1252, 1266 (11th Cir. 2009). And we may affirm on any basis
supported by the record, even one on which the district court did not rely. Trotter v.
Sec’y, Dep’t of Corr., 535 F.3d 1286, 1291 (11th Cir. 2008). Here, at oral argument,
the State noted that at the time of Geralds’s original trial, Florida law permitted
defense counsel to make a “sandwich” closing argument, addressing the jury both
first and last, in cases where the defendant presents no testimony except his or her
own. See Boyd v. State, 200 So. 3d 685, 705 (Fla. 2015) (discussing Fla. R. Crim.
P. 3.250).16 Geralds’s counsel opted for that procedure during the original trial,
16
In 2007, at the direction of the Florida Legislature, the Florida Supreme Court amended
Florida Rule of Criminal Procedure 3.250 to eliminate the option of making “sandwich” closing
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giving both the first closing argument and a final rebuttal. As we have noted,
choosing the “sandwich” required counsel to forgo putting on a case. This was a
classic strategic choice. Considering the benefit of having the first and last word
before the jury, balanced against the limited exculpatory value of the evidence that
Geralds cites in this claim, we cannot say that counsel’s performance, including in
investigation and preparation for trial, “amounted to incompetence under ‘prevailing
professional norms.’” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at
690); see also Ward, 592 F.3d at 1164. This is particularly so in view of the theory
counsel pressed here: that the State performed a slipshod, incomplete investigation.
We are not persuaded by Geralds’s arguments to the contrary. First, he
contends that counsel could have presented this evidence, namely the blood typing
of the handkerchief and the fingerprint analysis, while maintaining his “sandwich”
closing arguments. But counsel’s cross-examination of Zeigler, which we have
quoted earlier, shows that this was not so. When Geralds’s attorney asked Zeigler if
she had tested anything else, the prosecutor successfully objected to the question as
outside the scope of direct examination. Second, he emphasizes the “critically
exculpatory” value of the handkerchief with blood that did not match Geralds’s or
Tressa Pettibone’s blood type. As we concluded previously, though, that
arguments. See In re Amends. to the Fla. Rules of Crim. Proc.-Final Arguments, 957 So. 2d 1164,
1166–67 (Fla. 2007) (per curiam).
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investigators found a fingertip-sized amount of another person’s blood on a
handkerchief at the crime scene does not undermine the record of guilt in this case.17
Given our conclusion that Geralds’s counsel did not perform deficiently, we
do not address Strickland’s prejudice prong.
ii. Failure to investigate and present witness Anthony Swoboda
Geralds also argues that his trial counsel was ineffective for failing to
investigate and present testimony by Anthony Swoboda, a jeweler who had sold him
a herringbone necklace before Tressa Pettibone’s death. In Geralds’s view,
Swoboda’s testimony would have suggested that the necklace that Geralds pawned
was not taken from Pettibone.
Swoboda worked at a jewelry store in the local mall. At the evidentiary
hearings on Geralds’s motion for postconviction relief, he testified that he had sold
Geralds a gold herringbone chain, with nothing particularly distinctive about it. He
explained that there was no paperwork documenting the sale; to avoid recording
sales tax, he sold it “under the table” outside of his employment at the jewelry store.
17
In a supplemental brief filed after oral argument, Geralds asserts that the blood type
identified on the handkerchief did not match “any of the victim’s family members.” He provides
no citation to the record supporting this assertion, which did not appear in his opening or reply
brief. The Zeigler report compared the blood type on the handkerchief to that of Geralds, Tressa
Pettibone, and another suspect (Kenneth Dewey Mayo), but it did not analyze the blood types of
other members of the Pettibone family. The apparent lack of support for Geralds’s representation
is significant because, as Jimerson testified at Geralds’s second trial, Tressa Pettibone’s son had a
nosebleed the night before the crime occurred.
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He guessed that he probably sold it for around $225. In his brief, Geralds points out
that this testimony could have explained why he asked the pawn shop owner whether
the herringbone necklace was real gold, as the jury heard at Geralds’s original trial.
A police investigator and Geralds’s trial counsel had both interviewed
Swoboda. At the evidentiary hearing, Swoboda testified that he understood that
Geralds’s attorney was likely to call him to testify at trial. Indeed, Geralds named
Swoboda as a potential witness in a filing served on January 15, 1990. But he was
not called to testify.
The Florida Supreme Court denied this Strickland claim, holding that Geralds
had failed to demonstrate either deficient performance or prejudice. Geralds III, 111
So. 3d at 797. On both prongs, the court emphasized that Geralds had not explained
how Tressa Pettibone’s blood type ended up on the necklace that he pawned. See
id. Because Swoboda’s testimony would not have undermined that aspect of the
State’s case, the court held that trial counsel’s failure to call him as a witness was
neither deficient performance nor prejudicial to Geralds. See id. And on the
prejudice prong, the court concluded that “[a]t best, Swoboda’s testimony only
establishes that Geralds purchased an unrelated herringbone necklace at a time
unrelated to the murder.” Id. (We separately note that calling Swoboda would have
meant forgoing the “sandwich” argument.).
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On appeal, Geralds raises four arguments for why he is entitled to relief on
this claim. First, he challenges the state court’s factual determination that the
necklace Geralds purchased from Swoboda was unrelated to the events in this case.
He points to Swoboda’s testimony at the evidentiary hearings and the notes from law
enforcement’s interview with him. Those notes recorded Swoboda’s statement that
the necklace was a thin chain sold “under the table” to Geralds. He also refers to a
document containing the Pettibone family’s description of a missing herringbone
necklace, and he claims that this description did not match the herringbone necklace
shown to the jury at trial. And he contends that the blood tests of the necklace were
not conclusive.
But this record does not show that the Florida Supreme Court’s factual
determination was unreasonable. See 28 U.S.C. § 2254(d)(2). Swoboda’s testimony
and the notes from law enforcement are not inconsistent with the conclusion that
Geralds purchased an unrelated herringbone necklace from Swoboda. And nothing
in the family’s list of missing jewelry indicates that the necklace presented at trial
does not match its description of a “Herringbone necklace[,] thick gold[;] comes
down into a v shape but doesn’t lay flat.” Plus, the jury might not have found
Swoboda’s testimony credible, had he testified. Most importantly, Geralds does not
point to any evidence in support of his argument that the blood tests were unreliable.
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Even if the tests were not definitive, the state court’s interpretation of them was not
unreasonable.
Second, Geralds challenges the state court’s determination that he pawned any
necklace. When Geralds testified at his resentencing trial, he stated that he had never
gone to the pawn shop or pawned a gold necklace. He also stated that he did not
carry a wallet. He now points to a note handwritten by Jimerson that is dated March
7, 1989, and states “collect pawn ticket from wallet of Geralds.” Geralds also
observes that he did not have a wallet when he was arrested and argues that the date
of Jimerson’s note undermines the State’s evidence about the pawn shop.
At Geralds’s original trial, Detective Paul Winterman from the Panama City
Police Department testified that he went to the pawn shop on March 1, 1989, after
learning that a necklace had been pawned on February 1. Two members of the
Pettibone family accompanied the detective and identified the necklace as having
belonged to Tressa Pettibone; at that time, they also noticed the bloodstain on the
necklace. The officer obtained two pawn tickets from the shop, and the pawn broker
testified that Geralds had received those tickets when he brought in the gold
herringbone necklace on February 1, 1989, and presented his Florida driver’s license
as identification. The tickets listed Geralds’s address, birthdate, driver’s license
number, and physical description. The pawn broker also testified that he recognized
Geralds from that encounter. At Geralds’s resentencing trial, Jimerson summarized
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this evidence. He also testified that he had collected a matching pawn ticket from
Geralds’s wallet, at the jail, on March 7, 1989.
Based on this record, Geralds has not shown that the state court’s decision
was based on an unreasonable determination that he pawned a necklace. A jail log
does indicate that Geralds did not have a wallet when he was booked on March 1,
1989. While the log and Jimerson’s handwritten note may raise questions about the
sequence of events that led officers to the pawn shop, they do not render
unreasonable under AEDPA’s standard of review the state court’s factual
determination that Geralds pawned a necklace. In particular, they do not undermine
the evidence from trial that pawn tickets from the transaction listed Geralds’s
personal information or that the pawn broker identified Geralds from their encounter
on February 1, 1989. We cannot say the state court erred on this basis.
Third, on Strickland’s performance prong, Geralds contends that it was
objectively unreasonable for his trial counsel not to call Swoboda to testify. In
Geralds’s view, Swoboda’s testimony would have created reasonable doubt as to
whether Geralds pawned Pettibone’s necklace. But, as the Florida Supreme Court
reasoned, even if Swoboda had been called, Geralds does not explain how he would
have overcome the evidence of blood on the necklace. See Geralds III, 111 So. 3d
at 797. And as the State observes in its brief, Swoboda testified at the evidentiary
hearings that the necklace he sold Geralds was not distinctive, suggesting that he
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would not have been able to identify it later. Given these observations, we cannot
say the state court’s conclusion on the performance prong was objectively
unreasonable.
Fourth, and finally, Geralds argues that he was prejudiced by the failure to
call Swoboda as a witness because counsel could have argued that “the entire
recovery and identification of the herringbone necklace was fabricated.” But this
ignores the Florida Supreme Court’s reasoning that Geralds did not discredit the
blood stain matching Pettibone’s blood type. See id. This reasoning was not
objectively unreasonable.18
4. For-cause challenges to two prospective jurors
Finally, Geralds argues that the state courts erred in rejecting his argument
that two members of the jury pool at his original trial should have been dismissed
for cause. He contends that those two prospective jurors, Michael Moss and Stephen
Farrell, were unable to set aside their knowledge of the case from pretrial media
coverage and their relationships within the community, and that the state courts’
decisions to the contrary were based on an unreasonable determination of the facts.
The district court concluded that Geralds did not demonstrate entitlement to relief
18
As we have noted previously, the Florida Supreme Court did not err under AEDPA by
not evaluating the materiality of Geralds’s Strickland and Brady claims together.
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on this issue. But the court expressed concern that the state trial court did not grant
the for-cause challenges, given that Geralds was charged with a capital offense.
Due process requires an impartial decisionmaker. See Turner v. Louisiana,
379 U.S. 466, 471–72 (1965). In the context of a criminal jury trial, jurors must
therefore base their verdict on the evidence presented in the courtroom during trial.
See id. at 472–73; Holbrook v. Flynn, 475 U.S. 560, 567 (1986). But this principle
does not mean that jurors must have zero prior exposure to the facts and issues
involved in a case. Irvin v. Dowd, 366 U.S. 717, 722 (1961). Instead, the trial judge
must determine whether the juror can set aside his initial impression or opinion about
the case. See id. at 723.
Ordinarily, the question of whether a juror is unconstitutionally biased is a
mixed question of law and fact, and the trial court’s ruling should stand unless it is
manifest error. Id. But in the context of federal habeas review of a state-court
conviction, the standard is even more deferential. The question “is plainly one of
historical fact: did a juror swear that he could set aside any opinion he might hold
and decide the case on the evidence, and should the juror’s protestation of
impartiality have been believed[?]” Patton v. Yount, 467 U.S. 1025, 1036 (1984).
The first prospective juror, Moss, was a U.S. Air Force officer who also
worked as a weatherman for the local news channel. He had read in the news about
Tressa Pettibone—who she was and how she was killed—around the time of the
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crime, though he said he had not discussed it with his coworkers. While he did not
recall reading anything about Geralds, he had heard coverage on television and the
radio about a jail escape attributed to Geralds. Asked whether he could base his
decision as a juror solely upon the evidence presented at trial, he said he could. But
he added that he was not sure whether he “could totally set everything aside, because
[he had] heard it.” He explained that he could not forget things he had read or heard
about the case, but he could base his judgment solely on the evidence at trial. Still,
he conceded that the outside information might enter his mind to a small degree.
Geralds’s trial counsel challenged Moss for cause. He argued that Moss’s
work for the television channel was concerning, given extensive coverage of the case
in the media. And he underscored that Moss was unable to say that he could totally
set aside his outside knowledge. The trial court reserved ruling on the challenge but
later denied it. Nevertheless, Moss did not end up on the jury.
The second prospective juror, Farrell, had a sister-in-law who lived a few
blocks from the Pettibones’ house, where the crime occurred. The proximity had
caused concern for his sister-in-law. The Pettibone children had played with his
sister-in-law’s kids, and he said he may have been over to his sister-in-law’s house
while the Pettibone children were there. Furthermore, Farrell’s wife and her sister
had conversations about what happened, which Farrell sometimes overheard. He
remembered some details about a body and later a vehicle being found, but he said
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he did not pay close attention to the media. He stated that he could give Geralds the
presumption of innocence to which he was entitled as defendant. And despite his
sister-in-law’s concern, Farrell did not think he would be uncomfortable sitting on
the jury.
Geralds’s counsel challenged Farrell for cause because of his family’s
connection to the Pettibones and because of the concern his family members
expressed at the time of the incident. The trial judge denied the challenge. Having
used up his initial allotment of peremptory challenges, Geralds’s counsel later sought
two more peremptory challenges, which the court denied. Farrell ended up on the
jury.
On direct appeal, the Florida Supreme Court held that the trial judge did not
abuse his discretion in refusing to strike Moss and Farrell for cause. Geralds I, 601
So. 2d at 1159. The court noted that their responses on voir dire indicated that they
could set aside what they knew from pretrial media coverage and render a verdict
based on the evidence at trial. Id.Geralds contends that the Florida Supreme Court’s analysis in Geralds I was
based on an unreasonable determination of the facts. We disagree. Moss stated
multiple times during voir dire that he would base any decision as a juror solely on
the evidence presented at trial. Similarly, Farrell said he would be able to accord
Geralds the presumption of innocence. Farrell also said that he had not reached any
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conclusions about Geralds from talking with his wife and sister-in-law. Geralds has
not shown clear and convincing evidence that the state courts erred in crediting these
statements.
IV. CONCLUSION
For the reasons set forth in this opinion, we affirm the district court’s judgment
denying Geralds’s habeas petition.
AFFIRMED.
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