CROSLEY ALEXANDER GREEN

v.

SECRETARY, DEPARTMENT OF CORRECTIONS

TJOFLAT, Circuit Judge:

The power of the federal courts to grant a writ of habeas corpus setting aside a state prisoner's conviction on a claim that his conviction was obtained in violation of the United States Constitution is strictly circumscribed. First, the prisoner must have exhausted his state remedies. 28 U.S.C. § 2254(b)(1)(A). He presented the claim to the state courts, and they denied it on the merits. Second, the federal court may not grant the writ on an exhausted claim unless it finds that the state courts' adjudication of the claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). Additionally, factual findings made by state courts are presumed correct until rebutted by "clear and convincing

* The Honorable William. B. Traxler, Jr., Senior Circuit Judge for the United States Court of Appeals for the Fourth Circuit, sitting by designation.

18-13524 Opinion of the Court³ evidence." 28 U.S.C. § 2254(e)(1). Finally, the federal court may only consider the merits of an unexhausted claim if the prisoner establishes "cause and prejudice" for his failure to exhaust, Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573 (1982), or that he is "actually innocent" of the crime for which he was convicted. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2646-49 (1986).

In this case, Crosley Alexander Green, a state prisoner, petitioned the District Court for a writ of habeas corpus vacating his convictions for murder, armed robbery, and kidnapping with bodily injury. His petition presented nineteen constitutional claims. Most had not been exhausted. The Court granted the writ on an unexhausted claim and denied the writ on the rest. The State appeals the granting of the writ, and we reverse. The prisoner crossappeals the Court&#x²⁷;s denial of the writ on six of the claims, and we affirm.

We begin by describing the circumstances that led to the prisoner&#x²⁷;s convictions. From there, we portray step by step the complex and confusing litigation history-initially in state court, and then in federal court-of the claims we decide in these appeals.

I.

A.¹

At approximately¹⁰:00 p.m. on April³, 1989, in the rural part of Brevard County, Florida, Charles “Chip" Flynn Jr., age twenty-one, went to visit his on-again, off-again girlfriend Kim Hallock, age nineteen. About an hour later after watching a movie, they decided to go for a drive in Flynn&#x²⁷;s pick-up truck. Around¹¹:25 p.m., the two ended up in a secluded area of Holder Park next to some sand dunes. Flynn parked his truck there, and he and Hallock smoked marijuana and discussed the nature of their relationship.

Hallock and Flynn had been seeing each other for about a year and a half. And while they had once gone steady, their relationship was now an open one. Not only was Flynn seeing Hallock, he was involved with other women as well, including a Patti Larney.

As Hallock and Flynn smoked and discussed their relationship, a sheriff&#x²⁷;s car drove by but continued on without stopping.² Almost immediately after the car passed, a black male approached Flynn&#x²⁷;s truck and warned Hallock and Flynn, both white, to watch out for police. The man then disappeared into the darkness.

A few minutes later, Flynn, barefoot, got out of the truck to relieve himself. He immediately found himself face to face with the same black male as before, who was now holding a handgun.

2 Brevard County Sheriff&#x²⁷;s Deputy Mark Rixey testified that he was on patrol that evening and drove through Holder Park sometime between¹¹:30 p.m. and¹:30 a.m.

18-13524 Opinion of the Court⁵

Hallock heard Flynn say nervously, “Hold on. Wait a minute, man. Hold on. Put it down." At that point, she retrieved Flynn&#x²⁷;s handgun from the glove box beneath the dashboard and hid it under a pair of jeans lying next to her on the truck&#x²⁷;s seat. The man ordered Flynn to his knees and demanded at gunpoint that Hallock and Flynn give him any money they had. Hallock gave the man five dollars, but Flynn insisted that he had no money.

The man told Hallock to give him a shoelace from one of Flynn&#x²⁷;s shoes, which were on the floorboard on the driver&#x²⁷;s side of the truck, and then used the shoelace to tie Flynn&#x²⁷;s hands behind his back. While tying Flynn&#x²⁷;s hands, the man accidentally discharged his weapon, but no one was injured. At this point, the man noticed that Flynn had a wallet in his back pocket. He pulled it out, threw it to Hallock, and told her to count the money it contained. It amounted to $185.

The man ordered Hallock to start the truck and forced Flynn to get in and sit next to the passenger door. Then, he got in and positioned himself behind the steering wheel. Hallock sat between the man and Flynn. The man drove east on Parrish Road across U.S.¹ until he reached Hammock Road, all the while holding a gun to Hallock&#x²⁷;s side. At Hammock Road, the man turned left and drove north 200 to 300 yards before pulling into a remote orange

After coming to a stop in the orange grove, the man pulled Hallock out of the truck. Hallock broke free of the man&#x²⁷;s grip and tried to run away. While the man was regaining control of her, Flynn, with his hands still tied behind his back, grabbed the handgun Hallock had hidden beneath the pair of jeans and exited the truck on the passenger side. He fell to the ground in the process and attempted to shoot at the man. When the man turned his attention to Flynn, Hallock jumped in the truck and drove off. She heard gun shots as she fled.

Hallock headed south back down Hammock Road to Jay Jay Road and took Jay Jay Road west to U.S. 1. Once on U.S.¹, she headed south for about half a mile to LaGrange Road, at which point she turned right and proceeded to Flynn&#x²⁷;s best friend David Stroup&#x²⁷;s house trailer. In driving there, she chose not to stop at houses along the way, to proceed on to a hospital located nearby on U.S.¹, or to go to her parent&#x²⁷;s home.⁴ From Stroup&#x²⁷;s trailer, Hallock called 911 and reached the communications center at the Sheriff&#x²⁷;s Office.

B.

3 Indian River Lagoon is a grouping of three lagoons on Florida&#x²⁷;s Atlantic Coast. The lagoon contains five state parks and a national seashore.⁴ The hospital is located on U.S.¹ approximately eight-tenths of a mile south of LaGrange Road.

18-13524 Opinion of the Court 7

The communications center documented the 911 call at 1:11 a.m. on April⁴, 1989. The caller identified herself as Kim Hallock. She stated that a black guy had pulled a gun on her and her boyfriend and "took us somewhere” in the woods “off of Jay Jay Road." She said this was “all I know . . . but I know how to get there.” The operator advised her to "just stay right there . . . and we&#x²⁷;ll have a deputy come out and then he&#x²⁷;ll take you out to where . . . this is at." At 1:12 a.m., Sergeant Diane Clarke and Deputy Mark Rixey, driving separate patrol cars, responded to the call. The communications center dispatcher initially sent them to the corner of Jay Jay Road and U.S.¹, but on arriving there, they saw nothing of significance. They requested further direction from the dispatcher, who sent them east on Jay Jay Road.

Deputy Wade Walker was dispatched to Hallock&#x²⁷;s location at the trailer park. He arrived at around¹:30 a.m. By that time, Hallock had called her mother, who told her not to leave until she got there. Walker advised Hallock to wait on her mother, delaying them about two minutes. In the meantime, Clarke and Rixey had been unable to find the orange grove and were requesting additional directions. Walker and Hallock met up with Clarke and Rixey and Hallock directed them to Flynn. Upon arriving at the

5 Sergeant Clarke, a supervisor in the Sheriff&#x²⁷;s Office, heard the 911 call, Hallock&#x²⁷;s description of her and Flynn&#x²⁷;s abduction, and what had occurred at the orange grove. Clarke told the communications center dispatcher that she would go with Deputy Rixey, who was working the night-time patrol shift, to try to find the orange grove.

At 1:42 a.m., Clarke and Rixey found Flynn lying face down, covered in blood, with his arms tied behind his back. His loaded .22-caliber revolver was a few feet away. After untying Flynn&#x²⁷;s hands, they repeatedly asked Flynn what had happened. His sole response was, “Get me out of here. I want to go home."

Clarke had the dispatcher send a rescue unit to the scene and with Rixey attempted to staunch the bleeding. But they were unable to locate its source, a single gunshot wound in the chest. They initiated a breathing exercise twice while awaiting the rescue unit&#x²⁷;s arrival. Unfortunately, by the time it arrived, at 1:57 a.m., Flynn had succumbed.⁶

Clarke and Rixey remained on site until Agent Debbie Demers, a criminalist, and Agent Scott Nyquist, & a homicide

6 Flynn was officially pronounced dead upon arrival at the hospital. 7 Agent Demers, a member of the Sheriff&#x²⁷;s Office Criminalistics Unit handling crime scene investigation, preserved the crime scene in the orange grove and took photographs. These photographs included pictures of footprints found at Holder Park, where Flynn had parked his truck and encountered Green.⁸ Agent Nyquist, a member of the Sheriff&#x²⁷;s Office Homicide Unit, became the case agent. He was “responsible for maintenance of the case file [and] liaison with [the] crime labs, [the] evidence technicians, [and] the State Attorney&#x²⁷;s Office. If there [were] any documents that [were] prepared, such as search warrants, etc., he [was] responsible for the preparation of those documents.” Nyquist also interviewed witnesses and assimilated the information he received from all who were working under his direction.

18-13524 Opinion of the Court⁹ investigator, arrived and assumed control of the crime scene. At no point before or after their arrival did Clarke or Rixey see or speak with Hallock, who stayed in Deputy Walker&#x²⁷;s patrol car with Walker a good distance from the spot where Flynn&#x²⁷;s body was found. Once Clarke and Rixey left the scene, neither had any further involvement in the homicide investigation.

Walker took Hallock to the North Precinct station of the Brevard County Sheriff&#x²⁷;s Office in Titusville for questioning. Agent Nyquist interviewed Hallock at around⁴:45 a.m., and in a tape-recorded statement she related what had transpired while she was with Flynn. About two hours later, Sergeant Tom Fair, having obtained from the Homicide Unit a box of sixty to seventy mug shot photographs of black males, showed the photographs to Hallock to see if she could identify the individual who had assaulted her and Flynn. She was unable to identify his photograph.

Meanwhile, at 5:10 a.m., Deputy O&#x²⁷;Dell Kiser, the Sheriff&#x²⁷;s Office canine officer, and his dog, Czar, were called to the area in Holder Park where Flynn had purportedly parked his truck.¹⁰ Agents Debbie Demers, Barry Liford, and Randy Arieux of the

Sheriff&#x²⁷;s Office Criminalistics Unit were there to meet him. They directed Kiser&#x²⁷;s attention to some visible footprints. The footprints were "fresh,” made by “some type of tennis shoe.” Kiser put Czar on the footprints and “told him to track."¹¹ The footprints were "headed north.” Kiser could "tell [that] by the point of the shoe.” But he and Czar went "the opposite way of the track,” “south on Glendale Boulevard . . . for probably 200 yards," where the “road turns from dirt to pavement,"12 toward Briarcliff Way. Czar turned right on to Briarcliff Way and “continued west on Briarcliff to a house . . . on the northeast corner of the intersection of Briarcliff and Belvedere." Czar stopped "in the front yard" of the house. They stopped there because two dogs in the carport “started barking." The address for the house was 3658 Briarcliff Way. Two days later, on April⁶, Celestine Peterkin, Green&#x²⁷;s older sister, questioned and said that the house was her residence and that Green "stayed [there] some of the time.”13

Kiser had Czar run a “second track." Czar started with the former scent, the one picked up at the spot where the first track

18-13524 Opinion of the Court¹¹ began, and "went around the baseball fields." That track ended where the first track began.

Shortly after⁶:00 a.m. on April⁴, Hallock, still at the North Precinct station, met with a police sketch artist who created a composite of the man she and Flynn had encountered at Holder Park. She told the sketch artist that the man “had a wide nose like a flaring nose . . . . His eyes were not big but not small . . . . His lips weren&#x²⁷;t big.” She further described him as wearing “a green like army jacket, jeans, and shoes like a work boot because it was heavy."

The next day, April⁵, Florida Today, the major daily newspaper serving Brevard County, reported on the Flynn homicide in its morning edition. The report included a description of the alleged assailant and the composite the sketch artist had created of his face.¹⁴ Dale Carlisle read the report, concluded that the composite sketch was of Crosley Green, and called the Brevard County Sheriff&#x²⁷;s Office with the following information. He, his wife, and his children had visited Holder Park on the evening of April³ to watch a baseball game. While there, he saw a man he thought he knew from junior high school days. His nickname back then was

12 Opinion of the Court 18-13524

Papa Green. So, he approached the man and asked him whether he was "Papa Green.” The man replied that he was.¹⁵

Willie B. Hampton, formerly an auxiliary police officer with the Titusville Police Department, also read the Florida Today April⁵ report on the Flynn homicide. He recognized the individual in the artist&#x²⁷;s sketch and contacted the Brevard County Sheriff&#x²⁷;s Office to relate what he had observed on the evening of April³ at Holder Park. At the time, he was umpiring Little League games and saw Crosley Green standing outside the fence watching a game. He recognized Green because he had known Green and his family, his brothers, sisters, and mother, for years. Green stood there behind the fence for the whole game, until it ended at around¹⁰:00 p.m.

Hallock was summoned to the North Precinct station late in the evening of April 5. Her father, Robert Hallock, accompanied her. Sergeant Fair had Agent Nyquist put a photographic lineup together. It contained the photographs of “six black males of similar physical characteristics . . . numbered¹ through 6." Fair told Hallock that one of the photographs "may or may not [be] of the individual who had done these things.” She identified the

18-13524 Opinion of the Court 13 photograph in position No. 2 as being the individual who had kidnapped her and shot Flynn. No. 2 was a photograph of Crosley Green.¹⁶

After Hallock identified Green as the assailant, a warrant was obtained for his arrest. On June⁸, 1989, he was found in the Town of Mims and taken into custody.

C.

On June²⁰, 1989, a grand jury returned an indictment to the Circuit Court of Broward County charging Green with first-degree felony murder (Count I), a capital crime, robbery with a firearm (Counts II and III), and kidnapping (Counts IV and V).17 At

14 Opinion of the Court 18-13524 arraignment, Green pled not guilty to all counts. The prosecutor subsequently notified Green that the State would seek the death penalty on Count I. This required the Circuit Court to conduct Green&#x²⁷;s trial in two phases, a guilt-innocence phase and a penalty phase.

After months of discovery,¹⁸ the Circuit Court set the case for trial to begin on August²⁷, 1990. It started on schedule.

1.

In the guilt-innocence phase, the State established the facts presented in subparts A and B, supra, with evidentiary exhibits, witnesses Agent Nyquist and his team identified prior to Green&#x²⁷;s indictment, and three individuals the team uncovered as their investigation progressed. These three individuals were Sheila Green, Lonnie Hillery, and Jerome Murray; each testified that Green had confessed to killing Flynn.

Sheila Green19 said Green was "my oldest brother." The day after Flynn&#x²⁷;s murder, she was with Green at her sister Celestine (kidnapping). Counts II and IV alleged offenses against Flynn, while Counts III and V alleged offenses against Hallock.¹⁸ Discovery under Florida Rules of Criminal Procedure 3.330 is extensive and reciprocal. In this case, scores of depositions were taken, even of witnesses who would not be testifying at trial. 19 Sheila Green, Lonnie Hillery, and several others had been indicted in federal court for "conspiracy with intent to distribute and possession with intent to distribute cocaine.” All were convicted except Hillery. Sheila Green was awaiting sentencing when she testified as a prosecution witness at Green&#x²⁷;s

18-13524 Opinion of the Court¹⁵

Peterkin&#x²⁷;s house at 3658 Briarcliff Way in Mims. The “rumor was out” that Green had killed Flynn. She asked him if he “did kill that dude." He said he "didn&#x²⁷;t intentionally make it happen that way," that "the dude pulled the gun . . . and motioned for the . . . the girl to run for help." "He said he went struggling with the dude. It was him or either the dude, [sic] but the dude had the gun."

Lonnie Hillery, Sheila Green&#x²⁷;s boyfriend and the father of two of her children, saw Green in the early morning hours of April⁴, 1989, in a field by the government housing project located "by [Green&#x²⁷;s] &#x²⁷;grandfather&#x²⁷;s barbecue stand." Hillery, who knew "Papa” Green, said he seemed “shaky” and “scared,” “like he was high on something,” and he was dirty, “like really scuffed up like, you know, like he&#x²⁷;d been in the dirt or something.” When he asked Green what was wrong, Green said, "I fucked up, man. I fucked up." "Man, some people came through and was trying to buy something from [me] and they tried to get [me], and [I] just fucked up." "[I]t was a man and woman.”“He said they tried to get him, they hustled a little bit and the girl took off and that&#x²⁷;s where he fucked up." A few days later, Green told Hillery that he had gotten rid of his clothes and that everything was going to be all right.

trial. The presentence report recommended that she be imprisoned for ten years. She anticipated that Christopher White (who was prosecuting the charges against Green) would appear at her sentencing hearing and inform the federal judge of the testimony she gave for the State at Green&#x²⁷;s trial.

16 Opinion of the Court 18-13524

Jerome Murray was in Mims one afternoon standing and talking with twenty or thirty “cocaine heads" on a street corner. Murray was drunk. At some point, Green “came and said he just killed a man." Green said, “I&#x²⁷;m going to disappear" but nothing else. Murray added: “I heard what he said, and then I read it in the paper the next day, but the description didn&#x²⁷;t fit it until another paper came out and then had his name underneath of it.”

After presenting evidence sufficient to establish the facts stated in subparts A and B, the State rested its case in chief. Green moved for a directed verdict and made multiple motions for mistrial.²⁰ The Court denied the motions.

Green&#x²⁷;s attorney called five witnesses to testify in Green&#x²⁷;s defense: Terrell Kingery, Charles Smith, Brenda Harper, James Carn, and Celestine Peterkin. Kingery, the first called, was an expert in the "field of shoe and tire impressions.” He testified that he had examined four of the plaster casts that had been made (at the Sheriff&#x²⁷;s Office request) of foot impressions Deputy Kiser had observed while Czar was following the scent in the Holder Park area. According to Kingery, all four impressions were of tennis shoes of “a size ten and not larger than a size twelve.” The impressions were made of several named brands, perhaps more than ten.

20 Green moved for a mistrial on the basis of objections he made regarding Hallock&#x²⁷;s photographic and in-court identifications of him, Czar&#x²⁷;s tracking at the hands of Deputy Kiser, and Robert Hallock&#x²⁷;s testimony involving conversations he had with Hallock, his daughter.

18-13524 Opinion of the Court 17

Charles Smith was the “Chief Umpire” at the Holder Park baseball fields. He was at the Park umpiring a game in the evening of April³, 1989. Green was there too.21 Smith umpired a game and visited with Green "between innings, and talked to him after the game.” Green “was wearing tennis shoes.” He was “sure” that Green wasn&#x²⁷;t wearing “any kind of field jacket or army jacket." Before Smith left Holder Park “a few minutes after⁹:00,” Green asked him for money. “It was probably more than $2.”

Brenda Harper lived across the street from Hallock. Hallock came to her house on April⁴ at around¹¹:00 a.m. on Hallock&#x²⁷;s way home from the Sheriff&#x²⁷;s office. Harper said Hallock “had a grass stain, dirt, right here on her shirt" and then indicated where the stain was located.

James Carn, a maintenance mechanic, was employed by North Hydro in Rockledge, Florida. On April³, 1989, he got off work at 11:00 p.m. and went to Carleen Brothers&#x²⁷; house in Mims. Carn was seeing Brothers, a cousin of Green&#x²⁷;s, at the time. When he arrived at 11:50 p.m., he discovered that another man was in the house. An argument ensued and the man left. At that point, Brothers, followed by Carn, went across the street to a “friend&#x²⁷;s house, Aretha&#x²⁷;s," arriving "at about 12:10 or 12:15.” They stayed there "another ten or fifteen minutes, and arrived back at Brothers&#x²⁷; house around 12:30 p.m.” “About five or ten minutes after that

21 Smith drove to Holder Park with Green&#x²⁷;s brother, O&#x²⁷;Connor Green. Smith had known Green for “as long as I&#x²⁷;ve been here.”

Celestine Peterkin testified that when she visited her younger sister Sheila Green in prison, Sheila never told her that Green admitted to killing Flynn. Sheila was in prison pending sentencing for cocaine distribution.23 Peterkin said Sheila loved her kids and "would do anything to be with her kids." Peterkin told the police on April⁶, 1989, that Green “was living with [her] and her cousin in Mims, Carleen.”

The defense rested after Peterkin testified. The State, in rebuttal, called one witness, Agent Nyquist. He testified that on April⁵, 1989, in an article about the Flynn murder, Florida Today published the artist&#x²⁷;s sketch of Hallock&#x²⁷;s description of the murder suspect. The sketch had been made at around⁶:00 a.m. The

22 On cross-examination by prosecutor White, Carn admitted the following: when law enforcement subsequently questioned Brothers at her house about Green&#x²⁷;s possible involvement in the Flynn homicide, he was present and never mentioned seeing Green at Brothers&#x²⁷; house as he testified on direct examination. The first time he told the police or the State Attorney or any attorney for the defendant about seeing Green at Brothers&#x²⁷; house on April⁴, 1989, was shortly before prosecutor White took his deposition on May¹⁴, 1990. 23 See supra note 19.

18-13524 Opinion of the Court 19 newspaper ran a second story the next day, and it contained a photo of Green&#x²⁷;s face.

Nyquist was asked about the distance between the orange grove where Flynn was found and Brothers&#x²⁷; house in Mims. He said it was 1.5 miles. On cross-examination by defense counsel, he was asked about the distance between Holder Park and the orange grove and how long it took to drive it. He said the distance was 2.9 miles, and he drove it in five to six minutes.

Green presented no surrebuttal, and following a charge conference with the Court, the parties delivered their closing arguments to the jury. The State&#x²⁷;s first chair, Christopher White, delivered the State&#x²⁷;s opening argument. It was relatively brief. White summarized what the evidence disclosed-namely, the facts recited in subparts A and B-and asked the jury to return a verdict of guilty on all charges.

John Parker responded for the defense. His strategy was to focus on the holes he saw in the State&#x²⁷;s case. He claimed that the problems with Hallock&#x²⁷;s story began with the fact that she was under the influence of marijuana the night of the murder-something she initially lied about to police. Add to that the fact that it was pitch black that night-with no artificial lighting in the park (and potentially no interior light on in the truck)24—and it became practically impossible for her to have gotten a "good look, as the State

24 Green&#x²⁷;s counsel noted that "Miss Hallock [could not] recall whether or not the interior light even came on."

Parker reminded the jury that Hallock initially told police that the first time she saw the black man he was a “blur.” And when the police asked whether the man had any facial hair, Hallock responded that she was "not really sure." She, in her own words, "didn&#x²⁷;t even get a good look at him” because she was “really scared."

He argued that Hallock was simply "relying on what the police told her." When showing Hallock the photo line-up, the police informed her that their suspect&#x²⁷;s photograph was one of the photos. Once she picked Green, they confirmed that she had picked the right person. Then, after the line-up, Hallock read all of the newspaper articles, some of which contained Green&#x²⁷;s name and photograph, and saw Green on a trip to the Brevard County Jail for school. So, Parker argued that while Hallock believed Green committed the crime, this belief was based not on her own observation but on her having seen his picture in the paper and having been told by the police that he was the suspect.

Parker claimed that Hallock was likely drawn to Green&#x²⁷;s photograph in the line-up because Green had the darkest skin color in the line-up. It was also possible that Green&#x²⁷;s photograph was the only new image she was shown. The loose box of photographs had vanished, so for all they knew, Hallock could have already seen photos of the five other men and concluded they were not the kidnapper. Plus, Hallock was, at first, only "pretty positive” Green

18-13524 Opinion of the Court 21 was the perpetrator. It was not until police repeatedly asked whether she was sure that she confirmed that it was him. In Parker&#x²⁷;s mind, when you keep being asked if you are sure, “sooner or later you get the message."

He also suggested that none of the witnesses to whom Green allegedly confessed, or who supposedly saw Green at the ballpark in a green army jacket, could be trusted. Jerome Murray&#x²⁷;s timing of events did not line up; he claimed that Green confessed to him at 10:30 p.m., several hours before the kidnapping and murder. Murray was also “wasted,” having consumed two six-packs of sixteen-ounce malt liquor before speaking with Green. The prosecutor also spoke to a judge on Murray&#x²⁷;s behalf, getting Murray out of jail once after he was arrested.

Parker also reminded the jury that Sheila Green was facing many years in prison on federal drug charges during which she would be separated from her four children. Parker claimed that she did not come forward on her own before she was convicted, and she never told her sister Celestine Peterkin that her brother had confessed to killing someone. What&#x²⁷;s more, Peterkin testified that Sheila did not even live in Mims during the time she supposedly heard this "tale” at Peterkin&#x²⁷;s house.

Nor did Lonnie Hillery, Sheila&#x²⁷;s lover and the father of two of her children, come forward originally. Parker asked the jury to

Parker further argued that Green&#x²⁷;s appearance did not match Hallock&#x²⁷;s description of the assailant on the night of Flynn&#x²⁷;s murder. Dale Carlisle, who before the baseball game had not seen Green since the ninth grade, claimed Green had short, cropped hair the day of the murder. Parker pointed out that this contrasted with Green&#x²⁷;s hair at the time of the offense,²⁶ his hair in the photo lineup, and Hallock&#x²⁷;s description of the man&#x²⁷;s hair at her deposition: greasy hair with a sort of sheen or perm. Carlisle also said Green was wearing desert boots or casual-type wear, not the heavy work boots Hallock described.

Willie Hampton, in his initial statement to the police, said Green was wearing some sort of garment but not a field jacket. At the time, he could not remember if it was black or blue. Parker claimed it was only the newspaper article that "refreshed" Hampton&#x²⁷;s memory.

Green&#x²⁷;s witness, Charles Smith, on the other hand, said Green was not wearing an army jacket and that he was wearing tennis shoes. Furthermore, James Carn testified that Green was with him at the time of the murder. Contrary to the State&#x²⁷;s claim

18-13524 Opinion of the Court 23 that Carn might be misremembering which night he saw Green- Carn did not come forward until a year later-Parker argued that Carn remembered the night he saw Green because of the argument at Brothers&#x²⁷; house.

Parker also argued that it was impossible to know how Czar tracked to Peterkin&#x²⁷;s house. The scent of other animals or humans could have disturbed the track, and the smell of the dogs at Peterkin&#x²⁷;s home could have attracted Czar. The police also neglected to have Czar attempt to track the individual or individuals who made additional prints at the Holder Park scene.

In the end, Parker highlighted a litany of facts which he believed pointed to Hallock as the killer, not Green: Flynn&#x²⁷;s hands were tied "for comfort” rather than security; Hallock was allegedly jerked from the truck more than once but had no injuries; her left handprint and fingerprints were all over the truck, but Green&#x²⁷;s were not; Hallock initially told police she did not know where the perpetrator was when she fled but later claimed she saw the man poised to shoot as she drove away; Hallock was consistently able to escape the armed kidnapper&#x²⁷;s grasp without getting shot; there were no tracks in the grove, which would indicate the black man fled on foot; Flynn failed to identify the shooter when asked, repeating only "I want to go home. Just get me out of here”; the handgun Flynn supposedly fired was found four to five feet away from him; Flynn suffered an injury to his right rear thigh, consistent with someone dragging him headfirst; Hallock drove to Flynn&#x²⁷;s best friend&#x²⁷;s house to get help, not her parent&#x²⁷;s house, or the

24 Opinion of the Court 18-13524 hospital on U.S.¹; miraculously, no one was injured when the gun discharged while the man was tying Flynn&#x²⁷;s hands behind his back; Flynn was sleeping with another woman at the same time as Hallock, and Hallock was not happy about it; the bullet that killed Flynn could have come from his own gun; and the truck&#x²⁷;s glove box was broken, causing it to dump its contents on the floor when opened, yet the perpetrator somehow did not notice when Hallock opened it and removed Flynn&#x²⁷;s gun. While he never explicitly named Hallock as the killer, Parker left the firm impression with the jury that, in his mind, she was the culprit.

Philip Williams, the State&#x²⁷;s second chair, gave the State&#x²⁷;s rebuttal. He focused on what the State considered to be Green&#x²⁷;s real defense-that Hallock, “a jealous lover,” did the killing. Except that Parker would not come right out and say it. Parker “alluded to the fact that the killer may have been Kim Hallock.” So, Williams asked, "why wouldn&#x²⁷;t Parker just say it?" The answer: "He wouldn&#x²⁷;t because it&#x²⁷;s ludicrous, and he doesn&#x²⁷;t have the courage just to come right out and say it. I think she killed” Flynn. Parker, he said, was just "grasping at straws."

Williams accused Parker of misrepresenting Hallock&#x²⁷;s testimony about the alleged encounter with Green. So, he proceeded to review Hallock&#x²⁷;s testimony about it in detail. Then, he turned to Czar&#x²⁷;s tracking of the footprints to Peterkin&#x²⁷;s house on Briarcliff Way, where Green lived according to his sister, Sheila. From there, it was only a "quarter of a mile by foot on a road up to the dunes" where Flynn parked his pickup truck.

18-13524 Opinion of the Court²⁵

Williams explained the absence of Green&#x²⁷;s fingerprints on Flynn&#x²⁷;s truck. "They couldn&#x²⁷;t [even] find the prints of the guy who owned the truck,” he said. Finally, to rebut Parker&#x²⁷;s criticism of Hallock&#x²⁷;s identification of Green based on her observations of him that night, Williams walked the jury through her testimony.

Williams closed by reminding the jury of the damning testimony of Sheila Green, Lonnie Hillery, and Jerome Murray, and asked the jury to use its common sense.

2.

At the end of the guilt-innocence phase, the jury found Green guilty of all charges. The penalty phase on the trial of Count I followed. The State introduced proof that Green had been convicted of armed robbery in New York in 1977 and urged the jury to recommend a death sentence based on four aggravating factors: (1) Green was previously convicted of a violent felony; (2) the capital felony was committed while Green was engaged in kidnapping; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, and cruel. With that, the State rested.

Green&#x²⁷;s defense was brief. Parker called two witnesses, Shirley and Damon Jones. They testified about Green&#x²⁷;s upbringing in a dysfunctional family. When Green was in prison in New York, his father shot and killed his mother before committing suicide; this tragedy had a devastating effect on Green.

The jury recommended the imposition of a death sentence by a vote of eight to four, and the Circuit Judge imposed the sentence after finding the aggravating factors listed by the State and no statutory or non-statutory mitigating factors.

(Green I), 641 So. 2d 391, 395–96 (Fla. 1994).

D.

Green appealed his convictions and death sentence to the Supreme Court of Florida. Green I, 641 So. 2d at 391. He challenged the validity of his convictions on four grounds²⁷ and his death sentence on five.28 He was unsuccessful. The Florida

18-13524 Opinion of the Court²⁷

Supreme Court rejected all but one of the grounds²⁹ on the merits and affirmed the Circuit Court&#x²⁷;s judgment. One of the grounds the Court rejected is pertinent here: the Florida Supreme Court rejected Green&#x²⁷;s argument that the Circuit Court erred in denying Green&#x²⁷;s motion to suppress Hallock&#x²⁷;s identification of him as Flynn&#x²⁷;s killer in the pretrial photographic lineup and at trial. Id. at 395 n.2.

II.

On March¹⁸, 1997, Green, represented by Capital Collateral Regional Counsel (“Collateral Counsel”), moved the Circuit Court of Brevard County pursuant to Florida Rule of Criminal Procedure 3.85030 to vacate his convictions and death sentence.³¹ The motion was amended on November 30, 2001. In the interim, the Florida Department of Law Enforcement (“FDLE”) conducted a post-trial

28 Opinion of the Court 18-13524 investigation into Green&#x²⁷;s case, portions of which were relied upon by Green in the amended motion.

As amended, Green&#x²⁷;s motion contained twelve numbered claims, I through XII. All were brought under the First and/or Fifth and/or Sixth and/or Eighth Amendments and the Fourteenth Amendment. Many contained multiple independent claims and subclaims, some of which were mutually exclusive.³²

A.

Of the twelve claims presented to the Circuit Court, only the first five challenged Green&#x²⁷;s conviction and thus are relevant here; the remaining seven claims challenged Green&#x²⁷;s death sentence. Claims I and III incorporated numerous subclaims: Claim I had three subclaims, while Claim III had eight subclaims denoted A through H, with Claim III-H having an additional five subclaims of its own. The Circuit Court only considered the four claims33 the Court deemed as stating a plausible claim for relief: Claim I-2, Claim III-F, Claim III-H-4, and Claim IV.

18-13524 Opinion of the Court²⁹

Claim I-2 alleged that defense counsel rendered ineffective assistance of counsel under the Strickland v. Washington³⁴ standard in failing to move the trial court to excuse a prospective juror for cause or strike the juror peremptorily. Claim III-F alleged that defense counsel was ineffective under Strickland in failing to obtain and impeach Hallock at trial with a statement defense counsel was or should have been aware of—that Green made her tie Flynn&#x²⁷;s hands behind his back with a shoelace. Claim III-H presented five claims for violations of the Brady and Giglio rules.35 Claim III-H-4,

30 Opinion of the Court 18-13524 which provided the principal basis for the writ of habeas corpus the District Court issued,³⁶ alleged that the prosecutor failed to disclose to the defense as required by Brady the handwritten notes he made of a pretrial conversation he had with Diane Clarke and Mark Rixey. These notes included several investigative facts from the night of the murder, some of which Clarke and Rixey personally observed on the night of the murder and some of which were based on hearsay, that led them to suspect that Hallock killed Flynn. Claim IV alleged that newly discovered evidence consisting of the recantation of the trial testimony of three prosecution witnesses, Sheila Green, Lonnie Hillery, and Jerome Murray, rendered Green&#x²⁷;s convictions constitutionally unreliable.37

After the State responded to the amended Rule 3.850 motion, the Circuit Court convened a hearing with the parties&#x²⁷; counsel on May 13, 2002, pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993). This hearing, known as a Huffhearing, provides counsel approximately seventy mugshots Sergeant Fair and Agent Nyquist showed to Hallock at the North Precinct station on April⁴, 1989. 36 See infra part V. 37 Claim IV sought a new trial under Florida law based on newly discovered evidence, and that is how the Florida Supreme Court viewed the claim. It decided the claim based on Florida law, not a holding of the United States Supreme Court. See Green II, 975 So. 2d at 1099. Later, in a successive Rule 3.850 motion, Green would present a claim that the State induced Sheila Green, Lonnie Hillery, and Jerome Murray to testify falsely at trial in violation of the Supreme Court&#x²⁷;s holding in United States v. Giglio, 405 U.S. 159, 92 S. Ct. 763 (1972). See infra part VI.C.

18-13524 Opinion of the Court³¹ with an opportunity to be heard on an initial (as distinguished from a successive) 3.850 motion. Id. at 983. At the hearing, the court entertains argument on the legal sufficiency of the claims the motion presents. It identifies the claims that can be adjudicated without an evidentiary hearing solely on the basis of the record of the movant&#x²⁷;s criminal prosecution and the claims that require an evidentiary hearing. Id.

After considering what counsel had to say, the Circuit Court identified the plausible claims. Of the claims relevant here, it concluded that Claims I-2, III-F, and IV required an evidentiary hearing but Claim III-H-4 did not. The Court therefore adjudicated Claim III-H-4 based on the records of the pre-trial and trial proceedings in Green&#x²⁷;s prosecution, the Huff hearing, and Claim III-H-4&#x²⁷;s factual allegations. On July²², 2002, the Circuit Court issued a written order denying relief on Claim III-H-4.

The Circuit Court held evidentiary hearings on the remaining three claims on April 24–25, 2003, October 28–29, 2003, February 24-26, 2004, June 24–25, 2004, and October⁴, 2004. Then, in an order entered on November²², 2005, the Court decided Claims I-2, III-F, and IV based on the record of Green&#x²⁷;s prosecution and the testimony and other evidence the parties presented during the evidentiary hearing.

Below, we describe these four claims in full and relate the findings of fact and conclusions of law the Circuit Court made in denying them. We start with Claim III-H-4 because the Court decided it without an evidentiary hearing.

32 Opinion of the Court 18-13524

1.

Claim III-H-4 consisted of two paragraphs:³⁸

38 The style of Claim III-H reads: Claim III

MR. GREEN WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL PRETRIAL AND AT

THE GUILT/INNOCENCE PHASE OF HIS TRIAL

IN VIOLATION OF THE SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS. COUNSEL

FAILED TO ADEQUATELY INVESTIGATE,

PREPARE AND PRESENT THE DEFENSE CASE

AND CHALLENGE THE STATE&#x²⁷;S CASE.

WHERE EXCULPATORY EVIDENCE WAS

SUPPRESSED OR CONCEALED, MR. GREEN IS

ENTITLED TO RELIEF UNDER BRADY AND/OR

GIGLIO.

H. SUPPRESSION OF FAVORABLE

IMPEACHING AND/OR EXCULPATORY

EVIDENCE.

Although the style of the heading of Claim III combines Green&#x²⁷;s claims that defense counsel provided ineffective assistance of counsel under Strickland with his very different claims that the State concealed exculpatory evidence in violation of the Brady and/or Giglio rules, neither counsel nor the Court mentioned the ineffective assistance language in the style of Claim III when they considered Claim III-H at the Huff hearing on May³¹, 2002. The Circuit Court reduced Claim III-H-4 to a claim that the State—specifically, prosecutor White-failed to disclose the August 28, 1989, notes to the defense in violation of the Brady rule. The Claim III claims of ineffective assistance of counsel

18-13524 Opinion of the Court 33

51. A handwritten police statement dated 8/28/89 with the names Diane Clarke and Mark Rixey underlined on the front page was not disclosed to the defense at trial.39 It contains the following statements:

Found gun on the ground around 4-5 ft. from W/M. There was no indication that he had moved.40 were explicitly asserted elsewhere in Claims III, in A through G, as follows: “Defense counsel rendered prejudicially ineffective assistance of counsel during the guilt/innocence phase of the trial in ways including but not limited to the following"-A, “Failure to obtain and maintain file”; B, “Failure to Investigate and Develop issues Relating to Cross-Race Identification, 1. Failure to retain an expert witness, 2. Failure to request a special instruction, 3. Failure to cross examine and argue”; C, “Failure to Investigate and Preserve Exculpatory and Impeaching Evidence Relating to Impressions”; D, Failure to Investigate and Present Exculpatory and Impeaching Evidence Relating to Footprint Impressions”; E, Failure to Investigate and Present Exculpatory and Impeaching Evidence Relating to the Alleged Murder Weapon”; F, "Failure to Investigate and Present Exculpatory and Impeaching Evidence Relating to the Initial Police Investigation”; G, Failure to Investigate and Challenge the State's Theory of Flight." 39 The "police statement” was actually prosecutor White's notes. Green obtained the notes in a public records request made pursuant to Chapter 119 of the Florida Code, i.e., Fla. Stat. § 119.01. 40 Clarke and Rixey observed the first two investigative facts after arriving in the orange grove where they found Flynn.

34 Opinion of the Court 18-13524

Did see puddle of blood right under the V. Also saw clothes near the victim & another location saw blood on the ground a foot or two from the gun.

Mark [Rixey] & Diane [Clarke] suspect girl did it, She changed her story couple time41 . . . . [?] She [?] said she tied his hands behind his back.⁴²

Thinks she gave them very good [?] directions (J.J.[?] & U.S.¹) and had driven all the way to Oak. Park Tr. Pk.

Also noticed she never asked how victim was while at homicide.43

41 Clarke and Rixey left the orange grove scene after Criminalist Demers and Agent Nyquist arrived and had no further involvement in the homicide investigation. Their source for this statement in White&#x²⁷;s notes likely came from Deputy Walker or one or more Sheriff&#x²⁷;s Office investigators involved in the investigation—or from pure scuttlebutt.⁴² Clarke and Rixey never saw or spoke to Hallock. The only other reference to Hallock tying Flynn&#x²⁷;s hands appeared in Deputy Walker&#x²⁷;s police report, which was approved by Sgt. Clarke. In his deposition, Walker testified that he did not recall speaking with Clarke or Rixey about the investigation. Therefore, Clarke and Rixey probably learned of this “tied his hands” statement from Walker&#x²⁷;s report. 43 Clarke and Rixey likely learned this from Walker.

18-13524 Opinion of the Court 35

Didn&#x²⁷;t see any footprint – didn&#x²⁷;t see any casing.⁴⁴

She wouldn&#x²⁷;t go down there to the scene.45

Why wouldn&#x²⁷;t guy say who shot him. Just said “I want to go home.”⁴⁶ Was fairly calm while there.

52. The first sentence indicates that Flynn went down right where he was shot. That the gun was four to five feet away from the victim and that there was no indication that he had moved indicates that he was not in possession of the gun at the time he was shot. This contradicts Ms. Hallock&#x²⁷;s version of a gunfight. The fact that Ms. Hallock refused to lead the police to the scene where her companion lay bleeding to death, gave bad directions, coupled with other evidence such as the fact that she drove past the hospital when supposedly fleeing the scene, strongly suggest that

44 Clarke and Rixey either observed this at the orange grove or acquired the information from those who came to the orange grove after they left. 45 The source of this statement is also unknown, and its meaning questionable. In his deposition, Rixey testified that he “was a little nervous being out there, because it "was dark, [b]oth of [our] flashlights had died,” they "[w]ere hearing noises,” and “there was somebody running around with a gun.” Clarke testified that Hallock “didn&#x²⁷;t dare go down there,” so she “told Deputy Walker to stay with her." Walker also testified that Hallock “refused to go any further,” so Clark and Rixey proceeded alone.⁴⁶ Unlike many of the other claims in this handwritten statement, Clarke and Rixey personally heard Flynn say this.

During the Huff hearing, Collateral Counsel, Christopher White, and the Court engaged in a free-flowing discussion about these statements to determine whether an evidentiary hearing would be necessary to flesh them out. This is what was said:

COLLATERAL COUNSEL: [Claim III-H is] a very general claim about possible suppression of exculpatory evidence. I go through a number of instances.

[T]here were notes made by Mr. White.

They reflect the results of his speaking to . . . Diane Clark[e] and Mark Rixey.

And they include statements to the effect that they think the girl did it and some specific questions about the crime scene and so on and so forth.

I allege those should have been turned over to the defense counsel at the time. The State won&#x²⁷;t agree with that position.

47 The Circuit Court omitted paragraph fifty-two, which consists of Collateral Counsel&#x²⁷;s interpretation of White&#x²⁷;s notes, in adjudicating Claim III-H-4.

18-13524 Opinion of the Court 37

Now that they are there, I argue the information should [have been] made available to defense counsel.

I think that concludes that.

THE COURT: Mr. White.⁴⁸

MR. WHITE:

It's not as if Mr. Parker failed to understand that there was an issue here with Kim.

[In his closing argument to the jury,] he walked right up the line of trying to accuse her of actually being the killer which is the point of the gun.

There is only one gun and actually Kim shot it.

He even went so far as to say at one point on page 1864 of the trial transcript.

48 After responding to Collateral Counsel&#x²⁷;s other Claim III-H Brady claims (which the Court and counsel had been discussing), White addressed the claim based on his handwritten notes. What follows are White&#x²⁷;s comments on whether defense counsel, John Parker, was aware of what the notes revealed, including Clarke&#x²⁷;s and Rixey&#x²⁷;s suspicion that Hallock shot Flynn.

Chip was sleeping with another woman while he was sleeping with Kim and we know that Kim wasn&#x²⁷;t very happy about it.

So that is one of the more dramatic statements they made.

He walked right up to the line and he never came right out and said ladies and gentlemen Kim Hallock killed Flynn.

The reasons he didn&#x²⁷;t was because of all the evidence that indicates that there was someone else there; all the footprints; the wallet at the scene and so on and on.

But at any rate that is my argument as to that

The only other issue . . . under this claim are the arguments relating to Walker and Clark[e].

The first one is the allegation in the notes that I made, those are my notes that indicate that they saw a puddle of blood on the ground four or five feet from the white male. This was Chip.

There is no indication that he had moved.

I guess from that they extrapolate that the gun is four or five feet away and it is really too far away for it to have been caused to be there by Chip.

18-13524 Opinion of the Court 39

I&#x²⁷;m not sure how [Collateral Counsel] reaches that conclusion.

But somehow he appears to be headed to somehow exculpatory evidence I should have given [Parker], and this puddle of blood within a foot or two of the gun and obviously . . . where Chip was.

All of those things are in the photographs and they&#x²⁷;re all available in testimony of witnesses.

I don&#x²⁷;t believe I have any duty to say to the defense have you guys thought about this angle and this angle?

I gave them all the evidence.

Mark and Diane suspect – most – to the idea to try to make it out Kim did it.

Their testimony and their opinions are not going to be (unintelligible). Why do I have to tell Mr. Parker that they have opinions and (unintelligible) that she did not.

I don&#x²⁷;t have this obligation.

Nothing in the testimony other than that Mark and Diane . . . think she had done it.

There was nothing in the form of Brady evidence and neither of them talked to Kim.

And all of the stufflying (phonetic) from this or that they are getting out of the records in the case Mr. Parker already ha[d].

I submit to you an evidence hearing is not required and Brady violation fails for all of those reasons.

I think that pretty much covers it.

THE COURT: Rebuttal?

(Emphasis added).

Collateral Counsel offered no rebuttal to White&#x²⁷;s comments about the handwritten notes of August 28, 1989, instead changing topics to an unrelated matter. More to the point, he did not ask for an evidentiary hearing to dispel White&#x²⁷;s statement to the effect that what Clarke and Rixey told White came “out of the records in the case Mr. Parker already ha[d]."

In its July²² order denying Claim III-H-4, the Circuit Court found no merit in the allegation that White&#x²⁷;s failure to disclose the notes violated the Brady rule. “All of the information in the notes [was] disclosed and known by [Parker] before trial,” and “the Defendant has shown no prejudice." Parker acquired most of the information during the extensive pretrial discovery he and the Assistant Public Defender who preceded him conducted, particularly in examining Sergeant Clarke, Deputy Rixey, Deputy Walker, and

18-13524 Opinion of the Court 41

Hallock on deposition.49 After quoting White&#x²⁷;s notes as set out in Claim III-H-4, supra, the Circuit Court also identified what Parker knew and its source:

Deputy Rixey testified that he found a .22 revolver four to five feet from the victim. Deputy Rixey testified at trial that when he found the victim, he was lying in blood. Deputy Rixey also testified that he found clothes items along the side of the road. In his deposition, Deputy Rixey testified that he found clothes near the body. During his deposition, Deputy Rixey testified that also he found blood near the victim. The purported opinion of Deputies Rixey and Clarke that they suspected that Hallock murdered Flynn would not have been admissible at trial. The Defendant also alleges that Hallock gave bad directions, but that issue was also known by defense counsel as demonstrated by the deposition of Diane Clark[e]. Furthermore, the allegation that evidence was suppressed regarding Hallock's failure to ask

49 The Assistant Public Defender, Greg Hammel, took Rixey&#x²⁷;s deposition on September⁶, 1989. Parker deposed Clarke on February 12, 1990, Hallock on February 13, 1990, and Walker on March⁵, 1990, all well prior to the commencement of Green&#x²⁷;s trial. In addition to the testimony of these deponents, Parker had copies of the statements Hallock made during questioning at the Sheriff&#x²⁷;s North Precinct station on April⁴, 1989, at 8:20 a.m.,⁹:20 p.m., and⁹:32 p.m. Parker also had the report Walker filed with the Sheriff&#x²⁷;s Office on April⁵, 1989, which included what Hallock related to him about her encounter with Green, Rixey&#x²⁷;s police report, and access to several other reports and exhibits the State disclosed, some of which were introduced into evidence at Green&#x²⁷;s trial.

18-13524 Opinion of the Court 43

Thus, the Court found that White&#x²⁷;s failure to disclose his notes could not have prejudiced the defense.⁵⁰ The facts underlying Rixey and Clarke&#x²⁷;s suspicion were known to defense counsel prior to trial and, the non-disclosure aside, "[t]he purported

50 The Circuit Court did not recite the elements of a Brady claim when deciding Claim III-H-4. The Supreme Court of Florida, in reviewing one of Green&#x²⁷;s other Brady claims, correctly recited the elements of a Brady claim and the defendant&#x²⁷;s burden in proving it: To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence—either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla.2000). To meet the materiality prong, the defendant must demonstrate a reasonable probability that had the suppressed evidence been disclosed the jury would have reached a different verdict. Strickler, 527 U.S. at 289, 119 S. Ct. 1936. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Way, 760 So. 2d at 913; see also Strickler, 527 U.S. at 290, 119 S. Ct. 1936. The remedy of retrial for the State&#x²⁷;s suppression of evidence favorable to the defense is available when "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290, 119 S. Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995)) Green II, 975 So. 2d 1101–02. Green made no objection in the Circuit Court to the Court&#x²⁷;s application of Brady to Claim III-H-4. As indicated infra, he did not appeal the Circuit Court&#x²⁷;s disposition of the claim to the Supreme Court of Florida.

* * *

In identifying in its July²² order what Parker knew and its source, the Circuit Court did not mention the statement in White&#x²⁷;s notes, "She [?] said she tied his hands behind his back.” The source of the statement was the report Deputy Walker filed in the Sheriff&#x²⁷;s Office on April⁵, 1989. It reads as follows:

I responded to Oak Park Trailer Park, Lot #33 and met with Kim S. Hallock. Ms. Hallock stated that her boyfriend, Charles L. Flynn Jr. had been shot in an orange grove. I stated to Ms. Hallock that she should go with me to show where the incident occurred. She agreed and led myself and Deputy Rixey . . . and Sgt. Clarke . . . to the scene where the shooting occurred. Ms. Hallock stated that she and Mr. Flynn were in his 1982 Chevy pickup at Holder Park when this black

18-13524 Opinion of the Court 45 male approached the pickup. Mr. Flynn exited the pickup and then Ms. Hallock was told to tie Mr. Flynn&#x²⁷;s hands behind his back with a shoe string. The black male then told both Mr. Flynn and Ms. Hallock to sit in the truck and look at the floorboard. The truck was then driven by the black male to the orange groves off Hammock Rd. . . .

Parker was in possession of Walker&#x²⁷;s report no later than when he deposed Deputy Walker on March⁵, 1990. Clarke and Rixey, who never saw or spoke to Hallock and had no further investigative role, simply told White what they had heard from Walker. This explains the statement&#x²⁷;s appearance in White&#x²⁷;s notes of August 28, 1989.

At the Huff hearing, Collateral Counsel said nothing in response to White&#x²⁷;s comment that what Clarke and Rixey told him came "out of the records in the case Mr. Parker already ha[d]." Parker had all the information White&#x²⁷;s notes contained including the "she tied his hands” statement. The statement was in Walker&#x²⁷;s report that had been disclosed to Parker.

Did Collateral Counsel say nothing about the hands-tying statement because he knew that Parker had access to Walker&#x²⁷;s report? This is inferable from the allegations Collateral Counsel made in Green&#x²⁷;s Rule 3.850 motion in support of Claim III-F. Claim III-F alleged that Parker had access to Hallock&#x²⁷;s hands-tying statement but failed to confront Hallock with it in cross-examining her at trial and that the failure constituted ineffective assistance of

2.

18-13524 Opinion of the Court 47

Claim I-251 alleged that Parker was ineffective under the Strickland standard52 for failing to move the trial court to excuse prospective Juror Harold Guiles for cause or to strike him from the jury venire peremptorily. During voir dire, Guiles revealed that his niece had been murdered three years earlier. He was also “ineffective for failing to ask follow-up questions after Juror Guiles stated that his niece had been murdered."

51 The style of Claims I reads:

CLAIM I

MR. GREEN WAS DENIED HIS RIGHTS UNDER

THE FIRST, SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

BECAUSE OF JUROR

MISCONDUCT. DEFENSE COUNSEL WAS

INEFFECTIVE FOR FAILING TO QUESTION

JUROR GUILES REGARDING THE MURDER OF

HIS NIECE, CHALLENGE HIM FOR CAUSES, OR

TO HAVE HIM EXCUSED BY EXERCISING A

PEREMPTORY CHALLENGE. THE COURT

COMMITTED FUNDAMENTAL ERROR BY

FAILING TO EXCUSE JUROR GUILES SUA

SPONTE.

Of the three subclaims in Claim I, only Claim I-2 is relevant here. 52 The Strickland standard is set out in note 119 infra. There is no question that in deciding Green&#x²⁷;s ineffective assistance claims—Claims I-2 and III-F—the Circuit Court and the Florida Supreme Court applied the Strickland standard.

This is the part of Guiles&#x²⁷; voir dire which, according to Green, should have prompted Parker to ensure that Guiles did not serve on his jury:

The Court: Have any of you been the victim of a crime or has any member of your immediate family been the victim of a crime? Mr. Guiles: My niece was murdered, but that's not immediate family. The Court: How long ago was that? Mr. Guiles: Three years ago. The Court: Three years ago? Mr. Guiles: (Nods head.) The Court: Where was it? Mr. Guiles: In Naples. The Court: Would you be able to set aside that? Mr. Guiles: Well, it doesn't seem like it's the same kind of thing. The Court: Would you be able to set it aside and not let it affect the case? Mr. Guiles: Yes.

18-13524 Opinion of the Court 49

Neither the Court nor Parker nor the prosecutor questioned Guiles further regarding his niece&#x²⁷;s murder. Parker did not move the Court to excuse Guiles from the venire for cause on this basis, and he did not remove him with a peremptory challenge.

The Circuit Court concluded that Green failed to establish both prongs of a Strickland ineffective assistance claim-deficient performance and resulting prejudice—and therefore denied Claim I-2. Parker could not have challenged Guiles for cause because, as the Circuit Court found, Guiles demonstrated that he could serve as an impartial juror by answering "yes" to the last question put to him. This answer, in the Court&#x²⁷;s view, “rehabilitat[ed]” Guiles as a potential juror.

In denying Claim I-2, the Court did not overlook that Parker could have pursued a challenge for cause by questioning Guiles further or, if unsuccessful, could have exercised a peremptory challenge. But Parker&#x²⁷;s testimony during the evidentiary hearing demonstrated to the Court&#x²⁷;s satisfaction that he was not Strickland deficient in neglecting to pursue either course.

Parker testified that he tried to dismiss Guiles because of pretrial publicity, but the judge denied that motion. Parker also had legitimate reasons for not peremptorily striking Guiles. The Circuit Court stated in its November²², 2005, order that Parker did not exercise a peremptory challenge to strike Mr. Guiles because he was concerned “that by exercising peremptories, that we may, indeed, get people that we wish we didn&#x²⁷;t have.” Mr. Parker testified that he

The Circuit Court concluded that these reasons for not peremptorily striking Guiles were more than sufficient to defeat an ineffective assistance claim.

3.

Claim III-F⁵³ alleged that Parker was ineffective under the Strickland standard for failing "to investigate and present

MR. GREEN WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL PRETRIAL AND AT

THE GUILT/INNOCENCE PHASE OF HIS TRIAL

IN VIOLATION OF THE SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS. COUNSEL

18-13524 Opinion of the Court 51

FAILED TO ADEQUATELY INVESTIGATE,

PREPARE AND PRESENT THE DEFENSE CASE

AND CHALLENGE THE STATE&#x²⁷;S CASE. WHERE

EXCULPATORY EVIDENCE WAS SUPPRESSED

OR CONCEALED. MR. GREEN IS ENTITLED TO

RELIEF UNDER BRADY AND/OR GIGLIO.

F. FAILURE TO INVESTIGATE AND

PRESENT EXCULPATORY AND IMPEACHING EVIDENCE RELATING TO

THE INITIAL POLICE INVESTIGATION.

(Emphasis added). Green&#x²⁷;s position in the District Court and here on appeal was and is that Claim III-F presented essentially two claims, one alleging ineffective assistance of counsel and the other a Brady violation. We disagree. Claim III-F was based on the explicit allegation that Parker should have been aware of Hallock&#x²⁷;s statement to Deputy Walker on April⁴, 1989, that she tied Flynn&#x²⁷;s hands behind his back, because Parker had access to Walker&#x²⁷;s police report. Parker rendered ineffective assistance because he failed to crossexamine Hallock with her statement at Green&#x²⁷;s trial. Parker also knew that Walker kept a notepad where he wrote down what Hallock told him. Walker agreed to hold on to the notepad so Parker could see it, but Green alleged that Parker was “deficient . . . in failing to obtain this notebook or notepad.” Claim III-F further alleged that what Walker wrote in his report was consistent with what White&#x²⁷;s notes of August 28, 1989, revealed: “Mark & Diane suspect the girl did it. She changed her story couple of times. . . [?] She [?] said she tied his hands behind his back." It was also alleged to be consistent with the FDLE report of its interview of Walker in 1999, which did not exist at the time of the trial.

52 Opinion of the Court 18-13524 exculpatory and impeaching evidence relating to the police investigation." Specifically, Claim III-F alleged that Parker was ineffective for failing to investigate the “hands-tying” statement in Deputy Walker&#x²⁷;s report and impeach Hallock&#x²⁷;s testimony at trial with it. Hallock testified at trial that Green ordered her to give him a shoelace from one of Flynn&#x²⁷;s shoes, which he then used to tie Flynn&#x²⁷;s hands behind his back. However, Claim III-F alleged that Hallock told Deputy Walker that "she was the one who tied Flynn&#x²⁷;s hands behind his back” per Green&#x²⁷;s orders. In the report he filed in the Sheriff&#x²⁷;s Office on “4/5/89, at 2:05:50,” Walker wrote: “Ms. Hallock stated that she and Flynn were in his 1982 Chevy pickup when this black male approached the pickup. Mr. Flynn exited the pickup and then Ms. Hallock was told to tie Mr. Flynn&#x²⁷;s hands behind his back."54

Claim III-F also relied upon the FDLE interview of Walker that took place in 1999-well after the trial and White&#x²⁷;s notes from his 1989 interview of Clarke and Rixey that said: “Mark & Diane suspect the girl did it. She changed her story couple of times. .

Green&#x²⁷;s position that Claim III-F pled a Brady claim was based on the inclusion of this quotation in Claim III-F&#x²⁷;s factual allegations. However, Claim III-F cannot be fairly read as presenting the same Brady claim that was alleged in Claim III-H-4. And even if it had, the Brady claim fell by the wayside during the discussions and ruling at the Huffhearing. 54 At that moment, Flynn was on his knees and Green was holding a gun to Flynn&#x²⁷;s head. A reasonable inference is that Hallock did what Green told her to do.

18-13524 Opinion of the Court⁵³

[?] She [?] said she tied his hands behind his back.” Claim III-F alleged that what “Diane Clarke and Mark Rixey” told White about the tying of Flynn&#x²⁷;s hands was “consistent with Dep. Walker&#x²⁷;s recollection that Hallock said that she was the one who did the actual tying of Flynn&#x²⁷;s hands, and inconsistent with Hallock&#x²⁷;s subsequent statements and eventual trial testimony.” What Clarke and Rixey told White about the tying of Flynn&#x²⁷;s hands was consistent with what Walker wrote in his report because what they told White came from Walker. He was their source.

Green&#x²⁷;s factual position was that Parker should have been aware of what Walker wrote in his report, but

[Parker] did not confront Hallock at trial . . . with Deputy Walker&#x²⁷;s report that she had been the one to tie Flynn&#x²⁷;s hands . . . . [He] should have known about the hands-tying issue because it was contained in Deputy Walker&#x²⁷;s report, but [he] did not ask any questions about it in Walker&#x²⁷;s deposition or at any time during the trial.

To Green, this constituted ineffective assistance of counsel under Strickland.

To prevail on Claim III-F, however, Green had to prove that Hallock actually told Walker that she was the one who tied Flynn&#x²⁷;s hands and that Parker knew this prior to Green&#x²⁷;s trial.⁵⁵ If he could

54 Opinion of the Court 18-13524 have, Green should have proved the point during the evidentiary hearing the Circuit Court held on Claim III-F. But he did not.

First, Green did not summon Walker to testify at the evidentiary hearing. If he had summoned him and Walker had difficulty recalling what Hallock told him on April⁴, 1989, Green could have used his report to refresh his recollection.⁵⁶ Second, Green could have obtained the notepad on which Walker jotted down what Hallock said. Walker told Parker about the notepad when Parker took his deposition pre-trial, on March³, 1990. The notepad happened to be in Walker&#x²⁷;s “locker” at the time. Parker asked him to "hold on to it," and Walker said he would.57 Green alleged that Parker "was ineffective for failing to obtain the notepad or notes.” Without Walker&#x²⁷;s testimony or his report or notepad in evidence,⁵⁸ the Circuit Court realized that it would have to speculate in order to find that Hallock told Walker that she tied Flynn&#x²⁷;s hands statement in the event she insisted that she told Walker that Green tied Flynn&#x²⁷;s hands. Parker needed Hallock&#x²⁷;s alleged statement to Walker to impeach her testimony that Green was the one who tied Flynn&#x²⁷;s hands.⁵⁶ It may also have been admissible in evidence under the official records rule or as Walker&#x²⁷;s past recollection recorded. See Fla. Stat. § 90.803(5), (8) (2001). 57 Like the report, the notepad could be used to refresh Walker&#x²⁷;s recollection of what Hallock told him. If that failed, the notepad may have been admissible as Walker&#x²⁷;s past recollection recorded. See Fla. Stat. §§ 90.613, 90.803(5) (2001). 58 According to the Court, the location of the notepad at the time of the evidentiary hearing was “unknown.”

18-13524 Opinion of the Court⁵⁵ and thus that Parker rendered ineffective assistance of counsel in failing to use the statement to impeach her testimony at trial, as Claim III-F alleged.59 But, the Court said, the “ineffective assistance of counsel claim [could] not be based on speculation.”⁶⁰

At the evidentiary hearing, Officer Walker was not called to testify. Consequently, this Court is only left with the allegation made by the Defendant in his postconviction motion as to what Officer Walker purportedly said in 1999 to FDLE concerning what Kim Hallock told him. There has been no evidence produced to establish the truthfulness that Kim make this statement to Officer Walker. As to counsel&#x²⁷;s alleged failure to obtain the notepad or notes, an ineffective assistance of counsel claim cannot be based on speculation that such notes might have contained helpful information.

Because speculation was all that Green had to rely on, the Court denied Claim III-F.

* * *

Green&#x²⁷;s position in the District Court was that Claim III-F alleged both ineffective assistance of counsel and a Brady violation. That is his position here as well. That position enabled him to

59 In deciding Claim III-F, the Circuit Court applied the Strickland standard.⁶⁰ Collateral Counsel had White&#x²⁷;s notes prior to the evidentiary hearing the Circuit Court held on Claim III-F. Neither Clarke nor Rixey was asked who told them that Hallock made the statements White&#x²⁷;s notes reflected.

Collateral Counsel, who drafted the Rule 3.850 motion, did not see the Brady violation Green saw in the District Court and sees here now. Collateral Counsel included the "she did it" and "she tied his hands” statements (from White&#x²⁷;s notes) in presenting Claim III-F-to buttress the claim&#x²⁷;s allegation that Parker was aware of the statements and was derelict in failing to cross-examine Hallock with the hands-tying statement at trial. That Collateral Counsel was pleading an ineffective assistance claim, not a Brady claim, becomes clear when one reads the transcript of the Huff hearing. It was readily agreed that Claim III-F, alleging ineffective assistance, would receive an evidentiary hearing, while Claim III- H-4, based on White&#x²⁷;s notes, would not. This no doubt explains why Collateral Counsel, during the discussion about White&#x²⁷;s notes, said nothing in response to White&#x²⁷;s statement, obviously made with reference to his notes, that “Parker already ha[d]” “all of the stuff."

To put a lid on this discussion, consider the brief Green filed in the Florida Supreme Court in appealing the Circuit Court&#x²⁷;s determination of his Rule 3.850 motion. It contains not a word about the Circuit Court&#x²⁷;s denial of Claim III-H-4—but it does challenge the Circuit Court&#x²⁷;s denial of Claim III-F. The argument that the Circuit Court&#x²⁷;s Claim III-F ruling should be reversed replicates the White notes&#x²⁷; statements Claim III-F cited in Green&#x²⁷;s Rule 3.850

18-13524 Opinion of the Court 57 motion. But the argument contains not even a hint that the statements were there to prove a Brady violation. The Florida Supreme Court, in affirming the Claim III-F ruling, did not see a Brady claim at all. All it saw was an ineffective assistance of counsel claim. Green v. State (Green II), 975 So. 2d 1090, 1104 (Fla. 2008).

4.

Claim IV61 alleged that Green&#x²⁷;s convictions were constitutionally unreliable in light of the fact that Sheila Green, Lonnie Hillery, and Jerome Murray had recanted the testimony they gave during the guilt-innocence phase of Green&#x²⁷;s trial. The Circuit

61 As expressed in the "Table of Contents” of Green&#x²⁷;s brief to the Florida Supreme Court in the appeal of the Circuit Court&#x²⁷;s disposition of his Rule 3.850 motion, Claim IV was this: Green&#x²⁷;s Convictions are Constitutionally Unreliable in Violation of the Fifth, Sixth, and Fourteenth Amendments as Established by newly Discovered Evidence.

1. The Court erred in rejecting Shelia Green's recan-

tation.

2. The Court erred in rejecting Lonnie Hillary's re-

cantation by relying on trial testimony which was shown to be incredible.

3. The Court erred in relying on the State's presenta-

tion of newly discovered evidence of guilt,

4. The Court erred in considering MDNA testing re-

sults.

5. The Court erred in considering newly discovered evidence of guilt, thereby violating the Defendant&#x²⁷;s right to trial by jury under the Sixth and Fourteenth Amendments.

Court denied Claim IV based on these findings of fact, which the Florida Supreme Court effectively adopted:⁶²

First, Green argues that his convictions are constitutionally unreliable in light of the fact that Sheila Green, Lonnie Hillery, and Jerome Murray, three of the State guilt phase witnesses, have recanted their trial testimony. The trial court made the following factual findings: First, Jerome Murray testified at Green&#x²⁷;s trial that, shortly after the murder, Green admitted committing it and said he was going to

62 The Florida Supreme Court effectively adopted the Circuit Court&#x²⁷;s findings of fact in adjudicating Claim IV under the “competent, substantial evidence” standard: When the trial court rules on a newly discovered evidence claim after an evidentiary hearing, we review the trial court&#x²⁷;s findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence. Melendez v. State, 718 So. 2d 746, 747–48 (Fla.1998); Blanco v. State, 702 So. 2d 1250, 1251 (Fla.1997). As with rulings on other post-convictions claims, we review the trial court&#x²⁷;s application of the law to the facts de novo. Cf. Hendrix v. State, 908 So. 2d 412, 423 (Fla.2005) (reviewing de novo the trial court&#x²⁷;s application of the law to the facts in ruling on a postconviction claim that the government withheld material evidence); Gore v. State, 846 So. 2d 461, 468 (Fla.2003) (reviewing de novo the application of the law to the facts on a claim of ineffective assistance of trial counsel). Green II, 975 So. 2d at 1100 (emphasis added).

18-13524 Opinion of the Court 59 disappear. At the postconviction evidentiary hearing, the defense introduced three out-of-court statements made by Murray in which he recanted his trial testimony. In these statements, Murray stated that his entire testimony was a lie and that he was under pressure from law enforcement to fabricate. However, at the evidentiary hearing, Murray claimed that he did not remember making these post-trial statements because he was either tired or drunk. When questioned about whether his post-sentencing statements were inconsistent with his trial testimony, Murray exercised his Fifth Amendment privilege against self-incrimination.63

Second, Sheila Green is Crosley Green&#x²⁷;s sister. At Green&#x²⁷;s trial, Sheila testified that the day after the homicide, Green admitted his involvement in the shooting to her. Sheila had been convicted in federal court for drug offenses and testified against Green in return for consideration for a more lenient sentence

63 Murray gave the first of the three statements in writing to defense investigator, Paul Ciolino, on August³, 1999, the second statement via videotape to Ciolino on August³, 1999, and the third statement to the FDLE on October 13, 1999. In the first two statements, Murray said that his “trial testimony &#x²⁷;was a lie.” In the third statement, he said he lied about Green saying that he had killed a man. At the evidentiary hearing, Murray testified that “when FDLE took his statement, he was advised that if he did not make the statement, he could go to jail.”When asked at the evidentiary hearing “whether his postsentencing statements were inconsistent with his trial testimony,” he “exercised his Fifth Amendment privilege against self-incrimination” and refused to answer.

Third, Lonnie Hillery is the father of Sheila Green&#x²⁷;s child, and was her boyfriend at the time of Green&#x²⁷;s trial. Hillery also testified that Green admitted his involvement in the shooting to him. At the evidentiary hearing, Hillery said that he made up the story as part of a plea deal to help Sheila receive a more lenient sentence in her case.

Green II, 975 So. 2d at 1100.

The Circuit Court found that Murray&#x²⁷;s statements, if introduced as substantive evidence on retrial, would not change the outcome of the trial, stating: “There [was] not a reasonable probability that this would produce an acquittal on re-trial, given the other evidence presented at trial.” Sheila Green “was not being forthright at the evidentiary hearing regarding the alleged falsification of her trial testimony.” Indeed, her testimony at the evidentiary hearing was not credible. She was “presenting this unbelievable testimony at the evidentiary hearing in an effort to please her brother (the Defendant) and her family.” The Court likewise found Lonnie Hillery&#x²⁷;s testimony at the evidentiary hearing not credible and that the outcome of the trial would not have been different if [he] had not testified.

* * *

18-13524 Opinion of the Court 61

Claim IV alleged that Green&#x²⁷;s convictions were unreliable in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.⁶⁴ But Claim IV was nothing more than a Rule 3.850 motion based on state law. See Green II, 975 So. 2d at 1100–01. In his habeas petition to the District Court, though, Green transformed the claim into a Giglio claim: “[T]he State ‘elicited or allowed to go uncorrected critical false testimony from key witnesses in violation of Giglio v. United States . . . [T]he State &#x²⁷;clearly relied on the false testimony of Sheila Green, Hillery, and Murray.” The District Court recognized Claim IV as a Giglio claim—“based on these witnesses&#x²⁷; recantation of their trial testimony" —and concluded that the Circuit Court and the Florida Supreme Court treated it as such in denying relief.

B.

The Circuit Court granted Green&#x²⁷;s Rule 3.850 motion in part and denied it in part. The Court granted the motion and vacated Green&#x²⁷;s death sentence after finding that defense counsel was ineffective under Strickland v. Washington during the penalty phase of Green&#x²⁷;s trial.65 The Court therefore held that Green was

64 We assume that the constitutional provision reasonably in play was the Due Process Clause of the Fourteenth Amendment. Since Green was prosecuted under state law and was represented by counsel, the Fifth, Sixth, and Eighth Amendments could not be used to challenge his convictions. 65 During the penalty phase, the prosecution introduced evidence of Green&#x²⁷;s prior unrelated felony convictions in New York as an aggravating factor. These convictions were vacated prior to Green&#x²⁷;s trial for the Flynn murder. The Circuit Court found that Parker was ineffective in failing to investigate

"entitled to a new penalty phase” proceeding on Count I of the indictment. The Circuit Court denied the Rule 3.850 motion as to Green&#x²⁷;s convictions, concluding that he was "not entitled to a new guilt phase" proceeding.

Green appealed the Circuit Court&#x²⁷;s denial of the motion as to his convictions. The State cross-appealed the vacation of Green&#x²⁷;s death sentence and grant of a new trial of the penalty phase. Green II, 975 So. 2d at 1099, 1109.

C.

Green&#x²⁷;s appellee brief to the Supreme Court of Florida presented twelve arguments. Arguments IV through IX66 were and discover the current status of the New York convictions and that the failure “was sufficiently prejudicial to [Green] in the penalty phase of this case to warrant a new penalty phase proceeding." 66 The Table of Contents of Green&#x²⁷;s brief labeled the six arguments in this way:

ARGUMENT IV

GREEN&#x²⁷;S CONVICTIONS ARE CONSTITUTIONALLY

UNRELIABLE IN VIOLATION OF THE FIFTH, SIXTH,

EIGHTH, AND FOURTEENTH AMENDMENTS AS

ESTABLISHED BY NEWLY DISCOVERED EVIDENCE.

ARGUMENT V

THE COURT ERRED IN DENYING GREEN&#x²⁷;S BRADY

CLAIM BASED ON SUPPRESSION OF³ X⁵ CARDS AND

RELATED DOCUMENTS.

18-13524 Opinion of the Court 63

ARGUMENT VI

THE COURT ERRED IN DENYING GREEN&#x²⁷;S CLAIM FOR

RELIEF BASED ON INDIVIDUAL INSTANCES OF

INEFFECTIVE ASSISTANCE OF COUNSEL AND

NONDISCLOSURE OF EXCULPATORY EVIDENCE.

Ineffective assistance for failure to maintain file Exculpatory and impeaching evidence relating to the initial police investigation Failure to impeach Jerome Murray

ARGUMENT VII

THE COURT ERRED IN SUMMARILY DENYING GREEN&#x²⁷;S

CLAIM BASED ON DEFENSE COUNSEL&#x²⁷;S FAILURE TO

CHALLENGE CROSS-RACE IDENTIFICATION.

ARGUMENT VIII

THE COURT ERRED IN DENYING RELIEF WITH

REGARD TO DOG TRACKING EVIDENCE.

ARGUMENT IX

THE COURT ERRED IN DENYING GREEN&#x²⁷;S

INEFFECTIVENESS CLAIM BASED ON TRIAL

COUNSEL&#x²⁷;S FAILURE TO CHALLENGE A PROSPECTIVE

JUROR.

ARGUMENT X

THE COURT ERRED IN SUMMARILY DENYING GREEN&#x²⁷;S

DUE PROCESS CLAIM BASED ON JUROR MISCONDUCT.

The Supreme Court of Florida, in an obvious effort to align the brief&#x²⁷;s arguments with the claims as alleged in Green&#x²⁷;s Rule 3.850 motion and as

For clarity, we will refer to the claims challenging Green&#x²⁷;s convictions by their designations in the Rule 3.850 motion, not by considered by the Circuit Court, treated the appellee brief as presenting “six guilt phase issues": (1) Green&#x²⁷;s convictions are constitutionally unreliable as established by newly discovered evidence; (2) Green was denied due process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), when the State suppressed evidence; (3) trial counsel provided constitutionally ineffective assistance; (4) the trial court erred in denying relief with regard to dog tracking evidence; (5) the rules prohibiting Green&#x²⁷;s lawyers from interviewing jurors are unconstitutional; and (6) the trial court erred in summarily denying Green&#x²⁷;s claims regarding juror misconduct and counsel&#x²⁷;s failure to challenge cross-race identification. Green II, 975 So. 2d at 1099. In addition to these guilt phase issues, the brief addressed and defended the Circuit Court&#x²⁷;s decision vacating Green&#x²⁷;s death sentence based on defense counsel&#x²⁷;s ineffective assistance “in failing to investigate" the disposition of Green&#x²⁷;s New York conviction. Green II, 975 So. 2d at 1109–10. As alternative grounds for affirming the vacation of his death sentence, Green argued that the Circuit Court erred in rejecting the other claims relating to the sentence&#x²⁷;s validity. Those claims are inapposite here because the retrial of the penalty phase did not occur, and Green was sentenced to life imprisonment on the Count I murder charge.

18-13524 Opinion of the Court 65 their corresponding designations in the appeal of that motion to the Supreme Court of Florida. Green&#x²⁷;s appellee brief addressed Claim I-2 as Argument IX and Claim III-F as Argument VI. The brief did not deal with Claim III-H-4, which the Circuit Court adjudicated without an evidentiary hearing, although the brief does refer to the notes White made on August 28, 1989, in Argument VI.⁶⁷ The brief addressed Claim IV in Argument IV.

66 Opinion of the Court 18-13524

The Florida Supreme Court affirmed both the Circuit Court&#x²⁷;s decision granting a new trial of the penalty phase, Green II, 975 So. 2d at 1109–14, and the Court&#x²⁷;s denial of relief as to Green&#x²⁷;s convictions. Id. at 1116. The Florida Supreme Court ruled on the merits of three claims that the Circuit Court decided and that are pertinent here: Claims I-2 and III-F, both alleging ineffective assistance of counsel under the Strickland v. Washington standard, and Claim IV, alleging that Sheila Green, Lonnie Hillery, and Jerome Murray recanting their trial testimony made Green&#x²⁷;s conviction constitutionally unreliable. As Green did not brief Claim III-H-4 to the Florida Supreme Court, the Court did not review it.

1.

The Florida Supreme Court affirmed the Circuit Court&#x²⁷;s denial of Claim I-2 with this statement:

Defense counsel did not confront Hallock at trial with . . . Deputy Walker's report that she had been the one to tie Flynn's hands. Defense counsel did, however, argue to the jury that Flynn's hands appeared to have been tied “for comfort." As the prosecutor put it, defense counsel was “alluding” to the theory that Kim Hallock, “a jealous lover of Chip Flynn," was the real killer. In alluding to White's notes dated August 28, 1989, Argument VI made no mention of the Circuit Court's adjudication of Claim III-H-4. The argument was written as if that adjudication had not occurred.

18-13524 Opinion of the Court⁶⁷

We affirm the trial court&#x²⁷;s denial of this claim because Green fails to meet both prongs of the Strickland standard. First, Green was not prejudiced by Parker&#x²⁷;s failure to remove Guiles for cause because the trial court inquired whether the murder of Guiles&#x²⁷; niece would affect his decision in the case. Guiles said that it would not. Thus, Guiles met the test for juror competency enunciated in Davis v. State, 461 So. 2d 67, 70 (Fla.1984) ("The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given by the court."). Second, Parker did not render ineffective assistance in failing to ask Guiles more questions, because an allegation that there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more specific questions is speculative. Johnson v. State, 903 So. 2d 888, 896 (Fla.2005); Reaves v. State, 826 So. 2d 932, 939 (Fla.2002). Third, Parker&#x²⁷;s performance was not deficient for failing to exercise a peremptory strike to remove Guiles. At the evidentiary hearing, Parker testified that he was satisfied that juror Guiles would be able to follow the law regarding the weighing of the evidence and separate himself from the fact that his niece had been killed. This decision does not fall outside the wide range of professionally competent assistance. See Davis, 461 So. 2d at 70.

Green II, 975 So. 2d at 1104–05.68

2.

The Florida Supreme Court affirmed the Circuit Court&#x²⁷;s denial of Claim III-F with this statement:

Green claims that defense counsel Parker rendered ineffective assistance in failing to impeach Kim Hallock at trial with a police report69 containing an alleged

68 The Florida Supreme Court articulated the Strickland standard thus: In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), the [Supreme] Court established a twoprong standard for determining whether counsel provided constitutionally ineffective assistance. First, a defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the counsel&#x²⁷; guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S. Ct. 2052. Second, the defendant must establish prejudice by "show[ing] that there is a reasonable probability that, but for counsel&#x²⁷;s unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a “probability sufficient to undermine confidence in the outcome." Id. Green II, 975 So. 2d at 1103. The Florida Supreme Court applied this standard in adjudicating Claims I-2 and III-F. 69 In referring to “a police report,” the Florida Supreme Court must have been referring to the report Deputy Walker filed on April⁵, 1989, the day after the Flynn homicide occurred. According to Green&#x²⁷;s Rule 3.850 motion, the report was "stamped 4/5/89 at 2:05:50 a.m.” See supra part II.A.3. This report was disclosed to Parker prior to trial and he discussed it with Walker when he took

18-13524 Opinion of the Court 69 prior inconsistent statement that she, rather than Green, had been the one to tie Charles Flynn&#x²⁷;s hands. According to Green, Deputy Wade Walker stated in a report filed in 1999 pursuant to a Florida Department of Law Enforcement (FDLE) investigation that Hallock told him that the perpetrator made her tie Flynn&#x²⁷;s hands behind his back with a shoestring. Green argues that the information in the FDLE report contradicts Hallock&#x²⁷;s subsequent statements and trial testimony that Green himself tied Flynn&#x²⁷;s hands. However, Walker was not called to testify at the evidentiary hearing. Therefore, the trial court was left only with the allegations in Green&#x²⁷;s postconviction motion as to what Walker purportedly said in the FDLE report.

Id. at 1104 (emphasis added). In short, the Florida Supreme Court affirmed the denial of Claim III-F because Green provided “no supporting evidence” to establish that Hallock actually told Deputy Walker that she tied Flynn&#x²⁷;s hands.⁷⁰ Id.

3.

Walker&#x²⁷;s deposition on March⁵, 1990. The Court could not have been referring to what Walker is reported to have told the FDLE in 1999 since the FDLE Investigative Summary did not exist at the time of Green&#x²⁷;s trial.⁷⁰ Collateral Counsel did not present Walker as a witness or introduce the report filed on April⁵, 1989.

The Florida Supreme Court affirmed the Circuit Court&#x²⁷;s denial of Claim IV.⁷¹ In doing so, it explained that to obtain a new trial under Florida law based on newly discovered evidence, Green had to satisfy two requirements:

First, the evidence must not have been known by the trial court, [Green], or counsel at the time of trial, and it must appear that [Green] or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla.1998) (Jones II). Newly discovered evidence satisfies the second prong of this test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla.1996) (Jones I)). Id. at 1099 (quoting Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)). If Green met these requirements, the trial court must then “consider all newly discovered evidence which would be admissible,'

18-13524 Opinion of the Court⁷¹ and must evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. (quoting Jones v. State, 591 So. 2d 911, 916 (Fla.1991)). In doing so, the court would have to consider “whether the evidence [was] cumulative to other evidence in the case . . . and any inconsistencies in the newly discovered evidence.” Id. at 1099–1100 (quoting Jones, 709 So. 2d at 521).

The Court explained that Green&#x²⁷;s new evidence was insufficient to warrant a new trial because

Jerome Murray&#x²⁷;s out of court recantation would not likely produce an acquittal on retrial because it would only serve as impeachment to his original testimony. . . . [B]oth Sheila Green&#x²⁷;s and Lonnie Hillery&#x²⁷;s recantations [were] incredible based on their responses, demeanor, and body language. Moreover, when weighed against the other admissible evidence, the recantations of Jerome Murray, Sheila Green, and Lonnie Hillery d[id] not create a reasonable probability of acquittal on retrial.

Id. at 1100-02.

* * *

Following the Florida Supreme Court&#x²⁷;s decision, the State filed a notice stating that it would not proceed with a retrial of the penalty phase and requested that the Circuit Court sentence Green to a term of life imprisonment. On August³¹, 2009, after entertaining evidence Green presented in support of his argument that

III.

A.

On February⁴, 2011, Green filed a Successive Motion to Vacate Judgment of Convictions and Sentences in the Brevard County Circuit Court, under Rule 3.850 (“Successive Motion” or “Motion").⁷² By this time, Green was no longer represented by

72 Rule 3.850 governs successive motions. Subsection (h) of the rule states in pertinent part: (h) Successive Motions. (1) A second or successive motion must be titled: "Second or Successive Motion for Postconviction Relief." (2) A second or successive motion is an extraordinary pleading. Accordingly, a court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the

18-13524 Opinion of the Court 73

Collateral Counsel. He had been replaced by private appointed counsel. The Motion presented three “Grounds for Post-Conviction Relief." All appeared under this heading: “NEWLY

DISCOVERED EVIDENCE OF INNOCENCE ESTABLISHES

THAT MR. GREEN&#x²⁷;S CONVICTION AND SENTENCE

VIOLATE THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES AND FLORIDA

CONSTITUTIONS.”73 The second and third grounds are relevant defendant or defendant&#x²⁷;s counsel to have asserted those grounds in a prior motion. When a motion is dismissed under this subdivision, a copy of that portion of the files and records necessary to support the court&#x²⁷;s ruling shall accompany the order denying the motion. Fla. R. Crim. P. 3.850(h). The text of this subdivision formerly appeared in Fla. R. Crim. P. 3.850(f). We cite to subdivision (h) in this opinion. This was Green&#x²⁷;s third attempt to file a successive Rule 3.850 motion to vacate his convictions. Green filed a "First Amended Successive Motion" on September²⁷, 2010, and a "Second Amended Successive Motion” on January 7, 2011. The February⁴, 2011, motion (referred to in the above text) was also styled as the “Second Amended Successive Motion.” On January 24, 2011, the Circuit Court denied the January 7 motion without prejudice because the oath appended to the January 7 motion failed to comply with Fla. R. Crim. P. 3.987 and instructed Green to file a corrected motion within thirty days. Green v. Sec&#x²⁷;y Dep&#x²⁷;t of Corrs., 877 F. 3d 1244, 1246 (11th Cir. 2017). Green filed a corrective motion on February⁴, 2011, as indicated in the above text. 73 Rule 3.850 addresses newly discovered evidence. Subsection (b), which the Successive Motion cited as the basis for the motion&#x²⁷;s grounds for relief, states in pertinent part:

1.

The second ground, “The State Withheld Exculpatory Evidence," constituted a reassertion of Claim III-H-4 from the first motion, but with a significantly expanded, and purportedly "newly discovered," factual base.75 Recall that the record before the Circuit Court when it ruled on Claim III-H-4 on July²², 2002, following b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than² years after the judgment and sentence become final unless it alleges that: (1) the facts on which the claim is predicated were unknown to the movant or the movant&#x²⁷;s attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within² years of the time the new facts were or could have been discovered with the exercise of due diligence. Fla. R. Crim. P 3.850(b).⁷⁴ The first ground was “Layman Layne&#x²⁷;s Recantation Demonstrates Mr. Green&#x²⁷;s Rights Were Violated.” 75 In its response to the Successive Motion, the State argued that the second ground was barred by Rule 3.850(h) as impermissibly successive because the second ground had been presented and litigated as Claim III-H-4 at the Huff hearing held on Green&#x²⁷;s first Rule 3.850 motion. Alternatively, assuming the second ground was not barred as impermissibly successive, the State argued that statements Clarke and Rixey made to White speculating that Hallock killed Flynn would have been inadmissible at Green&#x²⁷;s trial.

18-13524 Opinion of the Court 75 the Huff hearing, consisted of the record of Green&#x²⁷;s prosecution and direct appeal in Green I, Claim III-H-4&#x²⁷;s factual allegations, and the statements the Court, the State&#x²⁷;s attorney, and Collateral Counsel made on the record at the Huff hearing. In contrast, the record before the Circuit Court in the proceedings held on the Successive Motion included the evidence presented at the evidentiary hearings the Court held in 2003 and 2004 on Claims I-2, III-F, and IV, the facts asserted in the Successive Motion, and affidavits Diane Clarke and Mike Rixey executed in June 2010 that accompanied the Motion.⁷⁶

Addressing the Circuit Court&#x²⁷;s July²², 2002, adjudication of Claim III-H-4 (as presented at the Huff hearing) in light of the additional evidence presented in support of the Successive Motion, Green argued that the Circuit Court erred in denying Claim III-H- 4 for two fundamental reasons. First, Green argued the Court mistakenly held that "the purported opinion[s] of Deputies Rixey and Clarke that they suspected Hallock murdered Flynn would not have been admissible at trial” and that their opinions “were . . . not Brady material.” Second, Green argued the Court erred in finding as fact that "all information in [White&#x²⁷;s] notes was disclosed and known by defense counsel before trial.” In other words, Green

76 Opinion of the Court 18-13524 new postconviction counsel sought to raise arguments in the Successive Motion that Collateral Counsel did not raise to the Florida Supreme Court on direct appeal from the Circuit Court&#x²⁷;s decision.

Drawing on the expanded factual base supporting the Successive Motion, Green elaborated at length on why Claim III-H-4 was meritorious and should have been upheld by the Circuit Court in its order of July²², 2002:77

The fact that Flynn&#x²⁷;s ex-girlfriend was the initial prime suspect of police officers who investigated Flynn&#x²⁷;s murder would have been admissible at trial under clearly established Florida law. . . . The real impact of Clarke and Rixey&#x²⁷;s statements to the investigators and prosecutors is revealed in the witness statements that resulted from interviews only recently conducted by Mr. Green&#x²⁷;s current counsel in the last year.

[T]he recently-obtained sworn affidavits of Sergeant Clarke and Deputy Rixey do tend to prove that Mr. Green is innocent and that a third party – the State&#x²⁷;s sole eyewitness and the victim&#x²⁷;s ex-girlfriend Hallock was the true perpetrator of the crime and, at the very least, had a strong motive to fabricate her testimony to cast blame on someone else. Specifically, their statements point out that: (1) Hallock changed the details of her story several times that

18-13524 Opinion of the Court⁷⁷ night, including the location of the grove and who tied Flynn&#x²⁷;s hands; (2) Hallock appeared emotionally detached when she was brought to the crime scene, seemed unconcerned about Flynn&#x²⁷;s condition, and never once asked how Flynn was doing; (3) the physical evidence at the crime scene was not consistent with Hallock&#x²⁷;s story, including that the clear and unmarred tire tracks at the grove indicated a slow and deliberate exit; (4) Hallock drove all the way to Stroup&#x²⁷;s trailer for help, bypassing numerous houses and at least one public telephone and a hospital to seek immediate assistance, which could have saved Flynn&#x²⁷;s life; (5) Hallock never mentioned an abduction in her initial statement transmitted over the radio; and (6) when the officers asked Flynn – who was still lucid - who shot him, he only replied that he wanted to go home, never once mentioning an assailant or a "black guy”. Clarke&#x²⁷;s and Rixey&#x²⁷;s conclusions, when taken in conjunction with the demonstrated contradictions between Hallock&#x²⁷;s version of the events and the physical evidence, the numerous material inconsistencies in her statements, and the fact that there is no physical evidence linking Mr. Green to the crime, are strong evidence of Hallock&#x²⁷;s guilt and Mr. Green&#x²⁷;s innocence. At the very least; they are more than sufficient to establish that a reasonable jury likely would not find guilt beyond a reasonable doubt.

The new evidence presented here could not be previously presented to this Court because the State withheld its existence from Mr. Green&#x²⁷;s counsel. It was only discovered recently by the efforts of Mr. Green&#x²⁷;s subsequently retained counsel. Further, these affidavits evince facts not contained in White&#x²⁷;s notes. White&#x²⁷;s notes only contained Clarke&#x²⁷;s and Rixey&#x²⁷;s conclusions that Hallock killed Flynn. Clarke&#x²⁷;s and Rixey&#x²⁷;s affidavits contain their impressions based on the facts and circumstances of that night. This information was neither available to Mr. Green&#x²⁷;s counsel at trial nor during the first 3.850 proceeding – but it was known by the State.

The testimony of the officers – alone and in tandem with the other compelling evidence of Mr. Green&#x²⁷;s innocence – would certainly have had a powerful impact on any jury and would likely have resulted in Mr. Green&#x²⁷;s acquittal of the charges for which he was convicted.

To Green, all of this showed that the prosecution&#x²⁷;s failure to disclose this exculpatory evidence violated the Brady rule and deprived him of his right to present a defense. “There is more than a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Circuit Court denied the claim, apparently agreeing with the State that the second ground amounted to nothing more

18-13524 Opinion of the Court 79 than Claim III-H-4 recast with a new evidentiary foundation and thus impermissibly successive under Rule 3.850(h).⁷⁸ The Court concluded that Green&#x²⁷;s argument that "Deputy Rixey and Sergeant Clarke observed facts indicating that Hallock shot Chip Flynn . . . was addressed in the first post-conviction motion and denied."

2.

The third ground the Successive Motion presented was that Green&#x²⁷;s trial attorney Parker rendered ineffective assistance of counsel in failing to investigate and establish Green&#x²⁷;s alibi. Several prosecution witnesses, including Sheila Green, Lonnie Hillery, and Jerome Murray, had recanted their testimony after the trial, and eight potential alibi witnesses had stated in sworn affidavits that at the time of Flynn&#x²⁷;s murder, Green was in the “projects” in Mims, far from the scene of the crime. The eight affiants were Brandon Wright, Reginald Peters, Lori Rains, Carleen Brothers, Tyrone Torres, O&#x²⁷;Conner Green, Kerwin Hepburn, and Cheryl Anderson.79

78 Citing Fla. R. Crim. P. 3.850(h) and Schoenwetter v. State,⁴⁶ So. 3d 535, 561 (Fla. 2010), the Circuit Court observed that “a successive post-conviction[] motion is not intended to be a second appeal, nor is it appropriate to use a different argument to re-litigate issues already decided." 79 In its response to the Successive Motion, the State argued that the third ground was barred by Rule 3.850(h) as impermissibly successive. In his first Rule 3.850 motion, Green presented the claim that Parker rendered ineffective assistance of counsel under Strickland v. Washington in not calling Lori Rains as an alibi witness, and the Circuit Court denied the claim. As for Reginald Peters and Brandon Wright, whose testimony (according to the Court) would

The Circuit Court realized that Green&#x²⁷;s attorneys were attempting to avoid the dismissal of the third ground as procedurally defaulted (because they failed to present the ground in Green&#x²⁷;s first Rule 3.850 motion)⁸⁰ by representing that Green only recently "found three additional witnesses who attest[ed] that [he] was with them in the Mims projects during the night of the murder,” Reginald Peters, Brandon Wright, and Randy Brown. However, the Court decided to proceed regardless and held an evidentiary hearing on Green&#x²⁷;s new ineffective assistance claim.

The Court heard the testimony of Peters and Wright on May²⁷, 2011, and along with their testimony, received Brown&#x²⁷;s affidavit in evidence. Assuming the truth of what they said, these are the facts their testimony would have established at Green&#x²⁷;s trial:

Peters, then age nineteen, sold drugs to Green "throughout the night of April 3 and into the early morning hours of April 4, 1989, in Mims at Lori Rains' residence. Peters would be impeached with his criminal record, which he acknowledged; Peters had

"do nothing to add to the arguments made previously,” Green could have found the two witnesses and presented their statements to the Circuit Court "[t]hrough due diligence” in advancing his first Rule 3.850 motion.⁸⁰ Impermissibly successive claims cannot be relitigated in later post-conviction relief proceedings. See supra note 78. Merely adding three more alibi witnesses does not change the underlying nature of the claim when those alibi witnesses could have been found through due diligence in the first post-conviction relief motion.

18-13524 Opinion of the Court⁸¹

"approximately ten felony convictions and four retail theft convictions." Wright,⁸¹ then fourteen, saw Green at Rains&#x²⁷; house around¹¹:15 p.m. and “on and off again the rest of the night." Wright was “one of several juveniles referred to as the &#x²⁷;jitterbugs&#x²⁷; who sold drugs from Lori Rains&#x²⁷; house . . . [Green] was &#x²⁷;getting high&#x²⁷; the night of April³," which is why he was at “Rains&#x²⁷; house.” Green was "in and out&#x²⁷; that evening going from Carleen Brothers&#x²⁷; house to Lori Rains&#x²⁷; house." Wright was “a drug seller. . . [also going] &#x²⁷;in and out&#x²⁷; between¹¹:15 p.m. on April³ and³:00 a.m. on April⁴, 1989." The Circuit Court found that "Wright&#x²⁷;s testimony that he did not know until last year that [Green] was convicted of murder and sentenced to death was wholly unbelievable, given his testimony that he was with [Green] off and on during the night of Chip Flynn&#x²⁷;s murder, observed the police in the area investigating [the] murder, and saw the police sketch of the suspected murderer." Chip Flynn&#x²⁷;s murder was big news in Mims, Wright knew [Green] and his family, and Wright was living in Mims when the case came to trial. Brown saw Green “on the evening of April³, 1989, and the early morning hours of April⁴, 1989, in the projects in Mims&#x²⁷; at the home of Lori Rains." The Circuit Court concluded that even if the testimony of these witnesses was true and not barred, it would not “constitute

In the end, the Circuit Court denied the Successive Motion in full as barred by Rule 3.850(h). The Court denied the Motion&#x²⁷;s third ground as it related to Lori Rains because the claim that "trial counsel was ineffective for not calling Lori Rains and others to establish an alibi was made previously [in the first Rule 3.850 motion] and denied.” “Rains was known to [Green&#x²⁷;s] counsel at trial.” As for Wright, Peters, and Brown, who could put Green in the projects in Mims around the time of the Flynn homicide, the Court found that by "[u]sing due diligence the Defendant could have discovered the names and obtained the statements of these three additional witnesses.” Green&#x²⁷;s new counsel "discovered the names of these witnesses by interviewing Lori Rains.” The Court held alternatively that Green failed to establish a claim of ineffective assistance under Strickland v. Washington.

18-13524 Opinion of the Court 83

"There [was] not a reasonable probability that the testimony of these witnesses would produce an acquittal on re-trial, given the plethora of other evidence presented." The Court also noted that "[t]he testimony of the &#x²⁷;alibi witnesses&#x²⁷; placing Green in the Mims projects during the early morning hours of the murder is damning and further implicates the Defendant by putting him near the crime scene right after the crime was completed."

B.

Green appealed the Circuit Court&#x²⁷;s decisions denying his Brady and Strickland claims in his Successive Motion for postconviction relief under Rule 3.850 to the Florida Fifth District Court of Appeal.⁸² The State&#x²⁷;s answer brief argued that the claims were procedurally barred under Rule 3.850. The Brady claim was foreclosed on two grounds: (1) it had been raised and denied in Green&#x²⁷;s first Rule 3.850 motion and (2) it was procedurally barred, having been raised in a successive motion filed “well beyond the two year time limitation set forth in Florida Rule of Criminal Procedure 3.850 for raising claims of ineffective assistance of counsel." The Strickland claim was barred by Rule 3.850(h) because using due diligence, Green could have found witnesses Wright, Peters, and Brown prior to the evidentiary hearing held on his first Rule 3.850 motion. The Florida Fifth District Court of Appeal affirmed per curiam without

82 Green also appealed the Circuit Court&#x²⁷;s denial of his state-law based motion for a new trial due to the three prosecution witnesses recanting.

IV.

A.

On February²⁷, 2014, Green filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida seeking relief from his convictions; Green later amended this petition on March²⁶, 2014. The petition presented six “grounds" for relief.83 They included claims

83 The grounds for relief consisted of claims under multiple constitutional provisions. In its Amended Order granting Green&#x²⁷;s petition in part and denying it in part, the District Court identified six “claims,” some of which consisted of multiple independent claims. The six grounds as presented in Green&#x²⁷;s habeas petition were: Ground One: Mr. Green was deprived of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by the State&#x²⁷;s improper suppression of exculpatory and impeachment evidence and its knowing reliance on false testimony. Ground Two: Mr. Green was denied due process of law and a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments by the trial court&#x²⁷;s failure to suppress his out-of-court photographic identification and subsequent incourt identification. Ground Three: Mr. Green&#x²⁷;s constitutional rights under the Fifth, Sixth, and Fourteenth Amendments were violated by the admission of unreliable dog-tracking evidence.

18-13524 Opinion of the Court 85 of Circuit Court error the Florida Supreme Court rejected on the merits in the direct appeal of Green&#x²⁷;s convictions in 1994 in Green Iand in its review of the Circuit Court&#x²⁷;s disposition of Green&#x²⁷;s first Rule 3.850 motion in 2008 in Green II. The petition also included a claim Green presented in his first Rule 3.850 motion that was denied on the merits but not appealed; claims Green presented in his Successive Motion that were denied as impermissibly successive by the Circuit Court and the Fifth District Court of Appeal in Green III; and claims not presented to the Florida courts at all. Green argued that the District Court should review the merits of all the claims the Florida courts would reject as procedurally defaulted as

Ground Four: Mr. Green&#x²⁷;s trial counsel provided assistance that falls well below the standard for effective assistance of counsel mandated by the Sixth and Fourteenth Amendments. Ground Five: Mr. Green was denied his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by the State&#x²⁷;s repeated improper references to Mr. Green&#x²⁷;s race and making knowingly false representations of the facts and the evidence to the jury and to the court. Ground Six: Mr. Green was denied his constitutional due-process rights under the Fifth, Sixth, and Fourteenth Amendments because the jury prejudged him guilty based on their exposure to external publicity.

The State responded to the petition by moving the District Court to dismiss it as time-barred because Green had not filed it within the one-year limitations period established by 28 U.S.C. § 2244(d)(1)(A). The Court granted the State&#x²⁷;s motion and dismissed the petition with prejudice. Green appealed. This Court held Green&#x²⁷;s petition timely filed and remanded his case for further proceedings. Green v. Secʼy, Dep&#x²⁷;t of Corrs., 877 F. 3d 1244, 1249 (11th Cir. 2017). On remand, the State responded to the claims the petition presented, and the District Court took those claims and the State&#x²⁷;s response under advisement without oral argument.

B.

The District Court&#x²⁷;s authority to grant a writ of habeas corpus vacating Green&#x²⁷;s convictions was circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214 (codified as amended at 28 U.S.C. §§ 2241–55). A district court may not grant a state prisoner a writ of habeas corpus on a federal claim unless the prisoner establishes that the state courts adjudicated the federal claim on the merits and that the adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as

84 If Green attempted at this point in time to exhaust such claims, we assume the Florida courts would deny them pursuant to Rule 3.850(h) as impermissibly successive.

18-13524 Opinion of the Court 87 determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).

The Supreme Court has explained the meaning of the three phrases contained in § 2254(d)(1). The phrase “clearly established Federal law" refers only to "the holdings, as opposed to the dicta, of [Supreme] Court&#x²⁷;s decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000). A state court decision is “contrary to" a Supreme Court holding “if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 412–13, 120 S. Ct. at 1523. A state court decision "involve[s] an unreasonable application of a Supreme Court holding “if the state court identifies the correct governing legal principle from [the] Court&#x²⁷;s decisions but unreasonably applies that principle to the facts of the prisoner&#x²⁷;s case.” Id. at 413, 120 S. Ct. at 1523. A merely incorrect application of federal law, however, is not enough to warrant habeas relief. As for whether the state court decision was based on an unreasonable determination of the facts,” we must bear in mind that AEDPA establishes a presumption that the state court&#x²⁷;s findings of fact are

Therefore, any federal claims presented to a district court in a habeas petition from a state prisoner must have first been exhausted in the state court system.⁸⁶ Comity requires that the state courts be given the "opportunity to pass upon the prisoner&#x²⁷;s claims and, should they find any valid claims, to take appropriate corrective action. Baldwin v. Reese, 541 U.S.²⁷, 29, 124 S. Ct. 1347, 1349 (2004). Specifically, the prisoner must "use the State&#x²⁷;s established appellate review procedures before he presents his claims to

85 The precise relationship between the “unreasonable application” standard of § 2254(d)(2) and the “clear and convincing” standard of § 2254(e)(1) when reviewing a state court&#x²⁷;s factual determinations under AEDPA is unclear. See Burt v. Titlow, 571 U.S. 12, 18, 134 S. Ct.¹⁰, 15 (2013) (“we have not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1)”); Wood v. Allen, 558 U.S. 290, 300, 130 S. Ct. 841, 849 (2010) (“we have explicitly left open the question whether § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2)”). As Green&#x²⁷;s arguments fail under either standard, we decline to address the nature of the relationship between § 2254(d)(2) and § 2254(e)(1) at this time.⁸⁶ In Florida, a claim for postconviction relief in a capital case is exhausted once it is reviewed by the Florida Supreme Court. Fla. Const. art. V § 3 (providing for the review in the Florida Supreme Court of judgments in capital cases). In a non-capital case, which this case became once the Florida Supreme Court affirmed the vacation of Green&#x²⁷;s death sentence and he was resentenced to a prison term, exhaustion is complete when the Florida District Court of Appeal decides the claim on the merits. Barritt v. Secʼy, Fla. Dep&#x²⁷;t of Corrs., 968 F. 3d 1246, 1249 n.3 (11th Cir. 2020).

18-13524 Opinion of the Court 89 a federal court.” O&#x²⁷;Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1733 (1999).

Comity also requires that the claims the prisoner presents to the district court be the same claims the prisoner exhausted in the state courts. To the extent the claims are not the same in terms of their "legal theory and facts on which [they] rest[]"-as the claims exhausted in the state courts, the federal court will treat the claims as unexhausted. Henderson v. Campbell, 353 F. 3d 880, 898 n.25 (11th Cir. 2003); see also Kelly v. Secʼy, Dep&#x²⁷;t of Corrs., 377 F. 3d 1317, 1344 (11th Cir. 2004) ("the prohibition against raising nonexhausted claims in federal court extends not only to theories of relief, but also to the specific assertions of fact that might support relief&#x²⁷;). Presentation of a claim "under the same general legal umbrella but with entirely different factual underpinnings [also] does not constitute fair presentation of the . . . claim." Henderson, 353 F. 3d at 898 n.25. We "require that petitioners present their claims to the state courts such that the reasonable reader would understand each claim&#x²⁷;s particular legal basis and specific factual foundation.” Kelley, 377 F. 3d at 1344-45.

A federal court may only entertain the merits of an unexhausted claim if the prisoner establishes one of two exceptions. The first is the “cause and actual prejudice” exception. Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573 (1982). The second is the "actually innocent" exception, also known as the "fundamental miscarriage of justice" exception, applicable in extraordinary circumstances. Murray v. Carrier, 477 U.S. 478, 495–96, 106 S. Ct. 2639, 2646–49 (1986); Johnson v. Singletary, 938 F. 2d 1166, 1174– 76 (11th Cir. 1991). Green relies on the actually innocent exception as his excuse for failing to exhaust the claims the Florida courts would not now entertain.

C.

The District Court identified nineteen separate claims amongst the six “claims” Green presented in his habeas petition87 and explicitly ruled on seven, implicitly denying the other twelve as meritless.⁸⁸ The Court concluded that four of the seven had been exhausted and accordingly undertook the task of determining whether the state appellate court&#x²⁷;s adjudication of each claim was entitled to AEDPA deference. The four claims were as follows: first, the State denied Green due process of law under Brady v. Maryland when the prosecutor, Christopher White, withheld from the defense the notes he made on August 28, 1989, of the conversation he had with Diane Clarke and Mark Rixey. Second, the State denied Green due process of law when the Circuit Court overruled his motion to suppress Hallock&#x²⁷;s out-of-court identification of him as unduly suggestive and his objection to Hallock&#x²⁷;s in-court identification as unreliable. Third, John Parker denied Green his Sixth Amendment right to the effective assistance of counsel under

87 The District Court essentially ignored the several constitutional provisions Green&#x²⁷;s petition cited in support of its six grounds for relief. Some of the six claims the Court identified consisted of several separate subclaims. For example, the Court treated “Claim One” as consisting of five Brady claims, which the Court labeled as “Issues.” The Court granted the writ of habeas corpus on “Issue One of Claim One.”The Court treated “Claim Four” as presenting eight instances of ineffective assistance of counsel. Claims Five and Six were based on additional instances of ineffective assistance of counsel.⁸⁸ The claims rejected as meritless included Green&#x²⁷;s Claim III-F claim that Parker was ineffective for failing to develop the hands-tying statement contained in Walker&#x²⁷;s 1989 report. Green has not appealed the district court&#x²⁷;s denial of this claim.

18-13524 Opinion of the Court 91

Strickland v. Washington in failing to challenge Juror Guiles, whose niece had been murdered. Fourth, the State denied Green due process of law under United States v. Giglio when the prosecutor introduced false testimony from Sheila Green, Lonnie Hillery, and Jerome Murray and allowed it to remain uncorrected.

The District Court found merit in the first claim and granted Green relief, a writ of habeas corpus vacating his convictions. The State appeals the ruling. We consider the State&#x²⁷;s appeal in part V. The Court denied the writ on the second, third, and fourth claims, and Green cross-appeals those rulings. Because we reverse the Court&#x²⁷;s decision on the first claim, we must consider Green&#x²⁷;s crossappeal. We do so in part VI.

The District Court denied relief on the remaining three of the seven claims on the ground that they had been procedurally defaulted and were therefore unexhausted. Green cross-appeals those rulings, arguing that the Court should have decided the claims on the merits because he established a lawful excuse for the defaults, his actual innocence of the crimes for which he stands convicted. In part VII, we consider those three claims and whether the Court erred in rejecting Green&#x²⁷;s actually innocent excuse for the defaults. In part VIII, we address the litigation tactics that have been employed by Collateral Counsel and Green&#x²⁷;s current counsel which, in large part, led to the District Court&#x²⁷;s erroneous grant of federal habeas relief to Green. In Part IX, we conclude.

V.

A.

The District Court found the first claim, Claim III-H-4, in “Ground One” of Green&#x²⁷;s habeas petition.89 Claim III-H-4 alleged that in violation of the Brady rule, the State withheld the notes White made on August 28, 1989, of a conversation he had with Diane Clarke and Mark Rixey. Green&#x²⁷;s petition to the District Court stated that:

During the course of the investigation, first responders and experienced officers Deputy Mark Rixey and Sergeant Diane Clarke told . . . Assistant State Attorney Christopher White, that the evidence pointed to Hallock as Flynn's killer. Handwritten notes from White's August 1989 interview of Rixey and Clarke . contain the following statement: “Mark & Diane suspect girl did it, she changed her story couple times She 1st said she tied his hands behind his back." White wrote that Rixey and Clarke were suspicious because Hallock never asked about Flynn's condition, would not go to the scene, and drove all the way to the trailer park to ask for help. There were also no footprints or shell casings at the orange grove. The

89 Ground One alleged that Green was “deprived of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by the State&#x²⁷;s improper suppression of exculpatory and impeachment evidence and its knowing reliance on false testimony.”

18-13524 Opinion of the Court 93

2010 sworn affidavits of Clarke and Rixey further detail their suspicions.⁹⁰

Green went on to suggest that Rixey and Clarke&#x²⁷;s suspicion that Hallock killed Flynn was based on the following facts:

The gun found at the scene was Flynn's, and there was no physical evidence linking Mr. Green to the crime. No fingerprints of Mr. Green were found. The only evidence at trial that the State connected to Mr. Green were Win Streak shoe prints found at Holder Park, where many people had attended a baseball game the evening of April 3. No proof was presented at trial that these were Mr. Green's shoe prints, yet the prosecutors told the jury that they were.

The District Court correctly stated the Brady standard under which Green had to prevail for Claim III-H-4: “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281– 82, 119 S. Ct. 1936, 1948 (1999). The Court also stated the correct prejudice standard: to establish prejudice a petitioner must show that “there is a reasonable probability that, had the evidence been

90 Ground One, to the extent it alleged a Brady violation based on White&#x²⁷;s notes, mimicked the allegations of Claim III-H-4 of Green&#x²⁷;s first Rule 3.850 motion. In Part II.A.¹, supra, we quote the claim as alleged in that motion.

The State, in its response to Green&#x²⁷;s petition, argued that the District Court was precluded from reviewing Claim III-H-4 because the claim had not been exhausted in the Florida state courts. Specifically, in appealing to the Florida Supreme Court in Green II the Circuit Court&#x²⁷;s order denying Claim III-H-4, Green did not assign the denial of the claim as error in his appellate brief, nor did he offer any factual basis or argument in support of the claim. The State argued alternatively that Green failed to show that the Circuit Court&#x²⁷;s adjudication of Claim III-H-4 was not entitled to AEDPA deference.

Green countered the State&#x²⁷;s arguments in his reply to the State&#x²⁷;s response. Regarding exhaustion, he represented that in Green IIhe asserted as error the Circuit Court&#x²⁷;s denial of Claim III- H-4 and that the Supreme Court affirmed the denial “with no explanation."91 According to Green, this means the District Court

91 In his habeas petition, Green represented that the Florida Supreme Court affirmed the Circuit Court&#x²⁷;s denial of Claim III-H-4 in Green II. He made the same representation in his reply to the State&#x²⁷;s response to his habeas petition: "the issue was raised on appeal of his first post-conviction motion and &#x²⁷;affirmed on appeal to the Supreme Court of Florida.”The quotation is taken

18-13524 Opinion of the Court 95 had to "look through” the Green II decision to the last “reasoned decision" on Claim III-H-4, i.e., the decision the Circuit Court reached on July²², 2002. See Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S. Ct. 2590, 2595 (1991). If the District Court did so, Green argued that it would come to two conclusions: (1) that the Circuit Court&#x²⁷;s denial of Claim III-H-4 constituted an "unreasonable application of Brady v. Maryland under § 2254(d)(1) and (2) that the Circuit Court&#x²⁷;s determination that the defense had access to all of the information contained in White&#x²⁷;s notes was an “unreasonable determination of the facts” under § 2254(d)(2). Having so concluded, Green contended the Court would have to consider Claim III-H-4 de novo.

B.

The District Court accepted Green&#x²⁷;s representation that Claim III-H-4 had been exhausted in Green II without mention or explanation.⁹² The District Court instead proceeded directly to the from the Circuit Court&#x²⁷;s order of August³¹, 2011, denying Green&#x²⁷;s Successive Motion. The Circuit Court could not have read the opinion in Green II as affirming the denial of Claim III-H-4 because the opinion contains no mention of Claim III-H-4 or any of the facts underpinning the claim-specifically, White&#x²⁷;s notes of August 28, 1989, or any of the contents of the notes. The quoted statement that Claim III-H-4 was “affirmed on appeal to the Supreme Court of Florida” finds no support in the Green II decision, and had to have come from another source, one that we were unable to identify.⁹² The District Court did so notwithstanding the fact that in Green II neither Green&#x²⁷;s brief nor the Florida Supreme Court&#x²⁷;s decision contained one word

The District Court concluded that the adjudication of Claim III-H-4 failed both tests. It failed the § 2254(d)(1) test because the Circuit Court ceased its inquiry into the matter of Brady prejudice after concluding that Clarke&#x²⁷;s and Rixey&#x²⁷;s suspicion—that Hallock "did it"-would have been inadmissible as opinion testimony at Green&#x²⁷;s trial.93 The Circuit Court erred because it ceased its prejudice inquiry without determining whether the officers&#x²⁷; suspicion that Hallock killed Flynn was material, i.e., whether it could have been helpful to the defense. The District Court concluded it would have been:

[T]he information that the first officers at the scene evaluated the evidence as implicating Hallock as a suspect went to the heart of the defense strategy. It is difficult to conceive of information more material to the defense and the development of about Claim-III-H-4. Both Green's brief and the Florida Supreme Court's decision in Green II were part of the record before the District Court. 93 The District Court mind read the Circuit Court as having based its evidentiary ruling on Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000) (“We begin . . . with the basic proposition that a witness's opinion as to the guilt or innocence of the accused is not admissible.”).

18-13524 Opinion of the Court 97 defense strategy than the fact that the initial responding officers evaluated the totality of the evidence as suggesting that the investigation should be directed toward someone other than Petitioner. Thus, the withheld evidence was clearly material and the failure to disclose it was a Brady violation which undermines confidence in the outcome of the trial.⁹⁴

To the District Court, the Circuit Court&#x²⁷;s failure to recognize the materiality of Clarke&#x²⁷;s and Rixey&#x²⁷;s suspicion constituted an unreasonable application of Brady. The Court determined that "[i]t was contrary to established federal law, as set down in Brady, and objectively unreasonable for the State court to end the prejudice inquiry once it made an admissibility determination on the prosecutor&#x²⁷;s notes concerning the Deputies&#x²⁷; suspicions that Hallock murdered Flynn.”

The District Court also found that the Circuit Court made an "unreasonable determination of the facts" when it concluded that the defense had access to all the information contained in White&#x²⁷;s notes. As the District Court expressed it,

94 In finding that Clarke&#x²⁷;s and Rixey&#x²⁷;s suspicion went to “the heart of the defense strategy,” the District Court drew on testimony Parker gave at the evidentiary hearings the Circuit Court held on Claims I-2, III-F, and IV. These evidentiary hearings did not, however, address Claim III-H-4, as the Circuit Court determined Claim III-H-4 did not require an evidentiary hearing.

Conspicuously absent from this list is the information contained in the prosecutor&#x²⁷;s note that “[H?] said she tied his hands behind his back." Hallock was never cross examined as to whether she, as opposed to the assailant, tied Flynn&#x²⁷;s hands behind his back. This was a critical issue at trial as the defense focused instead on the theory that the hands were tied "for comfort." Defense counsel testified that this issue was "the heart of the defense" and that he would have used the information at trial, had he known of it.

The District Court seized on the absence of the hands-tying statement in the Circuit Court&#x²⁷;s Order of July²², 2002, as proof that the Circuit Court did not consider the statement in deciding

95 In referring to “this list,” the District Court is citing the Circuit Court&#x²⁷;s order denying Claim III-H-4, in which the Circuit Court set out the information known to defense counsel pretrial. See supra part II.A.1. Immediately prior to setting out the list, the Circuit Court recited the statements contained in White&#x²⁷;s notes, including: “Mark & Diane suspect the girl did it. She changed her story couple times. [?] She [?] said she tied his hands behind his back." The Circuit Court&#x²⁷;s order stated that Parker was aware of "[a]ll of the information in [White&#x²⁷;s] notes,” and this obviously included the hands-tying statement. Moreover, in prosecuting Claim III-F, Green alleged that Parker had access to Deputy Walker&#x²⁷;s April⁵, 1989, report and thus the hands-tying statement. This was part of Green&#x²⁷;s claim that Parker rendered ineffective assistance of counsel in failing to cross-examine Hallock with the statement from Walker&#x²⁷;s report. See supra part II.A.³ (discussing the allegation and the ineffective-assistance claim); see also Green II, 975 So. 2d at 1104 (discussing and affirming the Circuit Court&#x²⁷;s denial of this ineffective-assistance-of-counsel claim).

18-13524 Opinion of the Court 99

Claim III-H-4. Then, turning to whether the non-disclosure of this information prejudiced Green&#x²⁷;s defense, the District Court said:

Hallock was never cross examined as to whether she, as opposed to the assailant, tied Flynn's hands behind his back. This was a critical issue at trial as the defense focused instead on the theory that the hands were tied "for comfort." Defense counsel testified that this issue was "the heart of the defense" and that he would have used the information at trial, had he known of it. This impeachment information contained in the prosecutor's notes was unquestionably material as it seriously undermined the testimony of Hallock that the assailant tied Flynn's hands behind his back and that the gun discharged in the process. The initial suspicion that Hallock was the shooter coupled with this significant inconsistency in her story would have provided powerful impeachment material and a basis to argue that Hallock had some motivation to fabricate. The failure to disclose this information, was a Brady violation considering the totality of the circumstances and the absence of any direct evidence of guilt beyond the identification by Hallock. The trial court's determination otherwise was contrary to, or an unreasonable application of Brady.96

96 In relying on Parker&#x²⁷;s testimony, which was given at the evidentiary hearing held after the Circuit Court adjudicated Claim III-H-4, the District Court was effectively deciding a new Claim III-H-4, one that had not been exhausted. We point this out in the text infra part V.C.1.

100 Opinion of the Court 18-13524

The District Court thus concluded that the Circuit Court&#x²⁷;s adjudication of Claim III-H-4 was based on an unreasonable application of Brady per § 2254(d)(1) and an unreasonable determination of the facts in light of the evidence presented to the Circuit Court per § 2254(d)(2). Given these circumstances, the District Court proceeded to decide Claim III-H-4 de novo.

In doing so, the District Court considered the record that was before the Circuit Court when it adjudicated the claim on July²², 2002, i.e., the records of the pre-trial and trial proceedings in Green&#x²⁷;s prosecution, the Huff hearing, and Claim III-H-4&#x²⁷;s factual allegations. The District Court also considered the record of the evidentiary hearings the Circuit Court held in 2003 and 2004 on Claims I-2, III-F, and IV, and therefore Parker&#x²⁷;s testimony; Green&#x²⁷;s Successive Motion, which included the record of the evidentiary hearing the Circuit Court held on the Motion; and the affidavits Clarke and Rixey executed in June 2010, which contradicted the testimony they gave on deposition prior to Green&#x²⁷;s trial and afterwards at his trial.97 None of that was before the Circuit Court when it decided Claim III-H-4 on July²², 2002.

97 The District Court recognized the contradiction. In testifying on deposition and at trial, Clarke and Rixey stated that they had no involvement at all in the investigation of the Flynn murder. Indeed, their participation in the case ended when the criminologist and the homicide case agent arrived at the orange grove. Moreover, and as the District Court observed, they never saw or spoke to Hallock while they were at the orange grove. She was with Deputy Walker in his car. Therefore, Clarke and Rixey had no first-hand knowledge

18-13524 Opinion of the Court 101

On this expanded record, the District Court concluded that Green had shown Brady prejudice. The Court concluded there was a reasonable probability that had White&#x²⁷;s notes been disclosed to the defense pretrial-specifically, Clarke&#x²⁷;s and Rixey&#x²⁷;s suspicion that Hallock killed Flynn and Hallock&#x²⁷;s statement that she was the one who tied Flynn&#x²⁷;s hands-the result of the guilt-innocence phase of Green&#x²⁷;s trial might have been different. The District Court ruled, contrary to the Circuit Court&#x²⁷;s ruling, that Green had shown prejudice because it was "unknown and unknowable" whether Parker could have elicited the essence of the testimony from the officers in a fashion that may have persuaded the Circuit Court to allow the evidence to come in under Rule 402. The Court therefore issued a writ of habeas corpus vacating Green&#x²⁷;s convictions.

C.

The State appeals the District Court&#x²⁷;s Claim III-H-4 decision on two grounds. First, Claim III-H-4 was not exhausted because Green did not assign as error in Green II the Circuit Court&#x²⁷;s denial of the claim. Second, assuming Claim III-H-4 was exhausted in Green II, in reviewing the Circuit Court&#x²⁷;s decision on the claim as Ylst directed, the District Court erred in failing to accord the decision AEDPA deference. We consider these two grounds in order.

of the investigation and so had no basis for contradicting their earlier testimony.

102 Opinion of the Court 18-13524