991 F.3d 1357
11th Cir.2021Background
- In 2008 McKiver broke into neighbor John Sneed’s home and stole a bottle of 120 oxycodone pills; he admitted the theft and that he consumed pills, but testified he could not recall how many he took. The trafficking charge turned on whether he took at least 53 pills (28 grams).
- At trial the state presented Sneed, the pharmacist (who filled the bottle with 120 pills), and a detective; recorded interviews of McKiver were played. The jury convicted McKiver of trafficking and he received a mandatory 25-year sentence.
- McKiver filed a state postconviction petition alleging trial counsel Michael Lamberti was ineffective for failing to investigate and call witnesses who would have testified that Sneed sold pills (potentially reducing the bottle’s count). An evidentiary hearing occurred; McKiver testified but did not produce the proposed witnesses’ testimony at that hearing.
- The state postconviction court granted relief, but the Florida appellate court reversed in a one-sentence order saying McKiver failed to meet his burden under Strickland.
- McKiver later raised a separate, untimely claim that counsel failed to investigate Sneed’s decades-old convictions for impeachment; that claim was rejected in state court as untimely.
- McKiver sought federal habeas relief raising both claims; the district court denied relief and the Eleventh Circuit affirmed—holding the state appellate court reasonably applied Strickland on the witness claim and that Martinez did not excuse the procedural default on the criminal-history claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to investigate and call witnesses who would say Sneed sold pills shortly after filling the prescription | Lamberti ignored names McKiver provided and failed to present witnesses whose testimony would have created reasonable doubt about how many pills remained | McKiver presented only his own, speculative testimony at the state hearing (no contemporaneous affidavits/witness testimony); that was insufficient to show prejudice under Strickland and AEDPA limits review to the state record | Affirmed: state appellate court reasonably applied Strickland; petitioner failed to show prejudice and federal review is limited to the state-court record |
| Whether procedural default of the claim that counsel failed to investigate Sneed’s criminal history can be excused under Martinez v. Ryan | Martinez applies because postconviction counsel was ineffective for not raising the claim; the underlying ineffective-assistance claim is substantial | The convictions were remote and likely inadmissible under Florida law; even if admitted, impeachment with decades-old convictions would not create a reasonable probability of a different outcome | Affirmed: Martinez does not excuse default — the claim is not "substantial" and petitioner cannot show prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (governing ineffective-assistance-of-counsel two-prong test)
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow exception to procedural default for ineffective postconviction counsel)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (AEDPA review limited to the state-court record)
- Harrington v. Richter, 562 U.S. 86 (2011) (deferential AEDPA standard; "reasonable jurist" benchmark)
- Wilson v. Sellers, 138 S. Ct. 1188 (2018) (federal habeas review focuses on the state court’s reasons when stated)
- Sullivan v. DeLoach, 459 F.3d 1097 (11th Cir. 2006) (failure-to-call-witness claims are often speculative and carry a heavy prejudice burden)