FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 30, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14173

________________________

D. C. Docket No. 06-01330-CV-EAK-MAP

DERRICK TYRONE SMITH, 

Petitioner-Appellant, 

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL OF THE STATE OF FLORIDA, 

Respondents-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 30, 2009)

Before DUBINA, Chief Judge, CARNES and HULL, Circuit Judges.
CARNES, Circuit Judge:

During an aborted robbery attempt cab driver Jeffrey Songer was shot in the

back and died in the street in St. Petersburg, Florida. It happened after midnight

on March 21, 1983. Eight months later Derrick Tyrone Smith was convicted for

Songer’s murder and sentenced to death. The Florida Supreme Court reversed that

conviction and ordered a new trial because of two constitutional violations in the

first trial. Smith v. State, 492 So. 2d 1063, 1067 (Fla. 1986); see Smith v. State,

641 So. 2d 1319, 1320 n.1 (Fla. 1994) (“This Court reversed Smith’s conviction

and sentence at his initial trial because (1) the State elicited an improper comment

on Smith's exercise of his right to remain silent and (2) the trial court admitted a

statement Smith made to a detective after exercising his right to remain silent.”).

Smith was again convicted and sentenced to death in May 1990. The

Florida courts affirmed his second conviction and sentence on direct appeal. 

Smith v. State, 641 So. 2d at 1323, cert. denied, 513 U.S. 1163, 115 S. Ct. 1129

(1995). Smith moved for post-conviction relief under Florida Rule of Criminal

Procedure 3.850, raising twenty-seven claims against his conviction and sentence. 

The trial court eventually denied relief, and the Florida Supreme Court affirmed.

Smith v. State, 931 So. 2d 790 (Fla. 2006). Smith then filed a petition for a writ of

habeas corpus in federal district court, but the court rejected his claims. Smith v.

2
Sec’y, Dep’t of Corr., No. 8:06-cv-01330-T-17MAP, 2007 WL 2302207, at

*32–33 (M.D. Fla. Aug. 8, 2007). 

This is Smith’s appeal from that denial of federal habeas relief. It brings us

a car load of issues arising from three Giglio claims (discussed in Parts III and IV

of this opinion), twelve Brady claims (Parts III, V, and VI), and three Strickland

claims (Part VII). After working our way through all eighteen claims, our

conclusion (Part VIII) is that the district court’s denial of relief is due to be

affirmed for twelve of them but six of the Brady claims need more work at the

materiality stage, work that is to be done by the district court on remand. 

I. 

At the 1990 trial, the State argued that Smith and his codefendant Derrick

Johnson had planned to rob a taxi driver. The State’s evidence indicated that

shortly after midnight on March 21, 1983, one of them called the Yellow Cab

company from the local Hogley Wogley BBQ. Fingerprint evidence connected

Smith to the phone at the Hogley Wogley. David McGruder, the cook on duty,

described seeing two men who looked like Johnson and Smith loitering outside.

McGruder also testified that he saw Smith use the phone and that when the cab

arrived, Smith got into the back seat and Johnson into the front. On cross3
examination, however, McGruder became confused and admitted that he was not

sure whether he actually saw Smith. 

To explain how Smith acquired a gun, the State presented the 1983

testimony of his uncle, Roy Cone, who had died before the 1990 trial. Cone had

testified that he purchased a blued revolver and a single box of bullets in 1972. 

Cone kept the gun under his mattress for many years. He saw it there in January

of 1983, but it was gone two months later. He did not know what happened to it. 

Smith did not live at Cone’s house during that time, but he did visit. 

To establish that Smith was the triggerman, the State presented the

testimony of Ernest Rouse, Carolyn Mathis, Priscilla Walker, and James

Matthews. All of them testified that they had seen Smith with a revolver on the

night of the murder. Carolyn Mathis’ sister Regina also testified that Smith had

told her he was planning to “hustle” some money that night. Matthews had heard

Smith say a similar thing. Rouse, who knew Johnson, said that Smith and Johnson

were together on the night of the murder, and both Mathis sisters saw a man

matching Johnson’s description with Smith. No one saw Johnson with a gun. 

The State also presented eyewitness testimony from Melvin Jones, who

lived near the crime scene. Jones said that on the night of the murder he had been

walking home, watching for police cars because he had outstanding warrants,

4
when he saw the cab arrive. He recognized Smith and Johnson “from the street”

but testified that he had never talked to either of them. Jones saw Smith get out of

the cab’s back seat and Johnson get out of the front seat. Smith had a gun, and

when the cab driver ran Jones saw Smith shoot him. After witnessing the shooting

Jones hurried home, where he eventually told his wife, Mellow Jones, what he had

seen. She testified that Jones had told her that night that he had seen a man get

shot. 

After first denying it, Jones acknowledged that had he had made a deal with

the State involving his 1983 testimony. The deal gave him leniency for the

seventeen unrelated felony charges that Jones had been facing at the time of

Smith’s first trial. Jones was never asked whether he had received any new

promise or benefit from the State in 1990 for his second (current) round of

testimony. 

For his part, Smith’s codefendant Derrick Johnson pleaded guilty to second

degree murder and testified for the State. Johnson told the jury that he and Smith

had agreed to rob a cab and had gone to the Hogley Wogley, where Smith had

called the cab company. Johnson described Smith’s gun as a black revolver with a

brown handle, which was consistent with Cone’s gun.. Johnson said that Smith

had sat in the rear of the cab. The driver had seen the gun and tried to run away

5
but Smith fired at him. Johnson and Smith then ran off and separated. On crossexamination, it became clear that Johnson had lied to police initially about the

crime, but he stated again that there had never been a plan to shoot anyone. 

Johnson admitted to one felony conviction but was never questioned about his

plea deal with the State. 

1

To recount what happened after the crime, the State presented Priscilla

Walker and James Matthews, who were living together at the time of the murder. 

They both said that Smith had come to their home that night. Walker testified that

Smith had told her that he “shot a cracker in the back.” The victim, Jeffrey

Songer, was white. Matthews testified that Smith had said that he “might have

shot someone.” The State also presented Marcel DeBulle, a Canadian tourist who

described how Smith had robbed him in the early afternoon of March 21, about

twelve hours after the murder. DeBulle testified that Smith had carried a black or

blue revolver, had entered DeBulle’s hotel room, and had handled his briefcase. 

Fingerprints from the briefcase were matched to Smith. Smith was convicted of

that robbery and is serving a life sentence for it. 

 The defense agreed not to cross-examine Johnson about his plea deal in return for the 1

State not producing evidence that, the morning after the murder, Johnson had told several women

that he had been involved in a shooting and that it was Smith who had fired the fatal shot. 

6
The State also presented physical evidence and expert testimony linking

Smith to the murder. FBI Agent Robert Sibert testified that Smith’s jeans pocket

contained lead residue consistent with bullets. The State put into evidence a bullet

fragment taken from Songer’s clothing. Two other FBI agents, Asbery and

Havekost, were qualified as experts and testified that the bullet fragment,

according to lead compositional analysis, “matched” bullets from the ammunition

box Roy Cone had purchased in 1972 and still possessed at the time of the murder.

The State used this evidence to argue that it was Smith who had stolen his uncle’s

gun and some bullets that had come from the box—bullets that were used to kill

the victim. The gun itself was never found.

The only witness for the defense was Larry Martin, a prisoner who had been

incarcerated with Johnson. Martin testified that Johnson told him that Smith was

not the shooter, but he also conceded that Johnson did not say who was or what

Johnson’s own role had been. On cross-examination, the State brought out that

Martin had eight felony convictions. 

In its closing argument the State stressed the consistencies in the testimony

given by its witnesses. It pointed out the number of witnesses who had seen Smith

with a gun on the night of the murder and the fact that none had seen Johnson with

one. The State emphasized that both Johnson and Jones had actually seen Smith

7
shoot Songer. Referring to its bullet lead analysis, the State argued that it had

proven the bullet that killed Songer and those in the box at Smith’s uncle’s house

were “materially indistinguishable. They’re the same.” The chance of that

compositional similarity occurring coincidentally “boggles the mind.” The State

pointed out that in order to find Smith not guilty the jury would have to believe

Larry Martin and disbelieve all of the State’s witnesses. 

The defense’s closing argument focused on reasonable doubt. Smith’s

counsel conceded that it “look[ed] very suspicious” for Smith, but argued the

State’s circumstantial evidence failed to show who shot Songer. Counsel stressed

that the only two eyewitnesses against his client, Johnson and Jones, each had

much to gain from the State. He argued that Johnson’s only goal was to pin the

murder on Smith and that Melvin Jones either was lying to save himself from

unrelated charges or was involved in the murder himself. 

In its rebuttal argument the State argued the idea of Jones and Johnson

cooking up the story to frame Smith was “ludicrous” because Jones and Johnson

did not even know each other at the time of the crime. The State also reiterated

that the fingerprint evidence connected Smith to the phone used to call the cab,

and reminded the jury that the bullet fragment found on Songer “match[ed]” the

8
bullets from Smith’s uncle’s house. After an hour-and-a-half of deliberation, the

jury found Smith guilty. 

II. 

When reviewing state court judgments in post-conviction proceedings,

federal courts are constrained by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254. Under AEDPA, we cannot grant federal

habeas relief unless the state court’s decision was (1) “contrary to, or involved an

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

Supreme Court of the United States; or (2) . . . 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); LeCroy v. Sec’y, Dep’t of Corr., 421 F.3d

1237, 1259 (11th Cir. 2005). We review de novo the district court’s decision

about whether the state court acted contrary to clearly established federal law,

unreasonably applied federal law, or made an unreasonable determination of fact. 

Hall v. Head, 310 F.3d 683, 690 (11th Cir. 2002).

A state court’s decision is “contrary to” clearly established federal law if it

and Supreme Court precedent are “diametrically different . . . opposite . . . [or]

mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519

(2000). Put a little differently, a state court acts contrary to clearly established

9
federal law if it “confronts a set of facts that are materially indistinguishable from

a decision of [the Supreme] Court and nevertheless arrives at a result different

from [its] precedent.” Id. at 406, 120 S. Ct. at 1519–20. 

Similarly, “[a] state court’s decision amounts to an ‘unreasonable

application’ of federal law if it identifies the correct legal rule from Supreme Court

case law, but applies that rule in an unreasonable manner to the facts of

petitioner’s case.” Breedlove v. Moore, 279 F.3d 952, 961 (11th Cir. 2002). An

unreasonable application of federal law is not simply an erroneous or incorrect

application; it must be objectively unreasonable. Id.; Williams, 529 U.S. at 409,

120 S. Ct. at 1521. In order to merit AEDPA deference the state court need not

expressly identify the relevant Supreme Court precedent, nor make a perfect

statement of the applicable rule of law, nor provide a detailed opinion covering

each aspect of the petitioner’s argument. Parker v. Sec’y, Dep’t of Corr., 331 F.3d

764, 776 (11th Cir. 2003); Wright v. Sec’y, Dep’t of Corr., 278 F.3d 1245, 1254

(11th Cir. 2002). 

State courts’ factual findings are also due great deference. “A determination

of a factual issue made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by

10
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); LeCroy, 421 F.3d at

1259. 

III. 

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963), the

Supreme Court held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment.” The Court later clarified that a

defendant need not request favorable evidence from the State to be entitled to it.

United States v. Agurs, 427 U.S. 97, 103–07, 96 S. Ct. 2392, 2397–99 (1976). 

There are two categories of Brady violations, each with its own standard for

determining whether the undisclosed evidence is material and merits a new trial. 

Id. The first category of violations, often called (and what we will call) Giglio

claims, occurs where the undisclosed evidence reveals that the prosecution

knowingly made false statements or introduced or allowed trial testimony that it

knew or should have known was false. Agurs, 427 U.S. at 103–04, 97 S. Ct. at

2397–98; Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 766 (1972)

(noting that the same rule applies when “the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.”) (internal quotation marks

omitted); United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995) (the Giglio

11
rule applies to “explicit factual representations by the prosecutor at a side bar and

implicit factual representations to the jury” while questioning a witness). Under

this category of Brady violations the defendant is entitled to a new trial “if there is

any reasonable likelihood that the false testimony could have affected the

judgment of the jury.” Agurs, 427 U.S. at 103; 97 S. Ct. at 2397. The “could

have” standard requires a new trial unless the prosecution persuades the court that

the false testimony was “harmless beyond a reasonable doubt.” Ford v. Hall, 546

F.3d 1326, 1332 (11th Cir. 2008) (quoting Chapman v. California, 386 U.S. 18,

24, 87 S. Ct. 824, 828 (1967)). This standard favors granting relief. It is shaped

by the realization that “deliberate deception of a court and jurors by the

presentation of known false evidence is incompatible with rudimentary demands

of justice.” Giglio, 405 U.S. at 153, 92 S. Ct. at 766 (internal quotation marks

omitted). 

The other category of Brady violations occurs when the government

suppresses evidence that is favorable to the defense, although the evidence does

not involve false testimony or false statements by the prosecution. The defendant

is entitled to a new trial if he establishes that “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Bagley, 473 U.S. 667, 682, 685, 105

12
S. Ct. 3375, 3383, 3385 (1985) (internal quotation marks omitted); see also Kyles

v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565 (1995). A “reasonable

probability” of a different result exists when the government’s evidentiary

suppressions, viewed cumulatively, undermine confidence in the guilty verdict. 

See Kyles, 514 U.S. at 434, 436–37 n.10, 115 S. Ct. at 1566, 1567 n.10. 

With both types of Brady claims, “[w]e evaluate the tendency and force of

the undisclosed evidence item by item; there is no other way. We evaluate its

cumulative effect for purposes of materiality separately.” Id. at 436–37 n.10, 115

S. Ct. at 1567 n.10; Maharaj v. Sec’y, Dep’t of Corr., 432 F.3d 1292, 1310 (11th

Cir. 2005) (explaining that the “appropriate methodology [involves] considering

each Brady item individually, and only then making a determination about the

cumulative impact”). Considering the undisclosed evidence cumulatively means

adding up the force of it all and weighing it against the totality of the evidence that

was introduced at the trial. That is the way a court decides if its confidence in the

guilty verdict is undermined where a suppressed-evidence type of Brady claim is

involved, or if the suppression was harmless beyond a reasonable doubt where a

Giglio type of Brady claim is involved. 

13
IV. 

We begin by addressing Smith’s Giglio claims. “To prevail on a Giglio

claim, a petitioner must establish that (1) the prosecutor knowingly used perjured

testimony or failed to correct what he subsequently learned was false testimony;

and (2) such use was material.” Ford, 546 F.3d at 1331–32 (internal quotation

marks omitted). In at least some circumstances, prosecutorial statements may be

treated the same as testimony for this purpose. See Alzate, 47 F.3d at 1110. Smith

raises three Giglio claims. 

A. 

Smith claims that prosecutor Glenn Martin lied to the jury in his rebuttal

closing argument during Smith’s 1990 trial. Martin said:

One thing [the defense] was trying to say is that somehow Derrick Johnson

and Melvin Jones, the guy hiding behind the bushes, plotted and planned

this together. Well, first of all, they didn’t even know each other. Derrick

Johnson didn’t know who Melvin Jones was. Melvin Jones heard of, by

nickname, by street name, Derrick Johnson. . . . To follow the argument put

forth by [the defense] you would have to believe that . . . [the] two of them

were in league from the very beginning, which is totally ludicrous.” 

Smith asserts that this statement was false because Martin knew at the time he

made it that Jones and Johnson had met. It is undisputed, however, that Jones and

Johnson met in jail after the murder and had never spoken before that time. The

prosecutor’s statements were appropriate in light of the defense’s contention that

14
Jones and Johnson had colluded on or before the date of the crime. They were also

accurate. Accurate statements do not violate the Giglio rule. 

B.

Smith claims that before and during his 1983 trial Jones and Johnson gave

false testimony denying that they had ever been incarcerated together. Smith

asserts that at the time these lies occurred, in a deposition in late September 1983

and again at trial in November of that year, prosecutor Tom Hogan knew that the

two men had met in jail. A memo that Hogan wrote to himself on September 12,

1983 shows Hogan knew the two had met. However, he failed to correct their

false testimony denying any meeting. Any effect that Hogan’s failure to correct

that testimony may have had on the 1983 conviction was mooted when the Florida

Supreme Court reversed it. 

Seeking to salvage the claim, Smith contends that the 1990 trial was

affected because the prosecutors failed to reveal that Jones and Johnson had lied in

the earlier trial. But for the lies at the 1983 trial, Smith argues, his defense

attorneys would have discovered and brought out at the 1990 trial the fact that

Jones and Johnson had met in jail. Notably, Smith does not suggest that either

Jones or Johnson lied at the 1990 trial. Instead, he argues that their false

15
testimony in 1983 caused his attorneys not to cross-examine Jones or Johnson in

1990 about their earlier meeting. 

Smith raised this claim during both his state Rule 3.850 proceeding and in

his petition for federal habeas. At the state-court Rule 3.850 evidentiary hearing,

Smith’s attorney from the 1990 trial confirmed that he had possessed the transcript

of the 1983 cross examination of Johnson. He also testified that if he had known 2

that Jones and Johnson had talked before the 1983 trial, he would have used that

fact. 

The Florida Supreme Court found this Giglio claim unsubstantiated because

Smith “failed to show that any of the retrial [1990] testimony was false and that

the State failed to correct it.” Smith, 931 So. 2d at 799–800. We must decide

whether, under 28 U.S.C. § 2254(d), that conclusion is a reasonable application of

clearly established federal law, as defined by the United States Supreme Court. It

 Q. [D]id you have the record on appeal from the first case when you were

2

preparing this case?

A. Yes. 

Q. Is that something— that page of the record [page 1536] something that you

would have had in evaluating your case?

A. Yes.

. . . 

Q. And does that indicate that Derrick Johnson indicated he never had a

discussion with Melvin Jones about this case?

A. Yes. It says have you ever discussed this case at all with Melvin Jones, and he

says no, I never have. [Tr. 5005–5007].

16
is. Smith does not cite to any Supreme Court decision that applies Giglio to lies or

misstatements made in earlier trials of the same case, and we cannot find one. 

Therefore, even if we might ourselves decide to extend Giglio to cover false

testimony at an earlier trial that may have affected a retrial, our decision would not

apply to this case. See 28 U.S.C. § 2254(d)(1) (referring to “federal law as

determined by the Supreme Court of the United States”); Williams v. Taylor, 529

U.S. 362, 381, 120 S. Ct. 1495, 1506–07 (2000) (explaining that under §

2254(d)(1) court of appeals decisions do not count as “clearly establishing

[federal] law”); Anderson v. Sec’y, Dep’t of Corr., 462 F.3d 1319, 1327 (11th Cir.

2006) (“The requirements of § 2254(d)(1), codifying Teague v. Lane . . . and

respect for the finality of state criminal judgments preclude us from creating new

constitutional rules of criminal procedure on collateral review.”); see also Schwab

v. Crosby, 451 F.3d 1308, 1323 (11th Cir. 2006) (explaining the relationship of §

2254(d)(1) to the Teague non-retroactivity doctrine). 

In Anderson we noted that although the Brady principles might support it,

the Supreme Court had never expressly extended Brady to false testimony before

the grand jury. 462 F.3d at 1326–27. Accordingly, we concluded that the Florida

Supreme Court’s decision to deny relief was not unreasonable in a case where lies

were told to the grand jury. Id. at 1327–28. The same applies to false testimony

17
given in earlier trials. The Supreme Court has never extended Giglio to that

situation and we cannot say that the Florida Supreme Court’s decision not to do so

is unreasonable.

C. 

Smith claims that the State allowed Melvin Jones to lie at the 1990 trial

about what the State had given him in exchange for his testimony at the 1983 trial. 

During the 1990 trial, Jones testified that when he first came forward to tell the

police what he saw on March 21, 1983, he had been facing “seventeen or

eighteen” felony charges. Then came this cross-examination: 

Q. Did you ever do time on all those felony charges?

A. Yes, I had. 

Q. How much time did you get? 

A. I did three years on it. 

Q. Total three years?

A. Yes.

It would have been more accurate for Jones to say that in December 1983 he

had received a three-year suspended sentence plus two years of probation, but he

ended up serving the three-year sentence anyway. The reason is that in 1985 he 3

 Precisely how long Jones was actually behind bars on the three-year sentence is unclear. 3

The defense counsel asked him, but the prosecution objected. After a bench conference, the judge

ruled that the question would be allowed, but the defense counsel moved on without re-asking it. 

18
ran afoul of the law again (which is hardly surprising given the number of felony

charges he had been facing when he came forward in connection with this case). 

Smith argues that Jones should have testified to those details. 

The Florida trial court that ruled on Smith’s Rule 3.850 motion decided that

this claim was insufficiently pleaded. Florida v. Smith, 83-02653 at 8–9 (Fla. Cir.

Ct. Jan. 3, 2002) (“Defendant did not sufficiently allege what was false about Mr.

Jones’ testimony regarding the deal he got for testifying against Defendant.”).

Smith’s 205-page amended pleading seeking relief from the state court did not

mention Jones’ testimony about his deal with the State or about the length of time

he was sentenced to or had served. The Florida Supreme Court agreed that this

claim had been insufficiently raised at the trial court level. Smith, 931 So. 2d at

800 (“First, as the circuit court correctly found, the claim was insufficiently

pled.”). The federal district court found no reason to disturb the state procedural

bar. Smith, 2007 WL 2302207, at *11. The State has consistently pressed its

procedural bar defense to this claim. 

Ordinarily a state procedural bar is honored in federal habeas. Coleman v.

Thompson, 501 U.S. 722, 729–30, 111 S. Ct. 2546, 2554 (1991) (“The [adequate

and independent state ground] doctrine applies to bar federal habeas when a state

court declined to address a prisoner’s federal claims because the prisoner had

19
failed to meet a state procedural requirement.”). There are two ways that a

procedural bar may be lifted. See Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir.

2008). First, defaulted claims can be reviewed if the petitioner shows adequate

cause excusing the default and actual prejudice arising from it. See Dretke v.

Haley, 541 U.S. 386, 392– 93, 124 S. Ct. 1847, 1852 (2004). Second, a petitioner

can avoid a state procedural bar if he establishes that application of the bar would

cause “a fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467,

494, 111 S. Ct. 1454, 1470 (1991). Smith does not contend that he has established

either the “cause and prejudice” or the “fundamental miscarriage of justice”

exception. Accordingly, federal habeas review of this claim is barred. See 

Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1353 (11th Cir. 2005) ( a

petitioner’s failure to address a procedural bar holding waives any argument

against it). 

In summary, we reject all of Smith’s Giglio claims. It follows that there is

no need to conduct a materiality inquiry for any of the allegedly false testimony. 

The same cannot be said for all of the Brady claims.

V. 

Smith brings us twelve distinct Brady claims. Our organizational plan is to

first address those that fail to reach the materiality stage either because they are

20
procedurally barred or because they fail on the suppression element. See Strickler

v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999) (noting that Brady

violations require the evidence to have been suppressed by the State, be favorable

to the defense, and be cumulatively material). Then we will address the Brady

claims that make it to the materiality analysis. 

A.

There are six Brady claims that are procedurally barred or are based on

evidence that was not actually suppressed. 

1.

Smith claims that the State failed to disclose impeachment information

about Mellow and Melvin Jones. Two police reports indicate that the Jones’

house was canvassed by officers twice on the night of the murder, once at 1:00

a.m. and again around 8:30 a.m. He characterizes the first report as indicating

that a black male named “Melow” Jones answered the door at 1:00 a.m. but had

not seen or heard anything. He characterizes the second report as indicating that

4

 Actually, what the first report states is that, “The following neighborhood was then 4

done by this writer,” which is followed by a list of names and addresses, most of which have

after them the word “NEGATIVE.” One of those names and addresses is that of “Melow

Jones,” and it is followed by the word “NEGATIVE.” 

21
Mellow Jones, this time identified as a black female, answered the door around

8:30 a.m. but had no information about the incident. 

5

Smith argues that the second police report, which allegedly was not

disclosed, could have been used to impeach Melvin and Mellow Jones. According

to Smith, at trial the prosecution used Mellow Jones to confirm that her husband

Melvin actually had seen the shooting. It buttressed her credibility by suggesting

that at the time of the first neighborhood canvass Mellow had not yet heard her

husband’s story, which explained why she did not pass it on to the police at 1:00

a.m. That explanation would not apply to her failure to do so when questioned at

8:30 a.m. 

Smith also argues that an undisclosed 1988 interview of Mellow Jones was

impeachment evidence because it contradicted her 1983 statements. The police

report from the second canvass and Mellow Jones’ 1988 interview, therefore,

might have been useful against the Joneses. 

The Florida Supreme Court held that both of these Mellow Jones Brady

claims were procedurally barred because they were not raised during the collateral

proceedings in the Florida trial court. Smith, 931 So. 2d at 798. (“[T]his claim

 Actually, what the second report states is that, “On 3/21/83, at approximately 0830 5

hours writer conducted a neighborhood of the following locations with negative results.” One of

the ten listed names and addresses is that of “Mellow Jones.” 

22
was not raised below and thus is not preserved for our review.”). Under Coleman,

that is an adequate and independent state ground for decision, meaning that federal

courts must honor it unless one of the exceptions apply. See 501 U.S. at 729–30,

111 S. Ct. at 2554. 

Smith does not contend that he can show adequate cause for his default and

actual prejudice from it, nor does he argue that his case involves a fundamental

miscarriage of justice. See Mize, 532 F.3d at 1190 (identifying the two routes

around a state procedural bar). Instead, Smith’s briefs ignore the Florida Supreme

Court’s ruling and reiterate his argument on the merits of the claims. The Florida

Supreme Court’s ruling stands. Herring, 397 F.3d at 1353 (failure to address a

procedural bar in the initial brief to this Court waives any argument against it).6

The Brady claims involving the reports from the neighborhood canvasses and

 At oral argument we asked Smith’s counsel to respond to the Florida Supreme Court’s 6

procedural bar holding. He cited Way v. State, 760 So. 2d 903, 915 (Fla. 2000), for the

proposition that addressing an issue in a closing argument— as Smith did before the state trial

court during the collateral proceeding— sufficiently raises the issue under Florida law. However,

the Way decision did not hold that. Way held that the failure of an attorney to tell the trial court

during his argument that he wanted certain claims addressed cumulatively waived the argument

that they should have been. Id. That does not mean bringing up a claim for the first time during

argument will un-do a waiver that occurred when a claim was omitted from the pleadings and

briefs. We know from the Florida Supreme Court’s specific ruling in this case that the belated

argument of the claim did not cure the earlier waiver. 

In any event, Smith’s oral argument comes too late. McFarlin v. Conseco Servs., LLC,

381 F.3d 1251, 1262–63 (11th Cir. 2004) (“A party is not allowed to raise at oral argument a

new issue for review.”); see also Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1256

n.6 (11th Cir. 2005) (an argument raised for the first time during oral argument comes too late).

23
Mellow Jones’ 1988 interview do not make it to the materiality analysis and the

evidence will not be considered in Smith’s favor at that stage. 

2. 

Smith claims that the State failed to disclose a report showing that Derrick

Johnson had failed a 1983 polygraph examination about the crime and that he

made a statement during it that would have been useful to the defense. During the

examination Johnson explained that he had initially lied to police about being with

Smith on the night of the murder because he was afraid of implicating himself. 

Smith argues that statement should have been disclosed because it showed he had

a motive to lie and had been willing to do so to minimize his own culpability. 

The Florida Supreme Court found that because this argument was not made

in Smith’s post-conviction motion to the state trial court, “[that] court did not

address it, and it is not preserved.” Smith, 931 So. 2d at 799 n.5; see also

Coleman, 501 U.S. at 729–30, 111 S. Ct. at 2554. Again, Smith ignores the

Florida Supreme Court’s ruling on this issue and makes no argument for avoiding

procedural bar based on the “cause and prejudice” test or the “fundamental

miscarriage of justice” line of cases. See Mize, 532 F.3d at 1190; Herring, 397

F.3d at 1353. Again, the Florida Supreme Court’s procedural bar ruling stands. 

The Brady claim about the polygraph examination and Derrick Johnson’s

24
statement during it does not make it to the materiality analysis, and the evidence

will not be considered in Smith’s favor at that stage.

3. 

Smith claims that the State suppressed evidence that could have been used

to impeach Priscilla Walker. She testified at the 1990 trial that she had seen

Smith at her house during the evening shortly before the murder and that while

Smith was there, her boyfriend James Matthews showed her Smith’s gun. 

Walker also testified that Smith returned to her house between midnight and 1:00

a.m.— the shooting occurred around 12:45 a.m.— and told her that he had “shot a

cracker in the back” because the victim, a cab driver, had not wanted to give up his

money. On cross examination, Walker stated that she did not know Smith very

well and she denied disliking him. 

Smith asserts that at the time of the retrial in 1990 Priscilla Walker had

criminal welfare fraud charges pending against her under an alias and that she had

already been charged with obstruction of justice and three probation violations

between 1988 and 1990. He also asserts that Walker’s bond was reduced after she

testified against him in 1990 and that she later received probation. None of that

evidence was disclosed to Smith. 

25
The State contends that any claims about nondisclosures relating to Priscilla

Walker are procedurally barred because Smith did not even mention her in his

initial brief to the Florida Supreme Court during his appeal from the denial of

collateral relief. The Florida Supreme Court did not mention any Brady issue

involving Priscilla Walker in its opinion. See Smith, 931 So. 2d 790. The State

argues that under Florida law, the fact that Smith talked about Priscilla Walker in

his reply brief to the Florida Supreme Court is not enough to avoid waiver. Gen.

Mortgage Assocs., Inc. v. Campolo Mortgage & Realty Corp., 678 So. 2d 431, 431

(Fla. 3d DCA 1996) (“The fact that this issue was raised for the first time in the

reply brief alone precludes our consideration of the matter.”). 

In response, Smith argues that the State should not be allowed to sandbag

him by raising the procedural default defense for the first time on appeal, although

he does not suggest that he could have responded any differently had he faced it in

the district court. Smith does not deny that he failed to even mention Priscilla

Walker in his initial brief to the Florida Supreme Court, nor does he contend that

he can escape the procedural bar through a showing of cause and prejudice or a

fundamental miscarriage of justice. Instead, Smith’s only argument is that the

State has waived its procedural bar defense as to this claim by not asserting it in

the district court.

26
After the enactment of AEDPA, whether the State’s failure to raise a

procedural bar defense waives it depends on the basis of the defense. If the

procedural bar defense arises from the petitioner’s failure to raise the claim at all

and thereby exhaust state remedies, that defense cannot be waived implicitly by

the State’s failure to assert it. 28 U.S.C. § 2254(b)(3) (“A State shall not be

deemed to have waived the exhaustion requirement . . . unless the State, through

counsel, expressly waives the requirement.”); McNair v. Campbell, 416 F.3d

1291, 1306 (11th Cir. 2005). If, on the other hand, the petitioner did raise the

claim in the state courts but not at the time or in the manner required by state

procedural rules, the resulting procedural bar defense may be waived by the

State’s failure to assert it. See McNair, 416 F.3d at 1306 (a procedural bar that

arises from the failure to bring a claim in state court “is to be distinguished from

one that arises, not because of a failure to exhaust, but rather because the state

court will not hear the claim due to a state procedural bar”); see also § 2254(b)(3)

(by implication). Unfortunately for Smith, this procedural bar defense arises from

his failure to raise this particular Brady claim in the state courts. 

Not only did Smith fail to raise this Brady claim in the state trial court

during the collateral proceeding, he did not even mention Walker’s name in his

initial brief to the Florida Supreme Court. His reply brief in that court did talk

27
about Walker, but not in the argument section. Instead, Smith mentioned her in a

section titled “Reply to Appellee’s Statement of the Case and Facts.” In that

section, he complained that “left out of the State’s brief is the full Priscilla Walker

story.” He then told his version of the Walker story and while doing so said that

the trial court, during the hearing on his motion for collateral relief, had refused to

permit him to introduce Brady evidence regarding Walker. But the

Brady evidence relating to Priscilla Walker was not the evidence this claim is

based on. He did not argue to the Florida Supreme Court that Walker had charges

pending against her when she testified at the 1990 trial, nor did he argue that she

had derived a benefit from the State in return for her testimony. He never said

anything at all about that alleged evidence. 

7

The long and short of it is that Smith never presented to the state courts any

claim for relief involving this allegedly withheld evidence about Priscilla Walker. 

None at all. In other words, Smith did not lose an opportunity to have this Brady

claim decided in state court because he raised it in an untimely or procedurally

defective way, as by asserting it in his reply brief instead of his initial brief. See

McNair, 416 F.3d at 1306. Instead, Smith lost the opportunity to have the state

 The Priscilla Walker Brady claim that Smith did raise in his reply brief is discussed 7

later in this opinion. See infra page 44.

28
courts decide this claim because he never raised it as a claim anywhere in the state

courts. He never gave the state courts an opportunity to rule on this claim, even

belatedly. He thereby failed to exhaust his state remedies within the meaning of

§2254(b)(3). Cf. id. (observing that because the federal issues mixed into

petitioner’s state law claims were needles in a haystack that did not invite the state

court to rule on them, there was a failure to exhaust type of procedural bar). 

It follows that the fact the State did not raise in the district court Smith’s

failure to raise this Brady claim in the state courts does not waive the defense. Id.

at 1305 (holding that the State’s failure to point out to the district court the

petitioner’s omissions in state court did not waive its procedural bar argument at

the court of appeals); see also Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir.

2002) (en banc) (applying a procedural bar arising from the petitioner’s failure to

exhaust his federal claim in the state courts even though the State did not assert

that defense until en banc oral argument).

Because the procedural bar defense is not waived and the factual basis for it

is not in dispute, the only way Smith might avoid the bar is either through the

cause and prejudice or the fundamental miscarriage of justice exception. Mize,

532 F.3d at 1190. He does not argue either one. Accordingly Smith’s Brady

claims based on the undisclosed evidence about Walker’s incentives to testify for

29
the State do not make it to the materiality analysis, and the evidence will not be

considered in Smith’s favor at that stage.

4.

Smith claims that the State failed to disclose a police report indicating that

Melvin Jones had taken a polygraph examination in 1983, supposedly because the

police doubted his version of events at the murder scene. Smith says that if his

defense counsel had known about that examination, it might have led to useful

impeachment evidence even though the examination result was not admissible

under Florida law. 

In ruling on Smith’s Rule 3.850 motion, the Florida trial court noted that the

State asserted that the report about Jones’ polygraph examination had been

disclosed to the defense. Smith did not offer then, nor has he offered since, any

evidence that the report was not disclosed. The best Smith can do is point to his

lawyer’s statement, made in 2002, that “I don’t remember whether I did [get the

polygraph information] or not.” 

Both the Florida Supreme Court and the federal district court noted that

there had been no evidence offered to support this claim. See Smith, 931 So. 2d at

799; Smith, 2007 WL 2302207, at *8. Because the claim has no factual basis, the

30
district court properly denied it. The allegations will not be considered in the

materiality analysis. 

5.

Smith claims that an undisclosed police report written by Officer Mike

Krause, who was the first to interview Hogley Wogley cook David McGruder,

indicates that McGruder told him both Smith and Johnson had entered the rear of

the taxi. If that is true, it contradicts what McGruder later said to police and

testified to at trial, which was that the shorter, darker-skinned man (Smith) into the

back of the taxi while the taller, lighter-skinned man (Johnson) got into the front. 

There was no argument in any of Smith’s briefs to the Florida Supreme

Court that the failure to provide Officer Krause’s report to the defense violated

Brady. Accordingly, Smith has failed to exhaust this Brady claim. See Keeney v. 8

Tomayo-Reyes, 504 U.S. 1, 10, 112 S. Ct. 1715, 1720 (1992) (“Exhaustion means

more than notice. In requiring exhaustion of a federal claim in state court,

Congress surely meant that exhaustion be serious and meaningful.”). The State has

 A footnote in the facts section of Smith’s initial brief stated that Officer Krause’s report 8

had not been provided to the defense. But nowhere in the brief did Smith argue that was a Brady

violation. Failure to offer any argument on an issue in a brief abandons that issue.

See Zivojinovich v. Barner, 525 F.3d 1059, 1062 n.1 (11th Cir. 2008); United States v.

Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).

 

31
never argued that this Brady claim is procedurally barred but instead has ignored

the claim altogether. Under § 2254(d), however, the State cannot waive its

procedural bar argument in a true failure-to-exhaust situation by ignoring the

claim. See Day v. McDonough, 547 U.S. 198, 206, 126 S. Ct. 1675, 1682 (2006)

(“[T]he Courts of Appeals have unanimously held that, in appropriate

circumstances, courts, on their own initiative, may raise a petitioner’s procedural

default, i.e., a petitioner’s failure properly to present an alleged constitutional error

in state court, and the consequent adequacy and independence of state-law

grounds for the state-court judgment.”); see also Moon v. Head, 285 F.3d 1301,

1315 n.17 (11th Cir. 2002).

Because it is apparent that the Florida courts would now refuse to hear this

claim, it is procedurally defaulted. Snowden v. Singletary, 135 F.3d 732, 736

(11th Cir. 1998) (“[W]hen it is obvious that the unexhausted claims would be

procedurally barred in state court due to state-law procedural default, we can

forego the needless ‘judicial ping-pong’ and just treat those claims now barred by

state law as no basis for federal habeas relief.”). The alleged evidence it concerns

will not be considered in the materiality analysis. 

32
6. 

Smith claims that the State failed to disclose to him the contents of the

police report made after Smith was questioned in violation of Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602 (1966). It was this Miranda violation that led to

Smith’s 1983 conviction being reversed, but he argues that the State’s failure to

disclose the contents of the report prevented the defense from learning how the

police had used his improperly obtained statements in their later investigations. 

Smith argues that because of the State’s nondisclosure, the defense could not

know whether other evidence was the fruit of the Miranda violation. 

The district court held that this Brady claim was procedurally barred

because Smith failed to raise it on direct appeal after his 1990 trial. Smith, 2007

WL 2302207 at *9 (citing Atwater v. Crosby, 451 F.3d 799, 810 (11th Cir. 2006)

(“It is well-settled that if the petitioner failed to exhaust state remedies and the

court to which the petitioner would be required to present his claims in order to

meet the exhaustion requirement would now find the claims procedurally barred ...

[,] there is a procedural default for purposes of federal habeas . . . .”)). Smith does

33
not dispute the application of the procedural bar, so it stands. The alleged

9

evidence this claim concerns will not be considered in the materiality analysis. 

B.

There are six Brady claims that are not procedurally barred and that involve

favorable evidence that was actually suppressed. The evidence involved in these

claims, which we are about to discuss, is due to be considered in the cumulative

materiality analysis required by Kyles, 514 U.S. at 434, 115 S. Ct. at 1566. 

1.

Smith claims that the State failed to disclose evidence that Melvin Jones

talked to a prosecutor on April 19, 1989 and made statements that the defense

could have used to impeach him. Not content with what he had received for his

testimony at the 1983 trial, Jones told the prosecutor that in exchange for

testifying again at the 1990 trial he wanted help with some probation violations

and a grand theft charge he had pending. Cf. Janet Jackson, “What Have You

Done for Me Lately,” on Control (A&M Records 1986). 

 We do not mean to imply, as Smith’s claim assumes, that Brady applies outside the 9

realm of exculpatory evidence and extends to evidence useful to the defense in a fruit-of-thepoisonous-tree quest. He cites no authority for that proposition and we would be skeptical about

concluding that, especially in a federal habeas proceeding. See 28 U.S.C. § 2254(d)(1). 

34
Smith raised this claim in the argument section of his initial brief to the

Florida Supreme Court. He brought it up again in his initial brief to the district

court. The State has never responded to this claim or denied that the evidence it

involves should be considered at the materiality stage. It will be. 

2.

Smith claims that the State failed to disclose an August 9, 1989 note written

by the prosecutor who had represented the State at Smith’s 1983 trial. The note

states that Melvin Jones called the prosecutor because he was concerned that his

daughter was going to accuse him of sexual abuse committed while she was a

minor. Jones said the accusations were false and designed to prevent him from

reuniting with his wife. He wanted the prosecutor’s office to give him and his

daughter polygraph examinations. Smith, 931 So. 2d at 798. Jones was worried

about being arrested. In her note the prosecutor described Jones’ state of mind this

way: “He’s afraid he’ll be arrested.” Smith argues that Jones’ fear of arrest based

on those accusations motivated him to testify at the 1990 trial and that the

information in the note could have been used to show Jones was testifying again to

curry favor with the State in order to help himself out of his own legal troubles.

The Florida Supreme Court held that “[t]he note does not provide

exculpatory or impeachment material. The note was not relevant either to the

35
retrial or to Jones’ motivation to provide testimony.” Id. The United States

Supreme Court has clearly held, however, that evidence that could be useful in

impeaching prosecution witnesses must be disclosed under Brady. See Bagley,

473 U.S. at 676, 105 S. Ct. at 3380. And the Court has held that evidence of

motivation to testify, especially for key prosecution witnesses, is impeachment

evidence that must be disclosed. See Giglio, 405 U.S. at 154–55, 92 S. Ct. at 767

(“Taliento’s credibility as a witness was therefore an important issue in the case,

and evidence of any understanding or agreement as to a future prosecution would

be relevant to his credibility and the jury was entitled to know of it.”); Kyles, 514

U.S. at 442 n.13, 115 S. Ct. at 1569 n.13 (evidence showing the motive for an

important government witness to come forward is impeachment evidence covered

by the Brady rule); Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177

(1959) (“The jury’s estimate of the truthfulness and reliability of a given witness

may well be determinative of guilt or innocence, and it is upon such subtle factors

as the possible interest of the witness in testifying falsely that a defendant's life or

liberty may depend.”).

Melvin Jones was an important State witness. He was the only eyewitness

to the crime who was not involved in the robbery and murder. Both sides

recognized that his credibility was important, and the defense cross-examined him

36
intensely about his motivation to testify at the 1983 trial and about the sentencing

break he got for that testimony. At the 1990 trial, however, the defense had

nothing to show that Jones had a motive for testifying against Smith again since

the charges he had faced in 1983 were long gone. The State failed to disclose that

Jones did have a new reason to curry favor with the prosecution—that he feared he

would be charged with a serious crime, that he was looking for help from the

prosecutor if his fears were realized, and that he had talked with the prosecutor

about it before he testified at the 1990 trial.

For these reasons, we conclude that the Florida Supreme Court’s decision

was unreasonable insofar as it determined that the prosecutor’s 1989 note about

Melvin Jones’ fears that he would be facing charges that he had sexually abused

his daughter was not impeachment evidence under Brady. The note could have

served to impeach an important prosecution witness, and it is undisputed that the

note was not disclosed. The evidence about the note is due to be considered at the

materiality stage. See Kyles, 514 U.S. at 450, 115 S. Ct. at 1573 (“[I]t would have

had some value as exculpation and impeachment, and it counts accordingly in

determining whether . . . materiality is satisfied.”). 

37
3.

Smith claims that the State failed to disclose police reports indicating that

Melvin Jones was initially listed as a suspect in the murder. The only reason Jones

was a suspect is that he lived within a block of the crime scene and had

outstanding warrants for his arrest. Smith, 931 So. 2d at 798. Smith argues that,

although the defense knew about the facts that caused the police to suspect Jones,

the additional fact that the police noted in a report that he was considered a

suspect is itself exculpatory evidence. The Florida Supreme Court determined that

the police report listing Jones as a suspect was not, alone, material. Smith, 931 So.

2d at 798. 

The Florida Supreme Court’s determination that the police report listing

Melvin Jones as a suspect was not material by itself is a reasonable application of

federal law. There is no evidence that Jones knew, or even believed, that he was a

suspect in the Songer murder, and it is unclear how a police report that Jones was

entirely unaware of could possibly have motivated him to do anything. In Kyles,

however, the Supreme Court suggested that Beanie, a witness who also did not

know whether he was a suspect, still might have worried about his own criminal

liability. 514 U.S. at 442 n.13, 115 S. Ct. at 1569 n.13. The Court held that the

fact that Beanie was considered a suspect was impeachment evidence against him. 

38
Id. Importantly, in Kyles the undisclosed Brady material kept the defense from

knowing the factual basis for Beanie’s concern that he might be a suspect. 

In this case, by contrast, the defense was well aware that Melvin Jones lived

very close to the murder scene and had arrest warrants for a number of felonies. 

Unlike in Kyles, here the defense had all the facts it needed to assert that Jones

may have come forward in part to dodge suspicion that he was the shooter. 

Smith’s counsel argued to the jury that Jones may have been involved in the

murder; as a result, we agree with the Florida Supreme Court that the additional

impact of a preliminary police report listing Jones as a suspect, especially when

Jones had no idea that the report existed, is not material by itself. But the report

was favorable to Smith, although barely, and it was undisclosed. Therefore, the

evidence of it should be considered in the cumulative materiality analysis, even

though it will not help Smith much. 

4.

Smith claims that the State failed to disclose documents relating to David

McGruder, the cook at the Hogley Wogley BBQ, that contained information 

favorable to the defense. Those documents are the prosecutor’s synopsis of his

sworn interview with McGruder and three police reports from March and April

1983. The prosecutor’s synopsis notes that the description McGruder gave of the

39
two men he saw outside the Hogley Wogley fit Smith and Johnson except that his

weight estimate for Smith was off by thirty pounds. The synopsis was dated April

4, 1983. 

10

The information in the police reports shows that Smith was actually as much

as seventy-five pounds heavier than the man McGruder described to police. The

police report dated April 8 also shows that after he had identified Smith in a

photopak on that date, McGruder remained “not positive” of the identification. 

Smith argues that the undisclosed police reports and synopsis cast doubt on

McGruder’s identification of Smith as the man he saw get into the cab on the night

of the murder. 

The Florida Supreme Court found that the synopsis should have been

disclosed but held that it was not material under Brady. It pointed out that at the

1990 trial Smith’s counsel cross-examined McGruder in depth about his

identification of Smith. That cross-examination exposed inconsistencies in

McGruder’s testimony about the date on which he had identified Smith, Smith’s

hair style and appearance in the photopack picture, and just how sure McGruder

 The April 4 synopsis also indicates that McGruder had been “unable to pick either of 10

the defendants out of a photopak.” That part of the synopsis was not evidence favorable to the

defense, however, because Smith’s photograph was not among those that had been shown to

McGruder up to that point. Smith, 931 So. 2d at 799. When Smith’s picture was included in the

photopack on April 8, McGruder did identify it.

40
was about the identification. See Smith, 931 So. 2d 799. The court’s point was

that the jury was aware McGruder was somewhat confused and unsure of the

identification. Additionally, the fingerprint from the phone at the Hogley

Wogley—a piece of evidence untainted by any allegation of

impropriety—supports McGruder’s identification. In light of these facts, the

Florida Supreme Court’s determination that the synopsis was not by itself enough

to be material—not enough to undermine our confidence in the guilty verdict—is

reasonable. Nonetheless, because the synopsis was somewhat favorable to Smith

and was not disclosed, it is due to be considered in the cumulative materiality

analysis.

The evidence in the police reports about the seventy-five pound weight

difference and McGruder not being positive of his identification of Smith is also

due to be considered in that analysis. 

5.

Smith claims that the State failed to disclose that witnesses Melvin Jones

and Derrick Johnson, who did not otherwise know each other, had met in jail

before the 1983 trial. Smith argues that the prosecutor had learned in September

1983 that on July 11 of that year Melvin Jones approached Johnson in a holding

cell, showed him a map of the crime scene, and offered to help him in connection

41
with the case. The prosecutor’s brief note about that encounter was not disclosed

to the defense. At the Florida trial court hearing during the collateral proceeding,

the State conceded that this evidence met the first two prongs of Brady because it

was favorable and was not disclosed to Smith. Id. at 797. 

The Florida Supreme Court held that the evidence of Jones and Johnson’s

encounter was not, alone, material. Id. That conclusion was reasonable. As the

court noted, Smith’s defense at the trial was that he was not in the taxi on the night

of the murder and that Jones and Johnson must have colluded to frame him. Jones

and Johnson did not know each other at the time of the murder. In addition, the

defense’s theory was that Johnson got Jones to lie for him, but the undisclosed

information shows that Jones approached Johnson, not the other way around. It

also shows that Jones’ approach unsettled Johnson. Johnson was so unnerved that

he had been approached by a stranger who knew details about the crime that he

immediately called the guards and asked to be removed from the holding cell. Id. 

Thus, during their brief encounter Jones and Johnson did not actually discuss the

facts of the case. Smith, 931 So. 2d at 797. 

In view of the circumstances, it is reasonable for the Florida Supreme Court

to have found that the brief encounter between Jones and Johnson, initiated by

Jones in a holding cell months after the crime, was too thin a basis to construct a

42
strong argument that the two cooked up the entire story to frame Smith. 

Considered by itself, evidence that Jones and Johnson met briefly in a holding cell

considered is not enough to undermine our confidence in the guilty verdict. It is,

however, evidence that is due to be considered for whatever it is worth in the

cumulative materiality analysis. 

6.

Finally, Smith claims that several police reports contain impeachment

evidence against Priscilla Walker. One of those reports indicates that Walker told

police in 1988 that on the night of the murder, Smith had returned to her house

around 1:00 a.m. and remained there until 5:00 a.m. That statement conflicts with

undisclosed statements made by other people who stated that Smith was elsewhere

by around 1:30 a.m. that morning. This evidence is due to be considered at the

cumulative materiality stage.11

VI.

The Supreme Court held in Kyles that the third component of the

Brady/Bagley test, which is the materiality analysis, must be conducted in a way

 Smith also claims that another report, one by Officer Kewin dated March 23, 1983, 11

indicates that when Walker and James Matthews were first interviewed “they gave no info” to

police. Walker explained, however, that she gave no information about Smith because she was

not asked. Because her explanation is uncontradicted, the information in that police report is not

favorable to Smith. 

43
that considers the cumulative impact of all of the undisclosed evidence favorable

to the defense. Kyles, 514 U.S. at 436, 115 S. Ct. at 1567 (“The fourth and final

aspect of Bagley materiality to be stressed here is its definition in terms of

suppressed evidence considered collectively, not item by item.”). The Court

explained: “We evaluate the tendency and force of the undisclosed evidence item

by item; there is no other way. We evaluate its cumulative effect for purposes of

materiality separately and at the end of the discussion.” Id. at 437 n.10, 115 S. Ct.

at 1567 n.10; see also Brown v. Head, 272 F.3d 1308, 1316 (11th Cir. 2001) (In

performing a cumulative materiality analysis, “the collective impact of all of the

suppressed evidence must be considered against the totality of the circumstances”)

(citing Kyles, 514 U.S. at 441, 115 S. Ct. at 1569). 

We have explained that the analytical process of gauging materiality begins

with determining the force and effect of each individual item of favorable

evidence not disclosed to the defense. While the “materiality determination must

consider the aggregate effect of all the suppressed evidence . . . [t]hat does not

mean . . . that an individual assessment of each piece of suppressed evidence is

somehow inappropriate. Indeed, the only way to evaluate the cumulative effect is

to first examine each piece standing alone.” Maharaj, 432 F.3d at 1310 (internal

citation omitted). But it is essential that the process not end after each undisclosed

44
piece of evidence has been sized up. The process must continue because Brady

materiality is a totality-of-the-evidence macro consideration, not an item-by-item

micro one. The most common error courts make in conducting the Brady

materiality analysis is to stop half way through the process—they consider the

force and effect of the undisclosed evidence one item at a time but do not consider

it cumulatively. See Kyles, 514 U.S. at 440, 115 S.Ct. at 1569 (finding fault with

the court of appeals for its “repeated references dismissing particular items of

evidence as immaterial and so suggesting that cumulative materiality was not the

touchstone”). 

Cumulative analysis of the force and effect of the undisclosed pieces of

favorable evidence matters because the sum of the parts almost invariably will be

greater than any individual part. Whether the sum of the withheld evidence

favorable to the defense will be enough to create a reasonable probability that the

jury would have acquitted will depend on two factors. One factor is the net

inculpatory weight of the evidence on both sides that actually was presented at

trial. The other factor is the aggregate effect that the withheld evidence would

have had if it had been disclosed. These two factors are brought to bear at the

crucial second step of the materiality process, which begins with putting on the

scales the evidence that was presented at trial—evidence favoring the prosecution

45
on one side, that favoring the defense on the other. Then the force and effect of all

of the undisclosed exculpatory evidence is added to the weight of the evidence on

the defense side, while the force and effect of all the undisclosed impeachment

evidence is subtracted from the weight of the evidence on the prosecution’s side. 

Id. at 437, 115 S.Ct. at 1567 (referring to the “responsibility to gauge the likely net

effect of all such evidence”). 

Once the evidence on the scales is adjusted to take into account the

combined force and effect of the undisclosed evidence favorable to the defense,

the standard that is applied is not one of sufficiency of evidence to convict. It is

instead whether what is left on both sides of the scale after adjusting for the

withheld evidence creates a reasonable probability that a jury would acquit, and a

reasonable probability is one sufficient to undermine our confidence in the guilty

verdict. Id. at 453, 115 S.Ct. at 1575 (“[T]he question is not whether the State

would have had a case to go to the jury if it had disclosed the favorable evidence,

but whether we can be confident that the jury’s verdict would have been the

same.”). Of course, the stronger the evidence of guilt to begin with, the more

favorable to the defense the undisclosed evidence will have to be to create a

reasonable probability that a jury would have acquitted had the evidence been

disclosed. See United States v. Amiel, 95 F.3d 135, 146 (2d Cir. 1996); United

46
States v. Gonzalez, 93 F.3d 311, 317 (7th Cir.1996); see also United States v.

Noriega, 117 F.3d 1206, 1219–20 (11th Cir. 1997). When a federal habeas court

conducts or reviews a Brady materiality analysis, it considers in the cumulative

weighing process only the undisclosed evidence covered in the Brady claims that

are not procedurally barred. See Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317,

1344 (11th Cir. 2004) (“Thus, the prohibition against raising nonexhausted claims

in federal court extends not only to broad legal theories of relief, but also to the

specific assertions of fact that might support relief.”); cf. Ogle v. Johnson, 488

F.3d 1364, 1368 (11th Cir. 2007) (“To have exhausted these eight claims, Ogle

had to present the eight instances of ineffective assistance that he now asserts in

his federal petition . . . .”); Peoples v. Campbell, 377 F.3d 1208, 1239 (11th Cir.

2004) (“[W]e agree with the district court’s statement of law that a habeas

petitioner may not present instances of ineffective assistance of counsel in his

federal petition that the state court has not evaluated previously.” (internal

quotation marks omitted)). Considering undisclosed evidence that a petitioner

failed to properly present in a Brady claim in the state courts would undermine the

important policies behind the procedural bar rules. See generally; Lambrix v.

Singletary, 520 U.S. 518, 523, 117 S. Ct. 1517, 1522 (1997) (discussing the

policies underlying the procedural bar rules); Kelley, 377 F.3d at 1344. Cf. Ogle,

47
488 F.3d at 1368; Peoples, 377 F.3d at 1239. So, in the present case, the only

undisclosed evidence to be considered at the cumulative materiality stage is that

which was properly raised in the Brady claims Smith brought before the state

courts. 

After sifting through all of Smith’s Brady claims, we decided that there are

six of them that are not procedurally barred and that do involve favorable evidence

that was actually suppressed. See Part V.B., supra. To recap, those six

Brady claims are the ones involving evidence that: (1) Melvin Jones sought help

from the prosecutor with the probation violation and grand theft charges against

him; (2) Melvin Jones, fearing arrest, sought help from the prosecutor in regard to

the sexual abuse allegations his daughter was making against him; (3) one or more

police reports indicated that Melvin Jones had initially been considered as a

suspect in 1983; (4) a prosecutor’s synopsis of an interview of David McGruder

and some police reports cast doubt on McGruder’s identification of Smith; (5) a

prosecutor’s note indicated that Jones and Johnson had met briefly in a holding

cell before the 1983 trial; and (6) several reports showed that Priscilla Walker’s

statement to the police about when Smith was at her house conflicted with

statements by others about where he was during that time. 

48
Because of AEDPA, 28 U.S.C. § 2254(d), we first ask whether the Florida

Supreme Court reasonably decided that those six pieces of withheld evidence,

considered cumulatively, were not material. We conclude that court did not

12

reasonably decide this issue because it did not decide this issue at all. There is

room for debate about whether the Florida Supreme Court performed any

cumulative analysis of the favorable evidence it found had been withheld from the

defense. See Smith, 931 So. 2d at 797–799. However, there is no room for debate

about whether that court performed a cumulative materiality analysis of all six of

the pieces of favorable evidence we have concluded were withheld from the

defense. As we have pointed out, the Florida Supreme Court unreasonably

determined that the fact Melvin Jones had talked with the prosecutor before the

1990 trial about his fears that he would be charged with the sexual abuse of his

daughter was not impeachment evidence under Brady. See Part V.B.2, supra. For

that reason the court did not consider that evidence in conducting its materiality

analysis, whether that analysis was cumulative or not. It follows that we cannot

defer to its decision about whether the withheld evidence was material. See

 The Kyles decision was issued in 1995. The Florida Supreme Court’s decision in this 12

case that affirmed denial of collateral relief on the Brady claims was issued in 2006. See Smith

v. State, 931 So. 2d 790 (Fla. 2006). So the Kyles cumulative materiality rule was “clearly

established Federal law, as determined by the Supreme Court of the United States,” within the

meaning of § 2254(d)(1). 

49
Panetti v. Quarterman, 551 U.S. 930, __, 127 S. Ct. 2842, 2858–59 (2007) (“When

a state court’s adjudication of a claim is dependent on an antecedent unreasonable

application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A

federal court must then resolve the claim without the deference AEDPA otherwise

requires.”). 

We could conduct the cumulative materiality analysis involving the six

pieces of withheld evidence ourselves, but we think it would be beneficial to

remand the case so that the district court can do that in the first instance. The

district court has not yet performed that analysis and in the circumstances of this

case we think that resolution of the issue will benefit from a two-tiered

consideration.13

VII.

Smith also contends that his defense counsel rendered ineffective assistance

of counsel during the guilt phase of his trial. See generally Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To satisfy the Strickland

 Smith’s renewed motion to hold this appeal in abeyance pending completion of his 13

Rule 3.851 proceeding in state court is denied. 

We leave entirely to the discretion of the district court on remand whether to hold in

abeyance further proceedings in that court pending the completion of some or all stages of the

pending state court proceeding. 

50
standard, Smith must first demonstrate that his counsel’s performance was

deficient, which means that it “fell below an objective standard of

reasonableness.” Id. at 688, 104 S. Ct. at 2064. To do so Smith must overcome a

strong presumption that his counsel’s performance fell within the broad range of

“reasonable professional assistance,” and he must prove any necessary facts by a

preponderance of the evidence. Id. at 689, 104 S. Ct. at 2065; Chandler v. United

States, 218 F.3d 1305, 1313–15 (11th Cir. 2000) (en banc) (explaining that a

defendant must show that “no competent counsel would have taken the action that

his counsel did take”). Second, Smith must show that there is a reasonable

probability there would have been a different verdict but for his counsel’s

unprofessional errors. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A

reasonable probability is one sufficient to undermine our confidence in the verdict. 

Id. 

Under AEDPA our task is to decide whether the Florida courts’ rejection of

Smith’s ineffective assistance claims is contrary to, or an unreasonable application

of, “clearly established federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d); Marquard, 429 F.3d at 1304. The district

court concluded that the Florida Supreme Court did not unreasonably apply clearly

established federal law. We review that judgment de novo. Hall, 310 F.3d at 690.

51
A.

Smith’s first ineffective assistance of counsel claim involves his trial

counsel’s failure to present the testimony of alibi witnesses. He says that his

friends Khan Campbell, James Hawkins, and Dina Watkins all saw him at Norm’s

Bar at 11:30 p.m. on the night of the murder. Trial counsel knew those three

people would testify to that, but he chose not to call them as witnesses because he

believed they were lying. 

The Florida Supreme Court held that this claim “was not raised below and is

therefore not preserved for appellate review.” Smith, 931 So. 2d at 802. As the

court noted, a related claim by Smith attributed his counsel’s failure to call

Campbell and Hawkins to a conflict of interest. However, that claim was barred

because it had not been raised on direct appeal. Id. The result was that the Florida

Supreme Court found procedurally barred all variations of Smith’s claim that his

alibi witnesses should have been called to testify. Smith does not contend that he

can escape the effect of the procedural bar in this federal habeas proceeding by

showing either cause and prejudice or a fundamental miscarriage of justice. See

52
Coleman, 501 U.S. at 730, 111 S. Ct. at 2554; Mize, 532 F.3d at 1190. The claim

is barred from review here.14

B.

Smith claims that his trial counsel was ineffective for failing to properly

investigate and cross-examine FBI Agent Donald Havekost, who testified as an

expert witness against Smith at his 1990 trial. At the time of his testimony

Havekost had been accepted as an expert in the field of lead compositional

analysis and had been allowed to testify as one in hundreds of trials. Based on his

expertise Havekost testified that he was “unable to distinguish” between the bullet

fragment found in Songer’s clothing and the bullets from the box found in Smith’s

uncle’s house. He gave his opinion that the fragment and the bullets “originated

from a common source.” When asked whether that compositional similarity could

 Two additional points deserve mention. First, attorneys are not required to violate 14

ethical standards to serve their client’s ends. A defendant has no constitutional right to have his

attorney present evidence that the attorney believes is false. See Nix v. Whiteside, 475 U.S. 157,

171, 106 S.Ct. 988, 996 (1986) (an attorney’s refusal to assist in the presentation of perjury and

his threat to withdraw if the defendant took the stand and lied “falls well within accepted

standards of professional conduct and the range of reasonable professional conduct acceptable

under Strickland”); Davis v. Singletary, 119 F.3d 1471, 1475 (“The duty to render effective

assistance of counsel does not include the duty to present false or misleading testimony.”).

Second, the questionable testimony would not have provided Smith with much of an alibi

even if it were true. Norm’s Bar is across the street from the Hogley Wogley BBQ where the call

to the cab was made shortly after midnight and where Smith met the cab. 

53
have occurred by chance, Havekost dismissed the possibility as “essentially

nothing.” Smith argues that his trial counsel should have better prepared himself

for that testimony and attacked the scientific basis of Havekost’s testimony, which

has since been called into some doubt. 

The Florida Supreme Court decided that the performance of Smith’s counsel

in this respect was not deficient. Smith, 931 So. 2d at 801 (“Smith failed to meet

the first prong of the Strickland standard.”). The court acknowledged that twelve

years after the 1990 trial, at the state collateral hearing Smith presented another

expert who testified about the flawed nature of Havekost’s testimony. But, as the

Florida Supreme Court explained:

The evidence presented at the evidentiary hearing amply

demonstrated that Smith’s trial counsel hired an expert to examine the

scientific evidence in question and to challenge it. The expert, however,

found no problems with the FBI analysis. In addition, defense counsel

himself researched the FBI’s scientific methodology. Finally, Smith’s expert

admitted at the post-conviction hearing that no research, including his own,

was available to challenge the FBI evidence at the time of retrial.

Accordingly, Smith failed to meet the first prong of the Strickland standard.

Id. at 801. That conclusion is entirely reasonable. Just as counsel are not required

to anticipate changes in the law, neither are they required to anticipate changes in

science. See LeCroy, 421 F.3d at 1261 n.27; Tarver v. Hopper, 169 F.3d 710, 714

(11th Cir. 1999); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994); see

54
also Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (“A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.”) 

C.

Smith claims that his counsel was ineffective for failing to locate and

interview Ventura Gibson and present his testimony. Melvin Jones testified in a

deposition before the 1983 trial that Gibson had given him a ride home on the

night of the murder and had dropped him off near his house shortly before

Songer’s cab arrived. Gibson was never contacted during the defense’s

preparation for either the 1983 or the 1990 trial. During the state collateral

proceeding in 2002 Gibson was asked these questions and gave these answers: 

Q. Do you recall ever taking Melvin Jones from 27th Street and 18th 

Avenue over to Fairfield Avenue South? 

A. No, I can not. 

Q. Do you ever recall taking Melvin Jones or driving him anywhere? 

A. No. 

On cross-examination this exchange took place:

55
Q. And just so the record is clear, your testimony today is you do not recall 

 whether or not you gave Melvin Jones a ride in March of 1983; isn’t that

 your testimony today? 

A. Yes, I did not give him a ride. 

Q. No, sir. I’m asking you on direct examination didn’t you say you do not 

 recall? 

A. I do not recall giving him a ride; no. 

Q. You could have, but you don’t recall? 

A. No, I did not give him a ride. 

Later on Gibson testified: “I don’t remember taking Melvin to Fairfield.” Asked

whether it was correct that he simply did not remember one way or the other

because it had been nineteen years, Gibson said: “I’m not taking Melvin

nowhere.” 

Trial counsel admitted that he had made no effort to contact Gibson to

check Jones’ story about how he had arrived at the crime scene. Smith argues that

because Jones was such an important witness counsel’s failure to find and present

Gibson as a witness to impeach one aspect of Jones’ testimony was deficient

performance that prejudiced the defense. 

The Florida Supreme Court decided that Smith had failed to meet either 

Strickland prong for this claim. Smith, 931 So. 2d at 801. It thought that

counsel’s failure to interview Gibson was not a serious error because any question

56
about how Jones arrived at the crime scene was a “minor, collateral” issue. Id. 

We need not consider whether the Florida Supreme Court’s conclusion about the

performance component was reasonable, because we are convinced of the

reasonableness of its alternative conclusion that there was no prejudice. See id. 

There was nothing unusual about Jones being on a public street near where the

crime occurred, and how he came to be there is not a critical fact. The possibility

of a swearing match about that matter does not matter; it is not enough to

undermine our confidence in the guilty verdict. More precisely, it was not

unreasonable for the Florida Supreme Court to decide that there is no reasonable

probability of a different result if Gibson had been presented as a witness.

Our decision to assume our way past the performance question and decide

this ineffective assistance of counsel claim on the alternative ground of no

prejudice implicates another argument of Smith’s. He contends that the prejudice

inquiry for ineffective assistance claims and for Brady claims must be combined

so that any prejudice from deficient performance of counsel and any prejudice

from the failure to disclose evidence favorable to the defense must be considered

cumulatively. See Cargle v. Mullin, 317 F.3d 1196, 1206–07 (10th Cir. 2003)

(noting the Tenth Circuit’s practice of aggregating all errors in cumulative

57
analysis, even those based on diverse legal claims, including Strickland and

Brady). 

The district court did not consider that argument because it was not fairly

presented. Only one sentence in Smith’s 116-page petition for a writ of habeas

mentioned the possibility of inter-claim cumulative analysis and no authority was

cited for it. Smith did not even allude to the argument in his combined 123-page

memoranda of law in support of his petition. That is not adequate presentation of

the issue. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (an

issue was not adequately presented unless it was raised in a way that the district

court could not misunderstand it); United States v. Dunkel, 927 F.2d 955, 956 (7th

Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”); cf.

Flanigan’s Enters. Inc. v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir. 2001)

(holding that an argument was waived because the appellants “fail[ed] to elaborate

or provide any citation of authority in support of” the argument in their brief). 

Because the issue or argument was not properly presented to the district court, we

will not decide it. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th

Cir. 2003) (“Arguments not raised in the district court are waived.”); Hurley v.

Moore, 233 F.3d 1295, 1297–98 (11th Cir. 2000); Nyland v. Moore, 216 F.3d

1264, 1265 (11th Cir. 2000); Redwing Carriers, Inc. v. Saraland Apartments, 94

58
F.3d 1489, 1511 n.30 (11th Cir. 1996); Walker v. Jones, 10 F.3d 1569, 1572 (11th

Cir. 1994).

VIII. 

In conclusion, the district court’s judgment denying the habeas petition is

AFFIRMED except as it concerns six Brady claims. Those six Brady claims are

the ones enumerated supra at 49 and discussed in Part V. B., supra. As to those

six Brady claims the district court’s judgment is VACATED and the case is

REMANDED for the limited purpose of having the district court conduct for those

six claims a cumulative prejudice analysis as required by the Kyles decision, 514

U.S. at 434, 115 S. Ct. at 1566, and as directed by this opinion. Depending on the

outcome of that analysis, the district court should then enter a new judgment either

granting or denying the habeas petition. 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

59