Gonzalez-Betancourt v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JORGE MARC GONZALEZ-BETANCOURT

Petitioner,

v. Case No. 8:18-cv-2916-WFJ-SPF

SECRETARY, Department of Corrections,

Respondent.

______________________________________/

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Jorge Marc Gonzalez-Betancourt petitions for the writ of habeas corpus under

28 U.S.C. § 2254 (Doc. 7) and challenges the validity of his state convictions for

trafficking in oxycodone (16 counts), conspiracy to traffic in oxycodone (10 counts),

actual or constructive possession of a place or structure with knowledge that it would

be used for trafficking in illegal drugs (1 count), and participation in an enterprise

through a pattern of racketeering activity (1 count), for which convictions Mr.

Betancourt serves thirty years’ imprisonment. The Respondent admits the petition’s

timeliness. (Doc. 14).

Background and Procedural History1

Mr. Betancourt and his wife formed 1st Medical Group, a pain management

clinic. Mr. Betancourt and two co-defendants, including his wife, Michelle

Gonzalez, were eventually charged with eighty-six offenses relating to the

distribution of oxycodone at the clinic.2 A jury convicted Mr. Betancourt of thirty

one charges.3 After considering Mr. Betancourt’s post-trial motion for judgment of

acquittal, new trial, and arrest of judgment, the trial court vacated two of the

convictions and arrested judgment on one count. (Doc. 11-10, vol. 22 at 4244–

4254). Mr. Betancourt stands convicted of the twenty-eight remaining charges and

serves thirty years’ imprisonment. The state appellate court affirmed Mr.

Betancourt’s convictions and sentences on direct appeal in a per curiam decision

without elaboration. (Doc. 11-29, Ex. 16).

1 This factual summary derives from Mr. Betancourt’s brief on direct appeal and the record.

(Docs. 11-2 through 11-29). For citations to Exhibit 1 of docket entry 11, this Order refers to the

page numbers stamped in the lower right-hand corner of each page in volumes 1–117.

2 Before the criminal charges were filed, Mr. Betancourt was the subject of a civil forfeiture

complaint brought under the Florida Contraband Forfeiture Act. Property and currency related to

the clinic were seized. Following an adversarial probable cause hearing, the state court found no

probable cause to support the seizure. See In re Forfeiture of: $221, 898 in U.S. Currency, 106

So. 3d 47 (2013).

3 The trial court entered a judgment of acquittal on fifty-five of the eighty-six charges.

(Doc. 11-5 at 1877–1878).

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs Mr. Betancourt’s petition. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209,

1210 (11th Cir. 1998). Section 2254(d), which creates a highly deferential standard

for federal court review of a state court adjudication, states in pertinent part:

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

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim —

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

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power

of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under §

2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied — the state-court adjudication

resulted in a decision that (1) “was contrary to . . . clearly

established Federal Law, as determined by the Supreme

Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case

differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal

principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

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

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011); see White v. Woodall, 572 U.S. 415, 427 (2014) (“The

critical point is that relief is available under § 2254(d)(1)’s unreasonable-application

clause if, and only if, it is so obvious that a clearly established rule applies to a given

set of facts that there could be no ‘fairminded disagreement’ on the question . . . .”)

(quoting Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an

‘unreasonable application of’ those holdings must be objectively unreasonable, not

merely wrong; even clear error will not suffice.”) (quoting Woodall, 572 U.S. at

419); accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the

objective reasonableness, not the correctness per se, of the state court decision that

we are to decide.”). The phrase “clearly established Federal law” encompasses only

the holdings of the United States Supreme Court “as of the time of the relevant state-

court decision.” Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

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

are given effect to the extent possible under law.” Bell, 535 U.S. at 694. A federal

court must afford due deference to a state court’s decision. “AEDPA prevents

defendants—and federal courts—from using federal habeas corpus review as a

vehicle to second guess the reasonable decisions of state courts.” Renico v. Lett, 559

U.S. 766, 779 (2010); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This

is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating state court

rulings, which demands that state court decisions be given the benefit of the doubt’

. . . .”) (citations omitted). When the last state court to decide a federal claim explains

its decision in a reasoned opinion, a federal habeas court reviews the specific reasons

as stated in the opinion and defers to those reasons if they are reasonable. Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018) (“[A] federal habeas court simply reviews the

specific reasons given by the state court and defers to those reasons if they are

reasonable.”). When the relevant state-court decision is not accompanied with

reasons for the decision, the federal court “should ‘look through’ the unexplained

decision to the last related state court decision that does provide a relevant rationale

[and] presume that the unexplained decision adopted the same reasoning.” Id.

“[T]he 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 . . . .” Id.

As Pinholster explains, review of the state court decision is limited to the

record that was before the state court:

We now hold that review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated

the claim on the merits. Section 2254(d)(1) refers, in the

past tense, to a state court adjudication that “resulted in” a

decision that was contrary to, or “involved” an

unreasonable application of, established law. This

backward looking language requires an examination of the

state court decision at the time it was made. It follows that

the record under review is limited to the record in

existence at that same time, i.e., the record before the state

court.

563 U.S. at 181–82. Mr. Betancourt bears the burden of overcoming by clear and

convincing evidence a state court factual determination. “[A] determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness

applies to a finding of fact but not to a mixed determination of law and fact. Parker

v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The

state court’s rejection of Mr. Betancourt’s post-conviction claims warrants deference

in this case.

Ground One

Mr. Betancourt contends that the State presented insufficient evidence that he

“had a conscious intent that the crime of trafficking in illegal drugs be committed

[and] did something through word or act which caused or incited the offense to be

committed.” (Doc. 7 at 5). He argues that no witness testified that he “aided or

abetted any unlawful activity” and that the “record is devoid of evidence that [he]

had any agreement with any member of any of the charged conspiracy groups.” (Id.).

Mr. Betancourt alleges that “[i]n the absence of any evidence of [his] criminal

liability as a principal or as a co-conspirator, there is no evidentiary underpinning to

support criminal liability for the ‘drug house’ count or the RICO count, and no

reasonable juror could return a verdict of guilty beyond a reasonable doubt.” (Id.).

The Respondent opposes this ground as unexhausted because Mr. Betancourt

neither preserved a federal constitutional claim at trial nor presented a federal

constitutional claim to the state court on direct appeal. (Doc. 11 at 7). Mr.

Betancourt replies that “[e]ven if [he] did not specifically argue to the state courts

that his convictions violated her [sic] federally guaranteed right to due process of

law, he exhausted that claim because his ‘primary contention in the state court

proceedings was that [his] conviction[s] w[ere] based on insufficient evidence.”

(Doc. 15 at 15). He further alleges that “the assertion of the fact that there . . . was

no evidence at all presented against [him] evokes the constitutionally protected right

articulated by Jackson [v. Virginia, 443 U.S. 307 (1979)].” (Id. at 16).

Mr. Betancourt asserts in his memorandum that he exhausted his insufficiency

of the evidence claim by raising it in the state courts in his Motion for Judgment of

Acquittal (Doc. 11-10, Ex. 1, vol. 21 at 4105–4131), his Motion for New Trial,

Judgment of Acquittal and in Arrest of Judgment (Doc. 11-10, Ex. 1, vol. 21 at

4142–4150), his Supplement to Motion for New Trial, Judgment of Acquittal, and

in Arrest of Judgment (Doc. 11-10, Ex. 1, vol. 21 at 4157–4229), and his direct

appeal brief (Doc. 11-29, Ex. 8 at 91–98). The Respondent argues that this ground

is unexhausted because Mr. Betancourt did not present a federal sufficiency of the

evidence claim in the state court.

Before a federal court can grant habeas relief, a petitioner must exhaust every

available state court remedy for challenging his conviction, either on direct appeal

or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1)(A), (C). “[T]he state

prisoner must give the state courts an opportunity to act on his claims before he

presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel,

526 U.S. 838, 842 (1999); see also Henderson v. Brewster, 353 F.3d 880, 891 (11th

Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a federal

constitutional claim in federal court unless he first properly raised the issue in the

state courts.”) (citations omitted). To exhaust a claim, a petitioner must present the

state court with both the particular legal basis for relief and the facts supporting the

claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion

of state remedies requires that the state prisoner ‘fairly presen[t] federal claims to

the state courts in order to give the State the opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513

U.S. 364, 365 (1995)). As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, a

petitioner must alert the state court that he is raising a federal claim and not just a

state law claim:

A litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a state-court

petition or brief, for example, by citing in conjunction with

the claim the federal source of law on which he relies or a

case deciding such a claim on federal grounds, or by

simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support the

federal claim were before the state courts, or that a somewhat similar state-law claim

was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982).

“If the petitioner has failed to exhaust state remedies that are no longer

available, that failure is a procedural default which will bar federal habeas relief,

unless either the cause and prejudice or the fundamental miscarriage of justice

exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To

establish cause for a procedural default, a petitioner “must demonstrate that some

objective factor external to the defense impeded the effort to raise the claim properly

in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show

prejudice, a petitioner must demonstrate not only that an error at the trial created the

possibility of prejudice, but that the error worked to his actual and substantial

disadvantage and infected the entire trial with “error of constitutional dimensions.”

United States v. Frady, 456 U.S. 152, 170 (1982). In other words, a petitioner must

show at least a reasonable probability of a different outcome. Henderson, 353 F.3d

at 892.

Absent a showing of cause and prejudice, a petitioner may obtain federal

habeas review of a procedurally defaulted claim only if review is necessary to correct

a “fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451

(2000); Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage

of justice occurs if a constitutional violation has probably resulted in the conviction

of someone who is “actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995);

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet the

“fundamental miscarriage of justice” exception, a petitioner must show

constitutional error coupled with “new reliable evidence—whether . . . exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—

that was not presented at trial.” Schlup, 513 U.S. at 324.

A review of the record shows that although Mr. Betancourt raised this ground

in the state courts, he argued only a violation of state law and did not assert a federal

constitutional violation. He did not cite a federal constitutional amendment or

federal constitutional law nor did he label the ground “federal.” Consequently, Mr.

Betancourt did not “fairly present” a federal constitutional violation to the state

court. See Baldwin, 541 U.S. at 27; Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342,

1352 (11th Cir. 2012) (“In other words, ‘to exhaust state remedies fully the petitioner

must make the state court aware that the claims asserted present federal

constitutional issues.’”) (quoting Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337,

1342 (11th Cir. 2007)); Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 458

(11th Cir. 2015) (finding that Baldwin and Lucas “stand for the proposition that a

petitioner with a claim that could arise under either state or federal law must clearly

indicate to the state courts that he intends to bring a federal claim”).

Mr. Betancourt’s failure to present his federal insufficiency of the evidence

claim to the state court deprived the state court of a “full and fair opportunity to

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

established appellate review process.” Boerckel, 526 U.S. at 845. See also Preston,

785 F.3d at 460 (noting that “simply mentioning a phrase common to both state and

federal law . . . cannot constitute fairly presenting a federal claim to the state courts”).

Consequently, Ground One is unexhausted. State procedural rules preclude Mr.

Betancourt from returning to state court to present his federal claim in either a second

direct appeal or other collateral motion for post-conviction relief. Mr. Betancourt’s

failure to properly exhaust his federal claim in the state court results in a procedural

default.

Mr. Betancourt fails to demonstrate cause for the default of his federal claim

because he fails to show that some “external factor” prevented him from raising the

claim in state court. Wright, 169 F.3d at 703. He cannot meet the “fundamental

miscarriage of justice” exception because he presents no “new reliable evidence”

that he is actually innocent. Schlup, 513 U.S. at 327. Because Mr. Betancourt

satisfies neither exception to procedural default, Ground One is procedurally barred

from federal review.

Ground Two

Mr. Betancourt contends that the doctrine of collateral estoppel should have

barred his prosecution for criminal charges. Mr. Betancourt alleges (Doc. 7 at 7):

On July 26, 2010, before Petitioner was charged with a

crime, the City of Tampa brought a civil forfeiture action

against Petitioner and codefendants under Florida’s

Contraband Forfeiture Act. An adversarial probable cause

hearing was held on August 27, 2010. At the hearing, the

City of Tampa argued that currency which it seized was

used to commit, or it was proceeds of, the identical crimes

that were the subject of the criminal case against the

Petitioner, and the factual evidence presented was

identical to the evidence presented by the State in the

criminal case against Petitioner. The trial judge found that

there was no probable cause that any crime was

committed. The binding judgment entered by the trial

court in the forfeiture action was affirmed on appeal, thus

resolving all ultimate facts in favor of Petitioner under a

very low “probable cause” standard.

Citing Ashe v. Swenson, 397 U.S. 436 (1970), Mr. Betancourt argues in his

memorandum that “[c]ollateral estoppel is a federal constitutional principle

embodied in the double jeopardy clause of the Fifth Amendment to bar relitigation

between the same parties in a future lawsuit when an issue of ultimate fact has been

determined by a valid and final judgment.” (Doc. 7-1 at 12).

Mr. Betancourt alleges that he exhausted this ground in the state court by (1)

adopting his co-defendant’s pretrial “Motion to Collaterally Estop State from

Presenting Facts Contrary to the Facts Determined by Prior Final Judgment and

which are Essential Elements of Any Crime Presently Charged (Doc. 11-10, Ex. 1,

vol. 20 at 3875), (2) moving to adopt his co-defendant’s direct appeal brief,

(Doc. 11-29, Ex. 13), and (3) presenting the ground to the United States Supreme

Court in a petition for writ of certiorari (Doc. 7-3). The Respondent argues that Mr.

Betancourt did not exhaust this ground as a federal claim and that he did not litigate

this ground on direct appeal because the ground was raised only in the

co-defendant’s brief. (Doc. 11 at 12).

The record shows that the state appellate court denied Mr. Betancourt’s

motion to adopt his co-defendant’s appellate brief. (Doc. 11-29, Ex. 15). He did not

raise this ground in his own direct appeal brief. Mr. Betancourt’s presentation of

this ground to the United States Supreme Court in his petition for writ of certiorari

does not satisfy 28 U.S.C. §2254 (b)(1)(A), which requires a petitioner to exhaust

the remedies available in the state courts. See, e.g., White v. Klitzkie, 281 F.3d 920,

924 (9th Cir. 2002) (noting that “[a] petition for a writ of certiorari to the United

States Supreme Court is simply not an application for state review”). Consequently,

because Mr. Betancourt did not present his federal claim to the state court, Ground

Two is unexhausted. State procedural rules preclude Mr. Betancourt from returning

to state court to present his federal claim in either a second direct appeal or other

collateral motion for post-conviction relief. Mr. Betancourt’s failure to properly

exhaust his federal claim in the state court results in a procedural default.

In his reply Mr. Betancourt does not challenge the Respondent’s assertion of

procedural default. Moreover, Mr. Betancourt fails to satisfy the cause and prejudice

exception to overcome the default. He cannot meet the “fundamental miscarriage of

justice” exception because he presents no “new reliable evidence” that he is actually

innocent. Schlup, 513 U.S. at 327. Because Mr. Betancourt satisfies neither

exception to procedural default, Ground Two is procedurally barred from federal

review.

Ground Three

Mr. Betancourt contends that the trial judge improperly excluded statements

from Dr. Kimberly Daffern and Dr. Marina Kulick, two of the doctors employed by

1st Medical Group, who both gave sworn statements to the State before the criminal

trial. Mr. Betancourt alleges that both doctors “detailed the methodologies by which

they diagnosed and treated 1st Medical patients, which established their exercise of

independent judgment, and that their medical decisions were entirely uninfluenced

by Petitioner.” (Doc. 7 at 8). Mr. Betancourt argues that the trial judge’s alleged

error violated his “due process right to a fair trial.” (Id.).

Mr. Betancourt asserts that he exhausted this ground in the state court by

moving to adopt the appellate brief of co-defendant Michelle Gonzalez “which

expressly raised the issue of the unconstitutional exclusion of exculpatory evidence.”

(Doc. 7-1 at 19). The Respondent argues that this ground is unexhausted and

procedurally barred because Mr. Betancourt did not raise this ground as a federal

issue at trial and did not litigate this ground on direct appeal. (Doc. 11 at 18).

Mr. Betancourt failed to present this ground to the state court in his direct

appeal brief and his attempt to adopt the co-defendant’s appellate brief was

unsuccessful. Consequently, he did not exhaust his federal claim in the state courts

and cannot return to state court to present his federal claim in either a second direct

appeal or other collateral motion for post-conviction relief. Mr. Betancourt’s failure

to properly exhaust his federal claim in the state court results in a procedural default.

In his reply Mr. Betancourt does not challenge the Respondent’s assertion of

procedural default. Mr. Betancourt fails to satisfy the cause and prejudice exception

to overcome the default and cannot meet the “fundamental miscarriage of justice”

exception because he presents no “new reliable evidence” that he is actually

innocent. Schlup, 513 U.S. at 327. Because Mr. Betancourt satisfies neither

exception to procedural default, Ground Three is procedurally barred from federal

review.

Ground Four

Mr. Betancourt contends that the trial judge violated his Sixth Amendment

right to confront adverse witnesses by denying his motion to strike hearsay

statements of the co-conspirators. Mr. Betancourt argues in his memorandum that

the trial judge “improperly admitted co-conspirator statements time and again . . . in

reliance on the hearsay exception set forth at Florida Statute §90.803(18)(e)” and

that “[t]hese evidentiary rulings of the trial court are not only unsupportable under

Florida Statute; they also violate [Mr. Betancourt]’s Sixth Amendment right to

confront adverse witnesses and are contrary to the Supreme Court’s decision in

Crawford v. Washington, [541 U.S. 36, (2004)].” (Doc. 7-1 at 20).

Mr. Betancourt alleges that he exhausted this ground by “carr[ying] his

numerous trial objections through one round of direct appeal.” (Doc. 7-1 at 21). The

Respondent argues that this ground was not exhausted as a federal question because,

although Mr. Betancourt challenged the admissibility of the co-conspirator’s

statements in his direct appeal, “[n]either Crawford nor any federal case is ever cited

in relation to confrontation issues.” (Doc. 11 at 22). In his reply Mr. Betancourt

does not challenge the Respondent’s assertion of procedural default.

The record shows that although Mr. Betancourt challenged on direct appeal

the trial judge’s allegedly erroneous admission of hearsay statements, he argued only

a violation of state law and did not assert a federal constitutional violation.

(Doc. 11-29, Ex. 8 at 79–91). He neither alleged a federal constitutional claim, nor

cited Crawford or Hutchins or a federal constitutional amendment, nor did he label

the claim “federal.” Consequently, Mr. Betancourt did not “fairly present” to the

state court a Sixth Amendment Confrontation Clause claim. See Baldwin, 541 U.S.

at 27; Lucas, 682 F.3d at 1352; Preston, 785 F.3d at 458.

Mr. Betancourt’s failure to present his federal Confrontation Clause claim to

the state court deprived the state court of a “full and fair opportunity to resolve any

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

appellate review process.” Boerckel, 526 U.S. at 845. Consequently, Ground Four

is unexhausted and procedurally defaulted because state procedural rules preclude

Mr. Betancourt from returning to state court to present his federal claim in either a

second direct appeal or other collateral motion for post-conviction relief.

Mr. Betancourt fails to satisfy the cause and prejudice exception to overcome

the default and cannot meet the “fundamental miscarriage of justice” exception

because he presents no “new reliable evidence” that he is actually innocent. Schlup,

513 U.S. at 327. Because Mr. Betancourt satisfies neither exception to procedural

default, Ground Four is procedurally barred from federal review.

Ground Five

Mr. Betancourt contends that “[t]he trial court improperly admitted evidence

of collateral crimes, bad acts, and guilt-by-association evidence, in violation of [his]

constitutional right to a fair trial and right to a presumption of innocence.” (Doc. 7

at 12). He argues that the State presented multiple witnesses who did not know him

or have knowledge of the crimes charged “to create a cumulative effect which

bolstered the misimpression that every pain center should be presumed to traffic

unlawfully in oxycodone and that every person associated with a pain center is

engaging in criminal conduct.” (Id.). Mr. Betancourt further alleges that “[t]he trial

court abandoned its gatekeeping function with regard to the admissibility of expert

testimony from persons who could not reasonably be regarded to satisfy the Daubert

standard which is required by Florida law.” (Id.). Mr. Betancourt asserts that “the

trial court allowed cumulative prejudicial testimony from experts who offered no

scientific basis for their opinions” and that the “State’s experts admitted to having

no personal knowledge with respect to any of the allegedly unlawful methodologies

of 1st Medical Group.” (Id.). In his supporting memorandum Mr. Betancourt asserts

as the constitutional bases for this ground the following cases: United States v.

Gonzalez-Lopez, 548 U.S. 140 (2006); Taylor v. Kentucky, 436 U.S. 478 (1978);

Chambers v. Mississippi, 410 U.S. 284 (1973); and Kyles v. Whitley, 514 U.S. 419

(1995). (Doc. 7-1 at 22).

Mr. Betancourt alleges that he exhausted this ground by presenting it to the

state court in his direct appeal brief. The Respondent argues that a claim of

cumulative error is unexhausted and procedurally barred because Mr. Betancourt did

not raise such a claim in his direct appeal. (Doc. 11 at 25). In his reply Mr.

Betancourt does not challenge the Respondent’s assertion of procedural default.

The record shows that in his direct appeal brief Mr. Betancourt challenged the

trial judge’s admission of testimony by expert witnesses under state law.

(Doc. 11-29, Ex. 8 at 70–79). He did not present a federal constitutional challenge

to the admission of the testimony nor did he raise a cumulative error claim in the

state court, nor did he cite as a basis for relief any of the federal cases he now cites

in his federal petition. Consequently, Mr. Betancourt did not “fairly present” a

federal constitutional violation to the state court, rendering his cumulative error

claim unexhausted. See Baldwin, 541 U.S. at 27; Lucas, 682 F.3d at 1352. The

failure to properly exhaust the federal claim in the state court results in a procedural

default. Mr. Betancourt fails to satisfy the cause and prejudice exception to

overcome the default to demonstrate cause and prejudice to overcome the default

and cannot meet the “fundamental miscarriage of justice” exception because he

presents no “new reliable evidence” that he is actually innocent. Schlup, 513 U.S.

at 327. Because Mr. Betancourt satisfies neither exception to procedural default,

Ground Five is procedurally barred from federal review.

Ground Six

Mr. Betancourt contends that he “is actually innocent of all charges” and that

“a review on the merits is necessary to prevent a fundamental miscarriage of justice.”

(Doc. 7 at 13). Citing McQuiggin v. Perkins, 569 U.S. 383 (2013), Mr. Betancourt

argues in his memorandum that his is an “extraordinary case” in which he is entitled

to a merits review of his procedurally defaulted grounds because “[n]ot only was the

evidence grossly insufficient to prove guilt beyond a reasonable doubt for any charge

for which [he] was convicted, the evidence actually proved his innocence.” (Doc. 15

at 18). The Respondent argues that Mr. Betancourt “appears to be asserting a

technical or legal innocence, not actual innocence” and that “by simply re-hashing

all his other claims, Petitioner fails to specifically cite or set forth any new, reliable

evidence demonstrating his actual innocence.” (Doc. 11 at 26–27). The Respondent

further argues that this “conclusory claim amounts to another cumulative error

claim.” (Id. at 27).

A “fundamental miscarriage of justice” occurs in an extraordinary case, where

a constitutional violation has resulted in the conviction of someone who is “actually

innocent.” See Henderson, 353 F.3d at 892. Actual innocence is not an independent

claim; rather, it is the “gateway” through which a petitioner must pass before a court

may consider a defaulted constitutional claim. Schlup, 513 U.S. at 315. If a

petitioner cannot show cause and actual prejudice to overcome the procedural

default of a federal claim, he may still be able to circumvent the default if he can

demonstrate that the failure to consider the merits of the claim would work a

fundamental miscarriage of justice, resulting in the continued incarceration of one

who is actually innocent. See McQuiggin, 569 U.S. at 387; Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). To qualify under this exception, a petitioner must show

that, in light of new evidence, no reasonable juror would have convicted him. See

McQuiggin, 569 U.S. at 385 (quoting Schlup, 513 U.S. at 327). “Without any new

evidence of innocence, even the existence of a concededly meritorious constitutional

violation” will not allow a federal court to review the procedurally defaulted claim

under the fundamental miscarriage of justice exception. Schlup, 513 U.S. at 316.

This exception requires a petitioner to demonstrate actual innocence, not just legal

innocence. See Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1013 (11th

Cir. 2012) (per curiam).

Mr. Betancourt has not offered any new, reliable evidence showing his actual

innocence and the trial record shows otherwise. Accordingly, he has not established

that the fundamental miscarriage of justice exception applies to excuse the default

of the federal claims raised in Grounds One through Five of his federal petition.

Because Mr. Betancourt has not shown that the procedural default should be

excused, each ground in his federal petition is barred from federal habeas review.

Accordingly, Mr. Betancourt’s amended petition for the writ of habeas corpus

(Doc. 7) is DENIED. The Clerk must enter a judgment against Mr. Betancourt and

CLOSE this case.

DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Mr. Betancourt is not entitled to a certificate of appealability (“COA”). Under

Section 2253(c)(1), a prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. Rather, a district court

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” To

merit a COA, Mr. Betancourt must show that reasonable jurists would find debatable

both the merits of the underlying claims and the procedural issues he seeks to raise.

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.

Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that

reasonable jurists would debate either the merits of the claims or the procedural

issues, Mr. Betancourt is entitled to neither a COA nor leave to appeal in forma

pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis

is DENIED. Mr. Betancourt must obtain permission from the circuit court to appeal

in forma pauperis.

DONE and ORDERED at Tampa, Florida, on March 31, 2022.

WILLIAM F. a2

UNITED STATES DISTRICT JUDGE

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