         Case: 13-11080   Date Filed: 08/20/2014   Page: 1 of 12


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-11080
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 6:11-cv-00081-ACC-GJK



KENYA MIRANDA HILL,

                                                         Petitioner-Appellant,

                                 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                     Respondents-Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________
                          (August 20, 2014)
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Before HULL, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Kenya Miranda Hill, a Florida state prisoner, appeals the district court’s

dismissal of her 28 U.S.C. § 2254 habeas corpus petition. Hill was convicted of

second-degree murder and aggravated child abuse of her daughter. On appeal, a

certificate of appealability (COA) was issued with respect to the following issues:

      (1) Whether Hill’s trial counsel was constitutionally deficient under
      Strickland v.Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), for failing
      to object to evidence of her prior crimes, or failing to move for a mistrial
      after such evidence was admitted?

      (2) Whether Hill’s trial counsel was constitutionally deficient under
      Strickland for failing to object to the state’s statement in closing
      argument that she had confessed to a lesser-included offense?

      (3) Whether Hill’s trial counsel was constitutionally deficient under
      Strickland for failing to investigate or obtain her or her husband’s
      phone records, particularly for the days surrounding her daughter’s
      death?

      (4) Whether a claim to cumulative error is cognizable in federal
      habeas proceedings and, if so, whether cumulative error denied Hill
      her constitutional right to a fair trial?

We address the four issues in turn. After careful review, we affirm the district

court’s denial of habeas relief.

                           I. LEGAL BACKGROUND

      Federal courts cannot grant habeas relief to a state prisoner unless the state

court’s decision was (1) contrary to, or an unreasonable application of, clearly


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established federal law as defined by Supreme Court precedent or (2) based on an

unreasonable determination of the facts in light of the evidence. 28 U.S.C.

§ 2254(d). We review the district court’s decision de novo, but we “owe deference

to the final state habeas judgment.” Hall v. Thomas, 611 F.3d 1259, 1284 (11th

Cir. 2010) (quotation marks omitted). Further, our review is “highly deferential”

to the district court’s denial of a § 2254 petition. Davis v. Jones, 506 F.3d 1325,

1331 (11th Cir. 2007) (quotation marks omitted). Factual determinations made by

a state court are presumed to be correct, and the petitioner bears the burden of

rebutting this presumption by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1).

      The merits of an ineffective-assistance-of-counsel claim are governed by the

standard announced in Strickland. Williams v. Taylor, 529 U.S. 362, 390, 120 S.

Ct. 1495, 1511 (2000). Under Strickland, a petitioner must show both (1) that his

“counsel’s performance was deficient” and (2) that “the deficient performance

prejudiced the defense.” 466 U.S. at 687, 104 S. Ct. at 2064. Strickland is not

applied de novo, “but rather through the additional prism of AEDPA deference.”

Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 477 (11th Cir.), cert. denied,

133 S. Ct. 1807 (2012). “Under this doubly deferential standard, the pivotal

question is whether the state court’s application of the Strickland standard was

unreasonable.” Id. (quotation and alteration marks omitted).


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        The court must “determine 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. at 2066.

“[C]ounsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id.

“Defense counsel are allowed a considerable breadth of discretion in choosing their

trial strategies.” Fleming v. Kemp, 748 F.2d 1435, 1451 (11th Cir. 1984). To

demonstrate prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068.

II. COA ISSUE ONE: FAILURE TO OBJECT TO EVIDENCE OF PRIOR
        CRIMES AND FAILURE TO MOVE FOR A MISTRIAL

        Hill argues that her counsel was deficient for failing to object to evidence of

her prior crimes and failing to move for a mistrial after evidence of prior crimes

was admitted. At trial, a recorded conversation was played for the jury between

Hill and Detective Mark Hussey. In that conversation, Hussey stated:

              [W]e’re gonna discuss with you, Kenya, the results of the
              autopsy. Again, I’m Detective Hussey. This is my partner,
              Detective Russell . . . Again, we’re sorry for your loss of your
              child. Since you are under arrest for some other charges, we’re
              gonna have to read you [your] rights again, make sure you
              understand them, and talk to you okay?


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Although Hill was charged with more than one offense in this case, on the

recording Hussey was referring to charges not at issue in this case. This was

the only reference to “other charges” during Hill’s trial at issue in this

appeal. 1

       The district court correctly concluded that Hill was not entitled to habeas

corpus relief with respect to this issue. Counsel’s failure to object to Hussey’s

reference that Hill was under arrest for other charges did not constitute deficient

performance. Only a single reference was made, and the reference was vague.

The jury could have easily understood the statement to be referring to the fact that

Hill was under arrest for multiple charges in this case. Even if the reference was to

other charges not associated with her daughter’s death, it was reasonable that

counsel would not wish to draw attention to this vague reference by raising an

objection. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (“A fair assessment

of attorney performance requires that every effort be made to . . . evaluate the

conduct from counsel’s perspective at the time.”). Beyond the brief and vague

nature of the reference, Hussey did not specify a charge against Hill for any charge

not associated with her daughter’s death. All of this supports the conclusion that

there is no reasonable probability that, but for counsel’s failure to object to the


1
 Hill’s arguments that counsel failed to object to evidence of old injuries as well as evidence that
Hill’s other children exhibited signs of child abuse were raised for the first time on appeal. She
has therefore waived these issues. Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994).
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reference, the result of the proceeding would have been different. Id. at 694, 104

S. Ct. at 2068.

      The state court found “that there is no reasonable probability that the

testimony of the police referencing the collateral crimes affected the jury’s verdict

in the instant case.” That decision was not contrary to, or an unreasonable

application of, federal law. Therefore, we affirm the district court’s denial of

§ 2254 relief with respect to this issue.

    III. COA ISSUE TWO: FAILURE TO OBJECT TO THE STATE’S
                  COMMENTS DURING CLOSING
      During closing, the state addressed certain comments made by Hill in her

trial testimony. According to her trial testimony—which, as the jury heard,

contradicted what she previously told the police—her husband picked up their

daughter “and slammed her on the floor.” Hill testified that she did not call 911

after the incident in which her daughter was killed. During closing, the state told

the jury, “You’ll have some lesser includeds to consider, and I’d like to talk about

some of those, because Miss Hill, just a few short minutes ago, actually confessed

to one of the lesser includeds.” The state argued that Hill committed child abuse

on her daughter, and as a result, the child died. It described “the first lesser

included” offense of second-degree murder. The state did not specifically refer to

any statement of Hill. Counsel for Hill did not object. The state then began to

describe a second lesser-included offense: manslaughter. The state indicated that

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even if the jury believed Hill’s trial testimony—and the state paraphrased that

testimony—that Hill committed manslaughter because her child was severely

injured and she did not call 911 to get help.

      Counsel for Hill interjected and objected. In a sidebar, Hill’s counsel argued

that the state’s argument that not calling the police was culpable negligence or

manslaughter was not correct. The state responded that, because Hill knew that her

child was injured and failed to act, this was an act of culpable negligence. The jury

was excused. Counsel for Hill explained that manslaughter was a lesser-included

offense of murder. However, manslaughter for failing to report or failing to take

action after another person commits a crime was a separate crime, not a lesser-

included offense. Counsel for the state responded, “I’ll withdraw the argument.”

      The jury was brought back into the courtroom. The state court instructed the

jury that an act of the defendant would be needed to support the charge of

manslaughter; a failure to get aid for an injury caused by someone else was not

enough. The state then continued its closing argument and told the jury that they

could find Hill guilty of manslaughter if they believed that she acted negligently

toward her child. That negligence would have needed to be gross and flagrant, and

part of a course of conduct showing reckless disregard of human life or the safety

of others. The state then indicated that Hill’s statement to the police about what

happened, where Hill said she started to pull her daughter and she bumped her


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head, fell on the floor, and died, might be manslaughter. But the state went on to

argue that what happened was a lot more than manslaughter.

      The district court did not err in denying Hill habeas relief on her claim that

counsel was ineffective by failing to object to the comments made by the state

during closing. Hill concedes that her counsel objected to the state’s argument that

she confessed to the lesser-included offense of manslaughter. But she argues that

her counsel was constitutionally deficient in failing to object to the state’s

argument that she also confessed to the lesser-included offense of second-degree

murder. She expressly recognizes that the state withdrew its argument regarding

manslaughter, but not regarding second-degree murder.

      Hill is challenging the state court’s determination that the state was referring

to the lesser-included offense of manslaughter when it said that Hill had confessed

to one of the lesser-included offenses. That determination is presumed to be

correct, and Hill did not rebut it by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). The state expressly stated that Hill confessed to “one,” not multiple

lesser-included offenses. And the state then specifically referenced Hill’s

testimony and suggested that even if the jury believed it, Hill committed

manslaughter. In this context, Hill cannot demonstrate that the state was referring

to second-degree murder rather than manslaughter when it stated that she

confessed to “one” of the lesser-included offenses. The state court’s decision to


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deny Hill’s motion for postconviction relief with respect to this issue was not

contrary to, or an unreasonable application of, federal law, or an unreasonable

determination of facts. Therefore, we affirm the district court’s denial of § 2254

relief on this issue.

   IV. COA ISSUE THREE: FAILURE TO OBTAIN PHONE RECORDS

       Hill argues that her counsel was deficient for failing to investigate or obtain

her and her husband’s phone records, particularly for the days surrounding her

daughter’s death. Hill’s defense focused on her claim that her husband caused her

daughter’s death and then coached her to lie to the police about what happened.

To rebut this defense, the state called Hill’s husband, who said he was not in the

same state as Hill and their daughter on the date of their daughter’s death. Hill

argues that the phone records would have revealed her husband’s location and

could have been used for impeachment on cross-examination.

       The district court correctly concluded that Hill was not entitled to habeas

corpus relief with respect to this issue. Because Hill has not shown what the phone

records would have demonstrated, she has not proved a reasonable probability that

presenting the phone records would have changed the outcome of the proceeding.

Strickland, 466 at 694, 104 S. Ct. at 2068. The state court’s decision to deny

Hill’s motion for postconviction relief with respect to this issue was not contrary




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to, or an unreasonable application of, federal law. Thus, we affirm the district

court’s denial of § 2254 relief on this issue.

            V. COA ISSUE FOUR: CUMULATIVE ERROR CLAIM

       Finally, Hill asks this Court to recognize a claim for cumulative error

because she argues that in this case doing so would result in a determination that

she was denied her constitutional right to a fair trial. The errors she claims are

present are the three already discussed, along with a fourth: the admission of her

daughter’s autopsy photographs.

       “The cumulative error doctrine provides that an aggregation of non-

reversible errors . . . can yield a denial of the constitutional right to a fair trial,

which calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir.

2005) (quotation marks omitted). In a previous case, we analyzed a cumulative

error claim by assuming without deciding that such a claim in the context of

ineffective assistance of counsel would be cognizable in the habeas context, and

we affirmed the denial of the claim on the merits. See Morris v. Sec’y, Dep’t of

Corr., 677 F.3d 1117, 1132 & n.3 (11th Cir. 2012). As in Morris, we need not

decide the issue here because, even assuming a claim of cumulative error is

cognizable in federal habeas proceedings, Hill would not be able to satisfy that

standard.




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      We begin with a discussion of Hill’s argument regarding the admission of

autopsy photographs. We review state court evidentiary rulings on a petition for

habeas corpus to determine only “whether the error, if any, was of such magnitude

as to deny petitioner his right to a fair trial.” Futch v. Dugger, 874 F.2d 1483,

1487 (11th Cir. 1989). “The evidence must be so inflammatory or gruesome, and

so critical that its introduction denied petitioner a fundamentally fair trial.” Id.

Generally, the introduction of photographic evidence of a crime victim does not

violate a defendant’s right to a fair trial. Id. To constitute a violation of a

defendant’s due process rights, the admitted evidence must have been (1)

erroneously admitted, and (2) “material in the sense of a crucial, critical, highly

significant factor in the [defendant’s] conviction.” Williams v. Kemp, 846 F.2d

1276, 1281 (11th Cir. 1988) (quotation marks omitted).

      Under Florida law, for photographic evidence to be admissible it must be

relevant to a material fact in dispute. Boyd v. State, 910 So. 2d 167, 191 (Fla.

2005) (per curiam). Autopsy photographs in particular are admissible, even when

difficult to view, to the extent that they fairly and accurately establish a material

fact and are not unduly prejudicial. Id. at 192. The Florida Supreme Court has

“repeatedly upheld the admission of photographs when they are necessary to

explain a medical examiner[’]s testimony, the manner of death, or the location of

the wounds.” Id.


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      In Hill’s case, the autopsy photographs were properly admitted for the

purpose of explaining the medical examiner’s testimony about the injuries her

daughter suffered. And the state court mitigated Hill’s concerns by instructing the

jury not to be overly influenced by the gruesome nature of the photographs.

Therefore, the state court’s admission of the photographs was not contrary to, or an

unreasonable application of, federal law.

      Even if we assume a claim of cumulative error is cognizable, Hill has failed

to demonstrate that the combination of the four alleged errors here would meet the

standard. Baker, 432 F.3d at 1223; Morris, 677 F.3d at 1132 & n.3. As a result,

we affirm the district court’s denial of § 2254 relief with respect to this issue.

                                VI. CONCLUSION

      The district court is AFFIRMED.




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