Fana v. Secretary, DOC (4 F. Supp. 3d 1295, 2014)

ORDER

BRIAN J. DAVIS, District Judge.

I. STATUS

Petitioner Shkelqim Fana filed a Petition for Writ of Habeas Corpus (Petition) (Doc. 1) under 28 U.S.C. § 2254. He is represented by counsel in this proceeding. The Petition challenges a 2008 state court (Duval County) conviction for attempted second degree murder with a weapon. Id. at 1. Petitioner raises fifteen main grounds for habeas relief as well as numerous sub-grounds. The Court is ever mindful of its responsibility to address each ground. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992), Dupree v. Warden, 715 F.3d 1295, 1298 (11th Cir.2018). Upon review, no evidentiary proceedings are required in this Court.

This cause is before the Court on Respondents’ Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 16) and the Exhibits to Answer to Petition for Writ of Habeas Corpus (Appendix) (Doc. 17). Petitioner filed a Reply to Answer to Petition for Writ of Habeas Corpus (Doc. 23), a Motion for Oral Argument (Doc. 24), a Notice of Supplemental Authority (Doc. 26), a Corrected Notice of Supplemental Authority (Crimins Case Cite Correction Only) (Doc. 27), a Notice of Supplemental Authority (Doc. 28), and a Notice of Supplemental Authority (Doc. 29). See Order (Doc. # 8).

II. STANDARD OF REVIEW

This Court will analyze Petitioner’s claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA). “By its terms [28 U.S.C.] § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to th[re]e exceptions.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). The exceptions are: (1) the state court’s decision was contrary to clearly established federal law; or (2) there was an unreasonable application of clearly established federal law; or (3) the decision was based on an unreasonable determination of the facts. Id. at 785.

There is a presumption of correctness of state courts’ factual findings unless rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption applies to the factual determinations of both trial and appellate courts. See Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir.2003).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his Petition, Petitioner claims he received the ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. In order to prevail on this Sixth Amendment claim, he must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring that he show both deficient performance (counsel’s representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different).

In establishing a claim of ineffective assistance of appellate counsel, there must be a showing that appellate counsel’s performance was so deficient that it fell below an objective standard of reasonableness, but also, there must be a demonstration “that but for the deficient performance, the outcome of the appeal would have been different.” Ferrell v. Hall, 640 F.3d 1199, 1236 (11th Cir.2011) (quoting Black v. United States, 373 F.3d 1140, 1142 (11th Cir.2004)).

IV. EXHAUSTION AND PROCEDURAL DEFAULT

There are prerequisites to a federal habeas review. The Court must be mindful of the doctrine of procedural default:

Federal habeas courts reviewing the constitutionality of a state prisoner’s conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. See, e.g., Coleman [v. Thompson ], supra, [501 U.S. 722] at 747-748, 111 S.Ct. 2546 [115 L.Ed.2d 640 (1991) ]; [Wainwright v.] Sykes, supra, [433 U.S. 72] at 84-85, 97 S.Ct. 2497 [53 L.Ed.2d 594 (1977) ]. A state court’s invocation of a procedural rule to deny a prisoner’s claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. See, e.g., Walker v. Martin, 562 U.S. -, -, 131 S.Ct. 1120, 1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. [53, 59-62], 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417 (2009). The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.

Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012).

In addition, in addressing the question of exhaustion, the Court must ask whether the claim was raised in the state court proceedings and whether the state court was alerted to the federal nature of the claim:

Before seeking § 2254 habeas relief in federal court, a petitioner must exhaust all state court remedies available for challenging his conviction. See 28 U.S.C. § 2254(b), (c). For a federal claim to be exhausted, the petitioner must have “fairly presented [it] to the state courts.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.2005). The Supreme Court has suggested that a litigant could do so by including in his claim before the state appellate court “the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’ ” Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Court’s guidance in Baldwin “must be applied with common sense and in light of the purpose underlying the exhaustion requirement” — namely, giving the state courts “a meaningful opportunity” to address the federal claim. McNair, 416 F.3d at 1302. Thus, a petitioner could not satisfy the exhaustion requirement merely by presenting the state court with “all the facts necessary to support the claim,” or by making a “somewhat similar state-law claim.” Kelley [v. Sec’y for Dep’t of Corr.], 377 F.3d [1317] at 1343-44 [ (11th Cir.2004) ]. Rather, he must make his claims in a manner that provides the state courts with “the opportunity to apply controlling legal principles to the facts bearing upon (his) [federal] constitutional claim.” Id. at 1344 (quotation omitted).

Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351-52 (11th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 875, 184 L.Ed.2d 686 (2013).

Procedural defaults may be excused under certain circumstances. Indeed, “[a] petitioner who fails to exhaust his claim is procedurally barred from pursuing that claim on habeas review in federal court unless he shows either cause for and actual prejudice from the default or a fundamental miscarriage of justice from applying the default.” Id. at 1353 (citing Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.1999) (per curiam)). The fundamental miscarriage of justice exception is only available in extraordinary cases upon a showing of “ ‘actual’ innocence” rather than mere “ ‘legal’ innocence.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.2001) (citations omitted), cert. denied, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).

In order for Petitioner to establish cause,

the procedural default “must result from some objective factor external to the defense that prevented [him] from raising the claim and which cannot be fairly attributable to his own conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.1992) (quoting [Murray v.] Carrier, 477 U.S. [478] at 488, 106 S.Ct. 2639 [91 L.Ed.2d 397 (1986) ]). Under the prejudice prong, [a petitioner] must show that “the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494, 106 S.Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir.), cert. denied, 528 U.S. 934, 120 S.Ct. 336, 145 L.Ed.2d 262 (1999). Of note, “[[Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315.

Y. PROCEDURAL HISTORY

The record shows the following transpired. Petitioner was charged by a second amended information with attempted first degree murder of Lorenc Bujari. Ex. 2 at 113-14. In pertinent part, the information reads:

SHKELQIM FANA on or between the 25th day of March, 2000, and the 26th day of March, 2000, in the County of Duval and the State of Florida, did attempt to unlawfully kill Lorenc Bujari, a human being, by stabbing the said Lo-renc Bujari with a premeditated design to effect the death of Lorenc Bujari, and during the commission of the aforementioned Attempted First Degree Murder, the said, SHKELQIM FANA carried, displayed, used, threatened to use, or attempted to use a weapon, to wit: a knife, contrary to the provisions of Sections 782.04(l)(a) and 777.04(1) and 775.087(l)(a), Florida Statutes.

Ex. 2 at 113.

Assistant Public Defender Melina Bun-come-Williams represented Petitioner, and Ms. Buncome-Williams filed a Motion to Suppress Statements, Admissions and Confessions, asserting that oral statements were obtained from Petitioner in violation of his Constitutional rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, the Florida Constitution, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ex. 3 at 59-61. The trial court conducted a hearing on the motion on July 19, 2001. Ex. 4. Recognizing that the state announced that it would seek to introduce only those statements made by Petitioner prior to the time he arrived at the police station, the court addressed only those statements in its Order Denying Defendant’s Motion to Suppress Statements, Admissions and Confessions. Ex. 6 at 105. On October 9, 2001, the court denied the motion to suppress. Id. at 105-107.

On August 13, 2001, Petitioner filed a Motion to Dismiss the information based on the destruction of evidence by the Jacksonville Sheriffs Office. Ex. 7. The trial court conducted a hearing on the motion on August 23, 2001. Ex. 8. The trial court, on October 9, 2001, denied Petitioner’s motion to dismiss the pending charge due to the failure of the Jacksonville Sheriffs Office to preserve physical evidence, finding no evidence of bad faith on the part of the police. Ex. 10 at 103-104.

Jury selection started on October 29, 2001. Ex. 11. The jury trial followed on October 30, 2001. Ex. 12. The jury returned a verdict of guilty on attempted second degree murder, a lesser included offense. Ex. 13. The jury found “that during the commission of the crime the defendant carried or had in his possession a weapon, to wit: a knife.” Id.

On November 9, 2001, Petitioner filed a Motion for New Trial. Ex. 14 at 148-150. The trial court denied the motion. Id. at 151; Ex. 15 at 410. The court conducted a sentencing proceeding on January 18, 2002. Ex. 15. The prosecutor stated the guidelines in the case ranged from seventy-eight months (6.5 years) to thirty years, asserting the probation officer miscalculated the guidelines at forty-eight months. Id. at 411. The Rule 3.992 Criminal Punishment Code Scoresheet prepared by the prosecutor states the primary offense is attempted second degree murder with a deadly weapon, with an offense level of 9, and a score of 92 points. Ex. 17 at 157. The prosecutor scored victim injury as severe, resulting, in a score of 40 points. Id. The total sentence points scored is 132 points. Id. at 157-58. Under sentence computation, the lowest permissible prison sentence in months is calculated at 78 months (6.5 years). Id. at 158. The maximum sentence is thirty years. Id. As authorized by the trial court’s signature, the total sentence imposed is twenty years in state prison. Id.

At sentencing, the court noted that Petitioner was found guilty of attempted second degree murder, and the jury found he carried or had in his possession a weapon, a knife. Ex. 15 at 412. The court adjudicated Petitioner guilty of attempted second degree murder, and sentenced Petitioner to a term of twenty years in prison. Ex. 16 at 447. The January 25, 2002 Judgment is for attempted second degree murder with a deadly weapon, a lesser included offense. Ex. 17 at 152-53. The January 25, 2002 Sentence is for a prison term of twenty years. Id. at 155-56. Finally, the Uniform Commitment to Custody conviction states the conviction is attempted second degree murder, with a deadly weapon, a lesser included offense. Id. at 159.

Petitioner appealed his conviction. Ex. 18. Assistant Public Defender Carl S. McGinness represented Petitioner on direct appeal. Ex. 19. Petitioner raised one ground:

The trial court erred in denying Appellant’s Motion to Suppress Statements, Admissions, and Confessions, since the state failed to sustain its burden of proving the Defendant waived his Miranda-based rights to Counsel and to remain silent, thereby depriving Appellant of his rights under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, and to Article I, Sections 2, 9, 12, and 16, Constitution of the State of Florida.

Ex. 19 at i. The state answered. Ex. 20. The First District Court of Appeal affirmed per curiam on September 17, 2003. Ex. 21. The mandate issued on October 3, 2003. Id. Petitioner petitioned for writ of certiorari, Ex. 22, and the Supreme Court of the United States denied the petition on January 12, 2004. Ex. 23.

On November 6, 2003, pursuant to the mailbox rule, Petitioner filed a Petition for Writ of Habeas Corpus (Ineffective Assistance of Appellate Counsel) claiming ineffectiveness of appellate counsel for failing to raise the following on direct appeal: (1) trial court error in admitting into evidence an inaudible audio tape; (2) trial court error in allowing the state to use a transcript of the inaudible audio tape; (3) trial court error in denying Petitioner’s motion to dismiss where the state destroyed all the evidence related to the case; (4) trial court error in allowing admission of a knife provided by a witness fifteen months after the date of the charged crime; and, (5) fundamental error in Petitioner being adjudicated for attempted second degree murder with a deadly weapon because the conviction was only for attempted second-degree murder with a weapon. Ex. 24.

Prior to the First District Court of Appeal rendering its decision, on November 19, 2003, pursuant to the mailbox rule, Petitioner filed a Motion for Leave to Supplement Petition for Writ of Habeas Corpus Claim of Ineffective Assistance of Appellate Counsel with Additional Issue. Ex. 25. In his proposed Supplement to Petition for Writ of Habeas Corpus Raising Issue F to Claim of Ineffective Assistance of Appellate Counsel, Petitioner claims his appellate counsel was ineffective for failing to raise an issue of fundamental error based on the use of an erroneous jury instruction on self-defense (giving a forcible felony instruction when there was no separate forcible felony, negating the self-defense instruction). Id.

Before ruling on the motion for leave to supplement, the First District Court of Appeal per curiam denied the petition on December 18, 2003. Ex. 26. On December 29, 2003, pursuant to the mailbox rule, Petitioner moved for rehearing, noting that the court failed to address the motion for leave to supplement. Ex. 27. On January 12, 2004, the First District Court of Appeal denied the motion for leave to supplement. Ex. 28. Thereafter, on January 29, 2004, the First District Court of Appeal denied rehearing. Ex. 27.

Petitioner submitted a pro se Motion for Post-Conviction Relief Filed Pursuant to Fla. R.Crim. P. 3.850 on February 4, 2004, pursuant to the mailbox rule. Ex. 29. Represented by counsel, Petitioner filed an amended motion. Ex. 30. Finally, represented by his current counsel, Petitioner filed a Second Amended Motion for Post Conviction Relief. Ex. 31. In ground I, Petitioner claimed he received the ineffective assistance of trial counsel. Id. at 63-76. In ground II, he claimed newly discovered evidence which showed that Maj-linda Fana coached and instructed her son, critical witness Jurgen Fana, to give false testimony at trial. Id. at 76-77. Additionally, Petitioner claimed that Bujar Nushi and Emona Rons could attest to Majlinda Fana’s affair with Lorenc Bujari. Id. at 76. Also, Petitioner claimed Mr. Nushi could testify that he observed Ms. Fana coercing Jurgen Fana to testify falsely that he saw Petitioner take knifes from their home on the night of the incident. Id.

The trial court conducted an evidentiary hearing on the Second Amended Motion for Post Conviction Relief on November 17, 2009 and December 11, 2009. Ex. 32. Petitioner testified as well as the following witnesses: Shari Robb, Paul Daragjati, Douglas Randy Justice, Ilie Craciun, Judith Craciun, and Thomas Bunn, Jr. As its only witness, the state called Melina Bun-come-Williams, Petitioner’s trial counsel.

In its January 15, 2010, Order Denying Defendant’s Second Motion for Post Conviction Relief, the circuit court denied the motion for post conviction relief. Ex. 33. Petitioner appealed the trial court’s decision. Ex. 34. Appellant’s Amended Initial Brief presented both claims, ineffective assistance of trial counsel and newly discovered evidence. Ex. 35. The state filed its Answer Brief of Appellee. Ex. 36. Petitioner filed a Reply Brief. Ex. 37. He also filed a Motion for Oral Argument, which was denied. Ex. 38. The First District Court of Appeal affirmed per curiam on February 17, 2011. Ex. 39. The mandate issued on March 7, 2011. Id.

VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW

GROUND ONE

In grounds one through seven, Petitioner raises claims of ineffective assistance of trial counsel. Ground one is “[t]rial counsel’s failure to explain plea offer with the aid of an interpreter^]” Petition at 5 (footnote omitted). In this ground, Petitioner claims his trial counsel was constitutionally ineffective for relaying a plea offer from the state without providing Petitioner the aid of an interpreter. Id. In evaluating the performance prong of the Strickland ineffectiveness inquiry, the Court recognizes that there is a strong presumption in favor of competence. The inquiry is “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “[HJindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ ... and by giving a ‘heavy measure of deference to counsel’s judgments.’ ” Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citations omitted).

After conducting an evidentiary hearing, the trial court denied the claim of ineffective assistance of trial counsel raised in ground one. The court recognized the standard set forth in Strickland for reviewing a claim of ineffective assistance of counsel. Ex. 38 at 107-108. The court, in substantial detail, addressed ground one, made findings of fact, and denied the claim. Id. at 101-102.

Specifically, in its Order Denying Defendant’s Second Motion for Post Conviction Relief, the trial court denied this claim finding:

Trial counsel, Melina Buncome-Williams testified at the 3.850 hearing that any and all offers from the State were relayed to the Defendant by and through an interpreter. Ms. Buncome-Williams further stated that the Defendant was unlikely to take any offers since any plea to the substantive charges would have exposed the Defendant to deportation proceedings. Defendant speaks English. Defendant spoke English at the time of his arrest. At all times material hereto, he could carry on day to day conversations with others in English. Moreover, at the time of his arrest, the Defendant was employed as a long distance truck driver in the United States. It is not credible to deny that such an occupation would have necessitated the ability to read and speak at least some English. Ms. Buncome-Williams testified that she met with the Defendant in Court, in jail and also in her office. At all attorney client discussions and meetings, Defendant had the benefit of a translator. Further, Ms. Buncome-Williams indicated there was never a State offer of plea no contest, time served in this case that was charged as Attempted First Degree Murder. It is hard to imagine a set of circumstances that would cause the State to make a time served disposition for charges of Attempted First Degree Murder. In conclusion, Trial Counsel was effective in her representation of Defendant by securing the assistance of an interpreter at all critical stages of the proceedings to ensure Defendant made an informed decision regarding his rejection of the plea offer.

Ex. 33 at 101-102.

The trial court concluded that defense counsel was not ineffective for the reasons stated in its order. The First District Court of Appeal affirmed the trial court’s decision. Ex. 39.

At the evidentiary hearing Ms. Bun-come-Williams testified that there never was a plea offer from the state. Ex. 32 at 96. In addition, Petitioner never gave a defense offer to provide to the state attorney. Id. Petitioner has failed to satisfy both the performance and prejudice prongs of Strickland. Thus, Petitioner is not entitled to relief on ground one. See Response at 11-18.

Petitioner has not shown that a reasonable probability exists that the outcome of the proceeding would have been different if his lawyer had given the assistance that Petitioner has alleged should have been provided. Accordingly, Petitioner’s ineffectiveness claim is without merit since he has neither shown deficient performance nor resulting prejudice.

Petitioner is not entitled to relief on ground one of the Petition, the claim of ineffective assistance of trial counsel. Deference under AEDPA should be given to the state courts’ decisions. Petitioner raised the issue in his Rule 3.850 motion, the trial court denied the motion, and the appellate court affirmed. The state courts’ adjudication of this claim is not contrary to or an unreasonable application of Strickland, or based on an unreasonable determination of the facts.

GROUND TWO

In ground two, Petitioner raises the following issue: “[t]rial counsel failed to investigate and present evidence in support of Defendant’s Motion to Dismiss[.]” Petition at 7. Petitioner claims that counsel’s performance was deficient because she failed to interview or depose witnesses named on the property room records concerning the destruction of evidence. Id. at 7-9. The trial court, in rejecting this ground, found the following:

Ms. Buncome-Williams fully and comprehensively investigated this case, in all areas, including regarding the destruction of evidence. Trial counsel was able to argue the issue regarding destruction of evidence at trial in closing argument. Further, Ms. Buncome-Williams filed and argued a pretrial Motion to Dismiss based upon destruction of evidence. The destruction of evidence in this case was unintentional and clearly embarrassing for the State. The State did not act in bad faith as the destruction was unintentional. The deposition or testimony of random JSO Property Room workers would not have been probative or assisted the defense of the Defendant in this case. The evidence was destroyed and counsel could [attack] this weakness in the State’s case at the motion to dismiss and the trial.

Ex. 33 at 102-103. The First District Court of Appeal affirmed the decision of the trial court.

At the evidentiary hearing, Petitioner’s witness, private investigator Douglas R. Justice, testified that upon his investigation of the destruction of evidence matter, he discovered the following:

Well, in there, we discovered that there was a letter from the State Attorney’s Office to the property room requesting that certain items be released.

We obtained a copy of this property notice from the State Attorney’s Office, in which a Marie Horcome who was at the time at the State Attorney’s Office had signed a letter indicating that certain items were to be released to Mr. Bujari, some personal items, and other items were to be held for evidence.

These items that were supposedly held for evidence, were apparently subsequently destroyed prior to trial. It appears in examining this property notice that Ms. Horcome mismarked the form itself, and then the property room officer, Tommy Bunn, misread it.

Ex. 32 at 20-21 (emphasis added).

Upon review, the trial court, in its Order Denying Defendant’s Motion to Dismiss, found that “through mis-communication and neglect, all physical evidence not released to the alleged victim was subsequently destroyed .... ” Ex. 10 at 103-104. The court further found “there is no evidence of bad faith on the part of the police in destroying the physical evidence in this case.” Id. at 104.

Petitioner has not shown that a reasonable probability exists that the outcome of the proceeding would have been different if his lawyer had given the assistance that Petitioner has alleged should have been provided. Petitioner failed to present any evidence of bad faith on the part of the state and the Sheriff’s property room staff. Accordingly, Petitioner’s ineffectiveness claim is without merit since he has neither shown deficient performance nor resulting prejudice. See Response at 18-26.

The decisions of the state courts are entitled to deference under AEDPA. The decisions involved a reasonable application of clearly established federal law, as determined by the United States Supreme Court. Therefore, Petitioner is not entitled to relief on ground two, the claim of ineffective assistance of trial counsel, because the state courts’ decisions were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

GROUND THREE

In his third ground, Petitioner raises another claim of ineffective assistance of counsel: “[t]rial counsel failed to request a destroyed evidence cautionary introduction [sic].” Petition at 10. In this ground, Petitioner contends that trial counsel performed deficiently because she failed to request a cautionary instruction regarding the fact that the photographic evidence replaced the actual evidence, which had been destroyed by the state, and should be considered with caution.

Petitioner raised this claim in his post conviction motion, and the trial court denied the claim finding:

As stated in Ground B above, the defense was able to argue in closing argument that the destruction of the knives by the State amounted in a deprivation of evidence, from the jury, that can be used to establish guilt beyond a reasonable doubt upon the Defendant. There was no need to include a jury instruction as to destroyed evidence as the Standard Jury Instructions already stated that the Jury may look to a lack of evidence as well as a conflict in the evidence. In the end, trial counsel for the Defendant was able to secure a conviction on a lesser included offense, a great benefit to the Defendant.

Ex. 83 at 103. The First District Court of Appeal affirmed this decision.

Upon review, the trial court provided the following instruction concerning evidence:

It is to the evidence introduced in this trial and to it alone that you are to look for that proof.

A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.

It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable or less reliable than other evidence.

Ex. 12 at 933-34.

Defense counsel relied heavily on the destruction of the evidence in her closing argument. Id. at 881-82. She implored: “[y]ou could have looked at the knives and compare the fingerprints, see whether or not Mr. Bujari [sic] fingerprints were on there or was it only Mr. Fana and determine how that knife got in that office other than by Mr. Bujari taking it and putting it there.” Id. at 882. She continued: “[y]ou could have been able to do all that but we can’t because the property that was in the state’s custody is not there. They are the only one that had access to it before the defense even had a chance.” Id. at 882-83.

Concerning ground three, Petitioner has not shown that a reasonable probability exists that the outcome of the proceeding would have been different if his lawyer had given the assistance that Petitioner has alleged should have been provided. Accordingly, Petitioner’s ineffectiveness claim is without merit since he has neither shown deficient performance nor resulting prejudice. See Response at 26-33.

Upon review, there was no unreasonable application of clearly established law in the state court’s decision to reject the Strickland ineffectiveness claim. Indeed, the decision rejecting the claim of ineffective assistance of trial counsel is entitled to deference under AEDPA. The adjudication of the state courts resulted in decisions that involved a reasonable application of clearly established federal law, as determined by the United States Supreme Court. Therefore, Petitioner is not entitled to relief on ground three of the Petition, the claim of ineffective assistance of trial counsel, because the state courts’ decisions were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

GROUND FOUR

In his fourth ground, Petitioner claims his counsel was ineffective because she “failed to compel the testimony of a critical witness[.]” Petition at 12. Specifically, Petitioner contends that counsel should have compelled Judith Craciun to take the stand to establish that Majlinda Fana admitted to having an affair with Mr. Bujari, and to show that prior to trial, Ms. Craciun was threatened by both Ms. Fana and Mr. Bujari. Id.

The trial court denied this claim of ineffective assistance of counsel. The court held:

The issue as to whether Judith Craci-um [sic] could and would testify at trial was ruled on by the trial Court. The Witness expressed reluctance to testify, however, the trial Court allowed the thorough deposition testimony to be read before the jury. The trial Court denied a request by Ms. Buncome-Williams to clear the Courtroom and then allow Ms. Cracium [sic] to testify. Regarding the entry of the deposition, the trial Court ruled that the entire deposition of Ms. Cracium [sic] would be read or none of the deposition testimony would be allowed. The trial Court allowed the reading of the entire deposition of Ms. Cracium [sic] after making a finding that she was unavailable for trial.

Ex. 33 at 103. The appellate court affirmed.

The trial court record shows that Ms. Buncome-Williams brought Ms. Craciun’s concerns to the court’s attention. Ex. 12 at 678. Ms. Buncome-Williams first asked that the courtroom be cleared of any witnesses so that the court could address a sensitive matter. Id. After some inquiry, the court asked if Ms. Craciun had been deposed. Id. at 680. Ms. Buncome-Williams responded in the affirmative. Id. at 681. The court said it could not provide protection as that would be in the purview of the Sheriffs Office. Id. The court mentioned that Ms. Buncome-Williams could call Ms. Craciun as a hostile witness. Id. The court also noted that Ms. Craciun could be held in contempt if she refuses to testify at trial. Id.

Later on in the proceedings, outside the presence of the jury, Ms. Craciun was sworn in by the clerk and explained to the court her fear of testifying as she felt threatened by Mr. Lorenc and the Albanian community. Id. at 690-94. After inquiry by the state and the defense, the court asked Ms. Craciun to take the stand, and advised her that if she refused to answer questions, he would allow the reading of her deposition. Id. at 700. The prosecutor asked that Ms. Craciun be held in contempt if she refused to answer questions, but the court denied that request. Id. at 701.

Ms. Craciun took the witness stand before the jury and refused to give testimony. Id. at 704. The court excused Ms. Craciun. Id. Ms. Buncome-Williams read Ms. Craciun’s deposition into the record. Id. at 705-23.

At the evidentiary hearing, Ms. Bun-come-Williams testified that she discussed with Mr. Fana as to whether the defense should call Ms. Craciun as a hostile witness. Ex. 32 at 116-17. Mr. Fana did not want her called as a hostile witness. Id. at 117. The other option was to read from her deposition. Id. Mr. Fana preferred that option, and Ms. Craciun’s deposition was read into the record at trial. Id. at 117-18.

Under these circumstances, counsel’s performance was not deficient. Petitioner is not entitled to relief on ground four of the Petition. Deference under AEDPA should be given to the state court’s decision, which was affirmed on appeal. The adjudication of this claim is not contrary to or an unreasonable application of the law, or based on an unreasonable determination of the facts. See Response at 33-39. Ground four is due to be denied.

GROUND FIVE

In ground five, Petitioner alleges that his “[t]rial counsel failed to object to the use of security restraints on the Defendant at trial[.]” Petition at 15. Petitioner urges the Court to find that his counsel was ineffective for failure to object to the restraints; for failure to move in limine to preclude the state from mentioning the restraints; for failure to request that the jury not be in a position to observe Petitioner walking in the restraints; for failure to request that he not be placed in restraints; and, for failure to object to the state’s reference to the restraints during cross examination. Id. at 16.

The trial court denied Petitioner’s claim and held:

During the trial, the Defendant stated on the witness stand that he had been incarcerated for 20 months awaiting trial. In light of this statement, the State did not inappropriately inquire as to the standard issue leg restraint upon the Defendant. The issue was further probative for the State upon cross examination because the State was able to affirm that the Defendant was not injured or limping at the time of the crime. Absolutely no prejudice would have come to the Defendant due to limited questioning as to the leg brace when the Defendant has opened the door and the questioning was inherently probative as to possible self defense.

Ex. 33 at 104. The First District Court of Appeal affirmed the decision of the trial court.

Petitioner testified at the evidentiary hearing that he was placed in a leg brace for trial. Ex. 32 at 60. The brace was strapped on his leg, underneath his pants. Id. It could not be seen under his pants. Id. at 61. He was required to walk from the defense table to take the witness stand, and the leg brace caused him to walk with a limp. Id. Petitioner attested that his counsel never raised the issue of the leg brace. Id.

At the evidentiary hearing, Ms. Bun-come-Williams testified that when Petitioner approached the witness stand, he was limping. Id. at 102. She said she noticed “a slight limp[.]” Id. at 103. She concluded that this was not prejudicial to him. Id. When asked about her failure to object to the prosecutor asking Petitioner about whether “that brace on your leg is part of your jail security[,]” Ms. Buncome-Williams said it was not highly objectionable in this case. Id. at 122-23.

Of importance, the United States Constitution does not permit the state “to use visible shackles routinely in the guilt phase of a criminal trial.” Deck v. Missouri, 544 U.S. 622, 626, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). Indeed, shackles are permitted during the guilt phase “only in the presence of a special need.” Id. Since there is a presumption that a defendant is innocent until proven guilty, it follows that “[visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.” Id. at 630, 125 S.Ct. 2007 (citation omitted). Additionally, it is important to maintain the dignity and decorum of the courtroom and to allow for ready communication between the accused and his counsel. Id. at 631, 125 S.Ct. 2007.

But, it is also recognized that criminal trials are not conducted in a “crystalline palace,” and often, security measures must be taken to ensure the safety and security of the judge, the lawyers, the jury and courtroom personnel. Allen v. Montgomery, 728 F.2d 1409, 1413 (11th Cir.1984). See United States v. Mayes, 158 F.3d 1215, 1225 (11th Cir.1998) (finding the decision to restrain the defendants with leg irons reasonable, based on a careful and informed decision), cert. denied, 525 U.S. 1185, 119 S.Ct. 1130, 143 L.Ed.2d 123 (1999); Zygadlo v. Wainwright, 720 F.2d 1221, 1223 (11th Cir.1983) (noting the previous escape attempt of the defendant, the court entering upon the record the reasons for the decision to shackle the legs of the defendant, and the opportunity given to defense counsel to enter objections outside the presence of the jury), cert. denied, 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984).

If, however, the jury could not see the shackles or restraints, “there can be no prejudice.” Moon v. Head, 285 F.3d 1301, 1317 (11th Cir.2002), cert. denied, 537 U.S. 1124, 123 S.Ct. 863, 154 L.Ed.2d 807 (2003). Since the chief concern is to preserve the presumption of innocence and to avoid “portraying the defendant as a bad or dangerous person[,]” an incidental viewing by the jury of a defendant in restraints is not necessarily prejudicial. Gates v. Zant, 863 F.2d 1492, 1501 (11th Cir.) (per curiam), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 340 (1989). A possible momentary, chance sighting of the accused in restraints does not necessarily nullify the presumption of innocence. United States v. Govereh, No. 1:07-CR-131-JEC, 2010 WL 28565, at *10-11 (N.D.Ga. Jan. 5, 2010) (not reported in F.Supp.2d), aff'd by 423 Fed.Appx. 861 (11th Cir.2011) (finding the claim that the jurors, during voir dire, may have momentarily seen the defendant in restraints was mooted by the trial stipulation that the defendant had been in custody since his arrest). In sum, there needs to be a showing of actual prejudice.

The instant case does not contain any proceeding or other record explaining why Petitioner was restrained in a leg brace for trial or who actually made the decision that Petitioner should be restrained for trial. See Response at 39 n. 10 (asserting the leg brace “was a standard courtroom security device”); Ex. 33 at 104 (“standard issue leg restraint”). See Taylor v. State, 848 So.2d 448, 449 (Fla. 4th DCA 2003) (referencing an initial shackling decision made by the sheriff, but noting the defendant’s failure to preserve the shackling issue by not requesting an inquiry on the necessity of shackling). When the shackling for trial issue has been preserved, “in the absence of record support for the restraint,” it has been considered to be reversible error. Green v. State, 850 So.2d 597, 598 (Fla. 4th DCA 2003). See Shelton v. State, 831 So.2d 806, 807 (Fla. 4th DCA 2002) (reversing, finding no acceptable factual basis for the trial judge’s discretionary decision to shackle the defendant for trial).

Based on the trial record, Petitioner testified that after being taken to the police station he continued to stay in jail for twenty or twenty-eight months. Ex. 12 at 778. Apparently, when Petitioner took the stand to testify, he walked with a limp due to the leg brace, a security device. Petitioner does not contend that the brace was ever visible to the jury as it was worn under his pants. Thus, jurors may have briefly glimpsed Petitioner limping as he walked to the witness stand. At that point, even if a selected juror saw Petitioner walk with a limp to the witness stand, there was no evidence presented that the limp was related to the charged event.

The Court is troubled, however, by the fact that on cross, the prosecutor asked Petitioner, without objection: “Mr. Fana, I noticed when you were walking from the defense table up to the juror box you had a limp. You have a brace on your leg?” Id. at 782. Petitioner responded in the affirmative. Id. at 783. He confirmed that he did not have a limp on the night of the incident and he did not receive any injuries that night to cause the limp. Id. Later on, in response to other questions by the prosecutor about a knife being found in his car and whether he was asserting that the police put the knife in the car, Petitioner said he did not know the answer to the question, relating again that he had been in prison for twenty months. Id. at 803. The prosecutor, again without objection, asked more pointed questions about the leg brace:

Q While we are speaking about being in prison for 20 months, that brace on your leg is part of your jail security?

A (Through interpreter.) Yes. I am arrested. 1 am isolated and I still don’t know why I am so isolated.

Q But the brace on you leg is for jail reasons, right?

A (Through interpreter.) Yes.

Id. at 803 (emphasis added).

Under these circumstances, Petitioner’s counsel’s performance may have been deficient for failing to object to the use of a leg brace, particularly when the leg brace caused Petitioner to visibly limp as he walked and it was known that Petitioner was going to have to walk from the defense table to take the stand during the trial. More importantly, there is no record of an informed decision being made by the trial court that there were sufficient security reasons for Petitioner to be placed in a leg brace for trial. In addition, counsel’s performance may have been deficient in failing to object to the prosecutor’s inquiry about the leg brace and it being implemented as part of “jail security,” perhaps suggesting Petitioner was dangerous or a flight risk. However, the Court need not reach the performance prong of the Strickland test because Petitioner has failed to satisfy the prejudice prong of the Strickland test. Petitioner must “show that the outcome of his trial would have been different if counsel had objected to the use of the restraints.” Martin v. Sec’y, DOC, 347 Fed.Appx. 485, 494 (11th Cir.2009) (per curiam) (recognizing that counsel’s performance may have been deficient for failing to object to the use of a stun belt, but nevertheless finding that prejudice had not been shown), cert. denied, — U.S. -, 131 S.Ct. 130, 178 L.Ed.2d 79 (2010).

Petitioner has failed to meet the second prong of Strickland, the prejudice prong. He has failed to show that the outcome of his trial would have been different if counsel had objected to the use of the leg brace or the prosecutor’s questions about the leg brace. See Stagg v. Sec’y, Dep’t of Corr., No 5:12-cv-194-RS-EMT, 2013 WL 6184058, at *26 (N.D.Fla. Nov. 26, 2013) (citing Wrinkles v. Buss, 537 F.3d 804, 823 (7th Cir.2008) (finding petitioner was not entitled to habeas relief because he failed to demonstrate prejudice from counsel’s failure to challenge use of a stun belt during a criminal trial)).

In the instant case, the record shows that the leg brace was never visible to the jury. Apparently, Petitioner never complained to counsel that the leg brace limited his ability to confer with counsel or his interpreter in any way, and Petitioner never told his counsel he was reluctant to take the witness stand due to the leg brace. Furthermore, Petitioner readily stated on direct that he was in jail and had been in jail since the night of his arrest. Therefore, the jury was well-aware that Petitioner was in custody at the time of trial based on Petitioner’s statements. Under these circumstances, the outcome of the trial would not have been different if counsel had objected to the use of the leg brace or the prosecutor’s questions about the leg brace.

Upon review, there was no unreasonable application of clearly established law in the state court’s decision to reject the Strickland ineffectiveness claim. The trial court found there was no prejudice to Petitioner. Ex. 33 at 104. Indeed, the decisions of the state trial and appellate courts are entitled to deference under AEDPA. The adjudications of the state courts resulted in decisions that involved a reasonable application of clearly established federal law, as determined by the United States Supreme Court. Therefore, Petitioner is not entitled to relief on ground five, the claim of ineffective assistance of trial counsel, because the state courts’ decisions were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

GROUND SIX

In his sixth ground of ineffective assistance of trial counsel, Petitioner claims his trial counsel was ineffective for failure to object to errors, including (A) failure to object to comments during voir dire; (B) failure to object to hearsay regarding a critical fact; (C) failure to object to hearsay documents and witness interpretation; and (D) failure to object to improper closing arguments. Petition at 18-22.

With regard to the claim that counsel failed to object to comments during voir dire resulting in the deficient performance of counsel (ground 6(A)), the trial court concluded:

The statements objected to by the defense as to being possibly improper were raised by the State due to the State wishing to clarify issues as to the law. The State may inquire as to issues regarding the law. The defense would have learned as much, or more, from the questions offered at jury selection by the State. Therefore the questions offered by the State would have been beneficial to the Defendant, as well as the State, as to learning more about the venire.

Ex. 33 at 104.

With respect to Petitioner’s claim that he received the ineffective assistance of counsel at trial for failure to object to hearsay regarding a critical fact (ground 6(B)), the trial court rejected this claim and held:

This ground seeks to argue that Maj-linda Fana offered hearsay. Majlinda Fana could testify as to what she observed and her understanding of that. Rather, Majlinda Fana was able to observe the physical reaction, as well as words offered, by her son when presented with the knives in question. Simply, Majlinda Fana did not offer an out of Court statement but rather an observation.

Id.

The trial court also denied Petitioner’s claim of ineffective assistance of counsel for counsel’s failure to object to hearsay documents and witness interpretation (ground 6(C)). The court said:

The Defendant argues that the calling of the Custodian of Records of the Property Room as to the destruction of evidence amounted to hearsay. The Court notes it was wholly appropriate for the State to call Mr. Reagor [sic] properly offered evidence in his capacity as a Custodian of Records for the Jacksonville Sheriffs Office Property Room. The Defendant cites to Crawford which, clearly, became law three years after the trial in this ease. Also, this would not be a Crawford issue as it has nothing to do with confrontation of an accuser.

Id. at 105.

Finally, the trial court denied the claim of ineffective assistance of counsel for failure to object to improper closing argument by the prosecutor (ground 6(D)). The court addressed this claim in detail. It held:

The Defendant alleges that the defense attorney was ineffective due to an alleged failure to object to (alleged) improper statements by the State at trial. The closing arguments made by the State in this case were wholly proper and did not rise to the level of requiring a defense objection. The objection as to, “... we know whose blood it is”, is a rhetorical device and a fair comment on the testimony of the Victim and other evidence in the case. Defendant has failed to show how the outcome of the trial would have been different but for the statements of the prosecutor. State v. Shriver, 801 So.2d 158 ([Fla.] 2d DCA 2001). A mistrial is appropriate “only where the error is so prejudicial as to vitiate the entire trial”, Anderson v. State, [841 So.2d 890] 28 Fla. L. Weekly [S51] (Fla. Jan. 16, 2003) (citing Hamilton v. State, 703 So.2d 1038 (Fla.1997), Duest v. State, 462 So.2d 446 [ (Fla.1985) ]). Furthermore, the standard for review of prosecutorial misconduct is whether “the error committed was so prejudicial as to vitiate the entire trial.” Cobb v. State, 376 So.2d 230, 232 (Fla.1979); Jones v. State, 612 So.2d 1370 (Fla.1993); State v. Murray, 443 So.2d 955 (Fla.1984). The comments also must be examined by the Court collectively, rather than in isolation, to determine whether the cumulative effect deprived the Defendant of a fair trial. Anderson, citing Card v. State, 803 So.2d 613 (Fla.2001). The statements which the Defendant states are allegedly improper must be viewed in the context of the whole, not in part. See also United States v. Young, [470 U.S. 1] 105 S.Ct. 1038, 1048 [84 L.Ed.2d 1 (1985) ]. The statements by the State in this case during closing argument were not prejudicial but rather fair comments on the facts and law of the case and direct inferences which could be derived therefrom. When viewed in light of the evidence, in the case the statements are fair argument for the jury made during closing argument.

All of the disputed phrases were proper. Cf. Mitchell v. State, 771 So.2d 596, 597-8 (Fla. 3d DCA 2000) (holding the trial court properly overruled defense objection to the prosecutor’s rhetorical questions during closing — “[W]here is the evidence in this ease of crooked cops?” [and] “The evidence in this case is uncontroverted, [etc.]” — as fair comment on the testimony of the police officers and fair response to the defense position); Johnson v. State, 858 So.2d 1274, 1276-77 (Fla. 3d DCA 2003) (concluding that prosecutor’s points in rebuttal “simply pointed out that, given the facts at hand, it was unlikely either that the officers’ testimony concerning the recitation of events surrounding Johnson’s admissions were untrue or that Johnson had been coerced as the defense suggested”); Rimmer v. State, 825 So.2d 304, 324 (Fla.2002), cert. den., 537 U.S. 1034 [123 S.Ct. 567, 154 L.Ed.2d 453] (2002) (finding the prosecutor’s “do the right thing” comments, made in opening and closing, to be improper; but “not so erroneous” to be fundamental error, “as long as they are coupled with references to the evidence in the record”).

Id. at 105-106.

The First District Court of Appeal affirmed the trial court’s denial of the claim of ineffective assistance of trial counsel. Thus, there is a qualifying decision under AEDPA.

Ground 6(A)

With respect to ground 6(A), the Court is convinced that Petitioner has not established prejudice, as required by the second prong of Strickland. Petitioner simply complains that counsel was ineffective for failing to object to the state telling the jury panel during voir dire that the evidence was “accidentally destroyed” and “it got lost.” Although the terminology used by the state certainly did not explain that the property room employee misinterpreted a state attorney’s letter and destroyed property that should have been maintained for trial, the state, at trial, immediately explained that the property was destroyed, not lost. Indeed, in the state’s opening statement, the state admitted to the destruction of the evidence, explaining:

Now the evidence technician took pictures of the knives at the scene. She submitted those knives into property and approximately a month after the victim was released from the hospital his personal belongings were released to him, and the property room seeing that release letter just destroyed everything but you do have pictures of the knives.

Ex. 12 at 231 (emphasis added). In addition, at trial, Sergeant B.D. Reagor testified that the property was destroyed based on a state attorney letter releasing some property and retaining some property, with a check mark on the form next to “[t]his office has no further need for the property held.” Id. at 657.

In closing, defense counsel took advantage of her opportunity to blame the Sheriffs Office for failing to do its duty to maintain the evidence in its custody and for destroying the evidence before it could be tested. Id. at 881. Defense counsel said the only explanation for the destruction of the evidence was the property room employee misreading a state attorney’s property notice allowing the release of some of the property. Id. at 881-82. Instead of releasing some of the property, everything was destroyed by the property room employee. Id. at 882. Ultimately, defense counsel blamed the state for failure to maintain custody of the seized property, property which would have aided the jury in its decision-making. Id. at 882-83.

The adjudication of this claim of ineffective assistance of counsel was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Ground 6(A) of the Petition does not warrant habeas relief.

Ground 6(B)

With respect to ground 6(B), Petitioner has failed to establish deficient performance or prejudice. Petitioner complains that counsel failed to object to hearsay regarding a critical fact. He states that counsel failed to object to Majlinda Fana’s testimony that Jurgen Fana recognized the knives in the photos as coming from their home. The record shows that instead of objecting to this testimony, defense counsel asked additional questions of Ms. Fana concerning Jurgen’s recognition of the knives. Ex. 12 at 601. This was a matter of reasoned strategy under the circumstances presented. An explanation follows.

At trial, prior to Majlinda Fana’s testimony, Jurgen Fana testified on direct that he recognized the knives in the photographs as “[o]ur old house knives.” Id. at 246. On cross, defense counsel asked if Jurgen remembered someone from the State Attorney’s Office coming to his school with photographs of the knives, and Jurgen telling that individual that he did not recognize the knives. Id. at 258. Jur-gen responded in the affirmative. Id. He explained that he did not recognize them because they were bent. Id. During closing argument, defense counsel attacked Jurgen’s credibility, pointing out the inconsistency of his trial testimony with his prior statement that he did not recognize the knives in the photographs. Id. at 870-71.

Petitioner is not entitled to relief on ground 6(B) of the Petition, the claim of ineffective assistance of trial counsel. Deference, under AEDPA, should be given to the state court’s decision. Petitioner appealed to the First District Court of Appeal, and the appellate court affirmed. The state courts’ adjudication of this claim is not contrary to or an unreasonable application of Strickland, or based on an unreasonable determination of the facts. Ground 6(C)

Next, the Court will address ground 6(C), Petitioner’s claim of ineffective assistance of trial counsel based on counsel’s failure to object to hearsay documents and witness interpretation. This claim has no merit. The trial court determined prior to trial that there was no bad faith on the part of the property room officers with regard to the destruction of evidence. Ex. 10 at 104. Officer Reagor was called by the state as the custodian of records for the Jacksonville Sheriffs Office property room. Defense counsel was allowed to present testimony concerning the destruction of physical evidence, id. In her closing argument, defense counsel complained about the destruction of the evidence, and she explained how the destruction of evidence hampered the defense.

In light of all the circumstances, defense counsel’s performance was not outside the wide range of professional competence. Furthermore, Petitioner has failed to satisfy the prejudice prong of Strickland. Upon review, there was no unreasonable application of clearly established law in the state court’s decision to reject the Strickland ineffectiveness claim. The decision was not contrary to clearly established federal law and was not based on an unreasonable determination of the facts.

Ground 6(D)

Finally, the Court will address ground 6(D). Petitioner contends that counsel’s failure to object to improper closing arguments amounted to ineffective assistance of counsel. Beginning with the strong presumption that counsel’s conduct was reasonable, “and that presumption is even stronger when we examine the performance of experienced counsel[,]” Walls v. Buss, 658 F.3d 1274, 1279 (11th Cir.2011) (per curiam) (citing Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.2000) (en banc)), cert. denied, — U.S. -, 132 S.Ct. 2121, 182 L.Ed.2d 872 (2012), Petitioner has not shown ineffective assistance of counsel.

Not only is the state court’s ruling entitled to deference, this Court must give double deferential judicial review to the state court’s decision. See Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.2004) (“In addition to the deference to counsel’s performance mandated by Strickland, the AEDPA adds another layer of deference— this one to a state court’s decision — when we are considering whether to grant federal habeas relief from a state court’s decision.”), cert. denied, 544 U.S. 982, 125 S.Ct. 1847, 161 L.Ed.2d 738 (2005).

After the evidentiary hearing, the trial court credited Ms. Buncome-Williams’ testimony as both more credible and more persuasive. Ex. 33 at 109. She testified that she did not feel it necessary to object to the prosecutor’s statement in closing argument about whose blood was there and she did not want to give credence to some of the state’s argument concerning Ms. Craciun not taking the stand by objecting to it. Ex. 32 at 129-30.

Even though counsel did not object to some of the prosecutor’s comments, her actions did not result in Petitioner being subjected to an unfair trial. In addressing claims of prosecutorial misconduct, the Eleventh Circuit has said:

We will reverse a defendant’s conviction on the basis of prosecutorial misconduct only where the prosecutor’s “remarks (1) were improper and (2) prejudiced the defendant’s substantive rights.” United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir.1998); see also United States v. Abraham, 386 F.3d 1033, 1036 (11th Cir.2004) (explaining that prosecutorial misconduct requires a reversal of a defendant’s conviction only where the defendant’s substantial rights were prejudiced “in the context of the entire trial in light of any curative instruction”). A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the prosecutor’s statements, the outcome of the trial would have been different. See United States v. Hall, 47 F.3d 1091, 1098 (11th Cir.1995).

United States v. O’Keefe, 461 F.3d 1338, 1350 (11th Cir.2006), cert. denied, 549 U.S. 1232, 127 S.Ct. 1308, 167 L