Lavender v. Caroll

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DARYL L. LAVENDER,

Petitioner,

vs. Case No. 3:17-cv-1308-J-39JRK

MIKE CAROLL, SECRETARY,

FLORIDA DEPARTMENT

OF CHILDREN AND FAMILIES,

et al.,

Respondents.

ORDER

I. STATUS

Petitioner, Daryl L. Lavender, who is involuntarily civilly

confined at the Florida Civil Commitment Center (FCCC) pursuant to

Fla. Stat. § 394.910, et seq.(Sexual Violent Predators Act),

initiated this action by filing a pro se Petition Under 28 U.S.C.

§ 2254 for Writ of Habeas Corpus By a Person in State Custody

(Petition) (Doc. 1). Per Petitioner, the Petition only challenges

the April 19, 2016 recommitment order on the 2015 annual review

probable cause hearing. Petition at 1-2. Respondents filed a

Response to Petition for Writ of Habeas Corpus (Response) (Doc.

5).1 Thereafter, Petitioner filed a Reply Motion in Opposition to

1 The Court will hereinafter refer to the exhibits in the Appendix

Strike, Deny, or Otherwise Dismiss Respondents’ Response to

Petition for Writ of Habeas Corpus Filed March 6th, 2018, With

Attached Exhibits 1-3 (Reply) (Doc. 9) (footnote omitted).2 See

Order (Doc. 4). To the extent Petitioner is asking that the

Response be stricken or dismissed, that request is due to be denied

as the Response does not include an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter. See

Rule 12(f), F. R. Civ. P. To the extent Petitioner is attempting

to raise a Daubert claim,3 that matter will be addressed within

the opinion.

II. PROCEDURAL HISTORY

A procedural history is provided to provide context.

Petitioner was tried and convicted of a violent sexual offense in

1993.4 Thereafter, on March 29, 2000, the State Attorney’s Office

of Exhibits to Response to Petition for Writ of Habeas Corpus (Doc.

6) as "Ex." The page numbers referenced in this opinion are the

Bates stamp numbers at the bottom of the page of each exhibit or

the page number on the particular document.

2 With respect to the Petition, Response, and Reply the Court will

reference the page number assigned by the electronic filing system.

3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993).

4 The Court takes judicial notice of Lavender v. Secretary, DOC,

et al., Case No. 3:11-cv-319-J-20MCR (M.D. Fla.), in which

Petitioner filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254 challenging his civil commitment. The Court

denied the petition, dismissed the action with prejudice, and

denied a certificate of appealability. Id. (Doc. 47). The

2

filed a petition seeking Petitioner’s commitment as a sexually

violent predator. A jury found Petitioner to be a sexually violent

predator, and the trial court, on April 27, 2000, entered a final

judgment of civil commitment. The state appellate court affirmed

the civil commitment decision and the Florida Supreme Court

declined to exercise jurisdiction over the case.

The trial court, on May 30, 2007, found probable cause to

believe it safe to release Petitioner and set a trial. Fla. Stat.

§ 394.918(3). After hearing evidence, the trial court found

Petitioner remained a sexually violent predator who should remain

confined in a secure facility for long-term control, care, and

treatment. The state appellate court affirmed.

Petitioner filed a motion to vacate the commitment order and

a state petition for writ of habeas corpus, both of which were

denied. The state appellate court affirmed. Petitioner filed a

federal petition for writ of habeas corpus challenging the 2008

civil commitment case, and this Court denied the petition.

Lavender v. Secretary, DOC, et al., Case No. 3:11-cv-319-J-20MCR

(M.D. Fla.) (Doc. 47).

Eleventh Circuit denied a certificate of appealability as well.

Id. (Docs. 57 & 58). The Supreme Court of the United States denied

a petition for writ of certiorari. Id. (Doc. 60). The Court also

takes judicial notice of Lavender v. George H. Sheldon, etc.; et

al., Case No. 3:03-cv-557-J-32MCR (Petitioner’s first federal

habeas corpus petition dismissed without prejudice to allow

Petitioner to exhaust state court remedies on unexhausted claims).

3

In the Circuit Court, Twelfth Judicial Circuit in and for

DeSoto County, Petitioner, on December 16, 2015, filed an Amended

Petition for Writ of Habeas Corpus Pursuant to Florida Rules of

Criminal Procedure, 3.850; and Florida Statues § 394.9215 (2009

Supp.).5 Ex. G at 1-138. In an Order entered on October 18, 2016,

the circuit court denied the petition. Id. at 663-74. On June

28, 2017, the Second District Court of Appeal affirmed per curiam.

Ex. K. The mandate issued July 25, 2017. Ex. L.

Meanwhile, concerning the matter at hand, Licensed

Psychologist, Carrole Depass, Psy.D. (Doctor of Psychology), of

the Florida Civil Commitment Center (FCCC), submitted the April

23, 2015 Treatment Progress Report, per Fla. Stat. § 394.918(1).6

5 Under Fla. Stat. § 394.9215, Right to habeas corpus, a person

held in a secure facility under the Involuntary Civil Commitment

of Sexually Violent Predators, may file a petition in the circuit

court, after exhausting administrative remedies, challenging the

conditions of confinement as being violative of a statutory right

under state law or a constitutional right under the state or

federal Constitution, or challenging the appropriateness of the

facility.

6 Under Fla. Stat. § 394.918 Examinations; notice; court hearings

for release of committed persons; burden of proof, it states:

(1) A person committed under this part shall have an

examination of his or her mental condition once every

year or more frequently at the court's discretion. The

person may retain or, if the person is indigent and so

requests, the court may appoint, a qualified

professional to examine the person. Such a professional

shall have access to all records concerning the person.

The results of the examination shall be provided to the

court that committed the person under this part. Upon

4

Ex. A at 1-2. Initially, she provided historical information as

to Petitioner’s diagnosis of Pedophilia. Id. at 1. Dr. Depass

noted, Michael T. D’Errico, Ph.D., made the diagnosis of

Pedophilia, Exclusive Type, Sexually Attracted to Males, and found

Petitioner met the criteria as a sexually violent predator. Id.

receipt of the report, the court shall conduct a review

of the person's status.

(2) The department shall provide the person with annual

written notice of the person's right to petition the

court for release over the objection of the director of

the facility where the person is housed. The notice

must contain a waiver of rights. The director of the

facility shall forward the notice and waiver form to

the court.

(3) The court shall hold a limited hearing to determine

whether there is probable cause to believe that the

person's condition has so changed that it is safe for

the person to be at large and that the person will not

engage in acts of sexual violence if discharged. The

person has the right to be represented by counsel at

the probable cause hearing and the right to be present.

Both the petitioner and the respondent may present

evidence that the court may weigh and consider. If the

court determines that there is probable cause to

believe it is safe to release the person, the court

shall set a trial before the court on the issue.

(4) At the trial before the court, the person is

entitled to be present and is entitled to the benefit

of all constitutional protections afforded the person

at the initial trial, except for the right to a jury.

The state attorney shall represent the state and has

the right to have the person examined by professionals

chosen by the state. At the hearing, the state bears

the burden of proving, by clear and convincing

evidence, that the person's mental condition remains

such that it is not safe for the person to be at large

and that, if released, the person is likely to engage

in acts of sexual violence.

5

Dr. DePass also noted Jeffrey L. Benoit, Ph.D., found Petitioner

met the diagnostic criteria for Pedophilia, Sexually Attracted to

Males, and Personality Disorder, Not Otherwise Specified with

significant antisocial features. Id. Dr. Benoit also found

Petitioner met the commitment criteria as a sexually violent

predator. Id.

In her Report, Dr. DePass summarized past treatment progress

reports:

As stated in previous treatment progress

reports, the court found Mr. Lavender met

commitment criteria as a sexually violent

predator and committed him to the FCCC on

April 27, 2000. He was admitted to the FCCC

on May 1, 2000. Records indicate that when

interviewed for his April 16, 2007 annual

review, Mr. Lavender suggested that his

previous flat line Penile Plethysmograph (PPG)

and non-deceptive polygraph are evidence that

he does not need treatment and should not be

committed at FCCC. To date, he has not

consented to participate in the Comprehensive

Treatment Program (CTP) for men who have

sexually offended. However, clinical records

show that on October 6, 2014 Mr. Lavender

consented to participate in Thinking for a

Change (T4C) group. T4C is a voluntary

psychoeducational group offered to all

residents regardless of their legal status.

Mr. Lavender began T4C group on December 5,

2014. A review of group notes indicates that

he appears to have good attendance and he is

actively engaged in that group’s process.

Id. at 1-2.

6

Dr. Depass provided information regarding her interview

session with Petitioner concerning development of the report:

[Mr. Lavender] entered the interview room and

(as he did in the previous interview last

year) dropped paperwork on this writer’s desk

indicating that there was a restraining order

with this writer’s name in it. Mr. Lavender

then indicated that he would not be signing

any waiver document or any other document.

When asked if he intended to consent to the

CTP upon completing T4C, he indicated that

with regards to T4C, “That’s all I’m going to

do.” After this writer advised him that if

he was going to decline to participate in this

interview with regards to reviewing and

signing documents, then there was no reason to

continue the session. He agreed, picked up

the folded paperwork he brought, and left the

interview room.

Id. at 2.

Dr. DePass concluded:

Mr. Lavender has yet to fully address relevant

treatment issues (i.e.: sexual interests,

distorted attitudes and behaviors, socio-

affective issues and self-management) that are

associated with his offending history.

Therefore, it is recommended that Mr. Lavender

initiate participation in the CTP (beyond T4C)

at the Florida Civil Commitment Center.

Id. (emphasis added). Petitioner refused to sign the Resident

Acknowledgement of Treatment Progress Report. Ex. A at 3.

On July 14, 2015, the Honorable J. Michael Traynor, in the

Circuit Court for St. Johns County, appointed Registry Counsel,

Marcella Beeching, to represent Petitioner for annual review

purposes. Id. at 42-43. Ms. Beeching filed a Motion for

7

Confidential Independent Expert Examination, asking the court to

appoint an independent expert to evaluate Petitioner and provide

a confidential report. Id. at 45-46. The court granted the

motion and appointed Alan J. Waldman, M.D., a psychiatrist, as an

independent confidential expert to assist the defense by making an

assessment as to whether Petitioner’s condition has so changed

that it is safe for Petitioner to be at large. Id. at 47. The

court stated, “[u]nless waived by the defense, the expert’s report

and all conclusions contained in it are considered defense work

product and shall be deemed to fall under the lawyer-client

privilege.” Id.

Ms. Beeching, on November 16, 2015, wrote Petitioner a letter

explaining that Fla. Stat. § 394.918 delineates the criteria under

which a civilly committed person may be released from FCCC. Ex.

A at 143. Ms. Beeching reminded Petitioner, that under the

relevant criteria, he had to show his condition had changed. Id.

On December 3, 2015, Petitioner, pro se, filed a Notice of

Appearance as Co-counsel and Motion in Limine – Per Request for a

Nelson Inquiry Regarding the Representation by Ms. Marcella

Beeching, Esquire.7 Id. at 137-42. Of import, on January 6, 2016,

Ms. Beeching filed a Notice of Non-Adoption of Respondent’s Pro Se

Motions. Id. at 169-70. Thereafter, the Honorable Howard

7 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

8

McGillin, Jr., Circuit Judge for St. Johns County, entered orders

scheduling a Nelson hearing and an annual review hearing. Id. at

173, 203.

On February 26, 2016, Judge McGillin conducted an inquiry as

to why Petitioner requested a Nelson inquiry. Id. at 666-91.

During this proceeding, Ms. Beeching advised the court Dr. Waldman,

the appointed confidential expert, prepared a new score sheet.

Id. at 673. Ms. Beeching stated she asked for the appointment of

a psychiatrist because, if appointed, there would be an appointed

medical doctor who would be able to evaluate Petitioner’s physical

condition as well as his mental state. Id. at 673-74. Ms.

Beeching explained this was important because Petitioner had

turned sixty and had medical problems or issues that could affect

his libido, possibly working in his favor to show change in his

condition. Id. The court found no ineffective assistance of

counsel. Id. at 683. The court gave Petitioner the opportunity

to proceed pro se or proceed with the assistance of Ms. Beeching.

Id. at 683-84.

On March 24, 2016, the court continued the Nelson Hearing and

conducted an Annual Review Hearing. Id. at 693-97. Petitioner

argued the reliability of the conviction, “is a matter of Daubert.”

Id. at 702. The court told Petitioner: “[t]he reliability of the

conviction is a matter of law and cannot be overturned at this

9

point. There is absolutely nothing I could do or even the US

Supreme Court could do at this point.” Id.

Ms. Beeching reiterated the reason she asked the court to

appoint Dr. Waldman was because he was a psychiatrist, not a

psychologist; therefore, he could speak to Petitioner’s physical

as well as mental condition. Id. at 705. The court found counsel

was not ineffective and told Petitioner he could proceed pro se or

proceed with Ms. Beeching. Id. at 708-709. Petitioner decided

to proceed with Mr. Beeching as his counsel. Id. at 714.

At this point, the court conducted the Annual Review Hearing.

Id. The parties stipulated to the admissibility of the Static-

99R, which reflected a score of two, a low-moderate risk category.

Id. at 713-15. See Ex. A at 216, Static 99R Coding Form, dated

December 11, 2015. Ms. Beeching called Dr. Waldman to identify

the document and to seek its admittance. Id. at 716-19. Dr.

Waldman explained a score of two is: “an actuarial that predicts

a low to moderate risk of recidivism, based on these 10 criterias

and only these 10 criterias [sic].” Id. at 719. Upon inquiry,

Dr. Waldman testified he would not rely solely on the Florida

Specific Sexual Recidivism Research Study dated September 23, 2013

in a clinical opinion. Id. at 724.

The parties stipulated to the FCCC’s report of April 23, 2015

and that it could be considered as evidence. Id. at 725-26. When

10

Petitioner complained the report was just hearsay, the state

explained the Sexually Violent Predator Statute allows for hearsay

in review hearings. Id. at 727.

Petitioner testified he had a job at FCCC as a house man.

Id. at 728-79. He said he participated in the program Thinking

for a Change (T4C) and received a certificate of participation.

Id. at 729-30. Petitioner explained he has not participated in

any other programs at FCCC because he maintains that he did not

commit the underlying sexual offense and refuses to sign any

consent forms stating otherwise. Id. at 729-31. Ms. Beeching

moved to place the certificate of participation for T4C into

evidence and it was admitted without objection. Id. at 731-32.

Ms. Beeching also moved for admission of statistics from the

Florida Specific Sexual Recidivism Research, dated September 23,

2013. Id. at 732. Without objection, the court admitted the

tables and evidence on the statistics. Id. at 735.

In closing, Ms. Beeching argued, not only did Dr. Waldman’s

Static-99 show a low to moderate recidivism rate for Petitioner,

but the tables prepared by the Department of Children and Families,

who are the guardians of Petitioner, provide statistics showing a

very low rate of recidivism for individuals in Petitioner’s age

group. Id. at 736. Ms. Beeching referenced Petitioner’s

completion of the T4C program. Id. at 737. She noted that

11

Petitioner will not participate in other programs at FCCC because

he maintains his innocence and will not admit to the sexual

offense. Id.

The state, in closing, asked that Petitioner remain committed

to the FCCC as he had not shown his specific condition so changed

as to meet the probable cause criteria. Id. at 737. Although the

state recognized the statistical data from the Department of

Children and Families’ research, the state argued there was “no

evidence before the Court that Mr. Lavender’s circumstances have

so changed that there would be probable cause to warrant a trial

for release[.]” Id. at 738. The state asked that the court divine

whether the statistics go to sexually violent predators who met

the criteria for commitment or were just statistics for all sexual

offenders. Id. at 738-79. The court took the matter under

advisement and agreed to read the materials, study them, and divine

whether the materials in evidence go to sexually violent predators

who meet the commitment criteria. Id.

On April 5, 2016, Ms. Beeching filed a Second Notice of Non-

Adoption of Respondent’s Pro Se Motions. Id. at 331-32. The

circuit court, on April 19, 2016, entered its Order on Annual

Review. Id. at 343-46. It made the following findings of fact:

A The Court considered, the Treatment

Progress Review submitted by stipulation of

the parties of Dr. Carrole DePass of the

Florida Civil Commitment Center. Dr. Depass’

12

conclusion is that the Respondent has “yet to

fully address relevant treatment issues (i.e.:

sexual interests, distorted attitudes and

behaviors, socio-affective issues and self-

management) that are associated with his

offending history.” (State[’]s Exhibit 1,

Page 2, Docket Entry Number 475).

B The Court considered the testimony of the

Respondent’s appointed expert, Dr. Alan

Waldman. Dr. Waldman presented his analysis

of the testing of Mr. Lavender on the

instrument known as the Static-99R. The

Static 99R (Respondent Exhibit 2, Docket Entry

Number 470) indicated that Mr. Lavender is at

low to moderate risk of recidivism.

C The Court considered Mr. Lavender’s

Certificate of Participation in the psycho-

educational group “Thinking for a Change”

(Respondent Exhibit 3, Docket Entry Number

471). Respondent’s participation in this

program is also noted in Dr. DePass’ report.

D The parties stipulated to the

admissibility of the Florida Specific Sexual

Recidivism Research Study Dated September 23,

2013 (hereinafter “the Report’).

Ex. A at 343-44.

The court stated it reviewed the Report extensively and found

its focus is on entry into the Sexual Violent Predator Program,

and does not purport to, nor does it predict an individual’s

outcome. Id. at 344. The court recognized the new criteria

Static-99R, used in Petitioner’s case, reflects the reduced rate

of recidivism applicable to respondents like Petitioner who are

over sixty. Id. Again, the court noted that the emphasis of the

Report is what is to be considered for entry into the program, not

13

to provide analysis of a situation like Petitioner’s, “namely those

who have been in civil commitment for a number of years, have

failed to participate in the Comprehensive Treatment Program

(State’s Exhibit 1, Docket Entry Number 475), and who have reached

age 60 or older.” Id. As such, the court found, “[p]sychological

and statistical analyses must be read with respect for their own

stated premises and assumptions.” Id.

Under conclusions of law, the court first noted, Petitioner

bears the burden to demonstrate “probable cause” that further

evidentiary review be held. Id. at 345. The court opined its

task was limited to determining, “whether there is sufficient

evidence to cause a person of ordinary prudence to conscientiously

entertain a reasonable belief that the committed person’s mental

abnormality or personality disorder has so changed that the person

is safe to be at large.” Id. (citation omitted).

The court found: “none of the evidence presented regarding

the Report” or Petitioner’s score on the Static 99R rises to the

level required to make a finding of probable cause to believe that

it is safe to release the person. Id. Indeed, the court held the

Static-99R shows Petitioner, “still presents a risk of

recidivism.” Id. The court noted, even the Treatment Progress

Review showing some participation in therapy reflects “continued

failure to participate in other recommended therapy.” Id. As

14

such, the court opined, even viewing the facts in the light most

favorable to Petitioner, it could not conclude Petitioner “is safe

to be at large.” Id.

III. EVIDENTIARY HEARING

Established case law instructs that a habeas petitioner

carries the burden to establish a need for an evidentiary hearing.

See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th

Cir. 2011) (opining a petitioner bears the burden of establishing

the need for an evidentiary hearing with more than speculative and

inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012).

After review, the Court concludes it can "adequately assess

[Petitioner's] claims without further factual development," Turner

v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541

U.S. 1034 (2004). The Court finds Petitioner has not carried his

burden and is not entitled to an evidentiary hearing. Schriro v.

Landrigan, 550 U.S. 465, 474 (2007).

III. THE PETITION

The Petition is timely filed. Response at 3. Respondents

assert that ground one of the Petition, the Daubert claim, is

procedurally defaulted. Response at 7-8.

IV. HABEAS REVIEW

The Court will analyze Petitioner’s claims under 28 U.S.C. §

2254(d), otherwise known as the Antiterrorism and Effective Death

15

Penalty Act (AEDPA). Response at 4-5. Federal courts may not

grant habeas relief unless one of the claims: "(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)." Nance v. Warden, Ga.

Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019), cert.

denied, No. 19-6918, 2020 WL 1325907 (U.S. Mar. 23, 2020). See

Sealey v. Warden, Ga. Diagnostic Prison, No. 18-10565, 2020 WL

1527977, at *9 (11th Cir. Mar. 31, 2020).

The Eleventh Circuit explained:

A decision is “contrary to” clearly

established federal law “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.”

Williams [v. Taylor, 529 U.S. 362 (2000)] at

413, 120 S. Ct. 1495. A state court decision

involves an unreasonable application of

federal law “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. To justify issuance of

the writ under the “unreasonable application”

clause, the state court’s application of

Supreme Court precedent must be more than just

wrong in the eyes of the federal court; it

“must be ‘objectively unreasonable.’”

Virginia v. LeBlanc, ––– U.S. ––––, 137 S. Ct.

1726, 1728, 198 L.Ed.2d 186 (2017)(quoting

16

Woods v. Donald, ––– U.S. –––, 135 S. Ct. 1372,

1376, 191 L.Ed.2d 464 (2015)); see also Bell

v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843,

152 L.Ed.2d 914 (2002) (explaining that “an

unreasonable application is different from an

incorrect one.”).

Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1330–31 (11th Cir.

2019).

For a petitioner to prevail, the state court decision must

unquestionably conflict with Supreme Court precedent, not dicta.

Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fair-

minded jurists could agree with the lower court's decision, habeas

relief must be denied. Meders v. Warden, Ga. Diagnostic Prison,

911 F.3d 1335, 1351 (11th Cir.), cert. denied, 140 S. Ct. 394

(2019). Therefore, unless a petitioner shows the state-court's

ruling was so lacking in justification that there was error well

understood and comprehended in existing law beyond any possibility

for fair-minded disagreement, there is no entitlement to habeas

relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

“The state court’s factual determinations are presumed

correct, absent clear and convincing evidence to the contrary.”

Sealey, 2020 WL 1527977, at *9 (quoting 28 U.S.C. § 2254(e)(1)).

This presumption of correctness, however, applies only to findings

of fact, not mixed determinations of law and fact. Brannan v.

GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per

17

curiam) (recognizing the distinction between a pure question of

fact from a mixed question of law and fact), cert. denied, 573

U.S. 906 (2014). Where there has been one reasoned state court

judgment rejecting a federal claim followed by an unexplained order

upholding that judgement, federal habeas courts employ a "look

through" presumption: "the 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) (Wilson).

Finally, all that is required is a rejection of the claim on

the merits, not an opinion that explains the state court’s rational

for its ruling. Wright v. Sec’y for the Dep’t of Corr., 278 F.3d

1245, 1255 (11th Cir. 2002). Therefore, to the extent

Petitioner’s claims were adjudicated on the merits, the claims

must be evaluated under section 2254(d) and the evaluation is

limited to examining whether the highest state court’s resolution

of the claim is contrary to, or an unreasonable application of,

clearly established law, as set forth by the United States Supreme

Court. Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008),

cert. denied, 555 U.S. 1183 (2009).

18

V. EXHAUSTION AND PROCEDURAL DEFAULT

A petition for writ of habeas corpus should not be entertained

unless the petitioner has first exhausted his state court remedies.

Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455

U.S. 509 (1982). A procedural default arises "when 'the

petitioner fails to raise the [federal] claim in state court and

it is clear from state law that any future attempts at exhaustion

would be futile.'" Owen v. Sec'y, Dep't of Corr., 568 F.3d 894,

908 n.9 (11th Cir. 2009) (quoting Zeigler v. Crosby, 345 F.3d 1300,

1304 (11th Cir. 2003)), cert. denied, 558 U.S. 1151 (2010).

In order to be exhausted, a federal claim must be fairly

presented to the state courts such that the state court was alerted

to the federal nature of the claim. Baldwin v. Reese, 541 U.S.

27, 32 (2004) (for example, by including the federal source of

law, by referencing a case deciding such a claim on federal

grounds, or by labeling the claim federal). The end-goal is the

state court be given a meaningful opportunity to address the

federal claim. McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.

2005), cert. denied, 547 U.S. 1073 (2006). Presenting facts to

support a federal claim or making a similar state law claim does

not satisfy the exhaustion requirement. See Lucas v. Sec’y, Dep’t

19

of Corr., 682 F.3d 1342, 1351-52 (11th Cir. 2012), cert. denied,

568 U.S. 1104 (2013).

There are, however, allowable exceptions to the procedural

default doctrine; "[a] prisoner may obtain federal review of a

defaulted claim by showing cause for the default and prejudice

from a violation of federal law." Martinez v. Ryan, 566 U.S. 1,

10 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

To demonstrate cause, a petitioner must show some objective factor

external to the defense impeded his effort to properly raise the

claim in state court. Wright v. Hopper, 169 F.3d 695, 703 (11th

Cir.), cert. denied, 528 U.S. 934 (1999). If cause is established,

a petitioner must demonstrate prejudice. To demonstrate

prejudice, a petitioner must show "there is at least a reasonable

probability that the result of the proceeding would have been

different had the constitutional violation not occurred." Owen,

568 F.3d at 908. Alternatively, a petitioner may obtain review

if he demonstrates a fundamental miscarriage of justice will result

if the Court does not reach the merits of the claim.

VI. GROUNDS FOR RELIEF

A. Ground One – the Daubert Claim

In his first ground of the Petition, Petitioner raises a

Daubert claim, asserting there was a “bogus pedophile diagnosis”

20

and claiming he has been deprived of a meaningful means to

challenge the diagnosis, in violation of due process of law.

Petition at 6. Petitioner raised a comparable claim in his appeal

brief upon the trial court’s finding there was no probable cause

to believe Petitioner’s condition had so changed that it was safe

for him to be at large. Ex. B at 8-24. Petitioner complained his

counsel would not adopt his pro se Daubert motion challenging the

underlying conviction and subsequent determination that as a

pedophile he needed to be committed to long-term civil commitment

and be subjected to treatment to address sexual interests,

distorted attitudes and behaviors, socio-affective issues, and

self-management.

The state, in its response brief, noted that when Petitioner

complained about his counsel’s failure to adopt Petitioner’s pro

se Daubert motion, the trial court told Petitioner his conviction

was a matter of law and could not be overturned. Ex. C at 5.

Notably, Petitioner’s underlying 1993 criminal conviction and his

subsequent civil commitments in 2000 and 2008 were a matter of law

and could not be challenged. See Response at 9. The Fifth

District Court of Appeal (5th DCA), on May 2, 2017, per curiam

affirmed the decision of the circuit court. Ex. E. The mandate

issued on May 22, 2017. Ex. F.

21

After due consideration, the Court concludes Petitioner’s

Daubert claim is unexhausted and procedurally defaulted. Ms.

Beeching never adopted the pro se Daubert motion. The trial court

did not address or rule on the merits of the motion as Petitioner

was not entitled to hybrid representation. Sams v. State, 849 So.

2d 1172, 1174 (Fla. 3d DCA 2003) (per curiam) (“Neither the Federal

nor the Florida Constitution’s right to counsel provision embodies

a right to hybrid representation.”). Petitioner elected to keep

his appointed counsel after the trial court found counsel did not

perform deficiently. Thus, the record shows Petitioner was

represented by counsel, counsel never adopted the Daubert motion,

and the Daubert claim is unexhausted. As such, the claim is barred

from this Court’s review.

Petitioner has failed to establish cause and prejudice or

satisfy the actual innocence gateway exception to excuse this

defaulted claim. Thus, ground one is due to be denied as barred.

B. Ground Two – the Nelson Claim

In the second ground of the Petition, Petitioner raises a

Nelson claim, claiming the trial court abused its discretion by

failing to conduct an adequate inquiry and appoint substitute

counsel, depriving him of due process of law. Petition at 14.

Petitioner raised a comparable claim in his appeal brief upon the

22

trial court’s finding there was no probable cause to believe

Petitioner’s condition had so changed that it was safe for him to

be at large. Ex. B at 25-40. The 5th DCA affirmed. Ex. E.

This Court is bound by the Florida court’s interpretation of

its own laws unless that interpretation breaches a federal

constitutional mandate, which in this instance, it did not. McCoy

v. Newsome, 953 F.2d 1252, 1264 (11th Cir.) (per curiam), cert.

denied, 504 U.S. 944 (1992). Whether the trial court performed a

proper and adequate Nelson inquiry is certainly a matter of state

law. Thus, even if the Nelson inquiry was inadequate, “it is not

the province of a federal habeas court to reexamine state-court

determination on state-law questions.” Estelle v. McGuire, 502

U.S. 62, 67 (1991).

In the alternative, to the extent Fifth and Fourteenth

Amendment claims were raised and addressed, the adjudication of

the state court resulted in a decision that involved a reasonable

application of clearly established federal law, as determined by

the United States Supreme Court. Therefore, Petition is not

entitled to relief on this ground because the state court’s

decision 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

23

the facts based on the evidence presented in the state court

proceedings. Therefore, ground two is due to be denied.

C. Ground Three – Probable Cause for Release

In his third ground for relief, Petitioner claims the trial

court abused its discretion by finding no probable cause for

release although Petitioner is over sixty years of age, he

submitted statistical support showing significant reduction in

reoffending based on age, and the Static-99R now accounts for age.8

Petition at 20. Petitioner raised a comparable claim in his appeal

brief upon the trial court’s finding there was no probable cause

to believe Petitioner’s condition had so changed that it was safe

for him to be at large. Ex. B at 40-48. The 5th DCA affirmed the

trial court’s decision. Ex. E.

On appeal, the state responded through its Answer Brief:

In this case, the trial court determined

that probable cause had not been shown that

Appellant’s condition had so changed that it

was safe for him to be at large and that he

would not engage in any acts of sexual

violence if discharged. The trial court’s

factual findings are supported by competent

substantial evidence. The Treatment Progress

Report and recommendation by Dr. Depass

determined that Appellant, who has yet to

participate in the Comprehensive Treatment

Program, had yet to fully address relevant

8 Petitioner also claims he has been deprived of sexual offender

treatment for over sixteen years, depriving him of due process of

law. Petition at 20.

24

treatment issues and that his condition has

not so changed that he is safe to be at large.

Therefore, the trial court did not err by

finding that there was not probable cause to

believe that Appellant’s condition had so

changed that it was safe for him to be at large

and that he would not engage in any acts of

sexual violence if discharged. See §

394.918(3), Fla. Stat.

Ex. C at 8-9.

The 5th DCA affirmed the decision of the trial court. Ex.

E. By affirming, the appellate court apparently determined there

was sufficient evidence to sustain the trial court’s finding there

was not probable cause to believe that Petitioner’s condition had

so changed it was safe for him to be at large. Indeed, the 5th

DCA’s affirmance of the decision of the trial court is an

adjudication on the merits entitled to AEDPA deference.

Therefore, the Court employs the “look through” presumption. The

Court looks through the unexplained 5th DCA’s decision to the last

related state court decision (the trial court’s decision finding

lack of probable cause) and presumes the unexplained 5th DCA’s

decision adopted the same reasoning as the trial court. Wilson.

The Court is convinced that fair-minded jurists could agree

with the state court’s decision. The trial court found none of

the evidence presented was so convincing that it would “entertain

a reasonable belief that the committed person’s mental abnormality

25

or personality disorder has so changed that the person is safe to

be at large.” Ex. A at 345 (citation omitted). The court found

the Static 99R itself showed Petitioner still presents a risk of

recidivism even though he is now reached sixty years of age.

Importantly, the record also demonstrates Petitioner refused to

participate in recommended therapy although his conviction is

considered final and he has fully served his criminal sentence.9

Id.

The record supports these conclusions. The Treatment

Progress Report shows Petitioner has failed to fully address

relevant treatment issues by refusing to participate in the CTP at

the FCCC. Ex. A at 351-52. Petitioner has not been deprived of

treatment, as he alleges; he has refused to participate in the CTP

offered at FCCC. The Static-99R Coding Form completed by Dr.

Waldman, Petitioner’s own expert, shows Petitioner is still in the

low-moderate risk category. Ex. A at 216. The record shows

Petitioner has not entered the CPT program. There is not

9 Unlike the committed person in Chukes v. State, 90 So. 3d 950,

955-56 (Fla. 5th DCA 2012) (finding the defendant presented

sufficient evidence at the limited probable cause hearing such

that he was entitled to a full trial after the expert opined

defendant had undergone serious changes as a result of

participation in an intensive long term treatment program – Chukes

was already in Level III of the program - and was presently

determined to be safe to be at large), Petitioner has not

progressed, or even started, the CTP treatment program.

26

sufficient evidence to cause a person of ordinary prudence to

conscientiously entertain a reasonable belief that Petitioner’s

mental abnormality or personality disorder has so changed that

Petitioner is safe to be at large. See Holder v. State, 123 So.

3d 136, 140 (Fla. 5th DCA 2013) (the defendant relied on two

psychologists’ report recommending release).

In this regard, the 5th DCA did not act contrary to Jackson

v. Virginia, 443 U.S. 307, 319 (1979), or other clearly established

federal law, when it concluded that there was sufficient evidence

to sustain the trial court’s decision. The decision of the 5th

DCA is entitled to AEDPA deference. The adjudication of the claim

is not contrary to or an unreasonable application of federal law

or based on an unreasonable determination of the facts.

Therefore, Petitioner is not entitled to habeas relief on ground

three and ground three is due to be denied.

D. Ground Four – Sexually Violent Predators Act

In his fourth ground for habeas relief, Petitioner raises a

claim of the unconstitutionality of the Involuntary Civil

Commitment of Sexually Violent Predators Act (Act), Fla. Stat. §

394.910 (“Jimmy Ryce Act”). He contends the Act is overbroad,

unconstitutionally vague, and is punitive because he will never

accept treatment under the Act. Petition at 26.

27

Petitioner raised a comparable claim in ground or issue three

of his state petition for writ of habeas corpus before the circuit

court of DeSoto County. Ex. G at 30-31. The circuit court denied

the petition, id. at 663-74, finding the Act constitutional in

reliance on Westerheide v. State, 767 So. 2d 637 (Fla. 5th DCA

2000), decision approved by 831 So. 2d 93 (Fla. 2002). Ex. G at

670 n.17.

Upon review, the Act is not unconstitutionally punitive as it

is similar to the Kansas Sexually Violent Predator Act in many

respects, Barker v. Sheldon, No. 2:09-cv-701-FtM-29SPC, 2010 WL

672767, at *3 n.3 (M.D. Fla. Feb. 23, 2010) (not reported in

F.Supp.2d) (“Florida’s Ryce Act is similar to the Kansas Sexually

Violent Predator Act in many respects.”) (citation omitted). In

Kansas v. Hendricks, 521 U.S. 346 (1997), the United States Supreme

Court found that involuntary confinement pursuant to the Kansas

Act was not punitive because the Act did not establish criminal

proceedings. The same can be said of Florida’s Act. See Despart

v. Kearney, No. 2:02-cv-4-FtM-29DNF, 2006 WL 2789007, at *6 (M.D.

Fla. Sept. 26, 2006) (not reported in F.Supp.2d) (dismissing a

claim of unconstitutionality as punishment). Indeed, the Florida

Act “is a civil act-not criminal.” Larimore v. Sec’y, Fla. Dep’t

of Children and Families, No. 3:14-cv-660-J-32JBT, 2017 WL

28

3268887, at *4 (M.D. Fla. Aug. 1, 2017) (not reported in F.Supp.)

(citation omitted).

Petitioner argues the Act is void for vagueness and overbroad.

Again, the Florida Act is similar to the Kansas Act in many

respects. As the circuit court found, “[i]t is not only legal but

it is contemplated as part of the Act that the individual’s past

criminal conduct is used as evidence of the individual’s mental or

personality disorder to determine whether he or she is a sexually

violent predator subject to commitment.” Ex. G at 670 (footnote

omitted). Although the Florida Act permits indefinite

commitments, “Petitioner has been continually detained because he

has not completed recommended treatment.” Id.

Addressing Petitioner’s obstinacy in refusing to participate

in CTP, the circuit court said:

Petitioner refuses to admit to the allegations

against him in order to begin his treatment.

He argues that admitting the allegations is a

violation of his right against self-

incrimination. However, admitting allegations

for treatment purposes after commitment is not

self-incrimination because he has already been

found guilty of the underlying crime and found

to be a predator. At this point, he has been

convicted of the sex offense, affirmed on

appeal, served his sentence, and been civilly

committed. Therefore, there is no “self-

incrimination” possible as to the 1993

conviction because he cannot be re-tried for

an offense he already served his sentence on

[sic].”

29

Id. (footnote omitted) (emphasis added).

The circuit court of DeSoto County denied the petition. Id.

at 674. On June 28, 2017, the Second District Court of Appeal

affirmed per curiam. Ex. K. The mandate issued on July 25, 2017.

Ex. L.

Here, like in Hendricks, Petitioner has been diagnosed as

suffering from pedophilia, “a condition the psychiatric profession

itself classifies as a serious mental disorder.” Hendricks, 521

U.S. at 360. The purpose of a “Jimmy Ryce” Act is to hold the

person until the “mental abnormality no longer causes him to be a

threat to others.” Id. at 363. As noted by the circuit court in

denying the petition, Petitioner cannot challenge the fact-finding

through a state petition for writ of habeas corpus because it is

not a vehicle for raising issues which should have been raised on

appeal or in postconviction proceedings. Ex. G at 671.

The 2nd DCA’s decision affirming the trial court’s decision

denying Petitioner’s claim of unconstitutionality of the Act is

not contrary to, nor an unreasonable application of controlling

Supreme Court precedent or based on an unreasonable determination

of the facts. Ex. K. Therefore, Petitioner is not entitled to

habeas relief on this ground and ground four is due to be denied.

30

E. Ground Five – Florida Civil Commitment Center’s Reviews

In his fifth ground for relief, Petitioner challenges the way

FCCC conducts its annual determinations and reviews. Petition at

30. He raised a similar claim in ground or issue four of his

state petition for writ of habeas corpus. Ex. G at 32. In denying

this ground, the circuit court of DeSoto County opined: “treatment

and training decisions made by a professional are presumptively

valid[.]” Id. at 672. The court referenced Petitioner’s inability

to benefit from FCCC’s treatment due to Petitioner’s failure to

admit he has a problem and seek therapy. Id. at 673.

Significantly, the court found Petitioner’s current complaints

about the sufficiency of the evidence presented during his annual

reviews is akin to Petitioner improperly attempting a collateral

attack on a sister court’s final order. Id. Finally, the court

found any incident from 2002 too far removed to support a request

for habeas relief “on the basis of improper conditions of

confinement in 2016.” Id. at 674. As such, the circuit court

denied the petition. Id. The 2nd DCA affirmed. Ex. K.

Petitioner is not entitled to habeas relief on this ground.

The 2nd DCA’s decision is entitled to deference. The decision is

not inconsistent with Supreme Court precedent, and the state

court’s adjudication of this claim is not contrary to or an

31

unreasonable application of Supreme Court law or based on an

unreasonable determination of the facts.

As noted by Respondents, the FCCC staff exercised

professional judgment, finding Petitioner has yet to fully address

relevant treatment issues for his pedophilia (sexual interests,

distorted attitudes and behaviors, socio-affective issues, and

self-management). Morel v. Wilkins, 84 So. 3d 226, 237 (Fla.

2012) (per curiam) (treatment and training decisions made by a

professional are presumptively valid). Notably, Petitioner has

outright refused to participate in the CTP offered by the FCCC;

therefore, the circuit court’s reluctance to find probable cause

to believe Petitioner’s condition has so changed that it is safe

for him to be at large and the person will not engage in acts of

sexual violence if discharged is not an unreasonable determination

under the circumstances, particularly when Petitioner still falls,

according to his own expert, in the low-moderate risk category

even though he has reached the age of sixty. Ex. A at 216.

The FCCC’s annual examinations of Petitioner’s mental

condition are not so far outside the bounds of professional norms

that they would be considered to be unexercised professional

judgments. Indeed, there is not such a departure from

professional standards in this record that Petitioner has been

32

deprived of due process of law. Youngberg v. Romeo, 457 U.S. 307,

321 (1982) (the requirement is the courts make certain professional

judgment was exercised, not to specify which choice should have

been made). Therefore, Petitioner is not entitled to habeas

relief on ground five.

VII. OBJECTION

Petitioner filed an Objection (Doc. 13) to the Magistrate

Judge’s Order (Doc. 12) striking as untimely filed Petitioner’s

Notice of New Evidence – Grievance #18129 (Doc. 10) and Additional

Notice of New Evidence – Substantive Due-Process Violations (Doc.

11). The Court construes the objection as a request for a de novo

review of the Magistrate Judge’s Order. Upon review, Petitioner

has failed to show the Magistrate Judge’s Order (Doc. 12) is

clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(a)(A).

Therefore, Petitioner’s Objection (Doc. 13) is due to be denied.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. Petitioner’s Objection (Doc. 13) is DENIED.

2. The Petition for Writ of Habeas Corpus (Doc. 1) is

DENIED.

3. This action is DISMISSED WITH PREJUDICE.

33

4. The Clerk shall enter judgment accordingly and close

this case.

5. If Petitioner appeals the denial of his Petition for

Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of

appealability. !° Because this Court has determined that a

certificate of appealability is not warranted, the Clerk shall

terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

April, 2020.

4 7 De

af J. DAVIS

United States District Judge

10 This Court should issue a certificate of appealability only if

a petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253 (2). To make this

substantial showing, 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) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Upon due consideration, this Court will

deny a certificate of appealability.

34

sa 4/20

c:

Daryl L. Lavender

Counsel of Record

35