           Case: 11-13752   Date Filed: 12/26/2012   Page: 1 of 17

                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-13752
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:08-cv-00151-WTH-TBS


LARRY J. CALDWELL,

                                                          Petitioner-Appellant,

                                  versus


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

                                                       Respondents-Appellees.

                      ________________________

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

                            (December 26, 2012)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
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      Larry Caldwell, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his habeas petition under 28 U.S.C. § 2254. After review, we

affirm.

                                I. BACKGROUND

A.    Evidence at Caldwell’s Criminal Trial in State Court

      In Florida in 2002, Caldwell was charged by information with burglary of a

dwelling with battery, in violation of Fla. Stat. §§ 810.02(1), (2)(a), and 784.03,

and sexual battery, in violation of Fla. Stat. § 794.011(5). In 2004, Caldwell

proceeded to a jury trial on the information.

      At Caldwell’s trial, Cindy Lou Lutton, the victim, testified that in May 2000

she awoke to find a man standing in the doorway to her bedroom. The man

proceeded to rape Lutton twice. Lutton did not see the man’s face. Lutton did not

recall his race, but believed that he was African American based on his manner of

speech. Lutton believed that the man entered her apartment through an open

window in her spare bedroom because there was sand on her desk and she had

locked her doors. After the man left, Lutton drove to her parents’ house, told them

what happened, and her father called the police. Lutton did not know the man, she

could recall no distinguishing characteristics, and she did not recognize Caldwell

in court. On cross-examination, Lutton denied that she knew Caldwell.

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      Michelle Bently, a registered nurse, testified that she performed tests on

Lutton at the hospital, and that a vaginal swab performed on Lutton was positive

for sperm. Peter Ahern, a retired detective with the Leesburg Police Department,

testified that when he went to Lutton’s apartment, he noticed “scuff marks” on the

exterior wall under one of the windows, which indicated that the window may

have been the point of entry. Inside the apartment, Ahern noticed sand on the

windowsill and underneath the window, which also indicated that the window was

the point of entry.

      Allen Carter, a Senior Detective with the Leesburg Police Department,

testified that in his investigation of Lutton’s apartment, he noticed “smudge

marks” which appeared to be made by a bare foot on the exterior of the building

underneath a window. Carter also noticed finger marks on the window ledge, and

that it appeared that someone had pulled themselves up through the window.

Carter believed that there had been a struggle in Lutton’s bedroom because the

bedroom was “messed up,” specifically, items were knocked off the bed and a

lamp and other items were knocked off an end table. Carter determined that there

was a palm print on the inside of the windowsill in the spare bedroom, such that it

appeared that someone had grabbed the inside of the windowsill. Carter also

stated that there was a computer speaker on the desk below the windowsill that

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was knocked over. The desk was directly underneath the window, and if someone

entered through the window, they would have landed on the desk.

      Detective Carter stated that the case went “cold” until August 2002, when

Carter was notified that a Florida crime lab had a DNA match it obtained through

a Florida database of convicted felons, which led Carter to arrest Caldwell. After

Carter gave Caldwell Miranda1 warnings, Caldwell told Carter that (1) Caldwell

was living in a lodge across the street from Lutton’s residence in 2000, (2) he was

not involved in the burglary or any sexual crime, and (3) he did not know Lutton.

Carter recalled that Caldwell was around 6 feet tall and weighed around 175

pounds at that time. Carter then obtained and executed a search warrant for

Caldwell’s blood in order to compare it to the evidence from the crime scene and

to ensure that there were no errors in the prior match. Carter was present when

Caldwell’s blood was drawn in prison. Carter then sealed the blood samples and

had them transported to the Leesburg Police Department before they were sent to a

Florida crime lab for comparison.

      Emily Booth Varan testified that she worked in the Florida Department of

Law Enforcement, Orlando Regional Crime Laboratory in the “serology/DNA

section.” After being admitted as an expert witness, Varan stated that she


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

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prepared a report in March 2001 regarding the vaginal swab of Lutton submitted

by the Leesburg Police Department. In July 2002, Varan learned that the DNA on

the swab had matched a certain person. Varan requested that the Leesburg Police

Department obtain another sample from that person to confirm the match. After

receiving her requested sample, Varan determined that Caldwell’s DNA matched

the DNA from the sperm sample.

      Sheala McBee, a latent fingerprint examiner with the Lake County Sheriff’s

Office, testified that she received latent fingerprints taken from the windowsill by

Carter, and that the print on the windowsill matched Caldwell’s fingerprints.

      The state recalled Lutton, who testified that she never gave Caldwell

permission to enter her residence and never gave him permission to engage in

sexual intercourse with her.

      After McBee’s testimony, the state rested, and Caldwell moved for a

judgment of acquittal. The state trial court denied Caldwell’s motion. The state

trial court confirmed that Caldwell intended to testify and had discussed his

decision to testify with counsel.

      Caldwell testified that he had “three or four” prior felony convictions, but

then clarified that he had five prior felony convictions and five misdemeanor

convictions. Caldwell confirmed that none of his prior convictions were

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sexually-related crimes, that the crimes “involve[d] robbery,” and that no people

were hurt in the commission of those crimes. Caldwell stated that during the time

he lived across the street from Lutton’s apartment, he would see Lutton every day.

Caldwell testified that Lutton had engaged in sexual intercourse with him and that

he had loaned Lutton money in connection with their sexual relationship.

Caldwell was inside Lutton’s apartment before the incident to help her move

furniture and to paint the spare bedroom. Caldwell stated that he never broke into

Lutton’s home, and that he never forced her to have sexual intercourse.

      On cross-examination, Caldwell confirmed that he had five prior felony

convictions. Two of those convictions were robberies, and Caldwell stated that

robbery did not necessarily involve taking something by force, he did not “force

anything,” and he would not agree that robbery was a violent crime. Caldwell also

had a prior conviction for burglary. Caldwell stated that his palm prints were in

Lutton’s spare bedroom from when he painted that room.

      On redirect examination, Caldwell testified that he had never been skinny,

and in 2000 he wore size 46 pants and “double X” shirts. Caldwell added that he

did not know how to contact people who would have known him and Lutton

because everyone who lived in the area had left.

      After Caldwell rested, the state recalled Lutton, who stated that (1) she


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never had her apartment painted after she moved in, (2) she did not know

Caldwell, (3) she had never seen or spoken to Caldwell before, and (4) she never

had sexual intercourse with Caldwell.

         The jury found Caldwell guilty of both burglary of a dwelling with battery

and sexual battery. The state court initially sentenced Caldwell to life

imprisonment on both counts. Following a separate state court collateral hearing

that is not otherwise relevant to the present appeal, Caldwell was later

re-sentenced on the sexual battery count to a 15-year term of imprisonment, with

the term to run concurrently with his life sentence on the burglary with a battery

count.

B.       Caldwell’s Direct and Collateral Appeals in State Courts

         Caldwell appealed his convictions to Florida’s Fifth District Court of

Appeal (“Fifth DCA”). Caldwell’s appellate counsel filed an Anders2 brief and

moved to withdraw from her representation of Caldwell. Counsel raised one

potential issue in the brief, namely, whether the trial court erred in denying

Caldwell’s motion for judgment of acquittal. Caldwell filed a pro se brief arguing,

inter alia, that his convictions violated the Double Jeopardy Clause because the

battery relating to burglary was a lesser-included charge of sexual battery. The


         2
             Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).

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Fifth DCA affirmed Caldwell’s conviction per curiam.

      Caldwell then filed a motion for postconviction relief, pursuant to Florida

Rule of Criminal Procedure 3.850, which, as amended, raised multiple grounds for

relief. In pertinent part, Caldwell claimed that he received ineffective assistance

of trial counsel because: (1) trial counsel Janice Orr’s pretrial investigation was

inadequate; (2) Orr incorrectly advised Caldwell regarding whether the nature of

his prior convictions, rather than just their number, would be revealed to the jury if

he testified; (3) Orr failed to object during trial to the double jeopardy issue

Caldwell raised on direct appeal; (4) Orr failed to object to an improper jury

instruction, which allowed the jury to presume Caldwell’s specific intent; and (5)

Orr failed to raise a chain-of-custody objection regarding the initial DNA sample

Caldwell provided while incarcerated for a prior conviction. Caldwell requested

an evidentiary hearing, that his convictions and sentences be vacated, or that he

receive a new trial or re-sentencing.

      At the Rule 3.850 evidentiary hearing, Caldwell was represented by new

appointed counsel, and Caldwell, his trial counsel Orr, and Orr’s investigator, Bob

Bernhard, testified. After the evidentiary hearing, the state court denied

Caldwell’s Rule 3.850 motion. The state court first found that Orr’s efforts to find

Caldwell’s proposed witnesses were reasonable, and thus, Caldwell’s claim that he


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received ineffective assistance of counsel based on Orr’s failure to locate

witnesses before trial was without merit.

      With regard to Orr raising the nature of Caldwell’s convictions at trial, the

state 3.850 court found that Orr and Caldwell had discussed this tactic, as well as

the “pros and cons” of Caldwell testifying, prior to Caldwell’s trial. By bringing

up Caldwell’s criminal history, Orr intended to show the jury that Caldwell did not

have a history of violence and that sexual battery was not consistent with

Caldwell’s prior criminal convictions and his character. Orr also testified, at the

Rule 3.850 evidentiary hearing, that Caldwell had been adamant about testifying

in his own defense and that her strategy was to “air their own dirty laundry” before

the state had the opportunity to use it to impeach Caldwell. Before Caldwell

testified, the state trial court had questioned Caldwell on the record about his

decision to testify. The state 3.850 court noted that Orr’s testimony was consistent

with Caldwell’s answers given to the state trial court at the time of trial. The state

3.850 court pointed out that, in addition to Lutton’s testimony, there was other

testimony and physical evidence linking Caldwell to the crimes. Accordingly,

even assuming that Orr’s trial strategy had been error, there was no reasonable

probability that, but for this error in strategy, the result of Caldwell’s trial would

have been different.


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      The state 3.850 court also denied Caldwell’s claim that his convictions

violated double jeopardy because Florida courts had held that convictions for

burglary of a dwelling with battery and for sexual battery did not violate

double-jeopardy principles. The state court additionally denied all of Caldwell’s

other claims for relief.

      Caldwell appealed the denial of his Rule 3.850 motion and filed a brief

through counsel, arguing that Orr’s strategy of raising the nature of his prior

convictions at trial was “patently unreasonable” and ineffectively executed

because Orr ultimately left the jury with the impression that Caldwell was capable

of committing violent crimes and impugned his credibility. Caldwell added that,

in determining whether the outcome might have been different, the state court

should have considered, inter alia, Orr’s efforts to locate his potential witnesses,

where she made no attempt to contact Lutton’s or Caldwell’s landlords, and she

and Bernhard did not visit the neighborhood where the witnesses previously lived.

Caldwell concluded that a reasonable doubt existed as to the outcome of the trial,

and thus, he was entitled to relief. The Fifth DCA affirmed per curiam the denial

of Caldwell's Rule 3.850 motion.

C.    Caldwell’s Federal Habeas Petition

      In April 2008, Caldwell filed the present pro se petition for a writ of habeas


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corpus pursuant to 28 U.S.C. § 2254. Caldwell’s petition raised three grounds for

relief, namely that (1) the state trial court violated his due process and equal

protection rights by denying his motion for judgment of acquittal, because the

state failed to prove every element of the charged offenses beyond a reasonable

doubt; (2) his convictions relied on the same battery, and, thus, violated double

jeopardy principles and his equal protection and due process rights; and (3) he was

denied effective assistance of trial counsel. As to his claim of ineffective

assistance of counsel, Caldwell stated, inter alia, that counsel (1) failed to conduct

an adequate pretrial investigation; (2) misadvised him about testifying and

whether the jury would learn about the nature of his prior convictions; (3) failed to

object to an improper jury instruction; and (4) failed to object to the admissibility

of DNA evidence.

      Following the state’s response, the district court denied Caldwell’s § 2254

petition. As to Caldwell’s first claim that the state failed to present sufficient

evidence to prove each element of the charged offenses and that he was entitled to

a judgment of acquittal, the district court found that Caldwell presented no

evidence to rebut the state court’s factual findings, and, thus, Caldwell failed to

meet the standard of clear and convincing evidence to show with a “high

probability” that the state court’s factual findings were unreasonable. The


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substantial evidence presented at Caldwell’s trial, along with the fact that

Caldwell’s conviction was affirmed per curiam on appeal, demonstrated that the

evidence was sufficient to prove the elements of the charges, and Caldwell was not

entitled to § 2254 relief as to that claim.

      Turning to Caldwell’s claim that his convictions violated the Double

Jeopardy Clause, the district court noted that the crime of sexual battery included

an element not included in first-degree burglary with battery, namely, sexual

contact. The district court further noted that the Florida Supreme Court, applying

the Blockburger3 “same-elements” test, had concluded that charges of first-degree

burglary with a battery and sexual battery could be separately and cumulatively

punished. Accordingly, Caldwell’s convictions did not violate the Double

Jeopardy Clause, and he was not entitled to relief as to that claim.

      As to Caldwell’s ineffective-assistance claims, the district court first

concluded that Orr did not fail to conduct an adequate pretrial investigation

because Caldwell never gave the specific names of the alleged witnesses, and

Caldwell testified at trial that the witnesses had moved and he did not know how

to reach them. Given the vague nature of the information Caldwell provided,

Orr’s performance did not fall below an objective standard of reasonableness, and


      3
          Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932).

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Caldwell failed to demonstrate that he was denied effective assistance of trial

counsel as to that claim.

      Next, with regard to Caldwell’s claim that he was misadvised on testifying,

Orr testified at the evidentiary hearing that Caldwell was adamant about testifying.

The DNA and fingerprint evidence tied Caldwell to the crime, and Caldwell’s

defense was that his sexual relationship with Lutton was consensual. Prior to trial,

Orr discussed with Caldwell her strategy to raise the nature of Caldwell’s prior

convictions before the state did, and he agreed with that strategy. Because

Caldwell’s prior convictions would be exposed on cross-examination, Orr

believed that the jury should know that the prior convictions were non-violent

felonies, which the district court noted was a reasonable and common strategy.

Caldwell failed to argue that Orr’s strategy was unreasonable and that he suffered

prejudice as a result. Accordingly, Caldwell failed to show that counsel’s tactical

decision was unreasonable or that the decision resulted in prejudice.

      As to Caldwell’s argument that Orr failed to object to improper jury

instructions, the district court found that Orr did not provide inadequate assistance

for failing to object to the presumption-of-intent jury instruction because the

evidence showed Caldwell entered Lutton’s home “stealthily and without

permission,” which was enough to conclude that he had the intent to commit both


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battery and a burglary. Therefore, Caldwell was not entitled to relief as to that

claim.

         As to Caldwell’s claim that Orr unreasonably failed to object to the

admissibility of DNA evidence, Caldwell failed to show that the chain of custody

was an issue because, under Florida law, the state need not establish the chain of

custody where the record does not demonstrate that there was a probability of

evidence tampering. Caldwell offered no grounds to believe that the evidence was

tampered with such that Orr should have raised the chain-of-custody issue.

Moreover, the DNA was properly obtained under Florida law, and Caldwell did

not present any evidence indicating otherwise. Because the DNA evidence was

admissible and there was no indication that the evidence was tampered with, the

chain-of-custody issue would have been futile and Caldwell was not entitled to

relief on that claim.

         The district court granted Caldwell a certificate of appealability on his

claims regarding whether (1) the state trial court erred in denying his motion for a

judgment of acquittal; (2) his convictions violated double jeopardy; and (3) he was

denied effective assistance of counsel based on his trial counsel’s (a) failure to

conduct an adequate pretrial investigation, (b) misadvising Caldwell about

testifying, (c) failure to object to the jury instructions, and (d) failure to object to


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the admissibility of the DNA evidence.

                                  II. DISCUSSION

      On appeal, Caldwell first argues that the district court erred in denying his

claim regarding the state trial court’s denial of his motion for a judgment of

acquittal. Caldwell contends that the only relevant evidence adduced against him

at trial was the DNA evidence collected from the victim and matched to him,

which, combined with evidence that tended to establish his innocence, did not

sustain the state’s burden of proof beyond a reasonable doubt. Caldwell concludes

that it is highly probable that the district court’s reliance on the state court’s

factual findings is erroneous, and that he has demonstrated a high probability that

the state court’s factual findings were unreasonable.

      Caldwell next argues that his convictions violate the Double Jeopardy

Clause because the sexual battery was the sole battery the state relied upon to form

the basis for the conviction of burglary of a dwelling with battery.

      Finally, Caldwell argues that he did not receive constitutionally effective

assistance of counsel because his trial counsel: (1) failed to conduct an adequate

pretrial investigation when she did not locate and call potential exculpatory

witnesses; (2) misadvised him about testifying and the introduction of information

about the number and nature of his prior convictions, which ruined his credibility


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before the jury; and (3) failed to object to the admissibility of DNA evidence, as

there was a high probability that the DNA evidence was tampered with, such that

counsel was “constitutionally compelled” to object to the chain of custody.4

       In considering a district court’s denial of a § 2254 habeas petition, we

review findings of fact for clear error and legal determinations de novo. Rhode v.

Hall, 582 F.3d 1273, 1279 (11th Cir. 2009). Like the district court, we are also

reviewing the state habeas court’s decision. See Putman v. Head, 268 F.3d 1223,

1240 (11th Cir. 2001).

       Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), a federal court may not grant habeas relief on a

state prisoner’s claim that was denied on the merits in state court unless the state

court decision was (1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” or (2) “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).

       Under the “contrary to” clause of § 2254(d), a federal habeas court may

grant a petitioner habeas corpus relief if the state court arrives at a conclusion



       4
         On appeal, Caldwell has explicitly abandoned his claim regarding counsel’s failure to
object to the jury instruction.

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opposite to that reached by the Supreme Court on a question of law or if the state

court, on a set of materially indistinguishable facts, decides a case differently than

the Supreme Court has. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct.

1495, 1523 (2000). Under the “unreasonable application” clause, a federal court

may grant a petitioner habeas corpus relief 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.

      After reviewing the parties’ briefs and the record, we conclude that none of

Caldwell’s claims has merit or warrants further discussion. Our exhaustive history

of the state court proceedings readily shows that both the evidence and law

supported the state courts’ decisions. Caldwell has failed to demonstrate that any

of his claims involves a state court decision that (1) was contrary to, or involved

an unreasonable application of, clearly established federal law, or (2) was “based

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

the State court proceeding.” See 28 U.S.C. § 2254(d). Accordingly, we affirm the

district court’s denial of Caldwell’s § 2254 petition.

      AFFIRMED.




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