Hagans v. Secretary, Department of Corrections (Putnam County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICHARD S. HAGANS,

Petitioner,

vs. Case No. 3:20-cv-1080-BJD-MCR

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. STATUS

Petitioner Richard S. Hagans filed a Petition Under 28 U.S.C. § 2254 for

Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1). He

challenges his Putnam County conviction for sale of cocaine. Respondents

filed a Response to Petition (Response) (Doc. 9) and an Appendix (Doc. 9).1

Petitioner filed a notice (Doc. 14) stating that he has no intention of filing a

reply and will rely on the record.

1 The Court will refer to the exhibits in the Appendix (Doc. 9) as “Ex.” Where provided, the

page numbers referenced are the Bates stamp numbers at the bottom of each page of the

Exhibit. Otherwise, the page number on the particular document will be referenced. The

Court references the docket and page numbers assigned by the electronic filing system for

the Petition and Response.

The Court concludes no evidentiary proceedings are required in this

Court. The pertinent facts are fully developed in the record, or the record

otherwise precludes habeas relief; therefore, the Court can adequately assess

these claims without any further factual development. Turner v. Crosby, 339

F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).

II. HABEAS REVIEW

Federal courts are authorized to grant habeas relief to a state prisoner

“only on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” Lee v. GDCP Warden, 987 F.3d 1007,

1017 (11th Cir.) (quoting 28 U.S.C. § 2254), cert. denied, 142 S. Ct. 599 (2021).

For issues previously decided by a state court on the merits, this Court must

review the underlying state-court decision under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). In doing so, a federal district

court must employ a very deferential framework. Sealey v. Warden, Ga.

Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (citation omitted)

(acknowledging the deferential framework of AEDPA for evaluating issues

previously decided in state court), cert. denied, 141 S. Ct. 2469 (2021); Shoop

v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (recognizing AEDPA imposes

“important limitations on the power of federal courts to overturn the

judgments of state courts in criminal cases").

2

Thus, “[u]nder AEDPA, a court cannot grant relief unless the state

court's decision on the merits was ‘contrary to, or involved an unreasonable

application of,’ Supreme Court precedent, or ‘was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1364 (11th

Cir.) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, 142 S. Ct. 441 (2021). The

Eleventh Circuit instructs:

A state court’s decision is “contrary to” clearly

established federal law if the state court either reaches

a conclusion opposite to the Supreme Court of the

United States on a question of law or reaches a

different outcome than the Supreme Court in a case

with “materially indistinguishable facts.” Williams

v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146

L.Ed.2d 389 (2000). “Under the ‘unreasonable

application’ clause, a federal habeas court may grant

the writ if the state court identifies the correct

governing legal principle” from Supreme Court

precedents “but unreasonably applies that principle to

the facts of the prisoner’s case.” Id. at 413, 120 S. Ct.

1495.

Lee, 987 F.3d at 1017-18. Therefore, habeas relief is limited to those occasions

where the state court’s determinations are unreasonable, that is, if no

fairminded jurist could agree with them. McKiver, 991 F.3d at 1364.

This is a high hurdle, not easily surmounted. If the state court applied

clearly established federal law to reasonably determined facts when

3

determining a claim on its merits, “a federal habeas court may not disturb the

state court’s decision unless its error lies ‘beyond any possibility for fairminded

disagreement.’” Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curiam)

(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Also, a state court's

finding of fact, whether a state trial court or appellate court, is entitled to a

presumption of correctness under 28 U.S.C. § 2254(e)(1). “The state court’s

factual determinations are presumed correct, absent clear and convincing

evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting 28 U.S.C. §

2254(e)(1)). See Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1220 (11th

Cir. 2021) (Newsome, Circuit Judge, concurring) (recognizing the universal

requirement, applicable to all federal habeas proceedings of state prisoners,

set forth in 28 U.S.C. § 2254(e)(1)). This presumption of correctness, however,

applies only to findings of fact, not mixed determinations of law and fact.

Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per

curiam) (acknowledging the distinction between a pure question of fact from a

mixed question of law and fact), cert. denied, 573 U.S. 906 (2014). 2

2 The Court finds the reasoning of Brannan persuasive on this point. See McNamara v.

Gov’t Emp. Ins. Co., 30 F.4th 1055, 1060-61 (11th Cir. 2022) (reiterating that unpublished

opinions may be cited as persuasive authority but are not binding precedent. See Rule 32.1,

Fed. R. App. P. The Court references other unpublished decisions in this opinion,

recognizing that these decisions constitute persuasive authority, not binding precedent.

4

Furthermore, the second prong of § 2254(d), requires this Court to “accord the

state trial court [determination of the facts] substantial deference.” Dallas v.

Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576

U.S. 305, 314 (2015)), cert. denied, 142 S. Ct. 124 (2021). As such, a federal

district court may not supersede a state court’s determination simply because

reasonable minds may disagree about the finding. Id. (quotation and citation

omitted).

Finally, where there has been one reasoned state court judgment

rejecting a federal claim followed by an unexplained order upholding that

judgment, federal habeas courts employ a "look through" presumption: "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." Wilson

v. Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The two-part Strickland 3 standard governs claims of ineffective

assistance of counsel. Knight v. Fla. Dep’t of Corr., 958 F.3d 1035, 1038 (11th

Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021). See Freeman v. Comm’r, Ala.

3 Strickland v. Washington, 466 U.S. 668 (1984).

5

Dep’t of Corr., 46 F.4th 1193, 1220 (11th Cir. 2022) (“In an ineffective

assistance of counsel claim, § 22543(d)’s terms are judged by the standard set

forth in Strickland v. Washington.”). Pursuant to this standard, a defendant

must show: (1) his counsel's performance was deficient and (2) the deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687. A district

court need not address both prongs if a petitioner makes an insufficient

showing on one. Fifield v. Sec’y, Dep’t of Corr., 849 F. App’x 829, 833 (11th

Cir. 2021) (per curiam) (relying on Strickland), cert. denied, 142 S. Ct. 788

(2022).

To prevail, a petitioner must successfully show his counsel “made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” as well as show “the deficient

performance prejudiced the defendant, depriving him of a ‘fair trial, a trial

whose result is reliable.’” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th

Cir. 2021) (quoting Strickland, 466 U.S. at 687), cert. denied, 142 S. Ct. 1234

(2022). Additionally, combining the deferential standard for judging the

performance of counsel with the extra layer of deference that § 2254 provides,

the resulting double deference “is doubly difficult for a petitioner to

overcome[.]” Johnson v. Sec’y, DOC, 643 F.3d 907, 911 (2011).

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“And to determine whether [Petitioner] is entitled to habeas relief[,]” this

Court “must ask (1) whether the [state court] decisions were contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined’ in Strickland, or (2) whether the . . . decisions were based on an

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

the state court proceeding.” Whatley v. Warden, Ga. Diagnostic &

Classification Ctr., 927 F.3d 1150, 1175 (11th Cir. 2019) (citations and internal

quotation marks omitted), cert. denied, 141 S. Ct. 1299 (2021). This Court

must be ever mindful that a state court’s decision must be given deference and

latitude and therefore the AEDPA standard is, as a consequence, quite difficult

to meet.

IV. GROUNDS

Petitioner raises three grounds: (1) “[t]rial court erred in violating

Petitioner’s 6th Amendment right to confront his accuser by allowing the audio

[portion] of the videotape to be played in trial without the presence of the

confidential informant[;]” (2) “the trial court erred in denying Petitioner’s

Motion for Judgement [sic] of Acquittal after the state [failed] to present

evidence of the com[m]ission of sale of cocaine[;]” and (3) “[t]rial counsel was

ineffective for failing to file a motion to have a separate hearing of admissibility

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of the audio and video portions of the [surveillance] video[.]” Petition at 5, 7-

8.

A. Ground One

“Trial court erred in violating Petitioner’s 6th Amendment right to

confront his accuser by allowing the audio [portion] of the videotape

to be played in trial without the presence of the confidential

informant.”

Petitioner exhausted ground one by raising it on appeal to the Fifth

District Court of Appeal (5th DCA). Ex. H; Ex. I; Ex. J. On July 18, 2017,

the 5th DCA affirmed per curiam. Ex. K. The mandate issued on August 11,

2017. Ex. L. He raised a comparable claim in his Rule 3.850 motion, Ex. P

at 3-4. The circuit court succinctly described the post-conviction claim:

“Defendant claims that the Trial Court abused its discretion by admitting into

evidence over objection, the out of Court statements of the confidential

informant on the drug transaction video to prove the truth of the matter that

Defendant sold crack cocaine which violated Defendant’s constitutional right

to confront and cross examine accuser.” Ex. T at 2. The court found the claim

of trial court error should or could have been raised on direct appeal. Id. On

June 2, 2020, the 5th DCA affirmed per curiam. Ex. X. The mandate issued

on June 26, 2020. Ex. Y.

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Petitioner raises a Confrontation Clause claim under the Sixth

Amendment. He relies on Crawford v. Washington, 541 U.S. 36 (2004). He

contends that the confidential informant’s statements on the video are

hearsay, Petitioner never had a prior opportunity to cross-examine the

witness, and the confidential informant (CI) was unavailable to testify at trial.

Petition at 5.

The Confrontation Clause provides, that, “[i]n all criminal prosecutions,

the accused shall enjoy the right ... to be confronted with the witnesses against

him.” Crawford, 541 U.S. at 42. In analyzing Crawford, the Eleventh Circuit

explained:

the Confrontation Clause prohibits the “admission of

testimonial statements of a witness who [does] not

appear at trial unless he [is] unavailable to testify, and

the defendant ha[s] had a prior opportunity for cross-

examination.” Id. at 53–54, 124 S. Ct. 1354. The

Supreme Court has since clarified that the

Confrontation Clause prohibits only the introduction

of testimonial hearsay statements. See Whorton v.

Bockting, 549 U.S. 406, 419–20, 127 S. Ct. 1173, 167

L.Ed.2d 1 (2007) (“Under Crawford, ... the

Confrontation Clause has no application to [out-of-

court nontestimonial statements] and therefore

permits their admission even if they lack indicia of

reliability.”); Davis v. Washington, 547 U.S. 813, 823–

24, 126 S. Ct. 2266, 165 L.Ed.2d 224 (2006) (same).

United States v. Hano, 922 F.3d 1272, 1287 (11th Cir.), cert. denied, 140 S. Ct.

488 (2019).

9

As far as the term testimonial, Justice Scalia opined, “it applies at a

minimum to prior testimony at a preliminary hearing, before a grand jury, or

at a former trial; and to police interrogations.” Crawford, 541 U.S. at 68.

Respondents submit that the audio portion of the videotape is plainly

nontestimonial as the videotape depicts and records the criminal act itself.

Response at 21. Thus, the recording device was recording events as they

happened, and the participants were not describing past events. See Davis v.

Washington, 547 U.S. 813, 827-28 (2006) (explaining that the individual was

not acting as a witness nor was the individual testifying, distinguishing the

circumstances from those in Crawford).

The record demonstrates that the state filed a Motion in Limine to

Determine Pre-Trial the Admissibility of Drug Transaction Video. Ex. B.

The state noted the CI was unavailable to testify and sought the admissibility

of the video and audio in its entirety. Id. at 58. The state relied on four cases:

(1) Wagner v. State, 707 So. 2d 827 (Fla. 1st DCA 1998); (2) State v. Johnson,

128 So. 3d 237, 239 (Fla. 4th DCA 2013) (per curiam); (3) Bowens v. State, 80

So. 3d 1056 (Fla. 4th DCA 2012) (per curiam); and (4) State v. Holland, 76 So.

2d 1032 (Fla. 4th DCA 2011) [sic]. Ex. B at 58-59.

The court heard argument and some testimony and addressed the

motion. Ex. D at 174-211. Stephanie Harris Park, defense counsel, objected,

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relying on the Sixth Amendment to the United States Constitution. Id. at

177. She stated she was objecting to the sound being played as “what the

confidential informant would say on the video would be hearsay[.]” Id. Ms.

Park argued only the CI used “drug language.” Id. Finally, she claimed that

the video does not show an exchange of money and drugs. Id. She urged the

court to find that this was testimonial, and the Confrontation Clause applies.

Id. at 206. The court ruled, admitting the evidence subject to proper

authentication. Id. at 211.

In Johnson, the 4th DCA relied on the decision in Davis and concluded,

“[t]he video does not involve a statement made after the crime to prove a past

event. Rather, the video depicts the criminal act itself. Thus, it is not

testimonial, and Crawford is not implicated.” Johnson, 128 So. 3d at 239

(citing United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) for

the proposition that recorded conversations between codefendant and

confidential informant concerning a drug transaction were non-testimonial).

Upon review of relevant case law, conversations during controlled drug

buys are considered non-testimonial. See United States v. Makarenkov, 401

F. App’x 442, 444 (11th Cir. 2010) (per curiam) (finding statements made to CI

were not testimonial), cert. denied, 563 U.S. 991 (2011); United States v.

Boykins, 380 F. App’x 930, 934 (11th Cir. 2010) (per curiam) (statements were

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neither hearsay nor testimonial); United States v. Tyree, 273 F. App’x 830, 832

(11th Cir. 2008) (per curiam) (challenged evidence of a recording between CI

and declarant regarding a drug buy determined to be non-testimonial). See

also United States v. Van Buren, No. 1:16-CR-243-ODE-JFK, 2017 WL

11551849, at *4 (N.D. Ga. Oct. 11, 2017) (finding defendant’s conversations

with undercover informant cannot be testimonial because defendant did not

know his conversations were being recorded); United States v. Hutchinson, No.

8:09-cr-107-T-24-EAJ, 2010 WL 1462311, at *4 (M.D. Fla. Apr. 13, 2010) (not

reported in F. Supp. 2d) (finding Crawford not implicated under circumstances

suggesting a voluntary and knowing conversation would not happen with a

government agent).

For material to be considered testimonial it needs to be the functional

equivalent to testimony, like affidavits; depositions; custodial examinations;

prior testimony at a formal trial, preliminary hearing or before a grand jury;

and police interrogations or confessions to law enforcement and the like.

United States v. Underwood, 446 F.3d 1340, 1346-47 (11th Cir.), cert. denied,

549 U.S. 903 (2006). Here, the challenged evidence, the videotape, “does not

fall within any of the formulations which Crawford suggested as potential

candidates for ‘testimonial’ status.” Underwood, 466 F.3d at 1347. These

types of conversations are intrinsically non-testimonial. Hutchinson, 2010

12

WL 1462311, at *4. Thus, the statements made on the audio portion of the

videotape were not testimonial. As non-testimonial statements are exempt

from the strict requirements of Crawford, there has been no Sixth Amendment

violation of the Confrontation Clause.

The 5th DCA affirmed the decision of the trial court. The Court finds

the state court’s determination is consistent with federal precedent. Although

unexplained, the 5th DCA’s decision is entitled to AEDPA deference.

Petitioner has failed to demonstrate that the state court’s adjudication of the

claim resulted in a decision that was contrary to, or involved an unreasonable

application of clearly established federal law, or that it was based on an

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

the state court. Petitioner is not entitled to habeas relief on ground one of the

Petition.

B. Ground Two

“[T]he trial court erred in denying Petitioner’s Motion for Judgement

[sic] of Acquittal after the state [failed] to present evidence of the

com[m]ission of sale of cocaine.”

In this ground, Petitioner contends that the state never proved that he

sold or had possession of cocaine. Petition at 7. He exhausted this claim by

raising it on direct appeal. Ex. H; Ex. I; Ex. J. On July 18, 2017, the 5th DCA

13

affirmed per curiam. Ex. K. The mandate issued on August 11, 2017. Ex.

L.

Petitioner fails to raise a claim of constitutional dimension in ground two

of the Petition. On appeal, the appeal brief was couched in terms of trial court

error as well. Ex. I at i, 14-15. No mention is made of the United States

Constitution or its parts, and Petitioner did not rely on Jackson v. Virginia,

443 U.S. 307 (1979) or its progeny to contend insufficiency of the evidence in

violation of the United States Constitution. Here too, Petitioner raises a claim

of trial court error, without relying on any provision of the United States

Constitution. Petition at 7.

The information charges Petitioner with sale of cocaine contrary to the

provisions of Fla. Stat. § 893.13(1)(a). Ex. A at 20. The court conducted a

non-jury trial on December 8, 2015. Ex. D. The trial record demonstrates

that Ms. Park made a motion for judgment of acquittal asserting the evidence

in the light most favorable to the state did not establish a prima facie case of

sale of cocaine because no transaction was shown. Id. at 290. Ms. Park

argued that the circumstantial evidence did not exclude the reasonable

hypothesis that the CI could have introduced the crack cocaine himself or

provided contraband himself, and the CI was not present for trial. Id. at 290-

91. The state argued otherwise, asserting there was no reasonable hypothesis

14

of innocence to exclude. Id. at 291-92. The court denied the motion. Id. at

293.

The 5th DCA affirmed. Ex. K. Petitioner has not established that the

5th DCA’s decision was contrary to or an unreasonable application of federal

law, nor that there was an unreasonable determination of the facts. Thus, the

Court will give deference under AEDPA to the state court’s decision to the

extent the claim was raised and addressed in the federal constitutional sense.

The record shows the trial court found the state proved its case beyond

a reasonable doubt. Ex. D at 313. The court explained:

Now, the issue of what is a reasonable doubt?

Well, the jury definition is more by the negative of

what it is not. It is not a forced, speculative or

imaginary doubt.

What is circumstantial evidence?

Circumstantial evidence is just like direct evidence,

but it’s a well-connected chain of events or

circumstances that tend to – that would prove a fact.

In this instance the fact to be proved is that the CI had

no drugs, he had money when he left. When he got

back, he had no money, but he had drugs when he

came back. And it’s a well-connected chain of

circumstances and any other hypothesis of innocence

would be forced, imaginary or speculative for me to

consider. That is not a burden shifting. It’s just I

have to take a look at all the combinations here.

From what I saw on the video, it’s the video of a

transaction.

15

So I’m led to the conclusion that the state has

proved their case beyond a reasonable doubt, and Mr.

Hagans will be found guilty of the offense.

Id. at 312-13.

The court entered a written Verdict of Guilty (Non-jury Trial), Ex. F,

followed by entry of judgment and sentence. Ex. E.

After reviewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found Petitioner committed the

crime of sale of cocaine. See Wilcox v. Ford, 813 F.2d 1140, 1143 (11th Cir.)

(given that evidence may give some support to the defendant’s theory of

innocence, that is not sufficient to warrant habeas relief), cert. denied, 484 U.S.

925 (1987). As such, the evidence at trial was sufficient to convict Petitioner

of this second-degree offense and there was no denial of due process of law.

Thus, this Court will defer to this resolution as well as give AEDPA

deference to the 5th DCA’s decision to the extent the claim was raised and

addressed in the federal constitutional sense. The state court’s rejection of

the constitutional claim is entitled to deference under AEDPA. McDaniel v.

Brown, 558 U.S. 120, 132 (2010) (per curiam) (a reviewing court must not

depart “from the deferential review that Jackson and § 2254(d)(1) demand”).

See Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 463 (11th Cir. 2015)

(recognizing that a petitioner raising a Jackson claim faces a high bar in

16

federal habeas due to the two layers of judicial deference) (citing Coleman v.

Johnson, 566 U.S. 650, 651 (2012) (per curiam)). Thus, ground two is denied.

C. Ground Three

“Trial counsel was ineffective for failing to file a motion to have a

separate hearing of admissibility of the audio and video portions of

the [surveillance] video[.]”

Petitioner exhausted ground three of the Petition by raising it in ground

three of Rule 3.850 motion and on appeal to the 5th DCA. Ex. P at 5; Ex. R;

Ex. S; Ex. T; Ex. U; Ex. V; Ex. W. On June 2, 2020, the 5th DCA per curiam

affirmed the decision of the trial court. Ex. X. The mandate issued on June

26, 2020. Ex. Y. Upon review, Petitioner’s claim of ineffective assistance of

counsel is due to be denied as the state court’s adjudication of the claim is not

contrary to or an unreasonable application of Strickland or based on an

unreasonable determination of the facts.

In undertaking its review, the state court properly applied the two-

pronged Strickland standard of review. Ex. T at 1-2. Therefore, Petitioner

cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1). The Court’s

next inquiry is whether the state court unreasonably applied that principle to

the facts or premised its adjudication of the claim on an unreasonable

determination of the facts. Under the circumstances, the Court is not

17

convinced that there was either an unreasonable application or an

unreasonable determination of the facts.

In denying Petitioner’s claim of ineffective assistance of counsel, the

circuit court held:

Here the State cites Crawford v. State, 541 U.S.

36 (2004), where the Court held that out of court

testimonial statements by a witness are barred under

the confrontation clause unless the witness is

unavailable and the defendant had a prior opportunity

to cross examine the witness. In so doing the Court

set forth a two part test: 1) are the statements

testimonial? And 2) is the witness unavailable for

trial?

All the statements captured on the video were

made contemporaneous with the criminal activity and

therefore are not testimonial. The State cites State v.

Johnson, 128 So.3d 237, 239 (Fla. 4th DCA 2013)

where the same issue before the Court was addressed.

The Court in Johnson found that it was proper to

admit a surveillance video into evidence over defense’s

Crawford objection. The Court held that the video did

not involve a statement made after the crime to prove

the past event. Rather, the video depicts the criminal

act itself. Thus, it is not testimonial, and Crawford

does not apply.

In the case sub judice, because the video does

not contain testimonial statements, they do not

run afoul of the Confrontation clause. Also the

confidential informant was unavailable for trial,

meeting the second requirement under Crawford.

Ex. T at 3 (emphasis added).

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In denying the claim of ineffective assistance of counsel, the court found

counsel performed within prevailing professional standards because the

suggested motion would have been meritless. Id. Indeed, Petitioner’s

counsel cannot be deemed to have performed deficiently by failing to file a

motion that would lack merit.4 See Brewster v. Hetzel, 913 F.3d 1042, 1056

(11th Cir. 2019) (defense counsel need not make meritless motions that would

not have obtained relief). The court found neither deficient performance nor

prejudice under Strickland. Ex. T at 3.

Upon review, in denying relief, the trial court found that both prongs of

Strickland had not been met and the 5th DCA affirmed. The Court finds the

state court’s determination is consistent with federal precedent. Although

unexplained, the 5th DCA’s decision is entitled to AEDPA deference.

4 Although defense counsel did not file a motion for a separate hearing on the admissibility

of the audio portion of the video, she did argue that the confidential informant’s statements

were hearsay and should be kept out. Ex. D at 205-206. In his Petition, Petitioner relies

on the “silent witness theory.” Petition at 8. The “silent witness” theory of admissibility of

evidence concerns the proof of foundational facts regarding the process yielding the evidence.

Bryant v. State, 810 So. 2d 532, 536 (Fla. 1st DCA 2002) (citations omitted). As such, under

the “silent witness” theory, “if no witness who is available has seen what a videotape or a

photograph depicts, proof of surrounding circumstances may nevertheless ‘be sufficient for

the court to find that the photograph is a fair and accurate representation of material fact.’”

Id. (citation omitted). Detective Davis Lazo attested to the foundational facts regarding the

taping process. Ex. D. As there was a videotape of the transaction, it was not necessary

for an officer to testify as to the actual events as they occurred. Haslom v. Sec’y, No. 19-

14072-CV-ROSENBERG, 2021 WL 4711835, at *9 (S.D. Fla. July 26, 2021), report and

recommendation adopted by 2021 WL 4709801 (S.D. Fla. Oct. 8, 2021). Indeed, in the case

at bar, the trier of fact - the trial court, after considering the content of the videotape, found,

“it’s the video of a transaction.” Ex. D at 313.

19

Applying the look-through presumption set forth in Wilson, the state court’s

ruling is based on a reasonable determination of the facts and a reasonable

application of the law. Thus, ground three of the Petition is due to be denied

as the state court’s adjudication of the claim is not contrary to or an

unreasonable application of Strickland and clearly established Federal law or

based on an unreasonable determination of the facts. As such, the Court finds

Petitioner is not entitled to habeas relief on ground three of the Petition.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close this case.

4. If Petitioner appeals the denial of his Petition (Doc. 1), the Court

denies a certificate of appealability.5 Because this Court has determined

that a certificate of appealability is not warranted, the Clerk shall terminate

5 This Court should issue a certificate of appealability only if a 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)). Upon due consideration, this Court will deny a certificate of appealability.

20

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.

DONE AND ORDERED at Jacksonville, Florida, this 1*t day of March,

2023.

J) i

(Iran pj oo

BRIAN/I, DAVIS

United States District Judge

sa 2/23

C:

Richard 8S. Hagans

Counsel of Record

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