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

> District Court, M.D. Florida · September 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10110901

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10110901

## How later opinions describe it (automated extraction)

- finding victim’s prior false accusation against uncle was inadmissible because it was improper impeachment

## Opinion text

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

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110901. Public record. Not legal advice.