# Doucette v. Secretary, DOC (Lee County)

> District Court, M.D. Florida · April 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10107234

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 2, 2021
- **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/10107234

## How later opinions describe it (automated extraction)

- finding testimony that provides context to an alleged crime relevant

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

RICHARD A. DOUCETTE,

Petitioner,

v. Case No: 2:18-cv-335-JES-NPM

SECRETARY, DOC,

Respondent.
/

OPINION AND ORDER
Before the Court is Petitioner Richard A. Doucette’s Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (Doc. #1). Doucette challenges his 2011 conviction
for Lewd or Lascivious Molestation, for which he received a 25-
year prison sentence. He raises five grounds of ineffective
assistance of counsel.
I. Background
On December 16, 2010, the State of Florida charged Doucette
with intentionally touching in a lewd or lascivious manner the
vagina area of K.S., a person less than 12 years of age. (Doc.
#11-2 at 21). Public Defender Shakia Burnam initially represented
Doucette, but she was replaced by Regine Emile in January 2011.
(Id. at 556-7).
Before trial, the State filed two motions in limine, seeking
to introduce hearsay statements made by the alleged victim. The
first addressed statements K.S. made to four witnesses—her parents
and two employees of the Children’s Advocacy Center. (Id. at 72).
In the statements, K.S. described Doucette interlacing his hand
with her hand and rubbing her vagina under her clothes while they
were sitting on a couch. (Id. at 258, 275, 299-300, and 319-321).
The court held a hearing, and Emile objected to the statements as

overly prejudicial and cumulative. (Id. at 327). The court found
the statements admissible and reserved for trial “[t]he issue as
to whether they are cumulative in nature.” (Id. at 118). The
State’s second motion addressed statements K.S. made to a friend
named Ella. (Id. at 120). The record does not include a written
order deciding the motion, but the court’s Motion Minutes shows it
held a hearing and deemed the statements admissible. (Id. at
125).
The Public Defender’s Office reassigned Doucette’s case
again, and on August 26, 2011, Tiffany Chewning entered a notice
of appearance. (Id. at 119). Another Public Defender, Penelope
Michalakis, assisted at trial. (See Doc. #1-3 at 5).

Trial commenced in December 2011. The prosecution presented
testimony from K.S. describing the alleged crime. K.S.’s father
and her friend Ella testified about their observations of K.S. and
hearsay statements she made to them. K.S.’s mother and her friend
Jayda testified about their observations of the evening in
question, but they did not give hearsay statements. The State
also played a video of K.S.’s interview conducted at the Children’s
Advocacy Center. Doucette testified in his own defense but called
no other witnesses.
The witnesses all agreed on some facts. In April 2010,

Doucette’s two daughters were at K.S.’s house to celebrate her
tenth birthday. When Doucette arrived to pick up his daughters,
they wanted to stay. K.S.’s parents planned to attend a barbeque
and leave their older daughters to watch over K.S. and her friends.
Doucette offered to stay and supervise the girls, and K.S.’s
parents agreed. Doucette retrieved his son from a nearby friend’s
house where he had slept over the night before and returned to
K.S.’s house, and K.S.’s parents left. The children gathered in
the living room to watch a movie, and Doucette sat on couch between
K.S. and one of his daughters.
This is where the stories diverge. The state contended that

Doucette touched K.S. in the manner described in her hearsay
statements, summarized above. K.S. then got up from the couch,
went into the bathroom to get away from Doucette, and told Ella
that Doucette had touched her. K.S. eventually returned to the
living room to finish watching the movie, and Doucette went outside
to smoke a cigarette. For his part, Doucette denied touching K.S.
during the movie and testified that she remained on the couch,
except for a break when the girls paused the movie to eat pizza.
The girls eventually fell asleep. When K.S.’s parents got home,
Doucette woke his children and left. The next day, encouraged by
Ella, K.S. told her parents that Doucette touched her the night

before.
The jury returned a guilty verdict. (Doc. #11-2 at 13). The
Second District Court of Appeal of Florida (2nd DCA) affirmed
without a written opinion. (Doc. #21-6 at 464). Doucette filed
a postconviction motion under Florida Rule of Criminal Procedure
3.850. (Doc. #11-4 at 31). The postconviction court summarily
denied some grounds and ordered an evidentiary hearing on the rest.
(Doc. #11-5 at 66). After the hearing, the postconviction court
denied the remaining grounds. (Doc. #11-6 at 39). The 2nd DCA
affirmed without a written opinion. (Doc. #11-6 at 464).
Doucette’s Habeas Petition followed. Respondent concedes Doucette

timely filed the Petition and exhausted his state remedies. (Doc.
#10).
II. Applicable Habeas Law
a. AEDPA
The Antiterrorism Effective Death Penalty Act (AEDPA) governs
a state prisoner’s petition for habeas corpus relief. 28 U.S.C.
§ 2254. Relief may only be granted on a claim adjudicated on the
merits in state court if the adjudication:
(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). This standard is both mandatory and difficult
to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state
court’s violation of state law is not enough to show that a
petitioner is in custody in violation of the “Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson
v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing
legal principles set forth in the decisions of the United States
Supreme Court when the state court issued its decision. White,
134 S. Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Habeas
relief is appropriate only if the state court decision was
“contrary to, or an unreasonable application of,” that federal
law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to”
clearly established federal law if the state court either: (1)
applied a rule that contradicts the governing law set forth by
Supreme Court case law; or (2) reached a different result from the
Supreme Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v.
Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”

of Supreme Court precedent if the state court correctly identifies
the governing legal principle, but applies it to the facts of the
petitioner’s case in an objectively unreasonable manner, Brown v.
Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526,
531 (11th Cir. 2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.” Bottoson,
234 F.3d at 531 (quoting Williams, 529 U.S. at 406). “A state
court’s determination that a claim lacks merit precludes federal
habeas relief so long as fair-minded jurists could disagree on the

correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011). “[T]his standard is difficult
to meet because it was meant to be.” Sexton v. Beaudreaux, 138
S. Ct. 2555, 2558 (2018).
Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a
federal court must remember that any “determination of a factual
issue made by a State court shall be presumed to be correct[,]”
and the petitioner bears “the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] state-
court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in
the first instance.”).
b. Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part test for determining whether a convicted person may have
relief for ineffective assistance of counsel. 466 U.S. 668, 687-
88 (1984). A petitioner must establish: (1) counsel’s
performance was deficient and fell below an objective standard of
reasonableness; and (2) the deficient performance prejudiced the
defense. Id.
When considering the first prong, “courts must ‘indulge a

strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Sealey v. Warden,
954 F.3d 1338, 1354 (11th Cir. 2020) (quoting Strickland, 466 U.S.
at 689). And “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.
2020) (quoting Harrington, 562 U.S. at 101). Thus, a habeas
petitioner must “show that no reasonable jurist could find that
his counsel’s performance fell within the wide range of reasonable
professional conduct.” Id.

The second prong requires the petitioner to “show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Sealey at 1355 (quoting Strickland, 466 U.S. at 694). “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
“An ineffective-assistance claim can be decided on either the
deficiency or prejudice prong.” Id. And “[w]hile the Strickland
standard is itself hard to meet, ‘establishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all
the more difficult.’” Id. (quoting Harrington, 562 U.S. at 105

(2011)). The critical question is not whether this Court can see
a substantial likelihood of a different result had defense counsel
taken a different approach. Mays v. Hines, --- S. Ct. ---, 2021
WL 1163729, at *7 (Mar. 29, 2021). All that matters is whether
the state court, “notwithstanding its substantial ‘latitude to
reasonably determine that a defendant has not [shown prejudice],’
still managed to blunder so badly that every fairminded jurist
would disagree.” Id. (quoting Knowles v. Mirazayance, 556 U.S.
111, 123 (2009)).

III. Analysis
a. Ground 1: Counsel failed to object to child hearsay
statements

Doucette argues his trial counsel should have objected to the
child hearsay statements at trial as unreliable due to
1
inconsistencies and because K.S. could not remember some details.
(Doc. #2 at 17). The postconviction court found this claim
“conclusively refuted by the record” for the following reasons:
20…Defendant’s trial counsel did, in fact, argue against
the admission of the statements at the child hearsay
hearing conducted prior to trial. Following the
hearing, the trial court found that the victim’s
statements were reliable and therefore admissible.
Defendant has failed to demonstrate why renewing the
objection at trial would have lead [sic] the trial court
to come to a different conclusion and find the statements
inadmissible…

1
Doucette also argues the trial court erred by admitting the
hearsay statements made to Ella without a written order in
violation of Fla. Stat. § 90.803(23)(c), which governs child
hearsay statements. Errors of state law are not cognizable on
federal habeas review. And anyhow, the statute does not require
a written order.
21. Additionally, testimony at the evidentiary hearing
confirmed that counsel did not object on the basis of
trial strategy. Defense counsel’s strategy at trial was
to heavily emphasize the inconsistencies between the
victim’s prior statements and her trial testimony. She
emphasized these inconsistencies in closing argument as
a basis to conclude the victim was not credible and
acquit Defendant. Had defense counsel objected to the
hearsay statements, she could not have pursued her
chosen strategy of arguing that the incident did not
happen because the victim’s story was inconsistent. It
was within defense counsel’s professional discretion to
pursue the strategy she felt had the greatest chance of
prevailing. Defendant has failed to demonstrate that
counsel’s tactical decision was so outside the broad
range of reasonable, effective assistance of counsel
that it amounted to error under Strickland.

(Doc. #11-6 at 46-47).
Doucette has not demonstrated that the postconviction court’s
denial was based on an incorrect application of federal law or
unreasonable findings of fact. First, the postconviction court’s
finding that Chewning did not renew objections to child hearsay at
trial for strategic reasons is presumed correct. See Franks v.
GDCP Warden, 975 F.3d 1165, 1176 (11th Cir. 2020). Second, a
petitioner is not entitled to habeas relief “[i]f fairminded
jurists could disagree as to whether trial counsel’s strategic
choices were reasonable.” Id. After the trial court found the
child hearsay statements admissible, Chewning decided to use those
statements to attack the alleged victim’s credibility instead of
renewing an objection the court already rejected. Doucette has
not shown that no reasonable jurist would make this tactical
decision. Ground 1 is denied.
b. Ground 2: Counsel failed to properly investigate and
prepare for trial

Doucette asserts that Chewning did so little preparation that
she was unable to adequately represent him at trial. He points
to statements Chewning made months before trial that she had not
yet reviewed the file. And when the court called the case for
trial on November 1, 2011, Chewning admitted she was unprepared
and requested a continuance. (Doc. #11-2 at 359). The court
granted the request and set the trial for December 6, 2011.
Doucette does not produce any evidence that Chewning was not ready
for trial on December 6. Instead, he infers she was unprepared
based on her performance. (See Doc. #2 at 17 (“Counsel proceeded
through the trial without a coherent theory on the case seeking
only to attack the state witnesses on cross-examination without
having any idea what the witness’s response would be.”)).
The postconviction court summarily denied this ground. After
noting Chewning’s early statements about her unpreparedness, it
found:
37. When the case was called for trial on December 6,
2011, months after the continuance and Nelson hearing,
defense counsel announced the case was ready for trial.
The statements that Defendant points to as indicating
that her [sic] counsel was not ready for trial on
December 6, 2011 occurred months prior and he has not
made any further allegations as to why she was not
actually ready for trial, despite indicating that she
was. This claim is conclusory, inherently incredible
and unsupported by the record.

38. Moreover, Defendant does not and cannot explain how
he was prejudiced by his counsel being unprepared for
trial months before trial was conducted. Indeed, by
requesting a continuance and setting Defendant’s Nelson
motion for hearing, counsel was acting within
professional standards.

(Doc. #21-5 at 77).
The state court’s ruling is not contrary to federal
constitutional law. Doucette has not established either
Strickland prong. Chewning’s claims of unpreparedness weeks and
months before trial do not show that she was unprepared when trial
began. Nor does the record of her performance at trial. Chewning
and Michalakis ably cross-examined the prosecution’s witnesses and
identified many inconsistencies in the State’s case during closing
argument. They capably executed a reasonable trial strategy.
Ground 2 is denied.
c. Ground 3: Counsel failed to investigate, question,
and call witnesses

Doucette argues Chewning should have called as defense
witnesses his three children (Ashley, Heather, and Ducky), K.S.’s
friend Audrey, and K.S.’s sister’s boyfriend Dalton, who was in
and out of the house on the night in question. Doucette claims
the testimony of these witnesses would have offset the testimony
of the prosecution witnesses.
The postconviction court summarily denied this ground as it
relates to Dalton because he was not present when the molestation
allegedly occurred and “did not see anything relevant or
significant.” (Doc. #21-5 at 74). This finding is presumed
correct, and Doucette does not refute it. The court denied the

rest of this ground after an evidentiary hearing. None of the
witnesses appeared at the hearing, but Doucette testified that
they could have contradicted K.S.’s testimony.
Chewning testified that she made a strategic decision not
call Doucette’s children for several reasons. First, she was
suspicious that the children were being coached and worried they
would give perjured testimony. (Doc. #21-6 at 41). Her suspicion
was partly based on an email obtained through discovery suggesting
that Doucette’s mother was coaching one of the daughters. (See Id.
at 49). Second, the children’s statements were inconsistent with
their own prior statements and each other’s statements. (Id.).

Third, Chewning worried that calling Doucette’s children to
testify in his defense against a serious child sex crime allegation
would create the impression Doucette was using his children. (Id.
at 41-42). Fourth, Chewning “did not need the children’s
testimony to pursue her chosen defense strategy, which was to
emphasize the inconsistencies of the victim’s prior statements and
testimony.” (Id. at 42).
As for Audrey, Chewning chose not to depose her because an
initial investigation indicated she did not see anything relevant
to the case. (Id. at 46). Doucette did not offer any evidence
to the contrary. (Id.).

The postconviction court found that Doucette failed to prove
that Chewning’s tactical decision not to call the witnesses “was
so outside the reasonable norms of professional conduct that no
reasonable attorney would have made the same decision.” (Id. at
42). Doucette argues the postconviction court relied on an
unreasonable determination of the facts. This Court disagrees.
The postconviction court’s findings are supported by Chewning’s
unrebutted testimony at the evidentiary hearing. Doucette has not
established that no reasonable jurist would deny him relief under
Strickland. Ground 3 is denied.
d. Ground 4: Counsel failed to object to irrelevant
testimony and prosecutorial misconduct

At trial, K.S.’s mother testified that she spoke to Doucette
in her kitchen after returning home the night of the alleged crime
and saw “ten empty beer bottles sitting in front of him, and I
know we had not drank them.” (Doc. #11-3 at 156). The prosecutor
mentioned the beer bottles in closing argument: “Mr. Doucette made
a mistake. Once he realized he made that mistake of touching that
little girl, he stood up, went outside and had a cigarette. Sat
at the bar and drank beer for the rest of the night.” (Id. at
287). On cross-examination, Doucette acknowledged he drank beer
while watching the kids but denied drinking ten. (Id. at 269).
Doucette argues his counsel should have objected to the

testimony and the prosecutor’s statement. The postconviction
court summarily denied this ground:
40. The Court finds that the testimony was not
irrelevant, and even if it were, Defendant was not
prejudiced by his attorney’s failure to object to it.
First, the testimony is not irrelevant because it
provided context for the events at the victim’s home and
what happened when the victim’s parents returned home.
The State argued that Defendant’s excessive alcohol
consumption signaled that he was nervous and worried
after the victim resisted being fondled. Second,
Defendant was not prejudiced by this testimony, even if
it were irrelevant. As Defendant states in his own
motion, this testimony had no bearing on the elements of
the crime, which were otherwise supported by other
testimony at trial. Any prejudice resulting from this
testimony simply does not rise to the level necessary to
support a Strickland claim. Defendant has failed to
demonstrate how or why the testimony about the ten beer
bottles was “unfairly” prejudicial such that it tainted
the jury to such a degree that they convicted him.

(Doc. #11-5 at 78).
To prevail on this ground, Doucette must demonstrate that no
reasonable jurist would find the testimony and argument about the
beer bottles admissible. He has not done so. The postconviction
court’s ruling that the evidence was relevant is reasonable. See
United States v. Lopez, 649 F.3d 1222, 1247-48 (11th Cir. 2011)
(finding testimony that provides context to an alleged crime
relevant). The court’s ruling that Doucette was not unfairly
prejudiced is also reasonable. The State’s case rested
overwhelmingly on the testimony of the victim and her family and

friends. Exclusion of the testimony and argument regarding empty
beer bottles would not likely have changed the outcome. Ground 4
is denied.
e. Ground 5: Cumulative effect of counsel’s errors
Finally, Doucette argues that even if no single ground
warrants habeas relief, the cumulative effect does. After the
evidentiary hearing, the postconviction court denied this ground:
“Defendant’s preceding nine claims are denied and most were denied
on the basis that no error was committed by counsel. Defendant
has failed to prove cumulative error entitling him to relief under
Strickland[.]” (Doc. #21-6 at 47).

“The cumulative error doctrine provides that an aggravation
of non-reversible errors (i.e., plain errors failing to
necessitate reversal and harmless errors) can yield a denial of
the constitutional right to a fair trial, which calls for
reversal.” Morris v. Sec’y, Dep’t of Corrs., 677 F.3d 1117, 1132
(11th Cir. 2012) (quoting United States v. Baker, 432 F.3d 1189,
1223 (11th Cir. 2005)). Courts “address claims of cumulative
error by first considering the validity of each claim individually,
and then examining any errors that we find in the aggregate and in
light of the trial as a whole to determine whether the appellant
was afforded a fundamentally fair trial.” Id.

Doucette’s cumulative error claim fails. None of his
individual claims of error have merit, so the Court has nothing to
accumulate. Ground 5 is denied.

IV. Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1). Rather, a district court must first issue
a certificate of appealability (COA). “A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such

a showing, a petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were adequate to deserve encouragement
to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003) (citations omitted). Doucette has not made the requisite
showing here and may not have a certificate of appealability on
any ground of his Petition.
Accordingly, it is now
ORDERED :
1. Petitioner Richard A. Doucette’s Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody (Doc. #1) is DENIED.
2. The Clerk is DIRECTED to enter judgment, terminate all
deadlines and motions, and close the file.
DONE AND ORDERED in Fort Myers, Florida on April 2, 2021.

ox
off le hy ) A Kook
JGHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1
Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107234. Public record. Not legal advice.