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

> District Court, M.D. Florida · January 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10109237

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109237

## How later opinions describe it (automated extraction)

- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”
- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109237. Public record. Not legal advice.