           Case: 13-11190   Date Filed: 02/24/2015   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11190
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:09-cv-61823-FAM



EDWIN MATOS,
                                                          Petitioner-Appellant,


                                  versus


SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (February 24, 2015)

Before MARCUS, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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       Edwin Matos, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2254 federal habeas petition. Matos was

convicted of two counts of manslaughter and two counts of vehicular homicide

after his vehicle struck and killed two teenage girls who were in another vehicle

that was backing out of a driveway in a residential neighborhood. The district

court determined that Matos’s § 2254 petition was untimely. However, out of an

abundance of caution, the court considered the merits of the petition and denied it

on that basis as well.

       The district court granted a certificate of appealability (COA) on the

following five issues: (1) whether Matos’s § 2254 petition was timely filed under

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); (2) whether

trial counsel’s failure to retain an expert to contest the introduction of the Sensing

and Diagnostic Module (SDM) and Event Data Recorder (EDR)1 evidence

indicating the speed of Matos’s vehicle at the time of collision constituted

ineffective assistance of counsel; (3) whether trial counsel’s failure to present

witnesses to give testimony on several alleged modifications to Matos’s vehicle

and the modifications’ impact on the SDM/EDR evidence constituted ineffective

assistance of counsel; (4) whether trial counsel’s alleged failure to provide


       1
          A vehicle’s SDM/EDR, much like the “black box” of an airplane, records data about the
vehicle, including speed at the time of a collision.

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“reciprocal discovery” with respect to Matos’s vehicle and modifications thereto

constituted ineffective assistance of counsel; and (5) whether the state prosecutor’s

presentation of the SDM/EDR evidence constituted misconduct resulting in the

denial of Matos’s rights to confrontation and due process.

        After a thorough review of the record and consideration of the parties’

briefs, we affirm.

                                     I. Timeliness

      First, we address whether Matos’s § 2254 petition was timely filed. We

review a district court’s dismissal of a § 2254 petition as untimely de novo.

Spottsville v. Terry, 476 F.3d 1241, 1243 (11th Cir. 2007). “Under the [AEDPA],

a state prisoner’s petition for a writ of habeas corpus is governed by a one-year

statute of limitations, and that year commences on the date the conviction becomes

final. . . . ” Id. (internal quotation marks omitted). A conviction becomes final “on

the date in which the United States Supreme Court either issues a decision on the

merits of the petitioner’s direct appeal or denies certiorari, or after the expiration of

the 90-day period in which the petitioner could have filed a petition for a writ of

certiorari.” Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1274–75 (11th

Cir. 2006) (per curiam).

      The AEDPA’s one-year statute of limitations is tolled when properly filed

applications for state post-conviction or other collateral review are pending. 28


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U.S.C. § 2244(d)(2). We have recognized a motion for state post-conviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850 as an application for

state post-conviction or other collateral review under 28 U.S.C. § 2244(d)(2). Day

v. Crosby, 391 F.3d 1192, 1192–93 (11th Cir. 2004) (per curiam).

      Here, we conclude that Matos’s § 2254 petition was timely filed. Matos’s

judgment of conviction and sentence became final on December 11, 2005, when

his opportunity to file a petition for a writ of certiorari to the United States

Supreme Court expired 90 days after the Florida Supreme Court declined to accept

jurisdiction of his direct appeal on September 12, 2005. Chavers, 468 F.3d at

1274–75. On February 23, 2006, seventy-four days later, Matos filed his Rule

3.850 motion for post-conviction relief in state court. On January 30, 2009, the

state appellate process ended. Thus, for nearly a three-year period, the AEDPA

clock remained tolled. See Carey v. Saffold, 536 U.S. 214, 219–20, 122 S. Ct.

2134, 2138 (2002) (holding that a petitioner’s claim is “pending” for the entire

term of state court review, including those intervals between one state court’s

judgment and the filing of an appeal with a higher state court). As of January 30,

2009, Matos had only used seventy-four days of his 365 days. On November 13,

2009, 287 days later, Matos filed his § 2254 petition. Matos had used 361 days of

his time, and, therefore, his petition was timely. The district court erred in finding




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his petition untimely. But, since the court also denied the petition on the merits,

this was not reversible error.



                        II. Ineffective Assistance of Counsel

      Since the next three issues concern issues of ineffective assistance of counsel

stemming from use at trial of data from Matos’s vehicle’s SDM/EDR, and trial

counsel’s failure to show that modifications to Matos’s vehicle would impact the

reliability of that data, we address these issues concurrently.

      “We review the district court’s conclusions on legal questions and mixed

questions of law and fact de novo and its factual findings for clear error.” Powell

v. Allen, 602 F.3d 1263, 1268 (11th Cir. 2010) (per curiam). “[O]ur review of the

[state] habeas court’s decision is limited by the terms of 28 U.S.C. § 2254, as

amended by the [AEDPA].” Id. (citations and footnote omitted). Under the

AEDPA, we presume that the state court’s factual findings are correct. Id.

Therefore, we “grant habeas relief to a petitioner challenging a state court’s factual

findings only in those cases where the state court’s decision was based on an

unreasonable determination of the facts in light of the evidence presented in the

state court proceeding.” Id. (internal quotation marks omitted).

      Similarly, the AEDPA “constrains our review of legal questions decided on

the merits in state court.” Id. The proper inquiry under § 2254(d) as to the


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relevant state court decision is whether the state court’s “ultimate conclusion” was

contrary to or involved an objectively unreasonable application of federal law. See

Gill v. Mecusker, 633 F.3d 1272, 1291 (11th Cir. 2011). Therefore, the focus is on

the state court’s decision or resolution of the case, not on the state court’s

reasoning that led to the result. Id. at 1290–91.

      Under the “contrary to” clause of § 2254(d), a court “may grant the writ 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 this

Court has on a set of materially indistinguishable facts.” Powell, 602 F.3d at 1269

(internal quotation marks omitted); see also 28 U.S.C. § 2254(d). Under the

“unreasonable application” clause of § 2254(d), a court “may grant the writ 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. (internal quotation marks omitted)

      “[T]he proper standard for attorney performance is that of reasonably

effective assistance.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). To prevail on a claim of ineffective assistance of counsel, a

petitioner must establish (1) that his attorney’s performance was deficient; and (2)

his defense was prejudice by the deficient performance of his attorney. Id. Once a

court decides that the prejudice prong has not been met, it need not decide whether


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the performance prong has been satisfied. See Duren v. Hopper, 161 F.3d 655, 660

(11th Cir. 1998). The state court need not cite to, or even be aware of, Supreme

Court precedent, so long as its decision is not inconsistent therewith. Early v.

Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (per curiam).

      Here, we conclude that Matos’s ineffective-assistance-of-counsel claims are

without merit. At trial, numerous sources, other than the SDM/EDR data,

indicated that Matos was driving well above the thirty-mile-per-hour speed limit.

Because other significant evidence also indicated that Matos was driving at a

reckless speed, we cannot conclude that any failure by trial counsel to undermine

the reliability of the SDM/EDR data was prejudicial. Matos also failed to establish

that he was prejudiced by trial counsel’s alleged failure to retain an SDM/EDR

expert or from trial counsel’s failure to provide reciprocal discovery with respect to

modifications to Matos’s vehicle, since the record reveals that defense trial counsel

retained John Buchanan, former police officer, traffic accident reconstructionist,

and SDM/EDR expert, who challenged the state’s expert witness’s calculations of

Matos’s speed at the time of the collision. Buchanan testified that SDM data can

be unreliable, that Matos’s car was modified, and that the SDM evidence could not

be reconciled with the physical evidence. Therefore, we conclude that the district

court properly concluded that Matos’s claims of ineffective assistance of counsel

did not warrant federal habeas relief.


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                          III.   Prosecutorial Misconduct

   A. Exhaustion Requirements

      As a preliminary matter, we must address the issue of whether or not Matos

exhausted all state remedies regarding his claim of prosecutorial misconduct.

Whether a claim is exhausted presents a mixed question of law and fact, subject to

de novo review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). The exhaustion

requirement derives from principles of comity, which protect the state court’s role

in the enforcement of federal law and prevent disruption of state court proceedings.

Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203 (1982). A district court

may deny a federal habeas corpus petition on the merits of the claim, even if the

petitioner did not exhaust state remedies. See 28 U.S.C. § 2254(b)(2).

      The district court erred when it concluded that Matos’s prosecutorial

misconduct claim had been exhausted. Matos did not bring allegations of

prosecutorial misconduct in his direct appeal, in his pro se petition for writ of

habeas corpus before the state appellate court, or in his Rule 3.850 motion.

However, Matos’s failure to exhaust state court remedies does not preclude the

district court from considering Matos’s prosecutorial misconduct claim on the

merits, as it did here. Rose, 455 U.S. at 518, 102 S. Ct. at 1203; see also 28 U.S.C.

§ 2254(b). Thus, we consider them here.

   B. Merits of Prosecutorial Misconduct Claims


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        Finally, we determine whether the state prosecutor’s presentation of the

SDM/EDR evidence constituted misconduct. “We review the district court’s

conclusions on legal questions and mixed questions of law and fact de novo and its

factual findings for clear error.” Powell, 602 F.3d at 1268. “[T]he suppression by

the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83,

87, 83 S. Ct. 1194, 1196–97 (1963). To establish a Brady claim, a defendant must

show:

              (1) that the government possessed evidence favorable to
              the defendant . . . ; (2) that the defendant does not possess
              the evidence, nor could he obtain it himself with any
              reasonable diligence; (3) that the prosecution suppressed
              the favorable evidence; and (4) that had the evidence
              been disclosed to the defense, a reasonable probability
              exists that the outcome of the proceedings would have
              been different.

United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam). We

do not, however, automatically require a new trial after a review of the

prosecutor’s files post trial reveals evidence that could have potentially been useful

to the defense, but not likely to have changed the verdict. See Giglio v. United

States, 405 U.S. 150, 154, 92 S. Ct. 763, 766 (1972).

        Where a witness is determinative of guilt or innocence, the government is

required to disclose evidence affecting the credibility of that witness. See id.
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at154–55, 92 S. Ct. at 766. To obtain relief on a Giglio claim, a defendant must

prove: “(1) the prosecutor knowingly used perjured testimony or failed to correct

what he subsequently learned was false testimony; and (2) such use was material,

i.e., that there is any reasonable likelihood that the false testimony could have

affected the judgment.” Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271,

1292 (11th Cir. 2012) (internal quotation marks omitted).

      Similar to his claims of ineffective assistance of counsel, Matos cannot show

that he was prejudiced by any alleged misconduct by the state. Matos’s Brady

claim and allegations of prosecutorial misconduct all concern the presentation of

the SDM/EDR evidence. Primarily, Matos alleges that the state suppressed the

“SDM Data Limitations” page. Even if we were to conclude that Matos had met

the first three Brady factors (which, certainly we do not), Matos still falls short of

establishing the last Brady factor because, as mentioned above, there was other

significant evidence at trial which indicated that Matos was driving well above the

thirty-mile-per-hour speed limit. See Hansen, 262 F.3d at 1234. Because there

was other evidence that indicated that Matos was driving through the residential

neighborhood at a reckless speed, we cannot conclude that any alleged

prosecutorial misconduct related to the presentation of the SDM/EDR evidence—

the state’s alleged suppression of the SDM Data Limitations page—would have

changed the outcome of the trial. See id. With respect to Matos’s Giglio claim, the


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record does not support his argument that the state’s expert gave false testimony

simply because the state’s expert relied on the SDM/EDR evidence. Ponticelli,

690 F.3d at 1292. Therefore, we conclude that Matos’s prosecutorial misconduct

claim is meritless, and the district court’s denial of the same was proper.

      AFFIRMED.




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