Covington v. Secretary, Department of Corrections (Hillsborough County)

             UNITED STATES DISTRICT COURT                          
              MIDDLE DISTRICT OF FLORIDA                           
                    TAMPA DIVISION                                 


EDWARD ALLEN COVINGTON                                                  

Applicant,                                                         

v.                                         CASE NO. 8:22-cv-2547-SDM-SPF 
                                        DEATH CASE                 
SECRETARY, Department of Corrections,                                   

Respondent.                                                        

____________________________________/                                   


                         ORDER                                     

Covington is incarcerated within the Florida Department of Corrections under 
three sentences of death based on the murders of Lisa Freiberg (his girlfriend), Zachary 
(her seven-year-old son), and Heather Savannah (her two-year-old daughter).  Also, 
Covington serves concurrent terms of fifteen years for three counts of mutilation of a 
dead body and five years for cruelty to an animal for bludgeoning to death the family 
dog.  After four witnesses testified on the first day of trial, Covington advised that he 
wanted to plead guilty.  The following day –– after Covington’s being evaluation by 
two medical experts –– the trial court accepted both Covington’s guilty plea to all 
charges and his waiver of a penalty hearing.  The convictions and sentences were 
affirmed on direct appeal, Covington v. State, 228 So. 3d 49 (Fla. 2017) (“Covington I”), 
and the subsequent denial of post-conviction relief was affirmed.  Covington v. State, 348 
So. 3d 456 (Fla. 2022) (“Covington II”).  Covington does not challenge his convictions. 
Covington applies under 28 U.S.C. § 2254 for the writ of habeas corpus and 
challenges only his sentences.  An earlier order (Doc. 7) (footnote omitted) both 
appoints the Office of the Capital Collateral Regional Counsel to continue their 

representation of Covington and directs the respondent to file a limited response. 
     The respondent should initially respond to the application by filing 
     a motion to dismiss limited to those specific grounds he contends 
     (1) fail to assert a claim that is reviewable in federal habeas corpus 
     (e.g., state law claims, Fourth Amendment claims that received 
     adequate state review, etc.), (2) are not fully exhausted, or (3) are 
     not reviewable because of a procedural bar.                   

The respondent both admits the application’s timeliness (Doc. 16 at 26) and moves to 
dismiss portions of ground one, all of grounds two and three, and the assertion of 
cumulative error.  Pending are the motion to dismiss, Covington’s opposition, and the 
respondent’s reply.  (Docs. 17, 18, and 21)                             
The application enumerates three grounds: trial counsel rendered ineffective 
assistance both during the penalty phase and at sentencing (Ground I), Covington’s 
severe mental illness precludes imposition of the death penalty (Ground II), and 
Florida’s courts failed to conduct a proportionality review (Ground III).  Also, in the 
supporting memorandum (but neither alleged as a ground in the application nor 
enumerated) Covington contends that his death sentences are unconstitutional based on 
cumulative error.  Ground I includes several sub-claims, but neither the application nor 
the supporting memorandum nor the motion to dismiss nor the opposition nor the reply 
(Docs. 2, 11, 17, 18, and 21) assign a consistent alphanumeric designation for the 
sub-claims.  This omission increases the possibility of violating Clisby v. Jones, 960 F.2d 
925 (11th Cir. 1992), which requires a district court to resolve all claims for relief raised 
in a Section 2254 application.  However, the supporting memorandum reveals that 
Covington pursues the same claims of ineffective assistance of counsel that he raised on 

the post-conviction appeal, during which he enumerated seven sub-claims under 
Ground I as “A–G.”  This order will –– and henceforth the parties must –– refer to the 
sub-claims using the post-conviction appeal’s alphanumeric designation. 
       I.  EXHAUSTION AND PROCEDURAL DEFAULT                       

An applicant must present each claim to a state court before presenting the claim 
to a federal court.  “[E]xhaustion of state remedies requires that petitioners ‘fairly 
presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity to 
pass upon and correct’ alleged violations of its prisoners’ federal rights.”  Duncan v. 
Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).  

“To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly 
present’ his claim in each appropriate state court . . . thereby alerting that court to the 
federal nature of the claim.”  Baldwin v. Reese, 541 U.S. 27, 32 (2004) (citing Duncan).  
“Fair presentation” requires alerting the state courts to both the law and the facts that 
support the federal nature of the claim.  The failure to properly exhaust a claim in state 

court causes a procedural default of the claim.  The reason for both requiring 
exhaustion and applying procedural default is explained in Shinn v. Ramirez, 596 U.S. 
366, 378–79 (2022) (brackets and ellipsis original):                    
     State prisoners, however, often fail to raise their federal claims in 
     compliance with state procedures, or even raise those claims in 
     state court at all. If a state court would dismiss these claims for 
     their procedural failures, such claims are technically exhausted 
     because, in the habeas context, “state-court remedies are . . . 
     ‘exhausted’ when they are no longer available, regardless of the 
     reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92–
     93, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). But to allow a state 
     prisoner simply to ignore state procedure on the way to federal 
     court would defeat the evident goal of the exhaustion rule. See 
     Coleman, 501 U.S. at 732, 111 S. Ct. 2546. Thus, federal habeas 
     courts must apply “an important ‘corollary’ to the exhaustion 
     requirement”: the doctrine of procedural default. Davila, 582 U.S., 
     at ___, 137 S. Ct., at 2064. Under that doctrine, federal courts 
     generally decline to hear any federal claim that was not presented 
     to the state courts “consistent with [the State’s] own procedural 
     rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S. Ct. 1587, 
     146 L. Ed. 2d 518 (2000).                                     

     Together, exhaustion and procedural default promote federal-state 
     comity. Exhaustion affords States “an initial opportunity to pass 
     upon and correct alleged violations of prisoners’ federal rights,” 
     Duckworth v. Serrano, 454 U.S. 1, 3, 102 S. Ct. 18, 70 L. Ed. 2d 1 
     (1981) (per curiam), and procedural default protects against “the 
     significant harm to the States that results from the failure of federal 
     courts to respect” state procedural rules, Coleman, 501 U.S. at 750, 
     111 S. Ct. 2546. Ultimately, “it would be unseemly in our dual 
     system of government for a federal district court to upset a state 
     court conviction without [giving] an opportunity to the state courts 
     to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 
     204, 70 S. Ct. 587, 94 L. Ed. 761 (1950), and to do so consistent 
     with their own procedures, see Edwards, 529 U.S. at 452–453, 120 
     S. Ct. 1587.                                                  

As a consequence, “[i]t is not enough that all the facts necessary to support the 
federal claim were before the state courts, or that a somewhat similar state-law claim 
was made.”  Anderson v. Harless, 459 U.S. 4, 6 (1982).  See also Kelley v. Sec’y for Dep’t of 
Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a habeas 
applicant to do more than scatter some makeshift needles in the haystack of the state 
court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 
1995) (“[T]he applicant must have fairly apprised the highest court of his state with the 
appropriate jurisdiction of the federal rights which allegedly were violated.”).  An 
applicant must present to the state court the same claim presented to the federal court.  
Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state prisoner to present the 

state courts with the same claim he urges upon the federal courts.”).  “Mere similarity 
of claims is insufficient to exhaust.”  Duncan, 513 U.S. at 366.        
Ground I Sub-Claim A:                                                   
Trial counsel was allegedly ineffective for neither objecting nor rebuting the 

state’s medical diagnosis of antisocial personality disorder and not objecting to 
labeling Covington as a “psychopath.”  The respondent admits (Doc. 17 at 31) that this 
sub-claim is exhausted and entitled to a review on the merits.          
Ground I Sub-Claim B:                                                   
Trial counsel was allegedly ineffective for not arguing as a mitigating factor 

Covington’s insanity at the time of the offense.  The respondent admits (Doc. 17 at 32)  
that this sub-claim is exhausted and entitled to a review on the merits but not to the 
extent that the claim is construed as challenging the definition of “insanity,” which is a 
matter of state law.  As McCullough v. Singletary, 967 F.2d 530, 535–36 (11th Cir. 
1992), explains, an evidentiary ruling raises no question of constitutional magnitude. 

     A federal habeas petition may be entertained only on the ground 
     that a petitioner is in custody in violation of the Constitution or 
     laws or treaties of the United States. 28 U.S.C. § 2254(a). A 
     state’s interpretation of its own laws or rules provides no basis for 
     federal habeas corpus relief, since no question of a constitutional 
     nature is involved. Bronstein v. Wainwright, 646 F.2d 1048, 1050 
     (5th Cir. 1981). State courts are the ultimate expositors of their 
     own state’s laws, and federal courts entertaining petitions for 
     writs of habeas corpus are bound by the construction placed on a 
     state’s criminal statutes by the courts of the state except in 
     extreme cases. Mendiola v. Estelle, 635 F.2d 487, 489 (5th Cir. 
     1981).                                                        
See Krawczuk v. Sec’y, Fla. Dep’t of Corr., 873 F.3d 1273, 1287 (11th Cir. 2017) (applying 
McCullogh).                                                             
Covington’s and the respondent’s papers show agreement that the alleged 
ineffective assistance of counsel regarding the application of Florida’s insanity statute is 
an exhausted and reviewable claim but not the state’s definition of insanity.  
Consequently, this sub-claim is limited to the application of the state’s insanity statute, 
but the state’s definition of insanity is not reviewable.               

Ground I Sub-Claim C:                                                   
Trial counsel was allegedly ineffective for not developing and presenting 
evidence of substance abuse as a mitigating factor and not explaining the relation 
between substance abuse and mental illness.  The respondent admits (Doc. 17 at 33) 
that this sub-claim is exhausted and entitled to a review on the merits. 

Ground I Sub-Claim D:                                                   
Trial counsel was allegedly ineffective (1) for not obtaining a PET scan instead 
of a qEEG test, which was ruled inadmissible, and (2) for not renewing his pre-trial 
motion to admit the qEEG test results after Covington waived a penalty jury.  The 
respondent admits (Doc. 17 at 34) that this sub-claim is exhausted and entitled to a 

review on the merits regarding counsel’s alleged ineffective assistance for pursuing a 
qEEG test and not a PET scan, but the respondent correctly argues that whether the 
results of the qEEG test were admissible evidence is a matter of state law.   
As a general principle, an alleged violation of state law fails to assert a 
constitutional issue because the admissibility of evidence in state court is largely a 
matter for the state to decide without federal intervention.  See Marshall v. Lonberger, 

459 U.S. 422, 438, n.6 (1983) (“[T]he Due Process Clause does not permit the federal 
courts to engage in a finely tuned review of the wisdom of state evidentiary rules.”); 
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state 
court’s interpretation of state law . . . binds a federal court sitting in habeas corpus.”); 
McCullough v. Singletary, 967 F.2d 530, 535–36 (11th Cir. 1992) (“A state’s 

interpretation of its own laws or rules provides no basis for federal habeas corpus relief, 
since no question of a constitutional nature is involved.”).  See also Reese v. Sec’y, Fla. 
Dep’t of Corr., 675 F.3d 1277, 1290 (11th Cir. 2012) (“ ‘Necessary to [Reese’s] success 
. . . is the proposition that the Florida Supreme Court erred in construing the laws of 

Florida.  In fact, [Reese’s] claim involves a pure question of state law.  Questions of 
pure state law do not raise issues of [federal] constitutional dimension for federal 
habeas corpus purposes.’  . . .  A precedent of a state court about an issue of state law 
can never establish an entitlement to a federal writ of habeas corpus.”) (internal citation 
omitted) (brackets original).1  Consequently, whether the results of the qEEG test were 

admissible into evidence is a matter of state law not reviewable in this habeas action. 


1  Additionally, Covington argues that his due process and equal protection rights were violated 
when during his trial in Hillsborough County the state judge refused to allow into evidence the qEEG 
test results but in Miami-Dade County a state judge allowed into evidence the qEEG test results.  
Covington II, 348 So. 3d at 472, holds that this issue is procedurally barred “[b]ecause [it] should have 
been raised on direct appeal.”                                          
Ground I Sub-Claim E:                                                   
Trial counsel was allegedly ineffective for not moving to “sanitize/redact” 

Covington’s videotaped interrogation.  The respondent admits (Doc. 17 at 37) that this 
sub-claim is exhausted and entitled to a review on the merits.          
Ground I Sub-Claim F:                                                   
Trial counsel was allegedly ineffective for waiving pre-trial motions and 
objections after Covington chose to plead guilty and for waiving a penalty phase jury.  

The respondent moves to dismiss this sub-claim based on procedural default.  
Pre-trial proceedings included many defense motions to limit the state’s 
evidence, particularly motions both to suppress Covington’s statements when he was 
in the hospital and to exclude evidence of collateral crimes or prior bad acts.  On the 
first day of trial but after trial had started, Covington decided to plead guilty.  In his 

application Covington elaborates as follows (Doc. 2 at 29):             
     Instead of continuing to object, defense counsel waived objection 
     to all of the evidence challenged pretrial. Public Defender Julie 
     Holt testified at the evidentiary hearing her team was very broad 
     in setting out full and complete waivers of all pretrial litigation in 
     the plea form they prepared days before Mr. Covington pled    
     guilty, in anticipation of just such a move.                  

Covington II, 348 So. 3d at 473, determined that trial counsel’s decision not to 
continue to object to the evidence was a reasonable strategic decision.  Consequently, 
this sub-claim was denied on the merits –– not based on a procedural defect –– and is 
entitled to a review on the merits.                                     
Ground I Sub-Claim G:                                                   
Trial counsel was allegedly ineffective for not interviewing and presenting 

evidence about Covington’s enduring abuse when he was a child.  The respondent 
admits (Doc. 17 at 37) that this sub-claim is exhausted and entitled to a review on the 
merits.                                                                 
Ground II:                                                              
Covington alleges (1) that under the “evolving standards of decency” he is 

exempt from the death penalty because of his severe mental illness, because his case is 
not the most aggravated and least mitigated, and because the process for determining 
his sentence was inadequate and (2) that trial counsel was ineffective for not adequately 
developing these allegations.  The respondent moves to dismiss this ground based on 
procedural default.                                                     

Covington II, 348 So. 3d at 465–66, concurs with the post-conviction court’s 
ruling that Covington procedurally defaulted the “evolving standards” argument 
“because this claim should have been raised on direct appeal.”  This ruling meets the 
“plain statement” requirement under Harris v. Reed, 489 U.S. 255, 261 (1989), 
which requires that the state court opinion contain “a plain statement that [the state 

court’s] decision rests upon adequate and independent state grounds.” (internal 
quotation omitted)  Consequently, Covington procedurally defaulted the first 
component of this ground, and whether he can overcome the procedural default is 
discussed below.                                                        
However, the state courts denied the merits of the ineffective assistance of 
counsel component of this ground in a unified analysis of Ground I, Sub-Claim B.  
Consequently, this component of Ground II is entitled to a review on the merits.  

Ground III:                                                             
Covington erroneously alleges that the Florida Supreme Court failed to conduct 
a proportionality review of his death sentences; Covington I, 228 So. 3d at 69, 
determines “that the death sentences are proportionate.”  Nevertheless, this ground fails 

to assert a federal question that is reviewable under habeas corpus.  See Pully v. Harris, 
465 U.S. 37, 45 (1984) (“Examination of our [earlier] cases makes clear that they do not 
establish proportionality review as a constitutional requirement.”); Walker v. Georgia, 
555 U.S. 979, 129 S. Ct. 481, 482 (“Proportionality review is not constitutionally 
required in any form.”) (Thomas, J., concurring in denying petition for certiorari).  

Moreover, Florida no longer engages in a proportionality review.  Lawrence v. State, 308 
So. 3d 544, 551–52 (Fla. 2020).  Consequently, the respondent is entitled to the 
dismissal of Ground III.                                                
Cumulative Error:                                                       
The respondent moves to dismiss any purported claim based on cumulative 

error and argues that, “[b]ecause there is no United States Supreme Court precedent 
regarding cumulative error claims in federal habeas, such claims do not provide an 
avenue for federal habeas relief.”  (Doc. 17 at 39)  The respondent cites Morris v. Sec’y, 
Dep’t of Corr., 677 F.3d 1117, 1132 n.3 (11th Cir. 2012), which relies on non-Eleventh 
Circuit cases.  However, instead of accepting the identical argument the respondent 
asserts here, Morris determines that the “cumulative error claim clearly fails in light of 
the absence of any individual errors to accumulate.”  677 F.3d at 1132 n.3.  On the 

contrary, Insignares v. Sec’y, Dep’t of Corr., 755 F. App’x 1273, 1284 (11th Cir. 2014),2 
recognizes Morris’s limited statement and explains that “[u]nder the cumulative-error 
doctrine, a sufficient agglomeration of otherwise harmless or nonreversible errors can 
warrant reversal if their aggregate effect is to deprive the defendant of a fair trial.”  

See also Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973) (accepting Chambers’ 
cumulative effect argument).  Consequently, Covington is not precluded from asserting 
entitlement to relief based on cumulative error.                        
       III.  “CAUSE-AND-PREJUDICE” TO OVERCOME                     
                  PROCEDURAL DEFAULT                               

As discussed above, the failure to properly exhaust each available state court 
remedy by not ‘fairly presenting’ a federal claim to the state courts in the proper 
procedural manner causes a procedural default of the unexhausted claim.  A failure to 
exhaust does not finally preclude review if the applicant can overcome the default.  See 
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen it is obvious that the 
unexhausted claims would be procedurally barred in state court due to a state-law 
procedural default, we can forego the needless ‘judicial ping-pong’ and just treat those 
claims now barred by state law as no basis for federal habeas relief.”).  The reasoning 


2  “Unpublished opinions are not considered binding precedent, but they may be cited as 
persuasive authority.” 11th Cir. Rule 36-2.                             
for the procedural default doctrine and the procedure for overcoming the procedural 
default is explained by Shinn, 596 U.S. at 379–80 (ellipsis and italics original): 
     “Out of respect for finality, comity, and the orderly administra-
     tion of justice,” Dretke v. Haley, 541 U.S. 386, 388, 124 S. Ct. 1847, 
     158 L. Ed. 2d 659 (2004), federal courts may excuse procedural 
     default only if a prisoner “can demonstrate cause for the default 
     and actual prejudice as a result of the alleged violation of federal 
     law,” Coleman, 501 U.S. at 750, 111 S. Ct. 2546. To establish 
     cause, the prisoner must “show that some objective factor external 
     to the defense impeded counsel’s efforts to comply with the State’s 
     procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 
     2639, 91 L. Ed. 2d 397 (1986). Then, to establish prejudice, the 
     prisoner must show not merely a substantial federal claim, such 
     that “ ‘the errors at . . . trial created a possibility of prejudice,’ but 
     rather that the constitutional violation ‘worked to his actual and 
     substantial disadvantage.’ ” Id., at 494, 106 S. Ct. 2639 (quoting 
     United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 
     2d 816 (1982)).                                               

Accord O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (“Boerckel’s failure to present 
three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has 
resulted in a procedural default of those claims.”).  Consequently, to demonstrate 
“cause” for his procedural default, Covington must show an “external factor” was the 
reason for his failure to comply with Florida’s procedural rules, and to show actual 
prejudice Covington must demonstrate that the alleged errors so infected the trial that 
his resulting conviction violates due process.  Covington presents no “cause and 
prejudice” argument.                                                    
As an alternative to showing both cause and prejudice, Covington must show 
that dismissal of his procedurally defaulted claims will result in a “fundamental 
miscarriage of justice,” an especial difficulty because Covington must demonstrate his 
“actual innocence” of the death penalty.  Schlup v. Delo, 513 U.S. 298, 323 (1995).  
Additionally, to meet the “fundamental miscarriage of justice” exception, Covington 
must show constitutional error coupled with “new reliable evidence – whether it be 
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 

evidence – that was not presented at trial.”  Schlup, 513 U.S. at 324.   
Covington asserts entitlement to review of the merits of the “evolving standards 
of decency” component of Ground II as “necessary to correct a fundamental 
miscarriage of justice . . . . .”  (Doc. 18 at 6)  The post-conviction court noted that 
“[t]here is no legal authority which would permit or require this Court to find the 

Eighth Amendment categorically bars Defendant’s execution because he suffers from 
severe mental illness.”  (Doc. 4, Appendix C at 56)  Covington II, 348 So. 3d at 466, 
concurs,3 and Covington cites no authority showing the decision is incorrect.  
Consequently, because Covington fails to overcome the procedural default, the 

“evolving standards of decency” component of Ground II is procedurally barred from 
federal review.                                                         
The respondent’s motion to dismiss (Doc. 17) is GRANTED IN PART AND 
DENIED IN PART.  Ground I(B)4 and (D),5 and Grounds II6 and III are     


3  Also, Covington II, 348 So. 3d at 466, notes that Covington “raises the issue on appeal ‘to 
preserve this specific subclaim should current or future law or cases require a claim of incompetency at 
time of execution be raised at this stage of postconviction proceedings.’”   
4  This sub-claim is dismissed to the extent that it is construed as challenging Florida’s definition 
of insanity.                                                            
5  This sub-claim is dismissed regarding the admissibility of the qEEG test results. 
6  The portion of this ground that alleges an exemption from the death penalty based on the 
evolving standards of decency is procedurally barred.                   
DISMISSED.  This action proceeds with Ground I  (A), (B),’ (C), (D),® (E), (F) and 
(G), Ground II,’ and the cumulative error argument.  The respondent has SIXTY 
DAYS to respond to the remaining grounds, Covington has FORTY-FIVE DAYS to 
reply, and the respondent has FOURTEEN DAYS to either file or waive a sur-reply. 
The clerk must ADMINISTRATIVELY CLOSE this case and re-open the case when 
briefing is complete. 
 ORDERED in Tampa, Florida, on October 2, 2024. 
                                          Mn Winner, 
                                           STEVEN D. MERRYDAY 
                                      UNITED STATES DISTRICT JUDGE 

 7  This sub-claim is limited to the application of Florida’s insanity statute. 
 8  This sub-claim is limited to whether counsel was ineffective for pursuing a qEEG test and not 
a PET scan. 
 °  The ineffective assistance of counsel portion of this ground is not procedurally barred. 

                                 -14-