# Primavera v. Secretary, Department of Corrections

> District Court, M.D. Florida · September 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10108508

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108508. Public record. Not legal advice.