# Hagen v. Secretary, Department of Corrections

> District Court, M.D. Florida · May 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10105127

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 13, 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
TAMPA DIVISION

JEFFRY HAGEN, JR.,

Applicant,

v. CASE NO. 8:16-cv-2191-T-23AEP

SECRETARY, Department of Corrections,

Respondent.
____________________________________/

ORDER

Hagen applies under 28 U.S.C. § 2254 for the writ of habeas corpus. (Doc. 1)
He challenges his convictions for four counts of sexual battery on a child less than
twelve and a count of both lewd or lascivious exhibition before a child under sixteen
and lewd and lascivious molestation of a child under twelve, for which six
convictions Hagen is imprisoned for life. Numerous exhibits (“Respondent’s
Exhibit __”) support the response. (Doc. 10)
The child-victim (“J.D.”) of the sexual abuse is the half-sister of the daughter
Hagen fathered with the two girls’ mother. The respondent admits the application’s
timeliness (Response at 3) and correctly argues that some grounds are procedurally
barred from federal review. Hagen fails to prove his entitlement to relief under
Section 2254.
I. BACKGROUND1
Hagen and J.D.’s mother (Ms. Thomas) have a child together; the child is the
half-sister of J.D. In March, 2011, nine-year-old J.D. spontaneously disclosed to her
mother that Hagen had sexually molested her in several different ways over an

extended period. Thomas immediately contacted both the Florida Child Abuse
Hotline and her local police department. Concurrent criminal and Department of
Children and Families (“DCF”) investigations began the following day in Sarasota
and Manatee counties. As part of those investigations, a case coordinator for the
Sarasota Child Protection Center conducted a forensic interview with J.D, and

during that interview J.D. again disclosed that Hagen had sexually abused her.
Detective McGath of the Sarasota County Sheriff ’s Office was assigned to
investigate the criminal allegation of sexual abuse. Detective McGath was both
present at J.D.’s forensic interview and in contact with DCF investigators. Before
meeting Hagen on March 16, 2011, Detective McGath knew that Hagen had a 2002

Michigan juvenile conviction for child sexual abuse of his then-seven-year-old
brother, D.R.
II. EXHAUSTION AND PROCEDURAL DEFAULT
The respondent argues that sub-parts B–E of ground one are procedurally

barred from federal review, primarily because Hagen failed to fully exhaust his
available state court remedies. An applicant must present each claim to a state court

1 This summary of the facts derives from the trial court’s order denying Hagen’s pre-trial
motion to suppress. (Respondent’s Exhibit 17 at 2–3)
before raising the claim in federal court. “[E]xhaustion of state remedies requires
that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to give the
State the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’
federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S.

270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously
enforced total exhaustion rule will encourage state prisoners to seek full relief first
from the state courts, thus giving those courts the first opportunity to review all
claims of constitutional error.”). “To provide the State with the necessary
‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state

court (including a state supreme court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27,
32 (2004) (citing Duncan).
The respondent argues that Hagen never identified sub-parts B, C, and E as a
federal issue in his direct appeal. Instead, the respondent argues, Hagen presented

sub-parts B, C, and E to the appellate court as an abuse of discretion under state law
and not as a violation of a federally protected right. Similarly, the respondent argues
that Hagen presented sub-part D to the trial court as an abuse of discretion under
state law and not as a violation of a federally protected right.
Each sub-part is discussed more thoroughly below, but generally the failure to

alert the state court about the alleged violation a federally protected right fails to
meet the exhaustion requirement. As Reese explains, 541 U.S. at 32, an applicant
must alert the state court that he is raising a federal claim and not just a state law
claim.
A litigant wishing to raise a federal issue can easily indicate the
federal law basis for his claim in a state-court petition or brief,
for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim
on federal grounds, or by simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support the
federal claim were before the state courts, or that a somewhat similar state-law claim
was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec’y for Dep’t
of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a
habeas applicant to do more than scatter some makeshift needles in the haystack of
the state court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578
(11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court of his
state with the appropriate jurisdiction of the federal rights which allegedly were
violated.”). An applicant must present to the state court the same claim presented to
the federal court. Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state
prisoner to present the state courts with the same claim he urges upon the federal
courts.”). “Mere similarity of claims is insufficient to exhaust.” Duncan, 513 U.S.
at 366.
In reply Hagen argues that exhaustion is complete because in his appellate
brief he cited state cases that address the same federal claims. Hagen cites Preston v.

Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 457 (11th Cir. 2015), which recognizes the
language in Reese that the exhaustion requirement is met “by citing in conjunction
with the claim . . . a [state] case deciding such a claim on federal grounds . . . .”
541 U.S. at 32.
A. Ground One, Sub-Part B:
Hagen alleges that the trial court erred in allowing the prosecutor to introduce

the child hearsay statements of both J.D. (the child-victim) and D.R. (Hagen’s
younger brother). Unquestionably, Hagen presented this hearsay claim on appeal as
only a state law evidentiary issue, and the two state cases that he cited in his opening
brief are also limited to a state law evidentiary issue. (Respondent’s Exhibit 7 at
20–22) As a consequence, Hagen failed to “fairly present” sub-part B to the state

court as a federal claim. Sub-part B of ground one is unexhausted.
B. Ground One, Sub-Part C:
Hagen alleges that the trial court erred in allowing the prosecution to
introduce his prior criminal acts, specifically, his juvenile conviction for child sexual

abuse of his younger brother. Hagen contends that the “probative value of the prior
incident was heavily outweighed by unfair prejudice . . . .” (Doc. 1 at 5)
Unquestionably, Hagen presented this claim on appeal as only a state law
evidentiary issue, and, as with sub-part B, the two state cases that he cited in his
opening brief are also limited to a state law evidentiary issue. (Respondent’s
Exhibit 7 at 22–26)2 Contrary to his apparent belief, the similarity of Florida’s

2 Exhaustion is not complete even though Cann v. State, 958 So. 2d 545 (4th DCA 2007),
which Hagen cited in his opening brief, discusses Maryland v. Craig, 497 U.S. 836 (1990), and the
right to confront one’s accuser under the Confrontation Clause. However, that discussion in Cann
is both for a different issue and not in the part of the opinion that Hagen cites. Hagen asserts a
Confrontation Clause issue in neither the state proceedings nor this federal action.
Evidentiary Code and the Federal Rules of Evidence is immaterial to Hagen’s
fulfilling the exhaustion requirement. As a consequence, Hagen failed to “fairly
present” sub-part C to the state court as a federal claim. Sub-part C of ground one
is unexhausted.

C. Ground One, Sub-Part D:
Hagen alleges that, despite trial counsel’s objection, the trial court erred in
allowing the prosecutor to file a second amended information on the morning of
trial. Hagen’s opening argument on appeal was that “[a] delay by the state prior to
the filing of an information can so adversely affect a defendant’s right to prepare a

defense that it will deny him the fourteenth amendment’s guarantee of due process.”
(Respondent’s Exhibit 7 at 26–27) The brief cites United States v. Lovasco, 431 U.S.
783, 796 (1977), which holds that, in delaying the return of a charging instrument,
“to prosecute a defendant following investigative delay does not deprive him of due
process, even if his defense might have been somewhat prejudiced by the lapse of

time.” Sub-part D of ground one is exhausted.3

3 The respondent argues (1) that, because the trial transcript shows that trial counsel failed to
object on federal grounds, the un-preserved federal claim was barred from review on appeal and
(2) that this federal district court should –– because the affirmance was in a per curiam decision
without a written opinion –– presume that the state appellate court applied the state’s procedural
default rules. Although that presumption is generally a correct statement of federalism, on appeal the
respondent addressed the merits of the claim and never alerted the appellate court that the issue was
unpreserved and procedurally barred. See, e.g., Zeigler v. Crosby, 345 F.3d 1300, 1310 (11th Cir. 2003)
(“We cannot conclude that the Florida Supreme Court’s summary denial of Zeigler’s 1994 habeas
petition was a decision on the merits. In responding to Zeigler’s 1994 habeas petition, the State’s
only argument in response to Zeigler’s claims was that the claims were procedurally defaulted.”),
cert. denied, 543 U.S. 842 (2004); Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir.) (“[W]hen a
procedural default is asserted on appeal and the state appellate court has not clearly indicated that in
affirming it is reaching the merits, the state court’s opinion is based on the procedural default.”),
(continued…)
D. Ground One, Sub-Part E:
Hagen alleges that the cumulative effect of the trial court’s errors asserted in
the previous sub-parts “denied [him] a fair trial and equal protection of the law.”
(Doc. 1 at 5) The respondent argues that Hagen failed to exhaust this claim because

“he did not present the claim as a federal constitutional claim” on direct appeal.
(Doc. 10 at 27) On appeal, Hagen’s opening statement about the standard of review
quotes at length State v. DeGuilio, 491 So. 2d 1129, 1137, 1139 (Fla. 1986),
specifically, the adoption of the harmless error standard enunciated in Chapman v.
California, 386 U.S. 18 (1967). Sub-part E of ground one is exhausted.

E. Conclusion:
As determined above, sub-parts B and C of ground one are unexhausted. The
failure to properly exhaust each available state court remedy causes a procedural
default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)

(“Boerckel’s failure to present three of his federal habeas claims to the Illinois
Supreme Court in a timely fashion has resulted in a procedural default of those
claims.”). See also Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen
it is obvious that the unexhausted claims would be procedurally barred in state court
due to a state-law procedural default, we can forego the needless ‘judicial ping-pong’

cert. denied, 490 U.S. 1071 (1989); Nichols v. Wainwright, 783 F.2d 1540, 1542 (11th Cir. 1986)
(“[T]his court may presume, in the absence of any evidence to the contrary, tha[t] an established
default rule which was briefed to a state court was applied by that court when it affirmed a
conviction without opinion.”).
and just treat those claims now barred by state law as no basis for federal habeas
relief.”).
Because each is unexhausted, sub-parts B and C of ground one are
procedurally defaulted and, as a consequence, each is barred from federal review

absent a showing of “actual cause and prejudice” or “manifest injustice.” Coleman v.
Thompson, 501 U.S. 72, 29–30 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986).
The basis for “cause” must ordinarily reside in something external to the defense.
Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To show “prejudice,” the
petitioner must show “not merely that the errors at his trial created the possibility of

prejudice, but that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.” Hollis v. Davis, 941 F.2d
1471, 1480 (11th Cir. 1991) (emphasis original) (quoting United States v. Frady,
456 U.S. 152, 170 (1982)).
To meet the fundamental miscarriage of justice exception, Hagen must show

constitutional error coupled with “new reliable evidence — whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence —
that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). This
exception is not available unless “petitioner shows, as a factual matter, that he did

not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)
(denying a certificate of probable cause).
Hagen fails to establish either cause and prejudice or a fundamental
miscarriage of justice. Therefore, sub-parts B and C of ground one are both
procedurally barred from federal review and not entitled to a determination on the
merits. Sub-parts A (which the respondent admits is exhausted) and both sub-parts
D and E (which as determined above are exhausted) of ground one and ground two
are entitled to a review on the merits.

III. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
deferential standard for federal court review of a state court adjudication, states in

pertinent part:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim —

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

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

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential
standard:
In sum, § 2254(d)(1) places a new constraint on the power of a
federal habeas court to grant a state prisoner’s application for a
writ of habeas corpus with respect to claims adjudicated on the
merits in state court. Under § 2254(d)(1), the writ may issue
only if one of the following two conditions is satisfied — the
state court adjudication resulted in a decision that (1) “was
contrary to . . . clearly established Federal Law, as determined
by the Supreme Court of the United States” or (2) “involved an
unreasonable application of . . . clearly established Federal law,
as determined by the Supreme Court of the United States.”
Under the “contrary to” clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state
court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical
point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,
and only if, it is so obvious that a clearly established rule applies to a given set of
facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing
Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable
application of ’ those holdings must be objectively unreasonable, not merely wrong;
even clear error will not suffice.”) (citing Woodall, 572 U.S. at 419). Accord Brown v.
Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not
the correctness per se, of the state court decision that we are to decide.”). The phrase
“clearly established Federal law” encompasses only the holdings of the United States
Supreme Court “as of the time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in
order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694.
A federal court must afford due deference to a state court’s decision. “AEDPA

prevents defendants — and federal courts — from using federal habeas corpus review
as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This
is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating state-court

rulings, which demands that state-court decisions be given the benefit of the
doubt’. . . .”) (citations omitted).
When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in the
opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons
given by the state court and defers to those reasons if they are reasonable.”). When
the relevant state-court decision is not accompanied with reasons for the decision,
the federal court “should ‘look through’ the unexplained decision to the last related
state-court decision that does provide a relevant rationale [and] presume that the
unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. The
State may contest “the presumption by showing that the unexplained affirmance
relied or most likely did rely on different grounds than the lower state court’s

decision . . . .” Wilson, 138 S. Ct. at 1192.
In a per curiam decision without a written opinion the state appellate court
on direct appeal affirmed Hagen’s convictions and sentence. (Respondent’s
Exhibit 9) Similarly, in another per curiam decision without a written opinion the
state appellate court affirmed the denial of Hagen’s subsequent Rule 3.850 motion

for post-conviction relief. (Respondent’s Exhibit 13) The state appellate court’s
per curiam affirmances warrant deference under Section 2254(d)(1) because “the
summary nature of a state court’s decision does not lessen the deference that it is
due.” Wright v. Moore, 278 F.3d 1245, 1254, reh’g and reh’g en banc denied, 278 F.3d

1245 (11th Cir. 2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003).
See also Richter, 562 U.S. at 100 (“When a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.”), and Bishop v. Warden, 726 F. 3d 1243,

1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or
“analysis” and a “decision” or “ruling” and explaining that deference is accorded
the state court’s “decision” or “ruling” even absent an “opinion” or “analysis”).
As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is
limited to the record that was before the state court:
We now hold that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits. Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a decision that was
contrary to, or “involved” an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was made.
It follows that the record under review is limited to the record
in existence at that same time, i.e., the record before the state
court.

Hagen bears the burden of overcoming by clear and convincing evidence a state
court’s fact determination. “[A] determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact
but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836
(11th Cir.), cert. denied, 534 U.S. 1046 (2001). Both the state court’s rejection of
Hagen’s direct appeal claims, which was based on the trial court’s pre-trial order
denying Hagen’s motion to suppress, and the post-conviction court’s denial of
Hagen’s claims of ineffective assistance of counsel warrant deference in this case.
(Respondent’s Exhibits 17 and 11, respectively)
IV. DIRECT APPEAL CLAIMS
A. Ground One, Sub-Part A:
Hagen alleges that the trial court erred in denying his pre-trial motion to
suppress both his pre-Miranda and post-Miranda statements because (1) he was not
advised that he was the target of the investigation and (2) that he was “in custody”
because he felt that he was not free to leave. The respondent broadly interprets this
ground to the extent that Hagen exhausted his claims in the state courts (Response
at 6, Doc. 13):

On direct appeal, Hagen argued that all of his statements, both
those made before Miranda warnings were given and those
made after, should have been excluded because he was in
custody at the time of his pre-Miranda statements and his post-
Miranda statements were obtained by using a ‘question-first’
tactic to obtain a confession.

The trial court conducted a lengthy pre-trial suppression hearing and issued a
written order of findings of fact and conclusions of law. (Respondent’s Exhibit 17)
As stated above, because the state appellate court affirmed the convictions without a
written opinion, a federal court “should ‘look through’ the unexplained decision to
the last related state-court decision that does provide a relevant rationale [and]
presume that the unexplained decision adopted the same reasoning.” Wilson,
138 S. Ct. at 1192. As a consequence, this district court must “look through” to the
trial court’s written order denying the motion to suppress.
The trial court described Hagen’s claim as follows (Respondent’s Exhibit 7
at 6):
10. The Defense seeks to suppress the Defendant’s March 16,
2011, statement to law enforcement for several reasons
including (1) the Defendant was subject to custodial
interrogation prior to the reading of Miranda; (2) law
enforcement used the “question first” tactic to obtain an
inadmissible confession; and (3) the Defendant’s confession
was the product of implied promises of leniency and improper
influence.
The trial court explained that, under Ramirez v. State, 739 So. 2d 568, 574, (Fla.
1999), four factors govern the findings of fact for determining whether a person is
“in custody” (Respondent’s Exhibit 17 at 7):
In Florida, a court must consider the following four factors:
(1) the manner in which police summon the suspect for
questioning; (2) the purpose, place, and manner of the
interrogation; (3) the extent to which the suspect is confronted
with evidence of his or her guilt; and (4) whether the suspect is
informed that he or she is free to leave the place of questioning.

1. Pre-Miranda Statement:
The trial court’s detailed order sequentially addresses the above four factors in
the following findings of fact (Respondent’s Exhibit 17 at 8–9):
14. As to the manner in which the police summoned the
defendant for questioning, the Court finds that law enforcement
responded to the local DCF office in response to the Defendant
going there on his own to find out information about a
potential DCF investigation involving his biological daughter
with Thomas. There is no evidence to suggest that law
enforcement summoned or otherwise had the Defendant for
questioning either directly or by subterfuge.

15. As to the purpose, place, and manner of the interrogation,
the Court finds that Detective McGath went to the local DCF
office because the Defendant appeared there asking questions
that could affect her criminal investigation. After meeting the
Defendant, McGath took advantage of the opportunity to
interview the Defendant to determine whether he had sexually
abused J.D. or any other child. The Defendant was unaware of
McGath’s focus until she explicitly confronted him and read
him Miranda. The entire interview took place in a furnished
conference room at the local DCF office. No portion of the
interview was conducted in any type of secure, law enforce-
ment facility. In addition to the two detectives, a DCF
investigator was also present. The detectives were dressed in
plain clothes and wore waist badges. There was no evidence
that either detective carried or displayed a firearm or other
weapon. The interview took place at a table during which
McGath primarily questioned the Defendant due to her prior
knowledge of the case. The early afternoon interview was
relatively short.

16. As to the extent to which the suspect is confronted with
evidence of his guilt, the Court finds that the Defendant was
not directly confronted with evidence of his guilt until Detective
McGath read him his Miranda Rights and specifically accused
him of sexually molesting J.D.

17. As to whether the suspect was informed that he was free to
leave the place of questioning, the Court finds that during the
initial portion of the pre-Miranda interview, there is no evidence
to suggest that anyone told the Defendant that he was free to
leave. The Court cannot ignore the Defendant’s own testimony
however about his perceived need to stay and talk –– he
testified at the hearing on this motion [to suppress] that “I
thought if I left it would look bad for me in terms of me trying
to get custody again.” From this statement, as concerned as the
Defendant may have been about his sexual abuse of J.D. being
discovered, he was much more concerned about what could be
going on with Thomas and their biological daughter and how
that would affect his opportunity to be with his daughter. The
Defendant made a deliberate decision in his own mind to stay
and speak with the detectives.

Based on the above findings, the trial court concluded as follows
(Respondent’s Exhibit 17 at 9):
18. Under all of these circumstances, the Court finds that
during the pre-Miranda portion of the interview, a reasonable
person in the Defendant’s position would have felt that he was
free to leave or end the interview with the detectives and the
DCF investigator. As a result, the pre-Miranda portion of the
interview was not custodial.

Because the state court recognized that Miranda governs, Hagen cannot show
that the state court’s decision is contrary to a controlling Supreme Court decision.
Instead, Hagen must prove that the state court’s decision either is an unreasonable
application of controlling Supreme Court precedent or is based on an unreasonable
determination of the facts. In his reply Hagen asserts a slightly different
interpretation of the facts but never attempts to show that the trial court’s findings of
fact are unreasonable, much less unreasonable by clear and convincing evidence as
required under Section 2254(e)(1) –– “a determination of a factual issue made by a
State court shall be presumed to be correct [and t]he applicant shall have the burden

of rebutting the presumption of correctness by clear and convincing evidence.” As a
consequence, the state court’s findings of fact govern this district court’s review of
Hagen’s claim.
In his reply Hagen cites three cases as supporting his entitlement to relief,
but none of the cases shows that the state appellate court’s ruling violates the

“unreasonable application” standard. Instead of supporting Hagen’s position,
Stansbury v. California, 511 U.S. 318, 322–23 (1994), and Berkemer v. McCarty,
468 U.S. 420, 442 (1984), support the state court’s ruling. The latter explains that,
in determining whether a person is “in custody” to trigger the need for Miranda
warnings, “the only relevant inquiry is how a reasonable man in the suspect’s

position would have understood his situation.” Stansbury, 511 U.S. at 322–23,
addresses determining whether a person was “in custody” when questioned.
In determining whether an individual was in custody, a court
must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there
was a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.

Our decisions make clear that the initial determination of
custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.
Consistent with Berkemer’s “only relevant inquiry” and Stansbury’s focus on “the
objective circumstances of the interrogation,” the trial court concluded that “a
reasonable person in [Hagen]’s position would have felt that he was free to leave or
end the interview . . . .”

Lastly, Hagen cites Illinois v. Perkins, 496 U.S. 292 (1990), for the proposition
that “Miranda’s procedural protections were adopted precisely in order to dispel the
compulsion inherent in custodial surroundings.” (Doc. 19 at 4–5) Although a
correct proposition of law, Perkins is inapplicable based on both the trial court’s
controlling findings about the surroundings where the interview occurred and the

conclusion that “the pre-Miranda portion of the Hagen’s interview was not
custodial.” The appellate court’s affirmance of Hagen’s convictions is not an
unreasonable application of controlling Supreme Court precedent. As such, Hagen
fails to meet his burden under Section 2254(d).

2. Post-Miranda Statements:
The trial court’s detailed order states, in pertinent part, the following findings
of fact (Respondent’s Exhibit 17 at 9):
19. The Court further finds that once Detective McGath
decided to question the Defendant point blank about whether
he sexually abused J.D., she read him his Miranda Rights and
also had him sign a written waiver. There is no evidence to
indicate that the Defendant did not understand his rights or that
he was pressured or coerced in any way to talk to the detectives
and the DCF investigator. There is no evidence to suggest that
the Defendant was under the influence of any intoxicating
substance or mentally or physically impaired in any way. After
being read Miranda and confronted directly with specific
allegations, the Defendant voluntarily spoke with detectives. At
first, he tacitly admitted that he had abused J.D.; he eventually
described some of his acts of sexual abuse in detail.

In addressing Hagen’s claim that the officers subjected him to the “question
first” tactic, the trial court recognized the correct governing precedent (Respondent’s
Exhibit 17 at 10):
In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court
condemned the “question first” technique because it essentially
renders subsequent Miranda warnings ineffective. When
considering this issue a court must consider the following
factors:

The completeness and detail of the questions and
answers in the first round of interrogation, the
overlapping content of the two statements, the
timing and setting of the first and second, the
continuity of police personnel, and the degree to
which the interrogator’s questions treated the
second round as continuous with the first.

Seibert, 542 U.S. at 615.

The trial court thoroughly addressed each of Seibert’s five factors and concluded that
the police did not employ a “question first” tactic. In pertinent part, the court found
the following for the first factor (Respondent’s Exhibit 17 at 10–11):
There is no evidence –– including any testimony by the
Defendant himself –– that either the relatively innocuous or
potentially problematic pre-Miranda questions led him to
disregard the Miranda warnings or confess under duress. The
Court further finds that Detective McGath did not confront the
Defendant with any questions directly related to whether he
had sexually abused J.D. until after he voluntarily, knowingly
and intelligently [waived] his Miranda rights.

For the remaining factors, the trial court found (1) that there was “essentially
no overlap between the pre-Miranda and post-Miranda questions, (2) “that the setting
remained the same for the entire interview and the only ‘gap’ in between the timing
of the [two portions] of the interview was the reading of Miranda itself and the
Defendant’s waiver thereof,” (3) “that the police personnel remained the same for
the duration of the entire interview,” and (4) that “there was a sharp and decided
contrast between the tone and focus of the first round of pre-Miranda questions and

the second round of post-Miranda questions.” (Respondent’s Exhibit 17 at 10–11)
The trial court concluded that Hagen was entitled to no relief under Siebert.
In his reply Hagen reviews the Seibert factors and disagrees with the state
court’s ruling. His disagreement is insufficient to meet his burden. Woodall,

572 U.S. at 427 (“The critical point is that relief is available under § 2254(d)(1)’s
unreasonable-application clause if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could be no ‘fairminded
disagreement’ on the question . . . .”) (citing Richter). Hagen cites no precedent
to meet his burden of showing that the state court’s decision is an unreasonable

application of controlling Supreme Court precedent. Hagen is not entitled to relief
under sub-part A of ground one.
B. Ground One, Sub-Part D:
Hagen alleges that, despite counsel’s objection, the trial court erred in allowing
the prosecution to file a second amended information. A five-count information

charged Hagen with four counts of sexual battery and a count of lewd and lascivious
exhibition. J.D. was the child-victim in each count. A few days before trial the
prosecution noticed a second amended information that added a sixth count, lewd
and lascivious molestation of J.D. On the morning of trial defense counsel objected
to permitting the amendment, claiming that he was prejudiced by the late filing.
After hearing the prosecutor’s substantial explanation for lack of prejudice
(Respondent’s Exhibit 2 at 10–12), the trial court allowed the second amended
information because “the Court does not believe that prejudice exists at this time”

(Respondent’s Exhibit 2 at 13), apparently in-part because, as the prosecutor had
explained, the new charge (1) was not based upon a fact not previously disclosed to
the defense and (2) was a continuation of Hagen’s abuse of J.D.
Under Lovasco, which Hagen cites in his opening brief on direct appeal, a
defendant must both allege and prove actual prejudice. Scott v. State, 581 So. 2d 887,

891 (Fla. 1991), cites Lavasco as assigning to “the accused . . . the burden of proving
the prejudice and, if the threshold requirement of proof of actual prejudice is not met,
the inquiry ends there.” Moreover, proof of just “some” prejudice is insufficient.
“[T]o prosecute a defendant following investigative delay does not deprive him of
due process, even if his defense might have been somewhat prejudiced by the lapse of

time.” Lovasco, 431 U.S. at 976. Hagen identifies no actual prejudice.
Hagen cites no case to meet his burden of showing that the state court’s
decision is an unreasonable application of controlling Supreme Court precedent.
Hagen is not entitled to relief under sub-part D of ground one.

C. Ground One, Sub-Part E:
Hagen alleges that the cumulative effect of the trial court’s errors asserted
in the previous sub-parts denied him of his rights both to a fair trial and to equal
protection of the law. Hagen can prove cumulative error only by showing two or
more errors. See Lucas v. Warden, Georgia Diagnostic & Classification Prison, 771 F.3d
785, 802 (11th Cir. 2014) (“We are equally unpersuaded that the cumulative effect
from Lucas’s Strickland and Brady claims entitles him to relief.”), cert. denied sub nom
Lucas v. Humphrey, 136 S. Ct. 135 (2015); Conklin v. Schofield, 366 F.3d 1191, 1210

(11th Cir. 2004) (“[T]he court must consider the cumulative effect of [the alleged
errors] and determine whether, viewing the trial as a whole, [the applicant] received
a fair trial as is [his] due under our Constitution.”); United States v. Barshov, 733 F.2d
842, 852 (11th Cir. 1984) (“Without harmful errors, there can be no cumulative effect
compelling reversal.”), cert. denied, 469 U.S. 1158 (1985).

Because each individual claim of error lacks merit, Hagen shows no
cumulative prejudicial effect. See Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir.
1987) (“Mullen cites no authority in support of his assertion, which, if adopted,
would encourage habeas petitioners to multiply claims endlessly in the hope that, by

advancing a sufficient number of claims, they could obtain relief even if none of
these had any merit. We receive enough meritless habeas claims as it is; we decline
to adopt a rule that would have the effect of soliciting more and has nothing else to
recommend it. Twenty times zero equals zero.”).
Hagen cites no case to meet his burden of showing that the state court’s

decision is an unreasonable application of controlling Supreme Court precedent.
Hagen is not entitled to relief under sub-part E of ground one. And as determined
above, Hagen is entitled to no relief on a direct appeal claim alleged in ground one.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Hagen claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:

The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice.
See Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying
Strickland, we are free to dispose of ineffectiveness claims on either of its two
grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s challenged conduct on the facts of
the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690.
Strickland requires that “in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”
466 U.S. at 690.
Hagen must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” 466 U.S. at 691. To meet this burden, Hagen must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Hagen cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220 21 (11th Cir. 1992). Accord Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel’s
investigation is discussed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir.
2014), cert. denied sub nom. Hittson v. Chatman, 135 S. Ct. 2126 (2015):
[W]e have explained that “no absolute duty exists to investigate
particular facts or a certain line of defense.” Chandler, 218 F.3d
at 1317. “[C]ounsel has a duty to make reasonable
investigations or make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at
691, 104 S. Ct. at 2066 (emphasis added). “[C]ounsel need not
always investigate before pursuing or not pursuing a line of
defense. Investigation (even a nonexhaustive, preliminary
investigation) is not required for counsel reasonably to decline
to investigate a line of defense thoroughly.” Chandler, 218 F.3d
at 1318. “In assessing the reasonableness of an attorney’s
investigation . . . a court must consider not only the quantum of
evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to investigate
further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty
to raise a frivolous claim).
Under Section 2254(d) Hagen must prove that the state court’s decision
“(1) [was] contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States or (2) [was]
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Sustaining a claim of ineffective assistance
of counsel is very difficult because “[t]he standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 562 U.S. at 105. See also Pinholster, 563 U.S. 202 (An applicant
must overcome this “‘doubly deferential’ standard of Strickland and the AEDPA.”),
Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference
is doubly difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of
Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s
ineffective counsel claim — which is governed by the deferential Strickland test —
through the lens of AEDPA deference, the resulting standard of review is “doubly

deferential.”), cert. denied, 571 U.S. 874 (2013).
In summarily denying Hagen’s motion for post-conviction relief, the state
court recognized that Strickland governs a claim of ineffective assistance of counsel.
(Respondent’s Exhibit 11 at 2) Because the state court rejected the claims based
on Strickland, Hagen cannot meet the “contrary to” test in Section 2254(d)(1).

Hagen instead must show that the state court unreasonably applied Strickland or
unreasonably determined the facts. In determining “reasonableness,” a federal
application for the writ of habeas corpus authorizes determining only “whether the
state habeas court was objectively reasonable in its Strickland inquiry,” not an
independent assessment of whether counsel’s actions were reasonable. Putnam v.
Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002).
The presumption of correctness and the highly deferential standard of review
requires that the analysis of each claim begin with the state court’s analysis.

VI. POST-CONVICTION CLAIMS
In ground two Hagen alleges three claims of ineffective assistance. Each claim
alleges that counsel was ineffective at the pre-trial motion to suppress, which motion
was the subject of ground one. The post-conviction court summarily denied the
three claims of ineffective assistance of counsel, which decision was affirmed on

appeal without a written opinion. As explained earlier, Wilson requires this court to
“look through” the appellate court’s silent affirmance to the post-conviction count’s
reasoned opinion.
A. Ground Two, Sub-Part A:

Hagen alleges that counsel was ineffective for asserting the wrong argument
during the suppression hearing. Hagen contends that counsel should have argued
that Hagen was misled about his true position during the interrogation, specifically,
that he was unaware that he was the target of the investigation. The post-conviction
court denied this claim as follows (Respondent’s Exhibit 11 at 3–4) (brackets

original) (references to attachments omitted):
Defendant’s first argument that counsel did not argue that he
was misled as to his true position during the interrogation,
instead emphasizing that he did not feel free to leave, is without
merit. In the “Memorandum of Law in Support of Defendant’s
Motion to Suppress Statement Made on March 16, 2011,”
counsel argued:

In this case, the detective improperly influenced
the defendant to make a statement by misleading
him into believing that they were present to
conduct a DCF-related investigation into his
child’s well-being and [Ms.] Thomas’s fitness as a
parent. The detective also made an implied threat
to defendant: that if he did not speak to her about
his sexual conduct, it may jeopardize his ability
to see his daughter. Further, the detective
repeatedly told defendant that he needed help
and even offered to refer him to [a] counselor.
She also suggested that there was no point to
deny what happened. The defendant’s
admissions were the fruit of this deceit, improper
influence, and implied threats and promises.
Therefore the admission should be suppressed.

This argument was also presented at the suppression hearing.
As a prerequisite to this argument, counsel had to establish that
Defendant was in custody because “Miranda warnings are
required only when an individual is undergoing custodial
interrogation.” Hunter v. State, 8 So. 3d 1052, 1063 (Fla. 2008),
cert. denied, ___ U.S. ___, 129 S. Ct. 2005, 173 L. Ed. 2d 1101
(2009). Because counsel adequately presented the argument at
issue, he cannot be found ineffective.

The post-conviction court correctly found that the record refutes Hagen’s
claim –– that counsel erred by not arguing to suppress his statements because he was
“misled” about the true nature of the questioning –– because trial counsel presented
that claim by arguing that the police “improperly influenced [him] to make a
statement by misleading him into believing that” the interview was unrelated to his
abuse of J.D. (Respondent’s Exhibit 15 “Motion to Suppress Statement” at 3 and
Exhibit 11 Attachment 3 “Memorandum of Law in Support of Defendant’s Motion
to Suppress” at 4) The post-conviction court correctly determined that Hagen failed
to show deficient performance as required under Strickland. Hagen fails to show that
the appellate court’s affirmance was an unreasonable application of Strickland in
determining that trial counsel’s performance was not deficient. Hagen is not entitled
to relief under sub-part A of ground two.

B. Ground Two, Sub-Part B:
Hagen alleges that counsel was ineffective for not calling Ms. Thomas to
testify at the suppression hearing. In his reply Hagen contends that Ms. Thomas
“could testify to the fact that Law Enforcement Officer(s) (LEO) and the Child
Protection Team (CPT) Investigator directed her to make the call, luring Petitioner

to the DCF office under false pretences [sic], and that the call was made in the
presence of these LEO(s) and the CPT investigator . . . .” (Doc. 19 at 10) The
post-conviction court denied this claim as follows (Respondent’s Exhibit 11 at 4)
(references to attachments omitted):

Defendant’s next argument that Thomas should have testified
at the suppression hearing is without merit. There was detailed
testimony regarding Thomas’s phone call to Defendant and his
eventual arrival at the Child Protection Center. In its “Order
Denying Defendant’s Motion to Suppress 3-16-2011
Statements,” the Court summarized Defendant’s testimony:

During the interview, the Defendant initially said
that he received a disturbing voice mail from a
Manatee County investigator who wanted to
interview him. The Defendant said that he also
received a voice mail from Thomas who said that
she thought she was in trouble and needed to
speak to the Defendant. (Thomas’s voice mail
was the unsuccessful controlled call.) After the
Defendant was unable to reach the investigator,
he first drove to the sheriff ’s office and then to
the Sarasota DCF office to find out what was
going on because he had not seen his daughter in
over a month.

The Court concluded that:

As to the manner in which the police summoned
the defendant for questioning, the Court finds
that law enforcement responded to the local DCF
office in response to the Defendant going there
on his own to find out information about a
potential DCF investigation involving his
biological daughter with Thomas. There is no
evidence to suggest that law enforcement
summoned or otherwise had the Defendant for
questioning either directly or by subterfuge.

As to the purpose, place, and manner of the
interrogation, the Court finds that Detective
McGath went to the local DCF office because the
Defendant appeared there asking questions that
could affect her criminal investigation. After
meeting the Defendant, McGath took advantage
of the opportunity to interview the Defendant to
determine whether he had sexually abused J.D.
or any other child. The Defendant was unaware
of McGath’s focus until she explicitly confronted
him and read him Miranda.

Thomas’s testimony would have been cumulative to
Defendant’s, and there is no reasonable probability the
outcome of the suppression hearing would have been different
had she testified. Counsel cannot be found ineffective for failing
to present cumulative evidence. See Darling v. State, 966 So. 2d
366, 377 (Fla. 2007) (“[T]his Court has held that even if
alternate witnesses could provide more detailed testimony, trial
counsel is not ineffective for failing to present cumulative
evidence.).

The post-conviction court determined that, because Ms. Thomas’s testimony
would have been cumulative, trial counsel’s performance was neither deficient nor
prejudicial. Deciding which witness to present “is the epitome of a strategic
decision, and it is one that we will seldom, if ever, second guess.” Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). See Dingle v. Sec’y, Dep’t of Corr.,
480 F.3d 1092, 1099 (11th Cir. 2007) (“Even if counsel’s decision [not to call a
certain witness] appears to have been unwise in retrospect, the decision will be held
to have been ineffective assistance only if it was so patently unreasonable that no

competent attorney would have chosen it.”) (internal quotation omitted); Blanco v.
Singletary, 943 F.2d 1477, 1495 (11th Cir. 1991) (“The decision as to which witnesses
to call is an aspect of trial tactics that is normally entrusted to counsel.”); McDonald v.
Sec’y, Dep’t of Corr., 578 F. App’x 921, 925 (11th Cir. 2014) (quoting Blanco).
The post-conviction court correctly determined that Hagen failed to meet his

burden of showing both deficient performance and resulting prejudice as required
under Strickland. Hagen fails to show that the appellate court’s affirmance was an
unreasonable application of Strickland. Hagen is not entitled to relief under
sub-part B of ground two.

C. Ground Two, Sub-Part C:
Hagen alleges that counsel was ineffective for not preparing him to testify at
the suppression hearing. The post-conviction court denied this claim as follows
(Respondent’s Exhibit 11 at 5) (references to attachments omitted):
Defendant’s final argument that he was ill-prepared to testify at
the suppression hearing is without merit. As set forth above,
there was detailed testimony regarding Thomas’s phone call to
Defendant and his eventual arrival at the Child Protection
Center. The Court summarized and relied on this testimony in
its “Order Denying Defendant’s Motion to Suppress 3-16-2011
Statements.” Additionally, as previously explained, counsel
had to establish that Defendant was in custody as a prerequisite
to the argument for suppression because “Miranda warnings are
required only when an individual is undergoing custodial
interrogation.” Hunter, 8 So. 3d at 1063. There is no reasonable
probability the outcome of the suppression hearing would have
been different had Defendant emphasized his testimony
regarding his belief that he was at the Child Protection Center
regarding a custody issue concerning Thomas and her daughter.
Counsel cannot be found ineffective.

The post-conviction court rejected this claim based on Hagen ‘s failure to
prove prejudice –– “[t]here is no reasonable probability the outcome of the
suppression hearing would have been different . . . .” Although he disagrees with
that assessment –– “Petitioner asserts that[,] . . . had trial counsel prepared Petitioner
for testifying[,] there is a reasonable probability that the trial court would have
suppressed the statements” (Doc. 19 at 10) –– Hagen presents no basis for
concluding that the appellate court’s affirmance of denial of relief is an unreasonable
application of Strickland. In determining “reasonableness,” a federal application for
the writ of habeas corpus authorizes determining only “whether the state habeas
court was objectively reasonable in its Strickland inquiry,” not an independent
assessment of whether counsel’s actions were reasonable. Putnam v. Head, 268 F.3d
at 1244, n.17. Hagen is not entitled to relief under sub-part C of ground two.
VI. CONCLUSION
Hagen fails to meet his burden to show that the state court’s decision was
either an unreasonable application of controlling Supreme Court precedent or an
unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),
recognizes, an applicant’s burden under Section 2254 is very difficult to meet:
Recognizing the duty and ability of our state-court colleagues to
adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires
“a state prisoner [to] show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error . . . beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S.
[86, 103] (2011). “If this standard is difficult to meet” — and it
is — “that is because it was meant to be.” Id., at [102]. We will
not lightly conclude that a State’s criminal justice system has
experienced the “extreme malfunctio[n]” for which federal
habeas relief is the remedy. Id., at [103] (internal quotation
marks omitted).

Hagen’s application for the writ of habeas corpus (Doc. 1) is DENIED. The
clerk must enter a judgment against Hagen and close this case.

DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS

Hagen is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court’s denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” To
merit a COA, Hagen must show that reasonable jurists would find debatable both the
merits of the underlying claims and the procedural issues he seeks to raise.
See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to show that
reasonable jurists would debate either the merits of the claims or the procedural
issues, Hagen is entitled to neither a COA nor leave to appeal in forma pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Hagen must obtain permission from the circuit court to appeal in forma
pauperis.
ORDERED in Tampa, Florida, on May 13, 2020.

STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105127. Public record. Not legal advice.