from the United States District Court for the Southern
District of Florida
HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.
withdraw our previous opinion, dated July 25, 2017, and
published at 847 F.3d 1261, and issue this published opinion:
death row inmate Robert Rimmer appeals the district
court's denial of his 28 U.S.C. § 2254 petition for
writ of habeas corpus. At issue in this appeal is
Rimmer's claim that the prosecution failed to disclose
evidence in violation of Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194 (1963), and that therefore he is entitled
to a new trial as to his convictions. After review and with
the benefit of oral argument, we conclude that the state
court's denial of Rimmer's Brady claim is
entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA") and that the
state court's denial was neither an unreasonable
determination of the facts nor an unreasonable application of
clearly established federal law. Accordingly, we affirm the
district court's denial of Rimmer's § 2254
place Rimmer's Brady claim in context, we review
the evidence and procedural history of this case.
Armed Robbery and Murders
2, 1998, Rimmer and codefendant Kevin Parker robbed Audio
Logic, a car stereo store in Wilton Manors,
Florida. Rimmer v. State, 825 So.2d 304,
308-09 (Fla. 2002) (per curiam) ("Rimmer
I"). During the armed robbery, Rimmer, who was
thirty years old at the time, used a .380 caliber
semiautomatic pistol to shoot and kill two Audio Logic
employees, Aaron Knight and Bradley Krause. Id. at
309. Rimmer shot both victims from point blank range in a
brutal fashion. Id.
the shootings, the two murder victims, Knight and Krause, and
two customers, Joe Moore and Louis Rosario, were forced to
lie face down on the floor of the Audio Logic installation
bay area. Id. Knight's, Krause's,
Moore's, and Rosario's hands were duct taped behind
their backs. Id. While these four men were bound on
the floor, another customer, Kimberly Davis Burke, walked
into the installation bay area with her two-year-old
daughter. Id. When Davis Burke saw what was
happening, she immediately sat on the floor with her daughter
in her lap. Id. Davis Burke watched as robbers
Rimmer, Parker, and an unidentified third man then loaded
stereo equipment into a Ford Probe. Id.
point during the armed robbery, Rimmer asked Knight, who was
face down on the floor with his hands taped behind his back,
for the keys to the cash register. Id. Rimmer also
asked whether anyone there owned a weapon. Id.
Knight told Rimmer where he kept a Walther PPK, which Rimmer
took. Id. One of the robbers also took Moore's
wallet and cell phone. Id.
leaving Audio Logic, Rimmer said to Knight, "You know
me, " but Knight responded that he did not. Id.
Rimmer replied, "You do remember me, " then placed
the pistol to the back of Knight's head and shot Knight.
Id. Rimmer then shot Krause in the back of the head
while Krause was also face down on the floor. Id.
died instantly. Id. at 310. Krause was still alive
when police arrived at Audio Logic but later died at the
hospital. Id. At the scene of the armed robbery and
murders, police recovered shell casings and a spent
projectile fragment from a .380 caliber firearm. Id.
According to the surviving victims, the entire frightening
episode, including the armed robbery and the two murders,
lasted fifteen to twenty minutes. Id. at 309-10.
days later, on May 4, 1998, eyewitness Davis Burke described
the shooter to a sketch artist. Id. at 310. Police
sent the artist's sketch to Mike Dixon, Audio Logic's
owner, who sent it to John Ercolano, the owner of a separate
audio electronics shop. Id. As explained later,
Rimmer had previously taken his car to both businesses for
work on his car audio system. Id. Ercolano
recognized Rimmer as the person depicted in the sketch.
Id. Using Audio Logic's customer records, police
ascertained Rimmer's identity, phone number, and address.
8, 1998, police showed eyewitnesses Moore and Davis Burke a
photographic lineup, and Moore and Davis Burke separately
identified Rimmer as the shooter. Id. Later, Moore
and Davis Burke separately identified Rimmer from a live
lineup. Id. Audio Logic owner Dixon identified
Rimmer as having been to Audio Logic before for car speaker
10, 1998, police arrested Rimmer after Rimmer led them on a
highspeed car chase. Id. During the car chase,
Rimmer threw several items from the Oldsmobile he was
driving, including the Walther PPK pistol stolen from Audio
Logic, the .380 semiautomatic pistol used in the murders, and
eyewitness Moore's wallet. Id.
later discovered that Rimmer owned both the Oldsmobile used
in the car chase and a Ford Probe, the make and model of the
car used during the armed robbery. Id. In
Rimmer's Oldsmobile, police found a lease agreement for a
storage facility. Id. Rimmer had rented the storage
unit on May 7, 1998, just five days after the armed robbery
and murders. Id. After obtaining a search warrant,
police searched Rimmer's storage unit and found the
stereo equipment stolen from Audio Logic. Id. Both
Rimmer's and Parker's fingerprints were on the stolen
stereo equipment. Id. Surveillance footage showed
Rimmer renting the storage unit. Id.
PROSECUTION'S TRIAL EVIDENCE OF GUILT
27, 1998, Rimmer was indicted on eleven charges: two counts
of first degree murder for the deaths of Krause and Knight,
three counts of armed robbery, four counts of armed
kidnapping, one count of attempted armed robbery, and one
count of aggravated assault. In January 1999, Rimmer was
tried before a jury in the Circuit Court of Broward County,
Florida. Richard Garfield served as Rimmer's guilt phase
Eyewitnesses' Descriptions of the Shooter
jury heard at length about the events leading to the
identification of Rimmer as the shooter. After the crime took
place, the eyewitnesses first gave physical descriptions of
the shooter, all describing the shooter as a black male
wearing a baseball cap. Davis Burke, for example, described
the shooter as a black male, five feet and eight or nine
inches tall, weighing 175 pounds or less, and wearing a
baseball cap pulled down to his eyes. Similarly, Moore
described the shooter as a black male, five feet and seven,
eight, or nine inches tall, weighing around 150 or 160
pounds, and wearing a hat. Both Davis Burke and Moore
testified that the shooter was not wearing glasses.
also stated that the shooter was a black male wearing a
baseball cap pulled down almost to his nose, but Rosario
described the shooter as taller, between six feet and six
feet and two inches tall.
noted earlier, eyewitness Davis Burke met with Deputy John
McMahon, a police forensic artist, to help make a composite
sketch of the Audio Logic shooter. Rimmer I, 825
So.2d at 310.
artist Deputy McMahon testified that, when he creates a
composite sketch, he first shows the eyewitness a series of
random photographs, some in color and some in black and
white. According to Deputy McMahon, this allows the
eyewitness to select certain facial characteristics from the
random photographs so that McMahon can incorporate those
features into the composite sketch. Two days after the
murders, on May 4, 1998, McMahon went through this process
with eyewitness Davis Burke to create a composite sketch of
the Audio Logic shooter. Deputy McMahon later showed the
resulting sketch to eyewitness Moore, who told Deputy McMahon
that the sketch adequately resembled the shooter.
Use of the Composite Sketch to Identify Rimmer
between May 4 and May 8, 1998, the police faxed a copy of the
composite sketch to Audio Logic owner Dixon. Dixon in turn
faxed the composite drawing to Ercolano, who also had an
audio electronics shop. When Ercolano saw the composite
sketch, Ercolano believed that it resembled a man (later
identified as Rimmer) who had come into Ercolano's store
sometime before the Audio Logic murders. Ercolano testified
that this man (later identified as Rimmer) had complained
that his car audio system, which Audio Logic had installed,
was not working properly.
Ercolano saw the composite sketch and realized that it looked
like Rimmer, Ercolano contacted Dixon, Audio Logic's
owner. This prompted Dixon to review his customer records,
through which he learned that Rimmer came to Audio Logic in
December 1997 to have a car audio system installed.
his prior contact with Rimmer, Dixon testified that, during
the latter part of 1997, he met with Rimmer on three
occasions at a separate Audio Logic location in Davie,
Florida, where the two discussed installing an audio system
in Rimmer's Oldsmobile. Because the Davie store was too
busy, Dixon sent Rimmer to the Audio Logic location in Wilton
Manors to have the system installed. Wilton Manors was the
site of the robbery and murders. Rimmer I, 825 So.2d
the installation was complete, Rimmer came to see Dixon again
at the Davie store to complain about issues with the system.
Dixon worked on Rimmer's audio system at the Davie Audio
8, 1998, Wilton Manors Police Detective Anthony Lewis met
separately with eyewitnesses Moore and Davis Burke to show
them a photographic lineup, which included the pictures of
six black males. Detective Lewis first showed the lineup to
Moore, telling Moore that one of the men pictured in the
lineup might have committed the robbery and murders at Audio
Logic. Detective Lewis and Moore were the only people in the
room when Moore viewed the lineup. Moore picked Rimmer and
then initialed and dated the lineup document.
Lewis then separately showed Davis Burke a different, clean
copy of that same photographic lineup, telling Davis Burke
that one of the six men in the lineup might have committed
the murders at Audio Logic. Detective Lewis and Davis Burke
were the only people in the room when Davis Burke viewed the
lineup. From that lineup, Davis Burke "picked two
pictures that seemed to . . . resemble the person that [she]
thought committed the crime." Davis Burke picked photo
number six first but also said that the man pictured in photo
number three could be the person who committed the murders.
Davis Burke explained that she thought the individuals in
both of those photos resembled the man who shot Knight and
Krause. Davis Burke wrote her initials and the date by both
photo number three and photo number six.
Davis Burke selected photos three and six, Detective Lewis
told Davis Burke that Moore had picked photo number three,
which was a picture of Rimmer. Detective Lewis then took a
formal tape recorded statement from Davis Burke. In that
statement, Davis Burke explained that, after Detective Lewis
told her that Moore picked photo number three, she looked at
her two selections more closely and decided that photo number
three was her choice.
on May 8, 1998, Detective Lewis showed Dixon a different,
clean copy of the same photographic lineup that he had shown
to Moore and Davis Burke. Dixon identified Rimmer as the
person he had met with on various occasions at the Davie
Audio Logic store. Dixon then dated and initialed the photo.
Lewis also showed the photographic lineup to Rosario, but
Rosario was unable to identify the shooter from that lineup.
9, 1998, Detective Lewis sought and obtained a warrant for
Evidence Recovered During ...