STEVEN RICHARD TAYLOR

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS

21-12883 Opinion of the Court 3 off. At about⁴:30 a.m., after the vehicle had been stolen, a passing motorist noticed the Ford Ranchero parked in a driveway next door to the mobile home where the victim lived. Later that morning, the Ford Ranchero was found abandoned behind a used car dealership only a few blocks from where Taylor lived at the time. On the same morning, neighbors discovered the victim's battered body in the bedroom of her mobile home.... The testimony at trial also revealed that the phone line to the mobile home had been cut, that the home had been burglarized, and that various pieces of jewelry were missing. Taylor v. State, 630 So. 2d 1038, 1039 (Fla. 1993) (per curiam) (Taylor I). The police didn't immediately know who was responsible. Subsequent events added to their suspicion and, eventually, led to Taylor's arrest: In December of 1990, Taylor moved out of the duplex he had been sharing with a friend. In January, 1991, while Taylor's former roommate was removing a fence behind the duplex, he discovered a small plastic bag buried in the ground near the fence. The bag contained the pieces of jewelry taken from the

21-12883 Opinion of the Court 5 first-degree murder and burglary. The indictment was amended on September¹², 1991, to add a third count for sexual battery. Id. at 1039–40. At trial, the state presented the evidence of Taylor's location on the night of the murder, testimony tying him to the bag of jewelry, and DNA evidence from the scene that matched his profile. With respect to the latter, Dr. James Pollock, a Florida Department of Law Enforcement (FDLE) lab analyst who was “an expert in serology... testified that semen found in the victim's blouse matched Taylor's DNA profile.” Id. at 1040. Taylor's attorney, Frank Tassone, presented only one witness, an FBI agent who testified that some of the physical evidence matched Taylor's accomplice. Id. Taylor was convicted of first-degree murder, burglary of a dwelling, and sexual battery and was subsequently sentenced to death. Taylor sought state postconviction relief under Florida Rule of Criminal Procedure 3.850(a), and the state court granted an evidentiary hearing. As relevant for our purposes, Taylor presented the testimony of the state prosecutors, his trial counsel, his first post-conviction attorney, Shirley Zeigler (a former FDLE DNA analyst who served as the “second looker” for Dr. Pollock's DNA analysis results), and Dr. Randell Libby (a DNA expert). The Florida Supreme Court described Taylor's DNA-related case this way: To challenge the DNA evidence presented against Taylor at trial, the defense presented Dr. Libby to address alleged problems associated with Dr.

21-12883 Opinion of the Court 7 district court denied his petition in May 2021 without holding an evidentiary hearing. See Taylor v. Secretary, Fla. Dep't of Corr., 2021 WL 2003122, at *1–2, *26 (M.D. Fla. May 19, 2021) (Taylor IV). Taylor sought a certificate of appealability, which we granted on five issues: 1. Did the state violate Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose Dr. Pollock's deviations from the FDLE and FBI DNA testing protocols—namely, his testing of only four DNA probes, his testimony that DNA probes D4S139 and D1S7 matched Taylor's DNA profile, and his interpretation of over¹⁰,000 DNA base pairs? 2. Did the district court err in applying the Brecht v. Abrahamson, 507 U.S. 619 (1993), harmless-error test to Taylor's above-referenced Brady claim? 3. Did Taylor's trial counsel provide ineffective assistance, pursuant to Strickland v. Washington, 466 U.S. 668 (1984), by failing to challenge the state's DNA evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)? 4. Did Taylor's trial counsel provide ineffective assistance, pursuant to Strickland, by failing to request a hearing under Richardson v. State, 246 So. 2d 771 (Fla. 1971), upon learning of Zeigler's identity at trial during Dr. Pollock's cross-examination?

21-12883 Opinion of the Court 9 We'll work our way through the DNA-related issues—the first four of the five issues teed up by the COA—before turning to the Miranda issue. A To establish a violation of Brady v. Maryland, 373 U.S. 83 (1963), a criminal defendant must show (1) that the prosecution possessed evidence “favorable” to him, which can include evidence with impeachment value; (2) that he didn't possess the evidence and couldn't have obtained it with due diligence; (3) that the prosecution suppressed the evidence; and (4) that, if the evidence had been disclosed to the defendant, it is reasonably probable that the outcome of his proceeding would have been different. United States v. Gallardo, 977 F. 3d 1126, 1142 (11th Cir. 2020). Taylor argues that the state violated Brady by withholding information about Dr. Pollock's deviations from FBI DNA-testing protocols. The Florida Supreme Court disagreed, holding that information about protocol deviations wasn't material—that it wouldn't have led to a different outcome at trial. Applying the requisite ADEPA deference, we agree. Accordingly, we needn't address the state's contentions that Taylor also hasn't met Brady's suppression and diligence prongs. [fn 1] [fn 1]: We also needn't address the second issue on which we granted a COA, Taylor's Brecht argument. The district court couldn't have made a prejudicial

21-12883 Opinion of the Court 11 flawed or, at the very least, should have been deemed inconclusive. But not even Dr. Libby said that Dr. Pollock's identification was wrong—e.g., that he misread a band or botched the matching process. He merely said that Dr. Pollock shouldn't have drawn a conclusion from the testing. Either way, the state court explicitly found that Dr. Libby wasn't credible. Taylor II, 2009 WL 9419304, at *6. Absent clear and convincing evidence to the contrary, we must respect the state court's decision to credit Dr. Pollock and discredit Dr. Libby. Taylor also points to Ziegler's testimony to challenge Dr. Pollock's use of two particular probes to declare a DNA match to Taylor. While Zeigler didn't dispute Dr. Pollock's findings, she testified that it was a violation of protocol to conclude, as he did, that these two probes were conclusive. But as already explained, Dr. Goldman reviewed Dr. Pollock's report, which included Dr. Pollock's findings and conclusions, and didn't take issue with any part of it. Accordingly, the district court was right to hold, under AEDPA's deferential standard, that the Florida Supreme Court reasonably concluded that there was no Brady violation. B Taylor next contends that Tassone provided ineffective assistance at trial in two respects. Ineffective-assistance claims are governed by the framework established in Strickland v. Washington, 466 U.S. 668 (1984). Under that framework, a defendant must

21-12883 Opinion of the Court 15 In short, we reject Taylor's ineffective-assistance claim predicated on Tassone's failure to move for a Frye hearing on the ground that any deficiency wasn't prejudicial.² Taylor separately contends that Tassone rendered ineffective assistance by failing to request a hearing under Richardson v. State, 246 So. 2d 771 (Fla. 1971), when he learned about Shirley Zeigler at trial. A Richardson hearing is a proceeding under Florida law by which a criminal defendant can challenge a discovery violation. Under Richardson, the reviewing court assesses whether a discovery violation resulted in harm or prejudice to the defendant; in doing so, the court considers circumstances such as whether the violation was “inadvertent or willful" and "trivial or substantial" as well as what effect, if any, the violation had on "the ability of the defendant to properly prepare for trial." Id. at 775. "[W]here the court determines that the state's noncompliance with the rule has not prejudiced the ability of the defendant to properly prepare for trial," the record must affirmatively show that lack of prejudice. Id. Had Taylor's Richardson challenge succeeded, the district court could have imposed an appropriate sanction. The strongest sanction—and the most helpful to Taylor—would have been excluding the DNA evidence on the ground that, by withholding Zeigler's initials, the state prevented Taylor from adequately preparing to challenge that evidence at trial.

16 Opinion of the Court 21-12883 The Florida Supreme Court held that Tassone's failure to move for a Richardson hearing didn't constitute ineffective assistance. We can resolve this issue the same way we resolved the Frye-related ineffective-assistance claim: Even if Tassone's failure to seek the hearing constituted deficient performance, Taylor's claim founders because he suffered no prejudice. Taylor likely wouldn't have prevailed on the Richardson motion, and even if he had, the outcome of the trial likely would have been the same. As before, because the Florida Supreme Court decided the Richardson-based ineffective-assistance claim on Strickland's deficiency prong, we review the prejudice prong de novo. Taylor likely wouldn't have won a Richardson motion because, as a matter of state law, the state's discovery violation—if there was one—didn't harm or prejudice him. As an initial matter, the alleged violation likely wasn't willful. See id. The state couldn't have intentionally withheld discoverable evidence created by Zeigler because there wasn't a discoverable report of hers to disclose: She didn't do any tests or write a report; she merely reviewed Dr. Pollock's report and compared it to her computer printout. Moreover, the alleged violation wasn't “substantial,” nor did it affect Taylor's ability to prepare for trial. Tassone wasn't blindsided by Zeigler's name during the trial. Id. He knew that the initials "JP" meant that Dr. James Pollock had worked on the report, and he knew that there was another set of initials, “SZ.” Further, because Zeigler didn't do any analysis on the case, she couldn't

21-12883 Opinion of the Court 17 have testified to any of the protocol-related issues on which Taylor stakes his Brady and Frye arguments—meaning that Tassone couldn't have questioned her on Dr. Pollock's adherence to procedure. Indeed, not even Zeigler thought that her testimony would have aided Taylor at trial. When asked at the post-conviction evidentiary hearing whether it would have been helpful for the defense to have her results, she responded, simply, "No.” She also described her results as a “redundant piece of material” because both computer printouts reported the same findings. When Taylor's counsel used the word “disputes" throughout the evidentiary hearing to compare her findings to Dr. Pollock's results, Zeigler repeatedly stated that they weren't disputes, only "differences"—a distinction that she found significant. As already explained, although Zeigler testified that it was a violation of protocol for Dr. Pollock to conclude that two of the probes were conclusive, that critique doesn't change our conclusion. That Tassone would have liked to have had Zeigler's testimony to help him cross Dr. Pollock isn't enough to show prejudice. For all these reasons, we reject Taylor's contention that Tassone provided ineffective assistance of counsel by failing to move for a Richardson hearing. That failure, even if constitutionally deficient, didn't prejudice Taylor. D

18 Opinion of the Court 21-12883 Finally, Taylor asserts that the statement that he made to Officer Bogers should have been suppressed under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. As a refresher, after the police collected DNA samples from Taylor, he asked Officer Bogers how long it would take to get the results back. Officer Bogers responded by asking Taylor “why,” to which Taylor replied that he “was just wondering when they would be back out to pick him up.” Taylor VI, 2021 WL 2003122, at *24. A defendant who has invoked his right to counsel, as Taylor did, cannot be “subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). Interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (call number omitted). The Florida Supreme Court held that Officer Bogers’s question to Taylor didn’t constitute an “interrogation.” Applying AEDPA deference, we agree. A reasonable jurist could interpret Officer Bogers’s question—“Why?”—in response to Taylor’s question as ordinary, run-of-the-mill conversation rather than the sort of query that a reasonable officer would have known would elicit an incriminating response. And whatever happened here, the ex ante likelihood that a suspect would answer a question like Officer

21-12883 Opinion of the Court 19 Bogers’s with incriminating information seems exceedingly small—or so, in any event, a reasonable jurist could conclude. That’s especially true if we’re also to believe, as Taylor urges, that his question about when the DNA analysis would be complete didn’t re-initiate the conversation with Officer Bogers. If Taylor’s question was casual enough that it didn’t constitute a re-initiation, then a reasonable jurist could certainly conclude that Officer Bogers’s follow-up was casual enough that it didn’t constitute interrogation. IV To summarize, we hold as follows: The district court correctly held that the state didn’t violate Brady, that Taylor’s trial counsel didn’t provide ineffective assistance at trial—for failing to move for hearings under either Frye or Richardson—and that Miranda doesn’t require suppressing Taylor’s statement to Officer Bogers. Accordingly, we affirm the district court’s ruling on all counts.

AFFIRMED.