          Case: 17-11171    Date Filed: 01/04/2019   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11171
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:14-cv-00130-RH-CAS


FRANK DIETER,

                                                          Petitioner-Appellant,

                                  versus


STATE OF FLORIDA,

                                                         Respondent-Appellee.

                       ________________________

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

                             (January 4, 2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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         Frank Dieter, a Florida inmate, appeals pro se the district court’s denial of

his 28 U.S.C. § 2254 federal habeas petition. Dieter was convicted of two counts

of sexual battery of a child under the age of 12 by a defendant 18 years or older

and sentenced to two concurrent terms of life imprisonment without the possibility

of parole. Following unsuccessful challenges to his convictions on direct appeal

and in collateral proceedings in the Florida state courts, Dieter filed a federal

habeas petition in the United States District Court for the Northern District of

Florida, raising seven claims of ineffective assistance of trial counsel. The district

court denied Dieter’s petition with prejudice and denied him a certificate of

appealability. On appeal, this Court granted Dieter’s motion for a certificate of

appealability on the sixth of seven claims raised in his habeas petition: that he was

denied effective assistance of counsel because his attorney failed to call a DNA

expert to testify on Dieter’s behalf at trial to contest DNA evidence offered by the

State.

         We affirm the district court’s denial of Dieter’s § 2254 petition as to the sole

claim Dieter raises on appeal. We conclude that Dieter has failed to show that he

was prejudiced by his counsel’s choice to forgo calling the DNA expert as a

witness. Therefore, Dieter cannot demonstrate a meritorious claim of ineffective

assistance of counsel.




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                                       I.      BACKGROUND

A.     Proceedings in the Florida Trial Court

       The State of Florida charged Dieter by information with two counts of

sexual battery of a child under the age of 12 by a defendant 18 years or older,

pursuant to Fla. Stat. § 794.011(2)(a). The second count, the only one relevant to

this appeal, 1 charged Dieter with violating § 794.011(2)(a) by “penetration by, or

union with, the defendant’s penis and the victim’s vagina.” Doc. 8-1 at 38. 2

       Before trial, Dieter’s counsel, Assistant Public Defender Joel Remland,

moved to exclude DNA evidence produced from labial swabs of the victim on the

ground that the methods used to identify the DNA as Dieter’s were unreliable and

not generally accepted by the scientific community. The District Court held a

Frye 3 hearing to consider Dieter’s motion.

       A DNA expert, William Watson, testified at the pre-trial Frye hearing on

Dieter’s behalf. Watson testified that the State produced its DNA evidence from

the victim’s labial swab by using low copy number (“LCN”) DNA analysis.

Watson explained that LCN DNA analysis was used to test samples with DNA



       1
         The first count charged Dieter with violating § 794.011(2)(a) by penetrating the juvenile
victim’s vagina with his finger; Dieter’s arguments on appeal regarding DNA tests performed on
semen are immaterial to his conviction on this count.

       2
           All citations in the form “Doc. #” refer to numbered entries on the district court docket.
       3
           Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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amounts falling somewhere below the “stochastic limits of the test,” between 100

and 200 picograms of DNA. Doc. 8-2 at 33.

      Watson testified that DNA profiles produced using LCN analysis were

vulnerable to error because of the small amount of DNA used to produce the

profiles. According to Watson, LCN testing was not generally accepted in the

forensic community. Watson identified three additional problems with the State’s

LCN DNA analysis in this case: (1) the State “did not adjust [its] interpretation

guidelines to deal with” LCN testing, (2) the State “did not perform a replicate

testing . . . to come up with the consensus sequence,” and (3) the State did not “test

the reference sample from the victim, so they really ha[d] no way of knowing

whether or not part of the profile that they were able to generate from the labial

swab actually came from the victim.” Doc. 8-2 at 43. According to Watson, the

State’s DNA evidence resulting from the labial swab would therefore “not be

generally acceptable in the forensic community.” Id. at 46. After hearing from

other witnesses, the state trial court denied Dieter’s motion to exclude the DNA

profile produced from the labial swab.

      At trial, the State introduced the DNA evidence from the labial swabs along

with additional evidence, including the victim’s testimony and testimony regarding

DNA collected from the victim’s bed sheet, coverlet, and underpants. The victim,

who was five years old when the events at issue occurred, testified among other


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things that “Mr. Frank . . . sticked his pee in my pee.” Doc. 8-3 at 206. The victim

also answered in the affirmative when asked whether “Mr. Frank’s pee-pee ma[de]

[her] sheets wet.” Doc. 8-4 at 1.

      The State also presented testimony from Suzanne Livingston of the Florida

Department of Law Enforcement Crime Laboratory. Livingston testified that she

received a rape kit consisting of labial swabs from the victim. Livingston stated

that although “very little” semen was present on the labial swabs, the swabs

contained enough semen to generate a partial DNA profile that matched Dieter.

Doc. 8-4 at 167-68. Livingston testified that the DNA profile produced from the

small amount of semen found on the labial swabs matched two of thirteen markers

of Dieter’s DNA profile. According to Livingston, one out of every 160

Caucasians, one out of every 320 African Americans, and one out of every 170

Latinos would match the DNA profile from the labial swab to the same extent as

Dieter.

      Livingston further testified that she tested the victim’s pillow case, sheet,

coverlet, underwear, and t-shirt and found semen matching Dieter’s DNA profile

on the sheet, coverlet, and underwear. Livingston stated that the DNA profile

generated from the semen found on the sheet matched Dieter’s DNA profile at all

thirteen markers. Livingston stated that only one out of every 460 trillion

Caucasians, one in 430 quadrillion African Americans, and one out of every 2.9


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quadrillion Latinos would match the DNA profile from the sheet to the same extent

as Dieter. Livingston stated that the DNA profile generated from the semen found

on the underwear matched Dieter’s DNA profile at eleven markers. Only one out

of every 660 billion Caucasians, one in 270 trillion African Americans, and one out

of every 3.5 trillion Latinos would match the DNA profile from the sheet to the

same extent as Dieter, according to Livingston.

      The jury convicted Dieter of two counts of sexual battery of a child under

the age of 12 by a defendant 18 years or older; he was sentenced to two concurrent

terms of life imprisonment without the possibility of parole.

B.    Direct Appeal and State Postconviction Proceedings

      Dieter received new counsel on appeal, where his conviction was affirmed

by the Florida First District Court of Appeal.

      Proceeding pro se, Dieter filed a motion in a Florida state trial court for

postconviction relief. After construing this motion as arising under Florida Rule of

Criminal Procedure 3.850, the court denied the motion. Dieter filed a second

motion for post-conviction relief pursuant to Rule 3.850, again proceeding pro se.

The court denied Dieter’s second motion without prejudice. Dieter filed a third

Rule 3.850 motion in which he argued, among other things, that he received

ineffective assistance of counsel at trial because Remland failed to call Watson to

refute the State’s DNA evidence. The trial court denied Dieter’s third Rule 3.850


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motion with prejudice, explaining that Dieter’s ineffective assistance claims lacked

merit because he had failed to allege that he was prejudiced by his counsel’s

allegedly deficient performance. Dieter appealed this decision. The Florida

District Court of Appeal affirmed the denial of his motion in a summary opinion.

C.    Federal Habeas Petition

      Dieter filed a § 2254 petition in the United States District Court for the

Northern District of Florida. In this petition, Dieter raised seven grounds for

habeas relief, including a claim of ineffective assistance of counsel arising from

Remland’s failure to call Watson as a trial witness. A magistrate judge

recommended that Dieter’s petition be denied. On the ineffective assistance of

counsel claim regarding Watson, the magistrate judge concluded that the state

court’s rejection of Dieter’s claim was not an unreasonable application of clearly

established law or based on an unreasonable determination of facts. The court

explained that the performance of Dieter’s trial counsel was not deficient because

he made a reasonable strategic decision not to call Watson as a witness.

Remland’s choice was reasonable, according to the magistrate judge, because

Watson’s testimony regarding the reliability of the DNA profile generated from the

semen found on the labial swab was of little use at trial once the State produced

additional DNA evidence matching Dieter from semen found on the victim’s sheet




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and underwear. Over Dieter’s objection, the district court accepted the magistrate

judge’s recommendation and denied Dieter’s petition.

       This Court granted Dieter a certificate of appealability (“COA”) only on his

ineffective assistance of counsel claim based on Remland’s failure to call Watson

as an expert witness at trial.

                                    II.     DISCUSSION

       Dieter contends that the district court erred in denying his habeas petition

because his trial counsel was ineffective by failing to call Watson as a witness at

trial. Even if the state trial court made an unreasonable determination of law when

it found that Dieter failed to allege prejudice in his petition, we conclude that the

district court properly dismissed his petition because he demonstrated no prejudice.

A.     Whether Dieter’s Claim Is Procedurally Barred

       Before turning to the merits of Dieter’s appeal, we address a threshold issue

raised by the State. The State contends that Dieter’s claim on appeal has been

procedurally defaulted because Dieter did not fairly present this claim to the state

trial court. We disagree. 4


       4
          Although our review is limited to the issues specified in the COA, we “will construe the
issue specification in light of the pleadings and other parts of the record.” Murray v. United
States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). Where “procedural issues . . . must be resolved
before [we] can reach the merits of [the] underlying . . . claim” and “these arguments have not
been addressed by the district court,” we read the COA to encompass those issues. McCoy v.
United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001). The district court did not address this
issue in its order denying Dieter’s § 2254 petition. We therefore read the COA to encompass the
State’s procedural default argument.
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      “Whether a particular claim is subject to the doctrine of procedural default is

a mixed question of fact and law, which we review de novo.” Harris v. Comm’r,

Ala. Dep’t of Corr., 874 F.3d 682, 688 (11th Cir. 2017) (alterations adopted), cert.

denied sub nom. Harris v. Dunn, 138 S. Ct. 2577 (2018).

      “Before seeking § 2254 habeas relief in federal court, a petitioner must

exhaust all state court remedies available for challenging his conviction.” Lucas v.

Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012). “It is well established

that when a petitioner has failed to exhaust his claim by failing to fairly present it

to the state courts and the state court remedy is no longer available, the failure also

constitutes a procedural bar.” McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir.

2005). We conclude that Dieter exhausted his claim because he fairly presented it

to the Florida state courts.

      To fairly present a claim, a petitioner must make the state court aware that

the petitioner raises a federal issue. Lucas, 682 F.3d at 1352. The Supreme Court

has stated that “[a] litigant wishing to raise a federal issue can easily indicate the

federal law basis for his claim in a state-court petition or brief, for example, by

citing in conjunction with the claim 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 (2004).




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      In the section of his petition raising the ineffective assistance of counsel

claim at issue in this appeal, Dieter cited an opinion of the United States Court of

Appeals for the Third Circuit that decided a federal ineffective assistance of

counsel claim. See Jermyn v. Horn, 266 F.3d 257, 282-83, 287 (3d Cir. 2001)

(concluding that a habeas petitioner raising a federal ineffective assistance of

counsel claim failed to satisfy Strickland v. Washington, 466 U.S. 668 (1984)).

This reference was sufficient to fairly present the federal issue to the Florida state

courts. The claim Dieter raises in this appeal has therefore not been procedurally

defaulted.

      The State argues that Dieter failed to fairly present the ineffective assistance

of counsel claim to the Florida courts because he failed to allege prejudice in his

petition, as required to prevail under Strickland v. Washington, 466 U.S. 668

(1984). The State appears to conflate the question whether a petitioner has fairly

presented a claim to a state court with whether the petitioner will prevail on the

claim’s merits. Baldwin does not require a petitioner to fully address the merits of

a federal claim in order to fairly present the claim to a state court. Rather, a

petitioner may satisfy Baldwin by making the state court aware that the petitioner

raises a federal issue. Because Dieter “cit[ed] in conjunction with [his] claim . . . a

case deciding such a claim on federal grounds,” Dieter has satisfied this standard.

Baldwin, 541 U.S. at 32.


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B.       Dieter’s Claim of Ineffective Assistance of Counsel

         We now turn to the merits of Dieter’s ineffective assistance of counsel

claim.

         This Court reviews a district court’s denial of a § 2254 habeas petition de

novo and its factual findings for clear error. Sims v. Singletary, 155 F.3d 1297,

1304 (11th Cir. 1998). Where, as here, the highest state court decision reviewing a

§ 2254 petition is not accompanied by any reasoning, we “look through” that

unexplained decision to the last state court decision providing a reasoned

explanation and presume that the highest state court decision adopted that

rationale. Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018). 5

         A state prisoner may pursue habeas relief in federal courts “only on the

ground that he is in custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) generally bars a federal court from granting

habeas relief to a state habeas petitioner on a claim that was adjudicated on the

merits in state court unless the state court’s adjudication (1) “was contrary to, or

involved an unreasonable application of, clearly established [f]ederal law, as




         5
         In Wilson, the Supreme Court explained that “the State may rebut the presumption by
showing that the unexplained affirmance relied or most likely did rely on different grounds.”
Wilson, 138 S. Ct. at 1192. Florida has not argued that the presumption is rebutted here, so we
look through.
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determined by the Supreme Court,” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the [s]tate court

proceeding.” Id. § 2254(d)(l), (2).

      “‘Clearly established’ in § 2254(d)(1) refers to the holdings, as opposed to

the dicta, of the Supreme Court’s cases at the time of the relevant state court

decision.” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1258 (11th Cir.

2016) (second internal quotation marks omitted). “‘Contrary to’ means the state

court applied a rule different from the governing law set forth in Supreme Court

cases, or it decided a case differently than the Supreme Court has done on a set of

materially indistinguishable facts.” Id. at 1258-59 (alterations adopted) (second

internal quotation marks omitted). “An ‘unreasonable application’ under

§ 2254(d)(1) occurs when a state court decision (1) identifies the correct governing

legal rule from the Supreme Court’s cases but unreasonably applies it to the facts

of the particular state prisoner’s case, or (2) either unreasonably extends a legal

principle from Supreme Court precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new context where it

should apply.” Id. at 1259 (alterations adopted) (second and third internal

quotation marks omitted). “The ‘unreasonable application’ inquiry asks whether

the state court’s application of clearly established federal law was objectively

unreasonable, which requires the state court decision to be more than incorrect or


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erroneous.” Id. at 1259 (alterations adopted) (second and third internal quotation

marks omitted) (citation omitted). At bottom, “AEDPA erects a formidable barrier

to federal habeas relief for prisoners whose claims have been adjudicated in state

court.” Id. at 1260 (internal quotation marks omitted).

       “Once a federal court determines that a state court decision is unreasonable

under § 2254(d), we are unconstrained by § 2254’s deference and must undertake

a de novo review of the record.” Id. (internal quotation marks omitted).

       To demonstrate a Sixth Amendment claim of ineffective assistance of

counsel, a petitioner must show (1) deficient performance, such that counsel was

not functioning as guaranteed by the Sixth Amendment; and (2) that the deficient

performance prejudiced the petitioner, such that there is a “reasonable probability”

of a different outcome but for counsel’s deficient performance. Strickland, 466

U.S. at 687, 694. “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, . . . that course should be followed.” Id. at

697.

       Here, the last state court decision providing a reasoned explanation for

denying the instant claim determined that Dieter’s claim was facially insufficient

because he failed to allege prejudice. But Dieter’s § 2254 petition contained two

statements we deem sufficient to allege prejudice. First, Dieter alleged:

“Counsel’s failure to call Mr. Watson at trial to dispute [the] State’s evidence that


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was not tested [with a] proper procedure . . . allowed the Prosecutor to railroad

Petitioner with absolutely no defense to this untrustworthy evidence.” Doc. 8-7 at

5. Second, Dieter contended: “Had counsel called the[ ] only witness, Mr. Watson

could have shown the [j]ury that FDLE failed to test the DNA on the [l]abial swabs

properly, ultimately proving that . . . there was in fact no penetration or union with

the child’s sexual organs committed by Petitioner.” Doc. 8-7 at 6.

      We need not decide whether the state court’s decision that Dieter’s

allegations were insufficient is entitled to deference under AEDPA because Dieter

has failed to show prejudice under even a de novo standard of review. See

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of

habeas corpus under § 2254 by engaging in de novo review when it is unclear

whether AEDPA deference applies, because a habeas petitioner will not be entitled

to a writ of habeas corpus if his or her claim is rejected on de novo review.”);

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1109-10 (11th Cir. 2012)

(same).

      It is not reasonably probable that Watson’s testimony would have changed

the outcome of Dieter’s conviction on the second count of the information, which

charged him with “penetration by, or union with, the defendant’s penis and the

victim’s vagina.” Doc. 8-1 at 38. In addition to the evidence from the labial

swabs, at trial the State introduced DNA evidence linking Dieter with semen found


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on the victim’s underwear and sheet. Livingston testified that the State discovered

semen matching Dieter on the victim’s sheet and underwear in quantities far

greater than in the sample taken from the labial swabs. Therefore, Watson’s

testimony regarding the reliability of the State’s LCN DNA analysis would have

been immaterial to the jury’s consideration of the evidence taken from these other

sources. The State also introduced a taped telephone statement made by Dieter to

the local sheriff’s office in which he admitted that he touched a five-year-old girl.

The jury’s verdict was further supported by the victim’s testimony, which was

corroborated by the DNA evidence. Thus, Dieter was not prejudiced by any failure

of his counsel to call Watson as a trial witness. The district court correctly denied

Dieter’s petition as to this ineffective assistance of counsel claim.

                               III.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Dieter’s

habeas petition.

      AFFIRMED.




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