Hall v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WYNDEL R. HALL

Petitioner,

v. Case No. 8:15-cv-108-CEH-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

O R D E R

This cause comes before the Court on Wyndel R. Hall’s petition for the writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 1) Hall challenges his state convictions

for sexual battery and resisting arrest without violence. Upon consideration of the

petition (Doc. 1), the response (Doc. 41),1 and the reply (Doc. 45), and in accordance

with the Rules Governing Section 2254 Cases in the United States District Courts, the petition

will be DENIED.

1 An earlier order dismissed Hall’s federal petition as time-barred. (Doc. 26) On appeal

the United States Court of Appeals for the Eleventh Circuit reversed and remanded the case,

finding that Hall’s petition was timely filed. (Doc. 36)

Facts2

On October 16, 2008, Hall was charged by amended information with two

counts of capital sexual battery under Section 794.011, Florida Statutes (1990).3 The

victim is Hall’s niece by marriage. The conduct in Counts 1 and 2 was alleged to have

occurred between March 17, 1991, and March 16, 1993, when the victim was less than

twelve years of age. Before the trial the State filed a notice of its intent to introduce

evidence of other bad acts alleged to have been committed by Hall. More specifically,

the State sought to introduce evidence that Hall on one or more occasions between

December 13, 1984, and December 12, 1986, intentionally touched in a lewd or

lascivious manner another of his nieces, Jenice Coleman. Following a Williams Rule4

hearing, the trial judge ruled that the “proposed testimony is not sufficiently similar to

that of [the victim] to permit its admission at trial.” (Doc. 42-2, Ex. 1 at 47)5

During the trial the State sought to introduce into evidence an audio recording

of a controlled telephone call between Hall and his wife, Palmira Vasquez. The

2 This factual summary derives from Hall’s brief on direct appeal and the record.

(Doc. 42-2, Ex. 1; Doc 42-3, Exs. 2 and 3)

3 Count One charged Hall with capital sexual battery by penetrating the mouth of the

victim with his sexual organ. (Doc. 42-2, Ex. 1 at 26) Count Two charged Hall with capital

sexual battery by uniting the vagina of the victim with his sexual organ. (Id.) The amended

Information also charged Hall in Count Three with resisting an officer without violence. (Id.)

Hall pleaded guilty to Count Three before the trial began.

4 Under the Williams Rule, evidence of a collateral crime or an act factually similar to

the charged offense is admissible “[i]f found to be relevant for any purpose save that of

showing bad character or propensity.” Williams v. State, 110 So. 2d 654, 662 (Fla. 1959).

5 The page numbers cited in this Order correspond to the page numbers assigned to the

exhibits on the electronic docket in CM/ECF.

original recording included a reference to another unnamed family member that Hall

had allegedly molested. This reference was redacted from both the version of the audio

recording played for the jury and the transcript provided to the jury. During her

cross-examination of Hall, the prosecutor questioned Hall about the call. Hall testified

that parts of the call had been “cut out,” thus apprising the jury that the recording had

been altered. After lengthy discussion and argument by the parties, the trial judge

determined that the prosecutor could play the unredacted audio recording in its

entirety, which contained the accusations of other uncharged bad acts that the judge

had previously ruled inadmissible at the Williams Rule hearing.

The jury convicted Hall of the charge of capital sexual battery in Count 1 and

acquitted him on Count 2. Trial counsel subsequently filed a motion for new trial in

which Hall argued that he was denied a fair trial based on the playing of the unredacted

controlled phone call. The motion was denied and Hall was sentenced to life in prison

without the possibility of parole on Count 1 and to time served on Count 3. Hall

successfully moved to correct a sentencing error and was resentenced on Count 1 to

life imprisonment with the possibility of parole after twenty-five years. The state

appellate court affirmed Hall’s convictions and sentences and affirmed the denial of

his state Rule 3.850 motion for post-conviction relief.

Standard of Review

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

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

1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly

deferential standard for federal court review of a state court adjudication, states in

pertinent part:

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

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim —

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

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

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

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

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

interpreted this deferential standard:

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

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

application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under

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

two conditions is satisfied - - the state-court adjudication

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

established Federal Law, as determined by the Supreme

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

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

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

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

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this

Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

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

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

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for

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

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

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

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

86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the

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

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

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

decision.” Williams, 529 U.S. at 412.

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

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

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

effect to the extent possible under law.” Cone, 535 U.S. at 693. A federal court must

afford due deference to a state court’s decision. “AEDPA prevents defendants—and

federal courts—from using federal habeas corpus review as a vehicle to second-guess

the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See

also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,’ . . . and

‘highly deferential standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt’ . . . .”) (citations omitted).

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

direct appeal affirmed Hall’s convictions and sentences. (Doc. 42-3, Ex. 6) In another

per curiam decision the state appellate court affirmed the denial of Hall’s Rule 3.850

motion. (Doc. 42-4, Ex. 16) The state appellate court’s affirmances warrant deference

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

not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th

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

Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a federal claim

has been presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.”).

Review of the state court decision is limited to the record that was before the

state court.

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

the record that was before the state court that adjudicated

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

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

decision that was contrary to, or “involved” an

unreasonable application of, established law. This

backward-looking language requires an examination of the

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

the record under review is limited to the record in existence

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

Pinholster, 563 U.S. at 181–82. Hall bears the burden of overcoming by clear and

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

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

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

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

finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244

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

Standard for Ineffective Assistance of Counsel

Hall claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he

cases in which habeas petitioners can properly prevail on the ground of ineffective

assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511

(11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v.

Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), the Supreme Court set forth a two-part test for

analyzing ineffective assistance of counsel claims.

According to Strickland, [f]irst, the defendant must show

that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S.

Ct. 2052.

Strickland requires proof of both deficient performance and consequent

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

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

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

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

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

made all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690. Strickland requires

that “in light of all the circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance.” 466 U.S. at 690.

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

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

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

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

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

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

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

Strickland cautions that “strategic choices made after thorough investigation of

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

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

extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. Hall cannot meet his burden merely by showing

that the avenue chosen by counsel proved unsuccessful.

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

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

would have done. We ask only whether some reasonable

lawyer at the trial could have acted, in the circumstances, as

defense counsel acted at trial . . . . We are not interested in

grading lawyers’ performances; we are interested in whether

the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial

lawyers, in every case, could have done something more or something different. So,

omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or

appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting Burger

v. Kemp, 483 U.S. 776, 794 (1987)).

Under 28 U.S.C. § 2254(d) Hall must prove that the state court’s decision was

“(1) . . . contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States or (2) . . . based

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

State court proceeding.” Sustaining a claim of ineffective assistance of counsel is very

difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562

U.S. at 106. See also Pinholster, 563 U.S. at 202 (a petitioner must overcome this

“‘doubly deferential’ standard of Strickland and [the] AEDPA”), Johnson v. Sec’y, Dep’t

of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly difficult for

a petitioner to overcome, and it will be a rare case in which an ineffective assistance of

counsel claim that was denied on the merits in state court is found to merit relief in a

federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270

(11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel claim—which is

governed by the deferential Strickland test—through the lens of AEDPA deference, the

resulting standard of review is ‘doubly deferential.’”), cert. denied, 134 S. Ct. 191 (2013).

Ground One

Hall contends that his trial counsel rendered ineffective assistance by not

moving to suppress the controlled telephone call between he and his wife. Hall alleges

that counsel (1) “failed to discover that Detective Troy Mann did not state the time,

date, or place the call was to have been made,” (2) “failed to discover that at the

beginning of the call the Petitioner’s wife[,] Palmira Vasquez[,] states that the person

she describes as the Petitioner had hung up and that he was going to call back,” and

(3) “failed to discover that there were no phone records presented in the discovery to

clarify that a call was made from the Petitioner’s phone to Ms. Vasquez on the day in

question.” (Doc. 1 at 4–5) Hall argues that his counsel “was deficient in his

performance for not being aware of the fact that authentication or identification of

evidence is required as a condition precedent to its admissibility.” (Id. at 5) Hall

alleges that he was prejudiced by counsel’s alleged error because “the call pertained to

sexual allegations made by the alleged victim . . . and counsel should have known that

the phone call would hinder his rights to a fair trial.” (Id.)

The state post-conviction court denied this ground of ineffective assistance of

counsel as follows (Doc. 42-4, Exhibit 15 at 58) (court’s record citations omitted):

In claim 1, Defendant argues that trial counsel should have

filed a Motion to Suppress or a Motion in Limine to keep

the controlled phone call out of evidence. Defendant argues

that the time, date and place of the call were not made

known on the recording and that there is no proof

Defendant was the person who called back when the initial

call made by the victim’s aunt was dropped. The Court finds

that there was testimony as to the date, time and place of

the call. Det. Troy Mann testified that the phone call was

made from Ms. Vazquez’s home and it was made on July

8, 2008. Ms. Vazquez testified that the phone call was made

on July 8, 2008. When Defendant called Ms. Vazquez after

the initial call was dropped, he identified himself as

Wyndel. Additionally, Defendant took the stand and

acknowledged that he was on the other end of the controlled

phone call. The Court finds that had a Motion to Suppress

or Motion in Limine been filed, it would have been denied.

Defendant cannot establish deficient performance or

prejudice.

As in his Rule 3.850 motion, Hall presents no valid basis for suppression of the

controlled call. He presents no evidence to support his contention that counsel was

unaware of either the content of the call or the requirements for admissibility of the

evidence. Moreover, the state court has answered the question of how the court would

have resolved a motion to suppress the recording on the basis Hall suggests—the

motion would have been denied. Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.

2017) (“[A]n attorney will not be held to have performed deficiently for failing to

perform a futile act, one that would not have gotten his client any relief.”). This court

must abide by the state court’s interpretation of state law. See Bradshaw v. Richey, 546

U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state

law . . . binds a federal court sitting in habeas corpus.” (citations omitted)); Herring v.

Sec'y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (“It is a ‘fundamental

principle that state courts are the final arbiters of state law, and federal habeas courts

should not second-guess them on such matters.’”) (quoting Agan v. Vaughn, 119 F.3d

1538, 1549 (11th Cir. 1997)). Because counsel had no basis to move to suppress the

recording as Hall suggests, he fails to establish that the state court either unreasonably

applied Strickland or unreasonably determined the facts by rejecting this ground of

ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Two

Hall contends that his trial counsel rendered ineffective assistance by not

“review[ing] the redacted portions of the CD recording prior to trial and fail[ing] to

move for a mistrial once it had been played.” (Doc. 1 at 7) Hall alleges that his counsel

advised him before the trial that the prosecutor had redacted from the audio recording

of the controlled call an excerpt in which Hall’s wife, Palmira Vasquez, stated that the

victim told her that she (the victim) was “not the only family member [Hall] molested.”

(Id. at 8) Hall asserts that this excerpt remained on the recording that was played for

the jury at the trial. He argues that he suffered prejudice as a result of counsel’s alleged

error because, when questioned on cross-examination about this portion of the

recording, he testified that parts of the recording had been “cut out,” resulting in the

trial judge allowing the jury to hear the unredacted recording in its entirety.

The state post-conviction court denied this ground of ineffective assistance of

counsel as follows (Doc. 42-4, Exhibit 15 at 58) (court’s record citation omitted):

In [this] claim . . . Defendant argues that trial counsel failed

to review the redacted cd of the controlled phone call and

allowed it to be played in its original form. The record

refutes the Defendant’s claim. The cd was edited to remove

the portion of the conversation where Ms. Vazquez

indicates that there are other relatives that have accused the

Defendant of sexual assault. The redacted cd did not

reference any other bad acts or crimes. When the Defendant

mentioned that the cd had been edited, the State was

allowed to play the cd in its entirety. Defense counsel did

object at the time and did move for a new trial after

Defendant’s conviction. Defendant has not established

deficient performance.

The unedited transcript of the controlled call includes the following excerpt

(Doc. 42-2, Ex. 1 at 109) (emphasis added):

VASQUEZ: Um, just mentally. You know, just, you know,

and her talking to me and basically what she said is that she

was not the only family member that you molested.

HALL: That (inaudible). There ain’t been nobody else.

VASQUEZ: (inaudible) I know you said, you said that

before, but, she said that you are not and . . .

HALL: That’s the only person, Palmira.

During the direct examination of Vasquez the prosecutor played for the jury a

redacted version of the controlled call that did not include the portion of Vasquez’s

statement about the other family member (Doc. 42-3, Ex. 2 at 104, 109):

(The recording was played to the jury and transcribed by the

court reporter to the best of her ability as follows:)

. . . .

MS. VASQUEZ: Just mentally. You know, just, you know,

in her talking to me, and basically what she said.

MR. HALL: That’s it. There ain’t nobody else.

MS. VASQUEZ: I know, you said—you said that before.

But she said that you are not and—

MR. HALL: That’s the only person, Palmira.

In the subsequent cross-examination of Hall, the prosecutor inquired about the

redacted excerpt of the call and Hall testified that parts of the call were “cut out”

(Doc. 42-3, Exhibit 2 at 172–73):

[PROSECUTOR]: Okay. Then at the end of the

conversation, Ms. Vasquez said, “You know, just, you

know, and her talking to me and basically what she said is

she—and then you said, “there ain’t been nobody else.”

[HALL]: Okay.

[PROSECUTOR]: And then she said, “I know, you said

that before.” And then you said, “That’s the only person,

Palmira.”

[HALL]: Okay. There’s parts cut out of that, ma’am. And

that’s the reason for that response.

[PROSECUTOR]: What part was cut out?

[HALL]: I don’t know.

Based on Hall’s response, the prosecutor requested a sidebar and the jury was

removed from the courtroom. The trial judge inquired of the prosecutor and defense

counsel about Hall’s testimony about the redacted recording (Doc. 42-3, Ex. 2 at 173–

86):

THE COURT: Remember the Williams Rule hearing?

Anybody remember that? Yes?

[PROSECUTOR]: Yes, Your Honor.

THE COURT: Tell me if I’m crazy or not. Nothing was

ever said at that hearing that there was a controlled phone

call. Am I right or wrong? We certainly did not play the

phone call, did we?

[PROSECUTOR]: (Nods head).

THE COURT: What I had, as I remember, and I don’t want

to remember things wrong. What I had to go by when I

made that ruling was the second girl’s testimony. I’m sorry,

I don’t recall her name.

[PROSECUTOR]: Janice Coleman.

THE COURT: Coleman. And I had, you know, I said,

okay, now I know what Ms. Coleman is going to say. In

order to decide if this is admissible, I also kind of need to

know what the victim is going to say. Right? Yes?

[PROSECUTOR]: Yes, Your Honor.

THE COURT: And we kind of talked about that. And you

said, well, Judge, you can read the complaint affidavit.

That’s more or less what she’s going to testify to. And I

think [defense counsel] pointed out some things that might

have been somewhat inconsistent between that and the

deposition. But by and large, that’s what I was given to go

by; is it not? [Defense counsel], do you disagree?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: That’s what I had to work with, right? Okay.

I first—if I knew about the controlled call before, I had

forgotten it. Maybe I did. I have dealt with this case since

before [defense counsel].

There’s nothing in the complaint affidavit, unless I’m

wrong, that refers to behaviors other than what he is

supposed to have done with [the victim]. Is there any

reference anywhere at all in that complaint affidavit to the

defendant having done anything to Ms. Coleman or

anybody other than [the victim]?

I can make it easy for you. There’s nothing in there about

it. So therefore, when I get here today, the state

introduces—

[PROSECUTOR]: Your Honor, I would point out in the

complaint affidavit that Vasquez then asked him if there

were other family members that he molested.

THE COURT: And he said no.

[PROSECUTOR]: Mr. Hall told her that [the victim] was

the only one.

THE COURT: Okay. When I get here today, the state

introduces the CD of this phone call. [Defense counsel]

asked for a side bar because of something that he picked up

on and it led him to think maybe we were playing the

original recording. We made it clear, no, this is the edited

recording that the state attorney and defense attorney

agreed to. Right? Is that what happened today? It should be

on the record. That’s exactly what happened, isn’t it?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Would you agree that that is the first time

that the Court ever knew there was an edited recording of

the phone call?

[PROSECUTOR]: Yes, Your Honor.

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: Do we have a transcript of the unedited

version of the phone call?

[PROSECUTOR]: We do, Your Honor.

. . . .

THE COURT: Okay. For the record, and this is Ms.

Vasquez speaking, she said, “Um, just mentally. You know,

just, you know, and her talking to me and basically what

she said is, she was not the only family member that you

molested.” And the defendant said, “That’s it, there ain’t

been nobody else.” So sort of the second half of one

sentence is what has been redacted?

[PROSECUTOR]: Correct.

[THE COURT]: Do you agree with that, [defense counsel]?

[DEFENSE COUNSEL]: Yes. Yes, sir.

THE COURT: Now that the record is clear, what is it that

you expect me to do now?

[PROSECUTOR]: Your Honor, since the defendant said

that it was edited or there was parts missing, I would ask

that we be able to play the CD in its original form.

THE COURT: What do you say to that, [defense counsel]?

[DEFENSE COUNSEL]: I don’t see any reason to do that.

. . . .

THE COURT: You know, this trial, this case is just the gift

that keeps on giving, isn’t it? You’re going to hate me. I

want you to find the two questions before I sent the jury out

and read them to me.

(The court reporter reads back last two questions.)

THE COURT: The word blow job in that recording, the

state’s take on it is that the woman said, she said you made

her give you a blow job and that the defendant said, yes, I

did. And the defense’s take on it is, well, she mentioned the

blow job and that’s not what I was admitting to. This whole

dadburn case comes down to the interpretation given that

line of the transcript.

And then the next question, I’m sorry, read it to me again,

the question that followed the blow job question.

(The court reporter reads back question at this time.)

THE COURT: That’s when he said it had been redacted.

Now both of you are intelligent enough to know where the

land mine is in this transcript. Mr. Hall, you’re intelligent

enough to know that. [Prosecutor], you’re intelligent

enough to know that. Why either one of you would risk

stepping on it is absolutely beyond me. What is—why

would you have even asked that question?

[PROSECUTOR]: Because I think that’s a direct admission

when he says, there ain’t been nobody else.

THE COURT: Doesn’t that kind of imply that he had been

accused of doing something to somebody else? Or is that

just something we know because we know he has?

[PROSECUTOR]: I think—I mean, again, it is an

admission.

THE COURT: Here is the thing. This is something I really

want to ask everybody. You know, I don’t try to tell people

how to try their cases. And just because I’ve tried a lot of

cases doesn’t mean I did any better job than anybody else. I

lost my share and I did my share of dumb things in the

courtroom.

The transcript speaks for itself. We know what he said. So

trying to put spin on what he said is for closing argument. I

just don’t know what you think you’re accomplishing. I

mean, most of the time I direct these remarks at the

prosecutors.

When you have the defendant on the witness stand, it seems

to me half of the people in the State Attorney’s Office think

they can somehow get the defendant to say, [prosecutor],

you got me there. You’re right. You’re too fast for me, I did

it, I’m guilty. They’re not going to change their story. But

you’re right there two inches from a mine field and you

decide you want to walk through it.

Mr. Hall—

THE DEFENDANT: Yes, sir.

THE COURT: — just man to man from me to you, you

know good and well why that tape is excised is because you

know good and well that your lawyer has fought tooth and

nail to keep this jury from hearing about the other stuff you

have been accused of doing. You knew that, but yet you

chose to make a remark about the thing being edited. So

therefore, now we’ve got this jury thinking, well, the cops

messed with that tape. So I don’t know what to do. If I could

just fine people for being stupid, this would be easy.

[Defense counsel], I’m very concerned about what this jury

is going to think of what Mr. Hall said, as ill-advised as the

question itself might have been. I’m very concerned about

it. It seems to me like they are going to come away thinking

this thing was doctored, and doctored in such a way as to

make it look worse for him than it actually is. You know,

this is a classic case of somebody’s client getting on the

stand and letting his mouth override his brain. Have you got

a response . . . ?

[DEFENSE COUNSEL]: Judge, I don’t have a response, I

have a comment. My concern is the same as your own. I

don’t know how a jury hears—moves forward knowing we

have a statement out there.

Originally, my fault on this matter was [the prosecutor]

came to me earlier and said she was going to redact this,

showed me the redaction. I made a mistake, I did not ask

her to also redact the following two lines that followed that

question. “That’s it, there ain’t been nobody else” and

“that’s the only person, Palmira.” And I have been thinking

about it all day, but it is a mistake and I own that mistake

and I have allowed this to get to this situation because of

my choice.

THE COURT: Okay. We ain’t having no throwing yourself

on a sword here . . . .

[DEFENSE COUNSEL]: I’m not throwing myself on a

sword. My point is, if you’re asking for a cure, I don’t know

what the cure is.

THE COURT: I do. I’ll tell you what, I have gotten

round-about answers to half of the questions I have asked

here in this trial. I’m going to grant the state’s motion.

We’re going to play the whole thing. Mr. Hall, you did this

to yourself.

THE DEFENDANT: She asked me the question, Your

Honor.

THE COURT: Mr. Hall—

THE DEFENDANT: She shouldn’t have asked me the

question. How can I answer half a question?

THE COURT: — if you argue with me, because, sir, let me

tell you what, that would be even stupider than what you

have already done to argue with me. We’re playing the tape.

We’re playing the whole thing. You’re lucky I don’t let the

Williams Rule witness come in here and fill in the gaps, too,

because, brother, I’m going to tell you something, she got

excluded for one reason only and that is because it doesn’t

qualify as Williams Rule evidence. It don’t mean that I

don’t think it might have happened. It means that the state

didn’t have the legal authority to use it. And here we play

games and we step on a land mine and it blows up.

THE DEFENDANT: I wasn’t trying to—

THE COURT: Don’t you talk to me again. Don’t say

another word to me for the rest of this day. Bring the jury

in.

THE BAILIFF: Yes, sir.

[DEFENSE COUNSEL]: Judge, for economy sake, I have

no objection obviously to just playing the tape, however you

want to do it and proceed is fine with me.

The unredacted audio recording of the controlled call was then played for the

jury. (Doc. 42-3, Ex. 2 at 187–92)

Contrary to Hall’s contention, the challenged statement about the molestation

of other family members was not played for the jury during Vasquez’s testimony and

the redacted version did not reference other bad acts or other alleged victims. Only

after Hall testified about the recording being edited did the trial judge allow the

unredacted version to be played for the jury. When the trial judge inquired of trial

counsel about whether to grant the State’s request to play the unredacted version,

counsel stated, “I don’t see any reason to do that.” (Doc. 42-3, Ex. 2 at 180) Although

not phrased as a formal objection, counsel did not initially agree to the State playing

the unredacted version.6 Once the trial judge made clear that the unredacted version

would be played for the jury, counsel did not object to the court’s procedure for playing

the recording. Given the trial judge’s discussion on the admission of the unredacted

recording as a result of Hall’s trial testimony, Hall fails to show that a more formal or

6 After the trial, counsel unsuccessfully moved for a new trial based on the admission

of the unredacted recording. (Doc. 42-2, Ex. 1 at 54–57) Hall subsequently argued in his

direct appeal that he “was denied a fair trial when Judge Raiden granted the prosecutor’s

request to play the unredacted tape which informed the jury there had been other accusations

of sexual misconduct against Mr. Hall.” (Doc. 42-3, Ex. 3 at 299) The State argued in its

appellate brief that Hall failed to preserve this issue for appeal based on a lack of objection at

trial and “therefore, a fundamental error standard of review applies.” (Doc. 42-3, Ex. 4 at 325)

The state appellate court per curiam affirmed Hall’s convictions. (Doc. 42-3, Ex. 6)

further objection would have resulted in the exclusion of the unredacted recording.

Hall fails to meet his burden of proving that the state court either unreasonably applied

Strickland or unreasonably determined the facts by rejecting this ground of ineffective

assistance of counsel. 28 U.S.C. § 2254 (d)(1), (d)(2).

Ground Three

Hall contends that his trial counsel rendered ineffective assistance by not calling

his son, Wyndel Hall, Jr., to testify in his defense. Hall claims that his son “would

have testified that he’s never observed any sexual misconduct between the petitioner

and [the victim], that [the victim] never told him of any sexual misconduct on the part

of the petitioner, that he’d shared the same bedroom with [the victim], and that she

had reason to lie because she was unhappy that the petitioner had remarried her aunt

and was financially secure, and was not helping her financial situation.” (Doc. 1 at 10)

Hall alleges that his son’s testimony would have refuted the victim’s allegations “that

as she got older she told several people about the incidents, along with [Hall’s son].”

(Id.)

The state post-conviction court denied this ground of ineffective assistance of

counsel as follows (Doc. 42-4, Exhibit 15 at 58) (court’s record citations omitted):

. . . . Defendant argues that trial counsel failed to call

Wyndel Hall Jr. as a witness. Mr. Hall would have testified

that the Defendant did not sneak into the room he shared

with the victim and that the victim did not confide in him.

The Court finds that such testimony would not likely

change the outcome of the trial. The victim testified that the

event occurred in the bathroom or in Defendant’s own

room. Nobody was around when the incidents occurred.

Furthermore, the victim cannot remember when she told

Mr. Hall Jr. that the Defendant has sexually battered her.

This would have occurred years after the abuse.

Hall’s unsupported contention that counsel should have called his son to testify,

without more, is insufficient to warrant relief. See, e.g., Bray v. Quarterman, 265 F.

App’x 296, 298 (5th Cir. 2008) (“To prevail on [a claim of ineffective assistance of

counsel for failing to call a witness], the petitioner must name the witness, demonstrate

that the witness was available to testify and would have done so, set out the content of

the witness’s proposed testimony, and show that the testimony would have been

favorable to a particular defense.”); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.

1991) (“[E]vidence about the testimony of a putative witness must generally be

presented in the form of actual testimony by the witness or an affidavit. A defendant

cannot simply state that the testimony would have been favorable; self-serving

speculation will not sustain an ineffective assistance claim.”) (footnotes omitted).

“[M]ere speculation that missing witnesses would have been helpful is insufficient to

meet the petitioner’s burden of proof.” Streeter v. United States, 335 F. App’x 859, 864

(11th Cir. 2009). Hall fails to show that the outcome of his trial would have been

different if trial counsel had called his son to testify. Because he shows no prejudice,

Hall’s claim of ineffective assistance of counsel warrants no federal habeas relief

because Strickland’s requirements remain unsatisfied. Hall fails to establish that the

state court either unreasonably applied Strickland or unreasonably determined the facts

by rejecting this ground of ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1),

(d)(2).

Ground Four

Hall contends that his trial counsel rendered ineffective assistance by not

objecting to the allegedly improper cross-examination of Hall about the redacted

recording of the controlled call. Hall alleges that his trial counsel was aware that the

trial judge “had made a prior ruling before trial that the prosecution may not refer to

any testimony given by the alleged victim’s cousin . . . about allegations of sexual

misconduct by the petitioner.” (Doc. 1 at 13) Hall asserts that during

cross-examination the prosecutor tried to elicit from him testimony about alleged

misconduct with the victim’s cousin and that his counsel’s “spontaneous response

caused the court to make the unfair and improper decision to play the CD in its

entirety.” (Id.)

The state post-conviction court denied this ground of ineffective assistance of

counsel as follows (Doc. 42-4, Exhibit 15 at 58–59) (court’s record citation omitted):

Defendant argues that trial counsel failed to object to the

State Attorney’s improper cross examination of the

Defendant. The Court does not find that the State Attorney

engaged in improper cross examination. The State Attorney

was referencing parts of the controlled phone call that had

already been played for the jury. The Defendant then chose

to testify that the cd had been edited.

Hall fails to establish that the portion of the cross-examination that he

challenges was improper. Because he satisfies neither requirement of Strickland, Hall

cannot show entitlement to relief. The state courts' rejection of this ground is neither

contrary to, or an unreasonable application of, Strickland nor was the ruling based on

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

state court. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Five

Hall contends that his attorney rendered ineffective assistance by not retaining

either Robert Berland or Valerie McLain as an expert witness and by not moving to

have the victim examined “to show that she had never suffered the symptoms and

diagnostic criteria typically associated with C[hild] S[exual] A[buse]

A[ccommodation] S[yndrome].” (Doc. 1 at 15) Hall alleges that “had counsel

retained the services of one or both of these mental health experts and moved to have

[the victim] examined, it is probable that exculpatory evidence would have surfaced

that [the victim] was not showing signs of CSAAS and in their expert opinions, it was

unlikely that she was sexually abused as a child.” (Id.) The state post-conviction court

denied this ground of ineffective assistance of counsel, concluding “that such evidence,

if obtained, would not change the outcome of trial.” (Doc. 42-4, Exhibit 15 at 59)

In assessing a lawyer’s performance, “[c]ourts must ‘indulge [the] strong

presumption’ that counsel’s performance was reasonable and that counsel made all

significant decisions in the exercise of reasonable professional judgment.” Chandler,

218 F.3d at 1314. See also, Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir.

2007) (“Even if counsel’s decision . . . appears to have been unwise in retrospect, the

decision will be held to have been ineffective assistance only if it was so patently

unreasonable that no competent attorney would have chosen it.”); Waters v. Thomas,

46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“[W]hich witnesses, if any, to call, and

when to call them, is the epitome of a strategic decision.”). Hall’s unsupported

contention that counsel should have called either Robert Berland or Valerie McLain

as an expert witness, without more, is insufficient to warrant relief. See Bray, 265 F.

App’x at 298; Ashimi, 932 F.2d at 650.

Hall has not established that either Berland or McClain would have testified

that the victim did not meet the diagnostic criteria for CSAAS or that either expert

would have opined that the victim was not sexually abused as a child. “Without some

specificity as to the proposed expert’s testimony, any assertion that an expert would

testify consistently with [a petitioner’s] claims is mere speculation and does not entitle

him to habeas relief.” Finch v. Sec’y, Dept of Corr., 643 F. App’x 848, 852 (11th Cir.

2016). Hall fails to show that the outcome of his trial would have been different if trial

counsel had called either witness to testify. See Dorsey v. Chapman, 262 F.3d 1181, 1186

(11th Cir. 2001) (holding that the petitioner did not establish ineffective assistance of

counsel based on defense counsel's failure to call an expert witness because the

petitioner failed to show that counsel's decision was so patently unreasonable that no

competent attorney would have chosen that strategy), cert. denied, 535 U.S. 1000

(2002). Because he shows no prejudice, Hall’s claim of ineffective assistance of

counsel warrants no federal habeas relief because Strickland’s requirements remain

unsatisfied. Hall fails to establish that the state court either unreasonably applied

Strickland or unreasonably determined the facts by rejecting this ground of ineffective

assistance of counsel. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Six

Hall contends that his trial counsel rendered ineffective assistance by not

objecting to the prosecutor giving the jury an un-edited copy of the transcript of the

controlled phone call and by not reviewing the transcript before it was given to the

jury. Hall alleges that such errors resulted in prejudice “because the un-edited

transcript referred to allegations of other bad acts or wrongs made by the alleged

victim’s cousin . . . .” (Doc. 1 at 18) The state post-conviction court concluded that

the trial transcript refutes this ground and denied relief.7 (Doc. 42-4, Exhibit 15 at

59) Hall argues in his reply that the state court relied on the wrong page of the trial

transcript to refute his claim and that the record shows that the State gave to the jury

an unedited copy of the transcript. (Doc. 45 at 6)

The record shows that the State introduced into evidence a transcript of the

controlled call. (Doc. 42-3, Ex. 2 at 103–04) Hall presents no evidence establishing

that the transcript was an unredacted copy as he contends. Moreover, in his motion

for a new trial Hall acknowledged that the State used a redacted transcript. (Doc. 42-4,

Ex. 15 at 86) The state courts’ rejection of this ground of ineffective assistance of

counsel was neither contrary to, or an unreasonable application of, Strickland nor was

7 The state post-conviction court relied on an excerpt of page 379 of the trial transcript

in which the trial judge determined that the jury would hear the complete recording of the

telephone call but without an unredacted transcript (Doc. 42-3, Ex. 2 at 187):

THE COURT: Members of the jury, we’re going to play the

complete recording of the phone call. This is the complete

recording of the phone call. You don’t have a transcript to

follow. State, play it.

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

presented in the state court. 28 U.S.C. § 2254(d)(1), (d)(2).

Grounds Seven and Eight

In Ground Seven Hall contends that his trial counsel rendered ineffective

assistance by not objecting to the State’s use of “bad acts” evidence, including the

controlled call, and not objecting to such evidence becoming a feature of the trial. Hall

generally refers to “[t]he statements of [the victim] and Palmira Vasquez which w[ere]

not admitted into evidence” and to “uncharged crime evidence” as the basis for this

ground. (Doc. 1 at 28–29) Hall offers no greater specificity in his reply. (Doc. 45

at 7–8)

In Ground Eight Hall contends that his trial counsel rendered ineffective

assistance by not moving for a mistrial “when the court committed reversible error by

providing the jury during deliberations the un-redacted CD of the controlled phone

call after the court had properly excluded portions of the conversation in limine which

mentions the defendant had committed similar acts but at other times not charged in

the information.” (Doc. 1 at 22)

The allegations Hall presents in Grounds Seven and Eight of the federal petition

are a combination of the allegations raised in claims seven and eight of his Rule 3.850

motion. (Doc. 42-4, Ex. 14 at 26–31) The state post-conviction court denied these

grounds of ineffective assistance of counsel as follows (Doc. 42-4, Exhibit 15 at 59):

In claim 7, Defendant argues that trial counsel failed to

object to the introduction of other bad acts/crimes.

Defendant fails to point out which bad acts were

introduced. Upon reading of the transcript, the case focused

on the crimes charged. The Court does not see any reference

to other bad acts/crimes until the original cd was played

after the Defendant mentioned that it had been edited. At

that point the jury learned that another relative had accused

the Defendant of similar crimes.

In claim 8, Defendant argues that trial counsel should have

moved for a mistrial when the introduction of other bad

acts, William’s Rule evidence and the controlled phone call

became the main feature at trial. Again, the Court would

point out that other bad acts did not come into evidence

until the Defendant referenced the edited cd. No William’s

Rule evidence was presented and the controlled phone call

was an admissible piece of evidence. The Court does not

find deficient performance or prejudice.

As the state court noted, once Hall testified about the edited controlled call, the

trial judge allowed the unredacted audio recording to be played for the jury.8

Accordingly, the references to other bad acts included on the recording were properly

before the jury. Hall presents no viable challenge to the admissibility of either the

unredacted recording or other bad acts. Moreover, in Florida, “[a] motion for a

mistrial should only be granted when an error is so prejudicial as to vitiate the entire

trial.” England v. State, 940 So. 2d 389, 401–02 (Fla. 2006). See also Fletcher v. State,

168 So. 3d 186, 207 (Fla. 2015) (“[T]he standard for a motion for mistrial is high[.]”).

Hall fails to show that a motion for mistrial would have been granted on the basis he

suggests in light of his testimony about the edited call. The state post-conviction court

8 As noted earlier, when the prosecutor asked the trial judge to allow the entire

controlled call to be played for the jury once Hall testified that parts of the call had been “cut

out,” trial counsel did not agree that the unredacted call should be played, stating that he “did

not see any reason to do that.” (Doc. 42-3, Ex. 2 at 180)

neither unreasonably applied controlling Supreme Court precedent nor unreasonably

determined the facts by rejecting these grounds of ineffective assistance of counsel. 28

U.S.C. § 2254(d)(1), (d)(2).

Ground Nine

Hall alleges that “Florida Statute[] § 794.011 (2) has been unconstitutional since

1981 and the Florida Legislature refuses to amend the statute, therefore, the offense of

capital sexual battery does not constitutionally exist.” (Doc. 1 at 21) He asserts that

the state court committed reversible error by overlooking this ground, resulting in a

violation of his rights under the Fifth, Sixth, and Fourteenth Amendments.

Hall presented this challenge to the constitutionality of the statute to the state

court in his original Rule 3.850 motion and his amended Rule 3.850 motion filed in

January 2014.9 (Doc. 45-3, Ex. 11 at 402–06; Ex. 12 at 455) The state post-conviction

court dismissed the amended Rule 3.850 motion without prejudice based on Hall’s

failure to include a certification and allowed Hall the opportunity to file a facially

sufficient motion. (Doc. 42-3, Ex. 13) When Hall filed his subsequent Rule 3.850

motion in February 2014 he did not include a challenge to the constitutionality of the

state statute as a ground for relief in the body of the motion. (Doc. 42-4, Ex. 14) The

Respondent asserts that, because Hall attached “claim 9” as an exhibit to his properly

filed Rule 3.850 motion rather than presenting it in the motion as a claim for relief,

9 Hall raised this claim as ground nine of his original Rule 3.850 motion. (Doc. 42-3,

Ex. 11 at 402–06) Although he did not specifically designate ground nine in his amended Rule

3.850 motion, Hall includes ground nine in his “memorandum of law” in his amended Rule

3.850 motion. (Doc. 42-3, Ex. 12 at 455)

Hall “abandoned and waived” the claim, rendering it unexhausted and procedurally

barred from federal review. (Doc. 41 at 24–25) Hall argues that the state court did not

address this ground in its order denying his Rule 3.850 motion but does not dispute

the Respondent’s assertion of either abandonment or procedural default.

To the extent that Hall did not present this ground to the state court as an

independent basis for relief in the body of his amended Rule 3.850 motion, the ground

is arguably procedurally defaulted as the State asserts. However, the State cites no

authority specifically holding that including a ground for relief as an attachment to an

otherwise properly filed amended Rule 3.850 motion for post-conviction relief results

in waiver or abandonment of the ground. Notwithstanding a procedural bar, Hall is

not entitled to relief because, even if considered on de novo review, the ground fails on

the merits.

Hall argued in his original Rule 3.850 motion that “[s]ince the death penalty

has been forbidden for Fla. Stat. 794.011(2) and that sexual battery is no longer a

capital felony by definition, the Defendant’s conviction for capital sexual battery

violates the Eighth and Fourteenth Amendments to the United States Constitution and

the continuation of the conviction constitutes a manifest injustice.” (Doc. 42-3, Ex. 11

at 403) Citing Buford v. State, 403 So. 2d 943 (Fla. 1981),10 Hall argued that “[s]ince

the Florida Supreme Court declared the death penalty to be unconstitutional for capital

sexual battery in Buford . . ., Fla. Stat. 794.011(2) became non-existent and does not

10 Buford holds that a sentence of death for the crime of sexual assault violates the

Eighth Amendment’s prohibition against cruel and unusual punishment. 403 So. 2d at 951.

meet constitutional muster due to the provisions for the death penalty remaining in the

statute and must be re-enacted by the legislature by removing the death penalty

provisions.” (Id.)

An amended information charged Hall with capital sexual battery pursuant to

section 794.011, Florida Statutes. (Doc. 42-2, Ex. 1 at 26) However, despite its title,

“capital sexual battery” is not a capital offense because it is not subject to the death

penalty. See Buford, 403 So. 2d 943 (holding that a death sentence cannot be imposed

for sexual battery of child). See also Huffman v. State, 813 So. 2d 10, 12 (Fla. 2000)

(explaining “even if a felony is classified in the Florida Statutes as a capital offense, it

is not ‘capital’ under case law unless its subject to the death penalty”); State v. Hogan,

451 So. 2d 844, 845–46 (Fla. 1984) (“Sexual battery of a child, . . . while still defined

as a ‘capital’ crime by the legislature, is not capital in the sense that a defendant might

be put to death.”). The Supreme Court of the United States has rejected the argument

that the failure to amend the state statute which classifies sexual battery upon a person

less than twelve years of age as a capital offense can be interpreted as permitting the

application of the death penalty. In Kennedy v. Louisiana, 554 U.S. 407, 424–25 (2008),

the Court explained:

In 1981, however, the Supreme Court of Florida held the

death penalty for child sexual assault to be unconstitutional.

See Buford, supra. It acknowledged that Coker addressed only

the constitutionality of the death penalty for rape of an adult

woman, 403 So.2d, at 950, but held that “[t]he reasoning of

the justices in Coker . . . compels [the conclusion] that a

sentence of death is grossly disproportionate and excessive

punishment for the crime of sexual assault and is therefore

forbidden by the Eighth Amendment as cruel and unusual

punishment,” id., at 951. Respondent points out that the

state statute has not since been amended. Pursuant to Fla.

Stat. § 775.082(2) (2007), however, Florida state courts

have understood Buford to bind their sentencing discretion

in child rape cases. See, e.g., Gibson v. State, 721 So. 2d 363,

367, and n. 2 (Fla. App. 1998) (deeming it irrelevant that

“the Florida Legislature never changed the wording of the

sexual battery statute”); Cooper v. State, 453 So. 2d 67 (Fla.

App. 1984) (“After Buford, death was no longer a possible

penalty in Florida for sexual battery”); see also Fla. Stat.

§ 775.082(2) (“In the event the death penalty in a capital

felony is held to be unconstitutional by the Florida Supreme

Court . . . the court having jurisdiction over a person

previously sentenced to death for a capital felony . . . shall

sentence such person to life imprisonment[.]”).

Hall fails to establish either that section 794.011(2)(a), Florida Statutes,

proscribing capital sexual battery is unconstitutional or that his conviction under the

statute violates either his right to due process or the prohibition against cruel and

unusual punishment. Accordingly, even if reviewed on the merits, Ground Nine

warrants no relief.

Accordingly, Hall’s petition for the writ of habeas corpus (Doc. 1) is DENIED.

The Clerk is directed to enter a judgment against Hall and CLOSE this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

IT IS FURTHER ORDERED that Hall is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement

to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a

district court must first issue a certificate of appealability (“COA”). Section 2253(c)(2)

limits the issuing of a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” To merit a certificate of appealability, Hall must

show that reasonable jurists would find debatable both (1) the merits of the underlying

claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack

v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir

2001). Because he fails to show that reasonable jurists would debate either the merits

of the claims or the procedural issues, Hall is entitled to neither a certificate of

appealability nor leave to appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Hall must obtain permission from the circuit court to appeal in

forma pauperis.

DONE and ORDERED in Tampa, Florida this 19th day of September, 2022.

Chalene Sharda Wo TDs pl ell

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

All parties of record including unrepresented parties if any

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