# Lavender v. Caroll

> District Court, M.D. Florida · April 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10105080

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
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.

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105080. Public record. Not legal advice.