Lorjuste v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RAOUL LORJUSTE,

Petitioner,

v. Case No. 3:19-cv-1068-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 18).1 He

challenges a 2011 state court (Duval County, Florida) judgment of conviction

for sexual battery upon a person less than 12 years old (three counts) and lewd

and lascivious molestation (one count). He is serving a mandatory term of life

imprisonment. Respondents filed a Response (Doc. 21) with exhibits (Docs. 21-

1 On May 4, 2021, the Court granted Petitioner’s request to consider his December 19,

2018 Petition as the operative Petition and denied Respondents’ motion to dismiss.

See Order (Doc. 17).

1 to 21-5; Resp. Ex.). Petitioner filed an Amended Reply (Doc. 26). This case is

ripe for review.2

II. Governing Legal Principles

A. Standard of Review

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.

ne2016). “‘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

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

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th

Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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

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

unaccompanied by an explanation,

the 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.” Richter, 562 U.S. at 101 (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 that are available for challenging his state conviction. See 28 U.S.C.

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

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

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

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

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

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 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 (1995) (per curiam) (quoting

Picard v. Connor, 404 U.S. 270, 275 (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, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

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

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, 501 U.S. at 747-48;

Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). 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, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (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.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). Thus,

procedural defaults may be excused under certain circumstances.

Notwithstanding that a claim has been procedurally defaulted, a federal court

may still consider the claim if a state habeas petitioner can show either (1) cause

for and actual prejudice from the default; or (2) a fundamental miscarriage of

justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). 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 Murray

v. Carrier, 477 U.S. 478, 488 (1986). 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).

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

modified).

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

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

remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496. “This exception is exceedingly narrow

in scope,” however, and requires proof of actual

innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “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 the effective

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

performance falls below an objective standard of reasonableness and thereby

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

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. A court considering

a claim of ineffective assistance must apply a “strong

presumption” that counsel’s representation was

within the “wide range” of reasonable professional

assistance. Id. at 689. The challenger’s burden is to

show “that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at

687.

Richter, 562 U.S. at 104 (internal citations modified).3

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

Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the

two-part Strickland test must be satisfied to show a Sixth Amendment

violation; thus, “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)). “If it is easier to dispose of an

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

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

697.

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

deference.

3 This two-part Strickland standard also governs a claim of ineffective assistance of

appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).

“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably

weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues

are clearly stronger than those presented, will the presumption of effective assistance

of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the

prejudice prong, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.” Black v.

United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575

F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim

would have a reasonable probability of success on appeal”).

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

a most deferential one.” Richter, 562 U.S. at 105. But

“[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the

more difficult. The standards created by Strickland

and § 2254(d) are both highly deferential, and when

the two apply in tandem, review is doubly so.” Id.

(citations and quotation marks omitted). “The

question is not whether a federal court believes the

state court’s determination under the Strickland

standard was incorrect but whether that

determination was unreasonable - a substantially

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

111, 123 (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.

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

citations modified). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of

deference--this one to a state court’s decision--when we are considering whether

to grant federal habeas relief from a state court’s decision.” Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting

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

371 (2010).

III. Analysis

A. Ground One

According to Petitioner, the trial court erred by allowing the admission of

child hearsay evidence. Doc. 18 at 4-5. Petitioner claims such evidence was

presented via a video recording of the child-victim being interviewed by a child

protective services agent. Id. at 4. Petitioner argues that “[t]he credibility of the

hearsay was at issue here as the record demonstrates the victim never made

allegations against the Petitioner until being admonished by her mother after

the victim’s mother discovered her in bed with her older cousin.” Id. Petitioner

claims the victim’s accusations against Petitioner “were made under duress in

response to the intense interrogation from adults.” Id. Additionally, Petitioner

challenges the trial court’s decision to admit the video because the victim

allegedly falsely accused another individual before accusing Petitioner, thus

showing the victim’s unreliability. Doc. 26 at 9. He also argues that the video

was cumulative evidence because the victim testified at trial. Doc. 18 at 5.

Before trial, the state filed a notice of intent to introduce child hearsay

statements. See Resp. Ex. A at 33. The trial court conducted a hearing before

granting the state’s notice, finding that the statements were “from a source that

is trustworthy, and the time, content and circumstances of the statements

reflect the safeguards of reliability.” Id. at 39; see Resp. Ex. G at 5-30 (hearing

transcript). On direct appeal, Petitioner raised the same claim as he does in

Ground One of the Petition. See Resp. Ex. H. The state filed an answer brief.

See Resp. Ex. I. The First District Court of Appeal per curiam affirmed

Petitioner’s judgment without issuing a written opinion. See Resp. Ex. J.

Although Petitioner concludes in the Petition that the admission of the

child hearsay evidence violated his rights under the Fifth, Sixth, and

Fourteenth Amendments, his argument focuses on how the trial court’s decision

violated Florida law. Notably, his brief on direct appeal focused solely on Florida

law and did not cite to or discuss any federal law.

To the extent that Petitioner urges that the trial court erred under

Florida law when it allowed the state to present this evidence, this allegation is

not cognizable on federal habeas review. “As a general rule, a federal court in a

habeas corpus case will not review the trial court’s actions concerning the

admissibility of evidence,” because the state court “has wide discretion in

determining whether to admit evidence at trial[.]” Alderman v. Zant, 22 F.3d

1541, 1555 (11th Cir. 1994); see also Baxter v. Thomas, 45 F.3d 1501, 1509 (11th

Cir. 1985) (recognizing that a “federal habeas corpus case is not a vehicle to

correct evidentiary rulings”); Boykins v. Wainwright, 737 F.2d 1539, 1543-44

(11th Cir. 1984) (“Federal courts reviewing habeas corpus petitions are not

empowered to correct erroneous evidence rulings of state trial courts[,]” unless

“a state trial court’s evidence rulings deny a habeas petitioner fundamental

constitutional protections.”). Thus, Petitioner’s underlying challenge to the trial

court’s ruling on the admissibility of the child hearsay evidence generally is not

proper for this Court’s consideration, and as such, Ground One is due to be

denied.

Even assuming Petitioner presents an exhausted federal claim, the claim

is without merit. The child-victim also testified at trial and was subject to cross-

examination. Petitioner has failed to show his trial was rendered fundamentally

unfair by the admission of the child-hearsay testimony. The Court, therefore,

will deny Ground One.

B. Ground Two

Petitioner claims that his appellate counsel was ineffective for filing an

appeal without a complete record. Doc. 18 at 6. He alleges that there were

portions of his jury selection that were omitted from the record on appeal. Id.

Respondents argue this claim is unexhausted. Doc. 21 at 24. According to

Respondents, “Petitioner raised a complaint about appellate counsel’s delay in

supplying him with jury selection transcripts in his Motion to Toll Time to File

Petition for Writ of Habeas Corpus Rule 9.141(D), Ineffective Assistance of

Counsel, however he did not raise the issue here that appellate counsel was

ineffective for filing his appeal with an incomplete record on appeal.” Id. In his

Reply, Petitioner asserts that he raised this claim in his “petition alleging

ineffective assistance of [appellate] counsel . . . before Florida’s First District

Court of Appeal, case number 1D15-0940.” Doc. 26 at 10.

A review of the First DCA’s docket reflects that Petitioner filed a motion

to toll time on February 25, 2015 (as referenced by Respondents), and the First

DCA granted Petitioner until April 30, 2015, to file a sworn petition alleging

ineffective assistance of appellate counsel. See Lorjuste v. State of Florida, No.

1D15-0940 (Fla. 1st DCA 2015); see also Resp. Ex. K (Petitioner’s motion to toll

time). The docket further shows that on May 5, 2015, Petitioner filed a petition

alleging ineffective assistance of appellate counsel. See Lorjuste, No. 1D15-

0940. On May 27, 2015, the First DCA per curiam denied “[t]he petition alleging

ineffective assistance of appellate counsel . . . on the merits.” Resp. Ex. L.

Respondents did not include a copy of the May 5, 2015 petition alleging

ineffective assistance of appellate counsel in the record submitted to this Court.

Thus, the Court is unaware of what claims Petitioner raised in that petition.

The Court, therefore, declines to find that Ground Two is unexhausted and will

address the claim on the merits.

Petitioner argues that his appellate counsel was ineffective for failing to

ensure the record on appeal included the jury selection transcript because,

according to Petitioner, his trial counsel was ineffective during jury selection.

As found in Ground Nine below, this Court finds that trial counsel was not

ineffective during jury selection. Because the underlying ineffective assistance

of trial counsel claim has no merit, appellate counsel cannot be deemed deficient

for failing to raise a non-meritorious issue. Ground Two is due to be denied.

C. Ground Three

Petitioner argues that his appellate counsel was ineffective “for failing to

raise a claim of fundamental error when an alternate juror deliberated with the

jury.” Doc. 18 at 8 (emphasis and capitalization omitted). He asserts that if

appellate counsel had raised the issue, the First DCA would have reversed his

conviction. Id.

As with Ground Two, Respondents contend this claim is unexhausted.

Doc. 21 at 32-33. However, for the same reasons stated above, the Court declines

to find this claim unexhausted and instead addresses it on the merits.

At the conclusion of the trial, the trial judge instructed the jury and then

the following occurred:

THE COURT: . . . [Y]ou’ll retire to the jury room

with the exception of Mr. Moore. You were the

alternate so your duty just ended. I want to talk to you

before you leave, but you have any personal property

back there?

THE VENIREMAN: Yes, sir.

THE COURT: If you would step back there and

get that and come back out. Y’all don’t start any

deliberations until such time as he leaves.

Resp. Ex. C at 312-13. There is no further discussion with the alternate juror

on the record.

There was no basis in the record for appellate counsel to argue a

fundamental error occurred based on Petitioner’s allegation that the alternate

juror deliberated with the jury. The transcript of the trial does not reflect the

alleged conversation between the alternate juror and the judge; thus, appellate

counsel had no support for such an argument. Thus, appellate counsel cannot

be deemed deficient. And even assuming deficient performance, Petitioner has

not shown prejudice. He fails to show a reasonable probability that the outcome

of his appeal would have been different had appellate counsel raised this issue.

Therefore, Ground Three is without merit and due to be denied.

D. Ground Four

According to Petitioner, his trial counsel was ineffective “for failing to call

two key defense witnesses that would have established the alleged victim

falsified her testimony that would have resulted in an acquittal.” Doc. 18 at 9

(emphasis and capitalization omitted). He claims his counsel should have called

Markel Mills and Kenny Vickers as witnesses. Id.

Petitioner raised this claim in his state court proceeding filed under

Florida Rule of Criminal Procedure 3.850. The state court denied the claim:

Defendant contends counsel was ineffective for

failing to call two witnesses: Markel Mills (“Mills”) and

Kenny Vickers (“Vickers”).

A. Markel Mills

Defendant states Mills[] is the victim’s cousin

and that, if called, Mills would have testified he and the

victim were engaged in an intimate relationship for two

years. Defendant states Mills would also testify that

when the victim’s mom found the two in bed together

on November 5, 2009, the victim concocted the story

against Defendant to “take the heat off” Mills.

Counsel did not call Mills as a witness at trial.

(Ex. E at 3-4.) However, Mills was a focal point in the

trial. (Ex. E at 15-17, 25-26, 45-46, 53, 67-70, 78, 84-88,

89, 91-93, 125, 152-56, 254-56, 262-63, 266-67, 279-80.)

Counsel indeed argued the victim only told her mom

about Defendant after her mom found Mills naked in

bed with the victim because the victim was trying to

protect Mills. (Ex. E at 25-26, 262-63, 266-67, 269.)

Indeed, the fact that Mills was discovered naked in bed

with the victim on the night of her disclosure was

discussed during the victim’s testimony, the victim’s

mother’s testimony, and the presentation of the

victim’s CPT interview. The only new information

Defendant now contends Mills could have provided was

information that he and the victim had been in an

intimate relationship for two years.

This Court finds counsel was not deficient for

failing to call Mills to testify when the majority of his

purported testimony would have been cumulative to

the evidence presented. Jones v. State, 998 So. 2d 573,

586 (Fla. 2008) (“We have repeatedly held that counsel

is not ineffective for failing to present cumulative

evidence.”). Moreover, to the extent Mill’s testimony

would not have been cumulative to the evidence

presented, this Court finds no reasonable probability it

would have changed the outcome of the proceeding.

Defendant is, thus, not entitled to relief on this Ground.

B. Kenny Vickers

Defendant alleges Vickers, the fiancé of the

victim’s aunt, would have testified the victim accused

him of the same crimes as she accused Defendant and

that her accounts of the incidents were “almost

verbatim” against both Defendant and Vickers.

Defendant maintains Vickers could have testified the

victim accused him of committing the acts during the

same period as Defendant. Lastly, Defendant states

Vickers could have testified that after waiting three

years to be tried, his charges were dropped after he

insisted he would call Mills as a witness at trial.

Initially, this Court notes that at trial, the judge

engaged in a colloquy with Defendant regarding the

witnesses he wished to present. The trial judge

inquired as to whether the defense would be calling any

witnesses at trial. (Ex. E at 182.) After the defense was

given a ten-minute recess to discuss the issue, defense

counsel stated that she had previously listed two

witnesses, but after explaining the advantages and

disadvantages of calling them to Defendant, Defendant

agreed not to call the witnesses. (Ex. E at 182-83.)

Counsel further testified that Defendant mentioned

two other witnesses, his pastor and a woman from the

Department of Children and Families, but again after

discussing the consequences of calling them, Defendant

agreed not to call them and would simply testify in his

own defense. (Ex. E at 183.) Therefore, Defendant

made no mention of wishing to call Vickers as a

witness. Rather, Defendant concluded to the trial court

that he would be the only person to testify in his

defense. (Ex. E at 190.)

Additionally, prior false accusations made by a

victim are inadmissible as any such instances would be

improper impeachment. See Pantoja v. State, 59 So. 3d

1092, 1096-98 (Fla. 2011) (finding victim’s prior false

accusation against uncle was inadmissible because it

was improper impeachment). Therefore, Vickers’

testimony would be inadmissible, and counsel cannot

be deemed ineffective for failing to present

inadmissible testimony. See Owen v. State, 986 So. 2d

534, 546 (Fla. 2008) (“Trial counsel cannot be deemed

ineffective for failing to present inadmissible

evidence.”) (citing Pietri v. State, 885 So. 2d 245, 254

(Fla. 2004)). Accordingly, Defendant is not entitled to

relief. Strickland, 466 U.S. at 697 (“[T]here 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.”).

Resp. Ex. O at 6-8 (footnote omitted). Petitioner appealed, and the First DCA

per curiam affirmed the state court’s denial without issuing a written opinion.

See Resp. Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. At the conclusion

of the state’s case, defense counsel advised the court that the defense had

previously listed two witnesses, but after consultation with Petitioner, the

defense did not intend to call the two witnesses. Resp. Ex. B at 183. Defense

counsel further advised that Petitioner mentioned calling his pastor and a

woman from DCF, but after discussing the positives and negatives with counsel,

Petitioner decided that he would be his only witness. Id. The trial court placed

Petitioner under oath and a discussion about whether Petitioner wanted his

pastor to testify followed. See id. at 183-89. The trial court took a recess so

counsel could further discuss the issue with Petitioner. See id. at 189. After the

recess, Petitioner advised the trial court that he would be his only witness. Id.

at 190.

The record supports the state court’s conclusion. Therefore, upon

thorough review of the record, this Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented. Accordingly, Petitioner is not entitled to federal habeas

relief on Ground Four.

E. Ground Five

Petitioner argues that his trial counsel was ineffective “for failing to

investigate and obtain the alleged victim’s school records that would have

shown she had perfect attendance and impeached her trial testimony.” Doc. 18

at 11 (emphasis and capitalization omitted). He claims that the victim’s school

records would have proven she was “lying when she testified that she was taken

to the hotel instead of being at school.” Id.

Petitioner raised this claim in his Rule 3.850 proceeding. The state court

denied it:

Defendant suggests that many of the victim’s

allegation[s] supposedly occurred when the other

children who lived in the home were at school.

Defendant maintains counsel should have obtained the

victim’s school records to show she had perfect

attendance and, if she missed any school, Defendant

would have been able to recall his whereabouts for a

potential alibi for that day.

While the victim did testify that no one was at

the house on the occasions Defendant abused her at the

house, she did not indicate that it was because her

siblings were at school. (Ex. E at 32-33, 43-44.)

Therefore, it is not clear that these events occurred on

school days or, even if they were school days, whether

the events happened during the hours in which a school

would be open. Therefore, the victim’s school records

would be irrelevant. Even if there was an absence from

school, there would be no indication that that was a

date that an incident occurred. Therefore, this Court

does not find counsel was deficient in failing to obtain

the records and does not find a reasonable probability

the outcome of the proceeding would have been

different if those records had been obtained.

Resp. Ex. O at 15. Petitioner appealed, and the First DCA per curiam affirmed

the state court’s denial without issuing a written opinion. See Resp. Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

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

review of the record, this Court concludes that the state court’s adjudication of

this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

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

presented. Accordingly, Petitioner is not entitled to federal habeas relief on

Ground Five.

F. Ground Six

Petitioner claims his trial counsel was ineffective “for failing to

investigate and present a reasonable defense as to why the alleged victim could

describe with great detail the places where the alleged abuse occurred.” Doc. 18

at 12 (emphasis and capitalization omitted). He argues that “[h]ad counsel

thoroughly investigated, she would have found that [the victim] basically lived

at her Aunt Phoebe’s residence (Petitioner’s home) and had a free run of the

house,” and the hotel room the victim described was simply “a basic hotel room”

similar to which the victim had recently stayed in. Id. at 12-13.

Petitioner raised this claim in his Rule 3.850 proceeding, and the state

court denied it:

Defendant asserts counsel’s failure to investigate

led him to overlook the reasons why the victim could

describe the places where the abuse occurred.

Defendant suggests the victim was able to describe his

bedroom because she often spent time at the house and

would have the ability to roam the house while she was

there. He then states the victim could describe a hotel

room because she stayed in a hotel room during a visit

to Disney World and during a visit to Washington.

This Court notes that even the victim’s mother

acknowledged at trial that the victim spent a lot of time

at Defendant’s house. (Ex. E at 58.) Therefore, this fact

was not kept from the jury and the jury had this

information to consider during its deliberations. As for

the ability to describe a hotel room, this Court finds

that even if counsel was able to elicit this testimony

from the victim at trial, there is no reasonable

probability the outcome of the proceeding would have

been different. Accordingly, Defendant is not entitled

to relief on Ground Eight.

Resp. Ex. O at 15-16. Petitioner appealed, and the First DCA per curiam

affirmed the state court’s denial without issuing a written opinion. See Resp.

Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

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

review of the record, this Court concludes that the state court’s adjudication of

this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

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

presented. Accordingly, Petitioner is not entitled to federal habeas relief on

Ground Six.

G. Ground Seven

Petitioner argues his trial counsel was ineffective for failing “to object and

file a motion for arrest of judgment where the State argued multiple and

distinct acts that support the jury reached an un-unanimous verdict as to

Counts One and Three.” Doc. 18 at 14. Specifically, he argues:

In relation to count one, during the State’s case

in chief, the State presented through E.D.’s detailed

testimony of a specific incident alleged to have occurred

at a hotel where the Petitioner was described to have

tried inserting his penis into her vagina. E.D. also gave

testimony of a separate and distinct incident alleged to

have occurred at her Aunt Phoebe’s house where the

Petitioner was described to have tried to insert his

penis into her vagina. Moreover, the State argued

during closing that “she (E.D.) said it happened on

numerous occasions and at different locations. She told

you it happened both at her Aunt Phoebe’s house as

well as at the hotel.” In this case it is clear that the

State charged the Petitioner with [only] one count of

sexual battery by penetration and or union of the

Petitioner’s penis and E.D.’s vagina, but presented

evidence of two entirely separate incident[]s separated

by both time and place. Because counsel failed to object

and allowed the State to tell the jury it could convict

the Petitioner for either instance of sexual battery by

penetration and/or union of Petitioner’s penis with

E.D.’s vagina, the State compromised the jury’s ability

to render a unanimous verdict. The State’s actions

make the unanimity uncertain as several members

could have determined the hotel incident constituted

sexual battery, while the others could have determined

it was at Aunt Phoebe’s house rather than agreeing

that the same incident constituted sexual battery.

. . . Count Three’s verdict is also in question for

the same reasons outlined in Count One. The State

again presented the argument of specific incidents in

which the union with the Petitioner’s penis and the

victim’s mouth happened at the hotel and Aunt

Phoebe’s house and that the jury could find either one

constituted sexual battery by penetration of E.D.’s

mouth. Again, as in Count One the State only charged

the Petitioner with one count of sexual battery by

penetration of E.D.’s mouth with his penis. Because

counsel allowed the State [to] continue without

objection it compromised the jury’s ability to render a

unanimous verdict and thus, prejudiced the outcome by

allowing the jury to consider separate incidents in

which to convict the Petitioner.

Id. at 14-15.

Petitioner raised this claim during his Rule 3.850 proceeding. The state

court denied it:

Defendant maintains the State improperly

argued multiple acts for each offense. Specifically,

Defendant alleges the State made multiple improper

arguments that suggested each offense occurred more

than one time. (Ex. E at 245, 246, 247.) Defendant

asserts these arguments could have potentially led to a

non-unanimous jury verdict.

To find Defendant guilty of the sexual batteries

upon the victim, the State had to prove that the victim

was under twelve years of age, Defendant was eighteen

years of age or older, and that he committed an act

where his penis penetrated or made union with the

victim’s vagina, an act where Defendant’s mouth had

union with the victim’s vagina, and Defendant’s penis

penetrated or had union with the victim’s mouth. (Ex.

F.) The State was not required to prove the exact day

on which the offenses occurred. Indeed, the victim

testified to multiple incidents at trial. (Ex. E at 31-36,

35-42, 43-45.) It would be sufficient for the jury to find

Defendant committed the acts at one of the times

described by the victim. This Court, therefore, finds the

State’s arguments were not improper. Moreover, the

Court finds this claim speculative as to Defendant’s

suggestion that these arguments would have caused a

non-unanimous jury verdict. See Maharaj, 778 So. 2d

at 951. Counsel, therefore, cannot be held ineffective

for failing to object to the arguments.

Resp. Ex. O at 18-19. Petitioner appealed, and the First DCA per curiam

affirmed the state court’s denial without issuing a written opinion. See Resp.

Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. The record

supports the state court’s conclusion. Upon thorough review of the record, this

Court concludes that the state court’s adjudication of this claim was not

contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an

unreasonable determination of the facts in light of the evidence presented.

Accordingly, Petitioner is not entitled to federal habeas relief on Ground Seven.

Even assuming the state court’s determination is not entitled to

deference, this claim has no merit. “In child sexual abuse cases, Florida law

permits the state to charge by grouping multiple offenses together in a single

count. This practice ‘actually lessens the potential penalty to the defendant’

because there is less chance of potential consecutive sentencing on single

offenses.” Cramer v. Sec’y, Dep’t of Corr., No. 5:16-cv-489-OC-02PRL, 2019 WL

4861036, at *9 (M.D. Fla. Oct. 2, 2019) (quoting Whittingham v. State, 974 So.

2d 616, 618-19 (Fla. 4th DCA 2008)); Sirias v. Sec’y, Dep’t of Corr., No. 2:14-CV-

23-FTM-29CM, 2015 WL 5440336, at *22 (M.D. Fla. Sept. 15, 2015) (“Florida

law permits the state to charge a defendant in child sex abuse cases by grouping

multiple offenses together into a single count.”). During closing argument, the

state summarized the victim’s testimony, noting that she testified “that this

defendant tried to put his penis inside of her vagina and she said that it

happened on numerous occasions and happened at different locations.” Resp.

Ex. C at 245; see id. at 246 (“[The victim] stated and told you that he tried - -

that he did touch his penis to her vagina on numerous occasions.”); id. at 247

(“[The victim] gave graphic details in that CPT video as to what he would have

her do to him on more than one occasion.”). The state did not encourage a non-

unanimous verdict. Rather, the state summarized the evidence to support each

charge in accordance with Florida law.

The trial court then instructed the jury on each count. Specifically, as to

count one, the trial court instructed that the state must prove beyond a

reasonable doubt that the victim was less than 12 years old, Petitioner

committed an act upon the victim in which his penis penetrated or had union

with the victim’s vagina, and that Petitioner was 18 years old or older. Resp.

Ex. C at 299-300. Similarly, as to count three, the trial court instructed that the

state must prove beyond a reasonable doubt that the victim was less than 12

years old, Petitioner committed an act upon the victim in which his penis

penetrated or had union with her mouth, and Petitioner was 18 years old or

older. See id. at 300-01. The jury was further instructed that they must follow

the law as given and their verdict must be unanimous. See id. at 305-07, 311.

Considering the record, the Court finds that trial counsel was not

deficient for failing to object to the state’s closing argument. Even assuming

deficient performance, Petitioner has not shown prejudice. As such, Ground

Seven is due to be denied.

H. Ground Eight

According to Petitioner, his trial counsel was ineffective because she

“informed the jury that a previous trial had[] been held and failed to request a

curative jury instruction on the matter.” Doc. 18 at 16.

Petitioner raised this claim in his Rule 3.850 proceeding,4 and the state

court denied it:

Defendant alleges counsel was ineffective for

eliciting testimony from a witness that there had been

a previous trial. Defendant states that, upon mention

of the first trial, counsel should have moved for mistrial

based on the prejudice of jurors knowing there had

previously been another trial.

Under the invited error doctrine, “a party cannot

successfully complain about an error for which he or

she is responsible. . . [.]” Flowers v. State, 149 So. 3d

1206, 1207-08 (Fla. 1st DCA 2014). Additionally, “[a]

motion for mistrial should be granted only when the

error is deemed so prejudicial that it vitiates the entire

trial, depriving the defendant of a fair proceeding.”

Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005).

Here, defense counsel was the person who

mentioned a “previous trial.” (Ex. E at 51.) Counsel,

therefore, could not have moved for mistrial based on

an error for which she was responsible. Moreover, the

only mention of the previous trial was the contested

statement where counsel asked the victim, “You’ve

previously testified in this case, correct?” (Ex. E at 51.)

This Court finds such a limited statement did not

vitiate the entire proceeding. Accordingly, any motion

for mistrial would have been denied for both reasons,

and counsel cannot be ineffective for making such a

motion. See Schoenwetter, 46 So. 3d at 546. Defendant

is, therefore, not entitled to relief.

4 In Petitioner’s Rule 3.850 motion, he argued that counsel should have immediately

moved for a mistrial or “[a]t a minimum, counsel should have requested a curative

instruction to the jury advising that previous proceedings occurred and had no effect

or should have no[] effect [on] the jury’s deliberations.” Resp. Ex. N at 39.

Resp. Ex. O at 19-20. Petitioner appealed, and the First DCA per curiam

affirmed the state court’s denial without issuing a written opinion. See Resp.

Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

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

review of the record, this Court concludes that the state court’s adjudication of

this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

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

presented. Accordingly, Petitioner is not entitled to federal habeas relief on

Ground Eight.

Alternatively, the Court finds this Ground has no merit. During defense

counsel’s cross-examination of the victim, the following exchange occurred:

Q. You’ve previously testified in this case,

correct?

A. Yes, ma’am.

. . . .

[Defense Counsel]: Your Honor, I’m showing the

witness her prior trial transcript and I’m just pointing

to the point that she testified to before.

Resp. Ex. B at 51-52. Even assuming counsel was deficient for acknowledging

in front of the jury that there had been a prior trial, Petitioner has not shown

prejudice. Considering the testimony and evidence presented at trial, the Court

finds Petitioner has failed to show a reasonable probability exists that but for

counsel’s alleged error, the result of the proceeding would have been different.

As such, Ground Eight has no merit and is due to be denied.

I. Ground Nine

Petitioner claims his trial counsel was ineffective “for failing to conduct

any real voir dire examination allowing the state to empanel its own pre-

selected jury.” Doc. 18 at 17 (emphasis and capitalization omitted). He contends

that because counsel failed to examine the potential jurors, she “had no basis

for determining whether the jurors were competent to s[i]t as an unbiased

juror.” Id. at 18.

Petitioner raised this claim in his Rule 3.850 proceeding, and the state

court denied it:

Defendant maintains counsel was ineffective for

failing to conduct voir dire of the prospective jury.

Defendant suggests that since counsel did not question

the prospective jurors, the State was able to decide who

sat on the jury.

Ineffective assistance of counsel allegations

based on counsel’s alleged failure to conduct a

meaningful voir dire implicate a defendant’s

constitutional right to a trial by a fair and impartial

jury. Solorzano v. State, 25 So. 3d 19, 23-24 (Fla. 2d

DCA 2009). An attorney must question prospective

jurors so counsel can reasonably assess whether “the

juror can lay aside any bias or prejudice and render a

verdict solely on the evidence presented and the

instructions on the law given by the court.” Id. at 24

(citing Mansfield v. State, 911 So. 2d 1160, 1172 (Fla.

2005)). Counsel cannot, however, be held ineffective for

failing to ask the prospective jury cumulative

questions. See Johnson v. State, 921 So. 2d 490, 503-04

(Fla. 2005) (finding because the prosecutor and court

had adequately questioned jurors, counsel could not be

deficient for failing to repeat questioning).

Additionally, it is pure speculation for a defendant to

assert that further questioning would have revealed

any juror bias. See Green v. State, 975 So. 2d 1090,

1105 (Fla. 2008) (denying claim that counsel was

ineffective for failing to further voir dire juror as

speculative) (first citing Johnson v. State, 903 So. 2d

888, 896 (Fla. 2005); and then citing Reaves v. State,

826 So. 2d 932, 939 (Fla. 2002)); Johnson v. State, 921

So. 2d 490, 503-04 (Fla. 2005) (holding defendant’s

claim that further questioning of jurors could have

exposed more on the jurors’ views was speculation that

“fails to rise to the level of ineffective assistance of

counsel under Strickland.”).

In the instant case, the prospective jury was first

questioned by the trial court regarding general

matters. (Ex. J at 10-33.) The State then engaged in

follow-up questioning. (Ex. J at 33-115.) After the trial

court and the State had completed their questioning of

the venire, counsel asked additional follow-up

questions. (Ex. J at 115-22). Defense counsel

specifically noted that her voir dire would be short

because the State already asked many of the questions

the defense wished to have answered. (Ex. J at 115.)

Therefore, the record refutes Defendant’s allegation

that counsel failed to “conduct any examination of any

of the jurors.” This Court finds that the trial court, the

State, and counsel conducted an adequate voir dire of

the prospective jury. Moreover, it is clear from the

record counsel used that examination to make

informed challenges to certain jurors after discussing

them with her client as the trial court instructed her to

do. (Ex. J at 122-31.) To assert any additional

questioning would have uncovered some bias is purely

speculative and cannot warrant relief under

Strickland. See Green, 975 So. 2d at 1105; Johnson, 921

So. 2d at 503-04. Therefore, this Court finds Defendant

has not shown deficient performance on the part of

counsel or prejudice suffered by Defendant as a result.

Accordingly, Defendant is not entitled to relief.

Resp. Ex. O at 20-21. Petitioner appealed, and the First DCA per curiam

affirmed the state court’s denial without issuing a written opinion. See Resp.

Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. The transcript of

the jury selection supports the state court’s conclusion. See Resp. Ex. O at 210-

344. Upon thorough review of the record, this Court concludes that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented. Accordingly, Petitioner is not entitled to federal

habeas relief on Ground Nine.5

5 The Court takes judicial notice of Petitioner’s sentencing hearing transcript. See

State of Florida v. Lorjuste, No. 2010-3752-CF (Fla. 4th Cir. Ct.), Testimony &

Proceedings of August 23, 2011, before the Honorable William Wilkes. Notably, at

Petitioner’s sentencing, it was made clear that he wanted to handpick his jury. His

counsel and the trial judge explained that is not how jury selection works. Petitioner’s

ineffectiveness claim relating to trial counsel’s performance during voir dire has no

merit.

J. Ground Ten

Petitioner claims his trial counsel was ineffective “for failing to object and

move for a mistrial when an alternate juror deliberated with the jury.” Doc. 18

at 19. He alleges that after the trial, the “judge instructed the alternate juror

to go into the deliberation room to grab his personal articles, but that the jury

was not to deliberate until the alternate juror left the room.” Id. at 20. He

contends that “after the juror returned from the deliberation room, the juror

stated to the judge ‘everything is good. They’re all going to say the same thing.’”

Id. According to Petitioner, his counsel refused to do anything, and the judge

immediately cleared the courtroom with the exception of the alternate juror. Id.

Petitioner claims this exchange “was also omitted from the record, however, the

Court-Smart audio recording” would still reflect the exchange. Id.

Petitioner raised this claim in his Rule 3.850 proceeding, and the state

court denied it:

Defendant maintains counsel was ineffective for

failing to object and move for a mistrial based on the

alternate juror deliberating with the jury. It is clear

from the record, however, that the trial judge informed

the alternate juror his jury duty ended before

deliberations and required him to grab his belongings

from the jury deliberation room before the rest of the

jury began deliberating. (Ex. E at 312-13.) Therefore,

this Court finds the alternate juror did not engage in

deliberations with the jury, and Defendant is not

entitled to relief.

Ex. O. at 21-22. Petitioner appealed, and the First DCA per curiam affirmed the

state court’s denial without issuing a written opinion. See Resp. Ex. R.

This Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. The record

supports the state court’s conclusion. Petitioner’s assertion that the state court’s

audio system would differ from the official transcript is speculative. Upon

thorough review of the record, this Court concludes that the state court’s

adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of the

evidence presented. Accordingly, Petitioner is not entitled to federal habeas

relief on Ground Ten.

K. Ground Eleven

Petitioner claims that the trial court erred by denying his “motion to

correct errors and omissions in the voir dire transcripts and motion to preserve

evidence.” Doc. 18 at 21. He asserts that “[t]here are substantive issues that

contained errors within the Petitioner’s voir dire proceedings that were

recorded by Court-Smart audio that would support the Petitioner’s claims that

he was not afforded a full and fair trial before an impartial jury, the court

committed fundamental errors during the third voir dire and that counsel was

ineffective for failing to conduct any meaningful voir dire of the jury panel

before his third trial.” Id.

Petitioner filed a motion to correct alleged errors and omissions in the

voir dire transcript and a motion to preserve evidence in the state court. The

state court denied the motions:

Defendant filed a motion to correct alleged errors

by the court reporter in transcribing the voir dire

proceedings of July 18, 2011 and a motion requiring the

Clerk of the Courts, the State Attorney, and the Public

Defender to preserve all evidence and files related to

his case because of his anticipated petition for writ of

habeas corpus. Defendant’s motions are baseless. Files

and evidence are kept by the Clerk and the attorneys

in accordance with the Florida Statutes and the rules

and regulations governing professional conduct. The

transcript of the July 18, 2011 voir dire proceeding is

attached as Exhibit “E” to the Court’s order denying

Defendant’s post-conviction relief. There is nothing

that authorizes a correction of an official trial

transcript based on a Defendant’s unfounded

assertions that the transcript is wrong.

Resp. Ex. U at 4. Petitioner appealed, and the First DCA per curiam affirmed

the state court’s denial without issuing a written opinion. See Resp. Ex. X.

This Court addresses Petitioner’s claim in accordance with the deferential

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

review of the record, this Court concludes that the state court’s adjudication of

this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

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

presented. Regardless, this claim has no merit. Accordingly, Petitioner is not

entitled to federal habeas relief on Ground Eleven.

In light of the foregoing, it is

ORDERED:

1. The Petition (Doc. 18) is DENIED, and this case is DISMISSED

WITH PREJUDICE.

2. If Petitioner appeals, the Court denies a certificate of appealability.

Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.6

6 The Court should issue a certificate of appealability only if the Petitioner makes “a

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

make this substantial showing, 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.

3. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of

September, 2022.

o> Cmothe I. Corrigan

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 9/9

C:

Raoul Lorjuste, #J45191

Counsel of Record

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