ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

Petitioner Alexander Walker, Jr., an inmate in the Florida Department of Corrections proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). He challenges his convictions for trafficking in illegal drugs entered by the Circuit Court for the Sixth Judicial Circuit, Pinellas County. Respondent filed a response (Doc. 12), in which it concedes the timeliness of Walker's petition. Walker filed a reply (Doc. 17). Upon review, the petition must be denied.

PROCEDURAL HISTORY

In both case number CRC04-00285CFANO and case number CRC04-00286CFANO, Walker was charged with one count of trafficking in illegal drugs. (Doc. 14, Ex. 1.) A jury convicted him in case number CRC04-00285CFANO on August 31, 2005. (Doc. 14, Ex. 3.) The state trial court sentenced him to life in prison as a habitual felony offender ("HFO") on December 22, 2005. (Doc. 14, Ex. 4.) After a jury convicted Walker in case number CRC05-00286CFANO on October 5, 2006, he received a sentence of life in prison as a HFO. (Doc. 14, Exs. 6, 7.)

The state appellate court affirmed Walker's convictions in both cases but reversed his sentences because the State did not present sufficient proof to establish he qualified as a HFO. Walker v. State, 964 So.2d 886 (Fla. 2d DCA 2007); Walker v. State, 988 So.2d 6 (Fla. 2d DCA 2007). The state appellate court remanded for resentencing under the Criminal Punishment Code. Id.1

The Florida Supreme Court quashed the state appellate court's decisions, and remanded pursuant to State v. Collins, 985 So.2d 985 (Fla. 2008), which provides that when a habitual offender sentence is reversed because of insufficient evidence, the State may present evidence of a defendant's habitual offender qualification upon resentencing. State v. Walker, 992 So.2d 232 (Fla. 2008); State v. Walker, 994 So.2d 973 (Fla. 2008). On April 24, 2009, Walker again received a life sentence as a HFO in each case. (Doc. 14, Ex. 13, pp. 88, 89.) The state appellate court per curiam affirmed both sentences on March 17, 2010. (Doc. 14, Ex. 8.)

Walker filed a postconviction motion under Florida Rule of Criminal Procedure 3.850, as well as supplemental pleadings. (Doc. 14, Exs. 9, 11, 12.) The state postconviction court denied Walker's motions. (Doc. 14, Exs. 13, 14.) The state appellate court per curiam affirmed the denial. (Doc. 14, Ex. 15.) Walker v. State, 151 So.3d 1253 (Fla. 2d DCA 2014) (table).

FACTS2

A. Background

In 2002, Theodore Little faced criminal charges. He began providing assistance as a confidential informant for the St. Petersburg Police Department to "work off" his charges, for which he ultimately received time served. Afterwards, he continued as a confidential informant and was paid for providing this subsequent assistance. Working as an informant, Little was the buyer in drug transactions relevant to Walker's cases.

Detective Robert Mailhiot explained that prior to such transactions on July 15, 2003, and July 24, 2003, he placed on Little a digital recording device to record the transactions. Mailhiot also gave Little money to make the purchases. Mailhiot then followed Little to the location where he anticipated meeting Walker and conducted surveillance. Following the transactions, Little provided Mailhiot with the drugs he purchased. Subsequent testing showed the drugs to be heroin.

B. Events Of July 15, 2003: Case Number CRC04-00286CFANO3

On July 15, 2003, Little was directed to the home of Carrie Roberson, Walker's mother-in-law, to make contact with Walker. Little asked Walker for a "ball," which Little explained is 3.5 grams of cocaine or heroin. Walker left and proceeded to a different location, where he provided an item to his niece, Nicole Roberson.4 He directed her to give it to Little, and told her that Little would give her $1,000.

Nicole Roberson returned to Carrie Roberson's house, where Little was waiting. When Little got in her car, Nicole Roberson gave the item5 to him, and he gave her cash. While still in the car, Little counted forty-five small bags of drugs. After Little exited the car, Nicole Roberson stated, she made contact with Walker down the street and gave him the money. The State played the audiotape from the recording device that was placed on Little. Mailhiot stated that he recognized the voices of Walker and Little on the recording. Forensic chemist Diane Davis later determined that the substance inside the small bags was heroin, and that the total weight of the heroin was 4.6 grams.

Detective Anthony Harris was the "close cover" unit officer during this transaction. He went to the area of Carrie Roberson's house prior to Little's arrival and observed the activity there. After Nicole Roberson left the house, Harris followed her. He saw Nicole Roberson's car and a car he previously had observed Walker driving stopped side by side in the middle of a street. Harris was in a position to see any exchange between the drivers of the cars, but did not see such activity. He also did not observe whether Walker was driving the car.

C. Events Of July 24, 2003: Case Number CRC04-00285CFANO

On July 24, 2003, Little again went to Carrie Roberson's house. Once inside, Little spoke with Juanita Walker, who was Walker's wife, Precious Nelson, who was Walker's niece, and others. After some time, Walker and an unknown man referred to as Deemo6 arrived. Walker proceeded into the kitchen. In the living room, by the television, Deemo handed Little the drugs. In Deemo's presence, Little counted fifty-six small bags of heroin. The State played an audio tape from the recording device Walker wore, and Mailhiot identified one of the voices on the tape as Walker's. Chief forensic chemist Michael Gilbert testified that the substance in the fifty-six small bags tested positive for heroin and had a total weight of 4.6 grams.

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, 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, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. In other words, "AEDPA prevents defendants — and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt'. . . .") (citations omitted). In a per curiam decision without written opinion, the state appellate court affirmed the denial of Walker's postconviction motion. The state appellate court's per curiam decision warrants deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). Review of the state court decision is limited to the record that was before the state court. Pinholster, 131 S. Ct. at 1398. Walker bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

EXHAUSTION OF STATE COURT REMEDIES; PROCEDURAL DEFAULT

Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he prese nts those claims to a federal court in a habeas petition."). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).

To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).

The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The petitioner must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892; Crawford v. Head,, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

A petitioner may also obtain federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892.

INEFFECTIVE ASSISTANCE OF COUNSEL

Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). In order to show deficient performance, a petitioner must demonstrate that "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.

Walker must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Counsel's strategic ch oices "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Sustaining a claim of ineffective assistance of counsel on federal habeas review is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 131 S. Ct. at 1410 (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").

If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test'stwo prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").

DISCUSSION

Ground One

Walker argues that counsel was ineffective in each case for not raising a challenge to the calculation of the heroin weight when he moved for a judgment of acquittal. In each case, the State was required to prove that the amount of heroin was at least 4 grams to establish trafficking in illegal drugs. See § 893.135(1)(c), Fla. Stat.

A. Case Number CRC04-00285CFANO (July 24, 2003 Transaction Inside The House Involving Deemo)

Walker contends that counsel was ineffective for failing to argue that because the State did not prove each of the fifty-six small bags contained heroin before combining them for testing, the necessary weight was not established. The state court summarily denied Walker's claim:

(Doc. 14, Ex. 13, pp. 90-91) (court's record citations omitted).

The record supports the state court's finding. At trial, the State asked Gilbert about testing and weighing the substance:

(Doc. 14, Ex. 2, pp. 226-27.) The record shows that the state court accurately summarized Gilbert's testimony that the substance contained in each bag tested positive for heroin. Accordingly, the record supports the state court's conclusion that counsel did not perform deficiently in failing to move for a judgment of acquittal on the basis alleged by Walker. Walker does not show that the state court's determination was an unreasonable application of Strickland or was based on an unreasonable determination of the facts.

In addition, Walker contends in the federal habeas petition that counsel was ineffective for not raising an inconsistency in Mailhiot and Gilbert's testimony. To the extent that Walker's claim is liberally construed as raising the claim presented in ground eight of the postconviction motion, which concerned alleged discrepancies regarding the amount of heroin, he cannot obtain relief. The state court rejected this claim:

(Doc. 14, Ex. 13, p. 93) (court's record citations omitted).

This determination is supported by the record. Mailhiot testified:

(Doc. 14, Ex. 2, p. 198.) In addition, Gilbert testified:

(Doc. 14, Ex. 2, pp. 230-31.) The record therefore supports the state court's conclusion with respect to this claim. Walker does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in reaching this decision.

Walker also states in the federal habeas petition that both Mailhiot and Gilbert testified that the heroin weighed 4.6 grams. Walker appears to argue that counsel should have argued one of these witnesses must have given inaccurate testimony because Mailhiot testified about the weight of the heroin when it was in still in the bags after initially being recovered, and Gilbert testified about the weight of the heroin after it was removed from the bags. He believes this is "evidence of coaching and corroborating a weight to find the threshold amount necessary to support a trafficking offense." (Doc. 1, p. 8.) This allegation was not presented to the state court in Walker's postconviction motion. (Doc. 14, Ex. 9, pp. 12-16; 27.) A petitioner may not present a particular factual instance of ineffective assistance of counsel in his federal petition that was not first presented to the state court. McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005); Johnston v. Singletary, 162 F.3d 630, 634-35 (11th Cir. 1998); Footman v. Singletary, 978 F.3d 1207, 1211 (11th Cir. 1992). When a petitioner raises an ineffective assistance of counsel claim in state court, but alleges different supporting facts for the same claim in his federal habeas petition, he fails to fairly present the federal claim to state court. See Anderson v. Harless, 459 U.S. 4, 6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.") (internal citations omitted). See also Weeks v. Jones, 26 F.3d 1030, 1044-46 (11th Cir. 1994) (rejecting petitioner's argument that "the general claim of ineffective assistance in state court preserves for federal review all alleged instances of ineffectiveness, regardless of whether evidence of a particular act was presented to the state court.").

Walker's current assertion is unexhausted because it was not fairly presented to the state court. He cannot return to state court to file an untimely, successive postconviction motion. Fla. R. Crim. P. 3.850(b), (h). Accordingly, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Walker does not establish the applicability of an exception to the procedural default rule. Notwithstanding the default, Walker fails to show relief. Although Mailhiot did state that the heroin weighed 4.6 grams, his testimony is clear that he was referring to the weight established by the lab. (Doc. 14, Ex. 2, p. 198.) Accordingly, Walker shows no entitlement to relief on Ground One with respect to case number CRC04-00285CFANO.

B. Case Number CRC04-00286CFANO (July 15, 2003 Transaction Inside The Vehicle Involving Nicole Roberson)

In a similar claim, Walker contends the State failed to prove that each of the forty-five bags contained heroin before the substance was mixed, tested, and weighed. He states that "[t]he `chunky brown material'" in the bags "was not individually weighed for accuracy; and the chemist drew her weight from the aggregate." (Doc. 1, p. 9.) Therefore, he claims, counsel was ineffective for not moving for a judgment of acquittal on the basis that the State failed to establish the requisite amount of heroin.

Walker raised this claim in his postconviction motion. The state court rejected his argument:

(Doc. 14, Ex. 13, p. 96) (court's record citation omitted).

The record supports the state court's decision. Forensic chemist Diane Davis testified:

Doc. 14, Ex. 5, pp. 279-80.) Davis further testified on cross-examination:

(Id., pp. 285-86.) Accordingly, Walker fails to establish that the state court unreasonably applied Strickland or unreasonably determined the facts in rejecting his claim. Ground One warrants no relief.

Ground Two

Walker asserts he was present when the drug transactions occurred but was not involved in them. He claims counsel was ineffective for misadvising him not testify in support of a "mere presence" defense, thus interfering with his right to testify. (Doc. 1, p. 13.) Walker claims that because there was no physical evidence or testimony showing that he knew a drug deal occurred, and no money was recovered, his testimony was necessary to show that he never gave any drugs to Little. Walker also asserts that his testimony would have allowed the jury to compare his voice and the voice on the audio recordings. Walker raised this claim of ineffective assistance of counsel in his postconviction motion, in which he also alleged that he would have testified he was not known by Al, as witnesses referred to him at trial, but instead went by Jack. (Doc. 14, Ex. 9, pp. 31, 703.)

Walker claims that counsel incorrectly informed him that if he testified, the jury would learn of the nature of his prior convictions, information about his arrests, and the fact that he had previously been released from prison.7 He also states that counsel incorrectly told him that the defense would lose its opening and closing arguments if he testified.8 The state court rejected this claim with regard to both cases.

A. Case Number CRC04-00285CFANO (July 24, 2003 Transaction Inside The House Involving Deemo)

Walker raised this claim with regard to case number CRC04-00285CFANO as ground ten of his postconviction motion. The state court rejected the claim:

(Doc. 14, Ex. 14, pp. 520-22) (court's record citations omitted).

Walker argues that the state court erred in its analysis of the deficiency prong. He argues that although he agreed with counsel's advice not to testify, the basis of that advice was incorrect under Florida law. Walker asserts that counsel's ineffective assistance "deprived him of his ability to intelligently choose whether to exercise or waive his Fifth Amendment rights." (Doc. 1, p. 14.) Even assuming that counsel's performance was deficient, Walker cannot obtain relief. Walker does not demonstrate that the state court made an objectively unreasonable determination when it concluded that he failed to show prejudice because there was no reasonable probability that the outcome of trial would have been different had he testified.

The state court took into account that counsel addressed many of the matters about which Walker asserts he would have testified. For instance, counsel argued during his motion for judgment of acquittal that there was no testimony or evidence Walker acknowledged the drug transaction or was involved with the money or drugs, and that the evidence only showed proximity. (Doc. 14, Ex. 2, pp. 261-64.) Counsel also asserted in closing arguments that the evidence merely demonstrated Walker was present when Deemo sold drugs to Little, and there was a lack of evidence that Walker was aware of what was going on, or that any money or drugs were passed between Deemo and Walker. (Id., pp. 281, 316-18.) Counsel also argued both in the motion for judgment of acquittal and in closing arguments that the State failed to present any physical evidence, such as fingerprints, connecting Walker to the drugs. (Id., pp. 261-62, 317.)

In closing arguments, counsel questioned the reasonableness of Mailhiot's identification of Walker's voice on the tape based on his experience of reviewing about an hour's worth of tape. (Id., pp. 275-77.) Counsel also argued that Little did not explain the tape in his testimony because he was confused about different dates and events, and noted that Little did not identify any voices on the tape. (Id., pp. 275-76.) Counsel further pointed out that statements attributed to Walker were not necessarily about drugs, and that the jury did not know how Walker sounded and had nothing with which to compare his voice. (Id., pp. 316-17.) In addition, counsel argued in the motion for judgment of acquittal that there was no evidence Walker was known as Al. (Doc. 14, Ex. 2, pp. 261-64.)

Walker does not establish a reasonable probability that his testimony about these matters would have changed the outcome of trial. While Walker merely asserts that the jury could have compared his voice to that on the tape, he does not argue or present any evidence to show that it was not his voice. Additionally, as the state court noted, Walker was known as Alexander and Al. (Doc. 14, Ex. 2, pp. 238-40, 242, 247, 251-56.) Finally, as the state court noted, the jury would have heard at least the number of Walker's prior felonies had he testified and could consider this in determining his credibility.

Accordingly, Walker does not establish that the state court's finding that he failed to show prejudice was an unreasonable application of Strickland or was based on an unreasonable determination of the facts. He is not entitled to relief on this portion of his claim.

B. Case Number CRC04-00286CFANO (July 15, 2003 Transaction Inside The Vehicle Involving Nicole Roberson)

With respect to case CRC04-00286CFANO, the state court found:

(Doc. 14, Ex. 14, pp. 527-29) (court's record citations omitted).

Again, Walker argues that the state court erred in its analysis of Strickland's deficiency prong because counsel's advice not to testify rested on an incorrect statement of the law. Even assuming counsel's advice was deficient, Walker does not show that the state court erred in finding that he failed to demonstrate resulting prejudice because there was no reasonable probability that his testimony in support of a "mere presence" defense would have changed the outcome of trial.

As the state court discussed, counsel argued a lack of evidence, which Walker states he would have addressed in his testimony. During closing argument, counsel asserted that Detective Harris's observations of the vehicle that Nicole Roberson approached following the transaction were not consistent with prior instances in which he saw Walker driving this car. (Doc. 14, Ex. 5, p. 314.)9 Counsel also noted that Harris would have seen if anything passed between the driver of this vehicle and Nicole Roberson. (Id.) Counsel also emphasized that Little and Nicole Roberson, who personally knew Walker, were not asked to identify Walker's voice on the tape. (Id., p. 316.) Counsel questioned Mailhiot's identification of Walker's voice based on reviewing an hour of tape. (Id., p. 316-17.) Counsel argued to the jury repeatedly that the lack of physical evidence and reliable testimony showed the State failed to meet its burden. (Id., pp. 314-23.)

Walker does not establish a reasonable probability that his testifying to make the same points would have resulted in a different outcome at trial. While Walker asserts that the jury could have compared his voice to that on the tape, again, he does not state or establish that his voice was not on the tape. Moreover, counsel argued that the State presented no reliable evidence to establish that it was Walker's voice heard on the recording. Additionally, the state court identified numerous points in the record making clear that Little and Nicole Roberson knew Walker as both Alexander and Al. (Id., pp. 132-134, 138-139, 233-234, 239-244, 246-247.) Lastly, as the state court noted, the jury would have known that Walker had six prior felonies if he testified, and the jury could have considered this in deciding whether he was credible.

Walker does not show the state court's conclusion that he failed to demonstrate prejudice was an unreasonable application of Strickland or was based on an unreasonable determination of the facts. He does not show entitlement to relief on Ground Two.

Ground Three

Walker claims that counsel was ineffective for failing to call Precious Nelson to testify in support of his "mere presence" defense. He claims that counsel misadvised him that Nelson's testimony was not needed because the State would not obtain a conviction on its circumstantial evidence. Little's testimony indicates that Nelson was present at Carrie Roberson's house on July 24, 2003.10 Walker claims that it was necessary to call Nelson so "the jury could frame a reasonable conclusion about how the drug transaction had taken place, that he never gave any drugs, by any means, to the confidential informant." (Doc. 1, p. 16.)

Walker raised this claim in his amended motion for postconviction relief, in which he also stated that Nelson would have testified that she called Deemo to purchase heroin; that Deemo and Little conducted the transaction in the back bedroom while she and Walker remained in the front of the house; that Deemo and Walker left without discussing any drug deal; and that she did not see Walker conduct a drug transaction with Deemo or Little. (Doc. 14, Ex. 11.)

A. Case Number CRC04-00285CFANO (July 24, 2003 Transaction Inside The House Involving Deemo)

The state court found that Walker did not establish prejudice as a result of counsel's failure to call Nelson:

(Doc. 14, Ex. 14, pp. 522-25) (court's record citations omitted).

The record supports the state court's finding. Little testified that Nelson was present at Carrie Roberson's house, and that he talked to Nelson and others before Walker and Deemo arrived. (Doc. 14, Ex. 2, pp. 249-51.) But as the state court noted, Little did not testify that Nelson called Walker regarding the transaction that occurred that day.11 Little also testified that upon arrival, Walker proceeded to the kitchen. Little testified that, although Walker was only a few feet away, he and Deemo exchanged drugs and money in front of the television in the living room (Doc. 14, Ex. 2, pp. 251-53.) Accordingly, although Nelson's proposed testimony that Little and Deemo went into a bedroom to conduct the transaction would have contradicted Little on the exact location where Little and Deemo made the exchange, the jury still would have heard that Walker went into the kitchen when he arrived and that the transaction was between Little and Deemo.

In a related and important point, the state court noted that the jury was informed that Walker was not required to be present for the transaction to be convicted of trafficking.12 Little testified that he agreed to purchase heroin from Walker, and that he and Walker already agreed upon the payment. (Doc. 14, Ex. 2, pp. 252-53, 255-56.) Therefore, the jury heard testimony that Little agreed to the purchase with Walker, but that Little provided the money to, and physically received the drugs from, Deemo. Accordingly, given the totality of the evidence presented, Walker does not show a reasonable probability that Nelson's proposed testimony stating Walker was not involved in or aware of any transaction inside the house would have changed the outcome of trial.

In addition, Walker presents no evidence to support his contention that Nelson would have testified as he suggests. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.") (footnotes omitted). As a result, the claim is too speculative to warrant relief. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) ("Johnson offers only speculation that the missing witnesses would have been helpful. This kind of speculation is `insufficient to carry the burden of a habeas corpus petitioner.'") (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.1985)). See also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).13

Accordingly, Walker fails to show that the state court unreasonably applied Strickland or unreasonably determined the facts in finding that he failed to show a reasonable probability the outcome of trial would have been different had Nelson testified as Walker contends she would have. Walker does not show entitlement to relief on this portion of Ground Three.

B. Case Number CRC04-00286CFANO (July 15, 2003 Transaction Inside The Vehicle Involving Nicole Roberson)

Case number CRC04-00286CFANO concerned the July 15, 2003 incident in which Nicole Roberson provided forty-five baggies of heroin to Little after obtaining them from Walker. With respect to this case, the state court found counsel was not ineffective for failing to call Nelson because Nelson's testimony about subsequent events of July 24, 2003, would have been irrelevant and harmful:

(Doc. 14, Ex. 14, pp. 530.)

The record supports the state court's finding. Nelson's proposed testimony was not relevant to the events of July 15, 2003. As the state court noted, introducing her testimony about the subsequent events of July 24, 2003, would have harmed the defense because the jury otherwise would not have heard about that later transaction. Again, Walker presents no evidence to establish the information to which Nelson would have testified. See Ashimi, 932 F.2d at 650. His speculative claim does not warrant relief. See Johnson, 256 F.3d at 1187; Tejada, 941 F.2d at 1559. Walker does not demonstrate that the state court unreasonably applied Strickland or unreasonably determined the facts in making its decision. Ground Three provides no relief.14

Ground Four

Walker asserts that counsel was ineffective for not filing a motion to dismiss after Little testified that he had a financial stake in obtaining convictions.15 In support, Walker argues that Little's financial interest in the case amounted to a due process violation.

Walker raised this claim of ineffective assistance of counsel in ground twenty-five of his postconviction motion. The state court summarily rejected his argument:

(Doc. 14, Ex. 13, pp. 100-101) (court's record citations omitted).

Walker fails to establish that the state court unreasonably applied Strickland or unreasonably applied the facts in coming to this conclusion. At trial, Mailhiot agreed that Little worked for a substantial sum of money, but was unable to provide an exact amount. (Doc. 14, Ex. 5, p. 219.) Little testified at trial that he did not know how much he was paid for his work as an informant over the last several years, but that Mailhiot paid him each time he made a deal. (Id., pp. 232-33.) He stated that he was paid to testify in court. (Id., p. 255.)

In his deposition, Little testified that his payment in this case "was never a set payment. It was always different." (Doc. 14, Ex. 14, pp. 199-200.) He stated that he was not sure how much he was paid but believed he usually received between $100 and $400 for engaging in a deal. (Id., pp. 209, 221, 233.) The record supports the state court's conclusion that, while the fee arrangement was somewhat unclear, there is no evidence indicating Little was paid contingent upon the State obtaining a conviction of Walker, or that he expressed any expectation of obtaining a "bonus" upon Walker's conviction.16

The Supreme Court has recognized the possibility that law enforcement conduct may be "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . ." United States v. Russell, 411 U.S. 423, 431-32 (1973). However, to rise to this level, law enforcement conduct must "violat[e] that `fundamental fairness, shocking to the universal sense of justice,'" required by due process. Id. (quoting Kinsella v. United States ex. rel. Singleton, 361 U.S. 234, 246 (1960)). Walker does not demonstrate that the state court's decision was contrary to established United States Supreme Court law. He does not cite any Supreme Court precedent deciding differently a case based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. at 412. Nor does he show that the state court unreasonably applied Strickland or unreasonably determined the facts in concluding that counsel was not ineffective because any motion to dismiss the charges due to law enforcement's payments to Little would have failed.17

To the extent Walker asserts an independent due process violation, even assuming he fairly presented the claim to the state court,18 he does not demonstrate a due process violation under the circumstances of his case. See United States v. Rey, 811 F.2d 1453, 1456 n.3 (11th Cir. 1987) (even the use of a contingently motivated informant is lawful "where payment is contingent on a successful investigation in general or successful investigation of a particular crime, rather than the successful prosecution of a particular individual."); United States v. Gray, 626 F.2d 494, 499 (5th Cir. 1980) ("[A]n informant's testimony will not be rejected unless there is evidence that he was promised payment contingent upon conviction of a particular person."); Owen v. Wainwright, 806 F.2d 1519, 1521-22 (11th Cir. 1986) (cases involving allegations of official misconduct turn on the totality of the circumstances, and "extreme circumstances of outrageous government conduct must be shown before a court will find a due process violation. We have held that government infiltration of criminal activity is a legitimate and permissible means of investigation and frequently requires that the government agent furnish something of value to the criminal.").

Furthermore, to the extent Walker asserts a due process violation based on his assertion that Little might have had financial incentive to entrap him into making transactions, he is not entitled to relief. This claim is speculative and unsubstantiated, as Walker presents no evidence in support of his claim. Moreover, he does not demonstrate that the claim has any merit. See Rey, 811 F.2d at 1455 ("To the extent that Williamson [v. United States, 311 F.2d 441 (5th Cir. 1962)] held that the government's use of contingently-motivated informers creates an entrapment defense, it is no longer good law. The Supreme Court has subsequently held that the entrapment defense focuses on the subjective predisposition of the defendant to commit a crime, rather than on the conduct of the government.") (citing Hampton v. United States, 425 U.S. 484 (1976); Russell, 411 U.S. 423). Walker fails to show entitlement to relief on Ground Four.

Accordingly, the Court ORDERS that Walker's Section 2254 petition is DENIED. The Clerk is directed to enter judgment against Walker and to close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Walker is not entitled to a certificate of appealability (COA). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Walker "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Walker has not made the requisite showing in these circumstances.

Finally, because Walker is not entitled to a COA, he is not entitled to appeal in forma pauperis.