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McKiverv.Secretary, Florida Department of Corrections

CourtUnited States Court of Appeals for the Eleventh Circuit
Docket No.18-14857
DecidedMarch 25, 2021
Reporter991 F.3d 1357 (11th Cir. 2021)
JudgesMartin, Luck, and Brasher, Circuit Judges; opinion by Brasher, J.; Martin, J., concurring in part and dissenting in part.
Tags
CriminalHabeas CorpusPost-Conviction ReliefSixth AmendmentIneffective Assistance of CounselEvidenceDissent
Case Summary

Luther McKiver received a mandatory 25-year sentence for oxycodone trafficking after admitting he stole pills from a neighbor; the disputed quantity determined whether he possessed the 53 pills needed to meet Florida’s trafficking threshold. His trial lawyer did not investigate witnesses McKiver said could show the neighbor sold pills from the bottle before the theft, and a state postconviction court granted a new trial, but the state appellate court reversed. The Eleventh Circuit held under AEDPA that the state court could reasonably find no prejudice because the proposed witnesses did not testify at the state postconviction hearing, leaving their expected testimony and its effect on the pill count speculative; it could not consider affidavits first submitted in federal court. The court also held that Martinez did not excuse procedural default of McKiver’s claim that counsel should have used the neighbor’s decades-old convictions: appointed postconviction counsel had time to raise it, and the convictions did not make the claim substantial. It affirmed denial of habeas relief; Judge Martin agreed on the defaulted claim but dissented, concluding the failure to investigate the pill-sale witnesses was deficient and prejudicial.

Opinion

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