           Case: 14-12981   Date Filed: 02/12/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12981
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:13-cv-61059-RNS



JOSEPH FINCH,

                                                           Petitioner-Appellant,

                                versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                            (February 12, 2016)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 14-12981     Date Filed: 02/12/2016    Page: 2 of 12


      Petitioner Joseph Finch, a Florida state prisoner proceeding pro se, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. In

support of his claim for habeas relief, Petitioner raises three arguments on appeal.

First, he argues that his attorney was ineffective for failing to retain an independent

DNA expert. Second, he contends that his attorney was ineffective for failing to

investigate the past disciplinary problems and laboratory protocol violations of two

of the State’s witnesses. Finally, he argues that the cumulative effect of these

errors denied him the right to due process and equal protection. After careful

review, we affirm.

I. BACKGROUND

      A.     State Criminal Conviction and Post-Conviction Proceedings

      In 2005, the State of Florida charged Petitioner in a two-count information

with armed sexual battery and kidnapping. At trial, the State called Lynn Baird, a

Broward County Sheriff’s Office DNA specialist, who testified that the victim’s

rape kit contained the victim’s DNA and the DNA of two other individuals: a

major and a minor contributor. Kevin Noppinger, another DNA specialist, testified

that Petitioner’s DNA matched the major contributor in the victim’s rape kit, so

much so that the probability of finding someone else with the same DNA profile

was one-in-twelve-to-thirteen billion. The jury ultimately found Petitioner guilty

on both counts, and the Florida court sentenced Petitioner to two consecutive life


                                           2
                Case: 14-12981        Date Filed: 02/12/2016         Page: 3 of 12


sentences. On direct appeal, the Florida appellate court affirmed Petitioner’s

convictions and sentences.

       In 2008, Petitioner filed a motion for state post-conviction relief pursuant to

Florida Rule of Criminal Procedure 3.850, which he amended several times. 1

Among numerous grounds for relief asserted in his amended Rule 3.850 motion,

Petitioner argued that his attorney was ineffective for failing to obtain a

confidential DNA expert to perform an independent analysis of the DNA. The

expert, David Coffman, would have uncovered flaws and errors in the State’s DNA

analysis that would have shown that the evidence was inadmissible as a matter of

law. Petitioner further argued that his attorney was ineffective for failing to

investigate the State’s DNA experts, Baird and Noppinger. An investigation of

these individuals would have revealed that Baird was investigated in 2003 for

contaminating DNA evidence and that Noppinger had been reprimanded for

pouring hazardous chemicals down the drain. Petitioner contended that if this

evidence had been presented to the jury, there was a reasonable probability that the

jury would have questioned the reliability of the crime lab and reached a different



1
  Prior to filing his Rule 3.850 motion, Petitioner filed a state petition for writ of habeas corpus,
raising various grounds for relief not at issue in this appeal. He later moved to add an additional
claim under Brady v. Maryland, 373 U.S. 83 (1963), based on the State’s failure to disclose
impeachment evidence against two of the State’s witnesses. The Florida court denied
Petitioner’s writ of habeas corpus, but dismissed his Brady claim without prejudice to allow
Petitioner to present that claim in a Rule 3.850 motion.


                                                  3
               Case: 14-12981       Date Filed: 02/12/2016       Page: 4 of 12


verdict. Finally, Petitioner argued that the cumulative effect of the errors at trial

violated his constitutional rights to due process and equal protection.

       The Florida court denied Petitioner’s Rule 3.850 motion. 2 Specifically, the

Florida court denied Petitioner’s claim that counsel was ineffective for failing to

call Coffman, the confidential DNA expert, concluding that the claim was

speculative given that Petitioner did not establish that Coffman had been contacted,

was available to testify, had conducted an examination of the evidence, or would

testify consistently with Petitioner’s allegations. The Florida court further found

that Petitioner failed to show that his attorney was ineffective for failing to

investigate Baird and Noppinger because the incidents Petitioner cited had no

connection to his case, and, in any event, the evidence would not have been

admissible under Florida law. After concluding that Petitioner had not shown any

individual errors, the Florida court denied Petitioner’s cumulative-error claim.

Petitioner appealed this decision to the Florida appellate court, which affirmed

without opinion.

       B.     Federal Habeas Petition

       Petitioner subsequently filed the present § 2254 petition, asserting multiple

grounds for relief. As relevant to this appeal, Petitioner alleged that his attorney

2
  Because the Florida court adopted the State’s response in denying Petitioner’s Rule 3.850
motion, the Florida court’s reasons for denying Petitioner’s motion come from the State’s
response.


                                               4
              Case: 14-12981     Date Filed: 02/12/2016    Page: 5 of 12


was ineffective for failing to retain Coffman as a confidential DNA expert.

Petitioner also argued that his attorney was ineffective for failing to investigate

Baird and Noppinger. Finally, Petitioner asserted that the cumulative effect of

these errors deprived him of due process and equal protection.

      A magistrate judge issued a report and recommendation (“R&R”),

recommending denial of the petition, specifically concluding that the Florida

court’s decision on the ineffective-assistance and cumulative-error claims was not

based on an unreasonable determination of the facts or an unreasonable application

of clearly established federal law. Over Petitioner’s objections, the district court

adopted the R&R and denied the petition on all grounds.

      Petitioner appealed and we granted a certificate of appealability (“COA”) as

to: (1) whether Petitioner’s trial counsel was ineffective for failing to retain an

independent DNA expert; (2) whether Petitioner’s trial counsel was ineffective for

failing to investigate the past disciplinary problems and protocol violations of

Baird and Noppinger; and (3) whether, if errors occurred as to these two

ineffective-assistance-of-counsel issues, the cumulative effect of those errors

deprived Petitioner of his due process and equal protection rights.

II. DISCUSSION

      A.     Standard of Review




                                           5
               Case: 14-12981    Date Filed: 02/12/2016    Page: 6 of 12


      We review a district court’s denial of a habeas petition under § 2254

de novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.

2014), cert. denied, 135 S. Ct. 1562 (2015). Although we review the district

court’s factual findings for clear error, we review its rulings on questions of law

and mixed questions of law and fact de novo. Id. An ineffective-assistance claim

“presents a mixed question of law and fact that we review de novo.” Pope v. Sec’y,

Fla. Dep’t of Corr., 752 F.3d 1254, 1261 (11th Cir. 2014), cert. denied, 135 S. Ct.

1550 (2015).

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets

forth a standard that makes granting habeas relief difficult on a claim that the state

court has adjudicated on the merits. See White v. Woodall, 134 S. Ct. 1697, 1702

(2014). Under AEDPA, a federal court may only grant habeas relief on a claim if

the state court’s decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

      A state court decision is “contrary” to clearly established federal law if the

state court “arrives at a conclusion opposite to that reached by” the Supreme Court

or decides a case differently than the Supreme Court when faced with a case

involving materially indistinguishable facts. Wellington v. Moore, 314 F.3d 1256,


                                           6
               Case: 14-12981       Date Filed: 02/12/2016     Page: 7 of 12


1260 (11th Cir. 2002). Moreover, a state court decision constitutes an

“unreasonable application” of clearly established federal law, where the court

identifies the correct governing principles, but unreasonably applies those

principles to a petitioner’s case. Id. at 1261.

       B.     Ineffective-Assistance-of-Counsel Claims

       To establish ineffective assistance of counsel, a § 2254 petitioner must show

that (1) counsel’s performance was deficient, falling below an objective standard

of reasonableness, and (2) the petitioner suffered prejudice as a result of the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

Prejudice requires showing “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. Because a § 2254 petitioner must establish both Strickland

prongs to prevail on an ineffective-assistance claim, a court need not consider both

prongs if the petitioner fails to show either deficient performance or prejudice.

Cox v. McNeil, 638 F.3d 1356, 1362 (11th Cir. 2011).

              1.     Independent DNA Expert 3



3
  On appeal, the Respondent argues that this COA is erroneous because it expands Petitioner’s
argument beyond the claim he presented to the district court. In particular, the Respondent
asserts that Petitioner challenged his trial counsel’s failure to call a specific DNA expert,
Coffman, before the district court, but the COA presents the question of whether counsel was
ineffective for not retaining any DNA expert. However, “the time for scrutinizing the COA has
long since passed,” as we have reached the point of considering the appeal. See Thomas v.
Crosby, 371 F.3d 782, 785 (11th Cir. 2004) (“Were we to entertain belated challenges to COAs,
                                              7
               Case: 14-12981       Date Filed: 02/12/2016      Page: 8 of 12


       Petitioner first argues that his attorney was ineffective for failing to obtain

an independent expert to challenge the reliability of the State’s DNA evidence. He

contends that testimony from such an expert would have made the jury view his

case in a different light because the expert would have testified that the State’s

experts violated their own protocols and procedures.

       Petitioner has not disputed any facts, and therefore any claim for relief must

be based on whether the state court’s ruling was contrary to, or an unreasonable

application of, clearly established federal law. The Florida court denied

Petitioner’s ineffective-assistance claim because it was too speculative to warrant

relief. Although the court did not cite to any governing federal law, the court’s

rationale does not contradict any clearly established federal law. See Early v.

Packer, 537 U.S. 3, 8 (2002) (concluding that § 2254(d) does not require the state

court to cite to a Supreme Court decision, so long as the state court’s reasoning

does not contradict any Supreme Court decisions).

       “It is well established that the Supreme Court’s decision in Strickland is the

controlling legal authority to be applied to ineffective assistance of counsel

claims.” Sullivan v. DeLoach, 459 F.3d 1097, 1108–09 (11th Cir. 2006)

(quotations omitted). Where a petitioner raises an ineffective assistance claim



we effectively would add another layer of complexity to the already complicated regime for post-
conviction relief.”).


                                               8
              Case: 14-12981       Date Filed: 02/12/2016   Page: 9 of 12


based on counsel’s failure to call a witness, the petitioner carries a heavy burden to

show prejudice “because often allegations of what a witness would have testified

to are largely speculative.” Id. (quotations omitted).

      Here, Petitioner did not provide any evidence to support his conclusory

assertion that an expert would testify that the DNA evidence was unreliable due to

flawed laboratory methodology and protocols. Although Petitioner asserted that

Coffman was available to testify, he provided no evidence showing that he had

actually contacted Coffman, or any other expert for that matter. Nor did Petitioner

ever allege that Coffman or any other expert had actually reviewed the evidence in

his case. Without some specificity as to the proposed expert’s testimony, any

assertion that an expert would testify consistently with his claims is mere

speculation and does not entitle him to habeas relief. See id. Accordingly, the

Florida court’s decision was not contrary to, or an unreasonable application of,

clearly established federal law.

             2.     Failure to Investigate the State’s Witnesses

      Petitioner next argues that his attorney was ineffective for failing to

investigate the past disciplinary issues and lab protocol violations of the State’s

witnesses, Baird and Noppinger. Petitioner contends that, if his attorney had been

aware of these incidents, he could have impeached Baird and Noppinger and cast

doubt on the State’s case.


                                            9
             Case: 14-12981      Date Filed: 02/12/2016    Page: 10 of 12


      Petitioner has not shown that the Florida court’s denial of his ineffective-

assistance claim was contrary to, or an unreasonable application of, clearly

established federal law. The Florida court’s decision was not “contrary” to federal

law, as it correctly identified the governing legal principles from the relevant

Supreme Court decision. Although it did not cite to Strickland, the Florida court

stated that Petitioner failed to show that his attorney was deficient, or that his

attorney’s alleged errors prejudiced him. The court correctly identified the

governing legal principles, and thus its decision was not contrary to federal law.

      The Florida court’s determination was also not an “unreasonable

application” of federal law. As noted previously, in denying this claim, the Florida

court determined that Petitioner failed to show that his attorney was deficient, or

that he was prejudiced by his attorney’s alleged errors. Because we conclude that

Petitioner did not show that he was prejudiced by his attorney’s failure to

investigate Baird and Noppinger, we need not decide whether his attorney’s

performance was deficient. See Cox, 638 F.3d at 1362.

      Baird tested the DNA from the rape kit in the present case on May 15, 2001,

which was several months before she mistakenly mixed DNA samples from two

unrelated cases. Following the DNA-mixing incident, an independent agency

reviewed 30 other cases handled by Baird during the same time-frame—in addition

to 5 cases each from the other laboratory employees—and determined that Baird’s


                                           10
             Case: 14-12981     Date Filed: 02/12/2016    Page: 11 of 12


mishandling of DNA was an isolated incident. As to Noppinger, he was

disciplined for pouring hazardous chemicals down the drain in December 2002.

This infraction occurred almost two years before Noppinger analyzed the DNA in

Petitioner’s case.

      As illustrated above, these incidents are wholly unrelated to Petitioner’s

case. Baird’s DNA mix-up involved two cases unrelated to Petitioner’s and

occurred several months after Baird analyzed the rape kit in the present case.

Moreover, Noppinger’s act of pouring chemicals down the drain had nothing to do

with the DNA analysis in the present case, in addition to the fact that it occurred

several years before Noppinger determined that Petitioner’s DNA was a match to

the rape kit. Because Petitioner failed to show that Baird and Noppinger’s

disciplinary problems and protocol violations were connected to the DNA analysis

in his case or that they had any bearing on his guilt, Petitioner has not shown a

reasonable probability that investigation by counsel of the above matters would

have resulted in a different outcome at trial. See Strickland, 466 U.S. at 694.

      C.     Cumulative Error

      Finally, Petitioner claims that the cumulative effect of the errors at trial

deprived him of his rights to due process and equal protection. The cumulative-

error doctrine provides that “a sufficient agglomeration of otherwise harmless or

nonreversible errors can warrant reversal if their aggregate effect is to deprive the


                                          11
             Case: 14-12981     Date Filed: 02/12/2016   Page: 12 of 12


defendant of a fair trial.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273,

1284 (11th Cir. 2014). There is no merit to either of the ineffective-assistance

claims Petitioner raises on appeal. Because there are no errors to accumulate,

Petitioner cannot prevail on his cumulative-error claim. See id.; see also Morris v.

Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (concluding that there

can be no cumulative error where there is no error found in the trial court’s

rulings).

III. CONCLUSION

      For the reasons stated above, we affirm the denial of Petitioner’s § 2254

petition for a writ of habeas corpus.

      AFFIRMED.




                                         12
