by Douglas Ankney

In a per curiam opinion, the Supreme Court of the United States vacated the judgment of the U.S. Court of Appeals for the Eleventh Circuit affirming the denial of federal habeas relief to Florida death row prisoner Gary Richard Whitton, holding that the Court of Appeals should not have considered DNA test results generated years after trial when it evaluated whether the Florida Supreme Court reasonably determined that a jailhouse informant’s testimony was immaterial to the jury’s verdict. Because the post-trial DNA evidence “was not presented to the jury (indeed, did not exist at the time of the trial),” the Court reasoned that evidence “could not have influenced the jury’s verdict” and “therefore sheds no light on whether (or to what extent)” the informant’s testimony influenced it.

Background

A Florida jury convicted Whitton of murder, and he was sentenced to death. The State’s trial witnesses included Jake Ozio, a jailhouse informant. Ozio was a high school student who had been arrested during a spring-break trip to Florida for burglary and possession of a short-barreled shotgun. He testified that, while jailed with Whitton, he overheard Whitton confess to “stabb[ing] the bastard.” Ozio also told the jury that he had no criminal history before the spring-break arrest. That testimony was false. Juvenile records in the State’s possession at the time showed that Ozio had previously been charged with “assault with bodily injury against his father, terroristic threats against his mother, and at least one other burglary.”

Blood evidence was presented at trial. Police seized Whitton’s boots the day after the murder; they were stained with blood. An analyst from the Florida Department of Law Enforcement testified that the DNA in the stains matched neither Whitton nor the victim. A decade after the conviction, the State retested the stains, and the new results showed a match to the victim’s DNA.

Whitton’s direct appeal and state postconviction proceedings were unsuccessful. In rejecting postconviction relief, the Florida Supreme Court stated that the evidence against Whitton was “overwhelming” even without Ozio’s testimony.

Federal habeas proceedings followed. Whitton argued, among other claims, that Ozio’s criminal-history testimony was false, that the prosecution knew of the falsity, and that a reasonable likelihood existed that the false testimony affected the verdict, violating due process under Giglio v. United States, 405 U.S. 150 (1972). As federal habeas relief also requires, he contended that the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619 (1993). The U.S. District Court for the Northern District of Florida denied relief on the ground that any Giglio error “could not have made a difference” because Florida juvenile records are generally inadmissible to attack a witness’ credibility.

The Court of Appeals affirmed on different reasoning. It agreed that Ozio’s criminal-history testimony was false and that the State knew it. The Court of Appeals deemed the District Court’s harmlessness rationale “erroneous” because Florida courts admit juvenile records when a witness opens the door to prior convictions, which includes denying that any exist, and it concluded that impeachment with Ozio’s record “would have undermined [Ozio’s] credibility.”

The Court of Appeals affirmed on an alternative argument advanced by the State, viz., that Ozio’s testimony as a whole was immaterial to the verdict. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court of Appeals owed deference to the Florida Supreme Court’s “overwhelming” evidence determination unless it was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). In finding that determination reasonable, the Court of Appeals twice invoked the post-trial retest. It recounted that Whitton’s boots “were stained with blood that, after later retesting, matched [the victim]’s DNA,” and it returned to the retest results when rejecting Whitton’s counterarguments, some of which it believed a jury “may well find … persuasive,” before declaring that “the blood-splatter evidence ties Whitton directly and firmly to [the victim]’s murder.”

Analysis

The Court began its analysis by observing that a Giglio claim requires proof of three elements: (1) the prosecution presented false testimony, (2) the prosecution knew the testimony was false, and (3) a “reasonable likelihood” exists that the falsehood affected the jury’s verdict. Giglio.

Establishing a constitutional violation is only the first step on federal collateral review, the Court noted. Brecht imposes an additional prejudice requirement, under which habeas relief is available only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” AEDPA supplies a further layer of deference when a state court has already passed on the relevant question. Because the Florida Supreme Court had determined that the trial evidence was overwhelming apart from Ozio’s testimony, the Court of Appeals could set that determination aside only if it rested on an unreasonable determination of the facts in light of the evidence presented, according to the Court. The dispositive question before the Court of Appeals was therefore whether the Florida Supreme Court reasonably assessed the remaining evidence.

The Court characterized the Court of Appeals’ next move as “peculiar.” It measured the state court’s determination against a record that included the later retest results, evidence no juror ever saw and that did not exist when the jury deliberated.

The Court explained that Brecht itself provides the basis for correcting the Court of Appeals’ error. Prejudice review asks whether the constitutional error influenced the verdict the jury actually returned, and the Court quoted Brecht’s standard while stating precisely that verdict-centered language. Evidence the jury never received could not have influenced its decision, so such evidence reveals nothing about whether, or how much, Ozio’s testimony swayed the jurors, the Court reasoned. The retest results were simply irrelevant to the inquiry the Court of Appeals was obligated to conduct, according to the Court.

A second line of reasoning focused on AEDPA deference. The Florida Supreme Court did not consult the retest results when it described the trial evidence as overwhelming. The Court explained that a federal court reviewing the reasonableness of that determination must evaluate it on the same record, so the Court of Appeals “should not have done so in evaluating that determination either.”

The Court was explicit about what it did not decide, declaring that it expressed no view on whether the Florida Supreme Court’s determination was reasonable in light of the evidence actually presented at trial. It left that question “for the Court of Appeals to assess in the first instance.” Nor did it address the State’s contention that Whitton failed to exhaust his Giglio claim in state court. The Court of Appeals had bypassed exhaustion after concluding that the claim failed on the merits. Thus, the Court, describing itself as “a court of review, not of first view,” declined to reach the issue. Cutter v. Wilkinson, 544 U.S. 709 (2005). The Court of Appeals remains free to address exhaustion on remand, the Court instructed.

Conclusion

Accordingly, the Court granted the petition for writ of certiorari, vacated the judgment of the Court of Appeals, and remanded for further proceedings consistent with its opinion. See: Whitton v. Dixon, 146 S. Ct. 1368 (2026) (per curiam).  

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