Case: 12-12112    Date Filed: 07/28/2014    Page: 1 of 30


                                                                       [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 12-12112
                         ________________________

                 D.C. Docket No. 8:10-cv-00382-JSM-AEP



PERRY ALEXANDER TAYLOR,

                                                 Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                 Respondents - Appellees.

                         ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                               (July 28, 2014)

Before MARCUS, PRYOR, and JORDAN, Circuit Judges.

MARCUS, Circuit Judge:
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      In 1989, Perry Alexander Taylor was convicted of the grisly first-degree

murder and sexual battery of a thirty-eight-year-old woman. After trial, Taylor was

sentenced to death. He now appeals from the district court’s denial of habeas relief,

raising two guilt-phase claims: (1) whether the state trial court violated his due

process rights by excluding corroborative evidence proffered by the defense; and

(2) whether trial counsel rendered ineffective assistance of counsel by calling

Taylor to testify at trial and having him reenact the murder. After thorough review,

we also conclude that Taylor is not entitled to relief on either claim and,

accordingly, affirm.

                                           I.

                                           A.

      The essential facts are these. On October 24, 1988, Geraldine Birch’s

severely beaten body was found in the third-base dugout of the Belmont Heights

Little League field in Tampa, Florida. Taylor v. State, 

, 325 (Fla.

1991) (per curiam). Two drag marks on the ground of the dugout led to the

victim’s heels, which were covered in dirt. The victim’s dress was pulled up

around her neck. Law enforcement officers recovered her dentures, a wig, and

swatches of hair strewn near her corpse.

      Twenty-two-year-old Taylor had been at “the cut,” an alley near the baseball

field, around the time of the murder. When the police first interviewed Taylor as a


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witness, he told the officers he had not been to the Belmont field in over six weeks

and promised to listen for “street talk . . . concerning the offense.” In response to

the officers’ request, Taylor handed over the Adidas tennis shoes and the pair of

jeans he was wearing on the night of October 23rd. Law enforcement then matched

shoe prints discovered at the murder scene to the shoes Taylor had provided. Two

days later, the police interviewed Taylor a second time. Once again, Taylor

initially denied his involvement, but after the officers confronted him with the

positive identification, he confessed to killing Birch.

      On November 16, 1988, a Hillsborough County jury indicted Taylor for

first-degree murder and sexual battery. At trial, the State proceeded under two

theories: (1) pre-meditated murder; and (2) felony murder, since the killing

occurred during the course of a sexual battery. The defense was built around the

claim that Taylor was guilty of only second-degree murder and that the sexual

contact between the defendant and the victim was consensual in nature. Birch had

offered sex in exchange for money or cocaine. Moreover, the defense theory went,

Taylor beat Birch because he became “absolutely enraged” and was “operating

from a depraved mind,” not with any premeditated intent.

      The State’s evidence adduced during a three-day trial included Taylor’s

extensive murder confessions to Detectives George McNamara and Melvin Duran.

Detective McNamara, the lead investigator in the case, interviewed Taylor first.


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The detective testified that Taylor informed him that he ran into Birch around 4:00

a.m. on October 24, 1988 at “the cut.” Birch agreed to have oral sex with Taylor in

the dugout, and while performing fellatio, she bit down on his penis. Taylor

proceeded to choke Birch with both hands for about two to three minutes, as she

made “a gasping noise . . . to try to get her breath.” Then, Taylor said he clenched

his right fist and struck Birch in the face several times. When she collapsed onto

the ground, he dragged her to the other end of the dugout and dropped her,

whereupon he kicked the lifeless victim three to four times in her upper chest area

and stomped on her two to three times. Notably, Taylor did not mention anything

about Birch’s offer of sex in exchange for crack or money. After interviewing

Taylor, Detective McNamara turned the defendant over to Detective Duran, who

collected hair and saliva samples.

      Detective Duran testified that Taylor similarly admitted that he choked,

struck, kicked, and stomped Birch to death after she bit his penis. Although Taylor

denied engaging in vaginal sex with Birch to Detective McNamara, Taylor

informed Detective Duran that “he had penis-to-vagina intercourse with the

victim” before she performed oral sex. At the conclusion of his interview with

Taylor, Detective Duran examined the defendant’s penis and had an identification

technician photograph it. The detective did not observe any abrasion, laceration, or

injury consistent with bite marks, but he did notice a small white dot.


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      Dr. Lee Miller, the medical examiner who performed the autopsy on Birch’s

body, also took the stand. He testified that the cause of death was massive blunt

injuries to the head, neck, chest, and abdomen, reflecting “a beating . . . with hands

and/or feet.” Birch suffered a minimum of about ten blows, all of which occurred

at or near the time of death. Dr. Miller described the victim’s horrific injuries,

including extensive bleeding in the brain; torn and fractured kidneys, intestines,

lungs, and ribs; a “pulped” liver; a damaged heart and spleen; and patterned bruises

all across the face, chest, and stomach. Dr. Miller opined that the death was likely

not instantaneous. Moreover, he observed numerous injuries both inside and

adjacent to the outside of the victim’s vagina that were inconsistent with Taylor’s

sexual-consent defense. In his medical opinion, these lacerations were caused by

“[s]omething [that] was inserted into the vagina which stretched the vagina enough

for it to tear over the object that was inserted in there.” Images of the ghastly

wounds Taylor inflicted on Birch corroborated the law enforcement officials’ and

the doctor’s testimony. One photograph of the victim’s chest, for example,

depicted bruising with a design similar to the shoe impressions found in the

dugout.

      After the prosecution rested its case, Taylor proffered testimony from three

of Birch’s sisters, who saw the victim occasionally purchase or use crack cocaine

between one and five-and-a-half months before she was murdered. Outside the


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presence of the jury, Joyce Robinson testified that she had seen her sister buy crack

cocaine “[j]ust one time” about five-and-a-half months before her demise. Another

sister, Alice Rose, asserted that she had seen Birch “once use” crack cocaine about

three-and-a-half months before she died. When defense counsel asked if Birch

“was a heavy user,” Rose responded, “Well, half the time she couldn’t get it.”

Finally, Yvonne Robinson testified that she had seen her sister use crack cocaine

“maybe two, three times.” The last time she saw Birch using crack was about a

month before her death in their mother’s utility room. Robinson also

acknowledged that Birch was involved with a man who had a few prostitutes

working for him out of Sulphur Springs. None of the sisters, however, had ever

witnessed Birch offer to sell her body for crack. Ultimately, the trial court excluded

the proffered testimony, ruling that the sisters’ accounts were irrelevant to the

claim of sexual consent and remote in time.

      Taylor took the stand to establish his second-degree murder defense. He

testified that on the night of the murder, he went to Manila Bar with some friends.

Around 3:45 or 4:00 a.m., after the bar had closed, the group migrated to “the cut.”

They were outside “shooting the bull” when Birch approached. She talked briefly

with others in the group, and then all but Taylor and a friend walked off. 

. Taylor testified that as he began to walk away, Birch called out

to him and told him she was trying to get to Sulphur Springs. He informed her that


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he did not have a car. She then offered “sexual favors,” or to “turn a trick,” in

exchange for “a five dollar hit of crack and ten dollars.” When Taylor indicated he

“couldn’t help her on the drugs part of the situation,” Birch decided ten dollars

would do. The pair then headed towards the Belmont Little League field.

      Taylor testified that upon reaching the third-base dugout, he sat down on a

bench. Defense counsel asked Taylor to position himself in the chair as if it were

the bench, and Taylor complied. Taylor described that he and Birch attempted to

have vaginal intercourse in the dugout for less than a minute. 

ended

the attempted intercourse and began performing fellatio instead. According to

Taylor, he complained to Birch that her teeth were irritating him and tried to pull

away. She bit down on his penis. Acting “out of reflexes,” Taylor claimed he

“grabbed her immediately” and choked her.

      At that point, defense counsel asked Taylor to remove his sweater so that the

jury could view his strong arms and chest. Counsel also inquired about Taylor’s

exercise regimen and weight-lifting abilities, instructing Taylor to show the jury

what a “dead lift” is. Following this demonstration, Taylor described how once he

succeeded in getting Birch to release her bite, he struck and kicked her several

times in anger. The entire incident “was over before it started.”

      To corroborate his version of the events, Taylor introduced testimony from

two of his friends who were with him at “the cut” on the early morning of October


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24th. Otis Allen testified that Birch approached the group and told Taylor she

wanted to exchange sex for “money or stones.” As Allen left, he witnessed Birch

walking freely and voluntarily with Taylor towards the baseball field. Adrian

Mitchell testified that he saw Birch approach Taylor and converse with him. Then

he witnessed Birch motioning to Taylor to follow her, and the pair walked off

together.

      On May 11, 1989, the jury reached a verdict, finding Taylor guilty of both

murder in the first degree and sexual battery with great force.

      During the penalty phase of the trial, the State called only one witness: a

detective who had investigated Taylor’s prior sexual battery conviction in 1982.

The detective testified that the twelve-year-old female victim alleged that Taylor,

who was sixteen years old at the time, forcibly raped her, and Taylor pled no

contest to the charge. Six witnesses testified on Taylor’s behalf. Three law

enforcement officers who had supervised Taylor since his arrest for Birch’s murder

described the defendant as a model inmate. According to the officers, Taylor

treated everyone at the prison with respect, worked harder than was expected, and

caused no problems whatsoever. Angelina Hicks, Taylor’s good friend, asserted

that Taylor was easygoing and never violent, and that she trusted Taylor with her

children. Carolyn Thornton, who had a brief relationship with Taylor before his

arrest, described him as “very gentle.”


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      Finally, Dr. Gerald Mussenden, an experienced clinical psychologist,

testified about Taylor’s traumatic childhood. Dr. Mussenden had evaluated the

defendant back when he was in custody in 1982 and again during his current

period of incarceration. He explained that when Taylor was only seven years old,

he was diagnosed as “emotionally disturbed” and placed under the custody of

Health and Rehabilitative Services. Taylor’s foster mother physically and

emotionally abused him during his formative years. Taylor was ecstatic to return

home at age fourteen, but he became extremely upset and angry when he

discovered that another male figure had entered his home. Because Taylor was

ungovernable, his own mother voluntarily returned him to Health and

Rehabilitative Services again, exacerbating Taylor’s feelings of rejection and

abandonment. Taylor did not receive any psychotherapy or help to cope with these

scarring experiences. According to Dr. Mussenden, Taylor had a relatively high IQ

and could have been a very successful athlete, but his potential was stymied by the

years of built-up rage and untreated trauma he endured.

      Unpersuaded by this mitigation evidence, the jury unanimously

recommended the death sentence. The trial court imposed the jury’s

recommendation, finding no statutory or non-statutory mitigating circumstances,

and three statutory aggravating factors: (1) Taylor was previously convicted of a

felony involving the use of violence, Fla. Stat. § 921.141(5)(b); (2) the homicide


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was committed during a sexual battery, 

and (3) the capital

felony was especially wicked, evil, atrocious, or cruel, 

                                          B.

      On direct appeal, Taylor raised three claims relating to the guilt phase of

trial, including whether the trial court erred in barring the testimony of Birch’s

three sisters. Taylor argued this evidence would have shown that Birch was a crack

cocaine user, and thus would have corroborated his basic testimony and provided

crucial support for his sexual-consent defense. The Florida Supreme Court rejected

this claim, explaining:

             We find no error in the trial court’s exclusion of this testimony.
      A person seeking admission of testimony must show that it is relevant.
      Stano v. State, 

, 1285 (Fla. 1985), cert. denied, 

, 

, 

(1986). To be relevant,
      evidence must tend to prove or disprove a fact in issue. 

      that the victim may have used or purchased crack cocaine on
      occasions prior to her death does not tend to show that she consented
      to sex with Taylor on the night in question. None of the witnesses
      whose testimony was excluded had observed the victim offer sex for
      drugs or money. Absent a link between the prior cocaine use and
      sexual activity by the victim, the testimony simply was not probative
      of whether she consented to sexual activity with Taylor before the
      fatal beating.

. The Florida Supreme Court ultimately affirmed Taylor’s

convictions. 

But it reversed his death sentence and remanded for

resentencing because the prosecutor had made an improper closing argument at the

penalty phase. 

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      By an 8-to-4 vote, a newly empaneled jury again recommended the death

penalty, and the trial judge again found the same three aggravating factors and no

statutory mitigators. However, it did accord “some weight” to Taylor’s deprived

family background and the abuse he reportedly suffered as a child. The court also

considered, but afforded “very little weight” to, evidence of Taylor’s remorse,

psychological testimony about Taylor’s potential brain injury, and testimony

concerning Taylor’s good conduct in custody. Determining that the aggravating

circumstances outweighed the non-statutory mitigators, the trial court reimposed

the death sentence. The Florida Supreme Court affirmed, Taylor v. State, 

30 (Fla. 1994) (per curiam), and the U.S. Supreme Court denied Taylor’s

petition for writ of certiorari, Taylor v. Florida, 

(1994).

                                          C.

      On March 12, 1996, Taylor filed his first state court motion for

postconviction relief under Florida Rule of Criminal Procedure 3.851. His fourth

and final amended postconviction motion was filed in the state court some nine

years later in 2005. Relevant to this appeal, Taylor specifically averred that trial

counsel was constitutionally ineffective because he placed Taylor on the witness

stand without preparation, and then directed the petitioner to reenact choking the

victim during the guilt phase of trial.




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       Over the course of several years, the trial court conducted numerous Huff 1

hearings and evidentiary hearings. Notably, at an evidentiary hearing held on

October 8, 2003, Taylor’s guilt-phase trial counsel, Nick Sinardi, testified. Before

taking on Taylor’s case, Sinardi had worked as both a prosecutor and private

defense attorney for about ten years and had tried a number of capital cases. In

light of Taylor’s damning confessions to the police, the State had a very strong

case against his client. To prepare for trial, Sinardi hired a private investigator,

who spent over 100 hours obtaining background information, researching court

records, and interviewing 68 potential witnesses. Sinardi also filed numerous pre-

trial motions, including an unsuccessful motion to suppress Taylor’s detailed

confessions.

       After carefully reviewing the discovery evidence, speaking with his client,

and weighing the alternatives, Sinardi determined Taylor’s best available trial

defense was that he committed “depraved mind and consensual sex, second-degree

murder.” To establish this, counsel believed it was in Taylor’s best interest to take

the stand. He sought to characterize Taylor, whose soft-spoken demeanor did not

match his imposing physique, as a “gentle giant.” He wanted the jury to understand

how this “big, powerful man” -- who was six feet two inches tall, and weighed

1
  See Huff v. State, 

, 983 (Fla. 1993) (holding that, because of the severity of
punishment at issue in a death penalty postconviction case, the judge must allow the attorneys
the opportunity to appear before the court and be heard on an initial postconviction motion).


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about 235 pounds -- could have unintentionally killed the petite victim upon

becoming enraged. Sinardi also wanted the jury to hear from Taylor about the

victim’s proposition to exchange sex for money. He explained that he generally

advises clients that they must be prepared to testify, and the defendant makes that

decision at the close of the State’s case or the defense case. He recalled specifically

instructing Taylor to testify truthfully, but he did not rehearse Taylor’s testimony

with him because, based on his experience, this was not a beneficial practice. The

prosecutor likewise opined that Taylor had to testify if the defense was going to

argue second-degree murder. Moreover, the prosecutor said he too was unaware of

any other defense that would have been available to Taylor.

      On February 1, 2006, the state postconviction court rejected all twenty-one

of Taylor’s postconviction claims, concluding, inter alia, that Taylor failed to

demonstrate any deficiency or resulting prejudice from Sinardi’s performance.

Taylor again appealed to the Florida Supreme Court, pressing his claim that

Sinardi rendered ineffective assistance. The state’s highest court affirmed,

concluding that Taylor had not established deficient performance under Strickland

v. Washington, 

(1984): “On the record before us, . . . Taylor . . . has

not shown that he testified against his will, nor has he met the burden to

demonstrate that Sinardi’s strategy was unreasonable under the circumstances,

especially considering the limited choices available to the defense.” Taylor v.


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State, 

, 996 (Fla. 2009). The Florida Supreme Court did not address

prejudice. 

                                          D.

      On February 5, 2010, Taylor commenced his federal habeas corpus petition

in the United States District Court for the Middle District of Florida pursuant to 28

U.S.C. § 2254. He raised seventeen claims in all. In a detailed order entered on

June 1, 2011, the district court denied each of them. Taylor v. Sec’y, Dep’t of

Corr., 8:10-CV-382-T-30AEP, 

(M.D. Fla. June 1, 2011).

      As for whether the trial court erred in excluding the victim’s sisters’

testimony, the district court first rejected the State’s argument that this claim was

procedurally barred. 

The district court explained that Taylor fairly

presented his federal constitutional claim in his brief before the Florida Supreme

Court by citing to Chambers v. Mississippi, 

(1973), and arguing that

the exclusion of the sisters’ testimony violated his Sixth Amendment rights.

Taylor, 

, at *10. Turning to the merits, the district court

concluded that the Florida Supreme Court’s determination was neither contrary to

nor an unreasonable application of clearly established federal law because the state

court’s evidentiary ruling did not rise to the denial of fundamental fairness. 

The victim’s sisters’ proffered testimony was not “material in the sense of




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being crucial, critical, or highly significant,” and the exclusion “did not fatally

infect the trial so as to deprive Taylor of due process.” 

      As for Taylor’s complaint that trial counsel was ineffective for placing him

on the stand during the guilt phase of trial, the district court agreed with the Florida

Supreme Court’s determination that Taylor had failed to establish deficient

performance. 

Relying largely on Sinardi’s postconviction testimony, the

district court concluded that counsel made a strategic decision to put Taylor on the

stand to explain that Taylor and the victim agreed to sex in exchange for money,

the sex was consensual, Taylor became enraged when the victim bit his penis, and

he had no intent to kill her. 

Counsel also reasonably sought to

demonstrate how powerful Taylor was, and that because of his significant strength,

his blows quickly led to the petite victim’s demise. 

“counsel’s decision

to put Taylor on the stand and testify, and pursue the defense he presented, fell

within the range of reasonable conduct.” 

The district court declined to

grant a Certificate of Appealability (“COA”). 

We issued a COA,

however, on two claims: (1) whether the trial court erred in excluding

corroborative evidence in violation of the due process right articulated in

Chambers, 

; and (2) whether trial counsel provided ineffective

assistance at the guilt phase of trial by calling Taylor to testify and having him

reenact the murder without preparation.


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                                           II.

       We review de novo a district court’s determinations of law and mixed

questions of law and fact. Lawrence v. Sec’y, Florida Dep’t of Corr., 

,

476 (11th Cir. 2012). A district court’s factual findings, however, are reviewed

only for clear error. 

his federal habeas petition after the 1996 effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254.

Thus, AEDPA governs the petition and scope of our review. Penry v. Johnson, 

, 792 (2001). Under AEDPA, when the state court has adjudicated the

petitioner’s claim on the merits, a federal court may not grant habeas relief unless

the state court’s decision was “contrary to, or involved an unreasonable application

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

United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

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

proceeding,” 

“Under § 2254(d)(1)’s ‘contrary to’ clause, we grant

relief only ‘if the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law or if the state court decides a case differently

than [the Supreme Court] has on a set of materially indistinguishable facts.’” Jones

v. GDCP Warden, No. 11-14774, 

, at *10 (11th Cir. Apr. 24,

2014) (quoting Williams v. Taylor, 

, 413 (2000)). “Under


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§ 2254(d)(1)’s ‘unreasonable application’ clause, we grant relief only ‘if the state

court identifies the correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s

case.’” 

, 529 U.S. at 413).

      For § 2254(d), clearly established federal law includes only the holdings of

the Supreme Court -- not Supreme Court dicta, nor the opinions of this Court.

White v. Woodall, 

, 1702 (2014). To clear the § 2254(d) hurdle, “a

state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 

, 786-87 (2011).

“[A]n ‘unreasonable application of’ [Supreme Court] holdings must be ‘objectively

unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” 

(quoting Lockyer v. Andrade, 

, 75-76 (2003)). A state

court need not cite or even be aware of Supreme Court cases “so long as neither

the reasoning nor the result of the state-court decision contradicts them.” Early v.

Packer, 

, 8 (2002); accord 

.

      “AEDPA thus imposes a highly deferential standard for evaluating state-

court rulings and demands that state-court decisions be given the benefit of the

doubt.” Renico v. Lett, 

, 773 (2010) (citations and internal quotation


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marks omitted). And when a claim implicates both AEDPA and Strickland, our

review is doubly deferential. 

(“The standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.” (citations and internal quotation marks omitted)).

Taylor must establish that no fairminded jurist would have reached the Florida

court’s conclusion. See 

; Holsey v. Warden, Ga.

Diagnostic Prison, 

, 1257-58 (11th Cir. 2012). “If this standard is

difficult to meet, that is because it was meant to be.” 

. We

agree with the district court that Taylor failed to meet this exacting standard.

                                          A.

      Taylor first claims the state trial court denied his due process right to present

a defense by excluding Birch’s sisters’ testimony. See Crane v. Kentucky, 

, 690 (1986) (“[T]he Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” (internal quotation marks omitted));

(“Few rights are more fundamental than that of an

accused to present witnesses in his own defense.”). According to Taylor, the

sisters’ proffered testimony that Birch occasionally used or purchased crack would

have corroborated his defense that the victim consented to sex on the night in

question.




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      As an initial matter, the State argues, as it did before the district court, that

this federal due process claim is procedurally barred because Taylor did not “fairly

present” his claim in the state courts. Baldwin v. Reese, 

, 29 (2004).

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust

available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the

opportunity to pass upon and correct alleged violations of its prisoners’ federal

rights.” 

marks and citation omitted). The prisoner must

“fairly present” his federal claim in each appropriate state court to provide the

State with the requisite opportunity. 

be done by “indicat[ing] the

federal law basis for [a] claim in a state-court petition or brief.” 

In his

brief before the Florida Supreme Court on direct appeal, Taylor averred that he

was entitled to introduce the victim’s sisters’ testimony under the Sixth

Amendment, and he cited twice to Chambers, 

. We agree with the

district court that Taylor exhausted his federal claim before the appropriate state

court. We turn then to the merits.

      We begin our analysis with what is by now almost hornbook law; federal

courts will not generally review state trial courts’ evidentiary determinations. Hall

v. Wainwright, 

, 770 (11th Cir. 1984); see Lisenba v. California, 

, 228 (1941) (“We do not sit to review state court action on questions of

the propriety of the trial judge’s action in the admission of evidence.”). Indeed, in a


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habeas corpus action brought by a state prisoner, our authority is “severely

restricted” in the review of state evidentiary rulings. Shaw v. Boney, 

,

530 (11th Cir. 1983) (per curiam); see Estelle v. McGuire, 

, 67-68

(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court

is limited to deciding whether a conviction violated the Constitution, laws, or

treaties of the United States.”). Habeas relief is warranted only when the error “so

infused the trial with unfairness as to deny due process of law.” 

; see 

(holding that habeas relief was not warranted

because neither the introduction of the challenged evidence, nor the jury

instruction as to its use, “so infused the trial with unfairness as to deny due process

of law”); Bryson v. Alabama, 

, 864-65 (5th Cir. Unit B Jan. 1981)2

(“A violation of state evidentiary rules will not in and of itself invoke Section 2254

habeas corpus relief. The violation must be of such a magnitude as to constitute a

denial of ‘fundamental fairness.’”); cf. 

(concluding that

the exclusion of “critical evidence” denied the defendant “a trial in accord with

traditional and fundamental standards of due process”). The trial court’s exclusion




2
 In Bonner v. City of Prichard, 

, 1209 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
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of the victim’s sisters’ proffered testimony does not come close to denying Taylor

fundamental fairness.

      For starters, we are hard-pressed to find that the trial court even erred in

excluding the sisters’ testimony, which had no direct bearing on the issue of sexual

consent. The proffered testimony consisted of the sisters’ statements that the victim

purchased or used crack cocaine a few times between one and five-and-a-half

months before she died. The trial court sustained the State’s objection to the

sisters’ testimony because the evidence was “irrelevant” to the sexual-consent

defense and “remote.” The Florida Supreme Court agreed that Taylor failed to

show that the sisters’ testimony was relevant: “To be relevant, evidence must tend

to prove or disprove a fact in issue,” and the victim’s use or purchase of crack

cocaine on a few occasions prior to her death “does not tend to show that she

consented to sex with Taylor on the night in question.” 

.

The court explained that none of the excluded witnesses had ever observed the

victim offer to sell her body. 

defendant proffered no other evidence

demonstrating a correlation between the sporadic use or purchase of crack and

engagement in prostitution. Taylor thus failed to establish that an individual who

occasionally uses or purchases cocaine would be more likely than a non-user to

approach a group of men at 4 a.m. in an alley and offer sexual favors for cash or

dope. 

concluded that “[a]bsent a link between the prior cocaine use


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and sexual activity by the victim, the testimony simply was not probative of

whether she consented to sexual activity with Taylor before the fateful beating.”

if the evidence was relevant, the state court’s evidentiary

ruling did not “fatally infect[] the trial” so as to justify habeas relief. 

. To render a state-court proceeding fundamentally unfair, the excluded

evidence must be “material in the sense of a crucial, critical, highly significant

factor.” Boykins v. Wainwright, 

, 1544 (11th Cir. 1984). On this

record, Taylor cannot meet the high bar. The proffered testimony would not have

materially supported Taylor’s defense because the events the sisters witnessed

were too infrequent and far removed in time and location. What’s more, each sister

in fact testified that she had never seen Birch “offer her body for cocaine.” In short,

the tie between the proposed testimony and the defense was exceedingly remote

and attenuated. In no way did the proffer even remotely suggest that the victim had

offered her body for money or drugs that night, or that the sexual encounter was

indeed a consensual one. Moreover, Taylor was given a “fair opportunity” to

present other critical evidence in support of his defense that the sexual encounter

was consensual. 

. He took the stand at trial, asserting that

Birch propositioned him with “sexual favors” in exchange for “a five dollar hit and




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ten dollars,” and then presented testimony from two friends, Allen and Mitchell,

who corroborated at least a portion of his version of the events.

      The Florida Supreme Court’s refusal to grant relief based on the exclusion of

the sisters’ proffered testimony was neither contrary to nor an unreasonable

application of clearly established Supreme Court law. None of the cases Taylor

cites persuade us otherwise. In Crane v. Kentucky, 

, the Supreme

Court held that a trial court’s blanket exclusion of testimony concerning the

circumstances of the defendant’s confession denied the defendant “his fundamental

constitutional right to a fair opportunity to present a defense.” 

690.

Unlike Crane, however, here the proffered testimony was neither “competent,

reliable” evidence “central to the defendant’s claim of innocence,” nor did it bear

on the credibility of a confession. 

Nor was Taylor deprived of the

opportunity to present a “complete defense.” 

v. Mississippi, 

, the Supreme Court found that the exclusion of corroborative evidence of

a third-party’s confession, coupled with the refusal to permit the defendant to

cross-examine the third-party based on Mississippi’s voucher rule, denied the

defendant “a trial in accord with traditional and fundamental standards of due

process.” 

This case does not involve the exclusion of highly material

evidence as in Chambers. Finally, in Washington v. Texas, 

(1967), the

Court held that a state statute preventing co-defendants from testifying at each


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other’s trials violated the defendant’s Sixth Amendment right to compulsory

process. 

Again, in contrast to Washington, this case does not implicate an

“arbitrary rule[]” preventing a “whole categor[y] of defense witnesses from

testifying on the basis of [an] a priori categor[y]” presuming “them unworthy of

belief.” 

       In short, Taylor has not come close to showing that the state court’s

exclusion of the sisters’ testimony rendered his trial “fundamentally unfair.” The

Florida Supreme Court’s resolution of his claim was not contrary to, or an

unreasonable application of, clearly established federal law.

                                         B.

       Next, Taylor claims trial counsel provided ineffective assistance by calling

him to testify without preparation, and then directing him to physically reenact the

brutal murder in front of the jury. To succeed on his ineffectiveness claim under

, Taylor must establish both deficient performance and

prejudice. Strickland’s performance prong is satisfied only if the petitioner

“show[s] that counsel’s representation fell below an objective standard of

reasonableness.” 

The prejudice prong requires the petitioner to establish

a “reasonable probability” that, but for counsel’s errors, the outcome at trial would

have been different. 

.




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      The Florida Supreme Court decided not to address whether Taylor

established Strickland prejudice, instead determining that counsel’s performance

was not deficient. We take the same approach, and begin and end our analysis with

Strickland’s performance prong. See 

; Holladay v.

Haley, 

, 1248 (11th Cir. 2000) (“Because both parts of the test must

be satisfied in order to show a violation of the Sixth Amendment, the court need

not address the performance prong if the defendant cannot meet the prejudice

prong, or vice versa.” (citation omitted)). Based on the facts and circumstances

presented, the Florida Supreme Court’s determination that counsel did not render

deficient performance was not an unreasonable one.

      At the postconviction evidentiary hearing, Nick Sinardi, Taylor’s guilt-phase

trial counsel, testified that he made a reasoned, calibrated decision in calling

Taylor to the stand. Taylor had twice confessed in detail to killing Birch; the

murderer’s identity was never at issue. Sinardi, an experienced attorney, hired a

private investigator, carefully reviewed the discovery evidence, and discussed

potential defense options with his client. Sinardi’s general practice was to focus on

one defense theory as opposed to a “shotgun approach” of alternative theories,

which he believed could lead to a loss of credibility with the jury. After weighing

the alternatives available to the defense, counsel determined the best one was that

Taylor committed second-degree murder arising out of consensual sex.


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Circumscribed by Taylor’s two confessions and the trial court’s exclusion of other

witnesses who could corroborate the sexual-consent defense, Sinardi concluded

that taking the stand was in Taylor’s best interest. Indeed, there was no other

apparent way to establish either that the homicide grew out of consensual sex, or

that the murder was the result of a depraved mind. And, ultimately, Taylor agreed

and decided to testify.

      As for preparation, Sinardi explained that he generally instructs clients that

they must be prepared to testify. Sinardi recalled specifically advising Taylor to

testify truthfully, and “as to the specifics [about] what he was going to testify to is

whatever discussions we . . . had . . . in the past concerning what occurred.” But

Sinardi did not rehearse Taylor’s testimony with him because he did not think this

would be effective.

      At trial, Sinardi elicited essential testimony from Taylor supporting a

second-degree murder theory. Taylor claimed that Birch offered him sexual favors

in exchange for cash and dope, and she freely and voluntarily engaged in sexual

relations with him in the dugout. Moreover, in describing the murder, Taylor stated

he “was upset and angry” and “just acted out of reflexes”; he had “no conscious

thought in [his] mind when this was happening.”

      Since “[t]here are countless ways to provide effective assistance in any given

case,” 

, “the range of what might be a reasonable


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approach at trial must be broad,” Chandler v. United States, 

, 1313

(11th Cir. 2000) (en banc). The Supreme Court has mandated a highly deferential

review of counsel’s conduct, especially in cases like this one involving strategy.

Spaziano v. Singletary, 

, 1039 (11th Cir. 1994). A petitioner must

meet the onerous burden of demonstrating “that no competent counsel would have

taken the action that his counsel did take.” 

(emphasis

added). On this record, Taylor has not come close to making this showing, let

alone that the Florida Supreme Court’s determination was an unreasonable one.

Sinardi’s decision to call Taylor to the stand, even without rehearsing the

testimony, falls squarely within the “wide range” of performance that is

constitutionally acceptable under 

. See Waters v.

Thomas, 

, 1512 (11th Cir. 1995) (en banc) (“Which witnesses, if any,

to call, and when to call them, is the epitome of a strategic decision, and it is one

that we will seldom, if ever, second guess.”).

      As part of his ineffectiveness claim, Taylor also alleges that counsel acted

deficiently by having him reenact the murder scene while on the stand. This

argument is meritless. In the first place, contrary to Taylor’s characterization of the

record in his federal habeas petition and appellate briefs, the trial transcript does

not reflect that counsel actually directed Taylor to demonstrate how he choked,

kicked, and stomped the victim to death. Counsel did instruct Taylor to do the


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following: (1) demonstrate how he sat on the bench in the dugout; (2) remove his

sweater so that the jury could view his muscular arms and chest; and (3) show the

jury what a “dead lift” exercise is. But there is no indication that counsel asked

Taylor to physically reenact the violent homicide, as Taylor now claims. Unlike

other instances in the trial transcript, the relevant part of the transcript in which

Taylor recounts the murder does not contain any notation, such as the word

“indicating,” showing that Taylor was physically reenacting the actions he was

describing. Nor does any other evidence in the record, including Taylor’s

testimony, corroborate his allegation that counsel instructed him to physically

reenact the murder. 3 Instead, it appears from the record that counsel only solicited

a verbal description of the murder from Taylor.


3
  Five days after oral argument, on June 10, 2014, Taylor filed a motion to expand the COA to
address the issue of the state postconviction court’s suppression of Sonya Davis’s deposition
testimony. Taylor urges us to consider the victim’s daughter’s testimony, arguing that it supports
both his due process and Strickland claims. We deny Taylor’s motion to expand the COA
because it is both a day late and a dollar short. It is well-settled that “[t]he decision about which
issues are to be considered on the merits must be made on the front end of an appeal, before the
issues are briefed, argued, and decided on the merits.” Hodges v. Attorney Gen., State of Fla.,

, 1340 (11th Cir. 2007). On October 16, 2013, this Court denied Taylor’s
application for a COA on the issue of the state court’s refusal to consider Davis’s testimony.
Because this Court already considered the question of the exclusion of Davis’s testimony and
concluded that a COA was not warranted in that regard, Taylor’s motion to expand the COA
really is a motion for reconsideration, which we deny. See Jordan v. Sec’y, Dep’t of Corr., 

, 1356 (11th Cir. 2007). Taylor has provided no good cause for the untimely filing of
this motion. See 11th Cir. R. 27-2 (“A motion to reconsider, vacate, or modify an order must be
filed within 21 days of the entry of such order.”).

        But even if this motion were timely filed, it would still fail on the merits. As the district
court found, Taylor’s claim relating to Davis’s deposition testimony ultimately boils down to a
challenge to the process afforded to him in a state postconviction proceeding, and this does not
constitute a cognizable claim for habeas relief. See Carroll v. Sec’y, DOC, 

, 1365
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       Counsel’s strategic decision to have Taylor recount the murder in detail and

demonstrate his strength to the jury was not objectively unreasonable. At the

postconviction evidentiary hearing, Sinardi testified that Taylor was “very

rational,” “never antagonistic,” and “cooperative”; Sinardi aimed to contrast

Taylor’s mild-mannered demeanor with his powerful physique to further advance

his second-degree murder theory. He wanted the jury to understand how this

“gentle giant” could have unintentionally killed the petite victim -- who was about

half his size -- upon flying into an uncontrollable rage. As this Court has

counseled, “The [deficient performance] test has nothing to do with what the best

lawyers would have done. Nor is the test even what most good lawyers would have

done. We ask only whether some reasonable lawyer at the trial could have acted, in

the circumstances, as defense counsel acted at trial.” 

(quoting White v. Singletary, 

, 1220 (11th Cir. 1992)). A reasonable

lawyer surely could have drawn the tactical choices Sinardi made, especially in



(11th Cir. 2009) (reiterating the well-established principle that defects in state collateral
proceedings do not provide a basis for habeas relief); Quince v. Crosby, 

, 1262
(11th Cir. 2004) (“[W]hile habeas relief is available to address defects in a criminal defendant’s
conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for
habeas relief.”). Moreover, and in any event, the substance of Davis’s deposition testimony does
nothing to buttress either of Taylor’s claims on which we granted the COA. Although Davis
admitted during her deposition that her mother planned to check herself into a drug rehabilitation
center before she was murdered, Davis also unequivocally asserted several times that her mother
never worked as a prostitute or offered sex for drugs. And while Davis acknowledged that she
was “scared” when she witnessed Taylor’s trial testimony, Davis’s deposition testimony does not
support the claim that defense counsel instructed Taylor to reenact choking and kicking the
victim during trial.
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light of the profound obstacles created by Taylor’s confessions. In short, Taylor

has simply failed to establish that the Florida Supreme Court’s determination about

trial counsel’s performance was contrary to or an unreasonable application of

Strickland.

      Taylor is not entitled to habeas relief on either claim, and accordingly we

affirm the denial of his petition.

      AFFIRMED.




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