United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.
Salter, a Florida prisoner, timely filed a petition for writ
of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1)
challenging his Hillsborough County conviction. Respondent
filed a response (Dkt. 8), and Salter filed a reply (Dkt.
Upon consideration, the petition will be DENIED.
was convicted after a jury trial of one count of first degree
murder and sentenced to life in prison. (Dkt. 10, Ex. 1f, pp.
107-08, 152). The state appellate court per curiam
affirmed the conviction and sentence. (Dkt. 10, Ex. 1c). The
state appellate court also per curiam affirmed the
denial of Salter's motion for postconviction relief filed
under Florida Rule of Criminal Procedure 3.850. (Dkt. 10,
Exs. 2a, 2f, 2j).
and Saquanda Simon, known as Mika, had two children together.
Shortly before 5:00 p.m. on September 8, 2009, Salter sent a
text message to Mika asking her whether they were
“gonna work being together.” Between 8:12 p.m.
and 8:59 p.m., Salter sent Mika more text messages, including
several in which he threatened to kill her.
then arrived at the Tampa home where Mika and her children
lived with her mother, Arleen Jackson, her brother, O.J.
Bates, and Jackson's boyfriend, Joseph Bianco. Salter and
Mika began angrily shouting at each other. Mika went into the
master bathroom and closed the door. Salter attempted to open
the bathroom door, and said that his life was over and that
he wanted to talk to Mika outside. Jackson told Salter to get
out of the house. Mika exited the bathroom and walked into
the dining area. Bianco opened the front door and told Salter
to leave; Bianco then walked back towards the master bedroom.
Salter and Mika continued to argue, and Jackson noticed that
Mika had her hand to her ear as if she was talking on the
phone. Jackson heard Salter ask who Mika was talking to. O.J.
Bates then saw Salter draw a gun from his right side and
immediately “let off” two shots. When Mika fell to
the ground, Salter fled the house. Jackson called 911 at
approximately 9:13 p.m. Mika died as a result of a gunshot
wound to the head.
turned himself in to police the next day. After waiving his
Miranda rights, he gave a recorded statement in
which he denied that he and Mika had been arguing. Salter
explained that he carried the gun for protection because
people in the neighborhood had tried to rob him, and that he
sent text messages to Mika to get her attention. He stated
that Jackson was upset, and that he pulled the gun out to
give it to Jackson so that she would know he was not going to
hurt Mika. Salter said that Joseph Bianco and O.J. Bates
attacked him when he pulled the gun out, causing him to lurch
forward and accidentally fire the gun. He repeatedly denied
any intent to kill Mika.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this proceeding. See Penry
v. Johnson, 532 U.S. 782, 792 (2001). Habeas relief can
only be granted if a petitioner is in custody “in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Section
2254(d) provides that federal habeas relief cannot be granted
on a claim adjudicated on the merits in state court unless
the state court's adjudication:
(1) 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;
(2) 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.
decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). A decision is an
“unreasonable application” of clearly established
federal law “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id. at 413.
AEDPA was meant “to prevent federal habeas
‘retrials' and to ensure that state-court
convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
Accordingly, “[t]he focus . . . is on whether the state
court's application of clearly established federal law is
objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.”
Id. at 694. See also Harrington v. Richter,
562 U.S. 86, 103 (2011) (“As a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
state appellate court affirmed the denial of postconviction
relief in a per curiam decision. This decision
warrants deference under § 2254(d)(1) because “the
summary nature of a state court's decision does not
lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See
also Richter, 562 U.S. at 99 (“When a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
contrary.”). When a state appellate court issues a
silent affirmance, “the federal court should
‘look through' the unexplained decision to the last
related state-court decision that does provide a relevant
rationale” and “presume that the unexplained
decision adopted the same reasoning.” Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018).
Assistance Of Counsel
claims ineffective assistance of trial counsel. His claims
are analyzed under Strickland v. Washington, 466
U.S. 668 (1984). Salter must demonstrate that his counsel
performed deficiently in that “counsel's
representation fell below an objective standard of
reasonableness.” Id. at 687-88. However,
“counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at
690. “[A] court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.”
must also show that he suffered prejudice by demonstrating
“a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694. Obtaining relief on a
claim of ineffective assistance of counsel is difficult
because federal habeas review is “doubly”
deferential to counsel's performance and the state
court's decision. Richter, 562 U.S. at 105.
trial, the State introduced text messages sent from
Salter's phone number to Mika's cell phone on the day
she was killed. The State obtained these messages by looking
at Mika's cell phone. The first message, sent at 4:58
p.m., stated, “Hey, I womna [sic] know if you seriously
think we gonna work being together and if you-”. (Dkt.
10, Ex. 1m, p. 656). The other text messages, sent between
8:12 p.m. and 8:59 p.m., stated, “Can you answer
me?”; “Okay. I'm fucked up right now, I
helped you get where you at in life. You ignoring me. I'm
out here trying to deal with these problems and you turned
your back now. Okay.”; “I have nothing to lose or
live for as of right now so be carefully [sic].”;
“Threatening me will get you back into
trouble.”; “We both dead. It don't matter
anymore.”;“I'm gonna kill you no matter
what when it's gonna happen.”; “You already
got me involved with the law.”; and “I'm
gonna kill you no matter what when it's gonna happen soon
or later.” (Id., pp. 653-56).
denies sending any messages threatening to kill Mika. He
therefore alleges that someone must have tampered with
Mika's cell phone. He notes that police did not recover
Mika's cell phone from her family until 20 days after the
shooting and contends that this delay shows “an
opportunity to and an inference of tampering.” (Dkt. 1,
p. 8). Accordingly, he argues, trial counsel was ineffective
in failing to hire an expert to investigate the source of the
text messages. Salter claims that he was prejudiced because
“the expert would have indeed found evidence of
tampering and shown to the jury that petitioner did not send
the messages that relate to ‘killing' the victim,
there would not have been any evidence to show a premeditated
intent to kill.” (Id., p. 9). The state court
denied this claim after an evidentiary hearing:
In ground one, Defendant alleges trial counsel was
ineffective for failing to hire an expert to investigate the
source of certain text messages found on the victim's
phone. Defendant alleges that the victim's cell phone was
produced twenty days after her death. Defendant claims that
he told his trial counsel that he did not send the text
messages found on the victim's phone. Defendant argues
that trial counsel was ineffective for failing to hire an
expert to investigate whether the victim's phone had been
tampered with after her death.
Defendant claims that he was apprehended and taken to the
police department where he confessed to the crime. He alleges
that during the confession, he admitted to sending
threatening text messages to the victim but never admitted
that he sent text messages saying he would kill himself or
the victim. Defendant next alleges that at the crime scene, a
cell phone battery was recovered but that the cell phone
could not be located. Defendant claims that twenty days after
the shooting, the victim's mother located the cell phone
and handed it over to the police along with a charger and
battery. Defendant claims that the police obtained a warrant
to download text messages on the phone, but that neither the
cell phone provider nor the police department had the
equipment necessary to download the text messages. Defendant
claims that a detective took pictures of the texts. The text
messages were sent from a phone number belonging to Defendant
and contained language threatening the victim.
Defendant next alleges that he advised counsel that he did
not send the above-mentioned text messages and that he
thought his phone had been tampered with. Defendant claims
that counsel did object when the phone was introduced into
evidence, and that the objection was based on an allegation
that the cell phone had been tampered with by officials, but
alleges that counsel did not investigate the issue any
further. Defendant alleges that trial counsel should have
hired an expert to investigate whether the phone had been
tampered with after the shooting. Defendant alleges that had
trial counsel hired an expert, the expert would have found
evidence of tampering which would have shown that he did not
send the text messages.
Defendant alleges that without the text messages, the State
would not have been able to prove a premeditated intent to
kill. Defendant alleges that had trial counsel hired an
expert, he would have been convicted of a lesser included
At the evidentiary hearing, Gregory Hill first testified
about his employment history which included heading a private
consulting firm, Forensic Development Services. He testified
that for a period of time he consulted with the Department of
Justice with regards to the development of a digital evidence
program. Mr. Hill testified that “the digital evidence
program that the Department of Justice was initiating was to
assist lawyers and law enforcement in terms of understanding
the nuances in the integration of digital evidence,
computers, cell phones, text messaging, things of that
nature, into a program where they could put out a training
program to particular individuals”. Mr. Hill testified
that to some degree, because of his experience heading his
consulting firm, he became familiar with how text messaging
works and how systems could be tampered with. Gregory Hill
further testified as follows:
STATE: Did you become aware that there were some text
messages between Defendant and the victim that became at
MR. HILL: Yes, we did.
STATE: All right. And what was the nature of these text
messages if you recall?
MR. HILL: There were a number of threatening text messages
that were sent from Mr. Salter's cell phone to the
victim's cell phone during the course leading up to, in
fact, just moments before the actual shooting.
STATE: Do you recall if the State of Florida had access to
the victim's cell phone or at least those text messages?
MR. HILL: As I recall, it did, yes.
STATE: All right. And were those turned over to you as - to
the best of your recollection?
MR. HILL: As part of discovery, they were.
STATE: All right. What about Defendant's phone? Do you
know if the State of Florida ever had access to
Defendant's cell phone and/or his text messages?
MR. HILL: As I recall, Mr. Salter indicated to us that he had
lost his cell phone somewhere during the course of time, and
that it was later recovered a number of days after the event
from the victim's mother, given to law enforcement, and
those messages were also given to us as part of discovery.
STATE: Do you recall if when reviewing those messages, both
for trial and even perhaps for today's hearing, if you
found any inconsistencies between the text messages going
between the two phones?
MR. HILL: No. Those were synched both the date time stamped
on the respective phones.
STATE: Were these text messages a concern for Mr. Salter in
terms of his defense?
MR. HILL: They were because they were very explicit in terms
of threatening both - both killing her and killing himself.
STATE: And are these - did you have conversations with Mr.
Salter about these text messages and his theory about these
text messages that continued to escalate leading up the
MR. HILL: We did. Mr. Littman [the first attorney assigned to
the case] had initially contacted Mr. Salter when that was
represented to - and contained in the case file that there
was a certain text message expressly threatening to kill the
victim, that he did not send that message. But the other
messages that were sent were not disputed, according to Mr.
Littman's notes, and the interview that Mr. Salter gave
to law enforcement, he admitted that he sent those text
messages, without carving out that one message, not as
threatening, but only to get her attention because she did
not apparently respond to his text messages.
STATE: Was there anything you did upon speaking to both
Defendant, as well as reading Mr. Littman's notes,
regarding Defendant's theory on the text messages that
you did to help decide whether or not there may have been
some tampering with these text messages?
MR. HILL: We did, actually. And, again, last week I was able
to go through the case file with Ms. Shane and some of the
electronic files that were maintained. Mr. Littman had - the
Public Defender's Office, as part of the process in order
to hire an expert witness, you have to request the
authorization of funds, and that expenditure had been
authorized through - you know, I dropped his name - but it
was U.S. Forensics. That was the name of the company I
believe in Pinellas County that Mr. Littman had initially
requested funds from to be secured for.
Prior to expending any of those funds, I contacted Rick Green
was his name, I believe. I contacted Mr. Green at U.S.
Forensics and had a brief conversation with him, relying on
my knowledge of the digital evidence and brief interaction
with him, and whether that would be capable from just the
cell phones itself. He told us that it would not be capable.
So we investigated that.
Also, Mr. Littman had sent an investigation request to the
investigators of the unit, and Investigator Pomponio had
contacted T-Mobile to see whether such a process could be
accomplished, and he was informed that it would not be.
STATE: All right. And do you know if either Investigator
Pomponio or another investigator went out to meet with
Defendant as well to discuss this theory with him and the
results of their work?
MR. HILL: Prior to my taking over, I don't know whether
they did. I know that we - I know Investigator Pomponio and
myself did go speak with him. Also, Investigator Griffin, who
was later - replaced Mr. Pomponio, went out and spoke to him
about that as well.
STATE: Once you had conducted that portion of the
investigation, did you have a final discussion with Defendant
regarding whether or not it was a viable defense or theory of
defense that there had been tampering with these text
MR. HILL: We did have a conversation about that. The ultimate
decision that was made was that there was no indication -
there's no evidence of tampering, so there was no good
faith basis to put that forward, as well as impeachment of
that evidence, if that were an avenue that we approached.
STATE: Do you recall if at any point in time prior to the
case being set for trial Ms. Shane litigated a motion in
limine regarding the text messages?
MR. HILL: We did litigate a motion on that.
STATE: And then at trial did you again establish or assert a
motion in limine again with some additional case law on the
issue to the trial judge, Judge Battles?
MR. HILL: I believe we did, yes.
STATE: All right. And in each of those situations was it your
intent and did you make an effort to have those text messages
either redacted or suppressed, or just excluded altogether
from the trial?
MR. HILL: Yes, we tried exclude them initially and then
redact them, particularly since the way the messages were
conveyed to the - on the evidence was photographs of the text
messages, so they overlapped and were redundant in a number
STATE: And were your efforts, either pretrial or during
trial, successful in terms of excluding any of those text
MR. HILL: Only in terms of minimization of the redundancy.
After reviewing Defendant's allegations, the testimony
and evidence adduced at the June 17, 2014, evidentiary
hearing, the court file, and the record, the Court finds the
testimony of trial counsel Gregory Hill to be credible. The
Court notes that there is a strong presumption that trial
counsel's performance was not ineffective. See
Strickland, 466 U.S. at 690. A fair assessment of
attorney performance requires that “every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time.” Id. at 689.
“[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been
considered and rejected and counsel's decision was
reasonable under the norms of professional conduct.”
Occhicone v. State, 768 So.2d 1037, 1048 (Fla.
2000). Further, the defendant carries the burden of
overcoming the presumption that a decision might be
considered sound trial strategy. Strickland, 466
U.S. at 689.
At the outset, the Court finds that to the extent Defendant
is alleging trial counsel was ineffective for failing to
investigate whether the text messages had been tampered with,
this claim has no merit. Trial counsel investigated the text
messages himself using the knowledge and experience he gained
through his consulting company, he contacted and discussed
the tampering claim with U.S. Forensics and T-Mobile which
both determined that there was no tampering, and
investigators with the Public Defender's Office also
investigated the issue and met with Defendant in jail to
inform him that there was no evidence of tampering. As such,
trial counsel cannot be deemed ineffective for failing to
investigate the tampering claims as the record demonstrates
that trial counsel did investigate the tampering claims.
To the extent Defendant is alleging trial counsel was
ineffective for failing to hire an expert witness to
investigate the text messages and pursue a tampering defense,
the Court finds trial counsel was not ineffective. The Court
finds that trial counsel made a strategic decision not to
hire an expert to support a partial defense of tampering. The
record demonstrates that based on the findings that there had
been no signs of tampering made by the investigators with the
Public Defender's Office, U.S. Forensics, and T-Mobile,
trial counsel made a strategic decision not to hire an expert
as there was no good-faith basis to pursue a tampering
defense. The Court finds that this strategic decision was
reasonable as the above-mentioned parties determined there
was no basis for tampering. Further, where counsel has a
reasonable basis to believe that pursuing certain lines of
defense would be fruitless, counsel does not act unreasonably
in not pursuing them. See Beasley v. State, 18 So.3d