Hello, this is Jeff Barnum reading the Supreme Court decision in Gary Richard Witten versus Ricky D. Dixon, Secretary, Florida Department of Corrections, on petition for rid as orcherory to the United States Court of Appeals for the Eleventh Circuit. Decided June 1, 2026. Percurium. A Florida jury convicted petitioner Gary Richard Witten of murder and sentenced him to death. During his trial, the state called several witnesses, including a jailhouse informant named Jake Ozio. Ozio was a high school student who, on a spring break trip in Florida, was arrested and jailed for burglary and possession of a short-barreled shotgun. Ozio testified that while he was incarcerated with Witten, he overheard Witten confess to stabbing the bastard. Ozio also testified that he had no criminal history prior to his spring break arrest. That last piece of testimony turned out to be false. Ozio's juvenile records, which the state had in its possession at the time, showed that he had previously been charged with assault with bodily injury against his father, terroristic threats against his mother, and at least one other burglary. After unsuccessfully pursuing a direct appeal and state post-conviction relief, Witten filed an appeal for a writ of habeas corpus in federal district court. Among other claims, he argued that Ozio's criminal history testimony was false, that the prosecution knew the testimony was false, and that there was a reasonable likelihood that the testimony affected the jury's verdict. Witten claimed that as a result, his due process rights had been violated under this court's decision in Gilio v. United States, 405 U.S. 150, a Supreme Court case from 1972. And he contended, as was additionally necessary for federal habeas relief, that the Gilio error had a substantial and injurious effect or influence in determining the jury's verdict. The district court denied relief, finding that any Gilio error could not have made a difference to the jury's verdict, because Florida juvenile criminal records are generally inadmissible to attack a witness's credibility. The Court of Appeals for the Eleventh Circuit affirmed, but on different reasoning. The court agreed with Witten that Ozio's criminal history testimony was false, and that the state knew it to be false. Moreover, the court disagreed with the District Court's conclusion that any Gilio violation was harmless because of Florida evidence rules about juvenile records. That conclusion, the Court of Appeals explained, was erroneous, because Florida courts admit such records when a witness opens the door to prior convictions, including by stating that he has none. An impeachment concerning Ozio's juvenile record, the Court of Appeals concluded, would have undermined Ozio's credibility, so the court could not affirm the District Court's decision on its finding of harmless error. The Court of Appeals then considered whether to affirm on another basis advanced by the state, that Witten was not prejudiced by any Gilio error because Ozio's testimony as a whole, not just the false part, was immaterial to the jury's verdict. The court explained that the Florida Supreme Court had made a determination relevant to that issue during Witten's state post-conviction proceedings. There, the Florida Supreme Court had stated that, even without Ozio's testimony, the evidence against Witten was overwhelming. Under the Anti-Terrorism and Effective Death Penalty Act of 1996, the Court of Appeals owed deference to that state court determination unless it was based on an unreasonable determination of the facts in light of the evidence presented. That meant the key question for the Court of Appeals was whether the Florida Supreme Court's determination about the rest of the evidence was a reasonable one. To answer that question, the Court of Appeals did something peculiar. It considered not only the evidence that was presented to the jury at Witten's trial, but also evidence the jury never saw. The evidence in question relates to blood stains on Witten's boots, which were seized the day after the murder. At Witten's trial, an analyst from the Florida Department of Law Enforcement testified that the DNA in the bloodstains matched neither the victim's nor Witten's. A decade after Whitten was convicted, however, the state ran another DNA test on the blood stains, and this time the results revealed a match with the victim's DNA. Even though that new DNA evidence was not presented at Witten's trial, the Court of Appeals took account of it when analyzing the Florida Supreme Court's determination. In describing the evidence that supported that determination, the Court of Appeals related that Witten's boots were stained with blood that, after later retesting, matched the victim's DNA. And in rebutting Witten's arguments, some of which it thought a jury may well find persuasive, the court again commented on the new DNA evidence. Specifically, it observed that after retesting the DNA on Witten's boots, the state confirmed that the inside of Witten's right boot contained blood with DNA matching the DNA profile of the victim. In short, the court said the blood splatter evidence ties Witten directly and firmly to the victim's murder. After considering that post-trial DNA evidence, in addition to the trial evidence, the Court of Appeals held that it was not unreasonable for the state court to conclude that even without any of Ozio's testimony, there was overwhelming evidence against Witten. And so the Court of Appeals affirmed the denial of habeas relief. We vacate the Court of Appeals judgment because that court should not have considered the post-trial DNA evidence in assessing whether the Florida Supreme Court reasonably determined that Ozio'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, that evidence could not have influenced the jury's verdict. It therefore sheds no light on whether, or to what extent, Ozio's testimony influenced that verdict. The Florida Supreme Court did not consider the post-trial DNA evidence in making its determination, and the Court of Appeals should not have done so in evaluating that determination either. We express no view on whether the Florida Supreme Court's determination was reasonable in light of the evidence that was presented at trial, that is, for the Court of Appeals to assess in the first instance. We likewise express no view on the state's argument that Witten failed to exhaust his Gilio claim in the state courts. The Court of Appeals did not address that argument because it concluded the claim fails on the merits. And we are a court of review, not of first view. The Court of Appeals is, of course, free to address that argument on remand. We therefore grant the petition for writ of Sir Shirore, vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Thomas filed a dissenting opinion, which Justice Salito joined, except for part 3b. Thank you for listening. Please help us by rating and reviewing this podcast, wherever you get your podcasts, forward it to people that you know that may find it interesting, and please make sure you subscribe so you get all of the OT twenty five decisions delivered to your device. 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