Delgado v. Secretary, Florida Department of Corrections (St. Johns County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RAYMOND DELGADO,

Petitioner,

v. Case No. 3:18-cv-823-TJC-JRK

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Raymond Delgado, an inmate of the Florida penal system,

initiated this action, with help from counsel, by filing a Petition Under 28 U.S.C.

§ 2254 for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. He is

proceeding on an Amended Petition.1 Doc. 4. Petitioner challenges a state court

(St. Johns County, Florida) judgment of conviction for sexual battery by a

person in familial or custodial authority (count two) and lewd or lascivious

molestation (count nine). Petitioner is serving a twenty-five-year term of

incarceration as to count two and a consecutive fifteen-year term of sex offender

1 Counsel, on behalf of Petitioner, filed the Amended Petition to include

Petitioner’s signature.

probation as to count nine.2 Respondents filed a Response, see Doc. 7 (Resp.),

and at the Court’s direction, a Supplemental Response, see Doc. 15 (Supp.

Resp.).3 Petitioner filed a Reply, see Doc. 10, and a Supplemental Reply,4 see

Doc. 17. This case is ripe for review.

II. Governing Legal Principles

A. Standard Under AEDPA

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

governs a state prisoner’s federal habeas corpus petition. 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)).

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

2 In exchange for Petitioner’s negotiated plea of no contest to counts two and

nine, the state agreed to nol pros counts one, three, four, five, six, seven, eight, and

ten.

3 Attached to the Response and Supplemental Response are several exhibits.

See Doc. 7-1 (“Resp. Ex.”) and Doc. 15-1 (“Supp. Resp. Ex.”).

4 In their initial Response, Respondents requested that the Court dismiss this

case as untimely filed. See Doc. 7. The Court denied that request and directed

Respondents to file a supplemental response. See Doc. 13.

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

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

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

unaccompanied by an explanation,

the 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. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and 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 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); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

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,[5] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[6] 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, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Even though a claim has been

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

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

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

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). For a petitioner to establish cause and prejudice,

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).[7] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied 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).

Without 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

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

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 Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’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 ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). The petitioner must still demonstrate that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must

show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.”

Hill,474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). 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.” 466 U.S. at 697.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable - a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (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, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

III. Analysis

A. Ground One and Ground Two

Petitioner relies on the same underlying facts to support Grounds One

and Two, thus the Court addresses these claims together. See Doc. 4 at 15. In

Ground One, Petitioner asserts that his trial counsel was ineffective for

advising him to enter a plea of guilty to count two – sexual battery by a person

in familial or custodial authority – because Petitioner was never in a position

of familial or custodial authority over the victim while in Florida. Id. at 13-15.

According to Petitioner, if trial counsel had advised him that there was no

factual basis for count two and that the charge was subject to dismissal,

Petitioner would not have pled guilty to the offense and would have insisted on

going to trial. Id. In Ground Two, Petitioner argues that because he is factually

and legally innocent of count two, his conviction and sentence for that offense

violates his rights under the Due Process Clause. Id.

Petitioner, with help from postconviction counsel, raised these claims in

ground one and ground two of his Florida Rule of Criminal Procedure 3.850

motion for postconviction relief. Resp. Ex. K at 5-7. The trial court conducted an

evidentiary hearing on the Rule 3.850 motion, during which it heard testimony

from Petitioner’s trial attorneys, Terry Shoemaker, Clyde Taylor, Jr., and Clyde

Taylor, III; and Petitioner. See generally Resp. Ex. M. The trial court later

denied these claims. Resp. Ex. N. As to the allegations in ground one, the trial

court found the following:

In ground one, Defendant asserts that counsel

was ineffective for advising Defendant to plead guilty

to Count II of the information and alleges Count II was

subject to dismissal because Defendant contends he

was not in a position of familial or custodial authority

over the victim at any time in the state of Florida.

Defendant’s testimony established that Defendant met

and became friends with the [victim] and her parents

on a cruise, and it was later decided that the victim

would spend a summer working for Defendant in his

chiropractic office in South Carolina. During that time,

the victim lived with Defendant and his fiancée and

Defendant was responsible for her care. Defendant

testified that he exercised custodial authority over the

victim when she lived with him and his fiancée in South

Carolina. Defendant testified that the victim lived with

them for about 2 months, then returned to her parents’

home in St. Johns County. Thereafter, Defendant

confirmed that he visited St. Johns County for a few

days at a time when he stayed with the victim and her

parent[s] in Florida. Defendant testified that between

2007 and 2010 he visited Florida for the weekend on

five occasions. Defendant testified that he was friends

with the victim’s father and would play golf and spend

time with him during those visits. Defendant confirmed

that it was alleged that he had sex with the victim in

her parents’ home, but stated her parents were always

present in the home and that he and the victim were

never alone in the home. Regarding any money or gifts

he gave the victim, Defendant testified that he

contacted the victim’s family and asked for permission

to open an account for her because he wanted to deposit

her work check into that account. Defendant stated he

also made a $25 deposit into the account as a birthday

gift. Defendant testified that the victim’s parents never

expressly transferred familial custody or authority to

him while in St. Johns County. Defendant stated he

conveyed to defense counsel that he was never in

familial or custodial authority over the victim in

Florida. Defendant asserted it was “clear” that the

charge did not apply and that he informed Attorney

Shoemaker of this belief. Defendant testified that

Attorney Shoemaker said he would look into the issue,

but that he did not follow up with Defendant.

Defendant stated if there was a valid basis for a motion

challenging the charge he would have insisted on filing

it and would have gone to trial to preserve that

challenge. At the time, Defendant stated he thought the

worst case scenario was a 25 year sentence and thought

anywhere between time-served and 25 years would be

negotiated. Defendant testified that he believed the

charges would have been dismissed if he had been

successful on a motion to dismiss the familial/custodial

charges.

Attorney Shoemaker testified that he met with

Defendant over one-dozen times and they went over all

of the evidence together. Attorney Shoemaker stated

that Defendant was very in-tune with what was going

on in the case and that they communicated well – the

options were simply not good. Attorney Shoemaker

testified that he spoke with Defendant and researched

the familial/custodial authority issue. Attorney

Shoemaker recalled informing Assistant State

Attorney Warren that he did not believe the State could

prove a familial or custodial relationship in Florida.

However, Attorney Shoemaker testified that Attorney

Warren provided him with additional evidence

including copies of checks and birthday gifts that he

thought constituted a familial or custodial relationship

under the case law. Attorney Shoemaker believed that

by continuing to send items and money, Defendant

continued to exercise authority over the victim and

stated his reading of the case law supported that

conclusion. Attorney Shoemaker testified that the

State Attorney’s office had a policy that they would not

continue to negotiate if defendant[] continued filing

motions. Attorney Shoemaker testified that he did not

think ·seeking dismissal of the familial/custodial

authority charge was worth cutting off channels of

communications with the State Attorney’s Office

because he believed that challenge would have been

unsuccessful. Attorney Shoemaker also testified that

Defendant told him that he did not want to put the

victim through a trial because of his relationship with

her. Attorney Shoemaker testified that the defense and

State ultimately agreed to a cap of 25 years in hopes

that Judge Berger would sentence him to substantially

less.

During cross-examination, Attorney Shoemaker

explained that it was his understanding that the

custodial authority started in South Carolina, then

Defendant travelled to Florida where he gave the

victim money and took her shopping. Attorney

Shoemaker acknowledged that Defendant visited

Florida as a guest and stayed with the victim and her

parents. Attorney Shoemaker stated while Defendant

was visiting Florida, he was able to exert authority over

the victim as a way to keep her close. Attorney

Shoemaker testified that he and Defendant spoke at

length about the issue. Attorney Shoemaker originally

thought it was a good argument, but the more research

he did, he thought the case law established that

familial or custodial authority could be established

under the facts at hand. Attorney Shoemaker reasoned

that Defendant used his ability to buy the victim gifts

to become in [sic] a position of custodial authority and

recalled that his research and the State’s research

supported that conclusion. Attorney Shoemaker

recalled that Defendant gave the victim a check for

$250 and set up an account for the victim that he would

put money in regularly. Attorney Shoemaker asserted

that a defendant does not have to actually live in the

victim’s home to be considered in a position of familial

custody or control. Attorney Shoemaker recalled that

incidents also occurred in a vehicle while no parent was

present. Attorney Shoemaker testified there were

times Defendant and victim were left alone together.

Attorney Shoemaker agreed that Defendant visited

Florida on multiple occasions, and the State could have

proceeded with multiple counts. Attorney Shoemaker

stated he discussed the motion with Defendant and

they made the decision not to file the motion.

The State then called Clyde Taylor, III, Esq.

Attorney Taylor testified that as a team, they took “no

more than 10” depositions. Attorney Taylor stated he

went back and looked through his notes and saw that

he had written a basic memo and had researched the

familial/custodial authority issue, which led him to

conclude that he discussed it with Defendant; but that

he does not recall a specific conversation. Attorney

Taylor testified that he would not have suggested to

Defendant that if they prevailed on motion to dismiss

on the familial/custodial authority count that the whole

case would be dismissed.

Next, the State called Clyde Taylor, Jr., Esq.

Attorney Taylor remembered the incident that

occurred in Florida occurred because the father “had

gone off and left the victim with Defendant.” Attorney

Taylor recalled having a conversation with Defendant

in November of 2011 regarding potential issues that

could come up at trial that they would have to explain

to a jury. Attorney Taylor did not remember Defendant

ever mentioning that he thought the case would be over

if the familial/custodial authority count was dismissed,

and stated that he certainly never advised Defendant

in such a manner.

Defendant acknowledged in his motion and

testimony that he exercised custodial authority over

the victim when she lived with him and his fiancée in

South Carolina. Defendant testified that she lived with

them for about 2 months, then returned to her parents’

home in St. Johns County, where Defendant testified

he visited about five times over various weekends.

Defendant testified that he was never left alone with

the victim during these visits. [H]owever both

Attorneys Shoemaker and Taylor, Jr. testified that the

Defendant was left alone with the victim during his

visits to Florida.

“Custody” connotes a duty or obligation to care

for the other. Hallberg v. State, 649 So. 2d 1355, 1357

(Fla. 1994). Concerning a child, it usually implies that

the person has some responsibility in loco parentis. Id.

It is clear that the victim’s parents placed Defendant in

custodial control and authority over the victim when

they allowed her to live with Defendant in South

Carolina. The Court also finds that counsel was not

deficient in concluding that the case law supported the

charge based on these facts. For example, in Oliver v.

State, the Fifth District Court of Appeal found similar

facts sufficient for a jury to conclude the defendant was

in a position of familial or custodial authority. 977 So.

2d 673. 676 (Fla. 5th DCA 2008). The Court also notes

that the facts of this case are distinguishable from

those in Johnston v. State, because here, it was

established that Defendant had been responsible for

the victim’s care in the past. 682 So. 2d 215. 217 (Fla.

5th DCA 1996) (Defendant not in position of familial or

custodial authority over victim for multiple reasons,

one of which being that the victim testified Defendant

had never been responsible for her care); Stricklen v.

State, 504 So. 2d 1248, 1250 (Fla. 1st DCA 1986) (Fact

that Defendant did not reside in victim’s home not

dispositive of whether Defendant was in position of

familial or custodial authority over victim).

Further, it is evident to the Court that defense

counsels’ decision not to challenge the

familial/custodial authority charge was sound trial

strategy. Considering the fact that Defendant does not

contest the charges insofar as they allege he had sexual

relations with the victim, and only questions the

familial/custodial authority allegation, the Court finds

that focusing on plea negotiations was reasonable trial

strategy. Defense counsel negotiated a deal in which

Defendant pled no contest to one count of Lewd or

Lascivious Molestation and one count of Sexual Battery

By Person in Familial or Custodial Authority and the

State agreed to a cap of 25 years and to stand silent as

to the number of years within that cap. Had Defendant

succeeded in dismissal of the familial/custodial

authority charge, the State could have charged

Defendant with additional Lewd or Lascivious

Molestation counts, since the amended information

alleged separate time-frames for each count. Therefore,

Defendant could have received consecutive 15 year

sentences for each count. See generally Graham v.

State, 207 So. 3d 135 (Fla. 2016); Sanders v. State, 101

So. 3d 373 (Fla. 1st DCA 2012). Prior to the plea

agreement, Defendant was charged with 7 counts of

Sexual Battery by Person in Familial or Custodial

Authority and 3 counts of Lewd or Lascivious

Molestation. Assuming arguendo that Defendant was

successful in procuring the dismissal of the Sexual

Battery by Person in Familial or Custodial Authority

charges, and assuming the State did not file any

additional charges, that would have left Defendant

with the 3 counts of Lewd or Lascivious Molestation

and a possible exposure of 45 years incarceration.

Defendant does not allege that he had any defense to

the Lewd or Lascivious Molestation charges and

Attorney Shoemaker testified that Defendant admitted

his guilt to the accusations. Further, Defendant’s belief

that the entire case would have been dismissed had

counsel successfully challenged the familial/custodial

authority counts is clearly erroneous, and casts doubt

on Defendant’s insistence that he would have

proceeded to trial but for counsels’ decision not to

challenge that particular charge. For the

aforementioned reasons, the Court finds that counsel

was not deficient in declining to seek dismissal of Count

II or advising Defendant to plead guilty to Count II.

Therefore, because Defendant has failed to establish

deficient performance or prejudice, ground one will be

denied.

Resp. Ex. N at 3-8. As to the allegations in ground two, the trial court stated as

follows:

In ·ground two, Defendant asserts that he was

denied due process of law as a result of being convicted

and sentenced to twenty-five years imprisonment on

Count II of the amended information when he was not

in a position of familial or custodial authority over the

victim at any time in Florida, and therefore the State

could not prove this element of the offense and

Defendant was factually and legally innocent. “A rule

3.850 motion is the proper vehicle to attack the factual

basis underlying the sentence imposed as the result of

a defendant’s plea.” State v. Kogan, 190 So. 3d 268, 269

(Fla. 5th DCA 2016). Here, pursuant to the prior

analysis in ground one and after consideration of the

testimony at the evidentiary hearing and reviewing the

plea colloquy and record evidence, this Court finds that

a factual basis existed for Count II. Accordingly, ground

two will be denied.

Resp. Ex. N at 8-9 (record citations omitted). Petitioner, with help from

postconviction counsel, appealed the trial court’s denial of these two claims.

Resp. Ex. P. The First District Court of Appeal per curiam affirmed the trial

court’s denial without a written opinion. Resp. Ex. S.

The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court finds that the state court’s

decision to deny Petitioner’s claims was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Ground One and Ground Two are denied.

B. Ground Three

Petitioner asserts that his trial counsel was ineffective for failing to move

to suppress Petitioner’s confession made during his police interrogation with St.

Johns County, Florida, Detective Russ Martin. Doc. 4 at 15. Petitioner contends

that if counsel advised him that the statements he made during his police

interrogation could be suppressed, he would not have entered his plea and

would have insisted on going to trial. Id.

Petitioner raised this claim as ground three of his Rule 3.850 motion.

Resp. Ex. K at 8-10. Following an evidentiary hearing, the trial court denied the

claim as follows:

In ground three, Defendant asserts that counsel

was ineffective for failing to file a motion to suppress

Defendant’s confession based on the St. Johns County

Sheriff’s officer’s alleged violation of his Fifth and Sixth

Amendment rights to counsel and to remain silent and

Miranda v. Arizona. In his motion, Defendant alleges

that Detective Martin violated his right to counsel and

right to remain silent when Defendant asked Detective

Martin if he needed an attorney and Detective Martin

replied “Sir, that’s your right and that’s basically way

[sic] I’m explaining to you.” Defendant asserts that

Detective Martin should have answered “yes” to

Defendant’s question. According to his motion,

Defendant also informed the Detective that he did not

have an attorney in Florida, which Defendant argues

should have alerted the Detective to the fact that he

had an out of state attorney.

Attorney Shoemaker testified that he did not

think a motion to suppress the St. Johns County

encounter would have been a valid motion because the

detective simply said he could not give Defendant legal

advice when Defendant asked if he needed an attorney.

Attorney Shoemaker stated they filed a motion to

suppress statements regarding the South Carolina

interview because the Defendant had made it clear to

the South Carolina officers that he was represented by

counsel. However, regarding the St. Johns County

questioning, Attorney Shoemaker stated he reviewed

the interview with Defendant and that Defendant had

signed a valid waiver. Attorney Shoemaker testified

that Defendant agreed to talk to the officer. Attorney

Shoemaker stated that he told Defendant he was not

going to file a motion to suppress and that Defendant

understood. Attorney Shoemaker asserted that it was

all four attorneys’ opinion that the motion would not be

successful. Regarding preserving error for appeal,

Attorney Shoemaker reiterated it would not have been

a valid motion and he was not going to file an invalid

motion just to have a record for appeal. On cross,

Attorney Shoemaker agreed that they filed motions

that they worked out with the State, such as a motion

to suppress the testimony from the South Carolina

detective and a motion in limine on the DNA evidence.

Defendant testified that he recalled speaking

with Detective Martin at the St. Johns County Sheriff’s

Office concerning this case. Defendant testified he had

not heard the recording of the interview, but believed

he read the transcript, but is not sure. Defendant

recalled speaking with Attorney Shoemaker concerning

the interview, but stated that Attorney Shoemaker told

him the issue was moot. Defendant asserted that

Attorney Taylor and Attorney Shoemaker said they

had no defense. Defendant testified that Attorney

Shoemaker never advised him that he should file a

motion to suppress his statements to Detective Martin.

Defendant testified that had counsel filed a motion to

suppress, he would not have pled guilty and would have

insisted on going to trial to preserve the challenge.

Attorney Clyde Taylor, III testified that, at the

deposition of Detective Martin, he wanted to get some

details as to how Defendant was approached. For

example Attorney Taylor was looking into whether

Defendant was pressured into making a statement.

Attorney Taylor testified that once the video

interrogation began, he focused on whether Defendant

asserted his right to an attorney. Attorney Taylor

testified that it was his opinion that Defendant did not

make an unequivocal request for counsel.

Although Defendant’s question as to whether he

needed a lawyer was likely a prefatory statement under

Almeida v. State, this Court finds that Detective

Martin’s reply of “Sir, that’s your right and that’s

basically way [sic] I’m explaining to you” was a good

faith attempt to provide a straightforward answer. 737

So. 2d 520; State v. Glatzmayer, 789 So. 2d 297, 305

(Fla. 2001) (Officer’s response to Defendant’s question

of whether “they thought he should get a lawyer?” that

it was his choice constituted a good-faith effort to give

a simple and straightforward answer). Further, after

the Defendant waived his Miranda rights, Detective

Martin had no duty to clarify equivocal or ambiguous

requests to terminate the interrogation. Ferguson v.

State, 200 So. 3d 106, 108 (Fla. 5th DCA 2015), reh’g

denied (Feb. 17, 2016), review denied, SC16-JR7, 2016

WL 4247583 (Fla. Aug. 11, 2016) (if a suspect makes an

equivocal or ambiguous request for counsel, police

officers are not required to stop the interrogation or ask

clarifying questions); Miles v. State, 60 So. 3d 447 (Fla.

1st DCA 2011). The Court finds that Defendant’s

statement of “I don’t have an attorney here . . . in

Florida” was also not an unequivocal request for

counsel nor should it have alerted Detective Martin to

the fact that Defendant had an out of state attorney.

See generally Alvarez v. State, 890 So. 2d 389, 391 (Fla.

1st DCA 2004) (Defendant’s statement to police that a

third party (who later turned out to be his attorney)

instructed him not to talk was not an unequivocal,

unambiguous invocation of his right to remain silent or

his right to counsel). The Court also finds no indication

that Defendant was “steamrolled” by Detective Martin.

Accordingly, counsels’ decision not to seek suppression

of Defendant’s statement to Detective Martin was not

deficient. The fact that counsel filed a Motion to

Suppress Defendant’s Statements made to the South

Carolina detective supports the finding that counsel

would have filed a similar motion regarding the St.

Johns County interview had there been a basis for

doing so. The Court finds that counsels’ testimony

supports the finding that declining to file the motion

was sound trial strategy. Additionally, Defendant has

not established prejudice. Therefore, ground three will

be denied.

Resp. Ex. N at 9-12. Petitioner appealed the trial court’s denial, briefing this

issue in his appellate brief. Resp. Ex. P. The First DCA per curiam affirmed the

denial without a written opinion. Resp. Ex. S.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court finds that the state court’s

decision to deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Ground Three is denied.

C. Grounds Four and Five

In Ground Four, Petitioner asserts that trial counsel was ineffective for

failing to object to the state’s “First Williams Rule Notice” because the alleged

similar fact evidence – sexual relations with the victim that occurred in South

Carolina – was not sufficiently similar to the charged offenses because the age

of consent in South Carolina at the time of the alleged act was 14. Doc. 4 at 17-

6. And in Ground Five, Petitioner contends that the cumulative effect of trial

counsel’s errors denied Petitioner his Sixth Amendment right to counsel and

resulted in his involuntary plea. Id. at 14.

Petitioner raised these claims in grounds four and six of his Rule 3.850

motion, respectively. Resp. Ex. K at 11-12, 15. Following an evidentiary hearing

on the Rule 3.850 motion, the trial court denied the claims on the merits. Resp.

Ex. N at 12-15, 17. Petitioner appealed the trial court’s order, but his brief filed

on appeal contained no arguments regarding the trial court’s denial of these two

claims. Resp. Ex. P. As such, Respondents argue that Grounds Four and Five of

the Amended Petition are unexhausted and procedurally defaulted. Supp. Resp.

at 9-10.

Florida Rule of Appellate Procedure 9.141 requires a petitioner to file an

appellate brief if he received an evidentiary hearing on one or more claims. Fla.

R. App. P. 9.141(b)(3)(C) (requiring the filing of an initial brief after the grant

or denial of a Rule 3.850 motion if an evidentiary hearing was held on one or

more claims). If a specific issue is not included in the required appellate brief,

that issue is considered abandoned on appeal. Atwater v. Crosby, 451 F.3d 799,

809-10 (11th Cir. 2006) (“Pursuant to state procedural rules, abandonment of

an issue results from submission of a brief without argument thereon in an

appeal of an order denying relief after an evidentiary hearing.” (citing Shere v.

State, 742 So. 2d 215, 217 n.6 (Fla. 1999)); see also Cortes v. Gladish, 216 F.

App’x. 897, 899-900 (11th Cir. 2007) (recognizing that if the petitioner “received

an evidentiary hearing, his failure to address issues in his appellate brief would

constitute a waiver”).

Here, Petitioner received an evidentiary hearing on his Rule 3.850

motion. Resp. Ex. M. As such, Petitioner needed to file an appellate brief

addressing each claim he wanted the appellate court to review when appealing

the trial court’s order denying his Rule 3.850 motion. Although he filed a

counseled appellate brief, he did not brief the claims raised at bar, electing to

brief only the issues raised in Grounds One, Two, and Three above. Petitioner’s

failure to fully brief and argue points on appeal constituted a waiver of the

allegations in Grounds Four and Five of the Amended Petition. Thus, they are

not exhausted and are now procedurally defaulted.

In his Supplemental Reply, Petitioner does not address Respondents’

exhaustion argument and simply declines to make any reference to his

allegations in Grounds Four and Five. See generally Doc. 17. He does not argue

cause for and prejudice from the procedural defaults, nor does he assert that a

fundamental miscarriage of justice will result if these claims are not addressed

on the merits.8 Id. As such, because these claims are unexhausted, Ground Four

and Ground Five are denied.

8 In his Amended Petition, Petitioner cites Martinez, 566 U.S. at 1, when

answering the form question, “If you did not exhaust your state remedies on Grounds

One through Five explain why.” Doc. 4 at 8. However, he does not provide argument

or facts to support that lone cite, nor does he connect the cite to a specific claim for

relief. Id. Thus, the Court declines to conduct a Martinez analysis here.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 4) is DENIED and this case is

DISMISSED with prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of

appealability 1s 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.?

DONE AND ORDERED at Jacksonville, Florida, this 20th day of

January, 2022.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

9 The Court should issue a certificate of appealability only if Petitioner makes

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

To make this substantial showing, Petitioner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable

or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

25

Jax-7

C: Raymond Delgado, #V40250

counsel of record