Full opinion text
ORDER DENYING HABEAS CORPUS PETITION K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE Petitioner, Thomas Mitchell Overton (“Mr.Overton”) is on death row at the Union Correctional Institution in Raiford, Florida, for the murders of Michael and Susan Mclvor. Mr. Overton was convicted in 1999 of two counts of first degree murder, one count of killing an unborn child by injury to the mother, one count of burglary with assault/battery and one count of sexual battery. The matter before the Court is Mr. Overton’s Petition for Writ of Habeas Corpus By a Person in State Custody (“Petition”) filed November 8, 2013 [DE 8], The State filed its Response. [DE 11], Mr. Overton filed a Reply. [DE 12], This matter has been fully briefed. For the reasons that follow, Mr. Overton’s Petition for Writ of Habeas Corpus is DENIED. FACTUAL BACKGROUND The Florida Supreme Court gave the following recitation of the pertinent facts: On August 22, 1991, Susan Michelle Ma-clvor, age 29, and her husband, Michael Maclvor, age 30. were found murdered in their home in Tavernier Key. Susan was eight months pregnant at the time with the couple’s first child. Susan and Michael were last seen alive at their childbirth class, which ended at approximately 9 p.m. on August 21, 1991. Concerned co-workers and a neighbor found their bodies the next morning inside the victims’ two-story stilt-house located in a gated community adjacent to a private airstrip. Once law enforcement officers arrived, a thorough examination of the house was undertaken. In the living room, where Michael’s body was found, investigators noted that his entire head had been taped with masking tape, with the exception of his nose which was partially exposed. He was found wearing only a T-shirt and underwear. There was a blood spot on the shoulder area of the tee-shirt. When police removed the masking tape, they discovered that a sock had been placed over his eyes, and that there was slight bleeding from the nostril area. Bruising on the neck area was also visible. The investigators surmised that a struggle had taken place because personal papers were scattered on the floor near a desk, and the couch and coffee table had been moved. A small plastic drinking cup was also found beside Michael’s body. Continuing the search toward the master bedroom, a piece of clothesline rope was found just outside the bedroom doorway. Susan’s completely naked body was found on top of a white comforter. Her ankles were tied together with a belt, several layers of masking tape and clothesline rope. Her wrists were also bound together with a belt. Two belts secured her bound wrists to her ankles. Around her neck was a garrote formed by using a necktie and a black sash, which was wrapped around her neck several times. Her hair was tangled in the knot. Noticing that a dresser drawer containing belts and neckties had been pulled open, officers believed that the items used to bind and strangle Susan came from inside the home. Her eyes were covered with masking tape that appeared to have been placed over her eyes in a frantic hurry. Under the comforter upon which the body rested were several items which appeared to have been emptied from her purse. Also under the comforter was her night shirt; the buttons had been torn off with such force that the button shanks had been separated from the buttons themselves. Near the night shirt were her panties which had been cut along each side in the hip area with a sharp instrument. Within the master bedroom, the investigators also found a .22 caliber shell casing, and somewhat later a hole in a bedroom curtain was noticed. Also in that bedroom, the officers found an address book with some pages partially torn out. The sliding glass door in the bedroom was open and a box fan was operating. There had been a heavy rain storm the night before and the heat and humidity were quickly rising. As a result of these conditions. Susan’s body was covered with moisture. The investigators used a luma light to uncover what presumptively appeared to be seminal stains on Susan’s pubic area, her buttocks, and the inside of her thighs. The serologist later testified that he collected what appeared to be semen from Susan’s body with swab applicators. Three presumptive seminal stains also appeared on the fitted sheet. Within close proximity to one of the seminal stains on the fitted sheet, a stain which appeared to be dried feces was located. It was also noticed that Susan had fecal matter in her buttocks area. Ultimately, the officers took the comforter, fitted sheet, and mattress pad into evidence. The investigation next proceeded to a spare bedroom, which was then being renovated for use as a nursery for the baby. The sliding glass door in that room was. also open. A ladder was found propped up against the balcony outside the nursery. Cut clothesline rope was hanging from the balcony ceiling, and outside the home, the phone wires had been recently cut with a sharp instrument. The medical examiner’s testimony at trial established multiple factors. As to Michael, the autopsy revealed that he suffered a severe blow to the back of the head. The external examination of Michael’s neck revealed several bruises particularly around the larynx, along with ligature marks which indicated that the device used to strangle Michael had been wrapped around his neck several times, FN1 and that pressure was applied from behind. The internal examination of Michael’s neck confirmed that his larynx, as well as the hyoid bone and epiglottis, had been fractured. There was also bruising and an internal contusion indicative of a heavy blow to the back of the neck. The internal examination of the neck area revealed that the neck was unstable and dislocated at the fifth cervical vertebrae. There was also internal bleeding in the left shoulder, indicative of a severe blow to the area. Additionally, Michael had significant bruising in his abdominal area causing a contusion fairly deep within the abdomen. The doctor testified that the injury could have been inflicted by a strong kick to the area. Based on his observations, the doctor opined that the cause of death was asphyxiation by ligature strangulation (rope). He added that Michael could have been rendered unconscious ten to fifteen seconds after the ligature was applied, or that it could have taken longer depending on the pressure applied. FN1. The doctor testified that the ligature marks were indicative of “a rope wrapped around four times or wrapped around twice and reapplied once or wrapped around once and reapplied four times.” With respect to Susan, the external examination of her face revealed that she had received several slight abrasions. The ligature marks around her neck indicated that she was moving against the ligature, thereby causing friction. Also, the discoloration in her face indicated that blood was not exiting the head area as fast as it was entering. According to the medical examiner, this is indicative of an incomplete application of the ligature, which demonstrated that, more likely than not, a longer period of time passed before Susan lost consciousness once the ligature was applied. Her wrists also exhibited ligature marks and her hands were clenched. Moving down to her lower body, an abrasion to her vulva and several abrasions to her legs indicative of a struggle were found. The medical examiner concluded, based on the totality of the circumstances, that she had been sexually battered. When interrogated for an explanation of the presence of feces in the rectal area, the doctor determined that it could have happened either at the time of death or it could have been caused by her fear. The medical examiner determined that Susan was approximately eight months pregnant at the time and proceeded to examine the fetus. The doctor determined that the baby would have been viable had he been born, and that he lived approximately thirty minutes after his mother died. The doctor testified that there was evidence that he tried to breath on his own. Overton v. State, 801 So.2d 877, 881-884 (Fla.2001). STATUTE OF LIMITATIONS In response to Mr. Overton’s Petition, the State argued that the Petition is barred by the statute of limitations. ([DE 11] at 23-26). Mr. Overton has replied that his Petition was timely filed. However, Mr. Overton asserts that, even if the Court finds that his petition was not timely filed, the Court should consider the merits of his claims. Mr. Overton asserts three equitable grounds which could excuse his untimeliness: (1) the State has waived a timeliness argument, (2) the requirements of Rule 3.851 were not firmly established or regularly followed, and (3) Mr. Overton is innocent of the crimes for which he was convicted. Standard of Review on Timeliness In 1996, Congress set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). Congress intended AEDPA to further the principles of comity, finality, and federalism. Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (stating that “there is no doubt Congress intended AEDPA to advance these doctrines [comity, finality, and federalism]”). Clearly, Congress created a one-year limitations period that was meant to streamline the habeas review process and to lend finality to state court convictions. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (recognizing that “the 1 year limitation period of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments”); see also H.R. Cong. Rep. No. 104-518, at 111 (1996), reprinted in H.R. Conf. Rep. No. 518, 104th Cong., at 111 (1996). reprinted in 1996 U.S.C.C.A.N. 924, 944 (1996) (explaining that, in enacting AEDPA, Congress wanted “to curb the abuse of the statutory writ of habeas corpus” by adding, among other things, a one-year period of limitation to the time a state prisoner has to seek habe-as relief from a state conviction). The AEDPA seeks to eliminate delays in the federal habeas review process. See Day v. McDonough, 547 U.S. 198, 205-206, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a one-year limitations period for the filing of an application for relief under § 2254. Accordingly, 28 U.S.C. § 2244(d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. In most cases, including the present case, the limitation period begins to run pursuant to § 2244(d)(1)(A). The Eleventh Circuit has decided that the judgment becomes “final” within the meaning of § 2244(d)(1)(A) as follows: (1) “if the prisoner files a timely petition for certiorari, the judgment becomes ‘final’ on the date on which the Supreme Court issues a decision on the merits or denies certiorari, or (2) the judgment becomes ‘final’ on the date on which the defendant’s time for filing such a petition expires.” Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir.2002). The procedural history below details when Mr. Overton’s conviction and sentence were final, when the statute of limitations was tolled by § 2244(d)(2), and when his federal habeas petition was filed. Based on this procedural history, the Court concludes that the statute of limitations expired before the Petition was filed. Therefore, it is untimely. Procedural History On February 1, 1999, Mr. Overton was found guilty of all charges, including two counts of first degree murder. He was sentenced to death by a vote of eight to four for the murder of Michael Maclvor and a vote of nine to three as to Susan Maclvor. The trial judge found five aggravating factors, no statutory mitigation, and two nonstatutory mitigating circumstances. See Overton v. State, 976 So.2d 536, 544 (2007). On September 13, 2001, the Florida Supreme Court denied Mr. Overton’s direct appeal and affirmed his convictions and sentences. Overton v. State, 801 So.2d 877 (2001). Thereafter, Mr. Overton petitioned the United States Supreme Court for a writ of certiorari. On May 13, 2002, the petition for certiorari was denied. Overton v. Florida, 535 U.S. 1062, 122 S.Ct. 1929, 152 L.Ed.2d 835 (2002). Beginning May 14, 2002, Mr. Overton had one year to file his petition for writ of habeas corpus with this Court or “properly file[]” an application for post-conviction relief in state court or other collateral review with respect to the pertinent judgment or claim which would toll the time for filing his federal habeas petition. See § 2244(d). It is undisputed that, unless tolled, Mr. Overton’s AEDPA statute of limitations expired on May 14, 2003. With the clock running, Mr. Overton did not file an application for post-conviction relief in state court until April 30, 2003. (“April 30 Motion”). ([DE 13-188]). At that time, three hundred fifty-one of Mr. Overton’s three hundred sixty-five days had passed. This left Mr. Overton with only fourteen days to file his federal habe-as petition once the limitations clock began running again. Of course, for Mr. Overton to have those fourteen days left in his limitations period, his April 30 Motion must have been “properly filed” and “pending.” On June 12, 2003, the circuit court struck Mr. Overton’s April 30 Motion from the record because it was “legally insufficient.” ([DE 13-194] at 12). The court • granted leave to file an “amended motion on or before July 11, 2003.” (Id. at 17). On July 10, 2003, Mr. Overton filed an amended Rule 3.851 motion. (“July 10 Motion”). The July 10 Motion was also struck from the record because “the Motion was not signed by the Defendant under oath.” ([DE 13-198] at 20). The court again granted leave to file an amended motion. (Id. at 20). Mr. Overton’s amended motion was due October 31, 2003. The court noted that “the Defendant’s original Motion had been filed timely. And. presumably, Defendant and Counsel have resolved and/or will resolve any issue that would prevent the Defendant from meeting the new filing deadline.” (Id. at 20). On October 30, 2003, Mr. Overton filed a second amended motion to vacate judgment and sentence. (“October 30 Motion”). Mr. Overton raised twelve claims: (I) access to files and records that were in possession of state agencies were improperly withheld in violation of Florida Rule of Criminal Procedure 3.852; (II) trial counsel failed to adequately investigate/prepare a case and challenge the State’s case due in part to the actions of the trial court and the State; (III) the State committed Brady and Giglio violations and trial counsel was ineffective for the failure to present this during the trial; (IV) the State improperly used James Zientek (a jailhouse informant) as an undisclosed agent of law enforcement; (V) Overton was prejudiced by pre-indictment delay; (VI) trial counsel operated under an actual conflict of interest; (VII) an improper jury instruction with regard to expert testimony was used during trial; (VIII) the rule prohibiting attorneys from interviewing jurors prevented trial counsel from being effective; (IX) the voir dire by trial counsel was improper; (X) the combination of errors prevented a fair trial; (XI) trial counsel was ineffective for the failure to object to the introduction of time-barred offenses; and (XII) Overton’s sentence was unconstitutional under Ring. On March 26, 2004, a Huffhearing was held. The trial court ordered an evidentiary hearing on Claims II, IV, V, and VI. On October 8, 2004, Mr. Overton filed a third amended motion for postconviction relief in where he presented Claim XIII, which alleged that trial counsel was ineffective for the failure to request a Richardson hearing. The trial court denied an evidentiary hearing on this claim. The evidentiary hearing on Claims II, IV, V, and VI began on November 15, 2004, and continued until November 17, 2004. On February 14, 2005, the trial court issued an order that denied postconviction relief on all of Mr. Overton’s claims. During the pendancy of the October 30 Motion, Mr. Overton also filed a motion for DNA testing on April 4, 2004. (“DNA motion”). The DNA motion filed pursuant to Rule 3.853. Fla. R.Crim. P. sought the testing of several previously untested items of evidence. On May 17, 2004, the trial court issued an order that denied, in part, and granted, in part, the motion for DNA testing. On August 10, 2004, Mr. Overton filed a second motion that requested DNA testing of the hairs attached to the tape used to bind Susan Maclvor (“second DNA motion”). On August 19, 2004. the trial court denied the second DNA motion. Mr. Overton timely appealed the denial of his motion for postconviction relief and postconviction DNA testing. Overton, 976 So.2d at 536. On appeal from the denial of postconviction relief, Mr. Overton argued four claims with multiple sub-claims: (I) no full and fair evidentiary hearing, (II) ineffective assistance of trial counsel, (III) Brady violation, and (IV)improper summary denial of several claims. Overton, 976 So.2d at 536-67. On appeal from the denial of postcon-viction DNA testing, Mr. Overton asserted four additional claims: (I) admissibility of evidence, (II) reasonable probability of acquittal or lesser sentence, (III) evidence from the record, and (IV) entitlement to an evidentiary hearing. In addition, on February 8, 2006, Mr. Overton filed a petition for writ of habeas corpus with the Florida Supreme Court. The habeas petition argued two claims with multiple subclaims: (I) ineffective assistance of appellate counsel and (II) Ring ¿nd Apprendi violation with the death penalty statute. The Florida Supreme Court considered the two postconviction appeals and the petition for writ of habeas corpus simultaneously. Overton, 976 So.2d at 536. On November 29, 2007, the court denied relief on all of Mr. Overton’s claims. See id. A motion for rehearing was denied on February 25, 2008. While his appeal and habeas petition was pending at the Florida Supreme Court, Mr. Overton filed a successive motion for postconviction relief based on newly discovered evidence. • The motion was filed June 16, 2006, [DE 13-312-13] and was pending for almost six years when the trial court held an evidentiary hearing. [DE 13-329]. On April 10, 2012, the circuit court denied relief. ([DE 13-327] at 1-17). Mr. Overton timely appealed to the Florida Supreme Court. The appeal was denied on August 8, 2013. See Overton, 129 So.3d 1069 (2013)(unpublished opinion). Rehearing was denied on October 31, 2013. On November 8, 2013, Mr. Overton filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody with this Court. The time lapse between the denial of rehearing at the Florida Supreme Court and the filing of the instant Petition was eight days. If Mr. Overton’s April 30 Motion was properly filed and pending, his Petition was timely filed with six days to spare. Therefore, a “properly filed” postconviction motion “pending” in the state court would render his Petition timely filed. “Properly Filed” Although the federal statute does not define “properly filed,” the Supreme Court has construed those words to mean something different from “pending.” See Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000); Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Specifically, “an application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz, 531 U.S. at 8, 121 S.Ct. at 364. The Artuz Court explained that the laws and rules about filings “usually prescribe, for example, the form of the document, the time'limits upon its delivery [and] the court and office in which it must be lodged.... ” Id. at 8, 121 S.Ct. at 364. Moreover, an application that was erroneously accepted without complying with procedural requirements will be pending, but it will not be “properly filed.” Id. at 9,121 S.Ct. at 364. Delguidice v. Fla. Dep’t of Corr., 351 Fed.Appx. 425 (11th Cir.2009). In Artuz, the Supreme Court articulated the difference between claims for relief which are denied on procedural grounds (i.e.: procedurally barred claims) and procedural rules setting forth conditions to filing. See id. at 10-11, 121 S.Ct. 361. Here, Fla. R.Crim. P. 3.851(e) governs the “application or motion” but not the individual claims asserted within the application. The rule clearly utilizes “and” in requiring that all five sub-sections must be complied with when filing an initial post conviction motion. See Fla. R. Crim. P. 3.851(e). Applying these principles, Mr. Overton’s April 30 Motion was “properly filed” for purposes of § 2244(d)(2) because his motion complied “with all the ‘mechanical rules that are enforceable by clerks.’ ” See Brown v. Sec’y, Dep't of Corr., 530 F.3d 1335 (11th Cir.2008)(holding that a motion that is rejected for facial insufficiency or lack of specificity is “properly filed for AEDPA tolling purposes.”). This determination is consistent with Eleventh Circuit precedent regarding certain procedural filing requirements. See Melson v. Allen, 548 F.3d 993 (11th Cir.2008)(vacated on other grounds)(unverified petition did not trigger the tolling provisions of § 2244(d)(2)); Sibley v. Culliver, 377 F.3d 1196 (11th Cir.2004)(“The simple fact that Sibley mailed something to the court is surely insufficient to trigger § 2244(d)(2)’s tolling provision”) and Hurley v. Moore, 233 F.3d 1295 (11th Cir.2000)(“Rather than file a properly sworn motion, Hurley chose to move for rehearing of the denial of the deficient motion. Because Hurley’s state post-conviction motion was not properly filed according to the state court’s application of the written oath requirement, the one-year statute of limitations under the AEDPA is not tolled”). Here, the determination that Mr. Overton’s motion was legally insufficient was made by the judge and thus was not “a mechanical rule enforceable by clerks.” Id. at 1337. As a result. Mr. Overton’s motion was “properly filed” for AEDPA tolling purposes on April 30, 2003. “Pending” However. Mr. Overton must also show that his properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim was “pending.” Specifically, the issue here, is whether the April 30 Motion was “pending” for the purposes of § 2244(d)(2) during the period of time that the April 30 Motion was struck (June 12, 2003) and when his July 10 Motion was filed. The time period from June 12, 2003 to July 10, 2003 is the relevant time period because when Mr. Overton filed his April 30 Motion, only fourteen days remained in the federal limitations period. If the April 30 Motion ceased to be “pending” once it was struck from the record, Mr. Overton’s federal habeas petition was due on or before June 26, 2003. There is no doubt that his Petition was not filed on that date. At issue is whether there was a properly filed motion “pending” in the state courts to toll the limitations period. Accordingly, the dispositive question is: when does an application for State post-conviction or other collateral review cease to be “pending” for purposes of § 2254(d)(2)? The United States Supreme Court has not directly addressed the issue. The Eleventh Circuit has considered a like-minded but not identical issue and determined that a voluntarily dismissed state habeas petition did not toll the limitations period because “there was nothing for the state court to ‘consider’ until he filed his second state habeas corpus claim” and “there was nothing ‘pending’ before the state court during that interim [jperiod.” Stafford v. Thompson, 328 F.3d 1302, 1305 (11th Cir.2003). The Court finds the logic of this analysis persuasive. If, like Mr. Stafford, Mr. Overton’s April 30 Motion was not going to be considered or reviewed by the trial court because the April 30 Motion had been struck from the record, it was not “pending.” The merits of the April 30 Motion would not be reviewed. Rather, an amended motion was going to be considered, if and when, one was filed. If Mr. Overton had decided to not file an amended motion (or filed a second facially insufficient postconviction motion as happened here), there was nothing substantive for the State to respond to and nothing for the circuit court to review. Logie dictates that when the April 30 Motion was stricken from the record, the motion was no longer “pending.” The Court recognizes that this finding contradicts a sister court in the circuit. When faced with a similar set of facts, the Northern District of Florida came to a different conclusion. See Peterson v. Jones, 2015 WL 1061677, *7 (N. D.Fla.2015)(“Given petitioner’s timely amendment, the state circuit court’s order striking petitioner’s initial Rule 3.850 motion did not end the proceedings in the circuit court.”). However, the Court does not consider Peterson binding or even persuasive for several reasons. Primarily, the Court disagrees with the premise that even though the motion was struck from the record, that action did not “end the proceedings.” § 2244(d)(2) is silent about “proceedings” being pending. The specific statutory language refers to a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” See § 2244(d)(2)(emphasis added). Moreover, Peterson relies heavily on Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) but Carey held that the term “pending” as applied in § 2244(d)(2) applies to the time between the ruling of the lower state court and the filing of a notice of appeal to the higher state court. See Carey, 536 U.S. at 2139, 122 S.Ct. 2134. The Court finds rebanee on Carey is misplaced because the time period between when a postconviction application is denied and a notice of appeal is filed are very different from the time period between when an insufficiently pled postconviction application was stricken and amended postconviction application motion is filed. When a defendant pursues an appeal, his application may remain “pending” because the lower court may grant the original application at some point in the future depending on the outcome of his appeal. “[A]n appeal is not a new application; rather, it is a request that the appellate court order the lower court to grant the original application.” Carey, 536 U.S. at 230, 122 S.Ct. 2134. (J. Kennedy, dissenting). By contrast, once Mr. Overton’s April 30 Motion was struck, the lower court would not review the merits of the claims raised in that motion and neither would a higher court. When granting the State’s motion to strike, the trial court denied Mr. Overton’s motion to file a corrected motion; instead ordering him to file an amended motion. (See [DE 13-194] at 11-18). Further, the applicable state court rule provided that when the trial court grants leave to amend but if the movant fails to file an amended motion, “the judge shall deem the non-compliant claim, sub-claim, and/or argument waived.” See Fla. R. Crim. P. 3.851(e)(1). Therefore, Mr. Overton had to either file an amended motion for the court’s consideration or he waived his postconviction claims. Accordingly, the claims made in his April 30 Motion were not going to be considered on their merits by the circuit court. Despite the initiation of a postconviction proceeding, the April 30 Motion was no longer “pending” as of June 12, 2003. As such, on June 25, 2003, Mr. Overton’s federal statute of limitations expired. Over ten years passed before Mr. Overton’s Petition was filed in this Court. Absent statutory tolling, Mr. Overton’s Petition is untimely. However, this is not the end of the matter. Mr. Overton has raised entitlement to equitable relief on multiple grounds. Mr. Overton contends that the Court should excuse his failure to comply with the statute of limitations. (See [DE 12]). As those arguments are complex and would require a significant expenditure of judicial resources, the Court has decided to review the merits of his claims without consideration of the equitable arguments raised by Mr. Overton. See generally Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir.2011) (“When relief is due to be denied even if claims are not procedurally barred, we can skip over the procedural bar issues, and we have done so in the past.”). After careful reviey of the petition and regardless of whether Mr. Overton’s claims are time-barred, the Court will exercise its discretion because it has determined that “the interests of justice would be better served by addressing the merits” than dismissing the petition as time barred. See Day v. McDonough, 547 U.S. 198, 210, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (citing Granberry v. Greer, 481 U.S. 129, 136, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)). The Court turns to the merits. CLAIMS AND APPLICABLE STANDARDS Mr. Overton’s habeas corpus petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified at various provisions in Title 28 of the U.S.Code), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. Under the AEDPA, if a claim was adjudicated on the merits in state court, habeas corpus relief can only be granted if the state court’s adjudication “resulted in a decision that was contrary to. or involved an unreasonable application of. clearly established federal law, as determined by the Supreme Court of the United States,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). This is an “exacting standard.” Maharaj v. Sec’y, Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir.2005). Pursuant to § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent if it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an] [opposite] result.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In other words, the “contrary to” prong means that “ the state court’s decision must be substantially different from the relevant precedent of [the Supreme] Court.” Id. With respect to the “unreasonable application” prong of § 2254(d)(1). which applies when a state court identifies the correct legal principle but purportedly applies it incorrectly to the facts before it, a federal habeas court “should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. See also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Significantly, an “objectively unreasonable application of federal law is different from an incorrect application of federal law.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). An “unreasonable application” can also occur if a state court “unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court ease law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). As noted above. § 2254(d)(2) provides an alternative avenue for relief. Ha-beas relief may be granted if the state court’s determination of the facts was unreasonable. “A state court’s determination of the facts, however, is entitled to deference” under § 2254(e)(1). See Maharaj, 432 F.3d at 1309. This means that a federal habeas court must presume that findings of fact by a state court are correct; and, a habeas petitioner must rebut that presumption by clear and convincing evidence. See Hunter v. Sec’y, Dep’t. of Corr., 395 F.3d 1196, 1200 (11th Cir.2005). Finally, where a federal court would “deny relief under a de novo review standard, relief must be denied under the much narrower AEDPA standard.” Jefferson v. Fountain, 382 F.3d 1286, 1295 n. 5 (11th Cir.2004). Even if the Court believed the Florida Supreme Court’s determination to be an incorrect one, under AEDPA deference that alone is not enough to grant habeas relief, the Court must also find that “there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with [United States Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783, 178 L.Ed.2d 624 (2011). In other words, as a condition for obtaining habeas corpus relief 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. See id. (emphasis added). Here, Mr. Overton has failed to meet this burden. ANALYSIS Mr. Overton asserts four claims for federal habeas relief. Mr. Overton grouped his claims by factual issue as opposed to legal claim. This resulted in the Petition lacking the clarity required of a>28 U.S.C. § 2254 petition. See generally 28 U.S.C. § 2254 Rule 2(c). As best the Court can discern, Mr. Overton makes four claims for habeas relief. First. Mr. Overton argues that he was “deprived of his constitutional right to a fair and impartial jury due to the denial of his challenges for cause” and that “appellate counsel was deficient in failing to challenge the denial of change of venue on direct appeal.” ([DE 1] at 49). Second, Mr. Overton asserts that he was “deprived of his right to the effective assistance of trial and appellate counsel and his rights to a fair trial and due process of law ... due to the admission of unreliable DNA evidence at trial.” (Id. at 66). Third, Mr. Overton contends that his trial was unreliable because he was deprived “of the effective assistance of counsel and/or the State’s failure to disclose material impeachment evidence and/or the use of inconsistent theories before different fact-finders in different proceedings.” (Id. at 110). Finally, Mr. Overton’s conviction and sentences are “unreliable due to the ineffective assistanc[sic] of counsel in investigating the ablibi [sic] and objecting to the preindictment delay” and that “newly discovered evidence supports Overton’s claims of innocence.” (Id. at 153). I. Depravation of Constitutional Right to a Fair Trial In his first claim for federal habeas relief, Mr. Overton argues that he was denied his constitutional right to a fair trial. ([DE 8] at 49). Mr. Overton asserts two bases for his argument: (1) the denial of cause challenges and (2) appellate counsel’s failure to challenge the denial of the motion for change of venue on direct appeal. A) Denial of Cause Challenges On January 11, 1999, the trial of the State of Florida versus Thomas Mitchell Overton began. ([DE 13-72] at 24). Pri- or to the commencement of trial, the court held a hearing to discuss certain security measures to be taken during trial. The State and court security presented testimony that Mr. Overton was a high risk inmate due to the nature of the crimes for which he was accused, the crimes of which he was previously convicted, and a prior escape attempt. The court determined that to insure courtroom security, Mr. Overton would have a shock belt placed under his suit and silenced shackles on his ankles which were hidden from the jury’s view with a table skirt. ([DE 13-64] at 32). On the first day of jury selection, a prospective jury pool of 60 persons were called for voir dire. One of those jurors was Harry Russell. The denial of the cause challenge to his sitting as a juror is the subject of this claim. On the second day of jury selection, a prospective jury pool of 33 additional persons were called. One of those jurors was William Heuslein. He too is the subject of this claim. During jury selection, defense counsel sought to challenge both jurors for cause, the trial court denied the request and counsel had to utilize peremptory challenges to exclude them from sitting on Mr. Overton’s jury. Essentially, Mr. Overton’s argument here is that because he had to expend peremptory challenges on jurors which should have been excluded for cause, he ultimately did not exclude the jurors he would have liked to have excused had those peremptory challenges remained after Mr. Russell and Mr. Heuslein were excluded for cause. On direct appeal, the Florida Supreme Court denied this claim. First, we agree with the appellant that this issue was properly preserved by trial counsel. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990). Second, we note that to prevail with this argument, Overton must establish that the trial court erred in denying the challenges for cause as to both Russell and Heuslein because the trial court did award the defense one additional peremptory challenge, thereby replacing one of the peremptory challenges expended on either Russell or Heuslein. This issue could only constitute reversible error if we conclude that the trial court erred in denying the challenges as to both of these potential jurors. See, e.g., Watson v. State, 651 So.2d 1159, 1162 (Fla.1994) (“Since the trial judge gave Watson one additional peremptory challenge, he is not entitled to reversal unless both jurors were improperly excused.”); Cook v. State, 542 So.2d 964, 969 (Fla.1989) (“Because the trial judge granted the appellant’s motion for one additional challenge, appellant is entitled to have his conviction reversed only if he can show that the judge abused his discretion in refusing to excuse both jurors Sergio and Boan for cause.”). As previously noted, because the trial court granted an extra peremptory in this case, it was necessary for Overton to establish that the trial court erred as to both Russell and Heuslein to establish reversible error. See, e.g., Watson, 651 So.2d at 1162: Cook, 542 So.2d at 969. Although we conclude that the trial court should have excused Mr. Russell for cause, we do not reach the same conclusion as to Mr. Heuslein. Accordingly, appellant has failed to demonstrate that any error as to this issue warrants reversal for a new trial. Overton v. State, 801 So.2d 877, 896 (Fla.2001). The Court owes deference to the decision of the Florida Supreme Court pursuant to the AEDPA. However, it is simply not enough that a federal habeas petitioner raised a claim in the state courts and now challenges the state court’s determination of that claim. To be cognizable, a petitioner must limits his claims in a petition brought pursuant to 28 U.S.C § 2254(a) to those wherein it is alleged that he is “in custody in violation of the Constitution or laws or treaties of the United States.” This is not such a case. “Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise.” Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (citations omitted). “We recognize that federal law does not require reversal where a defendant is forced to use a peremptory challenge on a juror who should have been dismissed for cause.” Van Poyck v. Fla., Dep’t of Corr., 290 F.3d 1318 (11th Cir.2002) (citations omitted). Indeed, Ross very clearly and unequivocally states that “[w]e have long recognized that peremptory challenges are not of constitutional dimension. Gray [v. Mississippi ], supra, [481 U.S. 648] at 663, 107 S.Ct. [2045] at 2054 [95 L.Ed.2d 622 (1987) ]; Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154 (1919).” Ross, 487 U.S. at 88, 108 S.Ct. 2273. Nonetheless. Mr. Overton asserts that he “is entitled to federal habeas relief.” ( [DE 12] at 25). Aside from the argument being contrary to federal law, Mr. Overton has failed to assert that the denial of these two cause challenges resulted in him being tried in front of a biased and partial jury. Mr. Overton does not identify a single juror who served on his jury — as opposed to the two jurors as issue here who did not serve on his jury — who he would have excluded had he still had peremptory challenges left. Instead, Mr. Overton argues a per se rule. Under this rule, a trial court’s failure to excuse a juror for cause would result in reversible error absent any showing of prejudice or harm. There is no legal support for this contention. Habeas relief is denied. B) Ineffective Assistance of Appellate Counsel Mr. Overton’s second sub-claim is that he was denied the effective assistance of appellate counsel when his appellate lawyer did not assert error on direct appeal. ([DE 8] at 61). Mr. Overton argues that because the pre-trial publicity was “obvious on the record” and “leaped out upon even a casual reading of the transcript” appellate counsel was ineffective for failing to raise the issue on direct appeal. Mr. Overton contends that “there is a more than [a] reasonable probability that the outcome of the appeal would have been different.” (Id. at 65). The facts do not support his contentions. On December 30, 1998, defense counsel filed a Motion for Change of Venue. ([DE 13-21] at 23). The motion requested that the court grant a change of venue, or in the alternative, that the court summons jurors from a different jurisdiction for Mr. Overton’s trial. The motion asserted that “[t]he pretrial publicity in this case has been and is so extensive that the community in Monroe County has been exposed to circumstances of the offenses herein charged so pervasively that prejudice, bias and preconceived opinions are the natural result.” ([DE 13-21] at 24). Attached to the motion were several affidavits from attorneys who were residents of Monroe County and who attested that they were “of the opinion that the Defendant THOMAS M. OVERTON could not receive a fair and impartial trial by jurors drawn from Monroe County, Florida.” ([DE 13-21] at 32-34). The week before trial, defense counsel raised the issue but conceded that “I understand that the c]ourt in these types of motions would normally take under advisement and see what occurs at the particular jury selection.” ([DE 13-66] at 5). The court took the motion under advisement and also noted “that we have relocated the case within the circuit from the Upper Keys where the offenses were allegedly committed to the Lower Keys division in part to deal with some of these issues.” (Id. at 6). Prior to trial, counsel supplemented his motion with additional newspaper clippings of the pre-trial publicity. Again, the court said it was deferring ruling until “we initiate and attempt to seat a . jury.” ([DE 13-72] at 27). At the beginning of trial, defense counsel renewed his request for change of venue. The court denied the motion finding that due to the “extensive, exhaustive questioning of the jurors and the granting of cause challenges liberally” there was no basis for a change of venue. ([DE 13-114] at 38). The trial began in Monroe County. Florida with jurors from Monroe County, Florida. On direct appeal, appellate counsel did not challenge the impartiality of the jurors. In his state habeas petition, Mr. Overton argued that appellate counsel was ineffective for failing to raise error. After citing Strickland v. Washington, the Florida Supreme Court denied relief. Overton contends that his appellate counsel was ineffective for the failure to present on appeal the improper denial of his motion to change venue. The record clearly establishes that Overton’s trial counsel requested a change of venue due to alleged pretrial publicity. Generally, to determine a change of venue, the test is: [Wjhether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom. Rolling v. State, 695 So.2d 278, 284 (Fla.1997) (quoting McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977)). In ruling on a motion for a change of venue, the trial court should consider the following: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury. Rolling, 695 So.2d at 285. The ability to seat an impartial jury in a high-profile case may be demonstrated by either a lack of extrinsic knowledge among members of the venire or, assuming such knowledge, a lack of partiality. Id. (citing Oats v. State, 446 So.2d 90, 93 (Fla.1984)). Moreover, the existence of pretrial publicity does not necessarily require a change of venue, but instead, pretrial publicity should be examined in light of the following factors: (1) when the publicity occurred in relation to the time of the crime and the trial; (2) whether the publicity was made up of factual or inflammatory stories; (3) whether the publicity favored the prosecutions side of the story; (4) the size of the community exposed to the publicity; and (5) whether the defendant exhausted all of his peremptory challenges in seating the jury. State v. Knight, 866 So.2d 1195, 1209 (Fla.2003). Finally, a trial court’s failure to grant a motion for a change of venue is reviewed under an abuse of discretion standard. See Rivera v. State, 859 So.2d 495, 511 (Fla.2003). Here, the underlying claim that the trial court erred in its denial of Overton’s motion to change venue is without merit because we conclude that under the two-prong test to evaluate that ruling, the trial court’s denial of the motion was not an abuse of discretion. Thus, appellate counsel was not ineffective for the failure to assert this issue on direct appeal. Overton v. State, 976 So.2d 536, 571-72 (Fla.2007). Here, the Florida Supreme Court reviewed the underlying claim (ie.; the motion for change of venue) and found that because it was without merit, appellate counsel could not have been ineffective for failing to raise a non-meritorious claim. In other words, counsel’s performance was not deficient. The Court reviews the decision of the Florida Supreme Court for reasonableness as determined by the AEDPA. There can be no doubt that this claim is governed by Strickland v. Washington. Further. Mr. Overton’s claims are also governed by the deferential standards of the AEDPA. In Strickland, the United States Supreme Court set forth the two-prong test that a convicted defendant must meet to demonstrate that his or her counsel rendered ineffective assistance. First, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Second, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The Court defines a “reasonable probability” as one “sufficient to undermine confidence in the outcome.” Id. And “fit is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052. Following the enactment of the AEDPA, the Supreme Court has clarified the Strickland standard as follows: In Strickland, this Court made clear that “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation ... [but] simply to ensure that criminal defendants receive a fair trial.” 466 U.S. at 689, 104 S.Ct. 2052. Thus, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just re-suit.” Id., at 686, 104 S.Ct. 2052 (emphasis added). The Court acknowledged that “[t]here are countless ways to provide effective assistance in any given case,” and that “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Id., at 689, 104 S.Ct. 2052. Cullen v. Pinholster; 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011). The Court reviews Mr. Overton’s claims based on the clearly established federal law of Strickland and its progeny while also applying deference to the state court’s decisions as required by the AEDPA After review, the Court finds that the legal standard applied by the Florida Supreme Court is consistent with clearly established federal law. In assessing an appellate attorney’s performance, we are mindful that “the Sixth Amendment does not require appellate advocates to raise every non-frivolous issue.” [Heath v. Jones ] Id. [941 F.2d 1126] at 1130-31 [(11th Cir.1991) ]. Rather, an effective attorney will weed out weaker arguments, even though they may have merit. See id. at 1131. In order to establish prejudice, we must first review the merits of the omitted claim. See id. at 1132. Counsel’s performance will be deemed prejudicial if we find that “the neglected claim would have a reasonable probability of success on appeal.” Id. Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir.2009)(applying well-established Strickland standards to ineffective assistance of appellate counsel claims). It is axiomatic that counsel cannot be deficient for raising a non-meritorious objection. Owen v. Sec’y for Dep’t of Corr., 568 F.3d 894, 915 (11th Cir.2009) (“As the underlying claim lacks merit, [ ] counsel cannot be deficient for failing to raise it.”). Therefore, the Court finds that the Florida Supreme Court’s legal determination did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). Further, when the state courts have already answered the question of how an issue would have been resolved under that state’s law had appellate counsel done what the petitioner argues he should have done, “federal habeas courts should not second-guess them on such matters” because “it is a fundamental principle that state courts are the final arbiters of state law.” Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir.2005)(quotation marks omitted). “A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.” McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992); Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir.1996) (federal courts entertaining petitions for writs of habeas corpus must follow the state court’s interpretation of a state law absent a constitutional violation). Given that the court reviewed the facts and made a legal determination pursuant to state law, the Court reviews the factual findings which served the basis of the Florida Supreme Court’s legal determination for reasonableness. If the factual findings were reasonable, then Mr. Over-ton is not entitled to federal habeas relief. In denying the claim, the Florida Supreme Court considered two issues: (1) extent and nature of any pretrial publicity and (2) difficulty encountered in actually selecting a jury. Overton, 976 So.2d at 572-74. First, the court found that “the publicity consisted of largely factual articles, rather than inflammatory stories.” (Id. at 572). Although, the court acknowledged that “the material did contain some inflammatory items including: (1) many of the stories did mention Overton’s past criminal activity as a burglar; (2) a description that Overton “[had] been in trouble since he was a youngster”; (3) a description that Overton was institutionalized for mental health problems in the past; and (4) the DNA results established that there was a one-in-six-billion chance that anyone but Overton committed the crime.” (Id.) However, notwithstanding that information, the court found that “it was reasonable for the trial court to conclude that the pretrial publicity was largely factual, rather than inflammatory.” Ultimately, the court concluded that “these factors do not support the assertion that the trial court abused its discretion in denying the motion to change venue.” Second, the court found that there was no difficulty in selecting the actual jury. “Notwithstanding that some pretrial publicity did exist here, the record establishes that the jurors were not so infected that they could not possibly ‘put these matters out of their minds.’ ” (Id. at 573). A review of the state court record shows that these factual determinations were reasonable. In the motion for change of venue, defense counsel attached several news articles regarding the murders of the Macl-vors and Mr. Overton’s involvement. ( [DE 13-21] at 35-40). The articles contained information which inculpated Mr. Overton but also cast doubt on his being able to have committed such a crime. One of the new articles pointed out that this would have been out of character for Mr. Overton whose criminal record consisted of burglaries but not crimes of violence such a rape or murder. (Id. at 37). There was an additional article wherein Mr. Overton’s boss gave an interview to the local paper and expressed how surprised she was to have heard that he had been arrested because “[h]e was always a very nice and polite person.” (Id.). Another article published was entitled “Accused killer’s DNA doesn’t match with other murders.” (Id. at 38). Based on the record, the factual findings of the Florida Supreme Court were not unreasonable. The Court must deny relief. While it is true that some of the news articles painted Mr. Overton in an unfavorable light; it is also true that some did not. Mr. Overton has provided no basis for the Court to grant federal habeas relief on a claim of ineffective assistance of appellate counsel when the state courts have found that the underlying claim had no merit. A federal habeas court may not issue the writ on the basis of a state’s interpretation of its own laws and rules, absent extreme circumstances. See Pulley v. Harris, 465 U.S. 37, 42, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); McCullough v. Singletary, 967 F.2d 530, 535-36 (11th Cir.1992). Habeas relief is denied. II. Admission of Unreliable DNA Evidence at Trial. Mr. Overton’s second claim for federal habeas relief is that his right to a fair trial was violated because unreliable DNA evidence was admitted into evidence during trial. ([DE 8] at 68). Mr. Overton asserts three specific bases for this claim. First, trial counsel failed to prepare for a Frye hearing to challenge the reliability of DNA evidence and the conscious decision made by counsel to not participate in the hearing constituted deficient performance. (Id. at 68). Second, appellate counsel was ineffective for failing to “raise the break on the chain of custody as a basis for exclusion of evidence.” (Id.). Third, Mr. Overton has asserted two sub-claims arguing that the State “withheld evidence regarding Doc Pope’s pattern and practice of shoddy evidence collection techniques” and “presented false and/or misleading testimony regarding the fluid found on Missy Maclvor’s person.” ([DE 1] at 100-109). In other words, a Brady/Giglio claim. The Court begins with Mr. Over-ton’s Strickland claims. A) Strickland Claims Mr. Overton argues two distinct claims of ineffective assistance of counsel. He asserts that trial counsel was ineffective when they failed to challenge the general acceptance of STR DNA test results as reliable in the scientific community during the Frye hearing. Mr. Overton further argues that counsel was ineffective for failing to challenge the testing procedures used by the State’s laboratories. When given the opportunity to challenge the procedures used by the State’s experts at a Frye hearing, counsel did not ask a single question or attempt to cross-examine the witnesses. Mr. Overton contends that this constitutes deficient performance on the part of counsel. This argument, however, is very different from challenging the admissibility of the DNA evidence based on the flawed procedures used by the Monroe County Sheriff s department to secure the chain of custody. Trial counsel clearly objected and raised the admissibility of the DNA evidence due to a break in the chain of custody as an issue both before and during trial. However, on direct appeal, appellate counsel did not argue error when the trial court overruled counsel’s objections and the DNA evidence was admitted. As such, Mr. Overton raises claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. i. trial counsel The Court first considers the ineffective assistance of trial counsel claim. Understanding the theory of Mr. Overton’s defense at trial is essential to analyzing this claim. The Florida Supreme Court summarized Mr. Overton’s defense below. The primary thrust of the defense in the case was centered upon a theme that law enforcement officers, Detective Vis-co in particular, had planted Overton’s semen in the bedding, which was essential to the prosecution. FN7 The defense theorized that Detective Visco obtained the defendant’s sperm from Overton’s one-time girlfriend, Lorna Swaybe, transported the sample in a condom, and placed it on the bedding.FN8 FN7. The defense argued that Detective Visco’s alleged motivation to plant the evidence was based on an internal affairs complaint which Overton at one point filed against Visco, but from which Visco was eventually cleared. FN8. Detective Visco had spoken on several occasions with Lorna Swaybe, Overton’s girlfriend. The testimony was not clear as to when these conversations occurred or w hat the nature of the conversations had been. Ms. Swaybe died in 1994, and Detective Visco testified that he never received any seminal fluids from Ms. Swaybe. In an attempt to substantiate this fabrication of evidence theory, the defense consulted Dr. Donald Wright, a forensic pathologist. The doctor suggested that the defense examine the samples from the bedding for Nonoxynol 9, a compound contained in spermicidal condoms. Relying on this advice, the defense caused the samples to be sent to the lab at the Consumer Products Testing Company in New Jersey. In the sample labeled as ' originating from the bottom sheet, the lab director. Mr. Trager, found 53 micrograms of No-noxynol 9. The state attorney’s office requested a confirmatory test and