FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 31, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11658

________________________

D. C. Docket No. 03-00668-CV-J-32

JOHN D. FREEMAN,

Petitioner-Appellant, 

versus 

ATTORNEY GENERAL, STATE OF FLORIDA,

SECRETARY, DEPT. OF CORRECTIONS, 

Respondents-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 31, 2008)

Before BLACK, HULL and PRYOR, Circuit Judges.

BLACK, Circuit Judge:
2

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

Petitioner-Appellant John Freeman contends the State of Florida, through its

State’s Attorneys, impermissibly chose to pursue a capital sentence not because of

the severity of his crimes, but because he is white and the victims of his crime

were black. Freeman argues that by doing so the State violated his rights under

the Eighth and Fourteenth Amendments, and that by failing to object to the State’s

actions during trial and sentencing, his defense counsel violated his rights under

the Sixth Amendment. 

After holding an evidentiary hearing on Freeman’s allegations, the state trial

court made a finding of fact that the State had not considered Freeman’s race or

the race of his victims when it decided to pursue a capital sentence against him. 

Relying on that finding, which was supported by the testimony of witnesses and

was not unreasonable in light of the record, the federal district court denied

Freeman’s petition. The district court did not err in denying the petition;

therefore, we affirm.

I. BACKGROUND 

A. The Crimes

On the morning of October 20, 1986, John Freeman climbed through a

window into the home of Alvin Epps. Once inside, Freeman stabbed Epps to
3

death and ransacked the house in a search for valuables, stealing various items,

including a camera, clothing, and jewelry. See Freeman v. State, 547 So. 2d 125,

126-27 (Fla. 1989). Freeman was not immediately apprehended. 

Twenty-two days later, on November 11, 1986, Freeman committed a

second burglary. This time, Leonard Collier arrived home to find Freeman

standing inside the front door of his home. Freeman v. State, 563 So. 2d 73, 75

(Fla. 1990). In an attempt to prevent Freeman from escaping, Collier pulled a gun. 

Freeman v. State, 761 So. 2d 1055, 1058 (Fla. 2000). The two men tussled over

the weapon, stumbling into Collier’s front yard as they did so. Freeman, 563 So.

2d at 75. In the course of their struggle, the gun discharged, though it did not hit

either man. Id. Eventually, Freeman wrested the gun from Collier and hit him

over the head with it approximately twelve times as Collier tried to crawl to safety. 

Id. Freeman then fled the scene. Id.

Meanwhile, Collier’s neighbor, Harold Hopkins, had heard the gunshot and

looked across the street to see a man repeatedly striking Collier on the head. Id.

Hopkins telephoned police, who arrived shortly thereafter and obtained statements

from both Collier and Hopkins. Id. Police located Freeman a short time later,

hiding under a nearby boat dock. Id. Hopkins identified Freeman, and Freeman
4

later confessed to the burglary and to hitting Collier with the gun. Id. Collier died

several hours later from profuse bleeding from his head wounds. Id. 

B. Trial Proceedings

Freeman was charged in two separate cases for the deaths of Epps and

Collier. Before trial was scheduled in either case, Freeman’s lawyer contacted the

prosecutor in charge of the case to discuss a plea agreement in which Freeman

would plead guilty to both murder charges in exchange for two consecutive life

sentences with mandatory minimum 25 year terms. The state attorney’s office

rejected the offer and insisted on proceeding to trial on both cases, seeking a

capital sentence in each. 

Following a jury trial in the Collier case, Freeman was convicted of first

degree felony murder. After hearing evidence of aggravating and mitigating

factors, the jury recommended a capital sentence by a vote of nine to three. The

trial judge imposed a sentence of death.

C. Direct Appeal and Post-conviction Proceedings

After the Florida Supreme Court affirmed his conviction on direct appeal,

Freeman, 563 So.2d 73, Freeman filed a petition for post-conviction review under

Fla. R. Crim. P. 3.850. In his petition, Freeman contended for the first time that

the State’s decision to seek the death penalty was based upon impermissible racial
5

considerations in violation of his rights under the Eighth and Fourteenth

Amendments, and that his trial counsel’s failure to object to the State’s alleged

consideration of his race violated his Sixth Amendment right to the effective

assistance of counsel. (See Rule 3.850 Motion, Dist. Ct. Dkt. #14, Exh. 60, at 130-

31; see also Freeman, 761 So. 2d at 1060-61 n.2 (listing claims raised in

Freeman’s amended Rule 3.850 motion).) 

In his Rule 3.850 motion, Freeman alleged: 

Mr. Freeman offered to enter guilty pleas in both [the Epps and

Collier] cases . . . in exchange for a life sentence. This offer was

rejected by the State, however, because the State Attorney’s Office

wanted to “get the numbers up” on seeking the death penalty in

homicides involving white defendants and black victims.

(Rule 3.850 Motion, Dist. Ct. Dkt. #14, Exh. 60, at 129; see also Freeman, 761

So. 2d at 1068.) The trial court denied Freeman’s motion in its entirety without

conducting an evidentiary hearing on any of Freeman’s claims. (See Freeman,

761 So. 2d at 1060.)

On appeal from the denial of the Rule 3.850 motion, the Florida Supreme

Court held the trial court had erred by denying Freeman’s motion without a prior

evidentiary hearing. (Id. at 1068.) Noting it would violate the equal protection

clause to consider race as a factor in seeking the death penalty (and implicitly

suggesting it would therefore be deficient for counsel not to object to such a
6

consideration), the court remanded the case for further factual development at an

evidentiary hearing. (Id.) 

1. Evidentiary hearing

On July 16-17, 2001, the state trial court held a hearing on Freeman’s Rule

3.850 motion, during which it heard testimony from Patrick McGuiness and Ann

Finnell (Freeman’s trial lawyers), John Bradford Stetson (the lead prosecutor on

the Collier and Epps cases), and Ed Austin (the former State Attorney who

supervised Freeman’s cases), among others.

a. Protocol for Capital Prosecutions

The testimony revealed that the State Attorney’s Office had an established

protocol for determining when to pursue the death penalty in murder cases. When

a lead prosecutor identified a potential capital case, the prosecutor would present

the case to a “Homicide Committee,” comprised of a panel of prosecuting state

attorneys. (7/16/01 Hr’g Trans. at 43:12-18.) These attorneys would review the

case and, when appropriate, recommend that a capital sentence be pursued. Any

time the committee recommended a case for capital prosecution, it was required to

obtain Austin’s personal approval before moving forward with the prosecution. 

Stetson testified that he brought Freeman’s case to the attention of the

Homicide Committee because Freeman had committed two separate murders,
 McGuiness recounted that, at the time of the plea negotiations, the Supreme Court was 1

considering McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756 (1987), a case in which a black

defendant was challenging the constitutionality of the death penalty on the ground that statistical

studies showed blacks who killed white victims were disproportionately more likely to be

sentenced to death than whites who killed black victims. See id. at 282-87, 107 S. Ct. at 1762-

64.

7

killing both individuals in their homes. (Id. at 19:19-24.) The Committee voted

unanimously to recommend a capital sentence (id. at 24:22-25:15), and Austin

approved the decision (id. at 25:15-18).

b. Plea offer

According to the testimony of Freeman’s lead counsel, Patrick McGuiness,

sometime before Freeman was tried in either the Epps or Collier cases, McGuiness

approached Stetson about the possibility of a plea deal, in which Freeman would

plead guilty to both murders in exchange for consecutive non-capital sentences. 

McGuiness recalled that Stetson rejected the offer because the State needed to get

“get their numbers up on whites killing blacks.” (Id. at 90:11-91:6.) McGuiness

1

took no action regarding the conversation because he “had never encountered it

before and . . . didn’t really know what vehicle [he] could use to address it.” (Id.

at 91:13-15.)

Stetson did not deny rejecting Freeman’s plea offer, but remembered the

situation differently. Stetson testified when McGuiness proposed a plea deal, he

rejected it on the ground that the aggravating factors in Freeman’s case warranted
8

a capital sentence. Additionally, unable to “resist the opportunity to throw a little

bit more in there,” he replied, “Not only is the answer no, but if I were to agree to

this . . . [y]ou would use that decision against the State in every other death

penalty case where the defendant was black, using this as an example of the case

where we should have sought the death penalty but didn’t because the defendant

was white and killed two African Americans.” (Id. at 17:22-24; 18:9-10, 25; 19:1-

5.) 

When asked whether race ever factored into his decision to seek the death

penalty in any given case, Stetson testified he never pursued a capital sentence

because of race. He was conscious of public perceptions of his office and made

choices “in a fair and neutral manner,” without giving preference to individual

defendants based upon racial considerations. (See id. at 38:25-39:1.) Austin

corroborated Stetson’s testimony, stating that race had “nothing to do with the

decision to file and prosecute . . . a homicide as a first degree murder case.” (Id. at

47:24-48:1.) That decision, he testified, was made “on the basis of the law, and

. . . on the basis of the facts . . . .” (Id. at 48:1-2.)

2. Post-conviction order and appeal

Following the evidentiary hearing, the trial judge issued an order in which

he found:
9

The testimony of [the witnesses] established that as a result of the

strength of the State’s case as to the Collier murder, and the

likelihood of a death sentence in that case, [Defendant’s lead trial

counsel] McGuiness went to [Assistant State Attorney] Stetson and

proposed a plea agreement as to both murder cases, whereby the

defendant would plead guilty to both murders and be sentenced to

consecutive life sentences with 25 year minimum mandatory terms. 

The testimony established an awareness by counsel for the parties of

the then pending Federal litigation in which studies were used to

support an allegation that prosecutors were seeking the death penalty

disproportionally against black defendants. [Defense counsel] Ms.

Finnell and Mr. McGuiness testified that Mr. Stetson responded to the

defendant’s plea offer by stating that if he accepted the offer, counsel

for the defense would use that fact to support future allegations of

discriminatory application of the death penalty against black

defendants. 

Even assuming that Mr. Stetson responded to the defendant’s plea

offer as Mr. McGuiness indicated, this Court finds that the response

was nothing more than a somewhat ill-considered retort to then

existing allegations of racial discrimination in the application of the

death penalty by prosecutors (of an opposite nature to the instant

facts), and that the evidence not only failed to demonstrate a racially

motivated purpose in pursuing the death penalty in this case, but

rather, it demonstrated that the State Attorney’s Office did not pursue

the death penalty in this case based on the race of this defendant (who

is white).

State v. Freeman, No. 86-11599-CF, at 2-3 (Fla. 4th Cir. Ct. Jul. 24, 2001)

(located in record at Dist. Ct. Dkt. #14, Ex. #78). The court again denied

Freeman’s motion for post-conviction relief, finding that because the State had not
 For reasons that are not clear, the trial court referred to Freeman’s race-based 2

allegations as a single claim arising under the Due Process Clause. (See Freeman, No.

86-11599-CF, at 1-2 (“The defendant raised the due process allegation that the State improperly

used race as a motivating factor in deciding to pursue a death sentence in this case.”)). 

10

based its decision to seek a capital sentence on Freeman’s race, Freeman’s racebased claims necessarily failed.2

On appeal from the denial of his post-conviction motion, Freeman

continued to argue the State’s alleged consideration of his race had violated his

rights under the Sixth, Eighth, and Fourteenth Amendments. (See Appellant’s

Brief to Fla. Sup. Ct., Dist. Ct. Dkt. #14, Exh. 84, at 51-62.) The Florida Supreme

Court affirmed the denial of Freeman’s Rule 3.850 motion after concluding the

evidence supported the trial court’s finding that the State had not considered

Freeman’s race when deciding to pursue a capital sentence. Freeman v. State, 858

So. 2d 319, 324 (Fla. 2003).

D. Federal Habeas Petition

On December 29, 2004, Freeman filed a petition for a writ of habeas corpus

in the United States District Court for the Middle District of Florida, contending

his Sixth, Eighth, and Fourteenth Amendment rights were violated by the State’s

alleged consideration of his race. In response, the State argued (as it had to the

Florida Supreme Court) that Freeman had procedurally defaulted his Eighth and
11

Fourteenth Amendment claims by failing to raise them on direct appeal. The

district court observed that although Freeman’s race-based claims had been

described by the state courts as

an equal protection claim, a due process claim, an Eighth Amendment

claim and a Sixth Amendment claim, it has ultimately been addressed

as a claim alleging that “race was the motive behind the prosecutor’s

decision to seek the death penalty in this case.” Freeman, 858 So.2d

at 322. As an extension of this claim, Petitioner has asserted that

counsel was ineffective for failing to challenge this matter at trial,

resulting in an equal protection violation, a due process violation and

an Eighth Amendment violation.

(Freeman v. McDonough, No. 3:03-CV-668-J-32, at 34-35 (M.D. Fla. 2006).) 

Concluding the Florida Supreme Court had implicitly addressed the merits of all

three of Freeman’s race-based claims, the district court did the same and denied

the petition, concluding the state court’s finding that Freeman’s sentence was not

based on race was fatal to each of Freeman’s claims. (Id. at 37-38.) 

The district court later granted a certificate of appealability on “Ground II”

of the petition, which consisted of Freeman’s claim that the State’s alleged

consideration of his race violated his rights under the Sixth, Eighth and Fourteenth

Amendments. (Dist. Court Order dated Jul. 9, 2007, dkt. # at 1-2; see also Dist.

Court Order dated Oct. 23, 2006, at 2 (summarizing Freeman’s habeas claims).)
12

II. DISCUSSION

In his habeas petition, Freeman alleges the State of Florida impermissibly

considered race when deciding to pursue a capital sentence against him. Freeman

contends the State’s alleged misconduct in this regard violated his Fourteenth

Amendment right to equal protection and his Eighth Amendment right to be free

of arbitrary and capricious punishment. In addition, he contends his lawyer’s

failure to object to the State’s consideration of race violated his Sixth Amendment

right to effective assistance of counsel. 

A. Claims Now Before Us 

Before turning to the substance of Freeman’s claims, we must determine

which of those claims are properly before this court. When a state prisoner fails to

exhaust his federal claims in state court pursuant to independent and adequate

state procedural rules before bringing his habeas petition, “federal habeas review

of the claims is barred unless the prisoner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.

2546, 2565 (1991). As it did in both the state and district courts, the State urges us
13

to conclude Freeman procedurally defaulted his Eighth and Fourteenth

Amendment claims by failing to raise them on direct appeal. 

Freeman first raised his race-based Eighth and Fourteenth Amendment

claims in his motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850. 

Under Florida law, proceedings under Rule 3.850 may not be used as a second

appeal, and issues that “could have been, should have been, or were raised on

direct appeal” may not be raised in a later post-conviction motion, absent special

circumstances not present in this case. See Medina v. State, 573 So. 2d 293, 295

(Fla. 1990). By not raising his Eighth and Fourteenth Amendment claims on

direct appeal, Freeman procedurally defaulted those claims under state law and

would ordinarily be barred from seeking federal habeas review with respect to

those claims. 

There are several exceptions, however, to the general rule of procedural

default. When a state court ignores a procedural default and chooses to address

the merits of a defendant’s defaulted claims, for example, federal courts cannot

apply the procedural bar on the state’s behalf. See Peoples v. Campbell, 377 F.3d

1208, 1235 (11th Cir. 2004) (federal district court erred in invoking procedural

default that state court of criminal appeals had declined to follow); Davis v.

Singletary, 119 F.3d 1471, 1479 (11th Cir. 1997) (“It is settled that once the state
14

courts have ignored any procedural bar and rejected a claim on the merits—not in

the alternative but as the only basis of decision—that claim is not barred from

federal habeas review.”). 

The Florida Supreme Court’s opinion affirming the denial of Freeman’s

motion for post-conviction relief is less than clear with respect to its treatment of

Freeman’s Eighth and Fourteenth Amendment claims. The court analyzed

Freeman’s race-based allegations as a claim of ineffective assistance of counsel

and engaged in a traditional Strickland analysis. See Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052 (1984). At the same time, the court never rejected

Freeman’s Eighth or Fourteenth Amendment claims as procedurally barred and, as

the district court noted, the Florida Supreme Court summarized Freeman’s claim

in a way that suggested it understood he was raising both substantive Eighth and

Fourteenth Amendment claims (i.e. “a reverse McCleskey claim,” Freeman, 858

So. 2d at 323) and a separate ineffective assistance claim. Because the Florida

Supreme Court’s ruling can be read to reach the merits of Freeman’s Eighth and

Fourteenth Amendment claims, and because (as we discuss below) the state

court’s findings of fact definitively resolve all three of Freeman’s claims on the

same ground, we consider the merits of Freeman’s Sixth, Eighth, and Fourteenth

Amendment race-based claims. 
15

B. Merits of Freeman’s Habeas Claims 

Our review of the district court’s denial of Freeman’s habeas petition is

governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214 (1996). Under AEDPA, a federal court may

only grant habeas relief to a state petitioner if the state court’s decision on the

merits of the petitioner’s claims (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). Federal

habeas courts presume the state court’s factual findings are correct, unless the

petitioner rebuts the reasonableness of those findings by clear and convincing

evidence. Id. § 2254(e)(1).

After conducting a two-day evidentiary hearing on the allegations made in

Freeman’s state post-conviction motion, the state court made several key factual

findings:

1. Before Freeman was tried in either the Epps or Collier murders,

Freeman’s defense counsel approached Stetson, the lead prosecutor, and proposed

a plea agreement. 
16

2. At the time of the plea discussion, the parties were aware the Supreme

Court was deciding McCleskey, a case involving allegations that prosecutors were

seeking the death penalty disproportionately against black defendants. See 481

U.S. at 282-87, 107 S. Ct. at 1762-64. 

3. Assuming Stetson made the comments defense counsel attributed to him

(that, if the plea offer was accepted, counsel for the defense would use that fact to

support future allegations of discriminatory application of the death penalty

against black defendants), Stetson’s response was an “ill-considered retort to then

existing allegations of racial discrimination in the application of the death penalty

by prosecutors (of an opposite nature to the instant facts),” rather than proof of “a

racially motivated purpose in pursuing the death penalty in this case.” Freeman,

No. 86-11599-CF, at 2-3 (located in the record at Dist. Ct. Dkt. #14, Ex. #78). 

4. “[T]he State’s Attorney’s Office did not pursue the death penalty in

[Freeman’s] case based on the race of th[e] defendant. . . .” Id. at 3. 

With these facts in mind, we turn to Freeman’s constitutional claims.

Although prosecutors are vested with wide-ranging discretion, see Ball v. United

States, 470 U.S. 856, 859, 105 S. Ct. 1668, 1670 (1985), prosecutorial decisions

remain subject to “ordinary equal protection standards.” Wayte v. United States,

470 U.S. 598, 608, 105 S. Ct. 1524, 1531 (1985). 
17

[A]lthough prosecutorial discretion is broad, it is not unfettered. 

Selectivity in the enforcement of criminal laws is subject to

constitutional constraints. In particular, the decision to prosecute may

not be deliberately based upon an unjustifiable standard such as race,

religion, or other arbitrary classification.

Id. (quotations, citations, and ellipsis omitted). At the time the State decided to

pursue a capital sentence in Freeman’s case, the law of the Supreme Court was

clear: regardless the color of Freeman’s skin, race could play no role in the

decision to seek a capital sentence against him. 

In order to prove his Fourteenth Amendment equal protection rights were

violated by the State’s decision to seek the death penalty, Freeman was required to

prove the decisionmakers in his case “acted with discriminatory purpose” in

selecting his sentence. McCleskey, 481 U.S. at 292, 107 S. Ct. at 1767. As we

have just recounted, however, the state court made a finding of fact that the

prosecutors pursued a capital sentence because of the seriousness of Freeman’s

crimes—not because of his race. 

Freeman’s Eighth Amendment claim faces a similar obstacle. A state must

ensure that the discretion of its prosecutors is “suitably directed and limited so as

to minimize the risk of wholly arbitrary and capricious action.” Id. at 302, 107 S.

Ct. at 1772 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 2932

(1976)). If the State of Florida (acting through the State Attorney’s Office) failed
18

to “establish rational criteria [narrowing] the decisionmaker’s judgment as to

whether the circumstances of a particular defendant’s case meet the threshold” for

a capital sentence, it would violate the Eighth Amendment. Id. at 305, 107 S. Ct.

at 1774. However, Freeman does not challenge the well-organized, multi-tiered

process employed by the Florida State Attorney’s Office in determining whether to

pursue a capital sentence in any given murder case. Instead, Freeman argues

“[b]ased on the facts presented at the evidentiary hearing below, it is apparent that

. . . [t]he State’s selection of Mr. Freeman as a candidate for the death penalty was

based upon arbitrary factors unrelated to the circumstances of the offense or the

character of the defendant.” Petitioner-Appellant’s Brief, at 16-17. The problem

with that argument, of course, is that it is completely undermined by the state

court’s adverse factual finding. By specifically finding the State Attorney’s Office

did not pursue the death penalty in Freeman’s case based on his race, the state

court eliminated the factual basis for Freeman’s contention that his sentence was

arbitrary and capricious in violation of the Eighth Amendment. 

Freeman’s Sixth Amendment claim rests on his Eighth and Fourteenth

Amendment claims, and suffers from the same defect. To prevail on a claim of

ineffective assistance, a petitioner must establish two things: his trial counsel’s

performance was deficient and the deficient performance prejudiced the petitioner. 
19

See Gordon v. United States, 518 F.3d 1291, 1297 (11th Cir. 2008) (citing

Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. Freeman asserts his Sixth

Amendment right to counsel was violated when his trial lawyer failed to object to

the State’s alleged consideration of race during its decisionmaking process.

The first step in the ineffectiveness analysis is to determine whether defense

counsel’s performance was deficient; that is, whether counsel was unreasonable

under prevailing professional norms for failing to bring an Eighth or Fourteenth

Amendment challenge to Freeman’s capital sentence. See Stewart v. Sec’y, Dep’t

of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007). A lawyer cannot be deficient for

failing to raise a meritless claim, see Chandler v. Moore, 240 F.3d 907, 917 (11th

Cir. 2001); therefore, it follows that defense counsel’s failure to raise Eighth or

Fourteenth Amendment objections to Freeman’s sentence could be deficient only

if there were reason for objecting to the State’s exercise of its charging discretion. 

As we have already established, however, the state court found the prosecutors had

not improperly exercised their charging discretion because they did not consider

race as a factor in deciding to pursue a capital sentence. Consequently, there was

no misconduct to which Freeman’s counsel could reasonably object.

After a full evidentiary hearing, the state trial court rejected the factual

predicate underlying each of Freeman’s claims by finding state prosecutors had
20

not based their decision to seek a capital sentence on Freeman’s race. Freeman

has not demonstrated by clear and convincing evidence that the findings of the

state court were unreasonable in light of the evidence presented during the postconviction evidentiary hearing, see 28 U.S.C. § 2254(d)(2)-(e)(1), and those

findings (which are entitled to a presumption of correctness) are fatal to Freeman’s

constitutional claims. Because Freeman has failed to show he is in custody in

violation of the Constitution or laws of the United States, the district court

properly denied Freeman’s petition for habeas relief.

AFFIRMED.