Opinion

Meizlik v. State of Florida

Court: District Court, M.D. Florida
Filed: Apr 8, 2020
Cited by: 0 cases
Authority: More cited than 19.7%

“This Court has repeatedly held defects in state collateral proceedings do not provide a basis for habeas relief.”

How later courts described this case

“This Court has repeatedly held defects in state collateral proceedings do not provide a basis for habeas relief.”
stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
“The judge conducting voir dire need not be the one before whom the case is tried. The presence of a judge, not any particular judge, is what is required.”
Expert testimony presented by prosecution, that alleged victim exhibited symptoms consistent with those of child suffering from child abuse accommodation syndrome, was not admissible

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROBERT J. MEIZLIK,

Petitioner,

v. Case No. 3:17-cv-1064-J-34MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Robert Meizlik, an inmate of the Florida penal system, initiated this

action on September 5, 2017,1 by filing a Petition for Writ of Habeas Corpus under 28

U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Meizlik challenges a 2007 state court (St.

John’s County, Florida) judgment of conviction for two counts of sexual activity with a

child while in familial or custodial authority and one count of lewd or lascivious conduct.

Meizlik raises four grounds for relief. See Petition at 7-16.2 Respondents have submitted

a memorandum in opposition to the Petition. See Response to Order to Show Cause

(Response; Doc. 5) with exhibits (Resp. Ex.).3 Meizlik filed a brief in reply. See Petitioner’s

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

3 The transcripts from the trial and other relevant hearings are included in Exhibit

A, the record on direct appeal, of Respondents’ Response but have different pagination

than the rest of the record on appeal. Accordingly, the Court will refer to the transcripts

as Tr.

Response to the State’s Reply of Order to Show Cause (Reply; Doc. 9). This case is ripe

for review.

II. Relevant Procedural History

On January 3, 2007, the State of Florida (State) charged Meizlik by way of

Amended Information with two counts of sexual activity with a child while in familial or

custodial authority (counts one and two) and one count of lewd or lascivious conduct

(count three). Resp. Ex. A at 60. At the conclusion of a trial, a jury found Meizlik guilty as

charged as to each count. Id. at 96-98. The circuit court sentenced Meizlik to a term of

life imprisonment as to counts one and two and 112.5 months in prison as to count three.

Id. at 102-11. The circuit court ordered the sentences for counts two and three to run

concurrently with the sentence imposed on count one. Id. at 102, 108.

Meizlik appealed his convictions and sentences to Florida’s Fifth District Court of

Appeal (Fifth DCA). Id. at 114. Prior to filing his initial brief, Meizlik, through counsel, filed

a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure

3.800(b)(2) (Rule 3.800(b)(2) Motion), in which he argued the court erred in imposing

court costs and fees. Id. at 258-60. The circuit court granted the motion. Id. at 298-300.

Meizlik, with the assistance of counsel, filed another Rule 3.800(b)(2) Motion (Second

Rule 3.800(b)(2) Motion), requesting that the circuit court issue an amended court costs

order. Id. at 301-02. The circuit court granted this motion as well. Id. at 307. On November

21, 2007, the circuit court entered a corrected judgment to reflect the appropriate court

costs and fees. Id. at 335-41. That same day, Meizlik filed a second amended motion to

correct sentencing error pursuant to Rule 3.800(b)(2) (Amended Second Rule 3.800(b)(2)

Motion), in which he realleged the claims raised in the Second Rule 3.800(b)(2) Motion

and also argued that he should be resentenced as to count three because of an incorrect

scoresheet. Id. at 308-10. Following a hearing on December 21, 2007, the circuit court

granted the Amended Second Rule 3.800(b)(2) Motion and resentenced Meizlik pursuant

to a corrected scoresheet to the same sentence previously imposed. Id. at 346-53, 365-

71.

During the pendency of Meizlik’s direct appeal, the Florida Department of

Corrections sent a letter to the State Attorney’s Office stating that Meizlik met the criteria

to be designated as a sexual predator, but that it never received a copy of written findings

from the circuit court designating him as such. Id. at 358. The State then moved to declare

Meizlik a sexual predator. Id. at 359. On January 21, 2008, the circuit court granted the

motion and designated him as a sexual predator. Id.

Meizlik’s appellate counsel ultimately filed the initial brief on March 17, 2008. Resp.

Ex. B. Meizlik argued that the circuit court erred: (1) in denying his motion for mistrial;

and (2) by granting the State’s motion to submit similar fact evidence at trial. Id. The State

filed an answer brief, Resp. Ex. C, and Meizlik filed a reply brief. Resp. Ex. D. On March

3, 2009, the Fifth DCA per curiam affirmed Meizlik’s convictions and sentences without a

written opinion. Resp. Ex. E. Meizlik moved for rehearing, Resp. Ex. F, which the Fifth

DCA denied on April 22, 2009. Resp. Ex. G. On July 21, 2009, Meizlik filed a petition for

writ of certiorari with the United States Supreme Court. Resp. Ex. I. The Supreme Court

denied the petition on October 5, 2009. Resp. Ex. J. Meizlik moved for rehearing, which

the Supreme Court denied on December 14, 2009. Doc. 1-1.

On June 1, 2010, Meizlik filed a pro se motion for postconviction relief pursuant to

Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. K at 1-35.4 In

the Rule 3.850 Motion, Meizlik alleged that his counsel was ineffective for failing to: (1)

conduct an adequate pre-trial investigation; (2) call five witnesses; (3) ensure he was

arraigned on the amended Information and failing to inform him of two plea offers; (4) call

an expert witness; (5) object to similar fact evidence; and (6) move for a mistrial. Id. at 1-

32. Meizlik also raised a claim that the cumulative impact of counsel’s errors prejudiced

him. Id. at 32-34. On October 18, 2011, the circuit court denied grounds three, five, and

six, and set an evidentiary hearing to address grounds one, two and four. Id. at 64-70.

Following the evidentiary hearing, the circuit court denied relief on the remaining grounds.

Id. at 317-26. On July 18, 2017, the Fifth DCA per curiam affirmed the denial of the Rule

3.850 Motion without a written opinion, Resp. Ex. O, and issued the Mandate on August

11, 2017. Resp. Ex. P.

On November 21, 2011, Meizlik filed a pro se petition for writ of habeas corpus

with the circuit court, in which he alleged the trial judge was absent during voir dire and,

alternatively, his appellate counsel was ineffective for failing to raise this claim on direct

appeal. Resp. Ex. Q at 9-13. On February 22, 2012, the circuit court denied the petition.

Id. at 15-18. Meizlik moved for rehearing, which the circuit court also denied. Id. at 150.

On January 29, 2013, the Fifth DCA per curiam affirmed the denial without a written

opinion. Resp. Ex. U. Meizlik filed a motion for rehearing. Resp. Ex. V. The Fifth DCA

4 Exhibit K is the entirety of the record on appeal of the Rule 3.850 proceedings.

The Court will cite to the page number assigned for the record on appeal located at the

bottom of each page of the exhibit.

denied the motion for rehearing on February 28, 2013. See Meizlik v. State, 144 So. 3d

555 (Fla. 5th DCA 2013).

On July 17, 2012, Meizlik filed a petition for writ of habeas corpus with the Fifth

DCA alleging appellate counsel was ineffective for failing to raise on direct appeal the

issue of whether the trial judge erred by being absent during voir dire. Resp. Ex. X. The

State filed a motion to dismiss the petition. Resp. Ex. Y. The Fifth DCA granted the motion

to dismiss on March 25, 2013. Resp. Ex. AA. Meizlik filed a motion for rehearing, Resp.

Ex. BB, which the Fifth DCA denied on May 2, 2013. Resp. Ex. CC.

III. One-Year Limitations Period

This proceeding was timely filed within the one-year limitations period. See 28

U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the

need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d

1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a

federal court must consider whether such a hearing could enable an applicant to prove

the petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t

of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).

“It follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary hearing.”

Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record

before the Court. Because the Court can “adequately assess [Meizlik’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an

evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a

state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.

Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137

S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38

(2011) (quotation marks omitted)). As such, federal habeas review of final state court

decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,

662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court decision,

if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,

828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion

explaining its rationale in order for the state court’s decision to qualify as an adjudication

on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United States

Supreme Court has instructed:

[T]he federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by

showing that the higher state court’s adjudication most likely relied on different grounds

than the lower state court’s reasoned decision, such as persuasive alternative grounds

that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at

1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation

of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited

scope of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for claims of

state courts’ erroneous legal conclusions. As explained by the

Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two

distinct clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows for relief

only “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” Id. at

413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable

application” clause allows for relief only “if the state court

identifies the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for claims of

state courts’ erroneous factual determinations. Section

2254(d)(2) allows federal courts to grant relief only if the state

court’s denial of the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1), which

imposes a burden on the petitioner to rebut the state court’s

factual findings “by clear and convincing evidence.” See Burt

v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348

(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.

2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual determination is

not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first

instance.’”[5] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175

L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298

(2017). Also, deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an examination

of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013). “Federal courts may grant habeas relief only when a state court blundered in a

manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in

justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834

F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a

“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be evaluated under

28 U.S.C. § 2254(d).

5 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §

2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th

Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254 habeas

action in federal court, a petitioner must exhaust all state court remedies that are available

for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state

remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to

the state’s highest court, either on direct appeal or on collateral review. Castille v.

Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

“state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28 U.S.C. §

2254(b)(1), thereby giving the State the “‘“opportunity to pass

upon and correct” alleged violations of its prisoners’ federal

rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,

130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438

(1971)). To provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.

887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.

1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies results in a

procedural default which raises a potential bar to federal habeas review. The United

States Supreme Court has explained the doctrine of procedural default as follows:

Federal habeas courts reviewing the constitutionality of a

state prisoner’s conviction and sentence are guided by rules

designed to ensure that state-court judgments are accorded

the finality and respect necessary to preserve the integrity of

legal proceedings within our system of federalism. These

rules include the doctrine of procedural default, under which a

federal court will not review the merits of claims, including

constitutional claims, that a state court declined to hear

because the prisoner failed to abide by a state procedural rule.

See, e.g., Coleman,[6] supra, at 747–748, 111 S. Ct. 2546;

Sykes,[7] supra, at 84–85, 97 S. Ct. 2497. A state court’s

invocation of a procedural rule to deny a prisoner’s claims

precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal ground

adequate to support the judgment and the rule is firmly

established and consistently followed. See, e.g., Walker v.

Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179

L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.

612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman, 501

U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been procedurally

defaulted, a federal court may still consider the claim if a state habeas petitioner can show

either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage

of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to

establish cause,

the procedural default “must result from some objective factor

external to the defense that prevented [him] from raising the

claim and which cannot be fairly attributable to his own

conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[8]

Under the prejudice prong, [a petitioner] must show that “the

6 Coleman v. Thompson, 501 U.S. 722 (1991).

7 Wainwright v. Sykes, 433 U.S. 72 (1977).

8 Murray v. Carrier, 477 U.S. 478 (1986).

errors at trial actually and substantially disadvantaged his

defense so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may receive

consideration on the merits of a procedurally defaulted claim if the petitioner can establish

that a fundamental miscarriage of justice, the continued incarceration of one who is

actually innocent, otherwise would result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive consideration

on the merits of his procedurally defaulted claim. “[I]n an

extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even in

the absence of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception

is exceedingly narrow in scope,” however, and requires proof

of actual innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more

likely than not that no reasonable juror would have convicted him’ of the underlying

offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual

innocence must be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity

of such evidence, in most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective assistance of

counsel. That right is denied when a defense attorney’s performance falls below an

objective standard of reasonableness and thereby prejudices the defense.” Yarborough

v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521

(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below

an objective standard of reasonableness.” [Strickland,] 466

U.S. at 688, 104 S. Ct. 2052. A court considering a claim of

ineffective assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range” of

reasonable professional assistance. Id., at 689, 104 S. Ct.

2052. The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id., at

693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id., at 687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any iron-

clad rule requiring a court to tackle one prong of the Strickland test before the other.”

Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be

satisfied to show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing

Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is a most

deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But

“[e]stablishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “The

question is not whether a federal court believes the state

court’s determination under the Strickland standard was

incorrect but whether that determination was unreasonable -

a substantially higher threshold.” Knowles v. Mirzayance, 556

U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at

788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,

556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of deference--this

one to a state court’s decision--when we are considering whether to grant federal habeas

relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

Meizlik alleges that his appellate counsel on direct appeal was ineffective for failing

to raise claims of ineffective assistance of trial counsel and a claim that the circuit court

violated his due process rights when “a misdemeanor judge sat and conducted the voir

dire on a felony case . . . .” Petition at 7-8. Meizlik also alleges that his appellate counsel

should have argued that trial counsel was unprepared for voir dire, did not properly

investigate his case, did not timely file his witness list, and told the circuit court that the

defense had no intentions of calling witnesses. Id. at 7.

Respondents argue that Meizlik’s claim that appellate counsel gave ineffective

assistance is unexhausted because although Meizlik raised a similar claim in his petition

for writ of habeas corpus filed with the state appellate court, the Fifth DCA ultimately

dismissed the petition as untimely. Response at 6-7. In his Reply, Meizlik argues that this

claim is exhausted because he timely raised the issue in state court and has included

exhibits that he alleges Respondents failed to include in their Response that demonstrate

such. Reply at 3.

Under Florida law, claims of ineffective assistance of counsel must be brought via

a petition for writ of habeas corpus in the court to which the appeal was taken. Fla. R.

App. P. 9.141(d). Pursuant to Rule 9.141(d)(5), a petition alleging ineffective assistance

of appellate counsel must be filed not more than two years after the judgment and

sentence become final on direct review unless counsel affirmatively misled the petitioner

about the results of the appeal, and in no event shall such a petition be filed more than

four years after the judgment and sentence become final on direct review. Respondents

contend that Meizlik’s direct appeal became final on October 5, 2009, when the United

States Supreme Court denied his petition for writ of certiorari. Response at 2. Meizlik

maintains that, contrary to Respondents’ contention, his direct appeal became final on

December 14, 2009, when the United States Supreme Court denied his motion for

rehearing. Reply at 3. Attached to Meizlik’s petition is documentation corroborating

Meizlik’s position that the Supreme Court denied his motion for rehearing on December

14, 2009. See Doc. 1-1. Supreme Court records reflect the same. See Meizlik v. Florida,

558 U.S. 1102 (2009). Accordingly, pursuant to Rule 9.141(d)(5), Meizlik had until

December 14, 2011, to file with the Fifth DCA a petition for writ of habeas corpus raising

claims of ineffective assistance of counsel.

Attached to Meizlik’s Reply is a petition for writ of habeas corpus filed with the

circuit court on November 21, 2011, in which Meizlik alleged ineffective assistance of

appellate counsel or in the alternative, requested the circuit court to “surrender

jurisdiction” to the Fifth DCA to address his claims against appellate counsel. Doc. 9-1.

Meizlik also attaches a copy of a petition for writ of habeas corpus raising claims against

his appellate counsel that he filed on April 23, 2012, which the Fifth DCA treated as an

appeal of the denial of the petition he filed in the circuit court. Resp. Ex. Y at 3. On July

17, 2012, Meizlik filed a petition for writ of habeas corpus with the Fifth DCA alleging

similar claims of ineffective appellate counsel. Resp. Ex. X. The State filed a motion to

dismiss the petition as untimely, Resp. Ex. Y, and the Fifth DCA granted the motion to

dismiss on March 25, 2013. Resp. Ex. AA. Based on this record, Meizlik did not timely file

a petition for writ of habeas corpus with the Fifth DCA. His filing with the circuit court was

not sufficient to satisfy Rule 9.141(d)(b) because he did not file it in the proper court, the

Fifth DCA, and, even assuming Meizlik did file a petition with the Fifth DCA on April 23,

2012, it would have been untimely. As such, Meizlik failed to exhaust this claim. Meizlik

has not demonstrated cause and prejudice to excuse this procedural default and has

likewise not alleged a fundamental miscarriage of justice to overcome this default either.

Accordingly, the claim in Ground One is due to be dismissed as procedurally defaulted.

Nevertheless, even if this claim was properly exhausted, it is meritless. Under

Florida law, county court judges can preside over circuit court matters. See Physicians

Healthcare Plans, Inc. v. Pfeifler, 846 So. 2d 1129, 1134 (Fla. 2003) (noting that county

court judges can be assigned to perform circuit court work on a temporary basis); Fla. R.

Jud. Admin. 2.215(b)(4) (“The chief judge may assign any judge to temporary service for

which the judge is qualified in any court in the same circuit.”). Additionally, it is not

improper to have a different judge preside over jury selection than the judge who will try

the case. See State v. Singletary, 549 So. 2d 996, 999 n.2 (Fla. 1989) (“The judge

conducting voir dire need not be the one before whom the case is tried. The presence of

a judge, not any particular judge, is what is required.”). As such, there would have been

no basis for appellate counsel to raise a challenge regarding the absence of the circuit

judge in the initial brief. Counsel cannot be deemed deficient for failing to raise a meritless

argument. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005)

(holding counsel cannot be ineffective for failing to raise a meritless argument); Bolender

v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic that the

failure to raise nonmeritorious issues does not constitute ineffective assistance.”).

Regarding Meizlik’s claim that appellate counsel should have raised claims of

ineffective assistance of trial counsel on direct appeal, such claims generally are not

cognizable on direct appeal when the issue was not raised before the trial court.

Rutherford v. Moore, 774 So. 2d 637, 647-48 (Fla. 2000). Only in the rare circumstance

where the ineffectiveness is apparent on the face of the record such that it would be a

waste of judicial resources to require the trial court to consider the claim is it appropriate

to address on direct appeal. Id. Meizlik’s claim concerning his trial counsel is conclusory

and he does not identify facts addressing prejudice. Accordingly, the Court finds that

Meizlik’s claim of ineffective assistance of trial counsel does not meet this rare exception.

See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague,

conclusory, speculative, or unsupported claims cannot support an ineffective assistance

of counsel claim). For the above stated reasons, the relief on the claim in Ground One is

due to be denied.

B. Ground Two

In Ground Two, Meizlik avers that his trial counsel was ineffective for the reasons

he stated in his Rule 3.850 Motion. Petition at 10-11. In the Rule 3.850 Motion, Meizlik

raised the following allegations of ineffective assistance, counsel failed to: (1) conduct

an adequate pre-trial investigation; (2) call five witnesses; (3) ensure he was arraigned

on the amended Information and inform him of plea offers; (4) call an expert witness; (5)

object to similar fact evidence; and (6) move for a mistrial. Resp. Ex. K at 1-32. Meizlik

also raised a claim that the cumulative effect of counsel’s errors prejudiced him. Id. at 32-

34. The Court will address each of these claims of ineffective assistance separately.

Ground Two (A)

Meizlik asserts that his counsel failed to conduct an adequate pre-trial

investigation. Specifically, he contends that counsel should have investigated Meizlik’s

son, who testified against Meizlik at trial as a similar fact witness. Resp. Ex. K at 1-9.

Such an investigation, according to Meizlik, would have demonstrated that Meizlik’s ex-

wife and her husband abused his son prior to Meizlik gaining custody of him. Id.

Additionally, Meizlik asserts that counsel should have investigated the instant messages

sent between the victim, Meizlik’s daughter, and his son, which he claims demonstrate

that his son and the victim set him up because his son was mad at him over money and

the victim was mad at him because she was being disciplined for bad behavior. Id.

According to Meizlik, counsel also should have obtained the victim’s diary to demonstrate

that she never recorded any instances of abuse. Id. Finally, Meizlik contends that his

counsel failed to review the dependency proceedings regarding the victim, interview or

depose witnesses, consult a proctologist, and investigate the similar fact evidence.9 Id.

The circuit court denied relief on this claim following an evidentiary hearing,

explaining, in pertinent part:

This Court finds that Mr. Rawlins’ statement that he

was not ready for trial and subsequent request for a

continuance are not demonstrative of ineffectiveness. Had Mr.

Rawlins stated that he was not ready, and then performed

deficiently at trial, his claim of not being ready would carry

more weight. In this case, the Court finds that Mr. Rawlins’

performance at trial was not deficient, and thus his statement

to the Court that he was not ready does not mean that Mr.

Rawlins was ineffective. At the evidentiary hearing, Mr.

Rawlins testified that despite the Judge’s denial of a

continuance, he was able to prepare and effectively litigate

the William’s10 [sic] Rule hearing. . . .

. . . .

9 Meizlik raises the latter three arguments in separate grounds; therefore, the

Court will address the merits of these three claims below.

10 Williams v. State, 110 So. 2d 654 (Fla. 1959).

Mr. Rawlins was clearly aware of [Meizlik’s son’s]

December 22, 2005 deposition as he used it to question him

at the Williams Rule hearing. Mr. Rawlins used the 2005

deposition at the Williams Ruling hearing to attempt to point

out possible inconsistencies in [his] testimony. This Court

finds that Mr. Rawlins was not deficient for failing to depose

[Meizlik’s son] when a deposition had been taken on the same

subject matter approximately one year earlier.

Defendant claims that Mr. Rawlins was ineffective due

to his failure to challenge [Meizlik’s son’s] credibility at trial and

failure to present [his] prior abuse by his step-father. At the

evidentiary hearing, Defendant testified that Mr. Rawlins

should have brought up instances of bad behavior from

[Meizlik’s son’s] childhood. Mr. Rawlins’ theory of defense at

trial was that [Meizlik’s son] and B.M. were lying and that

[Meizlik’s son] wanted to get back at his [father] for stealing

money from him. Mr. Rawlins asked [Meizlik’s son] questions

at trial that would support this theory. Mr. Rawlins attempted

to show that [Meizlik’s son] was lying to get revenge on his

father for stealing his money. Mr. Rawlins attempted to

challenge [Meizlik’s son’s] credibility by focusing on the fact

that [he] revealed his abuse at the same time he was angry

with his [father] for stealing his money. This Court finds that

Mr. Rawlins did not act outside the broad range of reasonable

assistance under prevailing professional standards by asking

questions in line with his theory of the case and declining to

bring up alleged bad behavior from [Meizlik’s son’s] childhood.

. . . .

Although challenging [Meizlik’s son’s] credibility would

have furthered Mr. Rawlins’ theory of the case, questioning

[him] regarding his [son’s] abuse could also potentially

bolstered [Meizlik’s son’s] credibility since the abuse was

“founded” according to the New York child protective services.

Because [Meizlik’s son] did not in fact “lie on the stand”

regarding previous abuse, and because counsel is strongly

presumed to have rendered adequate assistance and made

all significant decision in the exercise of reasonable

professional judgment, this Court finds that Mr. Rawlins did

not act outside the broad range of reasonable assistance

under prevailing professional standards in his questioning of

[Meizlik’s son].

The Defendant makes general claims as to the content

of emails and I-messages between [Meizlik’s son] and B.M.

that he alleges show they conspired against him, but has

failed to show with any specificity what they contained that

would have impacted the outcome of the trial. At the

evidentiary hearing, Defendant did not question Mr. Rawlins

regarding any emails or I-messages between B.M. and

[Meizlik’s son]. Further, this Court has reviewed the I-

Messages between [Meizlik’s son] and B.M. attached to

[Meizlik’s son’s] deposition as “Exhibit 1.” The I-Messages

contain conversations between [Meizlik’s son] and B.M. in

which B.M. confides in [Meizlik’s son] and seeks help. In the

I-Messages, [Meizlik’s son] attempts to determine the extent

of the abuse and assists B.M. with coming forward, but there

is no indication of a conspiracy. Therefore, this Court finds that

Defendant has not proven deficiency and has not satisfied the

prejudice requirement of Strickland.

Id. 319-23 (record citations omitted). The Fifth DCA affirmed the denial of relief without

issuing a written opinion. Resp. Exs. O, P.

To the extent that the Fifth DCA decided the claim on the merits,11 the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Meizlik is not entitled to

relief on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground Two (A) is without merit. Concerning the history of

11 Throughout this order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate

court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

Meizlik’s son as it relates to the time he spent living with his mother and stepfather, the

record reflects that at the evidentiary hearing on the Rule 3.850 Motion, Meizlik’s trial

attorney, Robert Rawlins, Esq., testified that he did not inquire with Meizlik’s son about

his past because as a similar fact witness, he did not want his testimony to become a

feature of the trial. Resp. Ex. K at 725. Moreover, Rawlins testified that during his pre-trial

investigations he learned of several potentially prejudicial events that Meizlik’s ex-wife

recalled about Meizlik and he did not want to open the door to this evidence by delving

into Meizlik’s son’s past relationship with Meizlik, his mother, or his stepfather. Id. at 724-

25. Indeed, Detective George Harrigan testified at the same hearing that his

investigations had uncovered the fact that police had previously investigated Meizlik

concerning a murder in New York and the New York department of children and family

services had investigated allegations that Meizlik had sexually abused a foster child in his

care. Id. at 701-04. Additionally, Rawlins testified that his file, which would have contained

all documents given to him, did not contain any evidence regarding psychological

examinations Meizlik paid for his son. Id. at 761-63. Accordingly, the Court finds Rawlins

decision not to delve into Meizlik’s son’s history at trial was a sound trial strategy, and,

therefore, Rawlins was not ineffective. See Knight v. Fla. Dep’t of Corr., 936 F.3d 1322,

1340 (11th Cir. 2019) (quoting Strickland, 466 U.S. at 690) (“In assessing an attorney’s

performance under Strickland, ‘strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.’”).

Regarding the instant messages sent between Meizlik’s son and the victim, the

Court has reviewed the messages and finds they do not support Meizlik’s conspiracy

theory. Resp. Ex. K at 454-73. Instead, the messages reflect Meizlik’s son explaining his

relationship with his father, the victim describing how Meizlik treated her, Meizlik’s son

trying to comfort the victim through a tumultuous time, and investigating the best methods

in which to report the abuse. Id. As such, these instant messages would not have been

material to Meizlik’s proposed defense and would not have changed the outcome of the

trial. Accordingly, Meizlik has failed to demonstrate deficient performance or prejudice.

Concerning the victim’s diary, at the Rule 3.850 hearing, Rawlins testified that he

reviewed the diary but had admissibility concerns about it. Id. at 725. According to

Rawlins, he also did not think introducing the diary to prove a negative would hold much

weight at trial. Id. at 725-26. The Court agrees. Merely because the victim did not recount

the abuse in her diary is not proof that it did not occur. As such, the Court finds the

decision not to use it was reasonable and that the diary would not have held much if any

weight in attacking the credibility of the victim.

Next, with regard to counsel’s alleged failure to review the dependency

proceedings that involved the victim, Meizlik’s son, and Meizlik, the record refutes this

claim. Rawlins testified that he discussed the dependency case with Meizlik and reviewed

Meizlik’s son’s deposition from the dependency proceeding and used it to craft his cross-

examination at the Williams Rule hearing and at trial. Id. at 709, 727-28, 743-44.

Therefore, Meizlik has failed to demonstrate deficient performance. Based on the above

analysis, the Court finds that relief on the claim in Ground Two (A) is due to be denied.

Ground Two (B)

Meizlik contends that his counsel failed to call Dr. Richard Carpenter, Detective

Harrigan, Dr. Mark Messinesc, Dean Blue, and Valerie Gordon as witnesses at his trial.

Id. at 9-18. According to Meizlik, Carpenter, a forensic evaluator of sexual perpetrators,

should have been called as an expert to opine that he did not find Meizlik’s son or the

victim’s allegations of abuse credible. Id. at 10-12. Meizlik alleges that Harrigan would

have testified that Meizlik provided Harrigan with documentation that the victim claimed

to be an adult woman on social media to attract boys to write to her and documents

showing that Meizlik’s son did in fact receive counseling. Id. at 12-13. Additionally, Meizlik

claims that his son told Harrigan that he, Meizlik, had a mole on his penis, but Meizlik

gave Harrigan documentation refuting that as well. Id. at 13-14. Notably, at the evidentiary

hearing, Meizlik also claimed that Harrigan told Meizlik he thought Meizlik was innocent

and that he did not believe the victim’s story. Id. at 591-93. Meizlik asserts that counsel

should have called Messinesc to testify that he examined Meizlik’s penis and that there

was no mole present on it. Id. at 14-16. Lastly, as to Blue and Gordon, Meizlik asserts

that these witnesses would have testified that the victim told Meizlik that the victim was

sexually harassed at school and that Meizlik went to Blue and Gordon and asked them to

investigate the abuse. Id. at 16-18. Meizlik maintains that this would have refuted the

victim’s testimony that she did not trust any school officials enough to discuss Meizlik’s

sexual abuse of her. Id.

In denying this claim, the circuit court stated in pertinent part:

The Defendant has made no showing that Dr.

Carpenter’s testimony would have been admissible at the

criminal trial. The case law demonstrates that courts are very

careful regarding expert testimony in sexual abuse cases.

Hadden v. State, 690 So. 2d 573 (Fla. 1997) (Upon proper

objection prior to introduction of psychologist’s expert

testimony offered to prove alleged victim of sexual abuse

exhibits symptoms consistent with one who has been sexually

abused, trial court must find that psychologist’s testimony is

admissible under Frye standard for admissibility of novel

scientific evidence); see also Dennis v. State, 698 So. 2d 1356

(Fla. 1st DCA 1997) (Expert testimony presented by

prosecution, that alleged victim exhibited symptoms

consistent with those of child suffering from child abuse

accommodation syndrome, was not admissible). This Court

finds Mr. Rawlins did not act outside the broad range of

reasonable assistance under prevailing professional

standards in his decision not to call Dr. Carpenter.

The Defendant claims that Mr. Rawlins never deposed

Detective Harrigan and testified that Detective Harrigan made

statements that he believed the Defendant was innocent and

thought [Meizlik’s son] and B.M. were lying. However,

Detective Harrigan testified to the contrary at the evidentiary

hearing. Detective Harrigan testified that he never made any

statements or in any way insinuated that he thought

Defendant was innocent. Defendant also claims that [Meizlik’s

son] told Detective Harrigan that he had never seen a

psychiatrist and Defendant gave Mr. Rawlins medical bills

indicating otherwise. However, no questions were asked of

Detective Harrigan at the evidentiary hearing on this matter.

Also, Detective Harrigan was, in fact, deposed in this case. It

is clear from his testimony that Detective Harrigan would not

have helped Defendant’s case. This Court finds that Mr.

Rawlins did not act outside the broad range of reasonable

assistance under prevailing professional standards in his

decision not to call Detective Harrigan.

Defendant claims that Dr. Mesenesc [sic] was not

deposed or interviewed and testified that Dr. Mesenesc [sic]

could refute [Meizlik’s son’s] prior statement that Defendant

had a mark on his penis. In fact, Dr. Mesenesc [sic] was

deposed and Mr. Rawlins testified that he secured his

presence at trial in the event he felt it was necessary to call

him. After [Meizlik’s son] testified without mentioning the mark

on the Defendant’s penis, Mr. Rawlins testified that he made

the decision not to call Dr. Mesenesc [sic]. Defendant argues

that Mr. Rawlins should have elicited testimony about the

mark from [Meizlik’s son] and then brought in an expert to

show there was no mark. This Court finds that Dr. Mesenesc’s

[sic] potential testimony was trivial since Dr. Mesenesc [sic]

did not examine Defendant until many years after [Meizlik’s

son] described the mark. Also, Dr. Mesenesc stated in his

deposition that if the mark was a mole it could have been

removed or if the mark was a wart is could have faded or been

removed. Further, eliciting testimony from [Meizlik’s son]

regarding Defendant’s penis would bring in new allegations of

abuse. At the trial, [Meizlik’s son] was limited to testifying

about incidents where Defendant penetrated [his] anus with

fingers. Having [Meizlik’s son] testify that he saw Defendant’s

penis (even in an effort to impeach his credibility) could have

done more harm than good. This Court finds that Mr. Rawlins

did not act outside the broad range of reasonable assistance

under prevailing standards in his decision not to call Dr.

Mesenesc [sic].

The Defendant testified that Mr. Rawlins ignored the

prospective testimony of Dean Blue and Valerie Gordon

regarding a situation involving sexual abuse at school in which

B.M. confided in the aforementioned individuals. Defendant

claims these witnesses would have discredited B.M. because

their testimony would show she trusted teachers and would

have confided in them regarding abuse. At the evidentiary

hearing, Mr. Rawlins could not specifically recall why he chose

not to call these witnesses. However, Defendant’s assertion

that these witnesses would have discredited B.M. is

unconvincing. Defendant testified that he brought B.M. to

these administrators himself after she declined to handle the

situation. So it does not follow that B.M. speaking with the

witnesses about abuse in the aforementioned situation means

that she would have reported her abuse by Defendant to

them. Further, in Defendant’s own words, B.M.’s allegations

of abuse to Dean Blue and Valerie Gordon were true. This

raises the possibility of bolstering B.M.’s credibility by

introducing prior allegations of abuse that were deemed to be

true. This Court finds that Mr. Rawlins did not act outside the

broad range of reasonable assistance under prevailing

professional standards in his decision not to call Dean Blue

and Valerie Gordon.

Id. at 323-26 (record citations omitted). The Fifth DCA per curiam affirmed the denial of

relief on this claim without issuing a written opinion. Resp. Exs. O, P.

To the extent that the Fifth DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Meizlik is not entitled to

relief on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground Two (B) is meritless. Concerning Carpenter, in Florida “[i]t

is well-established that an expert may not directly testify as to the truthfulness of the victim

in a child sexual abuse case.” Oliver v. State, 977 So. 2d 673, 677 (Fla. 5th DCA 2008).

At the Rule 3.850 Motion hearing, Rawlins testified that he did not hire Carpenter as an

expert because Meizlik could not afford him and Rawlins had concerns over the

admissibility of his testimony. Resp. Ex. K at 718-19. Although Meizlik contends that he

had the money to pay Carpenter, he has failed to demonstrate by clear and convincing

evidence that the circuit court’s factual determination on this matter was incorrect. See

28 U.S.C. § 2254(e)(1). Based on this record, the Court finds counsel’s decision not to

call Carpenter was a reasonable strategic decision. See Knight, 936 F.3d at 1340; Oliver,

977 So. 2d at 677.

As to Messinesc, Meizlik’s son never testified that he observed a mole on his penis;

therefore, there would have been no reason to call Messinesc as a witness. Moreover, as

the circuit court pointed out, raising this issue with Meizlik’s son would have introduced

activity outside the scope of the circuit court’s ruling on the extent of his testimony and

opened the door to prejudicial information. Accordingly, Meizlik has failed to demonstrate

deficient performance or prejudice. Likewise, Harrigan’s testimony at the evidentiary

hearing established that Harrigan did not believe Meizlik was innocent and that he never

told Meizlik he thought the victim and Meizlik’s son were lying. Resp. Ex. K at 700, 702-

03. Harrigan also testified that he did not recall ever receiving any documentation from

Meizlik concerning the victim’s postings on social media. Id. at 704-05. Calling Harrigan

at trial would not have supported Meizlik’s defense. As such, Rawlins was not ineffective

for failing to call him.

Finally, as to Blue and Gordon, at trial the victim testified that she did not tell

teachers, or other people, about Meizlik’s sexual battery of her. Trial Transcript at 54-58.

Meizlik testified at the Rule 3.850 Motion hearing that the victim first came to him about

the allegations related to two boys at her school fondling her. Resp. Ex. K at 573-76, 652-

54. He asked her if she wanted him to handle it and she said yes, which led him to contact

Blue and Gordon to discuss the issue. Id. Thereafter, Blue and Gordon met with the victim

privately. Id. Meizlik’s own retelling of the events demonstrates that the victim did not want

to handle the misconduct by herself and that Meizlik initiated the discussion with the

teachers. As such, this would not have severely impacted the victim’s credibility such that

the outcome of the trial would have been different. The Court finds there is no reasonable

probability that the outcome of the trial would have been different had counsel called

these witnesses. In light of the foregoing, Meizlik is not entitled to relief on his claim in

Ground Two (B).

Ground Two (C)

Meizlik asserts that his counsel failed to ensure that he was arraigned on the

Amended Information and failed to inform him about the new charges and the potential

life sentence he faced. Resp. Ex. K at 18-19. Additionally, Meizlik avers that counsel never

told him about two plea offers the State had presented. Id. at 19-20. Had he known he

was facing life in prison and of the existence of the offers, Meizlik contends he would have

entered the plea rather than proceed to trial. Id.

The circuit court denied this claim, reasoning:

Defendant was originally charged with lewd and

lascivious conduct - victim under 16 Defendant 18 or older.

On January 3, 2007, an Amended Information was filed

adding two counts of sexual activity with a child while in

familial or custodial authority, a capital felony. On January 10,

2007, Defendant’s attorney filed a Waiver of Personal

Appearance at Arraignment. On January 26, 2007, prior to the

jury being sworn for trial, the following exchange occurred:

MR. RAWLINS: In addition to that, Judge,

while we’re putting things on the record. Earlier

today the State conveyed a plea offer to myself,

which I conveyed to my client, which was that if

he chose -- if he wanted to he could plead to the

L&L, they would drop the two capital charges.

And it’s our understanding that he would score

out somewhere at the bottom end, around 36

months. Obviously, the top end would be 15

years on the L&L. And if he wanted to plead to

that, the State would agree to that, and we

would have a range for you to sentence him.

I have conveyed that to my client, and he

is not interested in the plea; is that correct, Mr.

Meizlik?

THE DEFENDANT: That’s correct.

MR. RAWLINS: And we are ready to go to

trial.

THE COURT: All right. And Mr. Meizlik,

you understand that if the jury convicts you of

the capital offense in this case, that the Court

would have no discretion on the sentencing and

there could only be once [sic] sentence?

THE DEFENDANT: Yes, sir.

MR. RAWLINS: And I have conveyed that

to him, Judge, that this is a capital felony with a

life sentence.

THE COURT: All right. And I just want to

make sure there’s full knowledge of what the

range of sentencing is, and that the Court would

have no discretion in sentencing if you were

convicted as charged in this case, that you’re

rejecting the State’s plea offer with the full

knowledge of that?

THE DEFENDANT: Yes, ma’am.

The record shows that Defendant was clearly informed he was

charged with a capital offense and he was facing life in prison

and, with this knowledge, Defendant rejected a plea offer from

the State. Therefore, Defendant’s claim in Ground Three is

refuted by the record and will be denied.

Id. at 66-67 (record citations omitted). The Fifth DCA per curiam affirmed the denial of

this claim without a written opinion. Resp. Exs. O, P.

To the extent that the Fifth DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Meizlik is not entitled to

relief on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground Two (C) is without merit. The record reflects that Meizlik

was arraigned on the Amended Information and that his counsel waived his appearance

at that arraignment. Resp. Ex. A at 65. At the beginning of Meizlik’s trial, his counsel put

on record the State’s plea offer and represented he had discussed the offer and the

possibility of a life sentence with Meizlik. Tr. at 4-6. The circuit court inquired with Meizlik

about the offer and sentence, and Meizlik affirmatively acknowledged declining the offer.

Id. Moreover, at the evidentiary hearing on his Rule 3.850 Motion, counsel testified that

his notes reflected two plea offers and that he conveyed those offers to Meizlik, who

rejected them because he professed his innocence. Resp. Ex. K at 711-14, 746-53.

Accordingly, as the record refutes this claim, Meizlik is not entitled to relief and Ground

Two (C) fails.

Ground Two (D)

Meizlik contends this his counsel was ineffective for failing to consult with and call

a proctologist. Id. at 21-23. According to Meizlik, the victim stated the penetration did not

cause pain, only mild discomfort. Id. Based on this testimony, Meizlik contends that his

counsel should have called the proctologist to explain that the digital penetration of the

victim’s anus as the victim described would have caused intense pain, tearing, and

bleeding. Id.

The circuit court denied this claim following an evidentiary hearing, explaining:

In Ground Four, Defendant claims that his trial counsel

was ineffective for failing to consult with, or call a proctologist

as an expert witness to dispute B.M.’s claims. However, there

was no testimony by B.M. that excessive force was used or

that there was any actual penetration by the Defendant’s

fingers, simply that he “started to put them up inside me.” Mr.

Rawlins testified that he did not recall B.M. testifying about the

degree of penetration involved. Defendant has failed to show

how a medical exam many years after the incident would have

impacted the trial. A proctologist examining B.M. several

years later would have offered no relevant evidence or

affected the outcome of the trial. This Court finds that Mr.

Rawlins did not act outside the broad range of reasonable

assistance under prevailing professional standards in his

decision not to call a proctologist.

Id. at 326 (record citations omitted). The Fifth DCA per curiam affirmed the denial of this

claim without a written opinion. Resp. Exs. O, P.

To the extent that the Fifth DCA decided the claim on the merits, the Court will

address the claim in accordance with the deferential standard for federal court review of

state court adjudications. After a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly established

federal law, and was not based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceedings. Thus, Meizlik is not entitled to

relief on the basis of this claim.

Nevertheless, even if the Fifth DCA’s adjudication of this claim is not entitled to

deference, the claim in Ground Two (D) is meritless. At trial, the victim testified that

“[Meizlik] started to put them up inside of me . . . ” for a couple of seconds. Tr. at 34-35.

There is nothing from this testimony that a proctologist could have disputed because the

victim did not state how far the fingers went into her anus or how much force was used.

Moreover, the incident lasted mere seconds. As the criminal charges were brought years

after the incident, a medical examination would have been useless as well. Notably,

counsel stated the same during the evidentiary hearing. Resp. Ex. K at 717. Accordingly,

it was a reasonable decision on counsel’s part not to call a proctologist. Meizlik has failed

to demonstrate deficient performance or prejudice; therefore, relief on his claim in Ground

Two (D) is due to be denied.

Ground Two (E)

Meizlik asserts that his counsel was ineffective for failing to object to the admission

of similar fact evidence and failed to move for a mistrial when that evidence became a

feature of the trial. Resp. Ex. K at 23-29.

In denying this claim, the circuit court stated:

In Ground Five, Defendant claims that his trial counsel

was ineffective for failing to move to exclude, object to the

admission of, or move for a mistrial where the Williams Rule

evidence lacked the requisite similarity and became a feature

of the trial. This claim is refuted by the record. The Court

initially held a hearing on the Williams Rule issue, and

Defendant’s attorney presented thorough arguments

opposing the admission of any such evidence. Defendant’s

attorney placed another objection on the record prior to the

Court’s ruling on the motion. The Court ruled that the evidence

was admissible. During his testimony, [Meizlik’s son], the

Williams Rule witness, overstepped the boundary established

by the Court as to the Williams Rule evidence, but

Defendant’s attorney immediately objected and moved for a

mistrial. The motion for mistrial was denied. The actions of

Defendant’s attorney addressed to the Williams Rule issue fell

within the broad range of reasonable assistance under

prevailing professional standards; therefore, Ground Five will

be denied.

Id. at 67-68 (record citations omitted). The Fifth DCA per curiam affirmed the denial of