IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILLIE JAMES BOONE,

Petitioner,

vs. Case No. 4:11cv327-RH/CAS

MICHAEL D. CREWS, Secretary, 

Florida Department of Corrections,1

Respondent.

 /

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

On July 1, 2011, Petitioner Willie James Boone, proceeding pro se, filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. After direction

by this Court, Petitioner ultimately filed a second amended § 2254 petition on

December 13, 2011. Doc. 10. Petitioner challenges his conviction and sentence

imposed by the Second Judicial Circuit, Jefferson County, on May 26, 2006, following a

jury trial. Id. Respondent filed an answer to the petition on September 18, 2012, with

exhibits. Doc. 26. Petitioner filed a reply on November 30, 2012. Doc. 32. 

The Clerk of Court shall substitute Michael D. Crews as Secretary of the Florida 1

Department of Corrections in place of Kenneth S. Tucker. Michael D. Crews became

Secretary on December 17, 2012, and shall be automatically substituted pursuant to

Federal Rule of Civil Procedure 25(d). 

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The matter was referred to the undersigned United States Magistrate Judge for

issuance of all preliminary orders and any recommendations to the district court

regarding dispositive matters, pursuant to 28 U.S.C. § 636 and Northern District of

Florida Local Rule 72.2(B). After careful consideration, the undersigned has

determined no evidentiary hearing is required for the disposition of this matter. See

Rule 8(a), R. Gov. § 2254 Cases. The pleadings and attachments before the Court

show that the petition should be denied. 

Background and Procedural History

By information filed July 26, 2005, in the Second Judicial Circuit, Jefferson

County, in case number 05-097-CFA, the State of Florida charged Petitioner Willie

James Boone with three counts in connection with events that took place on or about

June 18, 2005, involving a victim, D.J.: (1) burglary of a dwelling with person assaulted,

a first degree felony, in violation of section 810.02(2)(a), Florida Statutes; (2) sexual

battery by threats reasonably believed, a first degree felony, in violation of section

794.011(4), Florida Statutes; and (3) sexual battery by threats reasonably believed, a

first degree felony, in violation of section 794.011(4), a first degree felony, in violation of

section 794.011(4), Florida Statutes. Doc. 22 Ex. B. Petitioner proceeded to a jury trial

on May 25 and 26, 2006, during which the State presented several witnesses, including

the victim, D.J. See id. Exs. N1, N2, N3 (trial transcripts). D.J. testified concerning her

initial encounters with Boone in June 2005 as well as the events resulting in the

charges in this case, when Boone broke into her home and raped her in the early

morning hours of June 18, 2005. Id. Ex. N1 at 84-132. Boone testified in his defense

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as the only witness. See id. at 293-333. The jury found Boone guilty as charged on

Counts 1 and 2, and not guilty on Count 3. Id. at 384-85; Ex. O. The court adjudicated

him guilty and, on May 26, 2006, sentenced him to life in prison on Count 1 and thirty

(30) years in prison on Count 2, to run consecutive to the sentence on Count 1, with

credit for 345 days time served in the county jail. Doc. 26 Ex. N1 at 386-89, Ex. P. 

Petitioner timely appealed his judgment and sentence to the First District Court

of Appeal (DCA), assigned case number 1D06-2900. See Doc. 26 Exs. Q, R. 

Petitioner’s counsel filed an Initial Brief pursuant to Anders v. California, 386 U.S. 738

(1967). Doc. 26 Ex. R. Petitioner filed a pro se brief and raised two points: (1) whether

the trial court abused its discretion in allowing similar fact evidence of other crimes,

wrongs, or acts to be introduced at trial in violation of the Williams Rule and section

90.404(2)(a), Florida Statutes; and (2) whether the trial court abused its discretion in

denying trial counsel and pro se motions to withdraw and request for appointment of a

DNA expert. Id. Ex. T at I. The State did not file an Answer Brief. See online docket

for 1D06-2900 at www.1dca.org. The First DCA affirmed the case without an opinion

on September 12, 2008. Doc. 26 Ex. U; see Boone v. State, 990 So. 2d 1061 (Fla. 1st

DCA 2008) (table). The mandate issued October 8, 2008. See online docket for 1D06-

2900 at www.1dca.org. 

On January 16, 2009, Petitioner filed a motion for post-conviction relief pursuant

to Florida Rule of Criminal Procedure 3.850 in the state trial court. See Doc. 26 Ex. V.

Petitioner raised six grounds. Id. The State filed a response. Id. Ex. W. The state

post-conviction trial court ordered an evidentiary hearing on the first and fourth grounds. 

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Id. Ex. X. The court did not appoint counsel for petitioner. Id. Ex. Y at 2-3. The

hearing took place on July 16, 2010, during which Petitioner and his trial counsel

testified. Id. Ex. Y. By order rendered December 20, 2012, the court denied the Rule

3.850 motion. Id. Ex. Z. 

Petitioner appealed to the First DCA and filed an Initial Brief, in case number

1D10-6781 raising one point: The state post-conviction trial court “abused its discretion

when it denied [Boone’s] motion for post conviction relief where the claims were not

conclusively refuted, exceeding from the essential requirements of the law.” Doc. 26

Ex. AA at ii. The State did not file an Answer Brief. See id. Ex. CC. The First DCA

affirmed the case without an opinion on May 3, 2011. Id. Ex. DD; see Boone v. State,

66 So. 3d 941 (Fla. 1st DCA 2011) (table). The mandate issued August 17, 2011. Doc.

26 Ex. DD.

As indicated above, Petitioner Boone filed his pro se § 2254 petition in this Court

on July 1, 2011. Doc. 1. In his petition, as amended, Boone raises several grounds:

(1) Trial counsel rendered ineffective assistance by failing to object to the

State’s perpetuated videotaped testimony of Dr. Javier Escobar and

Elaine Soskis, R.N., and denying Petitioner his right to cross-examine

these witnesses. Doc. 10 at 4. 

(2) Trial counsel rendered ineffective assistance by failing to secure

expert shoe print witness and challenge the sufficiency of the State’s case

by filing a motion to suppress the shoe-print evidence. Id. at 4, 4d-4e. 

(3) Trial counsel filed a motion to withdraw and Petitioner filed a pro se

motion to appoint new counsel because of a conflict, and Petitioner

asserts counsel failed to investigate the State’s DNA evidence. Id. at 5-

5c.

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(4) Trial counsel rendered ineffective assistance by failing “to object to the

introduction of electropherograms, medical charts, and medical diagrams

not corroborated by sworn testimony.” Id. at 5. Petitioner asserts this

evidence was presented without Petitioner having the opportunity to

confront and cross-examine Dr. Escobar and Nurse Soskis, who

performed the lab test. Id. 

(5) “[T]he Prosecution willfully and intentionally thwart[ed] the Petitioner in

his preparation of defense by withholding favorable evidence,” specifically

DNA evidence reports from FDLE, electropherograms of DNA profiles,

and photographs of Petitioner’s arrest, and if this evidence had “been

disclosed in a timely manner, would have allowed the defense to

investigate and make timely objections of the evidence.” Id. at 5d.

(6) Trial counsel rendered ineffective assistance by failing “to object, and

move the court for a ‘Frye Hearing’ after Prosecution offer[ed] expert

witness Valicia Hickman[’s] testimony that the DNA evidence on vaginal

swab taken from victim match[ed] Petitioner[’s] genetic type, and her

opinion that such match would occur, without Mrs. Hickman’s qualification

to give expert opinion in the error of population.” Id. at 5e. 

(7) The trial court abused its “judicial authority in allowing the similar fact

evidence of other crimes, wrongs, or acts to be introduced at trial, in

violation of the Petitioner’s state and federal constitution[al] rights.” Id. at

6b (labeled as “GROUND ONE” in pages attached to second amended

§ 2254 petition).

(8) The trial court abused its “judicial authority in denying trial counsel[‘’s]

and [Petitioner’s] pro se motion to withdraw, and verbal request for the

appointment of DNA expert, in violation of the Petitioner’s state and

federal constitution[al] rights.” Id. at 6c (labeled as “GROUND TWO” in

pages attached to second amended § 2254 petition). 

Each ground is analyzed below, beginning with the grounds that allege claims of

ineffective assistance of counsel (IAC), Grounds 1, 2, 3, 4, and 6, and then followed by

the remaining grounds, which allege claims of trial court error.

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Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for

persons in state custody. Section 2254(d) provides, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

(1) 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

(2) 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.

28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000); Gill v. Mecusker,

633 F.3d 1272 (11th Cir. 2011). 

If a state prisoner’s habeas petition “includes a claim that has been ‘adjudicated

on the merits in State court proceedings,’ § 2254(d), an additional restriction applies.” 

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The federal court may not grant

relief unless the state court’s adjudication of the claim: (1) 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 (2) 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. 28 U.S.C. § 2254(d). “This is a

‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings,

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which demands that state-court decisions be given the benefit of the doubt.’” Cullen,

131 S.Ct. at 1398 (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011), and

Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court’s review “is limited to the

record that was before the state court that adjudicated the claim on the merits.” Cullen,

131 S.Ct. at 1388.

In the first set of grounds addressed herein, Grounds 1, 2, 3, 4, and 6, Petitioner

Boone alleges IAC claims. In Strickland v. Washington, the U.S. Supreme Court

adopted a two-part test for such claims:

First, the defendant must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

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

a trial whose result is reliable.

466 U.S. 668, 687 (1984). To demonstrate ineffectiveness, a “defendant must show

that counsel’s performance fell below an objective standard of reasonableness.” Id. at

688. To demonstrate prejudice, a 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.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. For this Court’s purposes,

importantly, “[t]he question ‘is not whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect but whether that

determination was unreasonable – a substantially higher threshold.’” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schiro v. Landrigan, 550 U.S. 465, 473

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(2007)). “And, because the Strickland standard is a general standard, a state court has

even more latitude to reasonably determine that a defendant has not satisfied that

standard.” Id. It is a “doubly deferential judicial review that applies to a Strickland claim

evaluated under the § 2254(d)(1) standard.” Id.

Ground 1: IAC – Perpetuated Testimony

As referenced above, in his first ground, Petitioner Boone asserts his trial

counsel rendered ineffective assistance “by failing to object to the State’s perpetuated

testimony, and Petitioner’s right to cross-examine witnesses.” Doc. 10 at 4. Boone

indicates trial counsel failed to object “to the prosecutor’s motion to perpetuate

testimony in writing or on the record of the videotape depositions of M.D. Javier

Escobar and R.N. Elaine Soskis, which denied Petitioner Boone his constitutional right

to cross-examine.” Id. Boone asserts he was denied his due process right to confront

and cross-examine Dr. Escobar and Nurse Soskis during the perpetuated videotaped

depositions, which were introduced by the State as substantial evidence without

objection by defense counsel. Id. at 4b. Boone asserts that “[b]y trial counsel failing to

secure Petitioner Boone[’s] presence at these videotaped depositions, trial counsel

effectively denied the Petitioner his right to question these witnesses, or at least furnish

questions to probe the prior writing in their reports.” Id. at 4c. Boone asserts, “This

testimony was crucial evidence for the prosecution, and the Petitioner was effectively

denied his right to confront these witnesses, and [his] right to effective assistance of

counsel [as] counsel[’s] failure to perform his duty as a defense advocate, and that

failure did create prejudice, because the Petitioner cannot, nor could not submit

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questions to a videotape, which effectively prevented Petitioner Boone from presenting

evidence to a jury for a proper factual determination due to the fact the evidence would

establish substantial doubt the Petitioner committed the crime.” Id.

In the answer, Respondent asserts Petitioner submitted a substantially similar

claim to the state post-conviction trial court as the first ground in his Rule 3.850 motion.

Doc. 26 at 10. Respondent explains the state court denied relief on the merits after an

evidentiary hearing, Petitioner appealed, and the First DCA per curiam affirmed the

state post-conviction trial court’s order. Id. at 11-12. Respondent asserts there is

nothing unreasonable in the state post-conviction court’s determination that Petitioner’s

absence from the depositions did not affect the trial’s outcome. Id. at 15. 

In his reply, Boone asserts he was denied his right to confront and crossexamine these witnesses during the videotaped depositions and at the trial. Doc. 32 at

3-4. Boone asserts that, at the evidentiary hearing, trial counsel testified he had no

recollection as to why Petitioner was not present at the videotaped depositions and this

failure of counsel clearly satisfies the first prong of Strickland. Id. at 6.

As Respondent points out, Petitioner Boone presented this ground as the first

claim in his state Rule 3.850 motion. See Doc. 26 Ex. V at 2-6. After the evidentiary

hearing, the state post-conviction trial court denied the claim, making the following

findings:

Defendant alleges counsel was ineffective for failing to object to the

State’s motions to perpetuate the testimony of Elaine Soskis, R.N., and

Javier Escobar, M.D., and for failing to arrange for Defendant’s presence,

either in person or by video, at the depositions, effectively denying

Defendant his right to confront these witnesses. Defendant also alleges

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counsel was ineffective for failing to object to the videotaped depositions

being viewed by the jury during deliberations. The Court orally denied this

claim at the evidentiary hearing.

Doc. 26 Ex. Z at 47. Indeed, at the conclusion of the hearing, the state post-conviction

court made the following findings on the record:

The Court has considered the evidence presented today and

argument of the defendant and counsel for the State. It is the Court’s

finding and opinion of the Court that you have suffered no prejudice, Mr.

Boone, as a consequence of any claimed deficiency of Mr. Dombrowsky

[defense trial counsel] and not having you present during the depositions

or not introducing or attempting to introduce other evidence that you’re

complaining of. It does not appear that any of the deficiencies that you

claim to exist effected the outcome of these proceedings. There was

more than sufficient evidence to support the conviction.

The Court is going to deny the motion for post-conviction relief

based upon the Court’s finding that there’s been no deficient performance

or services by counsel. And even if there might be some deficiency

because you did not attend the depositions or clearly your attendance

would not have assisted counsel in cross examining nurses and doctors

where your expertise in that area has not been shown. It certainly would

not have effected the outcome of the trial had you been present at the

depositions.

Id. Ex. Y at 28. The state post-conviction trial court’s rulings, affirmed on appeal without

opinion, are entitled to AEDPA deference and are supported by the record. See 28

U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011); Wright v. Sec’y

of Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002). 

Specifically, at the state post-conviction evidentiary hearing, Boone’s trial

counsel, Alexander Dombrowsky, testified. Doc. 26 Ex. Y at 6-17. Mr. Dombrowsky

practices criminal law and has been board certified since 2005. Id. at 6. He was

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appointed by the court to represent Boone in September 2006 and the case proceeded

to trial. Id. at 7. He described his relationship with Boone:

Mr. Boone and my relationship was an attorney-client relationship. It was

difficult to say the least. Mr. Boone was very adversarial from our very

first conversation. He informed me that he had in his past fired two or

three attorneys and if I didn’t watch out he would fire me as well.

Id. Mr. Dombrowsky testified that Boone “continuously wanted his case to be brought

to trial faster than the normal course that we were proceeding on” and, at one point,

Boone tried to have him removed from the case, for which a Nelson hearing was held

April 24, 2006. Id. at 7-9. Mr. Dombrowsky testified that the trial was scheduled for

May 2006 and “[i]t was discovered that Doctor Escobar and Nurse [Soskis] would not

be available for the May trial date.” Id. at 9. Accordingly, the State moved to

perpetuate their testimony, and Mr. Dombrowsky did not oppose the motion. Id. He

explained his reasoning:

Q Why didn’t you oppose it?

A I found no grounds to oppose the motion. Namely these witnesses

were – merely collected the DNA evidence and did a medical examination

of the victim in this case. And I found no reason to require them to come

to the trial.

Q Was that decision effected by the defendant’s continuing desire for a

quick trial, for a trial as soon as possible?

A In part, but I wouldn’t say that was the driving factor. The driving factor

was my decision not necessarily to require them to come. There really

wasn’t much more other than their reports that they would come in and

testify to.

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Id. at 9-10. Mr. Dombrowsky explained that Boone did not attend the depositions but

he did not recall why, although he did not think Boone could have contributed anything

to the deposition process given the defense position taken in the case:

Q The deposition transcripts indicate that the parties to the deposition did

not include the defendant, Mr. Boone.

A That’s correct.

Q Do you have an recollection as to why Mr. Boone wasn’t present?

A No, sir. I don’t have any recollection as to why Mr. Boone wasn’t

present. I have, since this motion was filed and I was made aware of it,

I’ve gone back and reviewed all of my files, all of my file notes which I was

very particular in taking especially in light of the conflict that I had in

representing Mr. Boone. I say conflict not in the ethical sense but in the

personal sense, in the interpersonal sense. I’ve gone back and reviewed

all of my notes as to why he was not brought.

Q Based on your recollection of the events and the matters that were

going to be perpetuated do you think that it would have been important to

have him there from a fact standpoint or practical standpoint?

A No, sir. If I thought it would have been important to have him there I

would have had him there.

Q Was there anything that he could have contributed to the process?

A No, sir.

Q The witnesses that were being perpetuated, of course their role and

what they had to say is evident in the deposition but did they have any

discussions with Mr. Boone?

A No, sir, they did not.

Q Did they collect any evidence from Mr. Boone?

A No, sir, they did not.

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Q Did Mr. Boone ever indicate to you that he had any personal knowledge

of the nature of the injuries that they should have seen or would have

seen in the examination?

A No, sir, he did not.

Q If Mr. Boone had indicated to you that he in fact had raped the lady and

knew something about the nature of the injuries would might the situation

have been different?

A Yes, sir. 

Q Did he ever indicate to you that he had any knowledge of what injuries

the medical folks should expect to see or anything that would assist you in

examining them, cross examining them?

A No, sir, he did not indicate that to me.

Q And of course I see in the trial testimony that you called him as a

witness at trial?

A Yes, sir.

Q In the course of the trial it appears that he testified that he had no

knowledge of what happened to the victim in this case or how she

became injured or who sexually battered her. Is that correct?

A That’s correct.

Q Did he maintain that position with you throughout your representation?

A Yes, he did.

Id. at 10-12. Mr. Dombrowsky further testified regarding the significance of the DNA

evidence, collected by Dr. Escobar and Nurse Soskis, in the context of the State’s case: 

Q With regard to this particular evidence in the context of the entire case

that you tried how significant was the DNA in your view at the time?

A I have two answers to that. Insofar as the DNA evidence coming in and

there being a 1 in 44 billion chance that it was not Mr. Boone was very

significant. Yet I have another answer to that. In my opinion now and

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then was they could have completely done away with the DNA evidence

and still would have had enough to convict Mr. Boone of this crime.

Q What else did the State have as you recall the evidence?

A They had eye witness identification. Ms. Jefferies testified that Mr.

Boone had come out to the house at least on one prior occasion. It was

quite unusual for a person to be coming out there. Ms. Jefferies lives out

in the middle of the woods and Mr. Boone, who she identified afterward,

made a comment to her, why don’t I come back and visit you tonight,

which creeped her out. And low and behold he did come back later on

that night and raped her.

There was additional evidence of a shoe-print cast that was done

that matched the shoes that Mr. Boone was arrested in. Additionally there

were at least one cigarette butt outside of the house that were the brand

that Mr. Boone, I believed, smoked. On cross examination and in

depositions Ms. Jefferies said she didn’t smoke nor had anybody working

out at the house that smoked. Those are the ones that really sort of stick

out to me. But I believe there’s also a neighbor woman who said she saw

Mr. Boone earlier maybe that week or that day and had made some

comments to her and her young daughter and creeped them out as well.

Q So even without the DNA evidence in your view the evidence available

to the State would have resulted in a conviction?

A Yes.

Id. at 12-13. 

The record thus supports the state post-conviction trial court’s determination that

there was no deficient performance of trial counsel in not having Boone present at the

depositions of Dr. Escobar and Nurse Soskis. The State’s motion to perpetuate the

testimony of Nurse Soskis, filed pursuant to Florida Rule of Criminal Procedure 3.190,

reflects that defense counsel had been contacted and “has no objection.” Doc. 26 Ex.

K (Nurse Soskis). The State filed a similar motion concerning Dr. Escobar; however,

because the second page of that motion is not included in the record, it is not apparent

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from the face of the motion whether defense counsel objected, although nothing in the

record indicates he did object and, as quoted above, counsel testified at the postconviction evidentiary hearing that he did not oppose the motions. Id. Ex. L, Ex. Y at 9. 

Counsel did not see a “reason to require them to come to the trial” as they “merely

collected the DNA evidence and did a medical examination of the victim.” Id. Ex. Y at

10. Nothing indicates that, had defense counsel objected to taking these depositions to

perpetuate testimony, these witnesses would not have been to ultimately testify at a trial

(whether the trial took place as actually scheduled in May 2006 or was postponed). 

See Ex. K (motion concerning Nurse Soskis, “an essential and material witness”:

“According to information received by the undersigned Assistant State Attorney, Elaine

Soskis, R.N., may not be available to testify at the trial that is schedule[d] to begin with

May 25, 2006” because she “is scheduled for a medical procedure which may render

her unable to attend during the trial dates”), L (motion concerning Dr. Escobar, “an

essential and material witness”: “According to information received by the undersigned

Assistant State Attorney, Dr. Javier Escobar, M.D. will not be available to testify at the

trial that is schedule[d] to begin May 25, 2006” because he “will be out of town during

the trial dates”). 

“A defendant in Florida has a right to be present at a deposition to perpetuate

testimony.” Harrell v. State, 709 So. 2d 1364, 1370 n. 7 (Fla. 1998); see Fla. R. Crim.

P. 3.190(j). Defense counsel testified that if he thought it important for Boone to be

present, he would have had him there. See, e.g., Hanks v. State, 786 So. 2d 634, 635-

36 (Fla. 1st DCA 2001) (explaining that “fundamental error may be waived by a tactical

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decision on the part of defense counsel” and “[b]y agreeing to the admission of

[doctor’s] deposition testimony, defense counsel [affirmatively] waived any claim of

error” regarding defendant’s “constitutional right to confront this witness”). Although

Boone was not present for these video depositions, his attorney appeared and crossexamined the witnesses. See Doc. 26 Exs. N2 (video deposition of Dr. Escobar played

during trial) and N3 (video deposition of Nurse Soskis played during trial). 

Further, even if this was deficient performance by defense counsel, nothing

indicates Boone’s absence from these depositions affected the outcome of the trial, as

the state post-conviction trial court found, and Boone suffered no prejudice given the

“more than sufficient evidence to support the conviction.” Doc. 26 Ex. Y at 28. Defense

counsel testified at the evidentiary hearing, even without the DNA evidence, the State’s

evidence would have resulted in a conviction. Id. at 13. Indeed, the State presented

evidence other than the DNA evidence, including the victim’s identification of Boone as

the perpetrator, shoeprint evidence matching Boone’s shoe from outside the window

entered by the perpetrator, and neighbors’ testimony corroborating the victim’s

description of the perpetrator’s vehicle, which was the same as that driven by Boone,

and witnesses’ testimony that Boone had no scratches on his face the evening before

but had scratches on his face when he was arrested (consistent with the victim’s

testimony that she scratched the perpetrator). Id. Ex. N1 at 43-45, 55-56, 60, 79-80,

92-94, 102-03, 131-32, 151, 158, 172-74, 205-10, 228-39. Moreover, to the extent

Boone’s IAC ground is based on Crawford v. Washington, the state post-conviction

court’s rejection of the claim was not contrary to or an unreasonable application of the

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law. See Crawford v. Washington, 541 U.S. 36, 68 (2004) (“Where testimonial

evidence is at issue, . . . the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-examination.”); see also Davis

v. Alaska, 415 U.S. 308, 315-16 (1974) (“The main and essential purpose of

confrontation is to secure for the opponent the opportunity of cross-examination.”);

Mason v. Allen, 605 F.3d 1114, 1123-24 (11th Cir. 2010) (“[N]otwithstanding the

Confrontation Clause violation, we cannot reverse a conviction or order a new

sentencing hearing if the error is harmless. . . . In habeas proceedings, we review

whether a constitutional violation is harmless by determining ‘whether the error had

substantial and injurious effect or influence in determining the jury’s verdict.’ . . . We

analyze the effect of the Confrontation Clause violation by looking at several factors,

including ‘the importance of the witness’ testimony in the prosecution’s case, whether

the testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, . . . and, of course the

overall strength of the prosecution’s case.’” (citations omitted)). 

Based on the foregoing, Boone has not shown the state courts’ rulings rejecting

this IAC claim resulted in a decision that was either (1) contrary to, or involved an

unreasonable application of, clearly established U.S. Supreme Court precedent, or (2)

based on an unreasonable determination of the facts in light of the evidence presented

in the state court proceeding. See 28 U.S.C. § 2254(d)(1)-(2). Boone is not entitled to

federal habeas relief, and this ground should be denied. 

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 Ground 2: IAC – Failure to Secure Expert Shoe Print Witness

In his second ground, Boone asserts his trial counsel rendered ineffective

assistance “by failing to secure expert witness and challenge the sufficiency of the

State’s case.” Doc. 10 at 4. Boone asserts he requested trial counsel to obtain a shoe

print expert as “two state agencies are showing different casts being used to extract

shoe-print comparisons from the crime scene.” Id. at 4d. Boone further asserts trial

counsel “was required to file a motion to suppress the shoe-print evidence, arguing the

inconsistent facts of two different cast material, and the shoe-print impression in the

cast examine by (FDLE) shoe-print expert did not match the Petitioner’s footwear.” Id.

at 4e.

In its answer, Respondent asserts that Petitioner submitted a substantially

similar claim to the state post-conviction trial court as the second ground in his Rule

3.850 motion. Doc. 26 at 17. Respondent explains the state court denied relief,

Petitioner appealed, and the First DCA per curiam affirmed the state post-conviction

trial court’s order. Id. at 17-18. Respondent asserts the record supports the state

court’s findings, such findings are entitled to deference, and Petitioner has offered

nothing to rebut the factual determinations. Id. at 20-21. 

In his reply, Boone argues the record proves only a partial shoe print was

discovered and photographed by Captain Massey from the Jefferson County Sheriff’s

Department, and Deputy Knecht testified in his deposition that the cast he did was not

good. Doc. 32 at 8. Boone further argues, “Respondent has miscomprehended the

Petitioner’s contention of the two different materials that were testified to by the State’s

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expert witnesses, that the two materials that were used is distinguished between the

two kinds of materials that were described at the trial.” Id. Boone requests this Court

hold an evidentiary hearing. Id. at 9. 

As Respondent points out, Petitioner Boone presented this ground as the

second claim in his state Rule 3.850 motion. See Doc. 26 Ex. V at 6-9. The state postconviction trial court denied the claim, making the following findings:

Defendant alleges ineffective assistance of counsel for failure to

move the Court for a shoe-print expert to examine the inconsistencies in

the FDLE and Jefferson County Sheriff’s Department shoe-print results,

after which counsel should have filed a motion to suppress the shoe-print

evidence. As the State explains in its response, Defendant’s allegation of

inconsistency, based on trial witnesses describing the shoe-print cast as

being made using “plastic of paris” (actually plaster of paris) as well as

“Dead Stone,” is without merit. The record clearly shows that both

descriptions refer to the same shoe-print cast. Exh. 1 - Trial Trans., pp.

205-10; 228-40. Because there is no inconsistency, there was no basis

for counsel to move for a shoe-print expert or to suppress the evidence,

and counsel was not deficient in failing to do so.

Additionally, Defendant does not show prejudice. His implication

that the shoe-print evidence was the only evidence linking him to the

crime scene is misleading. Even without the shoe-print, the State

introduced the eyewitness testimony of the victim, the corroborating

testimony of neighbors, evidence of injuries to the victim, and DNA and

fingerprint evidence. Exh. 1, pp. 39-62; 81-136; 142-98, 212-13; 225-28;

247-89; Ex. 2 - Jury Trial Excerpts: Video Depositions of Dr. Escobar and

Ms. Soskis.

Doc. 26 Ex. Y at 47-48. The state post-conviction trial court’s rulings, affirmed on

appeal without opinion, are entitled to AEDPA deference and are supported by the

record. See 28 U.S.C. § 2254(d); Harrington, 131 S.Ct. at 784-85 (2011); Wright, 278

F.3d at 1255 (11th Cir. 2002). 

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In particular, the trial transcript supports the state post-conviction court’s findings

that there was no inconsistency in the witnesses’ descriptions of the shoe-print cast and

both descriptions refer to the same shoe-print cast, State’s Exhibit 11. See Doc. 26 Ex.

N1 at 205-10, 228-39. Further, even assuming any deficient performance, similar to

the analysis of Ground 1, the record supports the state court’s finding that Boone has

not shown prejudice given all the other evidence presented by the State. Boone has

not shown the state courts’ rulings rejecting this IAC claim resulted in a decision that

was either (1) contrary to, or involved an unreasonable application of, clearly

established U.S. Supreme Court precedent, or (2) based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceeding. See 28 U.S.C. § 2254(d)(1)-(2). This ground should be denied. 

Ground 3: IAC – Failure to Investigate FDLE and DNA Evidence

In his third ground, Boone asserts trial counsel filed a motion to withdraw and

Petitioner filed a pro se motion to appoint new counsel because of a conflict, involving

counsel’s failed to investigate the State’s FDLE and DNA evidence. Id. at 5-5c. Boone

indicates he requested trial counsel “investigate the DNA evidence the prosecution

refused to disclose . . . [and] to demand disclosure of this evidence from the State, for

an opportunity to investigate, review, and test to determine the probative value.” Id. at

5b. Boone asserts this evidence would have proven that he was not the perpetrator of

the charged crimes. Id. Boone explains that, two days before trial, the State “delivered

the graphs of the DNA profiles from the FDLE Crime Lab” and “[t]he results revealed

two (2) locations were not interpretable or obtained,” and “[t]his evidence was crucial to

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the State’s case.” Id. Boone asserts that trial counsel’s failure to investigate the DNA

evidence, demand disclosure of the graphs of the DNA profiles from the FDLE Crime

Lab, or request a continuance “when it had become apparent that the State intended to

use DNA enhancement graphs which profiles initially did not match all (13) markers of

the Petitioner,” prejudiced Boone’s defense and “[t]hat feeble attempt created more

conflict with Petitioner Boone in that trial counsel failed to prepare and subject the

prosecution’s case to a testing process.” Id. Petitioner asserts that a defense DNA

evidence investigation “would have revealed favorable evidence for the defense,” trial

counsel then “would have had the ability to ‘motion the court to suppress’ the evidence,”

and “there is a great probability the DNA evidence would have been suppressed.” Id. at

5c. 

In its answer, Respondent asserts that Petitioner submitted a substantially

similar claim to the state post-conviction trial court as the third ground in his Rule 3.850

motion. Doc. 26 at 22. Respondent explains the state court denied relief, Petitioner

appealed, and the First DCA per curiam affirmed the state post-conviction trial court’s

order. Id. at 22-24. Respondent asserts the record supports the state court’s findings,

such findings are entitled to deference, and Petitioner has offered nothing to rebut the

factual determinations. Id. at 25-27. Respondent asserts that, as found by the state

court, Petitioner’s counsel’s investigation of the DNA evidence was reasonable as was

his strategic decision not to obtain a defense expert analysis of the evidence. Id. at 27.

In reply, Petitioner contends “trial counsel’s assertion was unreasonable in light

of the fact that trial counsel only had the general report of the FDLE’s results providing

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that the Petitioner’s DNA did not match all (13) markers and this fact calls into question

as to the reliability of the two (2) Loci D18 S51 and D7S820 not meeting the threshold

required.” Doc. 32 at 11. Petitioner argues that, given “the relevant facts and objective

standards governing the right to effective assistance of counsel,” his trial counsel’s

“omission and failure to investigate the DNA evidence, or demand disclosure of the

graphs of the DNA profiles from the FDLE Crime Lab, or request a continuance which it

had become apparent that the State intended to use the DNA enhancement graphs,

and that were revealed two (2) days prior to the trial was clearly deficient performance

of trial counsel in this case.” Id. at 11-12. Petitioner asserts “the FDLE reports and

results in the discovery package” were not “fully assuring and accurate.” Id. at 12. 

Petitioner argues that trial counsel’s failure to secure a defense expert “cannot be

viewed as strategic without alternative courses on the record” and “if trial counsel had

additional relevant information pertaining to those following STR loci D18S51 and

D7S820, counsel’s decision of not needing an DNA expert to assist in the Petitioner’s

defense strategy, it is not evidence from the record.” Id. at 13. 

As Respondent points out, Petitioner Boone presented this ground as the third

claim in his state Rule 3.850 motion. See Doc. 26 Ex. V at 9-12. The state postconviction trial court denied the claim, making the following findings:

Defendant alleges counsel was ineffective for failing to investigate,

at Defendant’s request, the DNA evidence the State refused to disclose,

failing to demand disclosure of the DNA evidence, and failing to request a

continuance when it became apparent that the State would rely on

contaminated DNA evidence which was disclosed only two days before

trial.

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The trial testimony of FDLE crime laboratory analyst Valicia

Hickman refutes Defendant’s claim that the FDLE report indicates the

DNA evidence was contaminated. Exh. 1 - pp. 240-89. Contrary to

Defendant’s allegation, the record shows that the State’s DNA evidence

was not disclosed two days before the trial. At a hearing on Defendant’s

motion to dismiss court-appointed counsel held on April 24, 2006, remarks

by both Defendant and counsel demonstrate that they received the DNA

evidence long before the date of the hearing, which took place more than

a month before trial. Exh. 3 - 4/24/06 hearing transcript. At that same

hearing, counsel explained that based on his review of the DNA evidence

and reports, and after the FDLE expert’s deposition, he made a strategic

decision not to hire a DNA expert because he felt it would produce

additional inculpatory evidence. Exh. 3, pp. 7-8; Occhicone v. State, 768

So. 2d 1037, 1048 (Fla. 2000) (holding that “strategic decisions do not

constitute ineffective assistance of counsel if alternative courses have

been considered and rejected and counsel’s decision was reasonable

under the norms of professional conduct.”). Defendant has not shown

deficient performance on the part of counsel.

Doc. 26 Ex. Z at 48-49. The state post-conviction trial court’s rulings, affirmed on

appeal without opinion, are entitled to AEDPA deference and are supported by the

record. See 28 U.S.C. § 2254(d); Harrington, 131 S.Ct. at 784-85 (2011); Wright, 278

F.3d at 1255 (11th Cir. 2002). 

In particular, the trial transcript supports the state post-conviction court’s findings

regarding the testimony of Ms. Hickman, the FDLE crime laboratory analyst. Ms.

Hickman testified that she performed the STR DNA testing in this case, how she

performed the testing, there was no contamination, and Mr. Boone’s DNA matched the

foreign DNA profile from the victim’s vaginal swab at 11 of 13 STR loci with the

frequency of such occurrence being approximately one in 48 billion. Doc. 26 Ex. N1 at

244-80. Further, as the state post-conviction trial court found, remarks by both Boone

and his attorney during a motion hearing on April 24, 2006, reflect that they had

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received and reviewed the DNA evidence reports by that point, which was a month

before the trial started on May 25, 2006. Id. Ex. E at 7-8. Defense counsel stated at

that motion hearing on April 24, 2006, that he had deposed the State’s DNA expert two

weeks earlier, and he made a strategic decision not to hire a defense DNA expert

because he “didn’t want to have more evidence against” Boone. Id. 

 The record thus supports the state post-conviction trial court’s determination that

there was no deficient performance of trial counsel regarding the investigation of the

DNA evidence and strategic decision not to hire a defense DNA expert. Boone has not

shown the state courts’ rulings rejecting this IAC claim resulted in a decision that was

either (1) contrary to, or involved an unreasonable application of, clearly established

U.S. Supreme Court precedent, or (2) based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding. See 28 U.S.C.

§ 2254(d)(1)-(2); see, e.g., Waters v. Thomas, 46 F.3d 1506, 1518-19 (11th Cir. 1995)

(en banc) (“We cannot, and will not, second guess such [strategic] decisions” that “trial

counsel are called upon to make.”); Dingle v. Sec’y for Dep’t of Corr., 480 F.3d 1092,

1099 (“[C]onsidering all the circumstances, we give great deference to choices dictated

by reasonable strategy.”). This ground should be denied. 

Ground 4: IAC – No Objection to DNA Profiles, Charts, and Diagrams 

In his fourth ground, Petitioner Boone asserts that trial counsel rendered

ineffective assistance by failing “to object to the introduction of electropherograms,

medical charts, and medical diagrams not corroborated by sworn testimony.” Id. at 5. 

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He asserts this evidence was presented without him having the opportunity to confront

and cross-examine Dr. Escobar and Nurse Soskis, who performed the test. Id. at 5, 5c.

In its answer, Respondent asserts that Petitioner submitted a substantially

similar claim to the state post-conviction trial court as the fourth ground in his Rule

3.850 motion. Doc. 26 at 29. Respondent explains the state court denied relief,

Petitioner appealed, and the First DCA per curiam affirmed the state post-conviction

trial court’s order. Id. at 29-30. Respondent asserts the record supports the state

court’s findings, such findings are entitled to deference, and Petitioner has offered

nothing to rebut the factual determinations. Id. at 31-32. Respondent asserts that

there is nothing unreasonable in the state post-conviction court’s determination that

Petitioner’s absence from the depositions of Dr. Escobar and Nurse Soskis did not

affect the trial’s outcome. Id. at 32-33. 

In reply, Petitioner contends Crawford required Dr. Escobar and Nurse Soskis to

testify in person and the admission of this evidence violated his Sixth Amendment right

to confront the witnesses against him. Doc. 32 at 14-16. Petitioner asserts that if these

witnesses had come in person at trial, he would have been able to confront and crossexamine them, and proper cross-examination would have revealed that Dr. Escobar’s

testimony concerning his internal examination (noting a small amount of bleeding)

conflicted with the findings of the FDLE DNA expert, Ms. Hickman (finding only semen

and no blood). Id. at 16.

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As Respondent points out, Petitioner Boone presented this ground as the fourth

claim in his state Rule 3.850 motion. See Doc. 26 Ex. V at 12-14. The state postconviction trial court denied the claim, making the following findings: 

Defendant alleges ineffective assistance of counsel for failure to

object to the State’s improper introduction of evidence that was not

corroborated by sworn testimony, including computer-enhanced

electropherograms of DNA profiles prepared by FDLE and medical charts

and diagrams prepared by Dr. Escobar and Nurse Soskis, who were not

present at trial. As to the DNA tests and diagrams, this claim is refuted by

the record, which shows that Valicia Hickman, crime laboratory analyst at

FDLE and the person who conducted the DNA testing and prepared the

diagrams used to illustrate her findings, testified at trial. Exh. 1, pp. 240-

89. To the extent the claim relates to allegations regarding Dr. Escobar

and Nurse Soskis, the Court orally denied the claim at the evidentiary

hearing.

Doc. 26 Ex. Z at 49. The state post-conviction trial court’s rulings, affirmed on appeal

without opinion, are entitled to AEDPA deference and are supported by the record. See

28 U.S.C. § 2254(d); Harrington, 131 S.Ct. at 784-85 (2011); Wright, 278 F.3d at 1255

(11th Cir. 2002). 

In particular, similar to the analysis of Ground 3, supra, the trial transcript

supports the state post-conviction court’s findings regarding Ms. Hickman, the FDLE

crime laboratory analyst. In addition to testifying about how she performed the DNA

testing and the results thereof, Ms. Hickman testified at the trial regarding the charts

she had prepared, entered into evidence as exhibits in the case. Doc. 26 Ex. N1 at

258-80. Further, similar to the analysis of Ground 1, the record supports the state

court’s findings regarding Dr. Escobar and Nurse Soskis, whose depositions were

admitted, with no objection, as perpetuated testimony together with the “sexual assault

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management form testified to by Nurse Soskis and Dr. Escobar,” and “the sexual

assault information sheet also testified to by both witnesses,” and “the Tallahassee

Memorial Healthcare Emergency Room Chart for [the victim] that was testified to by Dr.

Escobar.” Doc. 26 Ex. N1 at 218-19. As discussed in the analysis of Ground 1,

although Boone was not present for these depositions, his attorney appeared and

cross-examined the witnesses and, even if not having Boone present for the

depositions constituted deficient performance by defense counsel, Boone suffered no

prejudice given all the other evidence presented by the State. 

The record supports the state court’s rulings. Boone has not shown those

rulings rejecting this IAC claim resulted in a decision that was either (1) contrary to, or

involved an unreasonable application of, clearly established U.S. Supreme Court

precedent, or (2) based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(1)-(2). 

This ground should be denied. 

Ground 6: IAC – Failure to Object and Request Frye Hearing 

In his sixth ground, Petitioner Boone asserts that trial counsel rendered

ineffective assistance by failing “to object, and move the court for a ‘Frye Hearing’ after

Prosecution offer[ed] expert witness Valicia Hickman[’s] testimony that the DNA

evidence on vaginal swab taken from victim match[ed] Petitioner[’s] genetic type, and

her opinion that such match would occur, without Mrs. Hickman’s qualification to give

expert opinion in the error of population.” Doc. 10 at 5e. Boone asserts that if counsel

had objected and moved for a Frye hearing “to determine whether: (1) the polymerase

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chain reaction (PCR) DNA testing method employed by State’s expert met the Frye test

for admissibility at trial; (2) whether the state’s expert witness V. Hickman qualified as

an expert regarding the probability calculations, Petitioner would have had the

opportunity to call his own statistician or population geneticist to challenge the State’s

evidence regarding general acceptance in the scientific community of the calculation

techniques employed.” Id. at 5f.

In its answer, Respondent asserts that Petitioner submitted a substantially

similar claim to the state post-conviction trial court as the sixth ground in his Rule 3.850

motion. Doc. 26 at 42. Respondent explains the state court denied relief, Petitioner

appealed, and the First DCA per curiam affirmed the state post-conviction trial court’s

order. Id. at 42-43. Respondent asserts the state court properly found, as a matter of

law, that Hickman was qualified as a DNA expert and that population genetic frequency

evidence has long been generally accepted in the scientific community. Id. at 45. 

Respondent asserts that if defense counsel had objected, such objections would have

been overruled. Id. at 46. 

In reply, Petitioner essentially restates his argument. See Doc. 32 at 20-21. 

Petition argues the State failed to show “complete details of the State expert witness

Mrs. Hickman’s calculation method, which made it impossible to evaluate whether the

method Mrs. Hickman used to calculate the State’s population frequency statistics,

along with her qualification to satisfy Frye test.” Id. at 21. 

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As Respondent points out, Petitioner Boone presented this ground as the sixth

claim in his state Rule 3.850 motion. See Doc. 26 Ex. V at 15-16. The state postconviction trial court denied the claim, making the following findings: 

Defendant claims counsel was ineffective for failing to object to the

testimony of State DNA expert witness Valicia Hickman and failing to

move for a Frye hearing regarding Ms. Hickman’s testimony. The record

shows Ms. Hickman testified as to her qualifications and methods and the

Court ruled that she could proceed as an expert. Exh. 1, pp. 240-43. 

There was no basis for counsel to move for a Frye hearing because such

hearings are necessary only when a party seeks to introduce new and

novel scientific evidence, and population genetic frequency evidence has

long been generally accepted in the scientific community. McDonald v.

State, 952 So. 2d 484, 495-96 (Fla. 2007). Counsel cannot be held

ineffective for failing to file a nonmeritorious motion.

Doc. 26 Ex. Z at 49-50. The state post-conviction trial court’s rulings, affirmed on

appeal without opinion, are entitled to AEDPA deference and are supported by the

record. See 28 U.S.C. § 2254(d); Harrington, 131 S.Ct. at 784-85 (2011); Wright, 278

F.3d at 1255 (11th Cir. 2002). 

In particular, similar to Grounds 3 and 4, the trial transcript supports the state

post-conviction court’s findings regarding Ms. Hickman. She testified regarding her

education, employment, and previous qualification to testify as an expert in DNA

testing. Doc. 26 Ex. N1 at 240-43. “Under Florida law, a Frye hearing is utilized to

determine if an expert scientific opinion is admissible” as “[s]uch opinion must be based

on techniques that have been generally accepted by the relevant scientific community

and found to be reliable.” Zack v. State, 911 So. 2d 1190, 1197-98 (Fla. 2005); see

Frye, 203 F. - at 1014. A Frye hearing is not required for admissibility of an expert

scientific opinion unless the science is “new or novel.” Zack, 911 So. 2d at 1198. The

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Florida Supreme Court has taken “judicial notice that DNA test results are generally

accepted as reliable in the scientific community, provided that the laboratory has

followed accepted testing procedures that meet the Frye test to protect against false

readings and contamination.” Hayes v. State, 660 So. 2d 257, 265 (Fla. 1995). 

Further, Florida courts have explained that “the PCR method of DNA testing is now

generally accepted by the scientific community and is not subjected to Frye testing.” 

Zack, 911 So. 2d at 1198 n.3; see Doc. 26 Ex. N1 at 245 (testimony of Hickman

explaining her testing: “I then copy that DNA hundreds of millions of times and put it on,

which is called PCR, Polymerase Chain Reaction, then that sample is placed on a

genetic analyzer instrument, which will allow me to hook to a computer and allows me

to actually view the DNA profile.”). Florida courts have explained the STR method, a

subtype of PCR testing, is also generally accepted by the relevant scientific community.

Lemour v. State, 802 So. 2d 402, 406 and n.5 (Fla. 3d DCA 2001); see Doc. 26 Ex. N1

at 244 (testimony of Hickman explaining her testing: “We perform STR DNA testing and

that stands for Short Tandem Repeat.”). As referenced above, Ms. Hickman testified

extensively concerning the testing and analysis procedures. Doc. 26 Ex. N1 at 244-80. 

Where, as here, a Frye hearing was not necessary to determine the admissibility of the

expert opinion, counsel cannot be deficient for failing to request such hearing. See

McDonald v. State, 952 So. 2d 484, 495-96 (Fla. 2006) (“The circuit court stated that at

the time of McDonald’s 1995 trial, there was a general acceptance in the scientific

community for forensic population genetics to permit Agent Vick’s testimony, including

his population frequency testimony. We find no error in the trial court’s conclusion that

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trial counsel was not ineffective for failing to request a Frye hearing.”). See also, e.g.,

Mack v. Buss, No. 11-61328-CIV, 2011 WL 6102881 at *4 (S.D. Fla. Dec. 7, 2011)

(order adopting report of magistrate judge denying § 2254 petition and explaining,

among other things, DNA evidence is not new or novel and such evidence is “generally

accepted in Florida as long as the testing procedures were properly conducted” and,

although petitioner “alleges that there were faulty testing procedures in his case, he fails

to identify what procedures were faulty or how they affected the test results”).

Boone has not shown the state courts’ rulings rejecting this IAC claim resulted in

a decision that was either (1) contrary to, or involved an unreasonable application of,

clearly established U.S. Supreme Court precedent, or (2) based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceeding. See 28 U.S.C. § 2254(d)(1)-(2). This ground should be denied. 

Ground 5: Prosecution Intentionally Withheld Evidence

In his fifth and remaining grounds, Petitioner Boone asserts claims of trial court

error. Specifically, in Ground 5, Boone argues “the Prosecution willfully and

intentionally thwart[ed] the Petitioner in his preparation of defense by withholding

favorable evidence,” specifically DNA evidence reports from FDLE, electropherograms

of DNA profiles, and photographs of Petitioner’s arrest, and if this evidence had “been

disclosed in a timely manner, would have allowed the defense to investigate and make

timely objections of the evidence.” Doc. 10 at 5d. Boone asserts that, by “withholding

this evidence until the eve of trial,” the prosecution “effectively and conveniently denied

the Petitioner his right to challenge the evidence through pre-trial ‘motion to suppress.’” 

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Id. Boone asserts he “was denied his right to challenge any of the DNA evidence prior

to trial without asking for a continuance.” Id. at 5e. 

In its answer, Respondent indicates that Petitioner submitted this claim to the

state post-conviction trial court as the fifth ground, alleging prosecutorial misconduct, in

his Rule 3.850 motion. Doc. 26 at 35. Respondent explains after the state court denied

relief without reaching the merits, Petitioner appealed that order and stated in his brief

that “[t]he trial court is correct in its denial of ground five” but he should have had the

opportunity to correct the deficiency pursuant to Spera v. State, 971 So. 2d 754 (Fla.

207); the First DCA per curiam affirmed the state post-conviction trial court’s order. Id.

at 35-36. Respondent asserts that this claim, having been rejected by the state court

as procedurally barred under state law, is not exhausted. Id. at 37. Respondent further

asserts that, because Boone cannot now return to state court to exhaust this claim, it is

procedurally defaulted. Id. at 38-39. Respondent also asserts that even if Boone

presented sufficient claims to excuse the procedural default, he is not entitled to relief

because he has not shown cause, something external to Petitioner, that prevented him

from raising the claim. Id. at 39-40. Respondent explains that Boone was granted

leave to file a pro se Initial Brief in his direct (Anders) appeal and he did so, but he did

not raise this claim. Id. at 40. Moreover, Boone has not asserted a claim of actual

innocence. Id. at 41. Therefore, Respondent maintains this ground should be denied. 

Id. at 41-42. 

In reply, Boone restates his argument. Doc. 32 at 19-20. Boone “maintains his

argument that was argued in his Initial Brief” and his § 2254 petition. Id. at 20.

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As Respondent points out, Petitioner Boone presented this ground as the fifth

claim in his state Rule 3.850 motion. See Doc. 26 Ex. V at 14-15. The state postconviction trial court denied the claim, making the following findings: 

Defendant alleges prosecutorial misconduct because the State

withheld evidence favorable to the defense until days before the

commencement of trial, thus preventing Defendant from challenging the

evidence through a motion to suppress. Claims of prosecutorial

misconduct are not cognizable in a motion for postconviction relief filed

pursuant to Florida Rule of Criminal Procedure 3.850. Johnson v. State,

985 So. 2d 1215 (Fla. 1st DCA 2008).

Doc. 26 Ex. Z at 49. The court thus denied the claim on a state procedural basis, that

the claim could have been raised on direct appeal and is not cognizable in a collateral

post-conviction motion. See Johnson, 985 So. 2d at 1215. The First DCA affirmed the

order on appeal without an opinion and is presumed to have affirmed the procedural

bar. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“[W]here, as here, the last

reasoned opinion on the claim explicitly imposes a procedural default, we will presume

that a later decision rejecting the claim did not silently disregard that bar and consider

the merits.”). The state courts’ rejection of this claim, therefore, was based on an

independent and adequate state ground of procedural bar. See, e.g., Philmore v.

McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (“Florida law bars claims in a state postconviction proceeding that could have been raised on direct appeal.”). Boone has not

established cause for this default and prejudice resulting therefrom, or a fundamental

miscarriage of justice. See, e.g., Tower v. Phillips, 7 F.3d 206, 210-11 (11th Cir. 1993);

see also, e.g., Bell v. Sec’y, Fla. Dep’t of Corr., No. 5:11cv411-MP/EMT, 2013 WL

5436719 at *11-12 (N.D. Fla. Sept. 27, 2013). This ground should be denied. 

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Ground 7: Erroneous Admission of Similar Fact Evidence

In his seventh ground, Boone asserts the state trial court abused its “judicial

authority in allowing the similar fact evidence of other crimes, wrongs, or acts to be

introduced at trial, in violation of the Petitioner’s state and federal constitution[al] rights.”

Doc. 10 at 6b (labeled as “GROUND ONE” in pages attached to second amended

§ 2254 petition). Boone argues the evidence the State used “was inadmissible

because the only relevancy was solely to prove bad character of the Petitioner.” Id.

In its answer, Respondent asserts federal habeas relief cannot be issued based

on perceived state law errors. Doc. 26 at 49. Respondent asserts Petitioner’s sole

basis for seeking exclusion of the subject evidence was state evidentiary law, and no

federal claim was ever presented to the state trial court. Id. at 50. Respondent points

out that Boone raised this point in his pro se Initial Brief, cited only Florida evidentiary

law, and nothing in his brief “place[d] the state appellate court on alert that he was

alleging a ‘violation of the Constitution or laws or treaties of the United States.’” Id. at

51. Thus, Respondent concludes Petitioner has not exhausted this ground and,

because he cannot now return to state court, it is procedurally defaulted. Id. at 53. 

Respondent further maintains that because Petitioner has not alleged cause and

prejudice or actual innocence to excuse the default, he is barred from raising it now. Id.

at 53-54. Respondent also argues that, even if Boone presented claims to excuse his

procedural default, he is not entitled to relief because he has not shown cause,

something external to Petitioner, that prevented him from raising the claim. Id. at 54. 

Respondent explains that Boone was granted leave to file a pro se Initial Brief in his

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direct (Anders) appeal and he did so, but he did not raise this claim: “Petitioner cannot

establish cause because articulation of this claim of error in the admission of evidence

at trial in both the state trial and appellate courts as one involving the denial of a right

under the Federal Constitution was matter entirely within Petitioner’s control; hence,

there is no external impediment.” Id. Moreover, Boone has not asserted a claim of

actual innocence. Id. at 55. Therefore, Respondent maintains this ground should be

denied. Id. 

In reply, Petitioner Boone asserts “Respondent’s assessment is incorrect and

misleading.” Doc. 32 at 22. Boone argues this claim was fairly presented “to the state

circuit court by referring to due process and citing state cases employing constitutional

analysis, quoting the (Williams Rule).” Id. 

Under Florida law, similar fact evidence of other crimes, called Williams Rule

evidence, “is admissible when relevant to prove a material fact in issue,” such as

motive, intent, preparation, or plan. Fla. Stat. § 90.404(2)(a); Williams v. State, 110 So.

2d 654 (Fla. 1959); Lamontagne v. Sec’y, Dep’t of Corr., 433 F. App’x 746, 749 (11th

Cir. 2011). In this case, the State filed a Notice of Intent to Introduce Similar Fact

Evidence of Other Crimes, Wrongs, or Acts, including allegations that Boone had, a few

days before the incident giving rise to the charges against him, approached the victim

and neighbors of the victim with similar inquiries and offers to cut trees and grass,

requests to use the phone, as well as a statement by Boone to one of the neighbors

that “maybe a ‘ride on his pole’ would fix her” medical condition. Doc. 26 Ex. H. This

motion cites only Florida statutes. Id. In response, Boone’s trial counsel filed a motion

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in limine seeking to preclude the State from introducing this evidence. Id. Ex. I. This

motion also cites only Florida statutes. Id. The trial court held a hearing on the motion

on May 22, 2006. Id. Ex. J. At the hearing, the parties cited only state case law and

statutes. Id. The prosecutor indicated she wanted to use the evidence to prove identity

and modus operandi. See id. at 5, 10-14. The defense argued the evidence “is

inadmissible under [Florida Statute 90.]404(2)(a) because the State is moving to enter it

into evidence solely to prove bad character or propensity.” Id. at 5. The trial court

denied the defense motion. Id. at 14. 

As indicated above, on direct appeal, Boone’s counsel filed an Anders brief. 

Although Boone filed a pro se appellate brief challenging the trial court’s admission of

this evidence, as in the trial court, he cited only state law in support of his point. See

Doc. 26 Ex. T. Thus, as Respondent indicates, Boone did not exhaust this claim as

one alleging a federal constitutional violation, and Boone has not alleged or shown

cause for the default and actual prejudice, nor has he alleged or shown actual

innocence or a fundamental miscarriage of justice. See Doc. 26 at 53-55. 

Further, as Respondent also indicates, this ground alleges a claim of state law

error, specifically a state trial court evidentiary ruling. “[F]ederal habeas corpus relief

does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that errors that do not infringe

on defendant’s constitutional rights provide no basis for federal habeas corpus relief).

“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.” Carrizales v.

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Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983); accord, e.g., McCullough v.

Singletary, 967 F.2d 530, 535 (11th Cir. 1992). “Indeed, the general rule is that a

federal court will not review a trial court’s actions with respect to the admission of

evidence.” Shaw v. Boney, 695 F.2d 528, 530 (11th Cir. 1983). “A state evidentiary

violation in and of itself does not support habeas corpus relief” and “[b]efore such relief

may be granted, the violation must rise to the level of a denial of ‘fundamental

fairness.’” Id.; see Jacobs v. Singletary, 952 F.2d 1282, 1296 (11th Cir. 1992) (“We

review state court evidentiary rulings on a petition for habeas corpus to determine only

‘whether the error, if any, was of such magnitude as to deny petitioner his right to a fair

trial.’ . . . Erroneously admitted evidence deprives a defendant of fundamental fairness

only if it was a ‘crucial, critical, highly significant factor’ in the [defendant’s] conviction.”

(citations omitted)); Link v. Tucker, 870 F. Supp. 2d 1309, 1324-30 (N.D. Fla. 2012)

(district court order adopting magistrate judge’s report and recommendation to deny

§ 2254 petition alleging, among other things, state trial court abused its discretion by

admitting evidence of petitioner’s prior conduct). 

A review of the record reflects that admission of the challenged evidence in this

case does not appear erroneous under Florida state law. See Doc. 26 Ex. J at 10-13;

§ 90.404(2)(a), Fla. Stat. (2005); see, e.g., Durousseau v. State, 55 So. 3d 543, 552

(Fla. 2010) (“[W]e hold that the collateral crime evidence did exhibit unique similarities

that established a modus operandi sufficient for proving identity. Pursuant to section

90.404(2)(a), evidence of other crimes, acts or wrongs is admissible to prove identity.”);

Buenoano v. State, 527 So. 2d 194, 197 (Fla. 1988) (“Under the Williams rule evidence

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of other crimes, wrongs and acts is admissible if it is relevant to and probative of a

material issue even though the evidence may indicate the accused has committed other

uncharged crimes or may otherwise reflect adversely upon the accused’s character. 

Section 90.404(2)(a), Florida Statutes, (1983), codifies the ruling in Williams v. State

and lists the purposes for which such evidence is deemed to be admissible: proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.”). Moreover, even if erroneous, such admission did not deprive

Boone of a fundamentally fair trial, as the State presented far more powerful evidence

of Boone’s guilt, including the victim’s identification, shoeprint evidence, and DNA

evidence.

Finally, Boone has pointed to no U.S. Supreme Court precedent holding that the

admission of this type of prior act evidence in these circumstances violates the federal

constitutional guarantee of due process and a fair trial. See Link, 870 F. Supp. 2d at

1328-29. Therefore, he has not shown the state court’s rejection of his claim, assuming

it was fairly presented, was contrary to or an unreasonable application of clearly

established federal law. See id. This ground should be denied. 

Ground 8: Denial of Motions to Withdraw and Request for DNA Expert

In his eighth and final ground, Petitioner Boone asserts the state trial court

abused its “judicial authority in denying trial counsel[‘’s] and [Petitioner’s] pro se motion

to withdraw, and verbal request for the appointment of DNA expert, in violation of the

Petitioner’s state and federal constitution[al] rights.” Doc. 10 at 6c (labeled as

“GROUND TWO” in pages attached to second amended § 2254 petition). Boone

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explains that “[t]his issue is not to argue Mr. Dombrowsky[’s] ineffectiveness, the issue

is to focus of a conflict created between the Petitioner and counsel.” Id. at 6d. Boone

asserts the conflict with counsel was brought to the trial court’s attention in mid-March

2006 when defense counsel refused to interview or investigate defense witnesses or

seek appointment of a DNA expert. Id. 

In its answer, Respondent indicates Petitioner presented these claims of trial

court error in the second point raised in his pro se Initial Brief filed on direct appeal. 

Doc. 26 at 55. Respondent explains the alleged errors occurred first with the trial

court’s denial of both Petitioner’s pro se “Motion to Dismiss [Counsel]” and his pro se

request for appointment of a DNA expert at a hearing on April 24, 2006, and then with

the court’s subsequent denial of defense counsel’s “Motion to Withdraw as Court

Appointed Counsel” filed May 10, 2006.” Id. at 55-56. Respondent indicates that

defense counsel Dombrowsky testified at the evidentiary hearing that the state trial

court held a hearing pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973),

on April 24, 2006, prompted by Boone’s pro se motion to dismiss counsel. Id. at 56. 

Respondent explains that, other than a motion to discharge counsel, a pro se pleading

is deemed a nullity as a matter of Florida law; for this reason, the state trial court denied

Boone’s pro se motion to appoint a DNA expert. Id. at 57-58. Respondent asserts that

state law formed the basis of both the trial court’s denial of the pro se motion to

discharge counsel and the denial of the pro se motion to appoint a DNA expert, and

federal habeas relief cannot be issued based on perceived errors of state law. Id. at

59-60. Respondent further asserts that, as to the state trial court’s denial of defense

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counsel’s motion to withdraw, Boone is also not entitled to relief. Id. at 61-65. 

Respondent explains that, as the state trial court knew the basis of the conflict between

Boone and defense counsel concerned trial preparation and strategy, that court’s denial

of the motion to withdraw was not “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 65 (quoting Harrington v. Richter, 131 S.Ct. 770, 787 (2011)). 

Respondent concludes, therefore, this ground should be denied.

In reply, Boone “maintains his argument in his amended Initial Brief, DCA case

No. 1D06-2900, that he has not been afforded his right under the due process clause in

that when trial court denied trial counsel’s motion to withdraw as counsel because of an

actual conflict of interest, and refused to appoint defense DNA expert.” Id. at 23-24. 

Boone indicates that defense counsel spoke with the Ethics Counsel as The Florida Bar

and independent counsel, both of whom advised defense counsel that he should

withdraw. Id. at 24. 

To the extent this ground concerns defense counsel’s decision not to obtain a

DNA expert, such decision was reasonable trial strategy and did not constitute IAC, as

explained in the analysis of Ground 3, supra. To the extent this ground challenges the

trial court’s denial of Boone’s request to discharge his court-appointed attorney and

counsel’s motion to withdraw, this ground alleges claims of state law error. As

explained in the analysis of Ground 7, supra, “federal habeas corpus relief does not lie

for errors of state law,” Lewis, 497 U.S. at 780, and “[a] state’s interpretation of its own

laws or rules provides no basis for federal habeas corpus relief, since no question of a

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constitutional nature is involved,” Carrizales, 699 F.2d at 1055. This ground should be

denied. See, e.g., Mundy v. Sec’y, Dep’t of Corr., No. 5:11cv71-RH/GRJ, 2014 WL

1254088 at *1, *9 (N.D. Fla. Mar. 26, 2014) (order denying § 2254 petition and adopting

magistrate judge’s report and recommendation’s treatment of petitioner’s challenge to

state courts’ rulings regarding effort to discharge court-appointed attorney: “Petitioner’s

Nelson claim challenges the application of state law. It does not raise a federal

constitutional claim and therefore is not cognizable in federal habeas review.”). 

 Conclusion

For the reasons stated above, Boone has not shown entitlement to federal

habeas corpus relief. Accordingly, the second amended § 2254 petition (Doc. 10)

should be denied. 

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the U.S. District

Courts provides that “[t]he district court must issue or deny a certificate of appealability

when it enters a final order adverse to the applicant,” and if a certificate is issued “the

court must state the specific issue or issues that satisfy the showing required by 28

U.S.C. § 2253(c)(2).” Rule 11(b) provides that a timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. 

Petitioner cannot make a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)

(explaining how to satisfy this showing) (citation omitted). Therefore, the Court should

deny a certificate of appealability in its final order. Leave to appeal in forma pauperis

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should also be denied, as an appeal would not be taken in good faith. See Fed. R. App.

P. 24(a)(3)(A) (providing that before or after notice of appeal is filed, court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis). 

The second sentence of Rule 11(a) provides that "[b]efore entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue." Petitioner shall make any argument as to whether a certificate should

issue by filing objections to this report and recommendation.

Recommendation

It is therefore respectfully RECOMMENDED that the second amended § 2254

petition for writ of habeas corpus (Doc. 10) be DENIED, a certificate of appealability be

DENIED, and leave to appeal in forma pauperis be DENIED. The Clerk shall substitute

Michael D. Crews for Kenneth S. Tucker as Respondent. 

IN CHAMBERS at Tallahassee, Florida, on May 20, 2014.

s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within fourteen (14) days after being served with a copy of this

report and recommendation. A party may respond to another party's objections

within fourteen (14) days after being served with a copy thereof. Failure to file

specific objections limits the scope of review of proposed factual findings and

recommendations.

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