Case: 12-14706     Date Filed: 04/29/2015   Page: 1 of 38


                                                                            [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 12-14706
                             ________________________

                      D.C. Docket No. 6:08-cv-02085-GAP-GJK

ROBERT ANTHONY PRESTON, JR.,

                                                             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
                            ________________________

                                    (April 29, 2015)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

MARCUS, Circuit Judge:

         Robert Preston appeals from the district court’s denial of his federal habeas

petition. A jury convicted Preston of premeditated murder for the brutal 1978

killing of Earline Walker and recommended that he be sentenced to death. The
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sentencing court imposed the ultimate penalty. Nearly thirty years later, Preston

filed a habeas petition in federal district court, raising twenty-eight claims. The

district court denied habeas relief on all of them. We granted a certificate of

appealability on one claim, which alleges that the state failed to present sufficient

evidence of premeditation at trial, and that Preston’s conviction, therefore, violated

his due process rights. See Jackson v. Virginia, 

(1979). After

thorough review, we affirm the district court’s denial of habeas relief.

      For starters, to obtain a writ under 28 U.S.C. § 2254, Preston must show that

he exhausted state court remedies for challenging his conviction. He does not, and

did not. Before the Florida Supreme Court, Preston brought only a state

sufficiency of the evidence claim, and relied on Florida’s heightened burden of

proof in cases involving circumstantial evidence. Notably, neither his claim nor

his briefs cited to any federal cases, let alone Jackson v. Virginia; he did not

mention the Jackson standard; he did not cite to the Due Process Clause of the

Fourteenth Amendment or any other federal constitutional provisions; indeed, he

did not even mention the word “federal” or refer to federal law in any other way.

Because Preston did not make the state court aware that his claim included a

federal constitutional claim, he did not fairly present his federal claim to the

Florida courts, and he is procedurally barred from asserting it now. The petitioner,




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after all, was obliged to first give the state courts a meaningful opportunity to

address his federal claim. This he did not do.

      But, even if Preston could now bring a federal due process claim under

Jackson, he does not show that he is entitled to relief. We may only grant his

habeas petition if the Florida Supreme Court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law,” or “was

based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The

Florida Supreme Court reasonably concluded that a rational trier of fact could find

premeditation based on the evidence produced at trial, which included the nature of

the wounds on Walker’s body, the weapon used to inflict those wounds, Preston’s

statements on the eve of the murder, and the fact that Preston took Walker to a

remote location and killed her, after robbing the local convenience store at which

she worked.

                                          I.

                                          A.

      The essential facts are these. In January 1978, Earline Walker was

employed as a night clerk at a Li’l Champ convenience store in Forest City,

Florida. She was reported missing from the store at around 3:30 a.m. on the

morning of January 9, when an officer from the Altamonte Springs Police

Department (“ASPD”) conducted his regular patrol. The doors to the store had


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been locked, and when a Li’l Champ regional supervisor let the officer into the

store, he discovered that $574.41 was missing from the store’s register and safe.

Around 1:45 p.m. that same day, an ASPD detective discovered Walker’s nude and

mutilated body in an open field a mile and a half from the store. Her car had been

abandoned on the side of the road bordering the field, several hundred feet away

from where her body was located.

      The wounds suffered by Walker were severe. Specifically, she had been

nearly decapitated. She also sustained several broken ribs and multiple stab

wounds, including a cross mark carved onto her forehead and an eight-centimeter

wound to her vagina. The medical examiner, Dr. Gumersindo Garay, estimated

that the cause of Walker’s death had been massive blood loss resulting from her

near-decapitation, which was inflicted by a slash to the neck from behind while she

was standing. She would have lost consciousness immediately and died within a

minute or two. The remaining wounds were likely inflicted while her body was

lying on the ground. Dr. Garay also determined that Walker’s wounds had

probably been inflicted by a four to five inch blade.

      At the time, the petitioner, Preston, lived with his brothers, Scott and Todd,

at his mother’s home, which was located about a quarter of a mile from the field

where Walker’s body was discovered. At roughly 12:30 a.m. on the morning of

January 9, Preston knocked on Scott’s door, asking him to go to the Parliament


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House, a bar in the area, “to get some money.” When Scott declined, Preston said

“Okay, then. I’ll just go do it myself.” He also asked Scott and his girlfriend,

Donna Maxwell, to help him inject some PCP. They refused to do so. Preston left

the house and returned at 4:30 a.m. When he returned, he asked Scott and

Maxwell to help him count some money. Preston was acting excited and told

them, “All right. I did it.” Because he “wasn’t acting normal,” they counted the

money for him, which came to approximately $325. Preston told Scott and

Maxwell that he and a friend, Crazy Kenny, had robbed two men at the Parliament

House and taken their money. However, there was no police report of any incident

at the Parliament House that night, and the head security guard on duty at the

Parliament House testified at trial that he was aware of no disturbances. A woman

driving late that night also testified at trial that she had observed Preston at a Jack

in the Box in the area shortly after 2 a.m. Around 9 a.m. the next morning, several

hours before the police found Walker’s body, Preston told Maxwell that the body

of a woman who worked in a store near his home had been discovered in a field.

      Preston was arrested the following day on an unrelated charge. The police

conducted a search of Preston’s home with the consent of his mother, and

discovered a jacket as well as several food stamps which police confirmed had

been used to make purchases at the Li’l Champ convenience store in the days

before the murder. In addition to the food stamps, several pieces of forensic


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evidence tied Preston to the murder of Earline Walker. The police found a light

brown pubic hair on his belt buckle when he was taken into custody, which could

have come from Walker.1 Blood stains on Preston’s jacket were revealed to be of

the same blood type and enzyme group as Walker’s. The police found several

fingerprints in Walker’s car that matched Preston’s prints. Maxwell also testified

at trial that Preston habitually carried a five inch folding “buck knife,” which could

have been used to inflict the wounds on Walker’s body.

       At trial, Preston took the stand on his own behalf, and testified that he had

been at his home the night of January 8. He said, however, that he injected PCP

that night, and had very little recollection of what happened next. He did recall

trying to count some money, and had some memory of going to the Parliament

House in a car driven by Crazy Kenny. He could not remember touching Walker’s

automobile, and said that, to the best of his recollection, he had not been near the

Li’l Champ store for several months before the murder. He claimed that he found

the food stamps behind a Li’l Champ store on the morning of the murder, when he

went out to buy cigarettes. He admitted that he spoke with Maxwell about the

discovery of a body, but said that the conversation occurred around 3:30 to 4:30

p.m. -- after the police had discovered Walker’s body.
1
 DNA testing later revealed that the belt buckle hair did not come from Walker. However, the
Florida Supreme Court subsequently concluded that this discovery would not have probably
yielded an acquittal. Preston v. State, 

, 797 (Fla. 2007) (per curiam).



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                                                B.

       In connection with the killing of Earline Walker, Preston was charged with

seven counts in all: four counts of first-degree murder, along with robbery,

kidnapping, and sexual battery. After a jury trial, he was convicted of

premeditated murder, felony murder committed in the course of a robbery, and

felony murder committed in the course of a kidnapping, as well as the underlying

charges of robbery and kidnapping. The trial court entered a judgment of acquittal

on the count of felony murder committed in the course of a sexual battery and the

count of sexual battery. Following the penalty phase, the jury recommended death

by a vote of seven to five. The trial court found four aggravating circumstances:

Preston had a prior violent felony conviction, Fla. Stat. § 921.141(5)(b); the

murder was committed immediately after Preston committed robbery and while he

was engaged in the commission of a kidnapping, 

the murder

was especially heinous, atrocious, or cruel, 

and the murder was

committed in a cold, calculated, and premeditated manner, 

2

Finding no mitigating factors, the trial court sentenced Preston to death.

       In his direct appeal to the Florida Supreme Court, Preston raised five claims,

including a claim that the evidence of premeditation presented at his trial was

2
  The trial court also found that the murder was committed in conjunction with a robbery for
pecuniary gain, 

but did not consider this factor because it overlapped with
the aggravating factor involving the commission of a robbery.


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insufficient (Ground 2). The Florida Supreme Court rejected all of his claims and

affirmed his conviction and sentence. Preston v. State (Preston I), 

,

941 (Fla. 1984) (per curiam) vacated, 

(Fla. 1990) (per curiam). As

for his sufficiency of the evidence argument, the Florida Supreme Court explained:

      As his second point of error, appellant alleges that the trial court erred
      by failing to grant his motions for judgment of acquittal. Appellant’s
      argument is that the record fails to contain sufficient evidence of the
      element of premeditation to sustain Preston’s conviction for first-
      degree murder. The appellant admits that the record contains
      compelling evidence but that it is solely circumstantial.

      Premeditation can be shown by circumstantial evidence. Sireci v.
      State, 

, 967 (Fla. 1981), cert. denied, 

, 

, 

(1982); Spinkellink v. State, 

, 670 (Fla. 1975), cert. denied, 

, 

, 49 L.
      Ed. 2d 1221 (1976). Whether or not the evidence shows a
      premeditated design to commit a murder is a question of fact for the
      jury. Larry v. State, 

, 354 (Fla. 1958). In Larry v.
      State, this Court stated:

      “Evidence from which premeditation may be inferred includes such
      matters as the nature of the weapon used, the presence or absence of
      adequate provocation, previous difficulties between the parties, the
      manner in which the homicide was committed, and the nature and
      manner of the wounds inflicted. It must exist for such time before the
      homicide as will enable the accused to be conscious of the nature of
      the deed he is about to commit and the probable result to flow from it
      in so far as the life of his victim is concerned. No definite length of
      time for it to exist has been set and indeed could not be.”

      

      There is substantial evidence from which premeditation could have
      been inferred by the jury. The victim sustained multiple stab wounds.
      The nature of the injuries she sustained were [sic] particularly brutal.
      There was almost a complete severance of her neck, trachea, carotid
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      arteries and jugular vein. The medical examiner stated the murder
      weapon was probably a knife of four or five inches in length. Such
      deliberate use of this type of weapon so as to nearly decapitate the
      victim clearly supports a finding of premeditation.

      Considering all reasonable inferences which the jury could draw from
      the appellant’s statements and the nature and manner of the wounds
      inflicted on the victim, we cannot conclude that the determination of
      the trial court was erroneous.

      Preston unsuccessfully filed a series of motions and petitions seeking state

post-conviction relief. In none of these did he reassert his claim that the evidence

presented at his trial was insufficient to show premeditation. However, the Florida

Supreme Court eventually vacated Preston’s death sentence, because an unrelated

prior violent felony conviction had been vacated in state court, and remanded for

resentencing. Preston v. 

.

      In January 1991, Preston was tried again at the penalty phase, and a new

penalty phase jury recommended death by a vote of nine to three. However, the

trial court granted Preston’s motion for still another penalty phase trial because one

of the jurors had failed to disclose his part-time job at a convenience store during

voir dire. In April 1991, the trial court impaneled another penalty phase jury and

conducted a now third penalty phase trial. In that proceeding, the state urged the

jury to find four aggravating factors: the murder was committed during the

commission of a kidnapping, Fla. Stat. § 921.141(5)(d); the murder was committed


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for the purpose of avoiding arrest, 

the murder was committed

for pecuniary gain, 

the murder was especially heinous,

atrocious, or cruel, 

The defense focused largely on Preston’s

age at the time of the murder, his history of substance abuse, and his troubled

family life as mitigating factors. The jury again recommended a sentence of death,

only this time by a unanimous vote. The trial court found the four aggravating

circumstances presented by the state. It also found one statutory mitigating factor

and five nonstatutory mitigating factors presented by Preston, 3 but it accorded

them little weight. The court then sentenced Preston to death. The sentence was

affirmed by the Florida Supreme Court. Preston v. State, 

(Fla.

1992) (per curiam), cert. denied, 

(1993).

       After filing still another motion for post-conviction relief and another state

habeas petition, which were both denied, Preston commenced the instant federal

habeas petition in the United States District Court for the Middle District of Florida

on December 15, 2008. He raised twenty-eight claims, including a claim that the

evidence presented at his trial was insufficient to prove premeditation beyond a

reasonable doubt (Ground 4). The district court denied Preston relief on all of

them. Preston v. Sec’y, Dep’t of Corr., No. 6:08-CV-2085-ORL-31GJK, 

  The trial court found Preston’s age at the time of the murder to be a statutory mitigating factor,
Fla. Stat. § 921.141(6)(g), and found as nonstatutory mitigation that he had a difficult childhood,
a good prison record, potential for rehabilitation, he had expressed remorse, and he was a loving
son with “positive qualities.”


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1549529, at *1 (M.D. Fla. May 1, 2012). As for his sufficiency of the evidence

claim, the district court concluded that it raised “a matter of state law for which

federal habeas corpus relief does not lie.” 

In the alternative, the district

court held that the evidence presented at trial was sufficient to allow the issue of

premeditation to go to the jury. 

The court also noted that Preston did

not show that he was entitled to relief under 28 U.S.C. § 2254. 

n.13.

That is, he showed neither that the Florida Supreme Court’s decision was “contrary

to, or involved an unreasonable application of” clearly established federal law, nor

that it rested on an “unreasonable determination of the facts.” 

court denied a certificate of appealability (“COA”) on all of Preston’s claims. 

However, this Court subsequently granted a COA on the sole question of

whether the evidence of premeditation presented at Preston’s trial was

constitutionally insufficient.

                                           II.

      Preston does not contest the application of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) to his claims. Under AEDPA, if a

petitioner’s habeas claim “was adjudicated on the merits in State court

proceedings,” a federal court may not grant habeas relief unless the state decision

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

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


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or (2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “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, 

, 1182

(11th Cir. 2014) (alterations in original) (quoting Williams v. Taylor, 

, 413 (2000)). “Under § 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.’” 

original) (quoting 

).

      To prevail under § 2254(d), a petitioner “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, 

,

103 (2011). Preston must show that the state court’s decision was “objectively

unreasonable, not merely wrong; even clear error will not suffice.” White v.

Woodall, 

, 1702 (2014) (quotation omitted). Put differently,

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


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court’s conclusion. See 

; Holsey v. Warden, Ga.

Diagnostic Prison, 

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

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

.

Likewise, “[u]nder § 2254(d)(2), [t]he question . . . is not whether a federal court

believes the state court’s determination was incorrect but whether that

determination was unreasonable -- a substantially higher threshold.” Landers v.

Warden, Att’y Gen. of Ala., 

, 1293-94 (11th Cir. 2015) (second and

third alterations in original) (footnote and quotation omitted). A state court’s

determination is unreasonable “when the direction of the evidence, viewed

cumulatively, was too powerful to conclude anything but [the petitioner’s factual

claim], and when a state court’s finding was clearly erroneous.” 

(alteration in original) (citation and quotations omitted).

                                          III.

                                          A.

      We first examine whether Preston is procedurally barred from asserting his

federal sufficiency of the evidence claim (a Jackson due process argument)

because he failed to raise that claim before the Florida Supreme Court.

“Exhaustion presents a mixed question of law and fact that we review de novo.”

Mauk v. Lanier, 

, 1357 n.3 (11th Cir. 2007); see also Lucas v. Sec’y,

Dep’t of Corr., 

, 1351 (11th Cir. 2012) (“[W]e review de novo a


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district court’s ruling on a procedural bar question.”). The state of Florida asserted

that Preston’s federal claim was procedurally barred, but the district court did not

appear to address the question. 4 Instead, the district court concluded that “[t]o the

extent [Preston] relies on his state law arguments” to show that the prosecution did

not present sufficient evidence of premeditation, the “issue is a matter of state law

for which federal habeas corpus relief does not lie.” Preston, 

,

at *11.

       We think that Preston’s claim, as reformulated on appeal before this Court,

is plainly a federal one. But now Preston has a different problem: the federal due

process version of his sufficiency of the evidence claim was asserted for the very

first time in his reply to the state’s response to his federal habeas petition. He did

not present his claim as a federal claim to the Florida Supreme Court on direct

appeal, nor in any subsequent state petition for post-conviction relief, nor even in

the habeas petition he filed in federal district court. 5 We hold, therefore, that


4
  At the end of the district court’s analysis, it observed that “relief must be denied based on
section 2254(d)” because “[t]he claim was adjudicated on the merits by the Florida Supreme
Court,” and Preston could not show that he was entitled to relief under section 2254(d)(1) or (2).
We do not read the district court’s statement that the claim was “adjudicated on the merits” to be
a conclusion that Preston had exhausted his federal claim; instead, the district court was noting
that Preston could not meet the standard for federal habeas relief. But, to the extent the district
court’s opinion is read as concluding that Preston had exhausted his claim, that would be
erroneous, for the reasons we explain at some length.
5
  Although we think it dubious that a petitioner can wait until his memorandum in opposition to
the state’s response to fully present his federal claims, cf. Lovett v. Ray, 

, 1183
(11th Cir. 2003) (refusing to consider arguments presented for the first time in a reply brief), we


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Preston failed to exhaust his federal claim in the Florida courts, and he is

procedurally barred from asserting it on federal habeas review.

       It is by now axiomatic that, before seeking habeas relief under § 2254, a

petitioner “must exhaust all state court remedies available for challenging his

conviction.” 

; see 28 U.S.C. § 2254(b)(1). “For a federal

claim to be exhausted, the petitioner must have fairly presented [it] to the state

courts.” 

(alteration in original) (quotation omitted). The

purpose of the exhaustion requirement is straightforward: the petitioner must have

given the state courts a “meaningful opportunity” to address his federal claim.

McNair v. Campbell, 

, 1302 (11th Cir. 2005) (quotation omitted).

That is, the state courts must have had an “‘opportunity to apply controlling legal

principles to the facts bearing upon [the petitioner’s federal] constitutional claim.’”

Kelley v. Sec’y for Dep’t of Corr., 

, 1344 (11th Cir. 2004) (quoting

Picard v. Connor, 

, 277 (1971)). Ultimately, “to exhaust state

remedies fully[,] the petitioner must make the state court aware that the claims

asserted present federal constitutional issues.” Jimenez v. Fla. Dep’t of Corr., 

, 1342 (11th Cir. 2007) (per curiam) (quotation omitted).




assume without deciding that Preston did not waive his claim by failing to present it as a matter
of federal due process in his federal habeas petition.



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      Of course, a petitioner need not use magic words or talismanic phrases to

present his federal claim to the state courts. The Supreme Court has suggested that

a petitioner can exhaust his claim by, for example, “including . . . ‘the federal

source of law on which he relies or a case deciding such a claim on federal

grounds, or by simply labeling the claim [as a federal one].’” 

(quoting Baldwin v. Reese, 

, 32 (2004)). He “is not required to

cite ‘book and verse on the federal constitution.’” 

404 U.S. at

278). Nor are we so “draconian or formalistic as to require petitioners to give a

separate federal law heading to each of the claims they raise in state court to ensure

exhaustion for federal review.” 

. It is not, however,

“sufficient merely that the federal habeas petitioner has been through the state

courts, nor is it sufficient that all the facts necessary to support the claim were

before the state courts or that a somewhat similar state-law claim was made.” 

(citation omitted). The crux of the exhaustion requirement is simply

that the petitioner must have put the state court on notice that he intended to raise a

federal claim.

      In a pair of cases, we’ve provided important guidance on what petitioners

must do to exhaust. In McNair v. Campbell, the petitioner claimed that the jury

improperly considered extraneous evidence during its 

. At the outset, we noted that the “exhaustion doctrine requires a habeas


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applicant to do more than scatter some makeshift needles in the haystack of the

state court record.” 

(quotation omitted). Before the Alabama Supreme

Court, the petitioner couched his argument in terms of state law, with only two

references to federal law: a single federal district court case, found in a seven-case

string citation, and a blanket statement in closing that both his federal and state

constitutional rights were violated. 

not mention “the federal standard

that extraneous evidence is presumptively prejudicial,” nor did he cite “any United

States Supreme Court or federal appellate court case dealing with extraneous

evidence.” 

-04. Because the gravamen of his claim, as presented to the

state courts, dealt with state law, we held that the petitioner failed to exhaust his

federal claim.

      We were confronted with a somewhat different scenario in Lucas v.

Secretary, Department of Corrections, where the petitioner failed to specify

whether his claim arose under state or federal law in his briefing before the Florida

Supreme Court. He averred only that he had been deprived “of his constitutional

right of confrontation of witnesses against him.” 

(quotation omitted). The difficulty was that both the federal and Florida

Constitutions grant a right to confront witnesses. 

did not cite to

any cases discussing the confrontation right, nor did he refer to any specific

constitutional provisions. 

His allusion to a “constitutional right of


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confrontation,” standing alone, did not “fairly apprise[] the state court of his

federal constitutional right-to-confrontation claim.” 

(emphasis

added). Our conclusion was guided in substantial measure by the Supreme Court’s

decision in Baldwin v. Reese, where the petitioner asserted an ineffective

assistance of counsel 

. Much like the petitioner in Lucas, the

petitioner in Baldwin did not explain whether his claim arose under the federal or

Oregon Constitution. 

The Supreme Court, therefore, held that his mere

reference to “ineffective assistance” did not fairly present a federal claim. 

Together, Lucas and Baldwin stand for the proposition that a petitioner with a

claim that could arise under either state or federal law must clearly indicate to the

state courts that he intends to bring a federal claim.

       Preston did not even hint to the Florida Supreme Court that he intended to

raise a federal claim. 6 In fact, the first indication that his sufficiency of the


6
  At oral argument, counsel for Preston suggested for the first time that Preston couched his
motion for judgment of acquittal before the trial court in terms of federal due process. Preston
first moved for acquittal when the state rested. At that time, however, trial counsel stated only
that there was “no evidence” of premeditation, and that the evidence instead indicated that
Walker had died as a result of “sudden combat.” And, when Preston moved for acquittal at the
close of the trial, counsel explained, relying on state law, that “circumstantial evidence must . . .
be inconsistent with any reasonable theory . . . of . . . the Defendant’s innocence.” On neither
occasion did Preston mention Jackson, the Due Process Clause, or any other provision of federal
law. But, even if Preston had framed his claim as a federal one before the trial court, what
matters is how he characterized the claim in his briefing before the Florida Supreme Court. The
Supreme Court has observed that a petitioner “does not ‘fairly present’ a claim to a state court if
that court must read beyond a petition or a brief (or a similar document) that does not alert it to
the presence of a federal claim in order to find material, such as a lower court opinion in the
case, that does so.” 

. Florida’s high court was under no obligation to


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evidence claim was a federal one came in his reply to the state’s response to his

federal habeas petition -- not in his briefing before the Florida Supreme Court and

subsequent petitions for state post-conviction relief, nor even in his federal habeas

petition. In his initial brief to the Florida Supreme Court, Preston simply claimed

that “the record . . . fails to contain sufficient evidence . . . of premeditation.” He

did not cite a single federal case, and relied instead on a panoply of Florida cases

discussing the element of premeditation, as defined by state law. He never

mentioned the federal Due Process Clause or, indeed, any other federal

constitutional provision. This renders Preston even worse off than the petitioner in

McNair, who at least raised a federal case and referred, albeit ambiguously, to

deprivations of constitutional rights. 

. Moreover, Preston did

not cite Jackson v. Virginia, nor even mention the Jackson standard for assessing

sufficiency of the evidence challenges. See 

. Cf. 

(noting that the petitioner failed to mention the federal standard

applicable to his claim).




review the trial transcript to discern the legal foundation for Preston’s claim. But even had it
done so, it would not have been fairly told that Preston was raising a federal constitutional claim
grounded in Jackson and the Due Process Clause.




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      Instead, Preston asserted in his brief that his conviction rested on insufficient

evidence, without clarifying whether he intended to bring a federal or a state

sufficiency of the evidence claim. Much like the petitioners in Lucas and Baldwin,

Preston invoked a phrase common to both federal and state law without explaining

which body of law provided the basis for his claim. “Simply referring” to

sufficiency of the evidence “is not a sufficient reference to a federal claim, any

more than a reference to” a constitutional right of confrontation of witnesses,

, or ineffective assistance of counsel, 

-33, was sufficient in the past. It is also noteworthy that Preston’s briefing made

reference to the Constitution, including due process, “in respect to other claims but

not in respect to this one.” 

. The Florida Supreme Court

could reasonably conclude (as it undoubtedly did) that when Preston claimed the

evidence used to obtain his conviction was insufficient, he meant to challenge that

conviction on the basis of state law alone. The long and short of it is that Preston

failed to even scatter some “makeshift needles in the haystack of the state court

record.” 

(quotation omitted).

      The rest of the appellate proceeding unfolded as one might expect. The

state, for its part, did not refer to any federal cases or federal constitutional

provisions. Preston’s reply brief also did not refer to federal law in any way. And,

in addressing Preston’s sufficiency of the evidence challenge, the Florida Supreme


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Court relied entirely on Florida cases and Florida law. It never once referred to

any rule of federal law, let alone the Due Process Clause, in resolving Preston’s

claim. Preston 

. Why would it? After all, “[i]f state courts

are to be given the opportunity to correct alleged violations of prisoners’ federal

rights, they must surely be alerted to the fact that the prisoners are asserting claims

under the United States Constitution.” Duncan v. Henry, 

, 365-66

(1995) (per curiam). Under these circumstances, Preston “cannot be said to have

fairly apprised the state court of his federal . . . claim.” 

.

Florida’s high court cannot be faulted for failing to sift through the tea leaves of

Preston’s briefing to reveal a federal claim that he never raised, expressly or

otherwise. We, therefore, conclude that Preston failed to exhaust his federal

Jackson claim before Florida’s courts.

                                          B.

      Preston cannot, and does not, argue that he ever expressly raised a federal

sufficiency of the evidence claim before the Florida Supreme Court. Instead, he

says that raising a state sufficiency of the evidence claim suffices to raise a federal

Jackson claim. More broadly, Preston’s argument would suggest that a petitioner’s

assertion of a state claim serves to exhaust an analogous and identical federal

claim. This question was left open in Baldwin, since the Supreme Court declined

to consider whether, “where . . . identity exists, a petitioner need not indicate a


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claim’s federal nature, because, by raising a state-law claim, he would necessarily

‘fairly present’ the corresponding federal 

. Preston

claims that this rule has been adopted in several unpublished opinions of this

Court, see, e.g., Mulnix v. Sec’y for Dep’t of Corr., 254 F. App’x 763, 764-65

(11th Cir. 2007) (per curiam), as well as by several of our sister circuits, see, e.g.,

Jackson v. Edwards, 

, 621 (2d Cir. 2005). At the same time, other

opinions of this Court have suggested that raising a state claim does not exhaust an

identical federal one. See, e.g., Ramos v. Sec’y, Fla. Dep’t of Corr., 441 F. App’x

689, 697 (11th Cir. 2011) (per curiam); Pearson v. Sec’y, Dep’t of Corr., 273 F.

App’x 847, 850 (11th Cir. 2008) (per curiam).

      As we see it, it is not at all clear that a petitioner can exhaust a federal claim

by raising an analogous state claim. In light of Lucas, simply mentioning a phrase

common to both state and federal law, like “sufficiency of the evidence,” cannot

constitute fairly presenting a federal claim to the state courts. And, as the Supreme

Court has explained, “[i]t is not enough that . . . a somewhat similar state-law claim

was made.” Anderson v. Harless, 

, 6 (1982) (per curiam) (emphasis

added). What’s more, it strikes us as surpassing strange to say that the Florida

Supreme Court reached a decision that was “contrary to, or involved an

unreasonable application of” Jackson, a case that was never presented to the court

and that the court, therefore, had no opportunity to consider. See 28 U.S.C. §


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2254(d). 7 Nevertheless, we need not, and do not, decide this question because

Preston’s state and federal sufficiency of the evidence claims are plainly not

identical. Thus, even if we were disposed to adopt the general rule he urges, it

would do him no good.

       For starters, in cases turning on circumstantial evidence, the Florida standard

for assessing a sufficiency of the evidence challenge differs greatly from the

federal standard. While Florida may apply the Jackson standard in resolving an

ordinary sufficiency claim, see, e.g., Melendez v. State, 

, 1261

(Fla. 1986), a “special standard of review of the sufficiency of the evidence applies

where a conviction is wholly based on circumstantial evidence,” or “predicated

chiefly upon circumstantial evidence,” Thorp v. State, 

, 389 (Fla.

2000) (per curiam) (quotation omitted). It is an age-old rule in Florida that

“[w]here the only proof of guilt is circumstantial, no matter how strongly the

evidence may suggest guilt, a conviction cannot be sustained unless the evidence is

inconsistent with any reasonable hypothesis of innocence.” 

see, e.g. Lowe v. State, 

, 830 (Fla. 1925) (requiring that the



7
  In Jackson, the Supreme Court explained that a petitioner who alleges that the evidence to
support his conviction was insufficient “has stated a federal constitutional 

. But the Court did not mean that a petitioner need not exhaust his federal constitutional
claim before the state courts, because the Court explained in the very next sentence that such a
claim is cognizable only “assuming that state remedies have been exhausted.” 

12-14706        Date Filed: 04/29/2015        Page: 24 of 38


evidence be “irreconcilable with any reasonable theory of [the defendant’s]

innocence and exclude to a moral certainty every hypothesis but that of his guilt”).

       It is precisely the Florida rule, however, that the Supreme Court has rejected

as a matter of federal law. In Jackson, the case upon which Preston rests his entire

sufficiency of the evidence challenge, the Court instructed that a petitioner is

entitled to relief under the Due Process Clause only if “no rational trier of fact

could have found proof of [his] guilt beyond a reasonable doubt.” 

. Under federal law, the prosecution does not have “an affirmative duty

to rule out every hypothesis except that of guilt beyond a reasonable doubt.” 

This remains true even when the only evidence relied on is “circumstantial

evidence in the record.” 

Thus, in cases involving circumstantial

evidence, whether a defendant raises his sufficiency claim in terms of state or

federal law can matter a great deal.

       Preston invoked and relied upon Florida’s unique rule for convictions based

on circumstantial evidence in challenging his conviction. In his briefing before the

Florida Supreme Court, Preston stated that “[a]lthough containing compelling

evidence, the record in this case is solely circumstantial.” 8 (The court, in turn,


8
  Toward the end of this section of his briefing before the Florida Supreme Court, Preston
mentioned that “[t]he only direct evidence of intent” presented at trial was Preston’s request that
Scott go with him “to get some money.” We do not read this statement to contradict Preston’s
earlier assertion, accepted by the Florida Supreme Court, that the evidence was “solely
circumstantial.” His statements were not direct evidence of his premeditation in the killing of


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referred to this admission in its opinion. Preston 

.) In

response, the state observed that while Preston claimed the evidence was

circumstantial, he made “no argument that it is insufficient because of any

reasonable hypothesis of innocence advanced.” That is, the state acknowledged

the pertinent legal standard under Florida law, but noted that Preston never

explained how the state failed to meet it. Preston then stated in his reply brief that,

under Florida law, “‘[w]here the only proof of guilt is circumstantial . . . a

conviction cannot be sustained unless the evidence is inconsistent with any

reasonable hypothesis of innocence,’” quoting McArthur v. State, 

,

976 n.12 (Fla. 1977). We can safely assume that when the Florida Supreme Court

considered Preston’s appeal, it did so through the prism of this longstanding state

doctrine, rather than federal law. The Florida Supreme Court had no opportunity

to even consider federal law, because, as we’ve explained, Preston never once

raised Jackson, the Jackson standard, any federal cases, the Due Process Clause or

any other constitutional provisions, or, indeed, even referenced the word “federal”

in his briefing on this claim.

       Any federal claim that Preston could have brought would have been judged

by a different standard than the state claim he actually did bring. This fact alone



Earline Walker, and, even if they were, Preston’s conviction was still “predicated chiefly upon
circumstantial evidence.” 

.


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renders this case substantially and meaningfully different from Mulnix v. Secretary

for the Department of Corrections, 254 F. App’x 763, as well as from the cases

from other circuits cited by Preston. In Mulnix, an unpublished opinion, a panel of

this Court concluded that the petitioner had exhausted his federal sufficiency of the

evidence claim by bringing an analogous claim under state law. 

We

concluded that “[his] state and federal claims were not merely similar,” but

“identical,” because Florida would apply the Jackson standard in considering a

state sufficiency of the evidence claim. 

That may well be true as a

general matter. But, as we’ve explained, a different rule applies under Florida law

when a conviction is premised solely or chiefly on circumstantial evidence.

Preston invoked and relied upon that rule before the Florida Supreme Court, and he

cannot now gloss over this important dissimilarity between Florida law and federal

law. This case is much closer to Pearson v. Secretary, Department of Corrections,

where the petitioner advanced a sufficiency of the evidence claim based on the

argument that “there was no evidence of reasonable fear on the part of the victim,

as defined by state law.” 273 F. App’x at 850. Like the petitioner in Pearson,

Preston relied on a unique rule of state law, “cited exclusively to state cases, and

all of his substantive arguments addressed Florida law.” 

Preston’s

brief “would have alerted the state court to the presence of a federal claim about




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due process.” 

that reason, Preston did not exhaust the federal claim

he now seeks to raise.

      Nor can we say that the Florida Supreme Court’s decision denying relief as a

matter of Florida law, which appears to be more defendant-friendly when it comes

to circumstantial evidence, effectively served as a denial of federal relief as well.

To the best of our knowledge, no court has said that a petitioner can exhaust a

federal claim by bringing a similar state law claim governed by a less stringent

legal standard. We decline to adopt an approach which would force the federal

courts to arbitrarily determine whether the federal standard is “easier” or “harder”

to meet than the state standard in a given case. Sometimes the standards will

simply be different. We think it far more straightforward to simply require that

when petitioners intend to bring a federal claim, they say so, in words or substance.

We also do not think that this requirement places a particularly onerous burden on

state prisoners, who need only indicate to the state courts that they intend to raise a

federal claim.

      Preston’s failure to exhaust means that his federal claim has been

procedurally defaulted. “A petitioner who fails to exhaust his claim is procedurally

barred from pursuing that claim on habeas review in federal court unless he shows

either cause for and actual prejudice from the default or a fundamental miscarriage

of justice from applying the default.” 

. On appeal, Preston


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has not made, or even attempted to make, such a showing.9 He therefore cannot

obtain relief on his Jackson claim.

                                                 IV.

       But, even if Preston had exhausted his Jackson claim, his claim would still

fail on the merits. We review de novo the district court’s disposition of Preston’s

habeas petition. Peterka v. McNeil, 

, 1200 (11th Cir. 2008). The

district court concluded that the weight of the evidence presented at Preston’s trial

“mandates the denial of [his] claim.” Preston, 

, at *13. We

agree. After thorough review of the record, we are confident that the Florida

Supreme Court did not unreasonably determine that a rational trier of fact could

find Preston’s decision to murder Earline Walker was undertaken with

premeditated design.

       The Due Process Clause “prohibits the criminal conviction of any person

except upon proof of guilt beyond a reasonable doubt.” 

.

As the Supreme Court explained in Jackson, “a state prisoner who alleges that the

evidence in support of his state conviction cannot be fairly characterized as

sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt


9
  In his reply brief before the district court, Preston asserted merely that “[i]neffective assistance
of trial and appellate counsel ha[s] been alleged” throughout, and that prejudice was shown by
the fact that he was found guilty and sentenced to death. This highly general showing does not
establish cause and prejudice sufficient to excuse his default. In any event, no such argument has
been advanced in this Court.


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has stated a federal constitutional claim.” 

The Court, however, has

subsequently “made clear that Jackson claims face a high bar in federal habeas

proceedings because they are subject to two layers of judicial deference.”

Coleman v. Johnson, 

, 2062 (2012) (per curiam). That is:

       First, on direct appeal, it is the responsibility of the jury -- not the
       court -- to decide what conclusions should be drawn from evidence
       admitted at trial. A reviewing court may set aside the jury’s verdict
       on the ground of insufficient evidence only if no rational trier of fact
       could have agreed with the jury. And second, on habeas review, a
       federal court may not overturn a state court decision rejecting a
       sufficiency of the evidence challenge simply because the federal court
       disagrees with the state court. The federal court instead may do so
       only if the state court decision was objectively unreasonable.

quotations omitted). “[T]he only question under Jackson is

whether [the jury’s] finding was so insupportable as to fall below the threshold of

bare rationality,” and the state court’s determination that it was not “in turn is

entitled to considerable deference under AEDPA.” 

10

       In assessing the sufficiency of the evidence, we ask whether “any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” 

. Preston asserts that we must look to

10
  Preston asserts both that the Florida Supreme Court’s decision was “contrary to, or [involved]
an unreasonable application of” clearly established federal law, and that it “was based on an
unreasonable determination of the facts.” He does not, however, dispute any of the Florida
Supreme Court’s specific factual findings. We construe his claim as an argument that the court
unreasonably applied Jackson in determining that the state presented sufficient evidence of
premeditation. Either way, we must determine whether the Florida Supreme Court’s decision
was “objectively unreasonable.” 

.



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Florida’s heightened burden of proof for cases involving circumstantial evidence,

which “recognizes that the State has the burden in a circumstantial case to

eliminate every reasonable hypothesis of innocence.” As we’ve explained,

however, the Florida rule and the federal rule are significantly different. Under

Jackson, the prosecution does not have “an affirmative duty to rule out every

hypothesis except that of guilt beyond a reasonable 

. 11

“When the record reflects facts that support conflicting inferences, there is a

presumption that the jury resolved those conflicts in favor of the prosecution and

against the defendant.” Johnson v. Alabama, 

, 1172 (11th Cir.

2001). Florida’s circumstantial evidence rule, therefore, “has no place in our

sufficiency of the evidence analysis.” Wilcox v. Ford, 

, 1145 n.7

(11th Cir. 1987).

          We do, however, “look to state law for the substantive elements of the

criminal offense.” 

(quotation omitted). Under

Florida law, “[a] premeditated design to take the life of the person killed or any
11
     In the past, we have indicated that

          [o]nly in a case where the failure to meet a higher state burden of proof raises
          independent constitutional concerns -- for example, a violation of due process
          through the arbitrary or discriminatory failure to apply a state procedural rule --
          would a federal court on collateral review examine the evidence to determine
          whether the state had met its self-imposed burden.

Bishop v. Kelso, 

, 1473 (11th Cir. 1990) (footnote omitted). Preston has not
attempted to make a showing that the state’s failure was in some way arbitrary or discriminatory,
nor could he.


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human being is an essential element of the crime of murder in the first degree.”

Forehand v. State, 

, 242 (Fla. 1936). Premeditation is defined as “a

fully formed conscious purpose to kill which may be formed a moment before the

act but must exist for a sufficient length of time to permit reflection as to the nature

of the act to be committed and the probable result of that act.” Kocaker v. State,

, 1226 (Fla. 2013) (per curiam) (quotation omitted). Premeditation

is a question of fact which can be established through circumstantial evidence,

including “such matters as the nature of the weapon used, the presence or absence

of adequate provocation, previous difficulties between the parties, the manner in

which the homicide was committed, and the nature and manner of the wounds

inflicted.” 

      Florida’s high court rested its conclusion on three critical pieces of evidence:

(1) the nature of the wounds inflicted upon Earline Walker’s body; (2) the type of

weapon used to inflict those wounds; and (3) Preston’s statements in the hours

before and after Walker was killed. To this ample evidence, we would add what

the jury could, quite reasonably, infer: that Preston drove with Walker to a distant

location -- an open field, over a mile and a half away -- before he ultimately

undressed and then killed her, which is itself strongly suggestive of a premeditated

design. The record, taken as a whole and in conjunction with reasonable

inferences that the jury could draw, was plainly sufficient to establish


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premeditation. We cannot say that the Florida Supreme Court’s decision was

erroneous, let alone that it was “objectively unreasonable.”

      The Florida Supreme Court first considered the wounds suffered by Earline

Walker. The Florida courts have explained time and again that the nature of a

victim’s wounds is relevant to the question of premeditation. See, e.g., Kocaker v.

; Miller v. State, 

, 228 (Fla. 2010) (per

curiam); Perry v. State, 

, 85-86 (Fla. 2001) (per curiam). “Although

multiple stab wounds alone do not prove premeditation, the nature and location of

these wounds [may] support [a] finding of premeditation.” 

.

For example, “the deliberate use of a knife to stab a victim multiple times in vital

organs,” including the chest and neck, “is evidence that can support a finding of

premeditation.” 

And the fact that “[t]he force of the stabbing was

great” can also support a finding of premeditation. 

.

      In this case, uncontested record evidence established that the “multiple stab

wounds” sustained by Walker were “particularly brutal.” Preston 

. Most importantly, “[t]here was almost a complete severance of her neck,

trachea, carotid arteries[,] and jugular vein.” 

as Preston

stresses, that this killing blow -- the slash to the neck -- was inflicted from behind,




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that fact undermines, rather than supports, his case. 12 The jury could reasonably

have thought that the evidence reflected an execution-style attack, meant to kill

Walker before she could cry out for help. The swift, brutal slash to Walker’s neck

alone is indicative of Preston’s premeditated design to take her life. But Preston

continued to stab Walker, with at least one blow landing in her liver, which the

jury could have viewed as an indication that he made a conscious decision to

continue inflicting wounds to ensure that she would not survive the assault.

       Two particular wounds that Preston inflicted upon Walker after she died also

suggest premeditation. First, her body was found with a cross mark deliberately

cut into her forehead, a time-consuming act wholly consistent with premeditation.

Second, she suffered a puncture wound nearly eight centimeters long inside her

vagina. The jury could well have concluded that these particular injuries suggested

a deliberate plan to kill Walker and then to physically mark her body.

       The nature of the weapon used to kill Walker also supports the jury’s finding

of premeditation. She was murdered with a four to five inch blade, rather than, for
12
  Preston relies on a Minnesota case, State v. Swain, which concluded that a series of blows,
inflicted from behind, did not by itself suffice to establish premeditation. 

, 713-
14 (Minn. 1978). That case is factually distinguishable because it involved a blunt strike to the
back of the head, rather than a brutal slash to the throat, followed by multiple stab wounds to the
rest of the body. See 

The latter clearly suggests a plan to kill in a way that hitting
someone over the head does not. But, even if Swain were on all fours with this case, it does not
establish that the Florida Supreme Court’s decision was contrary to or an unreasonable
application of clearly established Supreme Court law.




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example, a kitchen knife picked up in the heat of the moment. We place less

emphasis on this detail, because record evidence -- the testimony of Maxwell --

established that Preston habitually carried such a weapon. If the jury credited her

testimony, it would undermine a finding of premeditation, because it indicates that

Preston did not necessarily acquire the weapon for the purpose of committing a

murder. But the jury could reasonably have discredited her testimony, particularly

in light of Preston’s own testimony that he carried only a small pen-knife after

losing his buck knife in Georgia two years before the murder, or concluded that

Preston carried the weapon in question on this particular night to aid in a violent

crime. Whether he carried the knife habitually or not, the deadliness of the weapon

belies any assertion by Preston that he could not have known that his actions would

result in the death of Walker. In any event, the Florida Supreme Court could

reasonably rely on the nature of the weapon in its calculus.

      Preston’s own statements on the eve of the murder also suggest

premeditation. Preston asked his brother, Scott, to go with him to the Parliament

House because he “knew a way to get some money.” Scott refused to go with

Preston, and Preston then left the home. Preston returned to the home with some

money at about 4:30 a.m. When he returned, he was in an excited state and

exclaimed, “All right. I did it.” While Scott and Maxwell helped Preston count the

money, Preston explained that he got the money after he and a friend robbed “two


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gay people” at the Parliament House. Preston does not dispute that he made these

statements. The jury reasonably could have inferred from this uncontroverted

record evidence that Preston set out that night planning to commit a robbery

through violent means. He decided to rob the Li’l Champ convenience store, and

afterward, he killed Earline Walker. Later, he attempted to cover up his crime by

concocting a story about robbing the Parliament House -- a robbery which,

according to uncontroverted testimony, never took place. The Florida Supreme

Court’s conclusion that a trier of fact could have viewed these statements as

indicative of premeditation was not objectively unreasonable.

       Lastly, we note that the events leading up to Walker’s murder also show

premeditation. The essence of premeditation is design, and design is exactly what

Preston’s actions reflect. The jury could reasonably have inferred that after

Preston robbed the convenience store, he forced Walker, the only witness to the

robbery, 13 to lock the store and then leave with him. The two drove roughly a mile

and a half away in Walker’s car. They parked, and Preston forced Walker to walk

several hundred feet into an open field, in the dead of night, and far from any


13
   Preston argues that the jury could not have inferred from the evidence presented at trial that he
killed Walker to eliminate any potential witnesses to the robbery, because the first sentencing
court expressly did not find the “avoiding arrest” aggravating factor. We do not see how the trial
court’s sentencing decision in any way affected the inferences the jury was permitted to draw
during guilt-phase deliberations. Moreover, the sentencing court after Preston’s third penalty
phase trial did find that aggravating factor, after the state introduced substantially the same
testimony.


                                                 35
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potential witnesses. He forced her to disrobe. And then he killed her, swiftly and

brutally. While the Florida Supreme Court did not discuss these inferences in the

course of its premeditation analysis, the record before the jury strongly supported

this version of events, and the jury was entitled to consider them in weighing the

evidence of premeditation. As the Supreme Court has instructed, “a habeas court

must determine what arguments or theories supported or . . . could have supported,

the state court’s decision.” 

. On these facts, we cannot say

that no rational jury could have found premeditation, let alone that the Florida

Supreme Court’s conclusion to that effect was objectively unreasonable.

      Preston disputes the jury’s finding of premeditation on the ground that all of

the evidence is consistent with an alternative theory: that he was under the

influence of PCP on the night of the murder, and killed Walker in a frenzied attack.

According to Preston, this theory accounts for the multiple stab wounds on

Walker’s body, as well as Walker’s apparent compliance with Preston’s demands.

Preston’s theory has little factual support, since no evidence was introduced at trial

showing that he actually consumed PCP that night, aside from his own testimony.

Maxwell’s testimony only established that Preston attempted to get his brother and

Maxwell to help him consume some PCP, that he habitually took PCP, and that

“[h]e appeared to be” on PCP when he returned, but Maxwell couldn’t “say for

sure because [she] really [didn’t] know.” The remainder of the testimony at trial


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centered on Preston’s history of drug abuse and how his behavior on the night of

January 9 could have been consistent with the usage of PCP or other drugs.

       Leaving the lack of evidence to support his theory aside, Preston’s argument,

at best, presents a reasonable hypothesis of innocence consistent with the evidence

adduced at trial. 14 As we reiterate once more, we do not apply Florida’s special

burden of proof for cases involving circumstantial evidence, and the prosecution

was under no obligation to exclude every hypothesis other than guilt. Applying,

instead, the rule stated in Jackson, a rational trier of fact could well have weighed

the evidence and found that it showed premeditation, rather than a PCP-induced

frenzied attack.

       In sum, the nature of the wounds inflicted on Walker’s body, the weapon

used to inflict those wounds, the statements Preston made on the eve of the murder,

and his decision (after robbing the convenience store) to take Walker to an open

field over a mile and a half away before undressing and killing her all powerfully

suggest premeditation. We, therefore, hold that the Florida Supreme Court’s

conclusion that the state presented sufficient evidence of premeditation was not

objectively unreasonable.




14
  As does counsel’s suggestion at oral argument that Preston could have transported Walker to
the field solely to commit a sex crime.



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                                          V.

      The irony in this sad case is not lost on this Court. To show exhaustion,

Preston attempts to disavow any reliance on Florida’s rule regarding circumstantial

evidence, and asserts that his claim, from the very beginning, was predicated on

Jackson. Yet, on the merits, Preston turns once again to the more favorable

principles of Florida’s state law. Preston’s argument is unavailing because, in

actuality, his claim has always been grounded in principles of state law. He did not

present his claim as a federal one before the state courts, and he is procedurally

barred from now asserting it on habeas review. But, even if we were to overlook

that failure, Preston cannot meet the applicable federal standard, as stated in

Jackson. Thus, we affirm the denial of his federal habeas petition.

      AFFIRMED.




                                          38