Otero v. Secretary, Department of Corrections (Sarasota County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHANE OTERO,

Applicant,

v. CASE NO. 8:19-cv-39-SDM-AEP

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Otero applies (Doc. 1) under 28 U.S.C. § 2254 for the writ of habeas corpus

and challenges his convictions for sexual battery on a child under twelve, lewd and

lascivious molestation of a child under twelve, and attempted lewd and lascivious

molestation of a child under twelve, for which Otero is imprisoned for life.

Numerous exhibits (“Respondent’s Exhibit”) support the response. (Doc. 9) The

respondent correctly argues that one ground is procedurally barred from federal

review but concedes that the application is timely. (Response at 2, Doc. 9)

I. BACKGROUND1

Otero’s five year old daughter and her friend were in Otero’s custody when his

daughter’s mother was called into work. Upon the mother’s return that evening, the

1 This summary of the facts derives from Otero’s brief on direct appeal. (Respondent’s

Exhibit 8) and the state court’s findings of fact in the post-conviction court’s order. (Respondent’s

Exhibits 31)

girls told her that Otero played a game with the girls during which the girls would

have to touch his “privates” to receive a lollipop. Otero’s daughter played the game

because she wanted a lollipop but her friend (who was under five) was unwilling to

touch Otero. Also, Otero’s daughter testified that he touched her “private area” with

his “private area” when they were both naked and that this had happened before.

A physician’s assistant testified that after examining the daughter he could not

determine whether the girl was or was not sexually abused. The friend’s pediatrician

testified (1) that she examined the little girl and found no evidence of sexual abuse

and (2) that the absence of physical evidence of sexual abuse was not inconsistent

with what the girl said about her interaction with Otero.2

Both girls were interviewed by Child Protection Services and the interviews

were videotaped. The recordings were entered into evidence and played for the

jurors, who were allowed to re-play the recordings in the jury room during

deliberations.3

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that ground one is procedurally barred from federal

review because Otero failed to fully exhaust his available state court remedies. An

applicant must present each claim to a state court before presenting the claim to a

2 The two medical experts’ testimony about what the girls said is the basis for the claim of

ineffective assistance of counsel alleged in ground one.

3 This re-playing of the recordings in the jury room is the basis for the claim of ineffective

assistance of counsel alleged in ground two.

federal court. “[E]xhaustion of state remedies requires that petitioners ‘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.” Duncan v.

Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).

Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total

exhaustion rule will encourage state prisoners to seek full relief first from the state

courts, thus giving those courts the first opportunity to review all claims of

constitutional error.”). “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.” Baldwin v. Reese, 541 U.S. 27, 32 (2004) (citing

Duncan).

Ground One:

Otero alleges that trial counsel rendered ineffective assistance by neither

objecting to the testimony of the two medical experts nor moving for a mistrial

because the experts’ testimony “bolstered” the victims’ credibility and the case

“turned on a credibility contest between [Otero] and the alleged victims.” (Doc. 1

at 7) Otero failed to allege this claim in his initial motion under Rule 3.850, Florida

Rules of Criminal Procedure, for post-conviction relief (Respondent’s Exhibit 12),

but he attempted to include this claim more than three years later in a motion for

leave to amend when the case was on remand.4 (Respondent’s Exhibit 29) The post-

conviction court declined to review the new claim because Otero failed to timely

assert the claim within Florida’s two-year limitation. (Respondent’s Exhibit 30)

Otero’s failure to timely present the claim in state court causes a procedural

default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)

(“Boerckel’s failure to present three of his federal habeas claims to the Illinois

Supreme Court in a timely fashion has resulted in a procedural default of those

claims.”). As a consequence, ground one is barred from federal review absent a

showing of actual “cause and prejudice” or “manifest injustice.” See generally

Coleman v. Thompson, 501 U.S. 722, 748–51 (1991); Murray v. Carrier, 477 U.S. 478,

496 (1986).

Otero attempts to show neither “cause and prejudice” nor “manifest

injustice.” Instead, in his reply (Doc. 11 at 2) Otero argues that review is permitted

under Martinez v. Ryan, 566 U.S. 1, 9 (2012), which holds that “inadequate assistance

of counsel at initial-review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at trial.” Martinez creates a

narrow equitable exception to Coleman v. Thompson, 501 U.S. at 753–754 (holding

that an attorney’s errors in a post-conviction proceeding do not qualify as cause for a

default). Otero misunderstands the narrowness of the equitable exception

4 Otero alleges only two grounds of ineffective assistance of counsel in his federal

application. The claim in ground one is, as discussed next, procedurally barred and the claim in

ground two was the basis for the remand.

established in Martinez. Because the state court rejected Otero’s claim as untimely,

Martinez is inapplicable. See, e.g., Chavez v. Sec’y, Dep’t of Corr., 742 F.3d 940, 945–46

(11th Cir. 2014) (recognizing that Martinez is inapplicable to time-barred claims).

Therefore, ground one is procedurally barred from federal review and not entitled to

a determination on the merits.5 The remainder of the application is entitled to a

review.

III. STANDARD OF REVIEW

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

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th

Cir. 1998), cert. denied, 531 U.S. 840 (2000). 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

5 Moreover, ground one fails to assert a “substantial” claim of ineffective assistance of trial

counsel because the medical experts’ testimony was permitted under state law and neither witness

“bolstered” the girls’ testimony by stating that they believed that the girls were truthful –– the

medical experts testified to what the girls told them as a basis for deciding what medical examination

to perform.

of the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains 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 . . . .”) (citing

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.”) (citing 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 v.

Taylor, 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 v. Cone, 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 issues a reasoned and

explanatory 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.” Wilson, 138 S. Ct. at 1192.

The State may contest “the presumption by showing that the unexplained affirmance

relied or most likely did rely on different grounds than the lower state court’s

decision . . . .” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion the state appellate court on

direct appeal affirmed Otero’s convictions and sentence. (Respondent’s Exhibit 10)

Similarly, in another per curiam decision without a written opinion the state appellate

court affirmed the denial of Otero’s Rule 3.850 motion for post-conviction relief.

(Respondent’s Exhibit 34) The state appellate court’s per curiam affirmances warrant

deference under Section 2254(d)(1) because “the summary nature of a state court’s

decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,

1254, reh’g and reh’g en banc denied, 278 F.3d 1245 (11th Cir. 2002), cert. denied sub nom

Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 100 (“When a

federal claim has been presented to a state court and the state court has denied relief,

it may be presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the contrary.”), and

Bishop v. Warden, 726 F. 3d 1243, 1255–56 (11th Cir. 2013) (describing the difference

between an “opinion” or “analysis” and a “decision” or “ruling” and explaining that

deference is accorded the state court’s “decision” or “ruling” even absent an

“opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the state court record:

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.

Otero bears the burden of overcoming by clear and convincing evidence a state

court’s fact 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 post-conviction court’s

rejection of Otero’s claims warrants deference in this federal action. (Order Denying

Motion for Post-Conviction Relief, Respondent’s Exhibit 31) Otero’s federal

application presents the same ground of ineffective assistance of counsel that he

presented to the state courts.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Otero claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386

(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an

ineffective assistance of counsel claim, as Sims v. Singletary, 155 F.3d 1297, 1305

(11th Cir. 1998), explains:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient

performance prejudiced the defense. This

requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

An applicant must prove both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

466 U.S. at 690. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690.

Otero must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” 466 U.S. at 691. To meet this burden, Otero must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. As Dunn v. Reeves, 141 S. Ct. 2405, 2410 (2021),

explains, deference is to both counsel’s and the state court’s decisions, recognizing

that counsel decides strategic options based on both limited resources and limited

time.

[W]e owe deference to both Reeves’ counsel and the state

court. As to counsel, we have often explained that strategic

decisions — including whether to hire an expert — are entitled

to a “strong presumption” of reasonableness. Harrington v.

Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624

(2011). Defense lawyers have “limited” time and resources, and

so must choose from among “ ‘countless’ ” strategic options.

Id., at 106–107, 131 S. Ct. 770. Such decisions are particularly

difficult because certain tactics carry the risk of “harm[ing] the

defense” by undermining credibility with the jury or distracting

from more important issues. Id., at 108, 131 S. Ct. 770.

And White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992), explains that Otero

cannot meet his burden merely by showing that the avenue chosen by counsel proved

unsuccessful.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the

obvious: the trial lawyers, in every case, could have done something more or

something different. So, omissions are inevitable . . . . [T]he issue is not what is

possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Under Section 2254(d) Otero must prove that the state court’s decision

“(1) [was] contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States or (2) [was]

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 562 U.S. at 105. See also Dunn v. Reeves, 141 S. Ct. at 2410

(“This analysis is ‘doubly deferential’ when, as here, a state court has decided that

counsel performed adequately.”); Pinholster, 563 U.S. 202 (An applicant must

overcome this “‘doubly deferential’ standard of Strickland and the AEDPA.”); Nance

v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (“Given the double

deference due, it is a ‘rare case in which an ineffective assistance of counsel claim

that was denied on the merits in state court is found to merit relief in a federal habeas

proceeding.’”) (quoting Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir.

2011)), cert. denied, 140 S. Ct. 2520 (2020); and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d

1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim — which is governed by the deferential Strickland test — through the lens of

AEDPA deference, the resulting standard of review is “doubly deferential.”), cert.

denied, 571 U.S. 874 (2013). “And in reviewing the work of their peers, federal

judges must begin with the ‘presumption that state courts know and follow the law.’

Or, in more concrete terms, a federal court may grant relief only if every ‘fairminded

juris[t]’ would agree that every reasonable lawyer would have made a different

decision.” Reeves, 141 S. Ct. at 2411 (quoting Woodford v. Visciotti, 537 U.S. 19, 24,

(2002), and Richter, 562 U.S. at 101) (italics and brackets original).

In summarily denying Otero’s motion for post-conviction relief, the state court

recognized that Strickland governs a claim of ineffective assistance of counsel.

(Respondent’s Exhibit 31 at 2) Because the state court rejected the grounds based on

Strickland, Otero cannot meet the “contrary to” test in Section 2254(d)(1). Otero

instead must show that the state court unreasonably applied Strickland or

unreasonably determined the facts. In determining “reasonableness,” the statute

limits federal review to determining only “whether the state habeas court was

objectively reasonable in its Strickland inquiry,” not independently assessing whether

counsel’s actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th

Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of correctness and the

highly deferential standard of review requires that the analysis of each ground begin

with the state court’s analysis.

Ground Two:

Otero alleges that trial counsel was ineffective for not objecting to the trial

court allowing the jury to re-play the recording in the jury room during deliberations.

Initially the post-conviction court summarily denied this claim, but the district court

of appeal reversed and remanded. (Respondent’s Exhibit 25) On remand the

post-conviction court again denied this claim as follows (Respondent’s Exhibit 31

at 2–4) (footnotes omitted):

The Defendant claims he was denied effective assistance of

counsel when defense counsel failed to object, and in fact

agreed, to the jury’s viewing of video recordings of the victims’

Child Protection Team (CPT) interviews in the jury room

during its deliberations.

The Second District Court of Appeal found this Court

incorrectly denied the claim based on its observation that

defense counsel had been granted a standing objection on this

issue. The standing objection, however, related to the jury’s

viewing the videos altogether, not the location of the viewing.

The Second District cited Young v. State, 645 So. 2d 965, 967

(Fla. 1994), which held that such videotaped interviews should

not be allowed into the jury room because of the “real danger

that the child’s statements will be unfairly given more emphasis

than other testimony.” The proper response to a jury’s request

to view a taped interview is to replay it in open court. Id. at 698.

The Second District identified information bearing on the issue

of prejudice, including the content of the recorded interviews,

the content of the victims’ in-court testimony, or the time that

elapsed between the jury’s receipt of the video recordings and

its verdict.

At the Court’s direction, the State filed written argument and

an appendix of supporting record documents in response to

Ground One. The State’s response argues for summary denial

of the claim because (1) the Defendant consented to the jury’s

viewing the videotaped interviews in the jury room; and (2) the

record shows the Defendant was not prejudiced by the manner

in which the jury viewed the videotaped interviews. After

careful review of the record, the Court adopts and incorporates

into this Order the State’s response with regard to prejudice and

finds that the Defendant was not prejudiced in this case by the

manner in which the jury viewed the videotaped CPT

interviews.

The jury in this case heard a read back of each victim’s in-court

testimony immediately after viewing each videotaped interview

in the jury room. This provided the jury an opportunity to make

direct comparisons rather than unfairly emphasizing the

videotaped interviews over other testimony. A comparison of

each victim’s trial testimony to her CPT interview shows they

remained largely consistent in material respects throughout

both statements. The record shows the jury possessed [the

daughter]’s videotaped interview (duration 25 minutes, 25

seconds) a total of 43 minutes. The jury possessed [the friend]’s

videotaped interview (duration 24 minutes, 8 seconds) a total of

71 minutes. After viewing the two videotaped interviews and

immediately afterward hearing the read back of the victims’

trial testimony, the jury deliberated another 50 minutes before

reaching a verdict. Thus, the jury did not possess the

videotaped interviews for an extended period of time that

would have permitted multiple re-plays of the CPT interviews.

On this record, the Court finds that even had the jury viewed

the videotaped interviews in the courtroom, there is no

reasonable likelihood that the result of the trial would have

been different. That is, counsel’s performance did not so affect

“the fairness and reliability of the proceedings that confidence

in the outcome is undermined.” Peterka, 890 So. 2d at 228.

Because the Court finds the Defendant was not prejudiced, it

follows that defense counsel did not render ineffective

assistance.

On the ensuing appeal neither Otero’s appointed counsel nor Otero pro se filed an

initial brief. (Respondent’s Exhibit 33) The state circuit court affirmed the above

district court’s ruling in a per curiam decision without a written opinion.

(Respondent’s Exhibit 34)

As stated earlier, the post-conviction court’s factual findings bind this court

and the state court’s application of Strickland is entitled to “double deference.” The

post-conviction court (1) found, in addition to other facts, “that the jury did not

possess the videotaped interviews for an extended period of time that would have

permitted multiple re-plays of the CPT interviews;” (2) determined “that even had

the jury viewed the videotaped interviews in the courtroom, there is no reasonable

likelihood that the result of the trial would have been different;” and (3) ruled that

Otero failed to meet Strickland’s prejudice requirement. Although he disagrees with

the state court (Doc. 11 at 4–5), Otero presents no basis for rejecting the findings,

determinations, and ruling. On the contrary, based on this record the state court

reasonably applied Strickland in ruling that Otero showed no prejudice.

Consequently, Otero shows no entitlement to relief under ground two.

Ground Three:

Otero asserts entitlement to relief based on the cumulative effect of the claims

of ineffective assistance of counsel alleged in grounds one and two. Otero can prove

cumulative error only by showing two or more errors. “Without harmful errors,

there can be no cumulative effect compelling reversal.” United States v. Barshov,

733 F.2d 842, 852 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985). See Conklin v.

Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004) (“[T]he court must consider the

cumulative effect of [the alleged errors] and determine whether, viewing the trial as a

whole, [the applicant] received a fair trial as is [his] due under our Constitution.”);

Lucas v. Warden, Georgia Diagnostic & Classification Prison, 771 F.3d 785, 802 (11th Cir.

2014) (“We are equally unpersuaded that the cumulative effect from Lucas’s

Strickland and Brady claims entitles him to relief.”) (citing Conklin), cert. denied sub nom

Lucas v. Humphrey, 136 S. Ct. 135 (2015). Because ground one is procedurally barred

from federal review and ground two lacks merit, Otero proves no error to accumulate

to show cumulative prejudicial effect. See Mullen v. Blackburn, 808 F.2d 1143, 1147

(5th Cir. 1987) (“Mullen cites no authority in support of his assertion, which, if

adopted, would encourage habeas petitioners to multiply claims endlessly in the

hope that, by advancing a sufficient number of claims, they could obtain relief even if

none of these had any merit. We receive enough meritless habeas claims as it is; we

decline to adopt a rule that would have the effect of soliciting more and has nothing

else to recommend it. Twenty times zero equals zero.”). Otero is entitled to no relief

under ground three.

V. CONCLUSION

Otero fails to meet his burden to show that the state court’s decision was either

an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),

states:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

“a state prisoner [to] 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 . . . beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it

is — “that is because it was meant to be.” Id., at [102]. We will

not lightly conclude that a State’s criminal justice system has

experienced the “extreme malfunctio[n]” for which federal

habeas relief is the remedy. Id., at [103] (internal quotation

marks omitted).

Otero’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Otero and CLOSE this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL JN FORMA PAUPERIS

Otero is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district

court’s denial of his application. 28 U.S.C. § 2253(c)(1). 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, Otero 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 grounds or the procedural issues, Otero 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 1s

DENIED. Otero must obtain permission from the circuit court to appeal in forma

pauperts.

ORDERED in Tampa, Florida, on September 7, 2022.

Adonai

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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