ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

Joey Midgett, a Florida prisoner, timely filed a pro se second amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Polk County conviction. (Doc. 10). Respondent filed a response and supplemental response. (Docs. 17, 23). Midg ett filed a reply and supplemental reply. (Docs. 27, 28). Upon consideration, the petition is DENIED.

Procedural History

Midgett was convicted after a jury trial of one count of second degree murder. (Doc. 19, Ex. 27, Vol. II, pp. 321-22). The state trial court sentenced him to life in prison. (Doc. 19, Ex. 27, Vol. III, p. 347). The state appellate court per curiam affirmed the conviction and sentence. (Doc. 19, Ex. 4). Midgett's motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850, was denied. (Doc. 19, Exs. 6, 7, 10, 16). The state appellate court per curiam affirmed the denial of relief. (Doc. 19, Ex. 20). Midgett's successive postconviction motion was also denied. (Doc. 24, Exs. 28, 29). The state appellate court per curiam affirmed the lower court. (Doc. 19, Ex. 24).

Factual Background;1 Midgett's Theory Of Defense

Midgett lived with his girlfriend, D.B. D.B. claimed that the victim, Jonas Ward, had sexually assaulted her in the past and was sharing photographs and/or videos of the assault. D.B. frequently talked about Ward's actions, which upset both her and Midgett. In the early morning hours of December 29, 2009, D.B. became "aggravated" and "frustrated" and picked up a knife, saying that she "hate[d]" the person who raped her. (Doc. 19, Ex. 27, Vol. VI, pp. 553-54). Midgett took the knife from D.B., and then drove her and their friend Holly Evans to Ward's house. Midgett, armed with a cocked, loaded handgun, approached the home while D.B. and Evans remained in the truck. A man opened the door. When Midgett told him he was there to retrieve the images, the man said, "Go fuck yourself," and shut the door on Midgett's hand. Midgett attempted to push the door open, fired one shot, ran back to his truck, and left.

Ward's girlfriend was coming out of a bathroom in the house when she heard a gunshot. She found Ward unresponsive by the front door and called 911. Ward died as a result of a single gunshot to the head. Police located one bullet hole in the front door, one shell casing on the porch, and one bullet inside the house.

Police made contact with Midgett the next day, December 30, 2009. He allowed police to search his home. Inside a hole in the bedroom closet, police saw but were unable to retrieve a box of ammunition and an object inside a sock. When police talked to him about their findings, Midgett told them about his confronting Ward. He stated that when the door crushed his finger, he pushed on the door and the gun went off, but that he did not know at the time that he had killed someone. Midgett said that he did not intend to harm anyone. Midgett was arrested, and police retrieved the sock and found a loaded .45 caliber pistol inside. Midgett was transported to the police station and gave a recorded interview during which he again stated that he did not intend to hurt anyone. A Florida Department of Law Enforcement analysis determined that the bullet and shell casing found at Ward's home were fired from the gun recovered from Midgett's bedroom closet. Either Midgett or D.B. had purchased ammunition for the gun several days before the shooting.

Midgett testified at trial that it was not Ward, but another man, John Draper, who answered the door. Draper knew both D.B. and Ward. Some evidence indicated that Draper had been romantically interested in D.B. and had been present at Ward's house on the night of the alleged assault, but became so mad that he left. Midgett claimed that the bullet from his gun did not kill Ward, but that John Draper was the "second shooter" that night who shot and killed Ward from inside the home. Defense witness Jonathan Markley testified that a man who went by "John John" stopped by a house party he had one night around New Year's covered in blood and asking for a change of clothes. Markley testified that John John stated he had just killed "the pervert," and that Markley knew people referred to Jonas Ward as "the pervert."

Standard Of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioneris in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

A decision is "contrary to" clearly established federal law "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." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "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." Id. at 413.

The AEDPA was meant "to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("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.").

The state appellate court affirmed the judgment and sentence and the denial of postconviction relief without discussion. These decisions warrant 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. 2002). 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."). When a state appellate court issues a silent affirmance, "the federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

Discussion

Ground One

Midgett claims that the state trial court erred in denying his motion to suppress his statements to law enforcement. Midgett gave three statements to police. On the morning of December 30, 2009, after Sergeant Mike Evans stopped Midgett for a traffic infraction, Midgett went to the Bureau of Criminal Investigations ("BCI") with Sergeant Evans. There, he made his first statement "regarding what he did the previous night of the incident" and expressed displeasure with law enforcement's failure to act on D.B.'s complaint that Ward had assaulted her. (Doc. 19, Ex. 27, Vol. I, p. 84). Midgett also agreed to allow officers to search his home. Midgett and several officers went to his home, where Detective Aaron Campbell located ammunition and a sock that was later found to conceal a firearm. Midgett sat with officers in his front yard and gave a second, recorded statement. After his arrest, Midgett was transported back to BCI, where he waived his Miranda2 rights and gave a third, recorded statement.

Midgett claims that the trial court erred in denying his motion to suppress these statements. Midgett argues that he was in custody but was not given Miranda warnings when he made his first and second statements, and that police continued to question him after he invoked his right to counsel during his first statement. Further, he appears to argue that the Miranda waiver prior to his third statement was invalid because he had previously invoked his right to counsel.

A. Midgett's First Statement To Police

The state court found that Midgett's first statement to police was admissible:

(Doc. 19, Ex. 27, Vol. II, pp. 272-73, 274-75).

I. Whether Midgett Was In Custody And Therefore Entitled To Miranda Warnings

Miranda warnings are required when a person is subject to custodial interrogation. 384 U.S. at 467-69. See United States v. Partin, 634 Fed. App'x 740, 746 (11th Cir. 2015) ("Miranda warnings are required only when a defendant is `in custody,' meaning that there has been either a formal arrest or a restraint on the defendant's freedom of movement that is of the degree associated with a formal arrest."). In determining custody, a court asks whether an innocent person in the subject's position would have felt free to leave:

United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006).

In assessing whether a reasonable person would have felt free to leave, relevant considerations include the location and duration of the questioning, what statements were made during the questioning, whether the individual was physically restrained, and whether the individual was released at the end of questioning. Howes v. Fields, 565 U.S. 499, 509 (2012). In addition to determining "whether an individual's freedom of movement was curtailed," courts must also consider whether the circumstances of the interview "present[] the same inherently coercive pressures as the type of station house questioning in Miranda." Id.

Sergeant Mike Evans testified at the suppression hearing that he was waiting outside of Midgett's house on the morning of December 30, 2009. (Doc. 19, Ex. 27, Vol. I, p. 44). When Midgett left in his vehicle, Sergeant Evans followed him and pulled him over after he ran a stop sign. (Id., pp. 45-46, 48). Sergeant Evans testified that he asked for Midgett's driver's license to identify him, and gave it back to Midgett before informing him that detectives wanted to speak to him and asking if he was willing to come to the station and talk. (Id., pp. 48-49; Doc. 19, Ex. 27, Vol. II, pp. 214-15). Sergeant Evans testified that Midgett was willing to go to the station, and, after asking if he could ride with Sergeant Evans because he did not know the way, traveled to BCI in the front seat of Sergeant Evans's car. (Doc. 19, Ex. 27, Vol. I, pp. 49-53). Midgett had no objection when Sergeant Evans asked to pat him down before he got in the car. (Id., p. 53). Sergeant Evans and Midgett made small talk during the trip, and Midgett never indicated that he did not want to talk or had changed his mind. (Id., p. 54).

At BCI, Detectives Gustavo Aguirre and David Lopez met with Midgett. Detective Aguirre testified that Midgett was not handcuffed at any time. (Id., p. 83). Detective Aguirre testified that Midgett did not request his cell phone, that his cell phone had not been taken from him, and that Midgett was not denied access to any telephones. (Id., p. 89). The detectives explained to Midgett that Jonas Ward had died and explained the ongoing death investigation. (Id., pp. 83-84). They asked Midgett for consent to search his residence and vehicle, and Midgett agreed. (Id., p. 86). Detective Aguirre testified that Midgett said, "Let's go, let's get this over with, I have nothing to hide." (Id.). Detective Aguirre testified that he told Midgett it was his choice whether or not to talk to police. (Id., p. 91).

The court accepted the officers' testimony and rejected Midgett's testimony to the contrary. This involved a determination of the witnesses' credibility. A credibility decision is a factual finding entitled to a presumption of correctness that can only be overcome by the presentation of clear and convincing evidence-a showing that Midgett has not made. 28 U.S.C. § 2254(e)(1). See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) ("The factual findings of the state court, including the credibility findings, are presumed to be correct unless [the petitioner] rebuts the presumption by clear and convincing evidence."); Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over [the petitioner's]."); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are . . . entitled to the same presumption accorded findings of fact under 28 U.S.C. § 2254(d).").

The testimony that the court accepted reflects that Midgett made the choice to ride with Sergeant Evans to BCI after Sergeant Evans returned his license and that, at BCI, he was not restrained and did not change his mind about talking to police. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (noting that the suspect voluntarily came to the police station in determining that an interview was not custodial). That the questioning took place at a police station does not in itself render the questioning custodial. See California v. Beheler, 463 U.S. 1121, 1125 (1983) ("[The Supreme Court has] explicitly recognized that Miranda warnings are not required `simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'" (quoting Mathiason, 429 U.S. at 495)). Nor does the record establish that Midgett was coerced or physically restrained, or that the interview lasted for a long period of time. Finally, Midgett agreed afterwards to accompany officers to his home for a consensual search. Accordingly, Midgett does not establish that he was in custody, and therefore entitled to Miranda warnings, when he made his first statement to police at BCI. Midgett has not shown that the state court's determination was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable factual determination.3

II. Whether Police Ignored Midgett's Request For An Attorney

Midgett claims that during his first interview, he asked to contact his attorney,

"Kevin," but that police would not allow him to do so. Although he alleges a violation of his Fifth Amendment right to counsel, that right had not attached because Midgett was not in custody. The Supreme Court has "decided that once `an accused has invoked his right to have counsel present during custodial interrogation . . . [he] is not subject to further interrogation by the authorities until counsel has been made available,' unless he initiates the contact." Montejo v. Louisiana, 556 U.S. 778, 787 (2009) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)) (emphasis added). See also Bobby v. Dixon, 565 U.S. 23, 28 (2011) (the Supreme Court has "never held that a person can invoke his Miranda rights anticipatorily, in a context other than `custodial interrogation.'") (citation omitted).

Notwithstanding, Midgett fails to establish that police ignored his request for an attorney. Detective Aguirre testified that from the time he made contact with Midgett until they arrived at Midgett's residence, Midgett never asked for permission to contact his attorney or anyone named Kevin. (Doc. 19, Ex. 27, Vol. I, pp. 88-89). Detective Aguirre testified that Midgett was not deprived of his cell phone or other telephone access. (Id., p. 89). In contrast, Midgett testified that while at BCI, he said he needed to call his lawyer, named Kevin. (Id., p. 170).

The state court noted that it considered all of the testimony presented, and specifically "reject[ed] the testimony of the Defendant that he requested counsel while at BCI during the first interview." (Doc. 19, Ex. 27, Vol. II, p. 272). The court's decision involves a factual determination of Midgett's credibility, and Midgett has not shown, by clear and convincing evidence, that the state court's factual finding was incorrect. Accordingly, he fails to show that his statement was rendered inadmissible because police refused his request for an attorney. Midgett does not show that the state court's decision was contrary to or involved an unreasonable determination of clearly established federal law, or was based on an unreasonable determination of fact.

B. Midgett's Third Statement To Police

Midgett has not clearly asserted in his federal habeas petition that the trial court erred in not suppressing his third statement to police, which was made at the police station after his arrest and after police provided Miranda warnings. However, he states:

(Doc. 10, p. 5).

This contention is consistent with Midgett's appellate claim that his third, post-Miranda statement should have been suppressed on the ground that his Miranda waiver was invalid because he had already invoked the right to counsel during his first interview at BCI. (Doc. 19, Ex. 2, pp. 35-38). He claimed that, because he never reinitiated contact with police after invoking his right, any subsequent waiver was involuntary. In support, he cited Miranda, 384 U.S. at 474 ("If an individual states that he wants an attorney, the interrogation must cease until an attorney is present); Edwards, 451 U.S. at 484 ("[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated questioning even if he has been advised of his rights."); and Smith v. Illinois, 469 U.S. 91, 95 (1984) ("[I]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked."). Accordingly, the Court liberally interprets Midgett's federal habeas petition as challenging the admission of his third statement on this same basis.

Midgett has not shown that the state court unreasonably denied this ground. As addressed above, Midgett's Fifth Amendment right to counsel was not implicated because he was not in custody when he made his first statement. Further, Midgett has not overcome by clear and convincing evidence the presumption of correctness afforded to the state court's factual finding that he did not request an attorney. And no other part of the third interview suggests that the waiver was involuntary. Specifically, Midgett did ask any questions or express any uncertainty when Detective Campbell recited his Miranda rights. (Doc. 19, Ex. 27, Vol. VI, pp. 544-45). Accordingly, Midgett fails to show that his post-Miranda statement was invalid for the reason alleged. He does not show that the state court's denial of his claim was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of fact.

C. Midgett's Second Statement To Police

In finding admissible Midgett's second statement, made as police searched his home, the state court found that Miranda warnings were not required because Midgett was not in custody. (Doc. 19, Ex. 27, Vol. II, pp. 275-78). Midgett challenges several factual findings the state court made in reaching this decision, contending that the record refutes the findings. Even assuming that Midgett is correct and that his second statement should have been suppressed, however, he cannot obtain federal habeas relief. Any constitutional error in the second statement's admission must be considered under the harmless-error test set out in Brecht v. Abrahamson, 507 U.S. 619 (1993):

Hittson v. GDCP Warden, 759 F.3d 1210, 1233-34 (11th Cir. 2014) (footnote omitted).

The jury heard recordings of Midgett's second and third statements to police, and heard Detective Aguirre testify about Midgett's first statement, which was not recorded. This Court has reviewed the portions ofthe trial transcript concerning those statements. (Doc. 19, Ex. 27, Vol. V, pp. 394-407, 427-30, 434; Vol. VI, pp. 543-69). The crux of Midgett's comments during the second statement about his reasons for confronting Jonas Ward and about the shooting and events leading to it was also contained in the third statement. The second statement did, however, contain some remarks that were not included in either the first or third statements. First, Midgett agreed that after police searched his residence and found "some things," he started talking to them and decided he wanted to tell the truth. (Doc. 19, Ex. 27, Vol. V, p. 396). He also called Jonas Ward "filth" and a "piece of shit" who was destroying D.B.'s self-esteem, and stated that he did not know until talking to police that Ward had died. (Id., pp. 398, 402, 406).

Midgett does not show that introduction of these statements had a substantial and injurious effect on the jury's verdict. Midgett's acknowledgment that he decided to talk after police found items in his house was not significant enough to influence the verdict in light of overall evidence of guilt, including the undisputed evidence about his motive; his admission that he confronted Ward with a cocked,4 loaded firearm for which either he or D.B. had just purchased ammunition; the physical evidence indicating the bullet that went through Ward's door was fired from the gun located in Midgett's home; and the lack of evidence directly supporting the "second shooter" defense. And while Midgett's second statement contained specific negative descriptions about Ward, Midgett also said in his third statement that Ward was "a predator" and an "ugly person." (Doc. 19, Ex. 27, Vol. VI, p. 549). Finally, Midgett does not establish his statement that he did not know someone had died until police told him had a substantial and injurious effect on the jury's verdict. He has not demonstrated that the admission of his second statement was harmful under the Brecht test. Midgett has not shown entitlement to relief on Ground One.

Ineffective Assistance Of Counsel

Grounds Two through Thirteen allege ineffective assistance of trial counsel. These claims are analyzed under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984). Midgett must demonstrate that his counsel performed deficiently in that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. Midgett must also show that he suffered prejudice by demonstrating "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. Obtaining relief on a claim of ineffective assistance of counsel is 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 Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").

Grounds Two and Three

The State charged Midgett in the alternative with second degree murder (count one) and third degree felony murder (count two). (Doc. 14, Ex. 27, Vol. I, pp. 15-16). The jury returned a guilty verdict on both counts. (Doc. 14, Ex. 27, Vol. II, pp. 321-23). After receiving the verdict, the court orally adjudicated Midgett guilty of both counts before stating, "I adjudicate you on count 1. I'm reserving on count 2 pending further action on that." (Doc. 14, Ex. 27, Vol. VIII, p. 908). At the sentencing hearing, the trial court orally "set aside" count two. (Doc. 14, Ex. 27, Vol. II, p. 327). The written judgment and sentence was entered on count one only, and contained the notation, "Ct. 2 — Jury verdict set aside. No sentence imposed." (Doc. 14, Ex. 27, Vol. III, p. 347).

Midgett argues that trial counsel was ineffective in (1) failing to object or request that the jury be instructed on "alternative verdicts,'" which resulted in his being convicted in violation of double jeopardy; and (2) failing to move for a directed verdict and failing to object when the court set aside count two instead of count one.

The state court denied Midgett's claims:

(Doc. 19, Ex. 7, pp. 1139-40) (court's record citations omitted).

Additionally, "for the reasons stated as to claim 1," the court denied claim 2, in which Midgett alleged that counsel was ineffective in failing to move for a directed verdict and object when the court set aside count two instead of count one. (Id., p. 1140).

Initially, Midgett has failed to satisfy the requirement that a petitioner exhaust his federal claims in state court before presenting them in his federal habeas petition. See 28 U.S.C. § 2254(b)(1)(A). To properly exhaust his claims, Midgett was required to complete one full round of the state's appellate review process. Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003). These claims are unexhausted because Midgett did not appeal from their denial. (Doc. 19, Ex. 18).5 See Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) ("In Florida, exhaustion usually requires not only the filing of a Rule 3.850 motion, but an appeal from its denial."). Specifically, because some of his postconviction claims were denied after an evidentiary hearing, he was required to raise in his appellate brief all arguments he wished the trial court to consider. See Fla. R. App. P. 9.141(b)(3)(C); Cunningham v. State, 131 So.3d 793 (Fla. 2d DCA 2012).

State procedural rules do not provide for second collateral appeals. See Fla. R. Crim. P. 3.850(k) (stating that an appeal may be taken within 30 days of rendition of a final order denying postconviction relief). Therefore, Midgett's unexhausted claims are procedurally defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) ("If 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."). A procedural default may be overcome if a petitioner establishes the applicability of either the cause and prejudice or fundamental miscarriage of justice exception. See id. Midgett has not argued or demonstrated that either exception applies.

Alternatively, notwithstanding the default, Midgett has not shown entitlement to relief. Midgett has not shown prejudice as a result of counsel's failure to ask that the jury be instructed that the counts-different degrees of murder-represented alternative theories and that they were to convict him of only one count. In convicting him of count one, the jury found that the State proved all elements of second degree murder beyond a reasonable doubt. The Court notes that Midgett's jury was instructed, consistent with Florida's standard jury instructions, that, "[i]f you return a verdict of guilty, it should be for the highest offense which has been proven beyond a reasonable doubt." (Doc. 19, Ex. 27, Vol. VIII, p. 891). See Fla. Std. Jury Inst. (Crim.) 3.12. Accordingly, Midgett can only speculate that the jury would have convicted him of third degree felony murder had they been instructed that they could only find him guilty of one count. Speculation is not a basis for federal habeas relief. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (a federal court may not grant habeas relief "on the basis of little more than speculation with slight support."); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).

Nor has Midgett shown that counsel was ineffective in not raising a double jeopardy argument. The Double Jeopardy Clause protects against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). As the state court's order indicates, Midgett did not suffer prejudice as a result of counsel's failure to object because the state court set aside count two and only entered a judgment and sentence on count one. See, e.g., Claps v. State, 971 So.2d 131, 133 (Fla. 2d DCA 2007) ("[Double jeopardy's] emphasis is . . . on adjudications of guilt and sentences, not on jury verdicts. While the latter may be a condition precedent to an adjudication of guilt and sentence, by itself a verdict imposes no punishment.").

The state court also found too speculative Midgett's claim that counsel should have moved for a directed verdict or objected when the state court set aside count two, third degree felony murder, instead of count one, second degree murder. Midgett has not cited any authority providing that the trial court would have had the discretion to vacate the conviction for second degree murder. See State v. Barton, 523 So.2d 152, 153 (Fla. 1988) (when one of multiple convictions for the same conduct must be vacated, "the conviction of the lesser crime should be set aside."). Midgett has not established what other argument counsel could have made or what other action counsel could have taken. Accordingly, Midgett has not shown that counsel performed deficiently, or that he was prejudiced as a result of counsel's performance.6 Because Midgett has not demonstrated that the state court's denial of the claims raised in Grounds Two and Three involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts, he is not entitled to relief on these grounds.

Grounds Four and Five

Midgett argues that trial counsel was ineffective in failing to challenge the verdict form and move to dismiss the "confusing" jury instructions. (Doc. 10, p. 13).7 He alleges that the court provided an erroneous instruction on manslaughter as a lesser-included offense of second degree murder, and that counsel should have objected to the jury instructions, including instructions on "actual possession" of a firearm, as "too confusing for a proper verdict to be rendered." (Id., p. 15). Midgett contends that handwritten notations on a copy of the jury instructions, including question marks, checks, and "x" marks, illustrated the jury's confusion. Midgett asserts that the verdict form was confusing because it "co-mingled" primary and lesser-included offenses. (Id.). He also contends that counsel was ineffective in failing to move to dismiss the felony information on the basis that the charges violated double jeopardy. The state court denied Midgett's claims:

In his motion, Defendant raises the following claims for relief:

For the reasons stated as to claim[s] 1, 2, and 3, claim 4 is DENIED.

(Doc. 19, Ex. 7, p. 1140).

Because Midgett did not appeal the denial of these claims, they are unexhausted and, consequently, are procedurally defaulted. See Smith, 256 F.3d at 1138. Midgett has not established that an exception applies to overcome the default. Alternatively, notwithstanding the default, he fails to show that he is entitled to relief.

Midgett has not established an error in the jury instructions to which counsel should have objected. To the extent the state court's determination that the manslaughter instruction was proper involves an application of state law, it must be afforded deference. Although Midgett's ineffective assistance of counsel claim is a federal constitutional claim, when "the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law." Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). See also Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'" (quoting Agan v.Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997))). Further, the manslaughter instruction (see Doc. 14, Ex. 27, Vol. II, pp. 302-03) was consistent with the standard instruction in effect at the time of trial. See In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So.3d 853 (Fla. 2010).

Nor has Midgett established that the verdict form improperly "comingled" the charged and lesser-included offenses. Under each count, the verdict form set out the options of: finding Midgett guilty of the charged offense; finding Midgett guilty of a lesser-included offense; or finding Midgett not guilty. Under each offense, the verdict form provided options for any additional factual findings to be considered by the jury (such as, for example, whether Midgett did or did not possess a firearm). (Doc. 19, Ex. 27, Vol. II, pp. 321-23). Midgett's argument that the jury was confused by either the instructions or the verdict form, and that handwritten notations on the jury instructions support this conclusion, is too speculative to warrant relief. Midgett has not established that the jurors, who did not ask any questions about the instructions or the verdict form during their deliberations (see Doc. 19, Ex. 27, Vol. VIII, pp. 897-904), were confused, or that an objection by counsel would have clarified any potential confusion such that the outcome of the trial would have been different. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559. Midgett has not established that counsel was ineffective in failing to object to the instructions or verdict form.

Finally, Midgett has not demonstrated that counsel was ineffective in failing to raise a double jeopardy challenge to the charging document, or that he was prejudiced by counsel's performance. Cf. Claps, 971 So.2d at 132-33 ("[A] defendant may be charged and tried for both an offense and a necessarily lesser-included offense even though the defendant cannot ultimately be adjudicated and sentenced for both offenses due to the protections afforded by the prohibition against double jeopardy."). See also State v. Sholl, 18 So.3d 1158, 1162 (Fla. 1st DCA 2009) ("[D]ouble jeopardy protections may not be extended to an earlier stage of the proceeding, such as the filing of the information or jury selection."). Midgett has not shown that the state court's denial of his claims involved an unreasonable application of Strickland or was based on an unreasonable determination of fact. He is not entitled to relief on Grounds Four or Five.

Ground Six

Florida Department of Law Enforcement crime laboratory analyst Shallyn McFarland, who analyzed the firearm recovered from Midgett's bedroom closet, testified as an expert witness in the field of firearms analysis. (Doc. 19, Ex. 27, Vol. VI, p. 597). The State asked her about the force needed to fire the gun:

(Doc. 19, Ex. 27, Vol. VII, p. 612).

Midgett asserted that the shooting was accidental. Midgett contends that the above questions and answers contained inferences that the amount of pressure necessary to discharge the firearm was heavy enough that he could not have discharged it accidentally. He claims that counsel was in effective in "not requiring the State to lay a proper foundation before" presenting this testimony, and in not asking McFarland "how much poundage (trigger pull) the average gun has, as opposed to a `hair trigger,' etc." (Doc. 10, p. 16). He claims that counsel's failure to challenge McFarland's testimony allowed the prosecutor in closing arguments to "harp on the fact that the gun could not have accidentally discharged." (Id.). He further claims that counsel failed to object to the prosecutor's remarks. The state court denied this claim:

(Doc. 19, Ex. 10, p. 1240).

The State's response provides:

(Doc. 19, Ex. 8, pp. 1164-65) (State's record citations omitted).

As the state court noted, McFarland did not testify that the firearm could not have been accidentally discharged. (See Doc. 19, Ex. 27, Vol. VI, pp. 596-605; Vol. VII, pp. 606-14). And whether the State laid a proper foundation for McFarland's testimony by qualifying her as an expert witness in firearms analysis involves an application of state evidentiary law to which this Court must defer. See Will, 278 Fed. App'x at 908; Herring, 397 F.3d at 1354-55.

The other aspects of Midgett's claim-that counsel should have asked McFarland about an average trigger pull, that counsel's deficiency allowed the State to argue the impossibility of an accident in closing argument based on McFarland's testimony, and that counsel failed to object during closing argument-are unexhausted because Midgett did not present them on appeal. (Doc. 19, Ex. 18, pp. 29-31). Midgett has not established that either exception applies to overcome the resulting procedural default. See Smith, 256 F.3d at 1138.

Alternatively, he fails to show that his counsel was ineffective. To the extent Midgett argues that counsel should have asked McFarland how much pressure it would take to discharge the average gun, his claim is too speculative to warrant relief because he does not offer any evidence of what McFarland's answer would have been. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559. And even if her answer indicated that the discharge could have been accidental, Midgett has not established prejudice as a result of counsel's failure to elicit this information. Midgett did not argue that he accidentally shot and killed Ward; rather, he argued that his shot was not the fatal one, and that John Draper killed Ward from inside the home. Further, the prosecution presented other evidence from which the jury could have concluded that Midgett did not unintentionally discharge his gun. The State's evidence showed that days after either Midgett or D.B. bought ammunition, Midgett went to Ward's house holding a cocked, loaded firearm with the intent to confront Ward over a matter that had made D.B. very upset both in the past and on the night of the shooting, but that Ward immediately rebuffed him.

Nor does Midgett show that counsel was ineffective because his failure to object during McFarland's testimony allowed the prosecutor to argue the impossibility of an accident, or that counsel was ineffective in failing to object to the prosecutor's argument. During closing argument, the prosecutor stated:

(Doc. 19, Ex. 27, Vol. VII, pp. 815-816). As addressed, the state court determined that McFarland's testimony was properly admitted. Midgett has not shown that the prosecutor acted improperly when he argued about a logical inference he believed the jury should draw from McFarland's testimony. See United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984) (A prosecutor is permitted to argue inferences he believes the jury can draw from the evidence); McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001) ("The courts generally allow wide latitude in closing arguments by permitting counsel to advance all legitimate arguments and draw logical inferences from the evidence."). And Midgett has not shown that he was prejudiced by the prosecutor's remark when considering it in the context of the entire trial. See United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995) (a defendant's substantial rights "are prejudicially affected [by an improper prosecutorial comment] when a reasonable probability arises that, but for the remarks, the outcome [of the trial] would be different." (citing Kennedy v. Dugger, 933 F.2d 905, 914 (11th Cir. 1991))).

As Midgett fails to establish that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim, he is not entitled to relief on Ground Six.

Ground Seven

Midgett claims that trial counsel was ineffective in failing to introduce evidence of injuries to his fingers. He claims that this evidence would have supported a theory that the gun fired accidentally when his hand was caught in the door, thereby bolstering his credibility. The state court denied this claim:

(Doc. 19, Ex. 10, p. 1240) (emphasis in original).

The State's response, which the court incorporated into its order, provided:

(Doc. 19, Ex. 8, pp. 1165-66) (State's record citations omitted).

The state court did not unreasonably deny this claim. First, Midgett has not established that any medical records existed. As the state court pointed out, Midgett testified that he did not seek medical attention. (Doc. 19, Ex. 27, Vol. VII, p. 743).

Further, even if such records existed,8 and even if photographs of his fingers existed,9 Midgett has not shown a reasonable probability that providing them to the jury would have changed the outcome of the trial in light of other evidence of his injury as described in the state court's order. Accordingly, Midgett has not shown that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. He is not entitled to relief on Ground Seven.

Ground Eight

Ground Eight concerns counsel's performance in connection with defense witness Samuel Collins. Midgett wanted to call Collins, who lived in the same rooming house as John Draper, to testify about Draper's actions around the time of the murder and threats Draper had allegedly made.

Counsel first proffered Collins's testimony. Collins stated that John Draper was upset when the victim, Jonas Ward, distributed photographs of D.B. because Draper "really liked" D.B., and that Draper had a quick temper, had made some threatening comments to Collins and others in the house, and said he had weapons. (Doc. 19, Ex. 27, Vol. VII, pp. 639-40). According to Collins, Draper said he was at Ward's house at one point but left when pictures were taken because he was so upset about what happened between Ward and D.B. (Id., pp. 641-42). Collins said that when he returned home from work the night of the murder, Draper's truck was gone. (Id., p. 643). Collins testified that Draper arrived "real dirty" the next morning, gave Collins a strange look, and said that he was upset about what had happened. (Id., p. 642-43).

After the proffer, the court asked counsel what relevant evidence he intended to enter through Collins's testimony. Counsel summarized:

(Id., pp. 651-52).

The court ruled on the parameters of Collins's testimony before the jury:

(Id., pp. 656-67).10

Midgett now argues that counsel was ineffective in "acquiesc[ing] that Collins' [proffered] testimony was hearsay, which allowed the State to suppress . . . exculpatory testimony that proved Draper's motive and intent." (Doc. 10, p. 18). He claims that counsel should have argued that Collins had "first party knowledge" of Draper's statements and that Collins's testimony corroborated both the defense's theory and Jonathan Markley's testimony about the man who came to his house party around New Year's. (Id.).

The state court denied his claim:

(Doc. 19, Ex. 10, pp. 1240-41).

The State's response provides:

(Doc. 19, Ex. 8, p. 1166) (State's record citations omitted).

As the state court noted, counsel did not specifically concede that Collins's proffered testimony contained impermissible hearsay. Further, to the extent that the court's ruling prohibited Collins from testifying about comments that he heard Draper make, Midgett does not explain how such testimony did not contain impermissible hearsay, or which hearsay exceptions would apply to allow such testimony. See § 90.801(1)(c), Fla. Stat. ("`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). And this Court must defer to the state court's application of Florida's evidentiary law. See Will, 278 Fed. App'x at 908; Herring, 397 F.3d at 1354-55.

At the end of his claim, Midgett asserts that "Collins' testimony was reduced to little or no value, albeit, counsel's inadequate examination once Samuel Collins went before the jury." (Doc. 10, p. 19). To the extent Midgett intends to raise a distinct claim that counsel was ineffective in questioning Collins before the jury, his claim is unexhausted because he did not raise it on collateral appeal. (Doc. 19, Ex. 18, pp. 34-35). Notwithstanding the lack of exhaustion and resulting procedural default, see Smith, 256 F.3d at 1138, Midgett cannot show entitlement to relief. His claim is vague and conclusory, and Midgett does not identify how counsel's examination of Collins before the jury constituted deficient performance. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559.

Midgett has not shown that the state court's denial of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground Eight.

Ground Twelve

Ground Twelve concerns counsel's performance in connection with witness John Draper. After counsel proffered Collins's testimony, Collins, without provocation, stated that "this man is a threat and is saying nasty remarks to me" and requested to "have someone for [his] safety." (Id., pp. 653, 654). He was removed from the courtroom. (Id., p. 654). The State then acknowledged that Draper had made allegedly threatening comments to Collins, and Collins later told the court that, at the courthouse that day, Draper gave Collins and others "dirty looks" and said, "look at that bunch of faggots." (Doc. 19, Ex. 27, Vol. VII, pp. 668-69). Counsel moved for a mistrial due to Draper's threats to Collins. The court denied the motion after finding that, as Draper had not threatened Collins's life or safety, the threats would not affect Collins's testimony. (Doc. 19, Ex. 27, Vol. VII, pp. 660, 670-71).

Defense counsel called Draper. Draper testified before the jury that when he was at Ward's house on Thanksgiving, he left because "things" happened between Ward and D.B. that upset him. (Doc. 19, Ex. 27, Vol. VII, pp. 693-95). But he denied shooting Ward, being present when Ward was shot, or expressing that he was upset about "what happened." (Id., pp. 695-96). The State then called Draper as a rebuttal witness to contradict Jonathan Markley, who had testified that John John came to a party at his house around New Year's and said that he had killed "the pervert." Draper testified that he did not know Jonathan Markley, had never been to the street where Markley lived, did not go to a house party on December 29, 2009, and had never gone by the nickname John John. (Doc. 19, Ex. 27, Vol. VIII, pp. 796-97).

Midgett first contends that counsel was ineffective in failing to "properly argue, object, and preserve the motion for mistrial." (Doc. 10, p. 23). He also contends that counsel should have argued that the State's calling Draper after he failed to appear for a pre-trial deposition "amounted to ambushing of the defense's case" and asserts that counsel was not prepared to question Draper. (Id., p. 24). Finally, Midgett claims that counsel should not have called Draper without having deposed him, and that counsel failed to properly question Draper about 1) his relationship with the victim, Jonas Ward; 2) Ward's bragging about sexual encounters with D.B.; 3) whether Draper was present when the photographs were taken; and 4) whether Draper ever lived with Ward. (Id.).

The state court denied Midgett's claim after an evidentiary hearing:

(Doc. 19, Ex. 16, pp. 1693-94). The State's memorandum provides:

(Doc. 19, Ex. 12, p. 1481) (State's record citations omitted).

Midgett fails to show ineffective assistance regarding his counsel's motion for mistrial. He claims that counsel "should have argued and renewed his motion for mistrial that Collins was to[o] traumatized and afraid to testify." (Doc. 10, p. 26). But in moving for a mistrial, counsel argued that, due to Draper's threats, Collins was "very upset, he's very emotional, he's been crying out there that he's scared. . . . He is shaking, and he does not want to testify unless he has to." (Doc. 19, Ex. 27, Vol. VII, pp. 659-60). Midgett does not establish any reasonable probability that repeating the argument or rephrasing it as he suggests would have resulted in the court's granting his motion for mistrial.

Nor does Midgett show that counsel was ineffective with respect to Draper's testimony. At the postconviction evidentiary hearing, counsel testified that he was surprised Draper was present for trial, but that he was prepared for Draper's testimony. (Doc. 19, Ex. 11, pp. 1383-84). Therefore, Midgett has not shown that counsel had any reason to object to the State's calling Draper due to his failure to appear for a deposition. And he has not established how counsel could have argued that the State's calling Draper amounted to an "ambush" after the defense called Draper.

Finally, Midgett's claim that counsel was ineffective in failing to ask Draper specific questions is unexhausted due to his failure to raise it on collateral appeal. (Doc. 19, Ex. 18, pp. 27-29). Notwithstanding the lack of exhaustion and resulting procedural default, Midgett does not demonstrate that his counsel was ineffective in failing to ask Draper about his relationship with Ward. Counsel did question Draper about his presence at Ward's house the night the alleged assault occurred. (Doc. 19, Ex. 27, Vol. VII, pp. 693-94). But Midgett does not explain the significance of the other questions he believes counsel should have asked, or what answers Draper would have provided. Accordingly, his claim is too speculative to show that counsel was ineffective in failing to ask Draper any other particular questions, or a reasonable probability that the outcome of trial would have been different had counsel done so. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559.

Midgett has not shown that the state court's denial of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground Twelve.

Ground Nine

Midgett argues that trial counsel was ineffective in failing to object to improper prosecutorial comments during closing argument and in failing to preserve the issue for appellate review. Midgett asserts that these statements were based upon facts not in evidence and contained improper speculation and inferences. In his postconviction motion, he identified four prosecutorial statements:

(Doc. 19, Ex. 27, Vol. VIII, pp. 807-08, 811, 816).

The state court denied Midgett's ineffective assistance claim:

(Doc. 19, Ex. 10, p. 1241).

The State's response provides:

(Doc. 19, Ex. 8, pp. 1167-68) (State's record citations omitted).

As the state court noted, and as addressed, attorneys may argue inferences they believe the jury should draw from the evidence. See Johns, 734 F.2d at 663; McArthur, 801 So.2d at 1040. In contending that Midgett shot Ward when Midgett could not get inside, the prosecutor was simply arguing his theory of the case-that Midgett shot Ward when Ward would not give him the images that had caused Midgett's girlfriend, D.B., to become distraught. Similarly, because the evidence showed that Ward's actions had upset D.B., the prosecutor was arguing the inference that Midgett acted out of ill will, hatred, spite, or with an evil intent, as necessary to prove second degree murder. Finally, as addressed in Ground Six, the state court determined that McFarland's testimony was properly admitted, and Midgett does not establish that the prosecutor's argument about her testimony was anything other than a logical inference he believed the jury could infer from her testimony. Accordingly, Midgett has not demonstrated that counsel was ineffective in failing to object to the identified comments. Nor does he establish that counsel was ineffective in failing to preserve issues for appeal. See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) ("[A] lawyer's failure to preserve a meritless issue plainly cannot prejudice a client."). Because he does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim, he is not entitled to relief on Ground Nine.

Ground Eleven

Midgett argues that trial counsel was ineffective in failing to file a motion for new trial "to preserve the weight and sufficiency of the evidence." (Doc. 10, p. 21). He contends that, in support of a motion for new trial, counsel could have argued that: the State's case did not overcome his reasonable hypothesis of innocence; no physical evidence or eyewitness testimony contradicted his theory; Markley's and Collins's testimony implicated Draper; Draper threatened Collins and influenced his testimony; Midgett testified that it was Draper who opened the door; Midgett had no motive to harm Ward, but Draper, D.B., and Ward's girlfriend did; the prosecutor made improper remarks during closing argument; and the jury's verdict was contrary to the law. The state court denied Midgett's claim after an evidentiary hearing:

Based on the above, claim 10 is DENIED.

(Doc. 19, Ex. 16, pp. 1692-93).

A motion for new trial is governed by Florida law, and, specifically, the grounds for a new trial are set out in Florida Rule of Criminal Procedure 3.600. As the state court noted, counsel testified that he would have moved for a new trial if he thought any meritorious grounds existed. (Doc. 19, Ex. 11, p. 1408). The court's determination that counsel correctly concluded no basis existed, and that Midgett's proposed arguments were insufficient to grant a new trial, involves an application of Florida law. This Court must defer to the state court's determination that the issues raised by Midgett would have failed to meet the standard for a new trial. See Will, 278 Fed. App'x at 908; Herring, 397 F.3d at 1354-55. Accordingly, Midgett does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. He is not entitled to relief on Ground Eleven.

Ground Ten

Midgett contends that trial counsel was ineffective in failing to hire an expert witness in the areas of ballistics, blood spatter, and crime scene reconstruction to testify at trial that Midgett could not have fired the fatal shot. While conceding that counsel made this argument based on the position of the victim's body, the blood spatter, and the path of the bullet (see Doc. 19, Ex. 27, Vol. VIII, pp. 826-30, 835), Midgett claims that counsel needed an expert to support and provide a proper basis for this argument.

At the postconviction evidentiary hearing, counsel testified that he did not consult an expert witness to see if the forensic evidence could have corroborated the "second shooter" theory. (Doc. 19, Ex. 11, p. 1379). He explained that he did not want to pursue the second shooter theory, but that Midgett "wanted to go with" it and they made a "tactical move . . . to put the blame on someone else." (Id., p. 1391, 1401). Counsel stated that the FDLE test results "matched everything up. There was not any other physical evidence that was good to argue from a forensic standpoint." (Id., p. 1379). In other words, he testified, he knew that if he hired an expert, he or she would have actually contradicted his theory. (Id., p. 1380). Counsel further testified that he did not believe that any expert would have supported the second shooter theory. (Id., p. 1404). Midgett called Michael Knox. Knox, a forensic consultant, testified as an expert in crime scene reconstruction including ballistics and blood spatter evidence. (Id., p. 1420).

The state court denied Midgett's claim:

(Doc. 19, Ex. 16, pp. 1691-92).

The state court did not unreasonably deny this claim. The record supports the state court's conclusions regarding Michael Knox's testimony. Knox testified about the trajectory of the bullet that went through the door and the blood spatter evidence inside the home. (Doc. 19, Ex. pp. 1423-28, 1439-43). But Knox acknowledged that he could not say another shooter fired the fatal shot from another gun, and that he could not offer support for the theory that someone else killed the victim or used another gun. (Id., pp. 1454-55). He testified that forensic evidence does not reveal whether a gunshot was intentional or unintentional. (Id., p. 1453).

Accordingly, Midgett has not established a reasonable probability that Knox's testimony about the crime scene would have resulted in a different outcome at trial. And he has not identified any other expert witness, or provided evidence of what such a witness would say about the crime scene that would have resulted in a different outcome at trial. As Midgett has not established that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim, he is not entitled to relief on Ground Ten.

Ground Thirteen

Midgett argues that newly discovered evidence reveals "a defense theory unknown to [him]" until the postconviction evidentiary hearing. (Doc. 10, p. 26). He claims that Michael Knox's testimony would have supported the theory that he unintentionally discharged the firearm. Midgett further appears to claim that counsel was ineffective in not calling such an expert at trial to present the theory that he unintentionally shot and killed Ward, instead of the "second shooter" theory.

The state court denied these claims when Midgett raised them in a successive motion for postconviction relief:

(Doc. 24-2, p. 3).

To the extent Midgett alleges that Knox's testimony is newly discovered evidence showing that he did not commit second degree murder, his claim is not cognizable on federal habeas review. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("`[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus' . . . [because] federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact." (quoting Townsend v. Sain, 372 U.S. 293, 317 (1963))).

Midgett also claims that counsel was ineffective in failing to "hir[e] a crime scene reconstructionist and determine whether the evidence supported Midgett's account that he fired a gun unintentionally that night." (Doc. 10, pp. 28-29).11 To the extent Midgett alleges that Knox's testimony is newly discovered evidence showing that counsel was ineffective, the court rejected his claim on the basis that he failed to establish that the evidence was new. Whether Midgett met Florida's standard for establishing newly discovered evidence is a question of state law that is not cognizable in this federal habeas petition. See Wainwright v. Goode, 464 U.S. 78, 83 (1983) ("[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension.").

Further, Midgett fails to show that his counsel was ineffective. Midgett claims that counsel should have known an expert was necessary to establish this theory because the evidence showed that a struggle occurred at the door and that he only fired once. He claims that "[t]he chances of the victim being intentionally killed by one shot through a door without windows is implausible. The single shot is much more consistent with unintentional discharge." (Doc. 10, p. 29).

The record shows that counsel knew of this alternative theory and considered presenting it. But counsel testified that, after consulting with Midgett, he decided not to pursue this course for several reasons. Counsel thought that an unintentional discharge theory was "problematic" and would not "make sense" to the jury in light of the evidence that Midgett approached the door pointing the gun towards the victim, with his finger on the trigger. (Doc. 19, Ex. 11, pp. 1415-16). Further, he testified that Midgett wanted to pursue the second shooter theory. (Doc. 19, Ex. 11, p. 1391). Midgett also absolutely prohibited counsel from pursuing an alternate theory-that D.B. was the shooter-which counsel believed to be true and to be supported by evidence that a neighbor saw two figures get out of the truck and approach Ward's house. (Doc. 19, Ex. 11, pp. 1410, 1414). Therefore, counsel was left with either the accidental shooting theory or the second shooter theory, neither of which, he testified, "was good." (Doc. 19, Ex. 11, p. 1415). Accordingly, the record establishes that counsel considered presenting the unintentional discharge theory. Midgett does not show that counsel's decision not to do so fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 690-91 ("[S]trategic choices 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.").

In support of his ineffective assistance claim, Midgett also points to certain portions of Knox's evidentiary hearing testimony that Midgett believes are consistent with unintentional discharge. First, Knox testified that Midgett suffered injuries to his left finger and foot consistent with being caught in a door. Second, Knox testified that the trigger pull weight of the gun recovered from Midgett's home was "on the really light end of a trigger pull." (Doc. 19, Ex. 11, p. 1434). Midgett asserts that this testimony could have countered the State's argument that an unintentional discharge was unlikely. Third, Knox testified that the crime scene photographs showed that the bullet went through the door while moving slightly upward and slightly from right to left. (Doc. 19, Ex. 11, p. 1428). He also stated that the apparent presence of gunshot residue on the door indicated that the muzzle of the gun was about one to two feet from the door. (Id., p. 1424-25). Midgett claims that this testimony goes to establishing a scenario in which his left side was caught in the door, and he unintentionally discharged the firearm he held in his right hand "back away from the door a couple of feet." (Doc. 10, p. 30). Fourth, Knox testified that people often have a slightly inaccurate perception of fast-paced events. (Doc. 19, Ex. 11, pp. 1444-45). Midgett claims that this testimony may explain why he erroneously told police that the gun was against the door when it discharged.

Midgett has not demonstrated that the identified testimony establishes ineffective assistance for not calling an expert to support an unintentional discharge theory. Knox testified at the evidentiary hearing that an unintentional discharge was "plausible" and was consistent with the physical evidence in this case. (Doc. 19, Ex. 11, pp. 1445, 1451). But no part of Knox's testimony about the gun's trigger pull reflects that Midgett unintentionally fired the gun. (Id., pp. 1434-35, 1463-66). And Knox's testimony indicates that forensic evidence cannot establish whether a gun is discharged unintentionally:

Forensically there is no difference . . . if you can pull [a trigger] intentionally you can pull it unintentionally. It's the same thing. . . . The shot is the same. The action of the hand is the same. It's all the same. What's different is what's going on in terms of the person's intent-what did they intend to do.

(Doc. 19, Ex. 11, pp. 1452-53).

Finally, Midgett appears to refer to Knox's evidentiary hearing testimony concerning "contra-lateral reflex." Knox testified:

(Doc. 19, Ex. 11, pp. 1435, 1452).

Midgett appears to argue that, because of contra-lateral reflex, he subconsciously pulled the trigger with his right hand when his left hand was caught in the door. However, no part of Knox's testimony indicates that Midgett discharged his weapon as a result of experiencing contra-lateral reflex. He stated that while he could offer testimony about the contra-lateral reflex "phenomenon," he could not testify that Midgett did or did not unintentionally discharge the firearm. (Doc. 19, Ex. 11, pp. 1461-62). Midgett fails to demonstrate a reasonable probability that the outcome of the trial would have been different due to the speculative nature of such testimony. Accordingly, Midgett's claim of ineffective assistance of counsel does not relief. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559. See also Duran v. Walker, 223 Fed. App'x 865, 875 (11th Cir. 2007) ("Duran's claim that an expert witness would have prompted the jury to believe his testimony . . . is conclusory and speculative, and does not amount to a showing of prejudice.").

Midgett does not show that the state court's denial of his ineffective assistance claim involved an unreasonable application of Strickland, or was based on an unreasonable determination of fact. He is not entitled to relief on Ground Thirteen.

Accordingly, it is ORDERED that Midgett's second amended petition (Doc. 10) is DENIED. The Clerk is directed to enter judgment against Midgett and to close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

It is ORDERED that Midgett 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 COA must first issue. 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, Midgett "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable orwrong," 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)). Midgett has not made the requisite showing in these circums tances. Finally, because Midgett is not entitled to a COA, he is not entitled to appeal in forma pauperis.

ORDERED.