# Rios v. Secretary, Department of Corrections

> District Court, M.D. Florida · June 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10105296

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105296

## How later opinions describe it (automated extraction)

- holding federal claim was not properly presented where case relied on by petitioner cited a case, which cited another case, which cited the relevant case

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NESTOR RIOS,

Petitioner,

v. Case No. 8:17-cv-1161-T-02TGW

SECRETARY, DEPARTMENT OF
CORRECTIONS,

Respondent.
__________________________________/

ORDER
On May 17, 2017, Petitioner Nestor Rios filed his Petition under 28 U.S.C. §
2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He seeks relief
from an August 3, 2006, state court conviction. Id. at 1. Respondent filed a
response. Dkt. 7. Petitioner filed a reply. Dkt. 18. The Court finds that a hearing is
unnecessary and denies the Petition.
Background
The criminal activity underlying Petitioner’s conviction was an extensive
heroin distribution network bringing heroin from New York to Tampa and
Orlando. The investigation involved “flipping” several conspiracy members to be
informants and tapping several individuals’ phones, including Petitioner’s. A
detailed description of the underlying events can be found in the state court record.
For purposes of this opinion the relevant conspiracy participants are Oscar
Gonzalez, John Maglione, and Miguel Cabrera. Oscar Gonzalez was a dealer who

was arrested by police in December 1999 and agreed to record conversations with
his supplier, which at the time was Petitioner. John Maglione was named by Oscar
Gonzalez as being part of the enterprise and his phone was tapped. Maglione flew

to New York City on February 7, 2000, where he met with Petitioner and Miguel
Cabrera and was later arrested at LaGuardia Airport with 400 grams of heroin. In
addition to being part of the February 7 transaction, Cabrera was named by
Gonzales as being his former supplier’s supplier.

On August 3, 2006, Petitioner was convicted by a jury of racketeering,
conspiracy to commit racketeering, conspiracy to traffic in heroin, and two counts
of trafficking in illegal drugs and he was sentenced to thirty years in prison with a

twenty-five-year mandatory term.1 Dkt. 7 at 1. The Second District Court of
Appeal affirmed the convictions without an opinion on June 18, 2008. Dkt. 9-11;
see Rios v. State, 4 So. 3d 1234 (Fla. 2d DCA 2008).
On October 2, 2008, Petitioner filed a petition for writ of habeas corpus in

state court alleging ineffective assistance of appellate counsel. Dkt. 9-12. The state
court granted the petition in part, finding that convictions on both counts three and

1 This was Petitioner’s second trial on these charges. Petitioner was originally found guilty in
2002 but the convictions were reversed based upon inappropriate jury instructions. Dkt. 9-5 at 1–
2.
four violated double jeopardy principles and remanded with directions to strike
either count three or count four. Dkt. 9-15; see Rios v. State, 19 So. 3d 1004 (Fla.

2d DCA 2009). The mandate issued November 23, 2009. Dkt. 9-16. On December
9, 2009, the state circuit court entered an amended judgment and sentence setting
aside the judgment and sentence as to count three. Dkt. 9-17. On January 11, 2010,

the Florida Supreme Court denied review. Dkt. 9-18.
On June 4, 2010, Petitioner filed a Rule 3.850 motion for postconviction
relief. Dkt. 9-19. The motion was denied. Dkts. 9-24 & 9-29. Petitioner appealed
and the state appellate court affirmed without opinion. Dkt. 9-33; see Rios v. State,

No. 2D15-674, 2017 WL 465309, at 1 (Fla. 2d DCA Feb. 3, 2017). The mandated
was issued March 2, 2017. Dkt. 9-34. On May 17, 2017, Petitioner filed the instant
federal Petition for writ of habeas corpus. Dkt. 1.

Standards of Review
This petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998). AEDPA “establishes a highly deferential standard for reviewing state

court judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th Cir.
2003). This type of review does not allow relief of a state court conviction on a
claim:

that was adjudicated on the merits in the State court proceedings’ unless
the state court’s decision was ‘(1) . . . contrary to, or involved an
unreasonable application of, clearly established Federal law as
determined by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’
Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016)
(quoting 28 U.S.C. § 2254(d)).
“Clearly established Federal law” means holdings of the U.S. Supreme
Court “as of the time of the relevant state-court decision.” Id. at 1288–89.
“Contrary to” requires a state court conclusion “opposite to that reached by [the

Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially indistinguishable facts.” Id. at
1289 (citations omitted) (alterations in original). The “unreasonable application”
clause applies only “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. (citation omitted) (alterations in
original).

However, a state court’s factual determination “is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the
first instance.” Id. (citation omitted). AEDPA “requires federal habeas courts to

presume the correctness of state courts’ factual findings unless applicants rebut this
presumption with ‘clear and convincing evidence.’” Id. (citation omitted). This is a
“demanding but not insatiable standard, requiring proof that a claim is highly
probable.” Id. (citation and internal quotation marks omitted). Further, this
standard applies even if the state court does not provide the reasoning behind its

decision because “the summary nature of a state court’s decision does not lessen
the deference that it is due.” Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,
1254 (11th Cir. 2002).

Discussion
A. Timeliness
Federal habeas petitions are subject to a one-year statute of limitation. 28
U.S.C. § 2244(d)(1) (2018). It begins running on “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for
seeking such review.” Id. § 2244(d)(1)(A). The clock stops running for the “time
during which a properly filed application for State post-conviction . . . judgment or

claim is pending[.]” Id. § 2244(d)(2). The record shows the petition is timely.
B. Merits
In Grounds One, Two, and Three Petitioner argues that he was denied due
process and equal protection because of various alleged errors regarding audio tape

recordings of Petitioner’s conversations. In Grounds Four through Twelve
Petitioner alleges various ineffective assistance of counsel claims. In Ground
Thirteen, Petitioner alleges the cumulative effect of these errors requires granting

him relief from the judgment. Each of these Grounds will be discussed in turn.
1. Ground One, Two, and Three
In Ground One, Petitioner alleges that he was denied due process and equal

protection of the law when the trial court allowed recordings to be played in
Spanish and permitting the jury to use translations in English prepared by an
involved law enforcement officer. In Ground Two, Petitioner alleges that he was

denied due process and equal protection of the law when the trial court permitted
the State to use an inaudible tape recording. In Ground Three, Petitioner alleges
that he was denied due process and equal protection of the law when the trial court
erred by permitting the lead detective to give his opinions as to the content of the

recorded conversations. Respondent argues that Grounds One through Three are
unexhausted and procedurally barred. Dkt. 7 at 4.
First, Petitioner concedes that he did not make an equal protection argument

in state court. Thus those claims cannot be brought on federal habeas review. Dkt.
18 at 2. However, Petitioner argues that, although not explicitly alleged, his due
process argument was implied in his state court briefs. Dkt. 18 at 2.
In order for a federal court to review a habeas claim it must be “fairly

presented” to the state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim is
not fairly presented if the state court “must read beyond a petition . . . that does not
alert it to the presence of a federal claim.” Id. at 32. Requiring courts to follow a

“daisy chain” to divine the federal constitutional claim is an insufficient
presentation of the federal claim. See Howell v. Mississippi, 543 U.S. 440, 443–44
(2005) (holding federal claim was not properly presented where case relied on by

petitioner cited a case, which cited another case, which cited the relevant case).
The Supreme Court has provided the lower courts with guidance for
determining whether a habeas petitioner has met the “fair presentation”

requirement. In Picard v. Connor, the Court held that, for purposes of exhausting
state remedies, a claim for relief in habeas corpus must include reference to a
specific federal constitutional guarantee, as well as a statement of the facts which
entitle the petitioner to relief. Picard v. Connor, 404 U.S. 270, 277 (1971). In

announcing that “the substance of a federal habeas corpus claim must first be
presented to the state courts,” the Court rejected the contention that the petitioner
satisfied the exhaustion requirement by presenting the state courts only with the

facts necessary to state a claim for relief. Id. at 278.
An issue that was not properly presented to the state court and which can no
longer be litigated under state procedural rules is considered procedurally
defaulted, that is, procedurally barred from federal review. See O’Sullivan v.

Boerckel, 526 U.S. 838, 839–40, 848 (1999); Bailey v. Nagle, 172 F.3d 1299,
1302–03 (11th Cir. 1999). This Court will also consider a claim procedurally
defaulted if it was presented in state court and rejected on the independent and

adequate state ground of procedural bar or default. See Coleman v. Thompson,
501 U.S. 722, 734–35 & n.1 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th
Cir. 2001) (“[C]laims that have been held to be procedurally defaulted under state

law cannot be addressed by federal courts.”); Chambers v. Thompson, 150 F.3d
1324, 1326–27 (11th Cir. 1998) (applicable state procedural bar should be
enforced by federal court even as to a claim which has never been presented to a

state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v.
Dugger, 876 F.2d 1470 (11th Cir. 1990), rev’d on other grounds, 498 U.S. 308
(1991).
Here, Petitioner raised these issues on direct appeal in state court but did not

present the issues to the state court as federal claims. In his initial brief Petitioner
did not cite “in conjunction with the claim the federal source of law on which he
relies” or cite to a federal case which decided this issue, or even label his claim as

a federal issue. Dkt. 9-5; See Baldwin, 541 U.S. at 32. Therefore, this claim is not
“exhausted.”
Further, Petitioner has no available avenue through which he may properly
exhaust his federal claim in the state courts. Petitioner acknowledges this in his

reply brief. Dkt. 18 at 5. Therefore, this claim should be considered procedurally
defaulted.
To overcome a procedural default such that the federal habeas court may

consider the merits of a claim, the petitioner must show cause and prejudice or a
fundamental miscarriage of justice. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470.
“For cause to exist, an external impediment, whether it be governmental

interference or the reasonable unavailability of the factual basis for the claim,
must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499
U.S. 467, 497 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, (1986)).

Lack of counsel or ignorance of available procedures is not enough to establish
cause. Tower, 7 F.3d at 210.
Petitioner has not established cause and prejudice or a fundamental
miscarriage of justice and cannot overcome the procedural default. Thus, Grounds

One, Two, and Three are not exhausted and procedurally barred.
2. Grounds Four through Thirteen
In Grounds Four through Twelve Petitioner claims that various actions or

inactions by his trial counsel amounted to ineffective assistance of counsel in
violation of the Sixth Amendment. In Ground Thirteen Petitioner argues that the
cumulative effect of counsel’s errors requires relief.
Counsel is ineffective under the Sixth Amendment if “(1) counsel’s

performance was deficient; and (2) the deficient performance prejudiced the
defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d
1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). But in the habeas context, “[t]he question is not whether a federal court
believes the state court’s determination under the Strickland standard was incorrect
but whether that determination was unreasonable—a substantially higher

threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation and internal
quotation marks omitted). “If there is ‘any reasonable argument that counsel
satisfied Strickland’s deferential standard,’ then a federal court may not disturb a

state-court decision denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210,
1248 (11th Cir. 2014) (citation omitted).
“[I]t is 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. . . . [I]t is rarer still for merit to be found in a claim that challenges a
strategic decision of counsel.” Nance v. Warden, Georgia Diagnostic Prison, 922
F.3d 1298, 1303 (11th Cir. 2019) (internal citations omitted). A strategic decision

by counsel is only subject to federal habeas review when it was so “patently
unreasonable that no competent attorney would have chosen it.” Adams v.
Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983).
a. Ground Four

In Ground Four, Petitioner argues that he was denied his Sixth Amendment
right to effective counsel because of his trial counsel’s failure to impeach key state
witnesses with their prior inconsistent statements. Petitioner alleges that Oscar

Gonzalez’s and Detective Massucci’s statements at his second trial differed from
their statements at his first trial and their depositions. Dkt. 1 at 15. Respondent
argues that the postconviction court’s decision was supported by the facts and that

Petitioner failed to demonstrate deficient performance or prejudice. Dkt. 7 at 8–9.
In denying relief, the state postconviction court found that Petitioner’s trial
counsel had reviewed the prior transcripts and that his strategic choice was not to

“nit-pick” the witnesses’ testimony in order to preserve credibility with the jury.
Dkt. 7 at 7. The postconviction court further determined that the changes in the
witnesses’ testimony were not material to Petitioner’s conviction because they did
not prove or disprove an element of any of the charged crimes. Id. at 8. These

findings were reasonable based on the underlying record and transcripts.
Further, under the Strickland test, Petitioner has failed to establish the
necessary elements. Ineffective assistance of counsel claims require proof of both

deficient performance and consequent prejudice. Strickland, 466 U.S. at 697.
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. 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.” Id. at 690.
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.” Id. at 690–91. Petitioner’s trial counsel testified at the
postconviction evidentiary hearing that he reviewed the prior transcripts and
decided not to “nit-pick” the inconsistencies to retain credibility with the jury. This

was a reasonable strategic choice. Thus, Petitioner’s trial counsel was not deficient.
b. Ground Five
In Ground Five Petitioner argues that he was denied his Sixth Amendment
right to effective counsel because of his trial counsel’s failure to call witnesses who

would have rebutted the state’s case. Dkt. 1 at 19. Petitioner argues that he
provided his trial counsel with information concerning Miguel Cabrera and
William Arvelo, both of whom would have been willing and able to testify for the

defense. Id. Respondent argues that the postconviction court dismissed the claim
regarding Cabrera because Petitioner failed to allege he was available to testify.
Dkt. 7 at 9. Arevlo testified at a postconviction court evidentiary hearing where he
denied knowing or working with Petitioner, however the postconviction court did

not find Arevlo’s testimony credible or, even if it was credible, it was not
exculpatory for Petitioner. Dkt. 9-29 at 8–11. The postconviction court further
questioned if Arvelo would even be available to testify for Petitioner since he had

agreed to testify for the State in Petitioner’s case and then subsequently refused to
do so. Id. at 11.
As to Cabrera, the state postconviction court denied his motion with

prejudice when Petitioner failed to cure the facial deficiency in his motion because
he failed to establish that Cabrera was available to testify on his behalf at the time
of trial. Dkt. 9-22 at 9–10. Federal habeas review “requires federal habeas courts to

presume the correctness of state courts’ factual findings unless applicants rebut this
presumption with ‘clear and convincing evidence.’” Nejad, 830 F.3d at 1289
(quoting Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007)). The state
postconviction court made reasonable factual determinations and interferences, and

Petitioner has presented no evidence to rebut them.
Further, the Petitioner’s counsel testified at the postconviction evidentiary
hearing that he investigated Cabrera but that he thought Cabrera’s testimony would

not help Petitioner. Dkt. 9-24 at 10. The decision whether to call a witness is a
strategic one. “While attorneys may disagree as to how many or what particular
witnesses to call, such is the stuff out of which trials are made.” Solomon v. Kemp,
735 F.2d 395, 404 (11th Cir. 1984). Thus, even if considered on the merits,

counsel’s choice not to call Cabrera was a strategic one and not a violation under
Strickland.
The postconviction court’s findings regarding Arvelo are a reasonable

interpretation of the record. Arvelo’s testimony directly conflicted with his plea
and thus lacked credibility. Rios argues that the postconviction court was wrong
about Arvelo’s testimony and that Arvelo was telling the truth about it being his

brother on the recorded phones calls not Arvelo. Even assuming what Petitioner
argues is true, this was not the sole basis for the postconviction Court to reject
Arevlo’s testimony.

Regardless, under the deferential AEDPA, the Court cannot say that the
postconviction court applied Strickland unreasonably in determining that Petitioner
was not prejudiced. Accordingly, Ground Five must be denied.
c. Ground Six

In Ground Six Petitioner argues that he was denied his Sixth Amendment
right to effective counsel because of his trial counsel’s failure to introduce
impeachment evidence. Dkt. 1 at 22. Specifically, Petitioner alleges that his trial

counsel knew of the existence of a recorded conversation between Oscar Gonzalez
and Petitioner while being held in the back of the patrol car after they were stopped
by the police, which could have impeached Gonzalez. Respondent argues that the
state postconviction court reasonably found that such a tape did not exist and that it

would not have had an effect on the trial, so Petitioner could not prove deficient
performance or prejudice. Dkt. 7 at 14.
Petitioner first argues that Respondent admitted to the existence of the

recorded conversation in a brief filed with the Florida Second District Court of
Appeal. Dkt. 18 at 18. However, in the brief the Respondent discussed how there
was a recording from the back of the police car on December 10 but that it was a

conversation between Petitioner and Jose Lubin, not Gonzalez. Dkt. 9-31 at 47–48.
Second, Petitioner asks this Court to review the same police report which describes
the recording that he offered to the state postconviction court. The postconviction

court found that this police report “reflects the existence of a recording between
[Petitioner] and Lubin” which was insufficient to meet his postconviction burden.
Dkt. 9-29 at 12–13. The evidence in the record reflects that Gonzalez was not part
of the alleged recording; as such, it could not have been used to impeach Gonzalez

in the manner Petitioner describes. Petitioner has failed to rebut by clear and
convincing evidence the presumption of correctness of the state postconviction
court’s factual findings. Thus, Petitioner failed to prove deficient performance or

prejudice. Accordingly, Ground Six is denied.
d. Ground Seven
Petitioner conceded that Ground Seven is procedurally barred and asked the
Court to dismiss it. As such, Ground Seven is dismissed.

e. Ground Eight
In Ground Eight Petitioner argues that he was denied his Sixth Amendment
right to effective counsel because of his trial counsel’s failure to recognize and

properly argue that the State’s amended information allowed Petitioner to be
convicted of uncharged crimes.2 Dkt. 1 at 28. Respondent argues that Petitioner
was not convicted of uncharged crimes and that the information was properly

amended so any objection made by Petitioner’s trial counsel would have been
overruled. Dkt. 7 at 15.
First, the postconviction court found that the information was properly

amended. Dkt. 9-24 at 14. Next, the postconviction court found that the State only
had to prove two predicate acts to establish a RICO violation pursuant to Florida
Statute § 895.03. Petitioner was charged and found guilty of counts two, three,
four, five, and twenty-five: RICO, conspiracy to commit RICO, conspiracy to

traffic in heroin, and two counts of trafficking in illegal drugs. Dkt. 9-24 at 12–13.
Petitioner was neither charged with nor found guilty of count seventeen, as he
argues in his Petition. The Petitioner was not convicted on uncharged crimes. Dkt.

9-24 at 14. This Court presumes the correctness of the state court’s factual findings
unless the Petitioner can rebut them by clear and convincing evidence. Nejad, 830
F.3d at 1289. Petitioner has not done so. Accordingly, Ground Eight is denied.
f. Ground Nine

In Ground Nine Petitioner argues that he was denied his Sixth Amendment

2 Petitioner’s arguments on this point are unclear, but to the extent that Petitioner in challenging
what qualifies as a predicate for RICO under Florida law, the final arbitrators on questions of
state law are the Florida courts. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not
the province of a federal habeas court to re-examine state-court determinations on state-law
questions.”).
right to effective counsel because of his trial counsel’s failure to object to the
State’s erroneous jury instructions which caused the court to read the principal

instruction3 that is not applicable to conspiracy. Dkt. 1 at 31. Petitioner also argues
that the prosecutor’s remarks about this principal theory during closing argument
were improper. Respondent argues that the instruction was properly given under

state law.
Petitioner argues his counsel was ineffective for failing to object to a jury
instruction. “An error in instructing the jury cannot constitute a basis for federal
habeas relief unless the error ‘so infected the entire trial that the resulting

conviction violates due process.’” Romanes v. Sec’y, Dep’t of Corr., 621 F. Supp.
2d 1249, 1263 (M.D. Fla. 2008) (quoting Henderson v. Kibbe, 431 U.S. 145, 154
(1977)).

The postconviction court found that “the principal jury instruction read at
[Petitioner’s] trial was the standard jury instruction on principal. . . . [and] there
was no basis for counsel to object to the principal instruction.” Dkt 9-29 at 18. The
postconviction court further distinguished this case from Evans—which Petitioner

3 “Instruction on principals. If the defendant helped another person or persons commit a crime,
the defendant is a principal and must be treated as if he had done all the things the other person
or persons did if (1) the defendant had a conscious intent that the criminal act be done and (2) the
defendant did some act or said some word which was intended to and which did incite, cause,
encourage, assist or advise the other person or persons to actually commit the crime. To be a
principal, the defendant does not have to be present when the crime is committed.” Dkt. 9-1 at
536.
cited in support of his arguments both to the postconviction court and this Court—
holding that Florida courts do “not construe Evans to hold that the principal

instruction is inappropriate whenever conspiracy is tried along with substantive
offenses.” Id. at 19. Finally, the postconviction court found “nothing in the manner
in which the principal instruction was read at [Petitioner’s] trial (after the

trafficking instruction and before the instruction on [Petitioner’s] not guilty plea)
which would confuse or mislead the jury into misapplying the concepts of
principal and conspiracy and thus, [found Petitioner] cannot demonstrate sufficient
prejudice under Strickland.” Id.

Petitioner challenges the reading of the principal jury instruction. Such a
challenge has been analyzed in two recent cases by this Court. Scott v. Sec’y, Dep’t
of Corr., No. 5:16-CV-684-OC-36PRL, 2020 WL 1433058 (M.D. Fla. Mar. 24,

2020); Cooper v. Sec’y, Fla. Dep’t of Corr., Case No. 3:10-cv-951-J-32JRK (M.D.
Fla. Oct. 26, 2015). See also Romanes, 621 F. Supp. 2d at 1263–64. In both cases
this Court held “any error regarding the jury instruction on the principal theory was
harmless where the evidence clearly demonstrated that Petitioner was an active

participant in the conspiracy.” Scott, 2020 WL 1433058, at *13. Here, as in Scott
and Cooper, Petitioner was an active participant in the conspiracy. The
postconviction court’s determination that Petitioner was not prejudiced under

Strickland is a finding entitled to deference. This finding was not an unreasonable
application of Strickland, or an unreasonable determination of the facts in light of
the evidence adduced in state court. Thus, Petitioner is not entitled to relief on this

ground.
Petitioner also argues that his counsel was ineffective for failing to object to
the prosecutor’s remarks about the principal instruction during the prosecution’s

closing argument. The postconviction court found that the prosecutor’s “comments
were proper statements of the law on the concepts of principal and conspiracy. . . .
[and] the comments placed in context of the closing are not improper or unduly
prejudicial, and therefore, [Petitioner] has failed to establish deficient conduct.”

Dkt. 9-29 at 17.
“In a federal habeas corpus petition, allegedly improper prosecutorial
remarks are reviewed to determine whether, in the context of the entire trial, such

remarks were sufficiently prejudicial to violate the petitioner’s due process rights.”
Crenshaw v. Sec’y, Fla. Dep’t of Corr., No. 16-17735-D, 2017 WL 6761058, at *6
(11th Cir. 2017) (citation omitted). “Such a determination depends on whether
there is a reasonable probability that, in the absence of the improper remarks, the

outcome of the trial would have been different.” Williams v. Weldon, 826 F.2d
1018, 1023 (11th Cir. 1987). “Thus, to establish prosecutorial misconduct, a two-
prong test must be satisfied: (1) the prosecutor’s comments must have been

improper; and (2) the comments must have rendered the trial fundamentally
unfair.” Crenshaw, 2017 WL 6761058, at *6 (citing United States v. Eyster, 948
F.2d 1196, 1206 (11th Cir. 1991)).

Petitioner has failed to meet the first prong of this test. Petitioner failed to
prove that the comments were improper. “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.’” Herring v. Sec’y, Dep’t of Corr., 397 F.3d
1338, 1355 (11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th
Cir. 1997)). The state court found that the comments were proper statements of
Florida law, and this Court will not “second-guess” them on that matter. Because

the comments were not improper, Petitioner’s trial counsel was not ineffective for
failing to object to them. Sneathen v. Sec’y, Dep’t of Corr., 787 F. App’x 567, 574
(11th Cir. 2019) (“[T]rial counsel cannot be faulted for failing to make a meritless

objection.”).
Finally, Petitioner argues that this Court should grant relief on this Ground
because the postconviction judge granted relief on a similar ground for a different
defendant in an unrelated case. Dkt. 18 at 23. As an initial matter this argument is

unexhausted for federal habeas purposes as it was not raised in state court. Further,
Petitioner’s argument is based on a faulty premise. What the postconviction judge
did in an unrelated case has no bearing on what the postconviction judge did in the

Petitioner’s case. The postconviction court’s factual findings are entitled to
deference under AEDPA and Petitioner has failed to meet his burden under
Strickland to prover either prejudice or deficient performance as a result of the

prosecutor’s remarks during closing or the principal jury instruction. Accordingly,
Petitioner is denied relief on Ground Nine.
g. Ground Ten

In Ground Ten Petitioner argues that he was denied his Sixth Amendment
right to effective counsel because of his trial counsel’s failure to object to the
prosecutor’s misstatement of evidence in closing argument deprived Petitioner of a
fair and impartial trial. Dkt. 1 at 34. Petitioner argues that the prosecutor wrongly

implied that exhibit 46, a role of brown packing tape, was found in his car in an
attempt to connect him to the heroin ring when it was actually found in Oscar
Gonzalez’s car. Id. Respondent argues that the postconviction court found that the

tape at issue was found in Petitioner’s car. Dkt. 7 at 18.
The postconviction court found, contrary to Petitioner’s argument, that the
evidence at trial was that exhibit 46, the tape, was found in Petitioner’s car. Dkt. 9-
24 at 17. AEDPA “requires federal habeas courts to presume the correctness of

state court’s factual findings unless applicants rebut this presumption with ‘clear
and convincing evidence.’” Nejad, 830 F.3d. at 1288–89 (citation omitted).
Petitioner has failed to rebut these findings.

In support of his argument, Petitioner provides the same trial testimony that
the state postconviction court already determined established the tape was found in
Petitioner’s car. Dkt. 9-1 at 134–42. Petitioner also provided a new document he

labeled “Exhibit D” and included with his petition. Dkt. 2-4. However, this
document, even taken at face value, does not rebut the factual finding that the tape
admitted at Petitioner’s trial was found in Petitioner’s car. It instead references a

brown packing tape related to Oscar Gonzalez, which is consistent with Detective
Massucci’s testimony that tape similar to exhibit 46 was found when searching
Oscar Gonzalez’s property. This does not prove by clear and convincing evidence
that the state court’s factual findings were incorrect.

As the record established that the tape was found in Petitioner’s car, there
was nothing improper about the prosecutor discussing that in closing arguments
and Petitioner’s counsel was not deficient for failing to object. Sneathen, 787 F.

App’x at 574 (“[T]rial counsel cannot be faulted for failing to make a meritless
objection.”). Accordingly, Petitioner cannot establish deficient performance and
Ground Ten is denied.
h. Ground Eleven

In Ground Eleven Petitioner argues that he was denied his Sixth Amendment
right to effective counsel because of his trial counsel’s failure “to move to suppress
[the] ledger allegedly found in the Petitioner’s residence and/or object to the

evidence being entered at trial.” Dkt.1 at 37. Petitioner argues that his consent to
search his home was limited to drugs and that if Petitioner’s counsel had moved to
suppress or objected to the ledger that it would not have been admitted at trial. Id.

The postconviction court found that Petitioner consented to the search of his
residence and that it included the ledger and, even if he had not consented, that
there was sufficient information to establish probable cause for the search of

Petitioner’s residence. Dkt. 9-24 at 20–21. The postconviction court found that
Petitioner’s counsel was not deficient and that Petitioner was not prejudiced. Id. As
to Petitioner’s allegations that his counsel failed to object, the postconviction court
found that Petitioner’s counsel did object to relevance, hearsay, and authentication

of the ledger. Id. at 21–22. The postconviction court found that Petitioner’s counsel
was not deficient, and that Petitioner was not “prejudiced as any further objections
would have been overruled.” Id. at 22. Respondent argues that these findings were

reasonable under Strickland. Dkt. 7 at 21.
Primarily, Petitioner argues that had his counsel moved to suppress the
ledger there was a reasonable chance it would have been suppressed and the
outcome of the trial would have been different. Petitioner bases this argument on

his understanding that he only consented for the officers to look for drugs and that
this did not include the ledger.
However, the standard for determining the scope of a consent search is not

the Petitioner’s reasonable understanding. “The standard for measuring the scope
of a suspect’s consent under the Fourth Amendment is that of ‘objective’
reasonableness—what would the typical reasonable person have understood by the

exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248,
251 (1991). The postconviction court reasonably found that objective scope of
Petitioner’s consent included the ledger. Petitioner did not rebut this finding by

clear and convincing evidence.
Even if this Court accepted Petitioner’s argument that the ledger was outside
the objective scope of Petitioner’s consent, the postconviction court also found that
the officers had sufficient information to establish probable cause for the search.

Dkt. 9-24 at 20. Petitioner did not contest this finding. Thus, Petitioner’s counsel’s
performance was not deficient, and Petitioner was not prejudiced.
As to Petitioner’s argument that his counsel failed to object to the ledger

during the trial, the postconviction court found, contrary to Petitioner’s allegations,
that his counsel did object to the ledger. Dkt. 9-24 at 21–22. In his Petition,
Petitioner merely made conclusory allegations that his counsel failed to object.
Dkt. 1 at 37. This is insufficient to rebut the presumption of correctness given to

the postconviction court’s findings of fact. Accordingly, Ground Eleven is denied.
i. Ground Twelve
In Ground Twelve Petitioner argues that he was denied his Sixth

Amendment right to effective counsel because of his trial counsel’s failure to
object and preserve for the record that the State failed to prove subject matter
jurisdiction and the elements of count twenty-five, trafficking in illegal drugs. Dkt.

1 at 40. Petitioner argues that the only evidence presented to support count twenty-
five was him being seen with his co-defendants in New York and Maglione being
caught at the airport with heroin. Id. Petitioner argues that this evidence has no

connection to Florida, thus Florida has no subject matter jurisdiction. Id.
The postconviction court found that there was sufficient subject matter
jurisdiction for count twenty-five; that the record reflective an extensive criminal
organization that “stretched from Tampa, Florida to Orlando, Florida to New York

City.” Dkt. 9-29 at 14. Both DEA agents and Tampa police officers observed that
the conduct in New York was intended to restock the heroin supply in Tampa, thus
the conduct that occurred outside of Florida connected to offenses in Florida. Id.

The postconviction court found that this conduct was sufficient to confer subject
matter jurisdiction under Florida Statute § 910.005 and Petitioner’s counsel was
not ineffective for failing to make a meritless objection. Dkt. 9-29 at 15. Petitioner
has not rebutted these factual findings by clear and convincing evidence; thus, they

are presumed to be correct. As there was subject matter jurisdiction, Petitioner’s
counsel was not ineffective for failing to object. Sneathen, 787 F. App’x at 574.
Petitioner also argues that his counsel was ineffective for failing to object to

the State’s failure to prove that Petitioner knowingly possessed heroin. Dkt. 1 at
40. Petitioner argues that no evidence presented at trial proved he constructively
possessed heroin or that he knew the substance was heroin. Id.

This claim was initially rejected by the Florida Second District Court of
Appeal in 2008 when Petitioner filed a state petition alleging ineffective assistance
of appellate counsel. Dkts. 9-15; 9-12 at 11; 9-14 at 4. The postconviction court

found that Petitioner’s counsel testified he requested the four-element instruction
on trafficking which included the “knowledge” element and that he presented case
law to support that instruction. Dkt. 9-29 at 15. The trial judge ruled in favor of
having a three-element instruction, which did not include a knowledge element. Id.

at 15–16. The postconviction court found that the record refutes Petitioner’s claim
that his counsel failed to object and that any further objection from counsel would
have been futile. Id. at 16. Finally, as to Petitioner’s allegation that counsel failed

to preserve the issue for appeal, the postconviction count found that failure to
preserve this matter for appeal does not establish sufficient prejudice under
Strickland. Id.
Petitioner cites to Shelton and Adkins in support of his position. Shelton v.

Sec’y, Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011); State v. Adkins, 96
So. 3d 412 (Fla. 2012). First, Petitioner was convicted at trial under section
893.135 which is a different statute than was discussed in either Shelton or Atkins.

However, even if that reasoning applied to Petitioner’s case, Shelton was not
issued until after the disposition of Petitioner’s case, so Petitioner fails to establish
a basis on which his appellate counsel could have argued his trial counsel was

ineffective. Further, Shelton was later reversed, Shelton v. Sec’y, Dep’t of Corr.,
691 F.3d 1348 (11th Cir. 2012), and the Florida Supreme Court upheld the statute
in Adkins. See Rogers v. Sec’y, Dep’t of Corr., No. 8:13-CV-2368-T-27EAJ, 2016

WL 398049, at *7 (M.D. Fla. Feb. 2, 2016). Petitioner has not articulated what
clearly established federal law was unreasonably applied and this Court cannot
grant “habeas relief on the basis of little more than speculation[.]” See Wood v.
Bartholomew, 516 U.S. 1, 8 (1995)

Moreover, to the extent the state court’s determination rests on the
interpretation and application of state law, deference must be afforded to the state
court’s decision. See McGuire, 502 U.S. at 67. Petitioner has not established that

the state appellate court’s rejection of his claim was contrary to, or an unreasonable
application of, clearly established federal law or was based on an unreasonable
determination of the facts. Thus, Ground Twelve is denied.
j. Ground Thirteen

In Ground Thirteen Petitioner argues that the cumulative effect of Grounds
Four through Eleven amount to ineffective assistance of counsel. Dkt. 1 at 43. Yet
the Court has determined that each of his ineffective assistance claims is meritless

so there can be no cumulative error. See, e.g., Morales v. Sec’y, Fla. Dep’t Corr.,
710 F. App’x 362, 365 (11th Cir. 2017) (“[W]e have rejected all of the claims of
error before us. There are, therefore, no errors to cumulate.”). Accordingly,

Ground Thirteen is denied.
Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant,” and if a certificate is issued, “the
court must state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Proceedings for
the United States District Courts; see Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To merit a COA, Petitioner 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, 484

(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, Petitioner is not entitled to either a COA or leave to appeal in
forma pauperis.

Accordingly, a certificate of appealability is denied. Leave to appeal in
forma pauperis is denied. Petitioner must obtain permission from the circuit court
to appeal in forma pauperis.
Conclusion
The Court denies Petitioner’s Amended Petition with prejudice. Dkt. 1. The

Clerk is directed to enter judgment accordingly, terminate any pending motions,
and close the file.
DONE AND ORDERED at Tampa, Florida, on June 9, 2020.

/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:
Counsel of Record
Petitioner, pro se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105296. Public record. Not legal advice.