Bolton v. Secretary of Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

EARNEST D. BOLTON,

Petitioner,

v. Case No. 3:19-cv-41-HLA-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Earnest Bolton, an inmate of the Florida penal system,

initiated this action on December 28, 2018,1 by filing a pro se Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). In the Petition,

Bolton challenges two 2014 state court (Duval County, Florida) judgments of

conviction for attempted sexual battery and lewd and lascivious molestation

on a victim younger than twelve in Case Number 2013-CF-587, and two counts

of sexual battery while in a familial or custodial authority in Case Number

2013-CF-588. Bolton raises six grounds for relief. Respondents oppose the

Petition. See Answer to Petition for Writ of Habeas Corpus (Response; Doc. 15)

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

with exhibits (Resp. Ex.). Bolton filed a brief in reply. See Petitioner’s Traverse

to Response to Order to Show Cause (Reply; Doc. 16-5). This case is ripe for

review.

II. Relevant Procedural History

In Case Number 2013-CF-587, the State of Florida (State) charged

Bolton by way of amended Information with two counts of sexual battery

(counts one and two) and one count of lewd or lascivious molestation (count

three). Resp. Ex. A at 54. The victim, S.E., was the same in all three counts. In

Case Number 2013-CF-588, the State charged Bolton with two counts of sexual

battery upon a child by a person in familial or custodial authority. Resp. Ex. B

at 17. M.S. was the victim in each count. Bolton moved to consolidate both

cases for purposes of trial, which the circuit court granted. Resp. Exs. A at 66-

69; B at 35-36. Following a trial, a jury found Bolton guilty in Case Number

2013-CF-587 of attempted sexual battery upon a person less than twelve years

of age, sexual battery upon a person less than twelve years of age, and lewd or

lascivious molestation. Resp. Ex. A at 255-57. In Case Number 2013-CF-588,

the jury found Bolton guilty as charged as to both counts. Resp. Ex. B at 215-

16. On November 19, 2014, the circuit court sentenced Bolton in Case Number

2013-CF-587 to a term of life as to all three counts, with a minimum mandatory

of life in prison as to count two. Resp. Ex. A at 300-06. That same day, in Case

Number 2013-CF-588, the circuit court found Bolton to be a sexual predator

and sentenced him to a term of life as to both counts. Resp. Ex. B at 253-59.

The circuit court ordered the sentences in Case Number 2013-CF-588 to run

concurrently with each other but consecutively to the sentences imposed in

Case Number 2013-CF-587. Id.

Bolton filed separate appeals of his convictions and sentences with

Florida’s First District Court of Appeal (First DCA). Resp Exs. A at 322; B at

270. The First DCA consolidated the appeals “for purposes of travel and the

record.” Resp. Ex. F. In his initial briefs in both appellate cases, Bolton argued

that the trial court erred when it: (1) excluded testimony of K.E.; and (2)

allowed the introduction of Williams[2] rule evidence. Resp. Exs. J; K. The

State filed answer briefs, Resp. Exs. L; M, and Bolton filed reply briefs, Resp.

Exs. N; O. The First DCA per curiam affirmed the judgments in both cases

without written opinions on December 4, 2015. Resp. Exs. P; Q, and issued the

mandates on December 22, 2015, Resp. Exs. R; S.

On July 25, 2016, Bolton filed pro se motions for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motions) in

both cases. Resp. Ex. T at 1-21. In the Rule 3.850 Motions, Bolton argued that

his counsel was deficient for failing to: (1) object to Kristi Green’s testimony

2 Williams v. State, 110 So. 2d 654, 66 (Fla. 1959) (holding “that evidence of any facts

relevant to a material fact in issue except where the sole relevancy is character or propensity

of the accused[, including facts about other crimes or bad acts,] is admissible unless precluded

by some specific exception or rule of exclusion.”).

concerning the credibility of S.E.; (2) call five witnesses; (3) object to improper

closing arguments; (4) present testimony and argument in opposition to the

State’s motions in limine; and (5) move to disqualify the trial judge. Id. Bolton

also raised a sixth claim that the cumulative effect of counsel’s errors deprived

him of a fair trial. Id. On August 29, 2016, the circuit court denied relief. Id. at

22-26. On May 25, 2017, the First DCA reversed the circuit’s court denial with

instructions to either hold an evidentiary hearing or attach portions of the

record that refuted Bolton’s claims. Resp. Ex. W. The First DCA issued the

mandate on June 20, 2017. Resp. Ex. X.

On remand, the circuit court again denied the Rule 3.850 Motions

without an evidentiary hearing but attached to the order portions of the record

refuting Bolton’s claims. Resp. Ex. CC. Bolton appealed, Resp. Ex. DD, but

moved to voluntarily dismiss the appeal, Resp. Ex. EE. On July 7, 2017, the

First DCA dismissed the appeal. Resp. Ex. FF. Bolton petitioned the First DCA

for a belated appeal, Resp. Ex. JJ, which the First DCA denied, Resp. Ex. LL.

The First DCA also denied Bolton’s motion for rehearing. Resp. Exs. MM; NN.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). “It

follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary

hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully

developed in the record before the Court. Because the Court can “adequately

assess [Bolton’s] claim[s] without further factual development,” Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not

be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions

in the state criminal justice systems, and not as a means of error correction.’”

Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks

omitted)). As such, federal habeas review of final state court decisions is

“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[3] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S.

Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited

to the record that was before the state court that adjudicated the claim on the

merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language

in § 2254(d)(1) “requires an examination of the state-court decision at the time

it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

3 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §

2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir.

2016), cert. denied, 137 S. Ct. 1103 (2017).

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). 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.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[4] supra, at 747–

4 Coleman v. Thompson, 501 U.S. 722 (1991).

748, 111 S. Ct. 2546; Sykes,[5] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[6]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

5 Wainwright v. Sykes, 433 U.S. 72 (1977).

6 Murray v. Carrier, 477 U.S. 478 (1986).

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference--this one to a state court’s decision--when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Bolton alleges that his trial counsel failed to object to

Kristi Green’s testimony that purportedly vouched for the credibility of victim

S.E. Petition at 5. Bolton contends that “Green testified that despite no

physical findings during her examination of S.E., the result of her exam was

‘sexual abuse by history.’” Id.

Respondents contend the claim in Ground One should be dismissed as

unexhausted. Response at 23-25. Although Bolton raised this claim for relief

in his Rule 3.850 Motions, Respondents argue that because Bolton voluntarily

dismissed his appeal of the denial of the Rule 3.850 Motions, the First DCA

never reviewed the merits of this claim following the initial remand. Id. As

such, it remains unexhausted. Bolton did not address the exhaustion issue in

his Reply.

The record reflects that Bolton raised a similar claim in the Rule 3.850

Motions. Resp. Ex. T at 3-8. The First DCA initially remanded the matter to

the circuit court with directions to either attach portions of the record refuting

the claim or hold an evidentiary hearing. Following remand, the circuit court

entered an amended order denying relief that attached record evidence

refuting Bolton’s claims. Resp. Ex. CC. Bolton appealed, Resp. Ex. DD, but

moved to voluntarily dismiss the appeal, Resp. Ex. EE, which the First DCA

granted, Resp. Ex. FF. Although Bolton petitioned the First DCA for a belated

appeal, Resp. Ex. JJ, the First DCA denied the request to belatedly appeal the

adverse ruling on his Rule 3.850 Motions. Resp. Ex. LL. As Bolton voluntarily

dismissed his appeal and could not belatedly appeal the order, Bolton did not

complete the state court appellate process. Therefore, this claim is

unexhausted. See Boerckel, 526 U.S. at 845. Bolton has alleged neither cause

and prejudice nor a miscarriage of justice to overcome his failure to exhaust.

Accordingly, the claim for relief in Ground One is due to be dismissed as

unexhausted.

Even if properly exhausted, Bolton would not be entitled to relief. The

University of Florida First Coast Child Protection Team (CPT) assisted the

State in its investigation of S.E.’s allegations. Resp. Ex. C at 281. The CPT

employed Green as an advanced registered nurse practitioner to conduct

medical evaluations of child sexual assault victims. Id. at 281-82. The State

called Green as an expert witness in child medical examinations and child

abuse and also as a fact witness because she conducted a medical examination

of S.E. Id. at 283-84. Prior to the medical examination, a case coordinator

interviewed S.E. and created a “short history of what the child ha[d]

disclosed[.]” Id. at 284-85. Based on the history S.E. provided, Green decided

to examine S.E.’s vagina. Id. at 284-86. Green found no evidence that confirmed

or negated S.E.’s sexual abuse allegations. Id. at 287-88. However, Green

testified that 96% of the time, there are no physical findings during these types

of medical examinations. Id. at 287. At the conclusion of the examination,

Green testified that she made the following findings and recommendations:

My findings were that of sexual abuse result by history

and that the physical findings were consistent with

the history and neither confirm nor negate allegations

of sexual abuse. Since many types of sexual abuse

leave no physical findings, this exam should not be

viewed as evidence that sexual abuse did not take

place.

And my recommendations were to follow up with

her primary care doctor, no contact with the alleged

perpetrator and that [S.E.] should be referred for

counseling.

Id. at 287-88.

When read in context, Green did not vouch for the victim’s credibility.

Instead, Green recounted her findings and recommendations following her

physical examination of S.E. Those findings were based on S.E.’s answers to

questions the case coordinator asked, which Green referred to as S.E.’s

“history.” This is not vouching for S.E., but a recognition that the allegations

are solely supported by S.E.’s statements. As such, any objection would have

been meritless, and counsel is not deficient for failing to make a meritless

objection. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th

Cir. 2005) (holding counsel cannot be ineffective for failing to raise a meritless

argument); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (noting

that “it is axiomatic that the failure to raise nonmeritorious issues does not

constitute ineffective assistance.”). Bolton has failed to establish deficient

performance or prejudice and, therefore, is not entitled to relief on the claim in

Ground One.

B. Ground Two

Next, Bolton argues that his trial counsel was ineffective because he

failed to call Demetrius, Devonte, and Brianna Bolton, as well as Detective

William Katsacos as witnesses. Petition at 7. Bolton contends that Demetrius

and Brianna would have testified that S.E.’s brother, K.E., “threatened to call

police and ‘tell them something to get their dad in trouble[.]’” Id. Bolton

maintains that Demetrius and Devonte could testify that “K.E. exposed his

penis to Devonte and put it in his face.” Id. According to Bolton, Katsacos

“would have testified that K.E. told him that he performed oral sex on his sister

S.E. because she wanted to know what it felt like while watching

pornography.”

According to Respondents, Bolton failed to exhaust this claim because he

voluntarily dismissed his appeal of the circuit court’s order denying relief.

Response at 26-28. Once again, Bolton did not address his alleged failure to

exhaust in his Reply. The record reflects that Bolton raised a similar claim in

his Rule 3.850 Motions, Resp. Ex. T at 8-11, which the circuit court denied

following remand of the reversal of its first order denying relief, Resp. Ex. CC.

Bolton voluntarily dismissed his appeal of that order, which deprived the First

DCA of the opportunity to review the merits of the claim. Accordingly, Bolton

failed to properly exhaust this claim. He has not alleged cause or the existence

of a miscarriage of justice to overcome his failure to exhaust. Thus, the claim

in Ground Two is due to be dismissed as unexhausted.

Nevertheless, even if Bolton has exhausted this claim, he is not entitled

to relief. Bolton has failed to establish the relevancy of K.E.’s alleged

statements or actions. He has provided no evidence that K.E. conspired with

S.E. to get Bolton in trouble. Likewise, no such evidence was introduced at trial

that would suggest the same. The record reflects that counsel called K.E. as a

defense witness. Resp. Ex. C at 441-62. K.E. testified that he did not like Bolton

because he felt Bolton was trying to replace K.E.’s dead father and he neglected

him. Id. at 447-48. According to K.E., Bolton’s relationship with K.E.’s mother

resulted in K.E. not being allowed to see his grandparents anymore either. Id.

at 449. Notably, K.E., S.E., and M.S. all denied that K.E. or anyone else

convinced S.E. or M.S. to make up their allegations against Bolton. Id. at 255-

58, 388-89, 399, 458-62. Additionally, K.E. testified that S.E. seemed scared

around Bolton during the months leading up to Bolton’s arrest. Id. 454. K.E.

noticed this change and asked S.E. if Bolton was abusing her, and she

confirmed that Bolton had been abusing her. Id. at 454-55. K.E. further

testified that he would watch pornographic videos with S.E. Id. at 452.

This testimony does not provide a factual basis on which to support a

claim that K.E. conspired with the victims to fabricate the allegations against

Bolton. Likewise, the purported witness testimony that K.E. threatened to call

police and get Bolton in trouble does not establish a reasonable inference that

the victims contrived the allegations. Bolton relies entirely on speculation to

reach that conclusion. However, speculation is insufficient to support a claim

for heabeas relief. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)

(recognizing that vague, conclusory, speculative, or unsupported claims cannot

support an ineffective assistance of counsel claim). Accordingly, counsel cannot

be deemed deficient for failing to call witnesses to testify as to this incident.

Regarding K.E.’s conduct towards Bolton’s children, Bolton has failed to

establish its relevancy. K.E.’s lewd actions toward a third party neither proves

or disproves that Bolton sexually abused S.E. or M.H. Counsel cannot be

deemed defective for failing to bring forth irrelevant evidence. See Diaz, 402

F.3d at 1142; Bolender, 16 F.3d at 1573. As such, this claim fails.

As to Katsacos’ alleged testimony, at trial, counsel attempted to elicit

additional testimony from S.E. and K.E. concerning an incident in which S.E.

asked K.E. to perform oral sex on her while they were watching a pornographic

video because she wanted to know what it was like. Id. at 422-23. This incident

occurred after S.E. told K.E. about Bolton molesting her. Id. at 424. Following

a proffer of the testimony from both S.E. and K.E., the circuit court found the

testimony inadmissible. Id. at 258-78, 421-34. In light of the circuit court’s

refusal to admit this testimony, the circuit court would not have permitted

Katsacos to provide hearsay testimony on the same matter. Again, counsel is

not deficient for failing to raise a meritless issue. See Diaz, 402 F.3d at 1142;

Bolender, 16 F.3d at 1573. For the above reasons, relief on the claim in Ground

Two that counsel was deficient for failing to call these witnesses is due to be

denied.

C. Ground Three

Bolton contends that his trial counsel failed to object to improper

prosecutorial comments. Petition at 8. During closing arguments, Bolton

alleges that the “[p]rosecutor commented on S.E.’s intellectual and mental

capacity with no evidence to support claims . . . .” Id. Respondents again

maintain that the claim is unexhausted. Response at 28-30. And for the

reasons discussed as to Grounds One and Two, the Court agrees. Bolton did

raise this issue in his Rule 3.850 Motions, Resp. Ex. T at 11-14, but he did not

complete the appellate process, Resp. Exs. EE; FF. As such, he failed to

properly exhaust this claim. See Boerckel, 526 U.S. at 845. Bolton also failed

to allege, let alone establish, the existence of cause or a manifest injustice to

excuse his failure to exhaust. Accordingly, the claim in Ground Three is due to

be dismissed as unexhausted.

Even assuming this claim was properly exhausted, Bolton is not entitled

to relief. For purposes of federal habeas review, “a prosecutor's improper

comments will be held to violate the Constitution only if they ‘so infected the

trial with unfairness as to make the resulting conviction a denial of due

process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v.

Wainwright, 477 U.S. 168, 181 (1986)). The Court notes that “opening

statements and closing arguments are not in themselves evidence, their

purpose ‘is to assist the jury in analyzing the evidence.’” Burchfield v. CSX

Transp., Inc., 636 F.3d 1330, 1335 (11th Cir. 2011) (quoting United States v.

Hasner, 340 F.3d 1261, 1275 (11th Cir. 2003)). Indeed, during closing

arguments “a prosecutor may ‘assist the jury in analyzing, evaluating, and

applying the evidence’ and, therefore, may ‘urge[ ] the jury to draw inferences

and conclusions from the evidence produced at trial.” United States v. Adams,

339 F. App’x 883, 886 (11th Cir. 2008) (quoting United States v. Johns, 734

F.2d 657, 663 (11th Cir. 1984)).

Although in the Petition Bolton fails to identify the comments he

contends counsel should have challenged, he expands on this claim in his

Reply. According to Bolton, counsel should have challenged the prosecutor’s

comments that S.E. had limited intellectual capabilities. Reply at 17. The

record reflects that Michelle Eaton, S.E.’s mother, testified that S.E. had

dyslexia, hearing issues, and “ha[d] delayed skills”. Resp. Ex. C at 180-81, 201.

The mother testified that S.E. struggled with reading comprehension but that

changed after S.E. received hearing aids; however, they still had “to work with

her on things.” Id. at 180. Michelle Eaton also testified that the school created

an individual educational program for S.E. that included a special teacher that

assisted S.E. in understating what her teachers were teaching. Id. at 180-81.

Notably, Bolton himself testified that S.E. had a learning disability. Id. at 486-

87.

In light of this record evidence, the Court finds the prosecutor’s

comments were not improper. The evidence presented to the jury supported

the prosecutor’s comments that S.E. had a learning disability and diminished

mental capacities in comparison to other children her age. As this was a

reasonable comment on the evidence presented, counsel would have had no

basis on which to object. Therefore, counsel was not deficient. See Diaz, 402

F.3d at 1142; Bolender, 16 F.3d at 1573. Accordingly, Bolton has failed to

establish an ineffective assistance of counsel claim and he is not entitled to

relief on the claim in Ground Three.

D. Ground Four

In Ground Four, Bolton asserts that his trial counsel failed to object to

or otherwise challenge the State’s motions in limine. Petition at 10. According

to Bolton, the “State filed two motions in limine to prevent Petitioner the

ability to present witnesses and exculpatory testimony depriving Petitioner [of]

his due process rights.” Id. Bolton does not detail what testimony or argument

counsel should have provided. Id.

Respondents contend that this claim like those in Grounds One through

Three are unexhausted. Response at 31-32. Although Bolton raised a similar

claim before the circuit court in his Rule 3.850 Motions, Resp. Ex. T at 14-17,

his dismissal of the appeal following remand prevented the state appellate

court from reviewing the claim, Resp. Exs. EE; FF. As a result, he failed to

adequately exhaust this claim. See Boerckel, 526 U.S. at 845. Bolton does not

argue cause to overcome his failure to exhaust. He likewise does not allege the

existence of a miscarriage of justice. Accordingly, the claim in Ground Four is

due to be dismissed as unexhausted.

Nevertheless, even if properly exhausted, the claim is without merit. In

the Reply, Bolton argues he should have been allowed to present evidence that

K.E. had been molesting S.E. since she was nine years old and that K.E. had

been arrested and convicted for the same conduct. Reply at 18-21. According to

Bolton, this evidence would have supported his defense theory that it was K.E.

and not Bolton who had actually sexually assaulted S.E. Id.

Prior to trial, the State filed two motions in limine. Resp. Ex. A at 72-75.

In the first motion in limine, the State argued that the defense should be

prohibited from presenting evidence related to the criminal case of K.E. and

how Michelle Eaton did or did not report the case. Id. at 72. The State also

sought to prohibit evidence that Michelle Eaton was molested as a child. Id.

The second motion in limine was boilerplate in fashion and unrelated to

Bolton’s argument. Id. at 74-75. However, counsel did argue against the first

motion in limine because he wanted to introduce evidence that could possibly

impeach S.E., but that evidence was not directly related to the defense theory

Bolton suggests here. Resp. Ex. C at 109-15.

Bolton’s argument is speculative and, therefore, insufficient to warrant

federal habeas relief. S.E. specifically testified at trial that Bolton touched her

vagina with his fingers, lips, and penis. Id. at 222-31. The interview S.E. had

with the CPT was also played at trial, during which S.E. made the same

allegations and gave more specific details about Bolton’s conduct. Id. at 315-

52. No evidence presented at trial suggested, let alone established, S.E.’s

allegations were false or contrived. The defense theory that Bolton posits here

does not establish that Bolton could not have also molested S.E. Without some

factual nexus linking K.E. to the assaults S.E. described, Bolton’s claim is

entirely speculative and, therefore, fails. See Tejada, 941 F.2d at 1559. In light

of the above, relief on the claim in Ground Four is due to be denied.

E. Ground Five

Bolton contends that his trial counsel “failed to move to disqualify the

trial judge.” Doc. 1-5. According to Bolton, the trial judge made comments

during pre-trial and trial proceedings that put him “in fear of not receiving a

fair and impartial adjudication of his trial.” Id. Bolton provides no additional

information concerning the content or context of those comments. He does,

however, allege, without providing citations to the trial record, that at trial,

the judge assisted “the prosecution by giving advice to [sic] how to object.” Id.

According to Respondents, Bolton failed to exhaust this claim. Response

at 33-34. Despite Bolton raising this claim in his Rule 3.850 Motions, Resp. Ex.

T at 17, he failed to allow the state appellate court to address it on the merits,

Resp. Exs. EE; FF, and it remains unexhausted. Bolton has not alleged cause

and prejudice to excuse his failure to exhaust or the existence of a miscarriage

of justice if the Court did not address the merits. As such, the claim is due to

be dismissed as unexhausted.

Nevertheless, even if exhausted, Bolton is not entitled to relief. Bolton

takes issue with a comment the trial judge made during the defense’s case in

chief in which the judge questioned why “people don’t object to some things.”

Reply at 23. Bolton maintains that this establishes the judge gave advice to

the prosecution on how to object. Id. at 22-24. However, the record reflects that

this comment was made after the prosecutor had already objected and the

comment did not lead to additional objections from the prosecutor. Resp. Ex. C

at 444-47. Moreover, the objection the prosecutor raised was overruled. Id.

When read in context, this was not advice to the prosecutor but the trial judge’s

own off-the-cuff rumination on “people” generally not objecting to things to

which he felt they should object. Bolton cannot establish how this comment

prejudiced his case as he alleges no facts demonstrating that the judge’s

comments aided the prosecution. As such, Bolton’s claim of ineffective

assistance of counsel fails and relief on the claim in Ground Five is due to be

denied.

F. Ground Six

In his final ground for relief, Bolton argues that the cumulative effect of

his counsel’s errors deprived him of a fair trial. Doc. 1-6. Where all individual

claims are meritless, the claim of cumulative error is also without merit.

Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). As detailed

above, each of Bolton’s claims are not only unexhausted, they are meritless. It

follows then that his claim of cumulative error provides no basis for habeas

relief. See id. Accordingly, relief on the claim in Ground Six is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Bolton seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, Bolton “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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

3. If Bolton appeals the denial of the Petition, the Court denies a

certificate of appealability. Because the Court has determined that a certificate

of appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

4, The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 19th day of

November, 2021.

MARCIA MORALES HOWARD

United States District Judge

Jax-8

C: Earnest Bolton #J54103

Counsel of record

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