# Diaz v. Secretary, DOC (Collier County)

> District Court, M.D. Florida · February 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10104523

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

YURI DIAZ,

Petitioner,

v. Case No.: 2:17-cv-102-FtM-38MRM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,

Respondents.
/
OPINION AND ORDER1
Pending is Petitioner Yuri Diaz’s pro se 28 U.S.C. § 2254 Petition for Habeas
Corpus constructively filed on February 10, 2017.2 (Doc. 1). Diaz, a Florida prisoner,
challenges his judgment of conviction entered by the Twentieth Judicial Circuit Court in
and for Collier County in case no. 12-000395-CFA. (Id. at 1). Respondent3 filed a
Response to the Petition. (Doc. 8). Respondent concedes that the Petition is timely but
submits that Diaz is not entitled to federal habeas relief. (Id.). Diaz filed a Reply. (Doc.
15).

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the
Court does not endorse, recommend, approve, or guarantee any third parties or the services or products
they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s
availability and functionality, and a failed hyperlink does not affect this Order.
2 Absent evidence to the contrary, the Court must apply the “mailbox rule” and considers a prisoner’s
pleading filed on the date that he signs, executes, and certifies that he delivered it to prison authorities for
mailing. Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999).
3 The Petition names both the Secretary of the Department of Corrections and the Florida Attorney General
as Respondents. (See Doc. 1 at 1). When a petitioner is incarcerated and challenges his present physical
confinement “the proper respondent is the warden of the facility where the prisoner is being held, not the
Attorney General or some other remote supervisory official.” Rumsfield v. Padilla, 542 U.S. 426, 435 (2004).
Here, the proper respondent is the Secretary of the Florida Department of Corrections. Id. The Florida
Attorney General thus will be dismissed from this action.
The Court having reviewed the record agrees that the Petition is timely and finds
that the pertinent facts are developed in the record. An evidentiary hearing is not
warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the
factual allegations in the petition or otherwise precludes habeas relief, a district court need

not hold an evidentiary hearing); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d
1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (June 12, 2017). Based
on a thorough review of the record and controlling precedent, the Court denies the
Petition.
I. Factual and Procedural Background
After a jury trial Diaz was found guilty of: (1) burglary of an unoccupied dwelling
unarmed in violation of Florida Statute Section 810.02(3)(b); and (2) grand theft in
violation of Florida Statute Section 812.014(2)c. (Ex. 3).4 The State submitted the
following testimony and evidence. On February 20, 2012, at 8:30 p.m., Mr. Swets was

returning to his home on 72nd Avenue in Collier County, Florida, when he noticed brake
lights at the vacant home located directing across the street from his home. Mr. Swets
had an unobstructed view and identified two vehicles: a small black car and a larger white
SUV, which he believed was an Explorer or Expedition. He heard voices but could not
make out any conversation, however he distinctly heard “what sounded like metal pipe”
being dropped on concrete. He watched the car leave first, followed five minutes later by
the white SUV. He saw the vehicles turn south toward Everglades. He saw two people
in the white SUV, a driver and passenger. Because he knew the house was vacant, he
called 911. The 911 call was introduced into evidence.

4 The Court will cite to the paper record filed by Respondent (Doc. 9 ) as “Ex. _.”
Corporal Weigan, who was patrolling near the area, was dispatched to look for a
white SUV. While traveling northbound on Everglades, he saw a white SUV heading
southbound near 58th Avenue and conducted a traffic stop at 52nd Avenue and
Everglades. Two individuals were in the SUV, Diaz being in the passenger seat. When

Weigan approached the SUV he saw a white stove in the cargo portion of the vehicle.
Corporal Long arrived approximately five minutes later, eventually he saw the stove in the
cargo area of the SUV and engaged Diaz in a conversation. Long’s conversation with
Diaz was recorded on the patrol car’s in car video camera. The video recording was
introduced into evidence and published for the jury. Diaz is heard stating that they came
from Miami and bought the stove “for like $200” and were travelling from Miami on I-75 to
Pine Ridge Boulevard to Diaz’s nephew’s house. Diaz confirmed to Long he purchased
the stove in Miami. Long told Diaz his story made little sense given their location and
statements they were heading to Pine Ridge. Long indicated on maps introduced into
evidence the location of the vacant home, the location of the traffic stop, Pine Ridge

Boulevard and I-75 leading from Miami. The traffic stop was located approximately 20-
25 minute drive from Pine Ridge.
An investigator with the Collier County Sheriff’s Office, Brian Clervoix also arrived
at the traffic stop and saw the stove in the cargo area. Clervoix then proceeded to the
residence and noticed the back sliding door was ajar. No stove was at the residence.
The home and stove were processed for fingerprints and forensic evidence by Kimberly
Costa. Costa obtained latent prints from the oven door and handle and they matched Mr.
Edward Yurel, the driver of the SUV, not Diaz. Pictures she took of the home, which were
admitted into evidence, depicted the screed door to the back lanai in an open position, a
fence gate in the backyard to the home in an open position, and the sliding door in the
rear of the home in an open position. A picture from the kitchen area was also admitted
into evidence that depicted a vacant spot where an appliance could belong. A picture of
the stove in the back of the white SUV was also admitted into evidence.

Mr. Hamm, the owner of the residence, testified he purchased the home in July
2004. He and his family lived in the home until December 2010. The home was vacant
and he last visited the home to do grass maintenance and check on it the first weekend
in February. A Kenmore glass top white stove was in the home. The stove was in good
condition and working when he moved out. Hamm could not recall what he paid for the
stove but is his opinion the stove was worth $400. Hamm identified the stove in the back
of the white SUV at the traffic stop as being his stove. Hamm still had the manual for the
stove with the model number. He noticed scratches on the stove and the bottom drawer
would not close. The stove did not have scratches or problems with the drawer when it
was in the home. He assisted the deputies taking the stove out of the car and it took

three to lift the stove out of the SUV and place it in the garage. Clervoix also testified that
due to its weight, it took three individuals to remove the stove from the SUV. Hamm did
not know Yucel or Diaz and gave no one permission to remove the stove. At the close of
the State’s case, Diaz moved for a judgment of acquittal based on Florida’s circumstantial
evidence rule. The trial court, after argument from the State, denied the motion.
Diaz filed a timely notice of appeal raising two issues:
(1) The trial court erred in denying the motion for judgment of acquittal where
circumstantial evidence was insufficient to support the conviction for burglary or an
unoccupied dwelling and grand theft.

(2) There was insufficient evidence to prove value and essential element of grand
theft.
(Ex. 5). Appellate counsel raised and argued both issues on appeal only in terms of state
law. (Id.). After Answer from the State (Ex. 6), Florida’s Second District Court of Appeal
(DCA) per curiam affirmed Diaz’s judgment and sentence. (Ex. 7). Diaz filed a state

petition for writ of habeas corpus claiming ineffective assistance of appellate counsel for
failing to cite to any federal law is support of his two grounds raised on direct appeal. (Ex.
9). The Second DCA denied the state petition. (Ex. 10). Relevant for timely purposes
only, Diaz additionally filed a Rule 3.850 motion and appealed the denial of his Rule
3.850 motion. (Ex. 11). After Answer from the State (Ex. 12), the Second District Court
of Appeal per curiam affirmed the denial. (Ex. 13).
The Petition raises two grounds (restated) for relief: (1) appellate counsel was
constitutionally ineffective for failing to federalize Petitioner’s claim on appeal that the
evidence was insufficient to support the conviction for burglary of an unoccupied dwelling
and grand theft; and (2) appellate counsel was constitutionally ineffective for failing to

establish insufficient evidence to prove the element of value for grand theft. ( Doc. 1 at
4, 8). In his reply, Diaz appears to raise a claim of actual innocence. See Doc. 15 at 9.
The Court recognizes it must address and resolve all claims for relief raised in a habeas
petition regardless of whether habeas relief is granted or denied. See Clisby v. Jones,
960 F.2d 925, 936 (11th Cir. 1992) (en banc); see also Gay v. United States, 816 F.2d
614, 616 n. 1 (11th Cir. 1987). However, arguments and claims raised for the first time
in a reply brief are not properly before the Court. See Herring v. Sec’y, Dep’t of Corr.,
397 F.3d 1338, 1342 (11th Cir. 2005). Further, any attempt to amend the Petition to
include this additional claim would now be time barred. The Court limits its Opinion and
Order to the two grounds raised in the Petition.
II. Applicable Habeas Law
A. AEDPA

The Antiterrorism Effective Death Penalty Act (“AEDPA”) governs a state
prisoner’s habeas petition for federal relief. 28 U.S.C. § 2254. Relief may not be granted
regarding a claim adjudicated on the merits in state court unless the adjudication of the
claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v.
Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s summary rejection of a claim,
even without explanation, qualifies as an adjudication on the merits which warrants
deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). A state court’s
violation of state law is not sufficient to show 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); Wilson v.
Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal principles set forth
in the decisions of the United States Supreme Court when the state court issued its
decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing
Williams v. Taylor, 529 U.S. 362, 412 (2000)). Habeas relief is appropriate only if the
state court decision was “contrary to, or an unreasonable application of,” that federal law.
28 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if the
state court either: (1) applied a rule that contradicts the governing law set forth by
Supreme Court case law; or (2) reached a different result from the Supreme Court when

faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.
2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application” of the Supreme
Court’s precedents if the state court correctly identifies the governing legal principle, but
applies it to the facts of the petitioner’s case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th
Cir. 2000), or “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Bottoson, 234
F.3d at 531 (quoting Williams, 529 U.S. at 406). “A state court’s determination that a

claim lacks merit precludes federal habeas relief so long as fair-minded jurists could
disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011). “[T]his standard is difficult to meet because it was meant to be.” Sexton
v. Beaudreaux, 585 U.S. ___, 138 S. Ct. 2555, 2558 (2018) (quoting Harrison, 562 U.S.
at 102, 131 S. Ct. at 786 (quotation marks omitted)).
Finally, when reviewing a claim under § 2254(d), a federal court must remember
that any “determination of a factual issue made by a State court shall be presumed to be
correct[,]” and the petitioner bears “the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10,
15 (2013) (“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”)
(quoting Wood v. Allen, 558 U.S. 290, 293 (2010)). See also Morrow v. Warden, 886
F.3d 1138, 1146 (11th Cir. 2018) (the court must presume that the State court’s

determination of a factual issue is correct, and petitioner must rebut presumption by clear
and convincing evidence).
B. Exhaustion and Procedural Default
AEDPA precludes federal courts, absent exceptional circumstances, from granting
habeas relief unless a petitioner has exhausted all means of relief available under state
law. Failure to exhaust occurs “when a petitioner has not fairly presented every issue
raised in his federal petition to the state’s highest court, either on direct appeal or on
collateral review.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir.

2012) (internal quotation marks and brackets omitted). The petitioner must apprise the
state court of the federal constitutional issue, not just the underlying facts of the claim or
a similar state law claim. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).
Respondent appears to concede Petitioner exhausted both grounds. (See Doc. 8 at 16-
17). As more fully set forth infra, the Court agrees Petitioner exhausted his claims before
the Court.
C. Ineffective Assistance of Appellate Counsel
In Strickland v. Washington, the Supreme Court established a two-part test for
determining whether a convicted person may have relief claiming his counsel rendered
ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that

counsel’s performance was deficient and fell below an objective standard of
reasonableness and that the deficient performance prejudiced the defense. Id. This is a
“doubly deferential” standard of review that gives both the state court and the petitioner’s
attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131
S. Ct. 1388, 1403 (2011)). The Strickland standard applies to claims of ineffective

assistance of appellate counsel. Corales-Carranza v. Sec’y, Fla. Dep’t of Corr., 786
F. App’x 053, 957 (11th Cir. 2019); Smith v. Robbins, 528 U.S. 259, 285 (2000).
Appellate counsel need not raise every nonfrivolous claim on appeal. See Jones v.
Barnes, 463 U.S. 745 (1983); see also Eagle v. Linahan, 279 F.3d 926, 940 (11th Cir.
2001)( “[T]he Sixth Amendment does not require appellate attorneys to press every
non-frivolous issue that the client requests to be raised on appeal, provided that
counsel uses professional judgment in deciding not to raise those issues.” (citations

omitted)). The Jones Court underscored the importance of sorting out weaker
arguments for stronger ones.
Most cases present only one, two, or three significant questions . . . .
Usually, . . . if you cannot win on a few major points, the others are not
likely to help, and to attempt to deal with a great many in the limited
number of pages allowed for briefs will mean that none may receive
adequate attention. The effect of adding weaker arguments will be to
dilute the force of the stronger ones.

Jones v. Barnes, 463 U.S. at 752 (citations omitted).
The Court recognized it is possible to bring a Strickland claim based on
appellate counsel's failure to raise a particular claim, but demonstrating incompetence
is difficult. Robbins, 528 U.S. at 288. “‘Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance of
counsel be overcome.’” Id. (citation omitted). To demonstrate prejudice, the petitioner
must demonstrate a reasonable probability that, but for his counsel's failure to brief
the particular issue, petitioner would have prevailed on the issue on appeal. Id. at
285. If petitioner demonstrates that the omitted claim would have had a reasonable

probability of success on appeal, then appellate counsel's performance resulted in
prejudice. Heath v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991).
III. Analysis
A. Ground One: Appellate counsel was constitutionally ineffective for
failing to federalize Petitioner’s claim on direct appeal that the trial
court erred in denying defendant’s motion for judgment of
acquittal, i.e. evidence was insufficient to support the conviction
for burglary of an unoccupied dwelling and grand theft.

As noted in the procedural history set forth above, on direct appeal, counsel
assigned error to the trial court for denying defendant’s motion for judgment of acquittal
because insufficient circumstantial evidence supported a conviction for burglary of an
occupied dwelling and grand theft under Florida law. Both Diaz and the State in response
cited only to Florida law to support their respective arguments. The Second DCA affirmed
Diaz’s conviction and sentence. Diaz then filed a state habeas petition claiming appellate
counsel was ineffectiveness for failing to federalize this claim, which the Second DCA
denied without opinion.
The Court finds Petitioner exhausted the two grounds alleging ineffectiveness of
appellate counsel by raising them in his State habeas petition. (Doc. 9). The record
reflects the Second DCA denied the petition without opinion or response by the State on
May 8, 2015 (Doc. 10). The Second DCA’s silent denial constitutes an “adjudication” for
purposes of § 2254. Harrington, 562 U.S. 98-99. Thus, the decision is entitled to
deference under § 2254(d) because “the summary nature of a state court’s decision does
not lessen the deference that is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.
2002); see also Richter, 562 U.S. at 99.
Diaz asserts appellate counsel should have federalized his ground on direct appeal
because the trial court’s denial of his motion for acquittal based on insufficiency of the

evidence was contrary to Jackson v. Virginia, 443 U.S. 307 (1979) and violated his Fifth
and Fourteenth Amendment rights. (Doc. 1at 7). In response, Respondent argues that
the Florida courts apply the same standard so federalizing his claim would not have
resulted in a different outcome. (Doc. 8 at 11-12). Contrary to Respondent’s
understanding, in a circumstantial evidence case, the “Florida rule and the federal rule
are significantly different.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F. 3d 449, 463 (11th
Cir. 2015).
Based upon a thorough review of the State record, however, Diaz has not
demonstrated he is entitled to federal habeas relief. When reviewing a claim for
sufficiency of the evidence on federal habeas review, this Court must view the evidence

in the light most favorable to the prosecution and determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson, 443 U.S. at 319 (“The [only] relevant question is whether after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.”). Under Jackson, federal courts look to state law for the substantive elements
of the offense. Coleman v. Johnson, 566 U.S. 650 (2010). Thus, unlike Florida’s
heightened burden of proof in a circumstantial case, the federal sufficiency of the
evidence standard in Jackson does not require that cases turning on circumstantial
evidence exclude every reasonable hypothesis of innocence. Jackson, 443 U.S. at 324;
see also Preston v. Sec’y, Fla. Dep’t of Corr., 785 F. 3d 449, 463 (11th Cir. 2015) (the
prosecution does not have a “an affirmative duty to rule out every hypothesis of guilt
except that of guilt beyond a reasonable doubt”) (citations omitted). Although Florida

courts apply the Jackson standard to resolve regular sufficiency claims, see e.g. Pagan
v. Florida, 830 So. 2d 792, 803 (Fla. 2002), Florida applies a “special standard of review
of the sufficiency of the evidence” where “the only proof of guilt is circumstantial, no matter
how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the
evidence is inconsistent with any reasonable hypothesis of guilt.” Thorp v. State, 777 So.
2d 385, 389 (Fla. 2000) (citations and internal quotations omitted); see also State v. Law,
559 So. 2d 187, 188 (Fla. 1989)(motion for acquittal should be granted in circumstantial
evidence case if the State fails to present evidence from which jury can exclude every
reasonable hypothesis except that of guilt).
Unlike on direct appeal, in his state habeas petition, Diaz specifically cited to

Jackson to support both grounds for relief. Thus, the Court must assume the Second
DCA rejected his claim based on federal law. “Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial deference.”
Coleman, 566 U.S. at 651. First, on direct appeal the Court defers to the jury to decide
what conclusions should be drawn from the evidence. Ibid. Second, on federal habeas
review, the Court may not overturn a state court decision that rejected sufficiency of the
evidence claims simply because the Court may disagree with the state court. Ibid.
Instead, this Court may grant federal habeas relief only if the state court decision was
“objectively unreasonable.” Ibid. (citations omitted).
The Court finds that Diaz cannot overcome the first Strickland standard—
deficiency. Arguably appellate counsel raised Diaz’ claims under Florida’s circumstantial
rule because it was more favorable to Diaz and required the State to demonstrate a higher
burden—eliminate every reasonable hypothesis of innocence.

Alternatively, Diaz cannot show he was prejudiced by appellate counsel’s failure
to federalize his claims for relief on direct appeal because Diaz cannot show no rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Florida law defines burglary as “[e]ntering a dwelling, structure, or a conveyance
with the intent to commit an offense therein, unless the premises are at the time open to
the public or the defendant is licensed or invited to enter.” Fla. Stat. § 810.02(1)(b).
Burglary constitutes a second degree felony when the defendant enters an unoccupied
dwelling. Id. § 810.02(3)(b).
Diaz appears to suggest that the State produced no evidence of his guilt other than
he was an innocent passenger in the white SUV. The State introduced the following

unrebutted evidence: when the vacant home was examined by investigator they found
the rear fence door, lanai door and rear sliding door to the vacant home open; an
appliance was missing from the kitchen of the vacant home; the owner of the property did
not permit Diaz or anyone to enter or remove anything from his vacant home; the owner
of the vacant home testified that the stove was worth $400; a white SUV with two
occupants was seen in front of the vacant home and a sound like a metal pipe dropping
was heard; a white SUV matching the description was stopped within proximity of the
vacant home; there were two occupants in the SUV, the driver and Diaz as the passenger;
Diaz admitted to Officer Long he had purchased the stove in Miami which demonstrated
he had possession of stolen property; pictures of the oven in the back of the SUV showing
it laying on its side; the owner of the vacant home identified the stove in the SUV as his
property and the stove matched the model number of the manual he owned; testimony it
took three men to unload the stove from the back of the SUV. Analyzing whether the

evidence was sufficient under the Due Process Clause does not require the state to “rule
out” every possible hypothesis of innocence—and “[w]hen the record reflects facts that
support conflicting inferences, there is a presumption that the jury resolved those conflicts
in favor of the prosecution and against the defendant.” Johnson v. Alabama, 256 F.3d
1156, 1172 (11th Cir. 2001) (citing Jackson, 443 U.S. at 326). Because of this evidence,
the state court concluded that a rational trier of fact could have found beyond a reasonable
doubt that Diaz committed the offense of burglary of an unoccupied dwelling and grand
theft. Thus, the Court finds that Diaz cannot meet the prejudice prong of Strickland had
appellate counsel federalized his grounds on direct appeal.
The Court finds that Diaz has not demonstrated that the state court's adjudication

of this claim is contrary to or an unreasonable application of the Strickland two-part test.
Diaz is not entitled to federal habeas relief on Ground One.
B. Ground Two: Appellate counsel was constitutionally ineffective for
failing to federalize Petitioner’s claim on direct appeal that there
was insufficient evidence to prove “value,” an essential element of
the crime of grand theft.

Petitioner argues the State failed to present sufficient evidence as to the value of
the stove to prove grand theft and appellate counsel was ineffective for failing to federalize
his claim there was insufficient evidence submitted by the State to prove “value.” Doc.
1 at 8. Petitioner exhausted this claim and the Second DCA’s summary affirmance is an
adjudication on the merits entitled to deference under 28 U.S.C. § 2254(d). Richter, 562
U.S. at 99.
Under Jackson, federal courts must look to state law for the substantive
elements of the offense, but to federal law for determining whether the evidence was

sufficient under the Due Process Clause. Coleman, 566 U.S. 650 (2012). In Florida,
a conviction for third degree felony grand theft requires the State to prove beyond a
reasonable doubt that the defendant stole property valued at $300 or more, but less
than $5,000. Fla. Stat. § 812.014(2)(c) 1 (2011). “Value means the market value of
the property at the time and place of the offense or, if such cannot be satisfactorily
ascertained, the cost of replacement of the property within a reasonable time after the

offense.” Fla. Stat. § 812.012(10)(a) 1 (2001). “Value may be established by direct
testimony of fair market value . . . .” Smith v. State, 955 So. 2d 1227, 1228 (Fla. 5th
DCA 2007); Pickett v. State, 839 So. 2d 860, 861 (Fla. 2d DCA 2003). Under Florida
law, “one’s competency to testify as to the value of stolen property is not so much a
question of whether he owns the stolen property as it is a question of his personal
knowledge of the property.” Taylor v. State, 425 So. 2d 1191, 1193 (Fla. 1st DCA
1983) (citation omitted). “[A]n owner is generally presumed as competent to testify to

the value of his stolen property.” Id. “The apparent rationale for this rule is that an
owner necessarily knows something about the quality, cost, and condition of his
property.” Id. However, the owner “must be shown to have personal knowledge of
the property.” Id.
Mr. Hamm testified he owned the stove and testified that the stove was worth
$400.00 when it was taken. Mr. Hamm had “personal knowledge of the property”
because he still had the manual for the stove with the model number, and he
specifically recalled it was in the home when he last inspected the home during the
first week of February. He further testified it was working when he moved out of the

home in 2010.
Under Florida law, Mr. Hamm, as the owner of the stove, was competent to
testify as to the value of the stove, and his testimony regarding the value of the stove
alone established that the total value of the stolen property exceeded
$300.00. See Pickett v. State, 839 So. 2d 860, 861 (Fla. 2d DCA 2003) (to establish
theft, “[v]alue may be established by direct testimony of fair market value . . . .”)
(citation omitted).

Based on the trial court's findings and the evidence, fair-minded jurists can concur
in the state court's determination that, viewing the evidence in the light most favorable to
the State, a rational juror could conclude beyond a reasonable doubt that the value of the
stove was over $300 when Diaz stole it. Because the State sufficiently proved that the
value of the stolen stove was over $300, the Second DCA’s rejection of this claim was
not contrary to and did not involve an unreasonable application of the Jackson standard.
Nor was the decision based on an unreasonable determination of the facts. Petitioner
cannot meet either prong of Strickland to demonstrate appellate counsel was ineffective
for failing to federalize his regarding the value of the property. Thus, the Court finds

Petitioner is not entitled to federal habeas relief on Ground Two.
DENIAL OF CERTIFICATE OF APPEALABLITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal
a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a certificate of appealability (COA). “A [COA] may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).. To make such a showing, a petitioner must demonstrate that “reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller—El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(citations omitted). Petitioner has not made the requisite showing here and may not have
a certificate of appealability on either ground of his Petition.
Accordingly, it is hereby ORDERED:
1. The Florida Attorney General is DISMISSED as a named Respondent.
2. Petitioner's Writ of Habeas Corpus (Doc. 1) is DENIED.
3. Petitioner is DENIED a certificate of appealability.
4. The Clerk of Court will moot any pending motions, enter judgment and
close this case.
DONE and ORDERED in Fort Myers, Florida this 11th day of February, 2020.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1
Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104523. Public record. Not legal advice.