UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-61894-CIV-ALTMAN

MICHAEL DAVID MARTINEZ, 

Petitioner, 

v. 

RICKY DIXON, 

 

Respondent. 

_________________________________/ 

ORDER

Our Petitioner, Michael David Martinez, was found guilty in state court of attempted firstdegree murder and discharging a firearm from a vehicle. See Judgment [ECF No. 9-1] at 34–39. For 

these crimes, he was sentenced to thirty years in prison. Martinez has now filed a petition for a writ of 

habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his conviction and sentence. 

After careful review, we DENY Martinez’s Petition on the merits. 

THE FACTS

The State of Florida charged Martinez by information with one count of attempted first-degree 

murder with a firearm (Count 1) and one count of discharging a firearm from a vehicle (Count 2). See 

Information [ECF No. 9-1] at 13–14. The State alleged that Martinez “got into the right rear passenger 

seat of a vehicle,” drove alongside another vehicle—in which three people were riding—and then 

fired “numerous gunshots” into that other vehicle. Arrest Warrant Aff. [ECF No. 9-1] at 8. One of 

the victims, Jonathan Lopez, was shot twice in the leg, “shattering his femur bone.” Ibid. Law 

enforcement recovered five “.380 caliber shell casings” from the crime scene, id. at 7, and later found 

a “.380 caliber Desert Eagle” in Martinez’s possession, id. at 10. 

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Martinez’s first trial began on October 5, 2015. See First Trial Tr. [ECF No. 10-1] at 1 (showing 

that jury selection began on October 5, 2015). At that trial, the following exchange took place between 

the State and one of its witnesses, Edwin Rodriguez: 

Q: Do you know a person by the name of Michael Martinez?

A: Yes, I do. 

Q: How did you meet Michael Martinez?

A: Through [Gregorio Candalario].

[. . . .]

Q: When you say you met Mr. Martinez through Gregorio Candalario, what do you 

mean by that?

A: I mean basically Gregorio used to go to Michael to buy [w]eed.

Id. at 498–99. Hearing this answer, Martinez’s defense lawyer immediately moved for a mistrial—

which, because of the nature of the testimony, the trial court indicated it would grant. See id. at 499 

(“[Defense Counsel]: [The witness] described [Martinez] just clear as a marijuana dealer. The Court: 

Sounded like it. He used to go to your client to buy [w]eed. If you want [the mistrial], I will give it to 

you, but, candidly, I think you better check with your client first to see if that is what he really wants.”).

After a brief pause in the proceedings, defense counsel confirmed that, after speaking to Martinez and 

his father, he “want[ed] a mistrial.” Id. at 500. The state trial court promptly granted the mistrial and 

reset the case for a new trial. See id. at 502 (“I’m declaring a mistrial in this case, and I’m putting it back 

on the docket[.]”). 

On December 28, 2015, Martinez’s lawyer filed a motion to dismiss the information on 

double-jeopardy grounds. See Motion to Dismiss [ECF No. 9-1] at 21–24. In that motion to dismiss, 

defense counsel advanced an interesting theory: The State (counsel argued) had purposely “asked 

[Rodriguez] how Candelario [sic] knew the Defendant” with the explicit goal of “goading and baiting 

the defense into requesting a mistrial,” so that, at a later trial, the State would be permitted to introduce 

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some uncharged firearm conduct it hadn’t been allowed to use at the first trial. Id. at 23–24. And it’s 

true that, before the first trial, the state judge had “warned that [certain] evidence may not be admitted 

during the Defendant’s trial because the State had not filed the appropriate Motion or Notice of their 

intent to use the material obtained from a Dade County arrest of the Defendant for which criminal 

charges were never filed.” Id. at 22. After holding a hearing, the state court found that the prosecutor 

hadn’t intentionally caused the mistrial and then denied the motion to dismiss. See Motion to Dismiss 

Hr’g Tr. [ECF No. 10-2] at 33 (“So, if your motion to dismiss is based on the fact that the prosecutor 

did something intentionally to gain an advantage, there’s nothing before me to suggest that. So, in 

reference to that, your motion will be denied.”).

On January 7, 2016, after a second trial, a jury found Martinez guilty of both counts. See Verdict 

[ECF No. 9-1] at 31–32. For these crimes, the state trial court sentenced Martinez to thirty years in 

prison on Count 1 and a concurrent fifteen-year sentence on Count 2. See Sentencing Orders [ECF 

No. 9-1] at 44–49. Martinez appealed his conviction and sentence to the Fourth DCA. See Direct 

Appeal Notice of Appeal [ECF No. 9-1] at 51. Martinez argued on direct appeal that the trial court 

had committed two errors: (1) that the trial court had improperly denied the motion to dismiss because

“[t]he prosecutor’s question was intended to elicit testimony which would necessitate the defense 

request for a mistrial,” Direct Appeal Initial Brief [ECF No. 9-1] at 66; and (2) that the trial court

should not have “allowed the prosecution . . . to introduce a gun over defense objection taken from 

the defendant in Miami Gardens approximately seven months after the shooting” because this firearm

wasn’t “inextricably intertwined” with the charged offense, id. at 67. On October 19, 2017, the Fourth 

DCA summarily affirmed the trial court in an unwritten opinion. See Martinez v. State, 232 So. 3d 1033, 

1034 (Fla. 4th DCA 2017).

On November 14, 2018, Martinez, through counsel, filed a motion for postconviction relief 

under FLA. R. CRIM. P. 3.850. See Postconviction Motion [ECF No. 9-1] at 100–41. In that motion, 

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Martinez argued that: (1) “counsel was ineffective for failing to investigate and present adequate 

mitigating evidence at sentencing,” id. at 116; (2) “counsel was ineffective for moving for a mistrial 

during the first trial,” id. at 119; (3) “counsel was ineffective for failing to adequately cross-examine 

[the victim] Jonathan Lopez to impeach him with his prior statements,” id. at 124; (4) “counsel was 

ineffective for failing to adequately cross-examine Edwin Rodriguez to impeach his prior statements,” 

id. at 128; (5) “counsel was ineffective for failing to object to Detective Schurkman’s testimony and to 

the State’s closing arguments, which violated . . . the Confrontation Clause,” id. at 133; (6) “counsel 

was ineffective for failing to call a firearms expert to testify regarding the .38 caliber bullet that was 

recovered,” id. at 136; and (7) “the cumulative effect of counsel’s deficient performance prejudiced 

the defendant,” id. at 140. The State filed a Response to the Postconviction Motion, contending that 

Martinez’s claims were “conclusively refuted by the record and the law and must be summarily 

denied.” State’s Postconviction Response [ECF No. 9-3] at 37. 

On November 1, 2021, the state postconviction court denied the Postconviction Motion. See 

Order Denying Postconviction Motion [ECF No. 9-6] at 154–61. Martinez appealed to the Fourth 

DCA, see Postconviction Notice of Appeal [ECF No. 9-10] at 14, which (on June 2, 2022) summarily 

affirmed the state postconviction court in an unwritten decision, see Martinez v. State, 339 So. 3d 983, 

983 (Fla. 4th DCA 2022). The Fourth DCA’s mandate issued on July 1, 2022. See Postconviction 

Mandate [ECF No. 9-10] at 18. Martinez filed this Petition on October 4, 2022. See Petition at 20.1

1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is 

delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 

2009). “Absent evidence to the contrary, [courts] assume that a prisoner delivered a filing to prison 

authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).

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THE LAW

I. The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

AEDPA instructs district courts to deny any claim that was “adjudicated on the merits” in a 

state-court proceeding unless that adjudication “resulted in a decision that was contrary to, or involved 

an unreasonable application of, clearly established Federal law, as determined by the Supreme Court 

of the United States, or resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 

86, 97–98 (2011) (summarizing 28 U.S.C. § 2254(d)–(e)). To have “adjudicated [the claim] on the 

merits,” the state court need not have issued any kind of formal opinion or even outlined its reasoning. 

Id. at 99 (“When a federal claim has been presented to a state court and the state court has denied 

relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of 

any indication or state-law procedural principles to the contrary.”). Rather, when a state court doesn’t 

articulate its reasons for the denial, the federal court must “‘look through’ the unexplained decision to 

the last related state-court decision that does provide a rationale” and “then presume that the 

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). 

“Clearly established Federal law” means “the holdings, as opposed to the dicta, of [the United States 

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 

U.S. 362, 412 (2000). To be “contrary to clearly established federal law, the state court must either (1) 

apply a rule that contradicts the governing law set forth by Supreme Court case law, or (2) reach a 

different result from the Supreme Court when faced with materially indistinguishable facts.” Ward v. 

Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (cleaned up). 

For “a state court’s application of [Supreme Court] precedent” to be “‘unreasonable, the state 

court’s decision must have been more than incorrect or erroneous. The state court’s application must 

have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (cleaned up). “[I]t 

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is not an unreasonable application of clearly established Federal law for a state court to decline to 

apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Richter, 562 

U.S. at 101. “And an unreasonable application of those holdings must be objectively unreasonable, 

not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is 

required to show that the state court’s ruling on the claim being presented in federal court was so 

lacking in justification that there was an error well understood and comprehended in existing law 

beyond any possibility for fairminded disagreement.” Woods v. Donald, 575 U.S. 312, 316 (2015) 

(cleaned up). 

Section 2254(d) similarly prohibits federal judges from reevaluating a state court’s factual 

findings unless those findings were “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). To establish that a state 

court’s factual findings were unreasonable, “the petitioner must rebut ‘the presumption of correctness 

[of a state court’s factual findings] by clear and convincing evidence.’” Ward, 592 F.3d at 1155–56 

(quoting 28 U.S.C. § 2254(e)(1)). “[E]ven if a petitioner successfully carries his burden under § 

2254(e)(1)—showing by clear and convincing evidence that a particular state-court factual 

determination was wrong—he does not necessarily meet his burden under § 2254(d)(2): Even if the 

state court made a clearly erroneous factual determination, that doesn’t necessarily mean the state 

court’s ‘decision’ was ‘based on’ an ‘unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.’” Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th 

Cir. 2022) (en banc) (quoting 28 U.S.C. § 2254(d)(2)). Indeed, habeas relief is not warranted “even if

some of the state court’s individual factual findings were erroneous—so long as the decision, taken as 

a whole, doesn’t constitute an unreasonable determination of the facts and isn’t based on any such 

determination.” Ibid. (cleaned up).

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“AEDPA’s standard is intentionally difficult to meet.” Woods, 575 U.S. at 315 (cleaned up). 

When reviewing state criminal convictions on collateral review, “federal judges are required to afford 

state courts due respect by overturning their decisions only when there could be no reasonable dispute 

that they were wrong. Federal habeas review thus exists as a guard against extreme malfunctions in 

the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at 

316 (cleaned up).

Even if a petitioner meets AEDPA’s “difficult” standard, he must still show that any 

constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v. 

Abrahamson, 507 U.S. 619, 637 (1993). The Brecht harmless-error standard requires habeas petitioners 

to prove that they suffered “actual prejudice.” Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 

(11th Cir. 2012). As the Supreme Court recently explained, while the passage of AEDPA “announced 

certain new conditions to [habeas] relief,” it didn’t eliminate Brecht’s actual-prejudice requirement. 

Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022). In other words, a habeas petitioner must satisfy Brecht, 

even if AEDPA applies. See id. at 1526 (“[O]ur equitable precedents remain applicable ‘whether or 

not’ AEDPA applies.” (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal court must 

deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief, 

a court must find that the petition has cleared both tests.” Id. at 1524 (emphasis in original); see also 

Mansfield, 679 F.3d at 1307 (“[A] habeas petition cannot be successful unless it satisfies both [AEDPA] 

and Brecht.”).

II. AEDPA’s Procedural Requirements

“[A] person in custody pursuant to the judgment of a State court” has one year to file a habeas 

petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period “runs from the latest of” the 

following dates:

(A) the date on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such review;

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(B) the date on which the impediment to filing an application created 

by State action in violation of the Constitution or laws of the United 

States is removed, if the applicant was prevented from filing by such 

State action;

(C) the date on which the constitutional right asserted was initially 

recognized by the Supreme Court, if the right has been newly 

recognized by the Supreme Court and made retroactively applicable to 

cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of due 

diligence.

28 U.S.C. § 2244(d)(1)(A)–(D). But this limitations defense is waivable. See Paez v. Sec’y, Fla. Dep’t of 

Corr., 947 F.3d 649, 655 (11th Cir. 2020) (explaining that the State may express its intent to “waive 

the limitations bar”). 

Beyond meeting this one-year window, though, federal habeas petitioners must also exhaust

their claims by “properly present[ing] [them] to the state courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 848 

(1999) (emphasis in original). Specifically, federal habeas petitioners must “fairly present every issue 

raised in [their] federal petition to the state’s highest court, either on direct appeal or on collateral 

review.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (cleaned up). “If a petitioner fail[ed] to 

‘properly’ present his claim to the state court—by exhausting his claim[ ] and complying with the 

applicable state procedure—prior to bringing his federal habeas claim, then [§ 2254] typically bars 

[courts] from reviewing the claim.” Ibid. In other words, where a petitioner has not “properly presented 

his claims to the state courts,” the petitioner will have “procedurally defaulted his claims” in federal 

court. O’Sullivan, 526 U.S. at 848. 

There are, to be sure, two exceptions to the general rule that a federal court may not consider 

a procedurally defaulted claim on the merits: “cause and prejudice” and “actual innocence.” Dretke v.

Haley, 541 U.S. 386, 393 (2004) (“[A] federal court will not entertain a procedurally defaulted 

constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse 

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the default. We have recognized a narrow exception to the general rule when the habeas applicant can 

demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually 

innocent of the underlying offense.”). A habeas petitioner can establish “cause and prejudice” if (1) 

“some objective factor external to the defense impeded the effort to raise the claim properly in the 

state court,” and (2) “there is at least a reasonable probability that the result of the proceeding would 

have been different.” Harris v. Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688 (11th Cir. 2017). “Actual 

innocence,” on the other hand, “applies to a severely confined category: cases in which new evidence 

shows ‘it is more likely than not that no reasonable juror would have convicted the petitioner.’” 

McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). The 

petitioner bears the burden of establishing that one of these exceptions to the procedural-default rule 

applies. See Gordon v. Nagle, 2 F.3d 385, 388 (11th Cir. 1993) (“A defendant has the burden of 

establishing cause and prejudice.”); Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (“The 

petitioner must support the actual innocence claim with new reliable evidence[.]” (cleaned up)).

All that said, “[s]tates can waive procedural bar defenses in federal habeas proceedings, 

including exhaustion.” Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016) (cleaned 

up)). But “[a] State shall not be deemed to have waived the exhaustion requirement . . . unless the 

State, through counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3) (emphasis added); see 

also McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005) (same). 

III. Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to “the Assistance of Counsel 

for his defen[s]e.” U.S. CONST. amend. VI. “The benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 

668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas litigant must 

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demonstrate “that (1) his counsel’s performance was deficient and ‘fell below an objective standard of 

reasonableness,’ and (2) the deficient performance prejudiced his defense.” Raleigh v. Sec’y, Fla. Dep’t of 

Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). This same standard 

applies to alleged errors made by both trial counsel and appellate counsel. See Farina v. Sec’y, Fla. Dep’t 

of Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (“A claim of ineffective assistance of appellate counsel 

is evaluated under the same standard as for trial counsel.”).

To establish the first prong (deficiency), “a petitioner must [show] that no competent counsel 

would have taken the action that his counsel did take[.]” Chandler v. United States, 218 F.3d 1305, 1315 

(11th Cir. 2000) (en banc) (emphasis added). So, if “some reasonable lawyer at the trial could have 

acted, in the circumstances, as defense counsel acted at trial[,]” counsel could not have performed 

deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quoting White v. Singletary, 

972 F.2d 1218, 1220 (11th Cir. 1992)). 

As for the second prong (prejudice), “a defendant is prejudiced by his counsel’s deficient 

performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.’” Porter v. McCollum, 558 U.S. 30, 40 (2009) (quoting 

Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. To succeed on this prong, a defendant must 

show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable.” Id. at 687. 

ANALYSIS

In his Petition, Martinez advances two grounds for relief. First, he contends that the state trial 

court violated the Double Jeopardy Clause when it denied his lawyer’s motion to dismiss. Here, 

Martinez says that jeopardy attached after his first trial because the State had deliberately provoked a 

mistrial. See Petition at 16–17 (“The defendant should not have been subject to a second trial under 

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the objective facts and circumstances as the mistrial was meant to give the prosecution a better chance 

of conviction that would have been unlikely before the original trial judge . . . . The prosecutors’ 

question was intended to elicit testimony which would necessitate the defense request for a mistrial 

[and] a retrial by another judge[.]”). Second, Martinez claims that his trial counsel was ineffective for

failing to object to a supplemental ballistics report submitted by Erica Lawton on the ground that 

“Lawton had tampered with [Alan Greenspan’s] original report adding supplemental of her own, 

failing to disclose the projectile from the .38 caliber.” Id. at 18–19 (errors in original). We’ll address—

and reject—each ground in turn.

I. Ground One

In Ground One of the Petition, Martinez resuscitates the same argument his lawyer had raised

in the motion to dismiss—that the State had orchestrated the mistrial “so as to afford the prosecution 

a more favorable opportunity to convict” Martinez at a second trial. Petition at 17. Martinez adds that 

the prosecutors and the original trial judge didn’t get along—which Martinez sees as further proof of 

the State’s interest in getting the case kicked to a different judge. See id. at 16 (“Within days after the 

mistrial & after the prosecutors complaining of her treatment by Judge Destry, the case was removed 

from Judge Destry & reassigned to another judge?” (errors in original)). The Respondent maintains

that “there are no objective facts that Respondent goaded defense counsel to request a mistrial,” and 

that (in any event) we should defer to the state court’s finding that the record revealed no 

“prosecutorial intent” to cause a mistrial. Response to Order to Show Cause (“Response”) [ECF No. 

8] at 18–19.2

2 The Respondent concedes that Ground One is timely, see Response at 7 (“Accordingly, Petitioner’s 

first claim falls within the statute of limitations[.]”), and that it has been fully exhausted, id. at 9 (“Thus, 

it appears [Ground One] was fairly presented before the state court and is properly exhausted.”). So,

we’ll dive straight into the merits of this claim. 

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Because this claim was “adjudicated on the merits in State court proceedings,” our only task 

is to determine whether the state court’s decision was “reasonable.” 28 U.S.C. § 2254(d). Martinez 

bears the burden “to demonstrate that there was no reasonable basis for the decision of [the state 

court] to deny his claim.” Tarleton v. Sec’y, Fla. Dep’t of Corr., 5 F.4th 1278, 1291 (11th Cir. 2021). In 

assessing the reasonableness of this decision, we look to the “highest state court” that reached the 

merits of the claim. Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008). In our case, the Fourth 

DCA affirmed the state court’s decision to deny Martinez’s motion. See Martinez, 232 So. 3d at 1034.

But, since the Fourth DCA didn’t issue a “decision on the merits in a reasoned opinion,” we “look 

through” that summary affirmance to the “last related state-court decision that does provide a relevant 

rationale.” Wilson, 138 S. Ct. at 1192. Although the trial court never entered a written order denying 

Martinez’s motion to dismiss, it orally denied the motion after a hearing and articulated its reasoning 

on the record. See generally Motion to Dismiss Hr’g Tr. [ECF No. 10-2] at 23–33. “Since the trial court 

held a [hearing] on this issue—and then denied [the] claim on the merits—we presume that the Fourth 

DCA adopted the trial court’s [oral] findings.” Renford v. Dixon, 2022 WL 2046849, at *8 (S.D. Fla. 

June 7, 2022) (Altman, J.) (citing Wilson, 138 S. Ct. at 1192). Our question, then, is whether the state 

trial court’s decision to deny the motion to dismiss was reasonable. 

“The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal 

proceeding against multiple punishments or repeated prosecutions for the same offense.” United States 

v. Dinitz, 424 U.S. 600, 606 (1976). The Double Jeopardy Clause, however, doesn’t necessarily “offer 

a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the 

criminal laws in one proceeding.” Oregon v. Kennedy, 456 U.S. 667, 672 (1982). Because mistrials happen 

for any number of (unforeseen) reasons, jeopardy will attach after a mistrial only in specific 

circumstances. If a mistrial is granted over the defendant’s objection, jeopardy is presumed to attach 

unless “‘there was a manifest necessity for the mistrial, or the ends of public justice would otherwise 

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have been defeated’ by continuing the trial.” United States v. Chica, 14 F.3d 1527, 1531 (11th Cir. 1994) 

(quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (cleaned up)). If, on the other hand, 

the defendant requests a mistrial, jeopardy doesn’t attach unless the “mistrial results from governmental 

conduct that ‘is intended to goad the defendant into moving for a mistrial[.]’” United States v. Shelley, 

405 F.3d 1195, 1200 (11th Cir. 2005) (quoting Kennedy, 456 U.S. at 676). The Supreme Court has 

emphasized that this second exception is extremely limited: The Defendant must show that “the 

Government actually intended to prove a mistrial” and cannot rely on a prosecutor’s “overreaching” or 

“bad faith” during the trial. Ibid. (citing Kennedy, 456 U.S. at 674–76).

We think the state court got this one right—which is to say, that the state trial court’s decision 

to deny Martinez’s motion to dismiss was a “reasonable application” of “clearly established Federal 

law” based on a reasonable “determination of the facts in light of the evidence presented.” 28 U.S.C. 

§ 2254(d)(1)–(2). During her direct examination of Edwin Rodriguez, the prosecutor asked some basic 

questions about how Rodriguez knew Martinez (e.g., “Do you know a person by the name of Michael 

Martinez?” and “How did you meet Michael Martinez?”). First Trial Tr. [ECF No. 10-1] at 498. When 

Rodriguez claimed that he had met Martinez through another person (Gregorio Candalario), the 

prosecutor followed up with what appeared to be another innocuous question: “When you say you 

met Mr. Martinez through Gregorio Candalario, what do you mean by that?” Ibid. Unfortunately, the 

State’s question prompted Rodriguez to say that Martinez had sold marijuana. See ibid. (“I mean 

basically Gregorio used to go to Michael to buy [w]eed.”). This prejudicial revelation to the jury—that 

Martinez might have sold drugs—is what triggered Martinez’s counsel to move for the mistrial. See id. 

at 500 (“The Court: Are we going forward on a mistrial? [Defense Counsel:] I want a mistrial.”); cf.

Valderrama v. State, 816 So. 2d 1143, 1144 (Fla. 4th DCA 2002) (“[G]enerally[,] implicating a defendant 

in other crimes is presumptively prejudicial[.]”). And, as we’ve said, jeopardy typically wouldn’t attach 

in these circumstances because the defense requested the mistrial. See United States v. Scott, 437 U.S. 82, 

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93 (1978) (“[A motion for mistrial] by the defendant is deemed to be a deliberate election on his part 

to forgo his valued right to have his guilt or innocence determined before the first trier of fact.”). 

In Martinez’s view, though, there’s much more to this story. As he sees it, the prosecutor’s 

questions were deliberately “intended to elicit testimony which would necessitate the defense request 

for a mistrial[.]” Petition at 16–17; see also Motion to Dismiss [ECF No. 9-1] at 24 (“The prosecutor 

knew what [Rodriguez’s] answer would be to the question she asked. By intentionally goading and 

baiting the defense into requesting a mistrial, she got a new trial judge and time to file her motion.”). 

To prove that the prosecutor acted intentionally, Martinez points to the supposed breakdown in the 

relationship between the judge and the prosecutors. See Petition at 16 (“The judge repeatedly warned 

the prosecution that the [prior bad act] evidence would not be coming in & voiced his frustration 

[with the prosecutor] . . . . Within days after the mistrial & after the prosecutors complaining of her 

treatment by Judge Destry, the case was removed from Judge Destry & reassigned to another 

judge[.]”).

But Martinez hasn’t adduced any evidence for his view that the prosecutor intentionally caused 

a mistrial—let alone that the state court’s finding was unreasonable. After holding a hearing on 

Martinez’s motion, remember, the trial court unequivocally found that the State hadn’t acted

intentionally: 

Having said that, I was not present for the motion for mistrial; knew nothing about it. 

I don’t have anything in front of me where a record would reflect that the prosecutor 

intentionally caused the trial. It’s my understanding from hearing what you said that 

you asked for the mistrial. . . . Having said that, I [also] don’t think you get to choose 

[which judge] you get to be in front of in the random selection of things. So, if your 

motion to dismiss is based on the fact that the prosecutor did something intentionally 

to gain an advantage, there’s nothing before me to suggest that. So, in reference to 

that, your motion will be denied.

Motion to Dismiss Hr’g Tr. [ECF No. 10-2] at 32–33.

Because this factual finding is “presumed to be correct,” Martinez bears “the burden of 

rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); 

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see also Ward, 592 F.3d at 1177 (“[W]e must presume the state court’s factual findings to be correct 

unless the petitioner rebuts that presumption by clear and convincing evidence. Clear and convincing 

evidence entails proof that a claim is ‘highly probable,’ . . . . The Supreme Court described this standard 

as ‘demanding but not insatiable[.]’” (quoting Miller-El v. Dretke, 545 U.S. 231, 240 (2005))). Rather 

than produce some evidence to rebut the state court’s findings, Martinez simply regurgitates the sameold speculative inferences—i.e., the trial judge’s pretrial firearm ruling and the supposed acrimony 

between the prosecutor and the judge—the state courts have already rejected. That’s just not good 

enough to show, by clear and convincing evidence, that the prosecutor “actually intended to provoke a 

mistrial and thereby ‘subvert the protections afforded by the Double Jeopardy Clause.’” Shelley, 405 

F.3d at 1200 (quoting Kennedy, 456 U.S. at 676); see also Aldrich v. Wainwright, 777 F.2d 630, 636 (11th 

Cir. 1985) (“Speculation is insufficient to carry the burden of a habeas corpus petition[.]”); United States 

v. Jamison, 505 F.2d 407, 412 n.8 (D.C. Cir. 1974) (“Appellants offer several possible prosecutorial 

motives for provoking a mistrial and ask us to infer from these a ‘preconceived plan’ to do so. We 

would be extremely reluctant to draw such an inference without more direct evidence even if we were 

persuaded that a strong motive existed to seek a mistrial[.]”). Since we have no evidence that the 

prosecutor purposely incited a mistrial, the state postconviction court reasonably concluded that 

jeopardy hadn’t attached after Martinez’s first trial.

But here’s the thing: Even if we were willing to ignore § 2254(e)(1)’s deferential standard

(which we’re not), we’d still reject this claim because Martinez’s theory—that, having grown tired of 

the trial judge’s rulings, the prosecutor decided to play for a mistrial—is conclusively belied by the 

record. Martinez’s story, recall, begins with the State’s attempt to introduce a .380 caliber Desert Eagle 

pistol that was found on Martinez’s person after officers responded to an unrelated incident in Miami 

Gardens, Florida. See Notice of Intent to Use Inextricably Intertwined Evidence [ECF No. 9-1] at 16–

17 (“Upon arrival, a witness notified police that the Defendant had thrown something near a trash 

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bin. Officers found a work glove with suspected ‘fresh’ blood on it. Inside the glove was a small 

firearm.”). Ballistics testing on the Desert Eagle later revealed that it was the same gun someone had 

used in the shooting at issue in our case. See id. at 17 (“Ballistics testing was done on the firearm and 

compared to the shell casings collected from the October 17, 2012 crime scene. [Examiners] 

determined that the shell casings from October 17, 2012 were fired from the same gun found on April 

3, 2013.”). 

During the first trial, the prosecutor asked the lead detective, Lance Schurkman, how law 

enforcement had recovered Martinez’s firearm: 

Q: Eventually did you find out that Michael Martinez was taken into custody on your 

warrant?

A: Yes, ma’am.

Q: Later you received additional evidence as it relates to your case, comes out of Miami 

Dade?

A: Yes, ma’am.

Q: What evidence was brought to your attention from officers from the Miami 

Gardens Police Department?

A: There was a recovered Desert Eagle 380 caliber firearm that was recovered in an 

incident that occurred down there.

Q: Okay. After that firearm was recovered, how do they then—could you explain how 

the department finds out that the gun relates back to what appears to be your case?

A: Okay. The police department down there in Miami Gardens, they didn’t know 

about my case. I came across their case because a suspect, Mr. Martinez, was developed 

in my investigation. When I checked to see if there was [sic] any prior incidents, there 

was this Miami Gardens incident.

First Trial Tr. [ECF No. 10-1] at 377. At this point, the trial court sua sponte paused the proceedings,

and Martinez’s lawyer objected. See id. at 378. Defense counsel argued that Detective Schurkman’s 

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testimony was improper “Williams Rule evidence without Williams Rule notice.”3 The prosecutor 

responded that “I wasn’t going there” and insisted that she only intended to introduce evidence that 

“the firearm was recovered out of Miami Gardens[.]” Id. at 378–79. Having thus heard from both 

sides, the court found the objection premature (since no Williams Rule evidence had come out), but 

warned the prosecutor not to elicit more information about the firearm: 

[Defense Counsel:] I think [what the State is] trying to do is get Williams Rule testimony 

of another crime.

The Court: Well that hasn’t happened yet. And it is not going to. Apparently the state 

has advised they are not going to put on any testimony with regard to what happened 

in Miami Gardens. 

[. . . .]

[Defense Counsel:] I don’t think that they get away with it by calling [it] an incident 

with Miami Gardens Police, down in Miami, where we recover a gun. And what 

happens is they are trying to circumvent [the Williams Rule requirements.] 

The Court: Okay. Well, all that has been said at this point was that the detective has 

testified that the defendant was a suspect, and he ran across this case down in Miami. 

And that is when it stopped.

[Defense Counsel:] And Miami Gardens Police took into custody a gun out of this 

incident.

The Court: Yes. I would agree with that.

[Defense Counsel:] But you can’t mislead a jury. . . . My client is supposed to be in 

Miami Gardens, highly intoxicated.

The Court: None of that is coming before the jury, Mr. Curry, unless you put it there.

[Defense Counsel:] Well, I think it is already there.

3Under Florida law, “evidence of other crimes, wrongs, or acts” that are “factually similar or dissimilar 

to the charged crime” is known as “Williams Rule evidence” and is generally considered inadmissible 

unless “it casts light on a material fact in issue other than the defendant’s bad character or propensity.” 

Williams v. State, 621 So. 2d 413, 414 (Fla. 1993). As with our Rule 404(b), state law requires the 

prosecution to provide advance notice of its intent to introduce Williams Rule evidence at trial. See 

Robertson v. State, 829 So. 2d 901, 907 (Fla. 2002) (“[FLA. STAT.] § 90.404(2)(b)(1) also requires the State 

to file a notice of intent to rely on evidence of a defendant’s prior misconduct.”). 

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The Court: I disagree with you. At this point all that has been testified to is that there was 

an incident in Miami Gardens [in] which a firearm was recovered. That this detective 

ran across that incident because the defendant was somebody he was—he had 

developed as a suspect and that is it. There has been no mention of what the 

defendant’s potential involvement was in that [Miami Gardens] incident, nothing of 

the [kind].

[. . . .]

[Defense Counsel:] You know, I don’t want the stuff to come in and I think [it] might 

be we are already there. I don’t know how to deal with it now. But, anyway, you noted 

my objection.

The Court: Okay. Objection is noted at this point. Ms. Hawkins [the prosecutor], you 

are on thin ice here.

Ms. Hawkins: I understand. 

Id. at 380–82 (emphasis added). And, of course, the trial court never had a chance to address this 

evidentiary issue again because it declared a mistrial the next morning. See id. at 502.

The upshot is that Martinez doesn’t quite have the facts right. Although (it’s true) the original

trial judge wasn’t going to let the State introduce Williams Rule evidence about the Miami Gardens 

incident, he still overruled defense counsel’s objection and allowed Detective Schurkman to testify “that 

there was an incident in Miami Gardens [where] a firearm was recovered.” Id. at 382. And, by the way, 

that’s all the State ever wanted. As we’ve seen, the State (by its own admission) wasn’t trying to 

introduce any Williams Rule evidence; it just wanted the jury to have some context about where and 

when the gun was found. See id. at 379 (“The Court: And you don’t intend on having the detective 

testify as to anything that happened in Miami Gardens? [Prosecutor]: Not in [this] case, no. The Court: 

So strictly that the firearm was recovered out of Miami Gardens? [Prosecutor]: That is it.”). Since the 

original judge thus gave the State exactly what it wanted—and excluded only the Williams Rule 

evidence the State wasn’t interested in anyway—Martinez is wrong to suggest that, because of this 

ruling, the State had some incentive to provoke a mistrial. See Petition at 16 (“The defense raised the 

issue regarding the Miami Gardens incident which led to the recovery of a gun that was found 

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inadmissible based on the state’s failure to file a notice of intent to offer ‘inextricably intertwined 

evidence’ at trial[.]”).4

Because Martinez has produced no evidence for his view that the State purposely caused a 

mistrial, we conclude that the state court reasonably applied federal law when it denied his motion to 

dismiss. See United States v. Serra, 882 F.2d 471, 473 (11th Cir. 1989) (“[N]othing in the record suggests 

that the [prosecutor’s] error was calculated to provoke Serra into moving for a mistrial, nor indeed 

can we divine a probable motive for the prosecutor to seek an untimely end to the first trial. Thus, 

Serra’s double-jeopardy claim fails.”). We therefore DENY Ground One.

II. Ground Two

In Ground Two, Martinez alleges that “counsel was ineffective in failing to realize that the 

state supplemented the report of [the] expert firearm examiner” with the findings of another expert 

who (Martinez claims) “tamper[ed] with [the] evidence.” Petition at 7. Martinez goes on to explain 

that the original ballistics report (authored by Alan Greenspan) “shows five casings from a .380 caliber 

[firearm] and one .38 special caliber projectile found at the exact same location of the crime scene,” 

which (Martinez says) could suggest that there were “two guns at the scene[.]” Id. at 18. Martinez now 

claims that the State enlisted another crime-scene technician, Erica Lawton, to “tamper[ ] with 

Greenspan’s original report [by] adding a supplemental [sic] of her own, failing to disclose the 

projectile from the .38 caliber.” Id. at 18–19. And Martinez blames his lawyer for having failed to 

object to Lawton’s (allegedly) fraudulent supplemental report. See id. at 19 (“Counsel’s failure in 

4 Martinez appears to take issue with the state court’s decision to admit the gun as inextricably 

intertwined with the charged offense. See Petition at 15–16 (arguing that “the Miami Gardens incident 

which led to the recovery of the gun . . . was inadmissible based on the state’s failure to file a notice 

of intent to offer ‘inextricably intertwined evidence’ at trial”). But he can’t use a federal habeas petition 

to collaterally attack a state court’s evidentiary rulings. See McCullough v. Singletary, 967 F.2d 530, 535 

(11th Cir. 1992) (“A state’s interpretation of its own laws or rules provides no basis for federal habeas 

corpus relief, since no question of a constitutional nature is involved.”).

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overlooking the supplemental report so altered the defense, that the error undermined the confidence 

in the outcome.”).

The Respondent counters that Ground Two is “time-barred” and “has not been exhausted.” 

Response at 7, 10.5 Conceding that Ground Two “was not presented in State court,” Martinez now 

asks us to grant him relief anyway under the exhaustion exception the Supreme Court carved out in

Martinez v. Ryan, 566 U.S. 1 (2012). See Petition at 19. But, because we can deny Ground Two on the 

merits—and on de novo review—we’ll “skip over the procedural default analysis” and consider the 

merits of this claim. Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020); see also Berghuis v. Thompkins, 

560 U.S. 370, 390 (2010) (“Courts can, however, deny writs of habeas corpus under § 2254 by engaging 

in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner 

will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review[.]”).

There are at least two major flaws with Ground Two. First, neither the State nor Ms. Lawton 

“tampered with” (or otherwise ignored) Mr. Greenspan’s original report. Both Mr. Greenspan’s 

original report and Ms. Lawton’s supplemental report were admitted into evidence as State’s Exhibit 

No. 11. See Second Trial Tr. [ECF No. 10-3] at 411 (“[Ms. Lawton]: This [exhibit] consists of the 

original report that was written by Allen Greenspan and then my supplemental report that was written 

by myself.”); see also Ballistics Report [ECF No. 9-6] at 150–51. The jury thus had access to Mr. 

5 Although we won’t address the Respondent’s exhaustion argument, we reject the Respondent’s 

contention that Ground Two is “time-barred.” Response at 7. As the Respondent concedes, 

Martinez’s Petition is timely because Martinez filed it before one year of untolled time had elapsed from 

“the date on which the judgment became final by the conclusion of direct review or the expiration of 

the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A); see also Response at 6 (“Consequently, 

it appears that Petitioner’s untolled time totals 342 days[.]”). And so, while Martinez may have failed

to raise Ground Two in state court, that failure presents an exhaustion problem—not a timeliness 

issue. See 28 U.S.C. § 2254(b)(1)(A) (“An application for writ of habeas corpus . . . shall not be granted 

unless it appears that the applicant has exhausted the remedies available in the courts of the State[.]”); 

see also Zack v. Tucker, 704 F.3d 917, 926 (11th Cir. 2013) (en banc) (“Accordingly, we hold that the 

statute of limitations in AEDPA applies on a claim-by-claim basis in a multiple trigger date case.” 

(emphasis added)).

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Greenspan’s unedited conclusion that one of the projectiles found at the crime scene was a “.38 caliber 

class bullet.” Ballistics Report [ECF No. 9-6] at 150.6 Indeed, Martinez’s defense lawyer harped on 

Mr. Greenspan’s findings in his closing argument. See Second Trial Tr. [ECF No. 10-3] at 479–80 

(“[Defense Counsel:] Projectile A is a .38—This is Greenspan’s report. Projectile A is a .38-caliber class 

bullet. . . . I don’t know. To me, a .38 is what you put in a revolver, Smith and Wesson, a snubby, a 

detective kind of revolver, not a .380.” (emphasis added)). In any event, nothing in Ms. Lawton’s 

report contradicted anything Mr. Greenspan had written. Ms. Lawton had simply “peer reviewed the 

work done in this case by Mr. Greenspan,” id. at 382, and her supplemental report was only necessary 

because, after Mr. Greenspan retired, she was called in to testify in his place. But “she [couldn’t] testify 

as to operability of the firearm that [Mr. Greenspan] did. So, she had to retest the operability of the 

firearm in order to testify in court about the operability.” Ibid. That’s really it. Martinez’s trial counsel

thus couldn’t have performed deficiently by failing to argue that Ms. Lawton “was hiding the truth by 

failing to disclose the key element regarding the bullet or projectile from the .38,” Petition at 19, both 

because Ms. Lawton didn’t “change” any of Greenspan’s findings and because Greenspan’s unaltered 

report—which included this “key element”—was admitted into evidence for the jury to consider and

was explicitly referenced by defense counsel during his closing argument. Cf. Freeman v. Att’y Gen., 536 

F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient for failing to raise a meritless 

claim[.]”).7

6 Martinez (of course) conveniently ignores the other half of Greenspan’s conclusion, which is that a 

.38 caliber bullet “is the type of bullet that is normally loaded in .380 Auto cartridges, and was fired in 

[Martinez’s Desert Eagle pistol].” Ballistics Report [ECF No. 9-6] at 150. Greenspan, in short, didn’t 

help Martinez’s defense at all. 

7 Martinez arguably raises a second claim in Ground Two: that he “would have considered a plea 

agreement” if he had known that “the second expert changed the [ballistics] analysis[.]” Petition at 19. 

Of course, Ms. Lawton didn’t “change” anything in Greenspan’s report—and the jury heard all about 

Greenspan’s findings—so there’s no reason for us to believe that Martinez would have pled guilty. See 

Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) (“[The defendant’s] after the fact testimony 

concerning his desire to plead, without more, is insufficient to establish that but for counsel’s alleged 

advice or inaction, he would have accepted the plea offer.”).

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Second, even if Martinez’s defense lawyer had been deficient, Martinez’s claim would still fail 

because he hasn’t shown that he was prejudiced by that (alleged) ineffectiveness. To establish prejudice 

under Strickland, a criminal defendant “must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 

694. But “overwhelming evidence of [the defendant’s] guilt” usually precludes the defendant from 

meeting his burden because “an error by counsel does not warrant setting aside the judgment of a 

criminal proceeding if the error had no effect on the judgment.” Bates v. Sec’y, Fla. Dep’t of Corr., 768 

F.3d 1278, 1300 n.9 (11th Cir. 2014) (quoting Strickland, 466 U.S. at 691) (cleaned up); see also Ravelo v. 

Dixon, 2023 WL 2837072, at *18 (S.D. Fla. Apr. 7, 2023) (Altman, J.) (“Ravelo suffered no prejudice 

because, given the overwhelming evidence of Ravelo’s guilt, the unobjected-to statement had (at most) 

a negligible impact on the outcome of the trial.”).

The gravamen of Ground Two is that Ms. Lawton’s report obfuscated the fact that a .38 

caliber bullet was found at the crime scene—a fact that (Martinez alleges) is “proof” that another gun 

(and thus, perhaps, another shooter) was involved in the crime. See Petition at 18 (“It is undisputable 

that a .38 caliber [bullet] is almost twice the size of a .380 caliber [bullet] in length & width which leads 

to the possibility of two guns at the crime scene which was overlooked[.]” (errors in original)). But 

Martinez has no evidence for this proposition. Indeed, as we’ve hinted, Greenspan himself contradicted 

this assertion when he opined that a .38 caliber bullet could have been fired from the .380 caliber pistol 

the police found in Martinez’s possession. See Ballistics Report [ECF No. 9-6] at 150. In any event,

there’s no dispute that the five other casings police found at the scene came from Martinez’s .380 Desert 

Eagle. See ibid. (finding that all five casings “are .380 Auto caliber fired cartridge cases” that were fired 

from Martinez’s Desert Eagle pistol). And that’s important because, under Florida law, Martinez 

would face the same penalties whether he acted alone or in combination with others. See FLA. STAT. § 

777.011 (“Whoever commits any criminal offense against the state . . . or aids, abets, counsels, hires, 

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or otherwise procures such offense to be committed, and such offense is committed or is attempted 

to be committed, is a principal in the first degree and may be charged, convicted, and punished as 

such[.]”); Lovette v. State, 636 So. 2d 1304, 1306 (Fla. 1994) (“Felons, however, are generally responsible 

for the acts of their co-felons. . . . One who participates with another in a common criminal scheme 

is guilty of all crimes committed in furtherance of that scheme[.]” (cleaned up)).

But there’s so much more. The victim clearly and unambiguously identified Martinez (and no 

one else) as the shooter. See Second Trial Tr. [ECF No. 10-3] at 42 (“Q: Okay. As you sit here today, 

you are able to testify as to who you saw come into the Mobil gas station. Is that correct? A: Yes. . . . 

Q: Do you see that person in the courtroom today? A: Yes. . . . Q: Is there any doubt in your mind 

that the same person that came into the store, wearing the hat, is the person that’s wearing the hat in 

the backseat of the car? A: I don’t have any doubts.”). Another witness, Edwin Rodriguez, testified 

that he was with Martinez at the gas station and that he also saw Martinez shoot the victim. See id. at 

170–71 (“Q: You said you all get in the car and Mr. Martinez is upset. A: Correct. Q: Okay. What is 

he doing? Is he yelling? A: Oh, yeah. He’s yelling. You know, he wants to get out [of] the car. . . . Q: 

When you say you drive around—or [Gregorio Candalerio] drives around, explain to the jury what 

you mean. . . . A: He pulls in just for Michael to vent. And then that’s when he shoots the gun. Q: 

Okay. That’s when who shoots the gun? A: Michael.”).8 And this testimony was all corroborated by 

video footage of the entire incident, which showed that “the [person] who came into the store wearing 

the hat”—whom both the victim and Rodriguez identified as Martinez—was sitting (as Rodriguez 

said) in the passenger seat of the vehicle that drove by the victim when he was shot. See id. at 188 (“Q: 

8Detective Schurkman testified that he interviewed another person who was with Martinez that night, 

Gregorio Candalerio, who likewise confirmed that Martinez (and no one else) had shot the victim. See 

Second Trial Tr. [ECF No. 10-3] at 321–22 (“[Det. Schurkman]: I did meet with Gregorio Cand[a]lario 

and got a statement from him. . . . [A]t that point both [Candalerio and Martinez] gave up the name 

of Michael Martinez as the other person in the video.”). Unfortunately, for whatever reason, Mr. 

Candalerio was unavailable to testify at trial. 

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What’s happening at this point? [Rodriguez:] That’s when Greg pulls up. Q: Okay. A: And Michael—

like—out. And that’s when he shoots the gun.”); see also Surveillance Footage [ECF No. 9-6] at 93–

139. Given this overwhelming evidence of Martinez’s guilt, there’s no “reasonable probability” that 

counsel’s objection to Lawton’s supplemental ballistics report would have had any effect on the 

outcome of Martinez’s trial. See Strickland, 466 U.S. at 694.

We thus DENY Ground Two. 

EVIDENTIARY HEARING

We won’t hold an evidentiary hearing in this case. “[W]hen the state-court record ‘precludes 

habeas relief’ under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary 

hearing.’” Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 474 

(2007)). Based on what we’ve said—including and especially the presence of a robust trial and statepostconviction record—we don’t think we’d benefit from any further factual development in this case. 

CERTIFICATE OF APPEALABILITY

A Certificate of Appealability (“COA”) is appropriate only when the movant makes “a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA, 

therefore, the movant must show that “reasonable jurists would find the district court’s assessment of 

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a 

district court has disposed of claims . . . on procedural grounds, a COA will be granted only if the 

court concludes that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid 

claim of the denial of a constitutional right’ and ‘whether the district court was correct in its procedural 

ruling.’” Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d 

1196, 1199 (11th Cir. 2000)). Jurists of reason wouldn’t debate our assessment of Martinez’s

constitutional claims, so we’ll DENY any request for a COA.

* * *

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Having carefully reviewed the record and the governing law, we hereby ORDER AND 

ADJUDGE that the Petition [ECF No. 1] is DENIED, that a COA is DENIED, that any request 

for an evidentiary hearing is DENIED, that all deadlines are TERMINATED, and that any pending 

motions are DENIED as moot. The Clerk shall CLOSE this case.

DONE AND ORDERED in the Southern District of Florida, on July 10, 2023.

 _________________________________

 ROY K. ALTMAN

 UNITED STATES DISTRICT JUDGE

cc: Michael David Martinez, pro se

counsel of record

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