# Palmer v. Secretary, Department of Corrections (Polk County)

> District Court, M.D. Florida · May 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10105204

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 4, 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

JAMES E. PALMER,

Petitioner,

-vs- Case No. 8:18-cv-670-T-02JSS

SECRETARY, DEPARTMENT
OF CORRECTIONS,

Respondent.
____________________________/

ORDER

Mr. Palmer, a Florida prisoner, initiated this action by filing a petition for habeas corpus
relief pursuant to 28 U.S.C. § 2254 (Doc. 1). Upon consideration, the Court ordered
Respondent to show cause why the relief sought in the petition should not be granted (Doc. 3).
Respondent filed a response to the petition (Doc. 9), to which Mr. Palmer replied (Doc. 14).
For the reasons set forth below, the petition will be denied.
Mr. Palmer alleges nine grounds for relief in the petition:
1. trial counsel was ineffective in failing to adequately argue a motion for judgment of acquittal;

2. trial counsel was ineffective in failing to retain a medical expert to testify at trial;

3. trial counsel was ineffective in failing to adequately object to prejudicial comments by State
witness Leslie Bozeman;

4. trial counsel was ineffective in failing to file a pre-trial motion to redact victim D.B.’s
videotaped interview;

5. trial counsel was ineffective in failing to adequately advise him regarding the State’s plea
offers;

6. he was denied due process and a fair trial when the trial court denied his motion for judgment
of acquittal;

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7. he was denied due process and a fair trial when the trial court denied his motion for mistrial;

8. trial counsel was ineffective in failing to move for a mistrial after the State’s “CPT forensic
interviewer” testified that it was not unusual to see no visible evidence of penetration in these
types of sexual battery cases; and

9. trial counsel was ineffective in failing to impeach State witness Detective Lopez.

I. PROCEDURAL HISTORY
Mr. Palmer was convicted of four counts of sexual battery on a person less than 12 years
of age, one count of lewd molestation, and one count of battery (Doc. 10-5, docket pp. 177-82).
He was sentenced to life in prison (Id., docket pp. 200-07). His convictions and sentences were
affirmed on appeal (Doc. 10-2, docket p. 77).
Mr. Palmer filed a post-conviction motion pursuant to Rule 3.850, Fla.R.Crim.P.,
alleging ineffective assistance of trial counsel (Id., docket pp. 81-120). The state post-conviction
court denied some claims and ordered an evidentiary hearing on the remaining claims (Id.,
docket pp. 122-87). After the evidentiary hearing, the state post-conviction court denied the
remaining claims (Doc. 10-4, docket pp. 138-48). The denial of the motion was affirmed on
appeal (Doc. 10-5, docket p. 54). Mr. Palmer then filed his petition for a writ of habeas corpus
in this Court (Doc. 1).
II. GOVERNING LEGAL PRINCIPLES
Because Mr. Palmer filed his petition after April 24, 1996, this case is governed by 28
U.S.C. ' 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(AAEDPA@). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880,
889-90 (11th Cir. 2003). The AEDPA Aestablishes a more deferential standard of review of state
habeas judgments,@ Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to Aprevent

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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. 685, 693 (2002); see also Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (recognizing that the federal habeas court=s evaluation of state-court rulings is
highly deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or

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

28 U.S.C. ' 2254(d). The phrase Aclearly established Federal law,@ encompasses only the
holdings of the United States Supreme Court Aas of the time of the relevant state-court decision.@
Williams v. Taylor, 529 U.S. 362, 412 (2000).
A[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the
>contrary to= and >unreasonable application= clauses articulate independent considerations a
federal court must consider.@ Maharaj v. Secretary for Dept. of Corr., 432 F.3d 1292, 1308
(11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the Acontrary to@ clause, a federal court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the United States Supreme
Court] on a question of law or if the state court decides a case differently than [the
United States Supreme 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 [the
United States Supreme Court=s] decisions but unreasonably applies that principle
to the facts of the prisoner=s case.

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If the federal court concludes that the state court applied federal law incorrectly, habeas relief is
appropriate only if that application was Aobjectively unreasonable.@ Id.
Finally, under ' 2254(d)(2), a federal court may grant a writ of habeas corpus if the state
court=s decision Awas based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.@ A determination of a factual issue made by a state court,
however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at
835-36; 28 U.S.C. ' 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance: (1) whether counsel=s performance was
deficient and Afell below an objective standard of reasonableness@; and (2) whether the deficient
performance prejudiced the defense.1 Id. at 687-88. A court must adhere to a strong presumption
that counsel=s conduct falls within the wide range of reasonable professional assistance. Id. at
689-90. AThus, 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.@ Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance
of counsel:

1In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court clarified that the prejudice
prong of the test does not focus solely on mere outcome determination; rather, to establish prejudice, a criminal
defendant must show that counsel=s deficient representation rendered the result of the trial fundamentally unfair or
unreliable.

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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. Courts also should at the start presume effectiveness and
should always avoid second guessing with the benefit of hindsight. Strickland
encourages reviewing courts to allow lawyers broad discretion to represent their
clients by pursuing their own strategy. 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) (citation omitted). Under those
rules and presumptions, Athe cases in which habeas petitioners can properly prevail on the ground
of ineffective assistance of counsel are few and far between.@ Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994).
C. Exhaustion of State Remedies and Procedural Default
Before a district court can grant habeas relief to a state prisoner under ' 2254, the
petitioner must exhaust all state court remedies that are available for challenging his conviction,
either on direct appeal or in a state post-conviction motion. See ' 2254(b)(1)(A); OSullivan v.
Boerckel, 526 U.S. 838, 842 (1999) (A[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to a federal court in a habeas
petition.@). A state prisoner A>must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State=s established appellate review
process,= including review by the state=s court of last resort, even if review in that court is
discretionary.@ Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting OSullivan, 526
U.S. at 845.)
To exhaust a claim, a petitioner must make the state court aware of both the legal and
factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)
(AExhaustion of state remedies requires that the state prisoner >fairly presen[t] federal claims to

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the state courts in order to give the State the opportunity to pass on and correct alleged violations
of its= prisoners federal rights.=@) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal
habeas petitioner Ashall not be deemed to have exhausted the remedies available in the courts of
the State. . .if he has the right under the law of the State to raise, by any available procedure, the
question presented.@ Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted

claim in federal court extends to both the broad legal theory of relief and the specific factual
contention that supports relief. Kelley v. Secy, Dept of Corr., 377 F.3d 1317, 1344 (11th Cir.
2004).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner Afairly presents@ his claim in each appropriate state court and alerts that
court to the federal nature of the claim. 28 U.S.C. ' 2254(b)(1); Picard v. Connor, 404 U.S. 270,
275-76 (1971). A petitioner may raise a federal claim in state court Aby citing in conjunction with
the claim the federal source of law on which he relies or a case deciding such claim on federal
grounds, or simply by labeling the claim >federal.=@ Baldwin v. Reese, 541 U.S. 27, 32 (2004).

The doctrine of procedural default provides that A[i]f the petitioner has failed to exhaust state
remedies that are no longer available, that failure is a procedural default which will bar federal
habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice
exception is established.@ Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish
cause for a procedural default, a petitioner Amust demonstrate that some objective factor external
to the defense impeded the effort to raise the claim properly in state court.@ Wright v. Hopper,
169 F. 3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show
prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility
of prejudice but that they worked to his actual and substantial disadvantage and infected the

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entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982).
The petitioner must show at least a reasonable probability of a different outcome. Crawford v.
Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted

claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage
of justice occurs in an extraordinary case where a constitutional violation has probably resulted
in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327
(1995). A>[A]ctual innocence= means factual innocence, not mere legal insufficiency.@ Bousley
v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must show a
reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
III. ANALYSIS
Ground One: Petitioner received ineffective assistance of trial counsel when his attorney
failed to properly file a motion for judgment of acquittal

Mr. Palmer contends that trial counsel was ineffective in failing to adequately argue his
motion for a judgment of acquittal (JOA) at the conclusion of the State’s case. He alleges that
after counsel moved for the JOA and argued that the State had failed to present evidence
establishing that Mr. Palmer was 18 or older at the time of the offenses, the State argued that
Kelvin Bozeman’s (victim D.B.’s father) testimony that Mr. Palmer was an adult, worked with
him and shared living expenses, babysat for his children, and had a utility bill in his name, was
sufficient evidence proving Mr. Palmer was 18 or older. Mr. Palmer argues that trial counsel
should have responded that Kelvin Bozeman never testified that Mr. Palmer was an adult,
parents have been known to put utilities in their children’s names, and people under the age of 18

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can babysit, work, and share living expenses. He further argues that had trial counsel “more
adequately argu[ed] his JOA motion the outcome of Petitioner’s case would have been different.
. . .”
This claim was raised in state court in Ground Nine of Mr. Palmer’s Rule 3.850 motion

(Doc. 10-2, docket pp. 100-01). In denying the claim, the state post-conviction court stated:
In claim 9, the Defendant asserts that trial counsel provided ineffective
assistance of counsel for failing to renew and more thoroughly argue a motion for
judgment of acquittal. As the Defendant indicates in his Motion, trial counsel did
move for a judgment of acquittal at the end of the State’s case on the grounds that
the State had not established the Defendant’s age, an element of the offenses. (See
transcript, attached, pp. 390-394) The trial court denied the motion. The Court
cannot find any basis to believe that the trial court’s ruling would have been
different had the motion been argued differently. Although trial counsel did not
renew his motion at the end of the trial, as the Defendant points out, during
cross-examination of the Defendant the Defendant was asked his age and he
responded. This question was not beyond the scope of direct examination as
suggested by the Defendant. (See transcript, attached, pp. 396-398). The
Defendant was asked on direct examination if he had lived in Polk County his
whole life and a logical question on cross-examination might involve the
Defendant’s age. Given the Defendant’s answer as to his date of birth during
cross-examination, the Court finds any renewed motion for judgment of acquittal
based on a lack of proof of the Defendant’s age would have been meritless. Trial
counsel cannot be found ineffective for failing to raise a meritless claim.
Accordingly, claim 9 is DENIED.

(Doc. 10-2, docket pp. 124-25).
The state post-conviction court found that had defense counsel responded to the State’s
arguments in the manner Mr. Palmer argues counsel should have responded, the motion for a
JOA still would have been denied. The state post-conviction court therefore concluded that Mr.
Palmer failed to show deficient performance.
Whether the evidence presented in a state criminal trial is sufficient to establish the
elements of the crime to withstand a judgment of acquittal is a matter of state law. See Bucklon
v. Crosby, 2006 WL 2990449, at *3 (M.D.Fla. Oct. 19, 2006) (citing Lynch v. State, 293 So.2d

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44, 45 (Fla.1974)) (“Under Florida law, the state trial court should not grant a motion for
judgment of acquittal unless the evidence is such that no view in which the jury may lawfully
take of it favorable to the opposite party can be sustained under the law.”). Although Mr.
Palmer contends that the State failed to present sufficient evidence that he was 18 at the time of

the offenses because an individual under the age of 18 can babysit children, share living
expenses with an adult, and have a utility account established in his name, he provides no
evidence in support of the contention. Moreover, the determination of whether Kelvin
Bozeman’s testimony provided sufficient evidence of Mr. Palmer’s age to overcome the motion
for judgment of acquittal is a matter of state law solely within the province of the state court.
See Bucklon, 2006 WL 2990449, at *3 (petitioner’s claim that trial court erroneously denied his
motion for judgment of acquittal was a matter of state law not cognizable on federal review).
This Court cannot reexamine the state court’s determination of state-law questions.
The state post-conviction court therefore has answered the question of what would have
happened had defense counsel responded to the State with the arguments Mr. Palmer contends

counsel should have made – the JOA would have been denied. Consequently, Mr. Palmer has
failed to establish deficient performance and prejudice. See Callahan v. Campbell, 427 F.3d
897, 932 (11th Cir. 2005) (Alabama Court of Criminal Appeals had already answered the
question of what would have happened had counsel objected to the introduction of petitioner’s
statements based on state decisions; the objection would have been overruled; therefore, counsel
was not ineffective for failing to make that objection).2
Mr. Palmer has failed to show that the state court’s denial of this claim involved an

2 The Court notes that Mr. Palmer’s testimony, during the defense’s case, established that he was over the age of 18
at the time he committed the offenses (Doc. 10-7, docket p. 225).

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unreasonable application of Strickland or was based on an unreasonable determination of the
facts. Accordingly, Ground One does not warrant federal habeas relief.
Ground Two: Petitioner received ineffective assistance of trial counsel when his attorney
failed to obtain and use a medical expert at trial.

Mr. Palmer contends that counsel was ineffective in failing to retain and call at trial a
medical expert to testify that D.B.’s accusation that Mr. Palmer inserted his penis into D.B.’s
anus numerous times over a one-year period was “medically impossible” considering the Child
Protection Team’s (“CPT”) examination of D.B. revealed no physical evidence of injury. This
testimony, Mr. Palmer argues, would have diminished the credibility of D.B.’s accusations
against him.
This claim was raised in state court in Ground Five of Mr. Palmer’s Rule 3.850 motion
(Doc. 10-2, docket pp. 93-94). In denying the claim, the state post-conviction court stated:
In claim 5, the Defendant asserts that trial counsel provided ineffective
assistance of counsel for failing to obtain the appointment of an expert
proctologist to review medical examinations of the victim, D.B.

At the evidentiary hearing, trial counsel testified that he considered the
testimony of a proctologist, but decided against such a strategy. Trial counsel
testified that D.B. was examined shortly after the allegations came to light and no
anal injury to D.B. was observed. The results of the exam was [sic] referenced at
the trial and argued by trial counsel. (See transcript, attached, p. 425). At the time
of trial counsel's representation of the Defendant a good deal of time had passed
since the alleged abuse and the original examination. Therefore, trial counsel had
no reason to believe the findings of another examination would be any different
than the original examination. Additionally, trial counsel believed it was doubtful
that under the circumstances the trial court would approve of a rectal examination
of the minor victim in this case. The Court finds this was a matter of sound trial
strategy by trial counsel. Accordingly, claim 5 is DENIED.

(Doc. 10-4, docket p. 144).

Initially, Respondent contends that this claim is unexhausted because Mr. Palmer did not
raise it on collateral appeal. See Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (“In

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Florida, exhaustion usually requires not only the filing of a Rule 3.850 motion, but an appeal
from its denial.”); Boerckel, 526 U.S. at 845 (the exhaustion doctrine requires that a prisoner
give the state courts a full opportunity to resolve a federal constitutional claim “by invoking one
complete round of the State’s established appellate review process.”). The Court agrees

because Mr. Palmer did not identify or discuss this claim in his collateral appellate brief (Doc.
10-4, docket pp. 152-201).
Mr. Palmer cannot return to state court to present the claim because state procedural rules
do not provide for second collateral appeals. See Fla. R. Crim. P. 3.850(k) (stating that an appeal
from a final order denying postconviction relief may be taken within 30 days of the rendition of
the order). Accordingly, this claim is procedurally defaulted.
Mr. Palmer has not established the cause and prejudice exception to procedural default.
Nor has he argued or established that he meets the fundamental miscarriage of justice exception.
Accordingly, Ground Two is procedurally defaulted and barred from federal habeas review.
Even if the claim were not procedurally defaulted, it would fail on the merits. Mr.

Palmer’s contention that a medical expert would have testified that D.B.’s allegation that Mr.
Palmer inserted his penis into D.B.’s anus numerous times over a one-year period is “medically
impossible,” considering the examination of D.B. (approximately one year later) revealed no
signs of injury, is purely speculation. Mr. Palmer has not offered any evidence establishing that a
medical expert would have provided such testimony. Self-serving speculation as to the testimony
an expert witness might have provided fails to provide a basis on which to conclude that a
petitioner’s counsel performed deficiently. See United States v. Schaflander, 743 F.2d 714, 721
(9th Cir.1984) (“[T]o successfully assert that trial counsel should have called a witness, a
petitioner must first make a sufficient factual showing substantiating the proposed witness

11
testimony.”).
In sum, Ground Two is procedurally barred from review, and Mr. Palmer has established
neither deficient performance nor prejudice. Accordingly, Ground Two is denied pursuant to
Section 2254(d).

Ground Three: Petitioner received ineffective assistance of trial counsel when his attorney
failed to object properly to several highly prejudicial comments made by State witness,
Leslie Bozeman

Mr. Palmer alleges that D.B.’s aunt, Leslie Bozeman, provided testimony that: 1) served

solely to bolster her and D.B.’s credibility; 2) attacked Mr. Palmer’s character; and 3) violated
Mr. Palmer’s right to confront his accuser, Leslie Bozeman’s husband. Specifically, Mr. Palmer
first asserts that when Leslie Bozeman was asked if she knew whether D.B. made up stories, she
answered that he only made up “kids’ fibs” and nothing “extravagant.” After defense counsel
objected, the court ruled that the testimony was permissible if the State could “lay a foundation
by eliciting testimony that would put Leslie in a position to vouch for [D.B.’s] credibility.” Mr.
Palmer argues that Leslie Bozeman could not vouch for D.B.’s credibility because she testified
that she was unaware that D.B. had falsely accused his father of beating a door down with a
baseball bat, an accusation that D.B.’s mother had testified D.B. falsely made. And since Leslie
Bozeman was unable to establish that she could vouch for D.B.’s credibility, Mr. Palmer
contends counsel was ineffective in failing to move for a mistrial.
Next, Mr. Palmer asserts that Leslie Bozeman testified that she heard Mr. Palmer say that
D.B. had a “big one,” which she believed meant D.B.’s penis, and she and her husband heard Mr.
Palmer say that he was gay. He argues that this testimony was highly prejudicial because it
allowed the jury to consider his sexual orientation, bolstered D.B.’s credibility, and violated his
right to confront Leslie Bozeman’s husband. Mr. Palmer contends that counsel was ineffective

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because he objected to this testimony solely on the ground that it was hearsay, an objection with
“no legal support whatsoever.”
Finally, Mr. Palmer alleges that Leslie Bozeman testified that on one occasion Mr.
Palmer “came on to her” while he was drunk and beat on her bedroom door while she was inside

the room with her children. He argues that the testimony was highly prejudicial because it was
irrelevant to the charges against him and served only to attack his character. He contends that
although counsel objected to the testimony and moved for a mistrial, and the court gave a
curative instruction to the jury, counsel was ineffective in failing to preserve the issue for appeal
by failing to renew the motion for mistrial after the curative instruction was given.
These claims, or similar claims, were raised in state court in Grounds Twelve, Fifteen,
and Seventeen of Mr. Palmer’s Rule 3.850 motion (Doc. 10-2, docket pp. 104-05; 108-12). The
claims presented to the state post-conviction court were denied as follows:
In claim 12, the Defendant asserts that trial counsel provided ineffective
assistance of counsel for failing to renew a motion for mistrial when witness []
offered objectionable testimony at trial. The record reflects that trial counsel did
object to the testimony of [] concerning uncharged bad acts and requested a
mistrial. The trial court sustained the objection, but would not grant a mistrial.
The trial court gave a curative instruction. Trial counsel argued that a curative
instruction was insufficient and requested a mistrial. The trial court denied the
request for a mistrial. (See transcript, attached, pp. 247-252). The Court finds
that trial counsel was not ineffective in this regard. Accordingly, claim 12 is
DENIED.

***

In claim 17, the Defendant asserts that trial counsel provided ineffective
assistance of counsel for failing to object [sic] testimony bolstering the credibility
of victim, D.B., through the witness []. The Court has reviewed the portions of the
testimony of [] and referenced by the Defendant in his Motion concerning this
claim. (See transcript, attached, pp. 236-239 and pp. 242-244) As the Defendant
indicates in his Motion, trial counsel did object to the testimony of [] that the
Defendant characterizes as bolstering the credibility of victim []. The trial court
allowed the questioning if a foundation was laid. The State continued with its

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questioning after laying the foundation indicated by the trial judge. The Court can
find no reason to find trial counsel ineffective. Trial counsel had objected and the
trial court considered the objection. Accordingly, claim 17 is DENIED.

(Doc. 10-2, docket p. 125).

In claim 15, the Defendant asserts that trial counsel provided ineffective
assistance of counsel for failing to depose [] and object to their testimony at trial.
At trial, the State elicited testimony from [] that the Defendant had stated that
D.B. had a "big one" and the [sic] he, the Defendant, was gay. Trial counsel
objected to the testimony and requested a mistrial. The trial judge sustained the
objection, denied a mistrial, and gave a curative instruction to the jury. (See
transcript, attached, pp. 244-252) Trial counsel also moved for a new trial based
on the comments of []. Record documents indicate that the trial court's denial of a
new trial was an issue of the Defendant's appeal of his judgment and sentence
which was affirmed by the Second District Court of Appeal. (See attachments)

The Defendant asserts that trial counsel was ineffective in failing to
depose []. He asserts that had he deposed [] he would have been able to discredit
[] testimony concerning the Defendant's [sic] that D.B. had a "big one." However,
it is unclear how any deposition of [] would have aided trial counsel. The
Defendant's claim is based on speculation as to what the depositions would have
disclosed as to the alleged comments of the Defendant to []. It is clear that,
when the State elicited the objectionable testimony from [] trial counsel made
timely objections to the testimony and requested a mistrial. A curative instruction
was given. The Court finds trial counsel was not ineffective as alleged by the
Defendant.

Additionally, the Court finds that, even if the Court were to find trial
counsel ineffective, any ineffectiveness as alleged by the Defendant did not result
in prejudice to the Defendant such that the Court can find that the result of the
trial probably would have been different. (See the Court's analysis regarding
claim 4, above) This is particularly true in that the trial court gave a curative
instruction concerning [] objectionable testimony. Based on the above, claim 15 is
DENIED.

(Doc. 10-4, docket p. 147).3

1. Mr. Palmer’s claim that counsel was ineffective in failing to move for a mistrial after
Leslie Bozeman testified that D.B. did not make up stories as a child is both procedurally
barred and without merit

To the extent that Mr. Palmer contends in Ground Three that counsel was ineffective in

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failing to move for a mistrial after Leslie Bozeman testified that she never heard D.B. make up
stories other than “kid fibs”, and the State failed to lay a proper foundation for admission of the
testimony, the claim never was presented to the state courts. In Ground Seventeen of Mr.
Palmer’s Rule 3.850 motion, he claimed that after counsel objected to this testimony, he was

ineffective in failing to renew the objection after the State failed to lay a proper foundation (Doc.
10-2, docket pp. 110-12). He argued that the failure to renew the objection deprived him a
curative instruction respecting the testimony (Id., docket p. 112). Therefore, it is apparent that
Mr. Palmer did not present the state post-conviction court with the same claim he now presents
to this Court (counsel’s failure to move for a mistrial). Accordingly, this part of Ground Three
is procedurally barred. See McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (“[I]n
order to ensure that state courts have the first opportunity to hear all claims, federal courts ‘have
required a state prisoner to present the state courts with the same claim he urges upon the federal
courts.’”) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)) (emphasis added). And even if
the claim presented to the state post-conviction court were construed as the same claim presented

in Mr. Palmer’s federal habeas petition, it would remain procedurally barred because it was not
presented to the state appellate court on appeal from the denial of the Rule 3.850 motion (Doc.
10-4, docket pp. 151-201). See O’Sullivan, 526 U.S. at 845 (1999) (before presenting a claim
to the federal courts, “state prisoners must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s established appellate
review process.”).
Mr. Palmer fails to allege or show cause and prejudice for the default of this claim. And
he cannot meet the “fundamental miscarriage of justice” exception because he presents no “new

3 The names of the witnesses were redacted in the order.

15
reliable evidence” that he is actually innocent. Schlup, 513 U.S. at 327. Because he satisfies
neither exception to procedural default, this claim is procedurally barred from federal review.
Even if the claim were not procedurally barred it would fail on the merits. Although an
ineffective assistance of counsel claim is a federal constitutional claim, when “the validity of the

claim that [counsel] failed to assert is clearly a question of state law, . . .we must defer to the
state’s construction of its own law.” Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.
1984). The validity of the renewed objection or motion for a mistrial that Mr. Palmer contends
defense counsel should have made, i.e., failure to lay a proper foundation, is a question of state
evidentiary law. The state post-conviction court already answered the question of whether that
was a valid basis, under state law, for renewing the objection to Leslie Bozeman’s testimony—it
was not (Doc. 10-2, docket p. 125). This Court must defer to the state post-conviction court’s
determination of state law. Therefore, counsel’s failure to make the objection or motion for a
mistrial that Mr. Palmer contends he should have made (failure to lay a proper foundation)
cannot be considered deficient performance. Moreover, Mr. Palmer cannot show he was

prejudiced by counsel’s failure to renew his objection or move for a mistrial because the
objection and motion for mistrial would not have been successful.
In sum, this part of Ground Three is procedurally barred from review. Moreover, to the
extent the claim may be construed as raising the same claim presented to the state
post-conviction court, Mr. Palmer has failed to show that the denial of the claim was contrary to
or an unreasonable application of Strickland. Accordingly, he is not entitled to relief on this
sub-claim.
2. Mr. Palmer’s claim that counsel was ineffective in objecting to Leslie Bozeman’s
testimony that Mr. Palmer said he was gay and that D.B. had a “big one” solely on the
ground that it was hearsay is both procedurally barred and without merit

16
To the extent that Mr. Palmer contends in Ground Three that counsel was ineffective in
objecting solely on the ground of hearsay to Leslie Bozeman’s testimony that Mr. Palmer said he
was gay and that D.B. had a “big one,” the claim never was presented to the state courts. In
Ground Fifteen of Mr. Palmer’s Rule 3.850 motion, he alleged that counsel was ineffective in
failing to: 1) depose Leslie Bozeman and her husband; and 2) object to Leslie Bozeman’s
testimony (Doc. 10-2, docket pp. 108-09). He did not allege that counsel was ineffective in
objecting to the testimony solely as hearsay (Id.). Therefore, it is apparent that Mr. Palmer did
not present the state post-conviction court with the same claim he now presents to this Court.
Accordingly, this part of Ground Three is procedurally barred. See McNair v. Campbell, 416

F.3d at 1302. And even if the claim presented to the state post-conviction court were construed
as the same claim presented in the federal habeas petition, it would remain procedurally barred
because it was not presented to the state appellate court on appeal from the denial of the Rule
3.850 motion (Doc. 10-4, docket pp. 151-201).4 See O’Sullivan, 526 U.S. at 845. Mr. Palmer
fails to show cause and prejudice for the default of this claim, and he fails to meet the
“fundamental miscarriage of justice” exception.
Even if the claim were not procedurally barred it would warrant no relief. “A failure to
object does not constitute deficient representation unless a sound basis exists for objection.”
Leonard v. Dretke, 2005 WL 3543348, at *14 (N.D. Tex. Dec. 22, 2005) (citing Emery v.

Johnson, 139 F.3d 191, 198 (5th Cir.1997) (noting that a futile or “meritless objection cannot be
grounds for a finding of deficient performance”). Mr. Palmer has failed to show that there was

4 In his Initial Brief, Mr. Palmer argued that the state post-conviction court erred in finding that counsel had
objected to Leslie Bozeman’s testimony that Mr. Palmer said he was gay and that D.B. had a “big one” (Doc. 10-4,
docket pp. 192-93). He did not, however, present a claim that counsel was ineffective in objecting to the testimony
solely as hearsay (Id.).

17
a sound basis for counsel to object to Leslie Bozeman’s testimony. And even if there was a
basis to object, Mr. Palmer has failed to show deficient performance and prejudice.
Concerning the testimony that Mr. Palmer said D.B. has a “big one,” Mr. Palmer suggests
no basis for an objection. With regard to the testimony that Mr. Palmer said that he was gay

during a conversation with Leslie Bozeman’s husband, it appears the testimony may have been
improper under Florida law. See, e.g., Wessel v. State, 968 So. 2d 634 (Fla. 2d DCA 2007)
(evidence regarding defendant’s sexual orientation was irrelevant and prejudicial in prosecution
for lewd and lascivious molestation of child). Nevertheless, after Leslie Bozeman testified that
Mr. Palmer joked that he was gay and “came for [her]” while he was drunk and banged on her
bedroom door, counsel objected “to this whole line of questioning” and moved for a mistrial
(Doc. 10-7, docket pp. 52-54). Although the motion for mistrial was denied, the court
instructed the jury to “disregard any testimony concerning any transactions or dealings between
the defendant and [Leslie Bozeman]. . . .” (Id., docket pp. 56-57). Moreover, during
cross-examination counsel got Leslie Bozeman to admit that Mr. Palmer said he was “just

joking, just kidding” after he said that he was gay (Id., docket p. 58). Therefore, counsel
effectively challenged Leslie Bozeman’s testimony on the issue.
Even if counsel were deficient in addressing the testimony Mr. Palmer fails to show
prejudice. This Court has carefully reviewed the transcript of Mr. Palmer’s trial to determine
whether there was a “reasonable probability” that the outcome would have been different but for
Leslie Bozeman’s testimony regarding Mr. Palmer’s comment that he was gay. The comment
did not become a feature of the trial. Moreover, the impact of the comment was diminished
when Leslie Bozeman testified that Mr. Palmer said he was only joking when he said he was
gay. And no other evidence was presented that indicated Mr. Palmer was homosexual. In

18
fact, other evidence implied that Mr. Palmer was not homosexual, including D.B.’s statement
that his father and Mr. Palmer were going to pay two women to have sex with them. Finally,
D.B.’s testimony regarding the sexual batteries was strong evidence of Mr. Palmer’s guilt
because it was consistent with his prior statement to the CPT interviewer and provided a detailed

and graphic account of the sexual acts, especially for someone his age. Accordingly, Mr.
Palmer has not shown a “reasonable probability” that the outcome of his trial would have been
different but for Leslie Bozeman’s testimony.
Lastly, Mr. Palmer implicitly contends that counsel was ineffective in failing to object to
Leslie Bozeman’s testimony because it violated Mr. Palmer’s right to confront his accuser. The
contention appears premised on Leslie Bozeman’s testimony that she heard Mr. Palmer tell her
husband that he was gay, and that counsel could not examine Leslie Bozeman’s husband
regarding the statement because he did not testify during the trial.
The Confrontation Clause of the Sixth Amendment bars admission of testimonial
statements of a witness who does not appear at trial unless he is unavailable to testify, and the

defendant has had a prior opportunity for cross-examination. Davis v. Washington, 547 U.S. 813,
821 (2006) (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). The Confrontation
Clause therefore does not apply here because no statement from Leslie Bozeman’s husband was
presented during Mr. Palmer’s trial. Rather, Leslie Bozeman testified that she heard Mr. Palmer
tell her husband that Mr. Palmer was gay (Doc. 10-7, docket pp. 51-52). Accordingly, counsel
was not ineffective in failing to make a Confrontation Clause objection.
In sum, this part of Ground Three is procedurally barred from review. Moreover, Mr.
Palmer has failed to show deficient performance and prejudice. Accordingly, he is not entitled
to relief on this sub-claim.

19
3. Mr. Palmer’s claim that counsel was ineffective in failing to renew his motion for
mistrial after the court gave a curative instruction on Leslie Bozeman’s testimony that Mr.
Palmer “came for her” while he was drunk is both procedurally barred and without merit

Mr. Palmer lastly contends in Ground Three that counsel was ineffective in failing to
renew his motion for mistrial after the court gave a curative instruction on Leslie Bozeman’s
testimony that Mr. Palmer “came for her” once while he was drunk and banged on her bedroom
door. He argues that although counsel moved for a mistrial before the court gave a curative
instruction, the failure to renew the motion after the instruction was given prejudiced him
because the denial of the motion was not preserved for appellate review.
This claim was presented in state court in Ground Twelve of Mr. Palmer’s Rule 3.850
motion (Doc. 10-2, docket pp. 104-05). It was not, however, presented to the state appellate
court on appeal from the denial of the Rule 3.850 motion (Doc. 10-4, docket pp. 151-201).
Accordingly, this part of Ground Three is procedurally barred. See O’Sullivan, 526 U.S. at 845
(1999) (before presenting a claim to the federal courts, “state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.”). Mr. Palmer fails to allege or show cause and
prejudice for the default of this claim, and he fails to meet the “fundamental miscarriage of
justice” exception.
Even if the claim were not procedurally barred it would warrant no relief. Neither in
state court nor in this federal habeas proceeding has Mr. Palmer presented any argument or case
law supporting his contention that the denial of the motion for mistrial was not preserved for
appellate review because counsel failed to renew the motion after the court gave a curative
instruction. Self-serving, conclusory allegations are insufficient to establish ineffective assistance
of counsel. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (vague, conclusory, or

20
unsupported allegations cannot support an ineffective assistance of counsel claim). Counsel
objected to Leslie Bozeman’s testimony that Mr. Palmer “came for her” while he was drunk, and
the objection was sustained. Counsel then moved for a mistrial. Although the motion was
denied, the court instructed the jury to not consider Leslie Bozeman’s testimony. Therefore,

counsel adequately challenged Leslie Bozeman’s testimony. Accordingly, the state
post-conviction court’s determination that counsel was not ineffective (Doc. 10-2, docket p. 125)
was not objectively unreasonable.
In sum, this part of Ground Three is procedurally barred from review. Moreover, Mr.
Palmer has failed to show that the state post-conviction court’s denial of the claim was contrary
to or an unreasonable application of Strickland. Accordingly, he is not entitled to relief on this
sub-claim. Ground Three therefore warrants no relief.
Ground Four: Petitioner received ineffective assistance of trial counsel when his attorney
failed to file a pretrial motion to redact [D.B.’s] videotaped interview

Mr. Palmer alleges that during trial a videotaped statement of D.B. was played for the
jury. The video included a statement from D.B. that his father and Mr. Palmer were going to
pay women for sex. Mr. Palmer argues that this statement was irrelevant and prejudicial, and
therefore counsel was ineffective in failing to move to redact the statement from the video.
Initially, Respondent correctly argues that this claim is procedurally barred from review
because Mr. Palmer did not raise if on collateral appeal (Doc. 10-4, docket pp. 152-201). Mr.
Palmer cannot return to state court to present the claim because state procedural rules do not
provide for second collateral appeals. See Fla. R. Crim. P. 3.850(k) (stating that an appeal from a
final order denying postconviction relief may be taken within 30 days of the rendition of the
order). Accordingly, this claim is procedurally defaulted.

21
Mr. Palmer has not established the cause and prejudice exception to procedural default.
Nor has he argued or established that he meets the fundamental miscarriage of justice exception.
Accordingly, Ground Four is procedurally defaulted and barred from federal habeas review.
Even if the claim were not procedurally defaulted it would fail on the merits. Mr.

Palmer contends that counsel should have moved to redact the following exchange between D.B.
and the CPT interviewer during D.B.’s videotaped statement:
MS. BEARDEN: Have you ever seen James do any of these things to anyone
else?

MR. BOZEMAN: No.

MS. BEARDEN: Have you ever heard of James doing these things to anyone
else?

MR. BOZEMAN: All I know is him and his -- him and my dad had two girls
over. They was [sic] going to pay them for -- to have sex with them.

MS. BEARDEN: How do you know that?

MR. BOZEMAN: Because, because my dad, he was talking on the phone, and
all I heard, he said going to come over and -- (inaudible.) And he said, I'll pay
you something, I don't know, and then after that, and then they came over there,
and then I went to the bathroom and I heard her talking about- her doing some
noise.

MS. BEARDEN: Like what?

MR. BOZEMAN: Like screaming.

MS. BEARDEN: Why was she screaming?

MR. BOZEMAN: Because my dad was doing something.

MS. BEARDEN: Did you see what they were doing?

MR. BOZEMAN: No.

(Doc. 10-7, docket pp. 202-03).

22
Even if trial counsel was deficient in failing to move to redact this portion of the
videotaped statement, Mr. Palmer cannot show that this error was so prejudicial that there was a
reasonable probability that but for the error, the outcome of the proceeding would have been
different. Mr. Palmer provides no evidence that but for the admission of this statement, the

outcome of trial would be different. D.B.’s statement that on one occasion his father and Mr.
Palmer paid two women to have sex had, at best, a minor role in the trial. Indeed, apart from
the one brief reference to the matter on the videotaped statement, neither the judge nor any party
appears to have referred to the matter during the trial (Docs. 10-6, 10-7). And there was ample
evidence at trial to incriminate him, including D.B’s detailed testimony regarding the sexual
abuse that was consistent with his statement during the CPT interview.
In sum, Ground Four is procedurally barred from review, and Mr. Palmer has not
established prejudice from D.B.’s statement. Accordingly, Ground Four is denied pursuant to
Section 2254(d).
Ground Five: Petitioner received ineffective assistance of trial counsel when his attorney
failed to properly convey favorable plea offers

Mr. Palmer contends that although counsel conveyed three separate plea offers to him
from the State, counsel was ineffective in failing to inform him: 1) that he was facing mandatory
life sentences if he proceeded to trial and lost; 2) of the specific testimony the State planned on
offering at trial; and 3) that he would easily be convicted at trial. He asserts that had counsel
advised him of this information, he would have accepted the first plea offer of 10 years in prison
followed by 15 years on probation.
A similar claim was raised in state court in Ground One of Mr. Palmer’s Rule 3.850
motion (Doc. 10-2, docket pp. 83-84). There, he alleged that counsel was ineffective in failing

23
to inform him that he was facing a mandatory life sentence if he lost at trial and probably would
lose if he proceeded to trial (Id.). The state court granted an evidentiary hearing on this and
other claims (Doc. 10-4, docket pp. 2-136). During the evidentiary hearing, Mr. Palmer
testified that although counsel notified him of the State’s plea offers, counsel failed to inform

him of the maximum possible penalties and instead only told him that he was “facing a lot of
time” in prison if he lost at trial (Doc. 10-4, docket p. 13). He further testified that counsel
offered no advice regarding whether it was better to accept the offers or proceed to trial (Id.,
docket p. 14). Finally, he testified that he would have accepted an offer from the State had
counsel informed him of the maximum penalties he was facing (Id., docket pp. 14-15). On
cross-examination, Mr. Palmer admitted that counsel told him that he could be convicted “on
word alone.” (Id., docket p. 48). He testified that although he knew the charges were serious,
he never thought to ask counsel how much prison time he was facing (Id., docket pp. 49-51).
Finally, he testified that he wanted to go to trial and prove his innocence (Id., docket pp. 51,
53-54).

Counsel testified at the evidentiary hearing that he explained to Mr. Palmer that the
offenses were punishable by “mandatory life sentences.” (Id., docket p. 93). He further
testified that although he and Mr. Palmer discussed the plea offers, the discovery, the
accusations, the depositions, the investigation of witnesses, and the timeline, Mr. Palmer was not
interested in discussing counteroffers and wanted to proceed to trial (Id., docket p. 97).
In denying the claim, the state post-conviction court stated:
In claim 1, the Defendant asserts that trial counsel provided ineffective
assistance of counsel for failing to properly convey plea offers. At the
evidentiary hearing, the Defendant testified that, while trial counsel advised him
of three plea offers, trial counsel failed to advise him of the maximum punishment
he was facing if he declined the plea offers. Despite indicating that he would have

24
accepted the offers if he had been advised of the maximums, he testified that he
failed to ask trial counsel of the maximum he was facing on all three occasions.
He also testified that he wanted to prove his innocence at trial.

Trial counsel testified that he did advise the Defendant of the maximum he
was facing should he decline the plea offers and go to trial. He testified that
he had an independent recollection of advising the Defendant of the maximum
punishment while conveying the first plea offer and believed he had done so on
all three occasions based on his routine practice of doing so.

The Court found trial counsel’s testimony more credible than the
Defendant’s relative to claim 1. The Defendant was facing a maximum of life in
prison in this case and the Court found the testimony of the Defendant in regard to
claim 1 highly incredible. Accordingly, claim 1 is DENIED.

(Doc. 10-4, docket p. 141).
The record supports the state post-conviction court’s finding that Mr. Palmer failed to
establish ineffective assistance of counsel. Counsel testified that he informed Mr. Palmer of the
maximum sentences and that despite discussing the State’s offers and the issues in the case, Mr.
Palmer wanted to proceed to trial and prove his innocence. The state court’s findings that
counsel’s testimony was credible and Mr. Palmer’s testimony was “highly incredible” are
presumed correct. Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir.1998) (“We must accept
the state court’s credibility determination and thus credit [the attorney’s] testimony over [the
petitioner’s].”), cert. denied, 526 U.S. 1047 (1999); Devier v. Zant, 3 F.3d 1445, 1456 (11th
Cir.1993) (“Findings by the state court concerning historical facts and assessments of witness
credibility are ... entitled to the same presumption accorded findings of fact under 28 U.S.C. §
2254(d).”), cert. denied, 513 U.S. 1161 (1995). And Mr. Palmer has not overcome, by clear
and convincing evidence, the presumption of correctness afforded the state court’s credibility
finding.
Even if counsel were deficient, Mr. Palmer has failed to establish prejudice. To

25
establish prejudice in these circumstances, Mr. Palmer must demonstrate a reasonable probability
that he would have accepted the first plea offer of 10 years in prison followed by 15 years on
probation but for counsel’s alleged failure to adequately advise Mr. Palmer.5 See Lafler v.
Cooper, 566 U.S. 156, 164 (2012) (holding that to show prejudice in the context of a foregone

guilty plea, a petitioner must show, inter alia, that, but for the ineffective assistance of counsel,
there is a reasonable probability that he would have accepted the plea offer). Mr. Palmer
testified at the evidentiary hearing that it was always his intention to go to trial, and he wanted to
proceed to trial to prove his innocence (Doc. 10-4, docket p. 51). This was his intention despite
counsel allegedly telling him that he “was facing a lot of time” in prison if he proceeded to trial
and lost (Id., docket p. 13). And counsel testified that Mr. Palmer was not interested in
discussing counteroffers and always wanted to proceed to trial (Id., docket p. 97). Although
Mr. Palmer now contends that he would have accepted the State’s first offer had counsel
properly advised him, his contention, without more, is insufficient to demonstrate prejudice.
See Cook v. United States, 189 F. App’x 927, 929 (11th Cir. 2006) (“We have held that ‘after the

fact testimony concerning [a] desire to plead, without more, is insufficient to establish that but
for counsel’s alleged advice ... he would have accepted the plea offer.’”) (quoting Diaz v. United
States, 930 F.2d 832, 835 (11th Cir.1991) (alteration in original)).
Mr. Palmer has failed to show that the state court’s denial of this claim involved an
unreasonable application of Strickland or was based on an unreasonable determination of the
facts. Accordingly, Ground Five does not warrant federal habeas relief.
Ground Six: Petitioner was denied his constitutional rights to due process and a fair trial
when the trial judge denied his motion for judgment of acquittal

5 Mr. Palmer does not allege that he would have accepted either the second or third plea offer.

26
Mr. Palmer contends that he was denied due process and a fair trial when the court denied
his JOA at the conclusion of the State’s case. He argues that the JOA should have been granted
because the State failed to present sufficient evidence that he was 18 years or older, an element
of each charge against him. In state court, Mr. Palmer challenged the denial of his JOA in his

Amended Initial Brief on direct appeal (Doc. 10-2, docket pp. 18-20).
Respondent correctly argues that any federal constitutional claim Mr. Palmer is
attempting to raise is procedurally barred. In his Amended Initial Brief on direct appeal, he
argued that the trial court committed “reversible error” in denying his JOA (Id.). He cited
solely to state case law to support his argument (Id.). He did not present the federal
constitutional nature of his claim because he did not indicate in any way that the denial of his
JOA violated his rights under federal law (Id.). See Pearson v. Sec’y, Dep’t of Corr., 273 F.
App’x 847, 850 (11th Cir.2008) (petitioner’s federal sufficiency of evidence claim was not
exhausted where petitioner cited exclusively to Florida cases in state court and addressed Florida
law in all of his substantive arguments, even though Florida courts assess sufficiency of evidence

under standard identical to federal standard). Accordingly, this claim is procedurally defaulted
because the Florida courts would now refuse to hear his federal constitutional claim.
Mr. Palmer shows neither cause and prejudice nor manifest injustice to overcome the
procedural default. Ground Six is therefore procedurally barred from review.
Even if the claim were not procedurally barred it would fail on the merits. In a sexual
battery case in Florida, the age of the defendant may be proven by circumstantial evidence. See
State v. Surin, 920 So. 2d 1162, 1164 (Fla. 3d DCA 2006) (“[T]he State can meet its burden of
proof of defendant’s age through the use of circumstantial evidence in a sexual battery case.”).
The State presented circumstantial evidence that Mr. Palmer was 18 or older at the time of the

27
offenses, namely, Kevin Bozeman’s testimony that he and Mr. Palmer shared living expenses,
Mr. Palmer watched his children while he was at work, and Mr. Palmer had the electric bill in his
name. See Surin, 920 So. 2d at 1165 (finding that “the circumstantial evidence presented in this
case was sufficient to support the jury’s verdict that the defendant was eighteen years of age or

older at the time of the offense” where the jury was able to observe the defendant during the
case, the defendant married the victim’s mother the year before the offense, he cared for his
wife’s children while she was at work, the victim referred to the defendant as “daddy,” defendant
entered the country without his parents or another family member, and his wife referred to him
as an adult). Whether this circumstantial evidence was sufficient to overcome the JOA was a
question of state law for the trial court, and the court implicitly decided the question in denying
the JOA. This Court must defer to the state court’s interpretation of state law. See Herring v.
Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court
already has told us how the issues would have been resolved under Florida state law had
[petitioner’s counsel] done what [petitioner] argues he should have done ... It is a ‘fundamental

principle that state courts are the final arbiters of state law, and federal habeas courts should not
second-guess them on such matters.’”) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir.
1997)).
Even if the State’s circumstantial evidence was insufficient to prove Mr. Palmer was 18
at the time of the offenses, Mr. Palmer fails to demonstrate entitlement to relief on his due
process claim. The Due Process Clause of the Fourteenth Amendment prohibits a criminal
conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute
the crime.” In re Winship, 397 U.S. 358, 364 (1970). In a challenge to a state criminal
conviction under § 2254, a petitioner is entitled to relief on an insufficient evidence claim “if it is

28
found that upon the record evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979).
The record evidence in this case includes both the State’s circumstantial evidence of Mr.
Palmer’s age, and Mr. Palmer’s testimony that his date of birth is “11/18/83” (Doc. 10-7, docket

p. 225). Construing the evidence in the light most favorable to the State, it was sufficient to
prove that Mr. Palmer was 18 or older at the time of the offenses.6 Mr. Palmer therefore has
not demonstrated trial court error resulting in a due process violation.
In sum, Ground Six is procedurally barred from review, and Mr. Palmer has not
established a due process violation. Accordingly, Ground Six warrants no relief.
Ground Seven: Petitioner was denied his constitutional rights to due process and a fair
trial when the trial judge denied his motion for mistrial

During trial, after Leslie Bozeman was asked, “[a]t any time did [Mr. Palmer] ever make
any sexual advances at anybody in your home?” she testified, “[a]t one time he did come for me,
but he was drunk at that time.” (Doc. 10-7, docket p. 52). Next she was asked, “[a]nd what
did he do exactly?” (Id.). She answered, “[h]e beat on my bedroom door with my children in
the room.” (Id.). Defense counsel then objected and, during a bench conference, moved for a
mistrial (Id., docket pp. 52-54). Counsel argued that a mistrial should be granted because the
testimony concerned prior bad acts unrelated to the crimes for which Mr. Palmer was charged
(Id.). The motion for mistrial was denied (Id., docket p. 54). The objection, however, was
sustained, and the court immediately gave the following curative instruction:
Ladies and gentlemen, the defendant is not on trial for anything that may or may
not have occurred between him and the witness. The jury should disregard any

6 The Information indicates that the first four offenses occurred sometime between August 1, 2004 and September
1, 2006, and the last two offenses occurred sometime between September 1, 2005 and September 1, 2006 (Doc.
10-5, docket pp. 110-11). Accordingly, Mr. Palmer was 20 or older at the time of the offenses.

29
testimony concerning any transactions or dealings between the defendant and -
the witness and disregard any testimony concerning that. We don't have any
opportunity to determine the truth or the veracity of any of those kinds of
statements, nor is it even relevant to the subject matter in this case, so please
disregard that.

(Id., docket pp. 54-57).

Mr. Palmer contends that the curative instruction was insufficient to cure the prejudicial
harm caused by the testimony, and he was denied due process and a fair trial when the motion
for a mistrial was denied. He argues that a mistrial should have been granted because Leslie
Bozeman’s testimony, together with her testimony that Mr. Palmer said he was gay and that D.B.
had a “big one,” and D.B’s statement that his father and Mr. Palmer were going to pay women
for sex, improperly attacked his character, was highly prejudicial, and rendered his trial unfair.
This claim was raised in state court in Mr. Palmer’s Amended Initial Brief on direct
appeal (Doc. 10-1, docket pp. 34-36). The state appellate court affirmed Mr. Palmer’s
convictions without a written opinion (Id., docket p. 77).
“[A] jury is presumed to follow jury instructions.” Adams v. Wainwright, 709 F.2d
1443, 1447 (11th Cir.1983), cert. denied, 464 U.S. 1063 (1984). There is no indication that the
jury did not follow the trial court’s instruction to disregard Leslie Bozeman’s testimony that on
one occasion Mr. Palmer came for her while he was drunk and banged on her bedroom door.
Moreover, the testimony was not explicit and included no description of sexual activity. At
worst, the testimony implicitly indicated that Mr. Palmer may have made a sexual advance on
Leslie Bozeman, an adult. That testimony, even coupled with D.B.’s statement that his father
and Mr. Palmer were going to pay women to have sex, would not have tended to show that Mr.
Palmer more likely committed the sexual batteries on the minor victims.
To establish entitlement to habeas relief under the AEDPA with respect to this claim, Mr.

30
Palmer would have to establish that the denial of the motion for a mistrial violated a
“fundamental principle of justice” under the Fourteenth Amendment. Montana v. Egelhoff, 518
U.S. 37, 43 (1996). Mr. Palmer fails to make this showing. The trial court swiftly dealt with
Leslie Bozeman’s improper testimony by giving a curative instruction directing the jury to

disregard it. Moreover, considering D.B.’s detailed and graphic testimony regarding the sexual
abuse that was consistent with his prior statement during the CPT interview, the testimony that
Mr. Palmer may have made a sexual advance on Leslie Bozeman did not have a “substantial and
injurious effect or influence” on the jury’s verdict and did not result in “actual prejudice.”
Brecht v. Abrahamson, 507 U.S. 619, 622–623, 638 (1993) (a petitioner is not entitled to habeas
relief unless trial error resulted in actual prejudice). Mr. Palmer therefore was not denied a fair
trial in accordance with the traditional and fundamental standards of due process.
Mr. Palmer has failed to show that the Florida appellate court’s decision was contrary to,
or an unreasonable application of, clearly established federal law as determined by the United
States Supreme Court, or an unreasonable determination of the facts in light of the evidence

presented. Accordingly, Ground Seven warrants no relief.
Ground Eight: Petitioner received ineffective assistance of trial counsel when his attorney
failed to move the court for a mistrial

Ground Nine: Petitioner received ineffective assistance of trial counsel when his attorney
failed to impeach Det. Lopez during his trial testimony

In Ground Eight, Mr. Palmer contends that counsel was ineffective in failing to move for
a mistrial after the CPT interviewer testified that based on her experience it is not unusual in
these cases that the examination of the victim reveals no physical evidence of penetration.
According to Mr. Palmer, counsel objected to the testimony, and the objection was sustained.
Mr. Palmer asserts that despite the successful objection, counsel also should have moved for a

31
mistrial and argued that a fair trial was not possible after the jury heard the testimony.
In Ground Nine, Mr. Palmer contends that counsel was ineffective in failing to impeach
Detective Lopez with a report Detective Lopez prepared that indicated Mr. Palmer was
answering truthfully during an interrogation. He argues that the report would have impeached

Detective Lopez’s trial testimony that during the interrogation: 1) he observed that Mr. Palmer’s
palms were sweating and his mouth was dry; and 2) Mr. Palmer was “trying to think of” answers
to Detective Lopez’s questions because Mr. Palmer frequently answered the questions with
another question. Mr. Palmer states that Detective Lopez’s testimony implied that he was not
answering truthfully during the interrogation, and the report would have shown that Detective
Lopez had previously stated that he believed Mr. Palmer was answering truthfully during the
interrogation.
Mr. Palmer acknowledges that these claims were not exhausted in state court but
asserts entitlement to federal review under Martinez v. Ryan, 566 U.S. 1 (2012) (Doc. 1, docket
p. 27). Martinez recognizes a narrow exception to the exhaustion requirement announced in

Coleman v. Thompson, 501 U.S. 722 (1991), regarding claims of ineffective assistance of trial
counsel. Martinez holds that, “[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial review collateral proceeding, a procedural default will not bar
a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the
initial review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” 566 U.S. at 17. A claim that lacks merit or is wholly without factual support is
not “substantial.” See id. at 15-16; see also Allen v. Sec’y, Dep't of Corr., 767 F. App’x 786,
790 (11th Cir. 2019) (“[T]o show that an underlying claim is substantial, the petitioner must
show that reasonable jurists would debate its merits.”) (citing Hittson v. GDCP Warden, 759

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F.3d 1210, 1269–70 (11th Cir. 2014)).
Martinez does not apply here because Mr. Palmer was appointed counsel who
represented him at the evidentiary hearing on his post-conviction motion (see Doc. 10-3, docket
p. 20; Doc. 10-4, docket p. 3). Moreover, while post-conviction counsel did not draft the Rule

3.850 motion argued at the evidentiary hearing, counsel could have sought leave to amend Mr.
Palmer’s pro se Rule 3.850 motion to add any meritorious ineffective assistance of trial counsel
claims that Mr. Palmer may have omitted from his motion. See Rule 3.850(e), Florida Rules of
Criminal Procedure (authorizing amendment of Rule 3.850 motion). Mr. Palmer fails to argue
or show that under the Supreme Court’s second Martinez prong, appointed counsel was
ineffective because she failed to raise an ineffective assistance of trial counsel claim that should
have been raised.
Martinez likewise does not apply because Mr. Palmer fails to show that his claims of
ineffective assistance of trial counsel are “substantial.” Regarding Ground Eight, Mr. Palmer
contends that counsel should have moved for a mistrial after the following exchange between the

prosecutor and the CPT interviewer:
Q. Okay. And when you are doing your reports and gathering them. And
when you're helping with the medical exams in your cases that you've dealt with,
is it unusual in cases not to have findings of sexual abuse or trauma?

A. In my?

Q. In the cases you've had.

A. No, ma'am, that's not unusual.

Q. As a matter of fact, in the cases you've had, is it more likely than not not to
have findings?

A. Yes, ma'am.

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(Doc. 10-7, docket p. 215).
Mr. Palmer argues that the testimony was improper because the CPT interviewer “was
never qualified to give this type of opinion. . . .” (Doc. 1, docket p. 23). The testimony,
however, did not provide an opinion. Rather, it provided evidence of the CPT interviewer’s

own past experiences and firsthand observations. Mr. Palmer fails to argue or show that this
testimony was inadmissible under Florida law. In fact, “[t]here is nothing in the Florida
evidence rules that precludes a lay witness from testifying about her past experience.” Russ v.
Dep’t of Corr., 476 F. App’x 706, 708 (11th Cir. 2012). Counsel therefore was not ineffective
in failing to move for a mistrial because of this testimony. See Freeman v. Attorney General,
Florida, 536 F.3d 1225, 1233 (11th Cir.2008) (counsel is not ineffective for failing to preserve or
argue a meritless claim). Accordingly, Mr. Palmer fails to establish that this claim is
“substantial” under Martinez to overcome the procedural default.
Regarding Ground Nine, Mr. Palmer contends that counsel was ineffective in failing to
impeach the following testimony of Detective Lopez:

Q. And in those interviews with the defendant, did you were you alone in
those interviews with him?

A. No, I had another detective that was with me.

Q. Were you in training at this time for this particular division?

A. Yes, I was.

Q. And in the interview with Mr. Palmer, during questioning with him, did
you notice anything about how his demeanor was or how he was acting?

A. Yes, I did. He was -- I recall he was sweating profusely. He had a
very, very dry mouth, cotton mouth, and he seemed to answer a lot of my
questions with a question, which is usually a sign of somebody trying to think of
an answer before they answer me.

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Q. And would that be based on your training and experience that you would
recognize that?

A. Yes, ma'am.

(Doc. 10-7, docket p. 127). That testimony, Mr. Palmer opines, inferred that he was lying during
the interrogation. Mr. Palmer argues that counsel should have used a report, allegedly prepared
by Detective Lopez, that indicates Mr. Palmer “was being truthful” during the interrogation.
The report to which Mr. Palmer refers is the Computer Voice Stress Analyzer Report that
Mr. Palmer attached to his petition (Doc. 1, docket p. 32). The report appears to indicate that
Mr. Palmer took a “computer voice stress analyzer examination” on November 28, 2006, during
which he was asked two questions: 1) “Have you ever had oral sex with []?”; and 2) “Have you
ever had anal sex with []?” (Id.).7 Mr. Palmer responded “No” to each question, and the
examiner concluded that in his opinion “James Palmer responded truthfully to the relevant
question(s).” (Id.).
Mr. Palmer fails to show that counsel rendered deficient performance in failing to use the
report to attempt to impeach Detective Lopez. Despite Mr. Palmer’s unsupported assertion to
the contrary, it does not appear that the report was prepared by Detective Lopez. Rather, it
appears the report was prepared and signed by “Detective Terry Roberts, #5291”, and submitted
to Detective Lopez (Id.). Therefore, because the report did not include a prior statement of
Detective Lopez, under Florida law it was not a prior inconsistent statement that could be used to
impeach Detective Lopez. See Wilcox v. State, 143 So.3d 359 (Fla.2014) (to impeach a witness
by use of a prior inconsistent statement, the prior statement must be both (1) inconsistent with
the witness’s in-court testimony, and (2) the statement of the witness). And even if the report

7 The name of the victim is redacted from the report (Id.).

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had been prepared by Detective Lopez, the statement that Mr. Palmer “responded truthfully” to
the two questions during the “computer voice stress analyzer examination” was not inconsistent
with his trial testimony that Mr. Palmer’s hands were sweating and mouth was dry, and that Mr.
Palmer would answer a question by asking another question.8 See id. (“To be inconsistent, a

prior statement must either directly contradict or materially differ from the testimony presented
during trial.”) (citing State v. Smith, 573 So.2d 306, 313 (Fla.1990)).
Mr. Palmer fails to establish that his claims in Grounds Eight and Nine are “substantial”
under Martinez to overcome the procedural default. And he cannot meet the “fundamental
miscarriage of justice” exception because he presents no “new reliable evidence” that he is
actually innocent. Schlup, 513 U.S. at 327. Because Mr. Palmer satisfies neither exception to
procedural default, Grounds Eight and Nine are procedurally barred from review.
Any claims not specifically addressed herein have been determined to be without merit.
It is therefore ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DENIED.

2. The Clerk of the Court shall enter judgment accordingly and close this case.
3. This Court should grant an application for certificate of appealability only if the
petitioner makes Aa substantial showing of the denial of a constitutional right.@ 28 U.S.C. '

8 Because Detective Lopez interviewed Mr. Palmer twice (see Doc. 1, docket p. 25; Doc. 10-7, docket p. 128), it is
not clear that Detective Lopez’s testimony pertained to an interview during which Mr. Palmer took the voice stress
examination. Accordingly, Mr. Palmer cannot establish that no objectively competent lawyer would not have used
the report to attempt to impeach Detective Lopez. See Chandler v. United States, 218 F.3d 1305, 1313 (11th
Cir.2000) (en banc) (“[B]ecause counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct
was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel
did take.”). An ambiguous record is not sufficient to disprove the strong and continuing presumption of effective
representation. Where the record is incomplete or unclear about counsel’s actions, it will be presumed that he did
what he should have done, and that he exercised reasonable professional judgment. Id., 218 F.3d, at 1314 n. 15.

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2253(c)(2). Mr. Palmer has failed to make this showing.’ Accordingly, a Certificate of
Appealability is DENIED in this case. And because Mr. Palmer is not entitled to a Certificate
of Appealability, he is not entitled to proceed on appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida on May 4, 2020.

WILLIAM F. =>
UNITED STATES DISTRICT JUDGE

SA: sfc
Copies to:
James E. Palmer, pro se
Counsel of Record

°The district court must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant. See Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105204. Public record. Not legal advice.