Primavera v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

PAUL PRIMAVERA,

Petitioner,

v. Case No. 8:14-cv-2882-MSS-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________/

O R D E R

Primavera petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges

his state court convictions for promotion of a sexual performance by a child. (Doc. 1) After

reviewing the petition and supporting memoranda (Docs. 1, 2 and 7), the response (Doc. 11),

the state court record (Doc. 13), and the reply (Doc. 28), the Court DENIES the petition.

PROCEDURAL HISTORY

A jury found Primavera guilty of eight counts of promotion of a sexual performance

by a child (Doc. 13, Exhibit 1 at 208–10), and the trial court sentenced Primavera to 15 years

of prison and 15 years of probation. (Doc. 13, Exhibit 1 at 231–44) Primavera appealed his

convictions and sentences and the state appellate court affirmed. (Doc 13, Exhibit 4)

The post-conviction court denied Primavera relief (Doc. 13, Exhibit 7), and Primavera

did not appeal. Primavera’s federal petition followed.

FACTS

Waylon Wilbert met Primavera at a “gay hook-up cruise bar” in Tampa, Florida.

Wilbert was a confidential informant for the Tampa Police Department, a seven-time

convicted felon, and a prostitute. Wilbert engaged in sex with Primavera for money and drugs

four or five times at Primavera’s home. During one encounter, Primavera viewed child

pornography on his computer. Primavera told Wilbert that he was short on money but if

Wilbert could help Primavera sell the child pornography, Primavera could continue to pay

Wilbert for sex. Wilbert told Primavera that he knew a doctor who was interested. The next

day, Wilbert called the detective who was his handler at the police department and told him

about the child pornography. The detective suggested that Wilbert tell Primavera to call the

detective, in his undercover capacity, if he wanted to sell the child pornography.

The detective, who pretended to be the doctor, spoke with Primavera and they agreed

to meet at a motel so that Primavera could sell the detective a compact disc containing child

pornography. On a recorded telephone call, Primavera acknowledged that he was creating

the compact disc. He told the detective that he had a “sh*t load” of child pornography and

could make more compact discs. At the motel, Primavera set the price for the compact disc

which contained eight videos and told the detective that he trusted him and would contact

him again. A video recording showed the detective arrest Primavera after Primavera accepted

money and gave the compact disc to the detective.

After waiving his constitutional rights, Primavera admitted to downloading the eight

videos but denied making the compact disc. Primavera claimed that Wilbert saw the child

pornography on his computer and came up with the plan to sell the child pornography.

Primavera felt coerced and entrapped because he desperately needed money. Primavera

admitted that police would find more child pornography on his computer at home and denied

that his roommates used his computer. Police seized his computer and found numerous files

containing child pornography.

The prosecution published eight condensed segments of the videos that Primavera sold

to the detective. The eight videos corresponded with the eight charges in the information. An

agent who investigates computer crimes opined that the videos depicted actual children under

18 years old and were not computer generated.

During the defense case-in-chief, Billy Norton testified that he and Wilbert worked

together as prostitutes at the “cruise bar.” Once, Primavera gave Norton money for drugs and

Norton did not return with the drugs. Primavera became upset and told a bartender who

prohibited Norton from returning to the bar. Wilbert became angry at Primavera. After

Primavera’s arrest, Wilbert told Norton, “[D]o you remember the guy that got you in

trouble[?] . . . [W]ell he got paid back.” During his testimony, Wilbert denied making that

statement.

Primavera testified that Wilbert coerced him to sell the child pornography to the

detective. Wilbert asked Primavera’s roommate to install the computer program used to

download child pornography on Primavera’s computer because Wilbert wanted to view child

pornography. Wilbert came up with the plan to sell the child pornography to a “rich doctor.”

Wilbert pled with Primavera to go along with the plan at least ten times but Primavera initially

refused. Wilbert promised to rent a room at a casino where they both could use drugs and

engage in sex. Eventually, Primavera agreed to speak with the doctor who offered to pay a

thousand dollars for the child pornography. Primavera’s roommate created the compact disc,

and Primavera reluctantly agreed to the plan.

STANDARDS OF REVIEW

AEDPA

Because Primavera filed his federal petition after the enactment of the Antiterrorism

and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S.

320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

(1) resulted in a decision that was contrary to,

or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

A decision is “contrary to” clearly established federal law “if the state court arrives

at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law

or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A

decision involves an unreasonable application of clearly established federal law “if the state

court identifies the correct governing legal principle from [the U.S. Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion

by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529

U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 694

(2002). A federal petitioner must show that the state court’s ruling was “so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011).

Exhaustion and Procedural Default

A petitioner must exhaust the remedies available in state court before

a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must

(1) alert the state court to the federal nature of his claim and (2) give the state court one full

opportunity to resolve the federal claim by invoking one complete round of the state’s

established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard

v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review

and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a

petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005);

Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on a state

procedural ground, the federal court instead denies the claim as procedurally barred.

Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501

U.S. 722, 735 n.1 (1991)).

To excuse a procedural default on federal habeas, a petitioner must demonstrate

either (1) cause for the default and actual prejudice from the alleged violation of federal law

or (2) a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547

U.S. 518, 536–37 (2006).

ANALYSIS

Ground One

Primavera asserts that the trial court’s denial of his motion for judgment of acquittal

at trial was contrary to and an unreasonable application of clearly established federal law.

(Docs. 1 at 5–7 and 7 at 13–18) He contends that the prosecution failed to rebut evidence in

support of his subjective entrapment defense that proved that he was not predisposed to

commit the crimes. (Doc. 7 at 13–18)

The Respondent asserts that the claim is unexhausted and procedurally barred. (Doc.

11 at 8–11) Primavera raised this claim in his brief on direct appeal but neither “cit[ed] in

conjunction with the claim the federal source of law on which he relies or a case deciding

such a claim on federal grounds,” nor “simply label[ed] the claim ‘federal.’” Reese, 541 U.S.

at 32. (Doc. 13, Exhibit 2 at 13, 17–19) Because Primavera did not cite Jackson v. Virginia,

443 U.S. 307 (1979), or the federal due process clause, he failed to alert the state court to

the federal nature of his claim. Preston v. Sec’y, Fla. Dep’t Corrs., 785 F.3d 449, 460 (11th Cir.

2015) (“[S]imply mentioning a phrase common to both state and federal law, like

‘sufficiency of the evidence,’ cannot constitute fairly presenting a federal claim to the state

courts.”); Reese, 541 U.S. at 29 (“To provide the State with the necessary ‘opportunity,’ the

prisoner must ‘fairly present’ his claim in each appropriate state court (including a state

supreme court with powers of discretionary review), thereby alerting that court to the federal

nature of the claim.”).

If Primavera returned to state court to exhaust the claim, the state court would deny

the claim as untimely, successive, and procedurally defaulted. (Doc. 13, Exhibit 6) Fla. R.

Crim. P. 3.850(b), (c), (h). Primavera does not demonstrate cause and actual prejudice or a

miscarriage of justice to excuse the default in federal court. (Docs. 18 at 14–16, 19 at 26–33,

and 28) Maples, 565 U.S. at 280; House, 547 U.S. at 536–37. Consequently, the claim is

barred from federal review. Snowden, 135 F.3d at 736.

Ground One is DENIED.

Ground Two

Primavera asserts that the trial court erred by denying his motion to dismiss the

information for objective entrapment because police worked with an informant who

engaged in outrageous conduct. (Docs. 1 at 7–8 and 7 at 20–22) After hearing testimony at

an evidentiary hearing, the trial court denied the motion without providing reasons for its

ruling. (Doc. 13, Exhibit 1 at 293)

The Respondent asserts that the claim is unexhausted and procedurally barred. (Doc.

11 at 8–11) In his brief on direct appeal, Primavera raised the claim but neither cited federal

constitutional authority nor labeled the claim “federal.” Reese, 541 U.S. at 32. (Doc. 13,

Exhibit 2 at 14–15) Primavera instead cited State v. Glosson, 462 So. 2d 1082 (Fla. 1985)

(Doc. 13, Exhibit 2 at 14) which “reject[ed] the narrow application of the due process

defense found in the federal cases” and reviewed a similar claim under the due process

clause in Florida’s state constitution. Glosson, 462 So. 2d 1082, 1085 (citing Art. I, §9, Fla.

Const.). Because Primavera did not cite federal constitutional authority and instead cited a

case that expressly rejected federal law, he failed to alert the state court to the federal nature

of his claim. Gray v. Netherland, 518 U.S. 152, 163 (1996) (“[I]t is not enough to make a

general appeal to a constitutional guarantee as broad as due process to present the

‘substance’ of such a claim to a state court.”) (citing Anderson v. Harless, 459 U.S. 4 (1982)).

If Primavera returned to state court to exhaust the claim, the state court would deny

the claim as untimely, successive, and procedurally defaulted. (Doc. 13, Exhibit 6) Fla. R.

Crim. P. 3.850(b), (c), (h). Primavera does not demonstrate cause and actual prejudice or a

miscarriage of justice to excuse the default in federal court. (Docs. 18 at 11–12, 19 at 20–23,

and 28) Maples, 565 U.S. at 280; House, 547 U.S. at 536–37. Consequently, the claim is

barred from federal review. Snowden, 135 F.3d at 736.

Even if the claim is adequately exhausted, Primavera could not demonstrate that the

state court’s denial of the claim “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.” 28 U.S.C. § 2254(d)(1).

Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the

U.S. Supreme Court’s] decisions as of the time of the relevant state-court decision.”

Williams, 529 U.S. at 412. The U.S. Supreme Court has never held that outrageous

government conduct violates the federal due process clause and only mentioned in dicta that

a future case may present facts that demonstrate a violation. United States v. Russell, 411 U.S.

423, 431–32 (1973) (“While we may some day be presented with a situation in which the

conduct of law enforcement agents is so outrageous that due process principles would

absolutely bar the government from invoking judicial processes to obtain a conviction, the

instant case is distinctly not of that breed.”) (citation omitted). Accord United States v.

Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (“We have never applied the outrageous

government conduct defense and have discussed it only in dicta. Several of our sister circuits

have either rejected this defense completely or have been sharply critical of the defense.”)

(citations omitted). United States v. Ciszkowski, 492 F.3d 1264, 1272 (11th Cir. 2007) (Carnes,

J., concurring) (“Unless and until we actually see government conduct outrageous enough

to motivate a panel of this Court to set aside a conviction, or sentencing manipulation

egregious enough to lead to a vacated sentence, those defenses cannot be found in the law

of this circuit.”).

Because the claim is procedurally barred from federal review and the state court did

not rule contrary to clearly established federal law, the claim fails on federal habeas.

Ground Two is DENIED.

Ground Three

Primavera asserts that the trial court erred by both allowing the prosecution to

publish at trial eight videos depicting child pornography and denying his motion for mistrial

based on the publication of that evidence. (Docs. 1 at 8–10 and 7 at 19–20)

The Respondent asserts that the claim is unexhausted and procedurally barred. (Doc.

11 at 8–11) In his brief on direct appeal, Primavera raised the claim but neither cited federal

constitutional authority nor labeled the claim “federal.” Reese, 541 U.S. at 32. (Doc. 13,

Exhibit 2 at 15–17) Primavera cited United States v. Merino-Balderrama, 146 F.3d 758,

762–63 (9th Cir. 1998) (Doc. 13, Exhibit 2 at 16), which held that a federal district court

misapplied Rule 403, Federal Rules of Evidence, by incorrectly concluding that the

probative value of evidence of child pornography outweighed the danger of unfair prejudice.

Primavera argued that the trial court erroneously weighed the probative value of evidence

at his trial against the danger of unfair prejudice. (Doc. 13, Exhibit 2 at 16–17)

The admission of evidence may violate the due process clause of the Fourteenth

Amendment. Blackburn v. State of Ala., 361 U.S. 199, 206 (1960). Because Merino-Balderrama

turns on the misapplication of a federal rule of evidence and not the violation of a federal

constitutional right, Primavera did not fairly present the federal constitutional nature of his

claim to the state court. Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If a habeas petitioner

wishes to claim that an evidentiary ruling at a state court trial denied him the due process

of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court,

but in state court.”).

If Primavera returned to state court to exhaust the claim, the state court would deny

the claim as untimely, successive, and procedurally defaulted. (Doc. 13, Exhibit 6) Fla. R.

Crim. P. 3.850(b), (c), (h). Primavera does not demonstrate cause and actual prejudice or a

miscarriage of justice to excuse the default in federal court. (Docs. 18 at 11–12, 19 at 20–23,

and 28) Maples, 565 U.S. at 280; House, 547 U.S. at 536–37. Consequently, the claim is

barred from federal review. Snowden, 135 F.3d at 736.

Even so, the claim is meritless. Before trial, Primavera moved for the parties to

stipulate that the eight videos contained child pornography instead of publishing the videos

to the jury (Doc. 13, Exhibit 1 at 107), and the trial court denied the motion as follows (Doc.

13, Exhibit 1 at 303):

[Trial counsel:] That leaves us with [the] motion to require

acceptance of [the] stipulation. This one,

the Court has seen the arguments before.

I’m offering — I’ve viewed the alleged

images of child porn. I’m prepared to

stipulate that they are, indeed, children

under 18 and they’re engaging in acts of

sexual conduct. If the Court would

prohibit the State from publishing that

evidence to the jury based on a 403

argument, I believe the State’s objecting to

that.

[Prosecutor:] Judge, we’d base our arguments on U.S. v.

Alfaro-Moncada, which is at 2010 Westlaw

2103442. [A] [f]ederal case on point with

requiring the State to accept a stipulation.

[The] [f]ederal court said that was not

necessary in a child pornography case

especially when the defense is either

knowledge or knowing possession, which

based on some of the conversations I’ve

had with [trial counsel], that seems to be

what their defense will be. So we would

rely on that.

[Court:] That motion will be denied.

Just before trial, the defense renewed the motion, and the trial court denied the

renewed motion as follows (Doc. 13, Exhibit 1, Trial Transcripts at 175–76):

[Trial counsel:] There’s one other issue I would like to

address briefly if I could. We talked about

this in chambers a little bit, but I filed a

motion to require acceptance of [a]

stipulation offering to basically concede

the first two elements of the counts

charged that the defendant promoted the

— he sold the disk.

The disk does, indeed, contain depictions

of sexual conduct by children. We did

litigate this in front of Judge Tharpe.

Basically my argument is the 403, the

danger of undue prejudice for having the

jury watch the child porn videos would

outweigh the probative value because with

the stipulation, the State would not need

to prove the age of the kids or the fact that

it was, indeed, sexual conduct or even that

Mr. Primavera sold it.

Judge Tharpe did deny that motion, but if

I could, I’d just like to renew it and have a

standing objection to the publication of

the child pornography videos.

[Court:] Let me hear from the State.

[Prosecutor:] Judge, it is our burden to prove each and

every element of the promotion. That

includes that it’s an actual child. This is

not a computer generated or computer

animated image, that there’s sexual

conduct therein and we do that by

publishing only portions of these videos.

Some of these videos are an hour long, so

it’s only a brief — about a minute portion

of each one that we’re going to show.

We’re not in a position that we — because

of the way we have to present our case and

also because of what we anticipate some

of the defenses in this case may be and

proving that the defendant knew the

conduct, the character of those particular

items, that he knew the content of them,

rather, it’s our intent to show portions of

the videos in order to prove our case.

[Court:] All right. I want to say a couple of things

on this. First, counsel, you alluded to us

having discussed that in chambers. I want

the record to be absolutely clear. We did

not discuss the substance of any of that in

chambers. Rather, in discussing

scheduling matters only, what was

brought up was that, as a scheduling

matter only, you may wish to renew

certain matters that had been decided in

the lettered division, that is Judge

Tharpe’s decision previously.

And what you were told, as all counsel

were told, is that you certainly may renew

any and all matters as is your right to do

that throughout the proceeding, and now

you’ve done that. I’ll go ahead and also

say I don’t sit as an appellate court.

Judge Tharpe had a hearing on this

matter, ruled on that decision before it was

transferred to this trial division. That said,

based upon what has been presented to

me, you know, if called upon for that

ruling, it would be the same. But that is

what’s here today and we’ll note your

objection and we’ll give you that

continuing objection, sir, as you’ve

requested. Okay?

During trial, the prosecution published the segments of the eight videos, and an agent

who investigates computer crimes opined that the segments depicted actual children. (Doc.

13, Exhibit 1, Trial Transcripts at 424–32) After the publication of the videos, the defense

moved for a mistrial, and the trial court denied the motion as follows (Doc. 13, Exhibit 1,

Trial Transcripts at 433–34):

[Trial counsel:] Your Honor, at this point I’d move for a

mistrial based on the fact that there were

less restrict — or less prejudicial or

shocking ways that the evidence could

have been published to the jury. I was

watching the jury carefully.

Although they didn’t make any gasps or

sighs, there [was] at least one of them

scowling. While they didn’t enjoy doing

it, they were doing their duty. So to

preserve the previous offer to stipulate, I

would move for a mistrial based on that

basis.

[Court:] You may respond.

[Prosecutor:] Judge, some of those videos were as long

as 50 minutes [ ]. I played, at most, a

minute and 30 second versions of them.

And if you noticed very carefully the

position — the times that I changed the

video was merely to show the definitions

of what is sexual deviance and sexual

intercourse and that is all I played.

[Court:] All right. I’m going to specifically find that

all of that was short in duration. And

given what counsel’s represented, which I

don’t hear any rebuttal to, [it was] very

brief compared to the entire content of it.

I want to make the record clear. I sat here

and I also very carefully watched the jury.

I did not see anything that I would

characterize as a scowl. So that’s not

going to stand on the record. Your motion

for mistrial is denied.

After trial, Primavera moved for a new trial based on the publication of the segments

of the eight videos (Doc. 13, Exhibit 1 at 212–14), and the trial court denied the motion as

follows (Doc. 13, Exhibit 1 at 261–70):

[Trial counsel:] The first issue, Your Honor, deals with the

publication by the State of the child

pornography videos, the eight separate

videos that comprise counts one through

eight, the promotion of a sexual

performance by a child allegations. As the

court knows, back in Division H, I did

make an offer to stipulate to the fact that

the videos were, indeed, child

pornography.

In other words, that the people depicted in

them were, indeed, real human beings

under the age of 18 and were actually

engaged in sexual conduct. [I asked] [i]f

the court had been willing to prohibit the

state attorney from publishing those

videos to the jury[.] [T]he Division H

judge denied that as well as this court

denied it when I renewed the offer.

And the basis for that offer as to head off

the 403 — rule 403 issue having to do with

— the problem with child pornography

cases is the images themselves are so often

— none of the — obviously the jury

doesn’t want to watch them unless they

have to, and they did their duty.

There were actually a couple of panel

members who were obviously not selected

for the jury, but did raise it during voir dire

that they — a couple of them stated they

would not watch child pornography

images at all. And I just bring that up to

point out how abhorrent or nasty these

images are to the average person who

doesn’t want to watch them.

I’ve cited three cases having to do with

this issue. Brown v. State, 719 So. 2d 882,

Florida Supreme Court, 1998. And I cite

that case just for — it’s a good discussion

of the Old Chief doctrine having to do with

stipulation. And I think Professor

Ehrhardt sums it up best on page seven —

headnote seven.

The court cites his Florida evidence

section 403.1, 1998 edition where

Professor Ehrhardt goes into a discussion

that section 90.403 does not require the

prosecution to accept every defendant’s

offer to stipulate to a fact or an issue.

Counsel, meaning the State, is entitled to

present her evidence in the manner she

chooses and to have the trier of fact know

the details of what occurred.

However, despite the fact that a rule —

despite the rule that a party is not required

to stipulate to a fact, section 90.403 is

applicable to the evidence offered to prove

the fact or issue. So even though I’ll agree

that the case law is clear that there’s a —

the prosecution is entitled to present its

case how it wants to, how it chooses to,

there’s still the 403 analysis to be done.

[Court:] Didn’t we address a 403 analysis in the

course of the trial?

[Trial counsel:] Judge, I did — I did renew — yes, we did.

[Court:] Okay. Go ahead.

[Trial counsel:] And Professor Ehrhardt goes on at the

bottom of that, quote, the offering party’s

need for the evidence is not nearly as great

when the adverse party is willing to

concede the fact or stipulate to it which is

the case in Mr. Primavera’s case.

The case law on this [ ] particular issue is

— for some reason, it’s all federal. There’s

— I cannot find a state case that actually

specifically deals with child pornography

in rule 403, but there are a couple of

federal cases that are relevant which I

cited.

United States v. Alfaro-Moncada . . ., an 11th

Circuit[,] 607 F.3d 720, 2010. This was

actually cited on another case by the state

attorney arguing the same issue, but it

actually cuts I think in favor of the

defense.

Even though the 11th Circuit upheld the

conviction of the defendant in Alfaro-

Moncada, it does bring up a couple of

points. The 11th Circuit in that case held

that the admission of five still images of

child pornography from the DVDs

serve[d] valid purposes, but it points out in

upholding the district court’s — the

conviction [that] [t]his is especially true

since the jury was only shown a small

number of the images on the DVDs, only

five out of 4,650. So in that case, they cut

down both the quantity of the images as

well as showing still images versus videos.

The other case, U.S. v. Merino-Balderrama

. . ., it’s a 9th Circuit case, 146 F.3d 758,

1998. In that case, the 9th Circuit actually

reversed the conviction for child

pornography in the district court based on

the 403 issue.

And it’s — the 9th Circuit stresses the part

of the 403 analysis, the court — the trial

court should consider any actual available

substitutes. And they suggested just

showing the box covers, the packaging for

these particular videos instead of the

images themselves and that was a reversal.

The point here is that — I know [the

prosecutor’s] going to say she used

discretion and limited the length of the

video. She did not play every second of

each video, but I would argue that’s

insufficient because there were a couple of

less graphic, less shocking alternatives

available.

One would be just to show still images

rather than the video, and the other would

have been not to have the audio played

because — since she was not — she was

not proceeding under the enhancement

statute, there was no requirement that she

show either, number one, that they were

videos or, number two, that there was

audio.

So there were less shocking alternatives

available which were not used other than

limiting the time, which she did. . . .

[Court:] Okay. Thank you. And I’ve read your

motion more than once, counsel. So I

went through it and I appreciate that.

We’ll hear from the State.

[Prosecutor:] Judge, the second case that [trial counsel]

cited is exactly analogous to what

happened in this case where — obviously

that’s a federal case that’s persuasive

authority on the court, but that is the same

exact principal under which the State was

guided.

We took a very small portion of what was

a large amount of — some of those videos

were an hour long. The court, within the

record of this case, made a very specific

finding at the time — I don’t know if it was

at the renewed judgment of acquittal, but

I remember the court making a very

specific finding with the court up there

actually notating the amount of time that

the State had played each of those videos.

For that reason, Judge, we did exactly

what the federal court in that case said was

appropriate. Rather than — and again, I

mean it could be a situation where we

could have published all of that, but we

did not do that.

The other in terms of the case law that

[trial counsel] argued, the last case out of

the 9th Circuit which, again, being

persuasive authority, the 9th Circuit — if

you follow the federal case law, the 9th

Circuit is often different and has different

rulings than the other circuits throughout

the United States.

But that being said, that case is not

applicable because, again, the statement

by the court in that case is, well, the State

should have — or the federal government

should have shown the box covers. The

federal government should have shown

this.

The State of Florida had no option except

to show the contents of the video or the

disk that Mr. Primavera brought to that

hotel room that night. We couldn’t let the

jurors look at the disk to see whether or

not that was child pornography.

And as you well know, that’s our burden

to carry. Our burden to carry is to prove

each and every element and that includes,

as the case law stands in the State of

Florida now, proving that it’s an actual

child, proving that there is an act that fits

within the statute.

And in terms of that last argument of less

restrictive [means] of just showing still

images, we can’t do that when the

allegation is alleged to be sexual battery

because it takes showing a snippet of that

video to show that it is a sex act on a child.

We did that in very moderate, limited

form.

I think, again, the record is very clear. The

court made its findings and the State made

argument in the course of closing that I

think goes directly as corroborated by the

evidence and the court’s findings — to the

jury that when they saw different portions

of that video, it was to show them where a

sex act [exchanged] either between mouth

to penis or anal sex on a child.

And the record, I think, is abundantly

clear on that. For that reason, Judge, we

have presented our evidence. We are not

required to accept any stipulation. The

case law is clear on that. We chose not to

accept that stipulation because, again, it is

our burden to carry that forward to prove

each and every element to the jury and we

did that in a manner that was proper, in a

manner that was legal and I ask that you

deny the motion.

[Court:] Anything else?

[Trial counsel:] No, Your Honor.

[Court:] Okay. Thank you. I’ve — I’ve read your

motion, counsel, your detailed

memorandum of law, case materials, all of

that. I’ll reflect that on your first issue,

publication by the State of portions of the

eight videos, I believe we did address that

in some detail and I think the record’s

going to speak well to that.

This court did do a 403 analysis and made

its determinations. Nothing in the cases

that have been presented here today

change that analysis. I believe it was

correct factually and on the law. . . .

Whether the probative value of the videos outweighed the danger of unfair prejudice

under Section 90.403, Florida Statutes, and whether the trial court appropriately denied a

motion for mistrial are issues of state law, and a state court’s determination of state law

receives deference in federal court. Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir.

1985) (“The federal courts must defer to a state court’s interpretation of its own rules of

evidence and procedure.”).

“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the

United States.” Estelle v. McGuire, 502 US. 62, 68 (1991). Relief on federal habeas is granted

either “if a state trial judge has correctly admitted evidence under state law, but [the]

application of the state rule violated a specific federal constitutional right,” or “if a state trial

judge erroneously admitted evidence in violation of a state law and the error made the

petitioner’s trial so fundamentally unfair that the conviction was obtained in violation of

the due process clause of the fourteenth amendment.” Thigpen v. Thigpen, 926 F.2d 1003,

1012 (11th Cir. 1991). “An erroneous evidentiary ruling creates such fundamental

unfairness when the wrongfully admitted evidence is ‘material in the sense of a crucial,

critical, highly significant factor.’” Thigpen, 926 F.2d at 1012 (citation omitted).

The prosecution charged Primavera with eight counts of promotion of a sexual

performance by a child in violation of Section 827.071(3), Florida Statutes. (Doc. 13,

Exhibit 1 at 171–77) For each count, the information alleged that Primavera “did, knowing

the character and content thereof, promote a sexual performance by a child less than

eighteen years of age, by producing, directing, or promoting a performance which included

sexual conduct by a child.” (Doc. 13, Exhibit 1 at 172–74) Section 827.071(1)(h), Florida

Statutes, defines “sexual conduct” as:

[A]ctual or simulated sexual intercourse, deviate sexual

intercourse, sexual bestiality, masturbation, or sadomasochistic

abuse; actual lewd exhibition of the genitals; actual physical

contact with a person’s clothed or unclothed genitals, pubic area,

buttocks, or, if such person is a female, breast, with the intent to

arouse or gratify the sexual desire of either party; or any act or

conduct which constitutes sexual battery or simulates that sexual

battery is being or will be committed.

The sexual performance must involve sexual conduct by an actual child. Parker v. State, 81 So.

3d 451, 453 (Fla. 2d DCA 2011) (“No matter how one parses the words, section 827.071

requires that the depicted sexual conduct be that of a child.”) (citing United States v. Williams,

553 U.S. 285 (2008)).

Under state law, “the [prosecution] is not barred from proving facts pertinent to its

prosecution simply because the defendant offers to admit them.” State v. Busciglio, 426 So. 2d

1233, 1234 (Fla. 2d DCA 1983) (citing Arrington v. State, 233 So. 2d 634 (Fla. 1970)). Yet,

“the defendant also has a legitimate concern in being judged only on the crime charged, and

not being convicted on an improper ground due to the admission of evidence that carries

unfairly prejudicial baggage.” Brown v. State, 719 So. 2d 882, 887 (Fla. 1998). Consequently,

“[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation

of cumulative evidence.” § 90.403, Fla. Stat. Young v. State, 301 So. 3d 1089, 1090 (Fla. 1st

DCA 2020) (“Relevant evidence is inherently prejudicial; however it is only unfair

prejudice, substantially outweighing probative value, which permits exclusion of relevant

matters.”) (internal quotation marks omitted).

At trial, the trial court reviewed the evidentiary issue four times and conducted

adequate weighing under Section 90.403. The short excerpts were relevant to prove that the

videos depicted “sexual conduct by a child,” § 827.071(1)(h), Fla. Stat., and the publication

of only a minute-long segment of each video diminished the danger of unfair prejudice.

Even though the defense argued that the prosecution did not need to publish the videos to

prove the crimes, necessity is not a requisite to the admissibility of evidence in state court.

Mackey v. State, 277 So. 3d 762, 769 (Fla. 1st DCA 2019) (“‘[R]elevancy rather than

necessity’ is the test for admission of potentially inflammatory photographs or video

evidence of a crime.”) (quoting Pope v. State, 679 So. 2d 710, 713–14 (Fla. 1996)).

Federal courts reviewing similar issues under similar rules of evidence confirm that

the state court correctly allowed publication of the brief segments of the videos. United States

v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010) (“Even if showing the images to the

jury created some risk of injecting emotions into the jury’s decision-making, it was not an

abuse of discretion for the district court to decide that the risk did not substantially outweigh

the still images’ probative value. That is especially true since the jury was only shown a

small number of the images on the DVDs — only 5 out of 4,650.”); United States v. Fechner,

952 F.3d 954, 959 (8th Cir. 2020) (“[T]he jury saw only short clips of a few independently

downloaded videos. These videos were relevant to establish that Fechner knowingly

possessed child pornography.”); United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009)

(“Although [Polouizzi] did not contest that the images he received and possessed

constituted child pornography, the stipulation was not an adequate substitute for the

evidence offered. . . . [T]he risk of unfair prejudice was minimized by the mode of

presentation.”).

Because the trial court correctly admitted the evidence under state rules of evidence

and the introduction of the evidence was not “so extremely unfair that its admission

violate[d] ‘fundamental conceptions of justice,’” the state court did not unreasonably apply

clearly established law. Dowling v. United States, 493 U.S. 342, 352 (1990).

Ground Three is DENIED.

Double Jeopardy Claim and Ineffective Assistance of Counsel Claim

In his reply, Primavera asserts for the first time that his convictions and sentences

violate due process and double jeopardy because all are based on a single video divided into

eight separate segments. (Doc. 28 at 3, 5–6) He further asserts that trial counsel deficiently

performed by stipulating to the eight charges based on the same single video. (Doc. 28 at 3)

The claims raised for the first time on reply are waived. Lovett v. Ray, 327 F.3d 1181,

1183 (11th Cir. 2003). Also, the claims are unexhausted because Primavera failed to raise

the claims in either his brief on direct appeal or his post-conviction motion (Doc. 13,

Exhibits 2 and 6) and failed to appeal the order denying his post-conviction motion. Boerckel,

526 U.S. at 845. If Primavera returned to state court to exhaust the claims, the state court

would deny the claims as untimely, successive, and procedurally defaulted. Fla. R. Crim.

P. 3.850(b), (c), (h). Consequently, the claims are barred from federal review. Snowden, 135

F.3d at 736.

In any event, it would appear that the claim is without merit. At trial, the agent who

reviewed the videos with the jury testified that the compact disc contained eight separate

videos (Doc. 13, Exhibit 1, Trial Transcripts at 424–26):

[Prosecutor:] Now, first of all, Special Agent Baute, the

format in which these — one second. The

format in which these movies are on here,

is this some type of program that

catalog[s] or basically creates them like

this?

[Agent:] Well, there’s software that’s out there that

users can create collages of videos much

like you can with home movies and

videos. It’s not as common for me to see

the collage such as this type of video as it

is just the individual clips themselves.

Somebody’s taken more time to put this

together in the form of what you’d

normally see in like a home movie type

DVD.

. . .

[Prosecutor:] Now, the eight movies, are they contained

on different screens?

[Agent:] Yes, they are.

[Prosecutor:] How many total screens were present?

[Agent:] There [were] eight different videos. I don’t

recall the exact number of actual screens.

There would have been eight separate

videos, though.

[Prosecutor:] So again, if the record will reflect that

there were two per screen, that would be

four screens as item three — State’s three.

I don’t know if you can see that from

where you are. . . .

The agent reviewed each of the eight videos and separately opined that each video

involved an actual child and was not computer generated. (Doc. 13, Exhibit 1, Trial

Transcripts at 426-32) Because the evidence proved that Primavera sold eight separate

videos — not one single video involving the same child divided into eight segments, the

record refutes both the double jeopardy claim and the ineffective assistance of counsel claim.

Accordingly, it is ORDERED that Primavera’s petition (Doc. 1) is DENIED. The

Clerk is DIRECTED to enter a judgment against Primavera and CLOSE this case.

CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED IN FORMA PAUPERIS

Because Primavera neither makes a substantial showing of the denial of a

constitutional right nor demonstrates that reasonable jurists would find debatable both the

merits of the underlying claims and the procedural issues that he seeks to raise, a certificate

of appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2).

Slack v. McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on September 24, 2021.

UNITED STATES DISTRICT JUDGE

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