Opinion

Whitt v. Secretary, Florida Department of Corrections (Flagler County)

Court: District Court, M.D. Florida
Filed: Apr 14, 2023
Cited by: 0 cases
Authority: More cited than 19.9%

“‘An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing when his claims are merely conclusory allegations unsupported by specifics.’”

How later courts described this case

“‘An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing when his claims are merely conclusory allegations unsupported by specifics.’”
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
“Speculation is insufficient to carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by further investigation.”
“We consider questions about the credibility and demeanor of a witness to be questions of fact.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SHAUN WHITT,

Petitioner,

v. Case No. 3:20-cv-774-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Shaun Whitt, an inmate of the Florida penal system,

initiated this action through counsel on July 13, 2020, by filing a Petition for

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1) with a

memorandum of law (Memorandum; Doc. 7).1 In the Petition, Whitt

challenges a 2014 state court (Flagler County, Florida) judgment of

conviction for sexual battery on a person less than twelve years of age and

sexual battery on a minor between twelve and eighteen years of age by a

person in a position of familial or custodial authority. He raises five grounds

for relief. See Petition at 5-12. Respondents submitted a memorandum in

1 For purposes of reference to pleadings and exhibits, the Court will cite the

document page numbers assigned by the Court’s electronic docketing system.

opposition to the Petition. See Response (Doc. 11). They also submitted

exhibits. See Doc. 12-1. Whitt filed a brief in reply. See Reply (Doc. 13). This

action is ripe for review.

II. Relevant Procedural History

On September 15, 2014, the State of Florida charged Whitt by second

amended information with sexual battery on a person less than twelve years

of age (count one) and sexual battery on a minor between twelve and eighteen

years of age by a person in a position of familial or custodial authority (count

two). Doc. 12-1 at 54. At the conclusion of a trial, on September 17, 2014, the

jury found Whitt guilty of counts one and two as charged. Id. at 75-76. On

that same day, the trial court sentenced Whitt to a term of life imprisonment

as to count one and a concurrent thirty-year term of imprisonment as to

count two. Id. at 92-98. The trial court also designated Whitt a sexual

predator. Id. at 115.

On direct appeal, Whitt, with the benefit of counsel, filed an initial

brief, arguing the trial court erred when it: excluded three defense witnesses

who proffered testimony on their observations of the victim’s demeanor at the

time of the offenses (ground one); restricted cross-examination of Detective

Elizabeth Conrad about the adequacy of her investigation (ground two);

limited the testimony of a defense witness who was offered to impeach the

victim’s testimony and present evidence of sexual abuse by someone other

than the accused (ground three); and deprived Whitt through evidentiary

rulings of his right to present a defense and confront witnesses (ground four).

Id. at 599-635. The State filed an answer brief. Id. at 637-71. Whitt filed a

reply brief. Id. at 673-92. Florida’s Fifth District Court of Appeal (Fifth DCA)

per curiam affirmed Whitt’s conviction and sentence without a written

opinion on February 9, 2016, id. at 694, and issued the mandate on March 4,

2016, id. at 696.

On April 6, 2017, Whitt, with the assistance of counsel, filed a motion

for postconviction relief pursuant to Florida Rule of Criminal Procedure

3.850. Id. at 707-27. In the Rule 3.850 Motion, Whitt alleged counsel was

ineffective when she: failed to call as witnesses the victim’s mother and

teacher, as well as a Department of Children and Families case agent

(ground one); failed to retain or call a child psychologist to testify on typical

behaviors of sexually abused children (ground two); misadvised Whitt that he

should not testify at trial (ground three); and failed to investigate and obtain

Whitt’s employment records (ground four).2 Id. Following an evidentiary

hearing, on March 5, 2019, the postconviction court summarily denied relief

on all grounds. Id. at 834-36. The Fifth DCA per curiam affirmed the denial

2 On April 17, 2017, postconviction counsel filed a Rule 3.850 Motion

containing identical grounds but adding Whitt’s oath and signature. Doc. 12-1 at

728-48

of relief without a written opinion on May 26, 2020, id. at 1036, and issued

the mandate on June 19, 2020, id. at 1038.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See 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); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “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.” Schriro, 550 U.S. at

474. The pertinent facts of this case are fully developed in the record before

the Court. Because the Court can “adequately assess [Whitt’s] claim[s]

without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

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

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016). “‘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) (quotation marks omitted)). As such, federal

habeas review of final state court decisions is “‘greatly circumscribed’ and

‘highly deferential.’” Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th

Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state

court decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order for the

state court’s 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 United

States Supreme Court has instructed:

[T]he 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). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision,

such as persuasive alternative grounds that were briefed or argued to the

higher court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d)

bars relitigation of the claim unless the state court’s decision (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);

Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope

of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d

389 (2000), § 2254(d)(1) consists of two distinct

clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows

for relief only “if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Id.

at 413, 120 S. Ct. at 1523 (plurality opinion). The

“unreasonable application” clause allows for relief

only “if the state court identifies the correct

governing legal principle from [the Supreme] Court's

decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “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)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield

v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.’” Titlow, 571

U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,

558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d

738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting

Richter, 562 U.S. at 102-03). This standard is “meant to be” a “difficult” one

to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be

evaluated under 28 U.S.C. § 2254(d).

B. Ineffective Assistance of Trial 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), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. 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, 104

S. Ct. 2052. 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, 104 S. Ct.

2052.

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, 104 S. Ct.

2052. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. 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, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “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)). As stated in Strickland: “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 accorded great

deference.

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

is a most deferential one.” Richter, 562 U.S. at ---,

131 S. Ct. at 788. 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, 129 S. Ct.

1411, 1420, 173 L.Ed.2d 251 (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 ---,

131 S. Ct. at 788.

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

Mirzayance, 556 U.S. 111, 123 (2009). 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).

VI. Findings of Fact and Conclusions of Law

A. Ground One

As Ground One, Whitt alleges the trial court erred when it excluded

testimony from his father, Thomas Losoncy, that someone else sexually

abused the victim, AMR. Petition at 5. According to Whitt, counsel sought to

admit testimony from Losoncy that AMR’s mother disclosed the past abuse to

him; however, the trial court excluded the testimony as irrelevant. Id. He

argues that Losoncy’s testimony was relevant because a nurse practitioner

testified AMR had injuries to her hymen “consistent with both recent abuse

and with ‘old . . . farther away penile penetration.’” Id. Whitt raised a

substantially similar argument on direct appeal, Doc. 12-1 at 626-31; the

State filed an answer brief, id. at 666-68; and the Fifth DCA per curiam

affirmed Whitt’s convictions without a written opinion, id. at 694.

Respondents argue that Whitt failed to exhaust state remedies as to

this claim, and, as such, the claim is procedurally defaulted. Response at 9.

According to Respondents, Whitt argues the testimony’s admissibility

pursuant to Florida’s rape shield statute3 in his Petition but did not make the

same argument in state court. Id. (“The rape shield law was not referenced or

cited in the initial brief.”). Respondents also contend Whitt failed to alert the

state court to the federal nature of his claim. Id. They therefore maintain the

claim is procedurally barred from federal habeas review. Id.

Upon review of the record, the Court concludes that Whitt has

exhausted this claim. In his initial brief on direct appeal, Whitt argued that

the trial court excluded admissible and relevant evidence. Doc. 12-1 at 630-

31. He specifically noted Florida’s rape shield statute “does not appear to

categorically exclude evidence of the victim’s history of non-consensual sex

with someone other than the accused.” Doc. 12-1 at 629. Whitt argued that

federal courts have evaluated “a rule similar to Florida’s rape-shield law, as

it affects the defendant’s right to present evidence in his defense” and found

that evidence of a victim’s history of non-consensual sex is not per se

inadmissible under that rule. Id. (emphasis added). His argument addressing

federal law alerted the state court to the federal nature of the claim.

Accordingly, the Court finds Whitt properly exhausted the claim in Ground

One.

3 Florida’s rape shield statute prohibits the introduction into evidence of

“specific instances of prior consensual sexual activity between the victim and any

person other than the offender” with some exceptions. See Fla. Stat. § 794.022(2).

In its appellate brief, the State addressed the claim on the merits, Doc.

12-1 at 666-68; therefore, the appellate court may have affirmed Whitt’s

conviction based on the argument presented by the State. If the appellate

court addressed the merits of the claim, the state court’s adjudication is

entitled to deference under AEDPA. After a review of the record and the

applicable law, the 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 in the state court proceedings. Therefore, Whitt is not entitled to

relief on the basis of this claim.

Even assuming the appellate court’s adjudication of the claim is not

entitled to deference, Whitt’s claim is without merit. The record reflects that

counsel proffered testimony from Losoncy at trial about the prior molestation

of AMR:

Q Okay. Do you know anything about AMR’s

background personally?

A Just what her mother told me. She told me

that, supposedly, AMR had a problem in earlier

years. Because, I guess, Brandy [AMR’s

mother] had her when she was young. And she

lived with her mother. And, I guess, there was

supposed to have been an incident with a – I

guess, it’s the stepfather.

Q Okay.

A I kind of found all this out. Because she has

this hatred for her mother. And I just kind of

confronted her and wanted to know, why do you

hate your mother so much.

Q Do you know – Have you ever seen AMR

around those people?

A No. No. I mean, her – She’s never seen them.

Once they – I guess, her mother, Brandy, broke

ties with them years – quite a few years ago.

And I know that she mentioned a couple times

where – Because they live in St. Augustine.

And her mother got close. And I know she was

just saying if she would have approached them,

that it probably wouldn’t have been a good

deal. Because she just hated her mother so

much, Brandy does.

Q Do you know if AMR was aware of that?

A Yes.

Q How do you know AMR was aware of that?

A Because she says it – She will tell you in front

of the kids.

Q She don’t like her mother?

A She just said she don’t like her mother. Now, I

have never heard her – She kind of gave me

sort of the details of – Supposedly, he was doing

something to her. But she never mentioned it

around AMR.

Q Okay.

A You know, she just said she didn’t like her

mother. And you’re not ever going to see them,

and that’s it.

Doc. 12-1 at 379-81. The prosecutor argued Losoncy’s testimony about the

prior molestation was irrelevant “as to whether or not a fact or dispute [was]

more or less likely to have happened.” Id. at 385. Further, the prosecutor

contended that Losoncy only knew about the incident based on hearsay from

AMR’s mother. Id. The defense seemingly made no argument about its

relevancy. Id. at 389-94. The state court excluded the testimony about the

prior molestation, finding the testimony had no relevance “to the case at

hand.” Id. at 400.

Although alleged state law errors generally do not constitute grounds

for federal habeas relief, “a habeas court may review a state court’s

evidentiary rulings in order to determine whether those rulings violated the

petitioner’s right to due process by depriving him of a fundamentally fair

trial.” Copper v. Wise, 426 F. App’x 689, 692 (11th Cir. 2011) (citing Felker v.

Turpin, 83 F.3d 1303, 1311-12 (11th Cir. 1996)).4 The Eleventh Circuit has

explained:

4 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on

a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir.

2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions

are not considered binding precedent, but they may be cited as persuasive

authority.”).

Indeed, in a habeas corpus action brought by a state

prisoner, our authority is “severely restricted” in the

review of state evidentiary rulings. Shaw v. Boney,

695 F.2d 528, 530 (11th Cir.1983) (per curiam); see

Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475,

116 L.Ed.2d 385 (1991) (“[I]t is not the province of a

federal habeas court to reexamine state-court

determinations on state-law questions. In conducting

habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws,

or treaties of the United States.”). Habeas relief is

warranted only when the error “so infused the trial

with unfairness as to deny due process of law.”

Lisenba,[5] 314 U.S. at 228, 62 S.Ct. 280; see Estelle,

502 U.S. at 75, 112 S.Ct. 475 (holding that habeas

relief was not warranted because neither the

introduction of the challenged evidence, nor the jury

instruction as to its use, “so infused the trial with

unfairness as to deny due process of law”); Bryson v.

Alabama, 634 F.2d 862, 864–65 (5th Cir. Unit B

Jan.1981)[] (“A violation of state evidentiary rules

will not in and of itself invoke Section 2254 habeas

corpus relief. The violation must be of such a

magnitude as to constitute a denial of ‘fundamental

fairness.’ ”); cf. Chambers,[6] 410 U.S. at 302, 93 S.Ct.

1038 (concluding that the exclusion of “critical

evidence” denied the defendant “a trial in accord with

traditional and fundamental standards of due

process”).

Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295 (11th Cir. 2014)

(footnote omitted).

Here, Whitt has failed to make such a showing. He contends that

evidence of the prior molestation is relevant because it could provide an

5 Lisenba v. California, 314 U.S. 219 (1941).

6 Chambers v. Mississippi, 410 U.S. 284 (1973).

explanation for injuries to AMR’s hymen, see Petition at 5; however, this

argument is unavailing. At trial, Nurse Susan Williams testified that when

she examined AMR, she found “healed” injuries and an acute, or unhealed,

injury to AMR’s hymen. Id. at 240-42. She noted that these injuries heal

quickly on children, and the healing process usually begins 24 to 36 hours

after the child sustains the injury. Id. at 241. According to Nurse Williams,

she could not age the acute injury, but determined that “it happened

recently.” Id. at 242. Therefore, while Losoncy’s testimony may have provided

an alternative explanation for the healed injuries to AMR’s hymen, it would

not have explained the recent injury. Losoncy testified on proffer that the

prior molestation occurred when AMR was younger, and AMR’s mother

“broke ties with [her mother and stepfather] . . . quite a few years ago.” Id. at

380. Whitt neither alleges nor presents evidence that the stepfather had

access to AMR during the offenses or still had contact with the family. As

such, the proffered evidence of AMR’s prior molestation was not relevant to

whether Whitt sexually abused AMR between December 2010 and January

2012.

In addition, the exclusion of Losoncy’s testimony about the prior

molestation did not “so infuse the trial with unfairness as to deny [Whitt] due

process of law.” Lisenba v. California, 314 U.S. 219, 228 (1941). “To render a

state-court proceeding fundamentally unfair, the excluded evidence must be

‘material in the sense of a crucial, critical, highly significant factor.’” Taylor,

760 F.3d at 1296 (quoting Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th

Cir. 1984)). Here, the testimony would not have materially supported Whitt’s

defense. At trial, Whitt argued that AMR lied about Whitt’s alleged abuse.

Doc. 12-1 at 544-64. Hearsay testimony from Whitt’s father that someone else

had abused AMR “quite a few years ago” does not support this theory.

Further, Whitt was given the opportunity to present other critical evidence in

support of his defense. Dr. Norman Hoffman testified about the reliability of

children’s memories and proper procedures for conducting forensic interviews

of children. Id. at 454-65. The defense also called Losoncy as a witness to

refute AMR’s allegation that Whitt did not work, so he had access to AMR

while her mother worked. Id. at 485-87. As such, Whitt does not demonstrate

that the exclusion of testimony about AMR’s prior molestation rendered his

trial fundamentally unfair. Accordingly, he is not entitled to federal habeas

relief on the claim in Ground One.

B. Ground Two

Next, Whitt contends counsel was ineffective when she misadvised him

about his right to testify. Petition at 6. According to Whitt, counsel stated “he

was not going to testify in his own defense.” Id. He contends that based on his

conversations with counsel, he did not feel that she would permit him to

testify at trial. Id. Whitt alleges that his testimony would have provided an

explanation for the presence of his DNA on the carpet in AMR’s bedroom. Id.

He asserts that he watched pornographic movies and masturbated in AMR’s

bedroom because it was the only room in the house with a television and a

lock. Id.

Whitt raised a substantially similar claim as ground three of his Rule

3.850 Motion. Doc. 12-1 at 742-44. Following an evidentiary hearing, the

postconviction court denied relief, stating in pertinent part:

The Defendant claims that his defense counsel

refused to present his testimony at trial. At the

hearing, the Defendant admitted that he did indeed

discuss the “pro[]s and cons” of testifying with his

trial counsel before and during trial. Ms. Nunnally

[trial counsel] testified that she discussed the issue of

whether to testify or not as well as the benefits and

disadvantages to testifying with the Defendant many

times and, after careful consideration, the Defendant

himself decided that he would not testify. Although

Ms. Nunnally did in fact agree with his decision,

there is no evidence to support that Ms. Nunnally

told the Defendant that he could not testify.

This Court also reviewed the trial court’s

extensive colloquy with the Defendant regarding his

decision on whether to testify. Based on this

evidence, it is clear that the decision to testify was

the Defendant’s decision and Ms. Nunnally was not

deficient in this regard.

Even if Ms. Nunnally had been deficient,

however, this Court finds that the Defendant was not

prejudiced by the Defendant’s failure to testify. The

facts elicited at trial were that the child victim was

raped by the Defendant in the child’s bedroom. She

even showed detectives where in the room the rape

occurred. Moreover, the Defendant’s semen was

found precisely where the child victim said it would

be. Defendant claims that he masturbated in the

child’s room and that’s why his semen was found in

the room. However, the Defendant could offer no

explanation for how the child victim would know if

and precisely where the Defendant masturbated in

her room. If the Defendant had testified and not been

able to explain how the victim knew his semen would

be found in the room, his credibility would have been

destroyed and he would have been subjected to very

damaging cross examination by the State which

would have only weakened his defense further. This

Court finds that the defense has failed to establish

any prejudice on this ground.

Id. at 835 (emphasis in original). The Fifth DCA per curiam affirmed the

denial of relief without a written opinion. Id. at 1036.

To the extent that the Fifth DCA decided the claim on the merits,7 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the 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,

7 Throughout this Order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

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

the evidence presented in the state court proceedings. Thus, Whitt is not

entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Whitt’s ineffectiveness claim is without merit. The

postconviction court made a factual determination when it chose to credit the

testimony of Whitt’s trial counsel. See Consalvo v. Sec’y for Dep’t of Corr., 664

F.3d 842, 845 (11th Cir. 2011) (“We consider questions about the credibility

and demeanor of a witness to be questions of fact.”). Therefore, the Court

must presume the finding is correct unless Whitt can rebut the presumption

with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Here, Whitt

has not rebutted the postconviction court’s credibility finding by clear and

convincing evidence. The postconviction court’s factual finding refutes the

claim regarding counsel’s alleged deficiencies in advising Whitt that he could

not testify at trial. Given the postconviction court’s credibility determination,

Whitt’s claim is wholly unsupported, and therefore fails.

To the extent Whitt asserts counsel misadvised him not to testify at

trial, the Court further finds counsel did not perform deficiently. At the

evidentiary hearing, counsel testified that Whitt told her that he would

masturbate in AMR’s bedroom because he could see from the window when

his wife arrived home and he could stop. Doc. 12-1 at 907. Counsel noted that

she strongly advised him against testifying because his explanation likely

would not withstand cross-examination. Id. at 907-08. The State would cross-

examine him about why AMR could identify the location of his DNA in her

bedroom and why he masturbated in AMR’s bedroom while she was inside

the house. Id. at 907, 910. Counsel testified Whitt never provided her with a

rational explanation as to how AMR knew law enforcement could find his

DNA in front of the television in her bedroom. Id. at 908. She expressed

concern that Whitt was not “savvy enough” to withstand cross-examination.

Id. at 909. Counsel further stated that Whitt’s explanation would introduce a

“creep factor” that would not aid the defense. Id. at 909.

The record supports counsel’s reasoning. Detective Elizabeth Conrad

testified that they collected carpet samples from the victim’s bedroom based

on the victim’s statement and the use of a blacklight. Id. at 283. In the arrest

and booking report, the victim stated Whitt laid her down in front of the

television in her bedroom and raped her. Id. at 18. Detective Conrad took a

sample of the carpet in front of the television stand. Id. at 268. FDLE

analysts identified the presence of semen from Whitt and epithelial cells from

AMR on that sample. Id. at 290, 307. Given such evidence, if Whitt had

testified at trial, the State would have cross-examined him about how AMR

was able to identify an area in her bedroom where law enforcement found

Whitt’s DNA. While Whitt suggested to trial counsel that AMR “must have

seen [him],” id. at 907, his explanation is unconvincing given Whitt allegedly

used AMR’s bedroom because the door had an operable lock, id. at 870. In

addition, the State charged Whitt with sexual battery of AMR, his

stepdaughter. His explanation for why law enforcement found his semen on

the carpet in her bedroom could have unsettled the jury and harmed the

defense. Given the evidence, Whitt fails to demonstrate “no competent

counsel would have taken the action that his counsel did take.” Chandler v.

United States, 218 F.3d 1305, 1315 (11th Cir. 2000); see also Jones v. Sec’y,

Dep’t of Corr., 487 F. App’x 563, 567 (11th Cir. 2012) (finding petitioner failed

to establish that no competent counsel would have advised him not to testify

where the State would have challenged his credibility on cross-examination

and the jury would have learned of his prior felony convictions). For these

same reasons, Whitt fails to demonstrate prejudice. Accordingly, he is not

entitled to federal habeas relief on the claim in Ground Two.

C. Ground Three

As Ground Three, Whitt alleges counsel was ineffective when she failed

to investigate and call “Rob” from the Department of Children and Families

as a witness. Petition at 8. “At the time that AMR first made her allegations,”

she allegedly told her mother and Rob that “she was ‘lying about something

big,’” but she never revealed the nature of the lie. Id. Whitt asserts that

counsel did not call Rob as a witness because she did not know his surname

and could not locate him. Id. According to Whitt, counsel should have further

investigated Rob and called him as a witness to testify about AMR’s

statement. Memorandum at 18-19.

Initially, the Court finds that Whitt’s unsubstantiated allegations are

facially insufficient to support a claim of ineffective assistance of counsel for

failure to call a witness. “Evidence 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.” United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).

Having failed to produce such evidence, relief on this claim is due to be

denied on the merits.

Nevertheless, even if Whitt presented a facially sufficient claim for

relief, it does not have merit. Whitt raised a substantially similar claim as

ground one of his Rule 3.850 Motion. Doc. 12-1 at 735-38. The postconviction

court held an evidentiary hearing, after which it denied relief:

The Defendant continues to claim that his

attorney was ineffective for failing to call the witness

“Rob” to testify at trial. This witness is believed to be

an investigator affiliated with DCF and was expected

to testify that the victim told him that she told a “big

lie”. But, it is believed that the victim did NOT

disclose to the witness what she lied about.

The Court finds that trial counsel, Ms. Regina

Nunnally, was not given sufficient and specific

information to identify the witness and could not

locate this witness despite her reasonable efforts to

do so. She was not deficient in failing to locate the

witness with the limited information available to her

at that time. This Court further finds that even if Ms.

Nunnally were deficient in failing to locate “Rob”, the

Defendant was not prejudiced. The child victim was

vigorously cross examined regarding the “big lie” and

admitted she said that even though she could not

remember what she lied about. Additional testimony

by Rob would not have changed the victim’s

testimony and, if anything, would have diminished

the effect of the victim’s admission on the jury. More

importantly, the defense did not establish that failure

to locate and call this witness affected the jury’s

verdict or the outcome of this case.

Id. at 834 (emphasis in original). The Fifth DCA per curiam affirmed the

denial of relief without a written opinion. Id. at 1036.

To the extent that the Fifth DCA decided the claim on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the 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 in the state court proceedings. Thus, Whitt is not

entitled to relief on the basis of this claim.

Even if the appellate court’s adjudication of the claim is not entitled to

deference, the ineffectiveness claim is without merit because the record

supports the postconviction court’s conclusion. Counsel detailed her efforts to

locate Rob during the evidentiary hearing. She explained she had “no

specifics about him,” including his surname. Doc. 12-1 at 897. While counsel

knew Rob interviewed AMR, she noted that he did not work for DCF. Id. at

928-29. Rob worked for an agency that contracts with DCF, but DCF could

not provide the agency name or any information about Rob. Id. at 929. AMR

and AMR’s mother also could not offer identifying information. Id. at 929.

According to counsel, the Public Defender’s Office investigator never located

him despite efforts. Id. at 898. Based on the record, counsel had limited

information but pursued all available avenues to identify Rob. Whitt does not

identify with any specificity what counsel should have done, but failed to do,

to conduct further investigation in this context. On this record, the Court

finds counsel conducted a reasonable investigation. As such, counsel did not

perform deficiently.

Even assuming arguendo counsel performed deficiently, Whitt has

failed to demonstrate prejudice. Counsel cross-examined AMR at trial about

the “big lie.” Id. at 211-15. AMR testified she never told Rob or her mother

what she lied about, and she could not remember what it was. Id. at 211-12.

Whitt does not dispute the fact that AMR never revealed the nature of the lie

to Rob. Because evidence of the big lie was before the jury, Whitt has not

shown that a reasonable probability exists that the outcome of the case would

have been different if counsel had called Rob as a witness. Accordingly, the

claim in Ground Three is due to be denied.

D. Ground Four

In Ground Four, Whitt contends counsel was ineffective when she

failed to retain or call an expert to testify about the typical behaviors of

sexually abused children. Petition at 10. Whitt alleges that while counsel

called Dr. Hoffman to testify about children’s memories, he did not testify

about “how child victims of sexual abuse act or how their behaviors may

change after the abuse has allegedly occurred.” Id. He argues that if counsel

had retained and called an expert to testify on this subject, it “would have

provided information that the jury would have used to find that AMR was not

being truthful about [Whitt’s] alleged actions.” Memorandum at 20.

Once again, the Court finds that Whitt’s allegations are facially

insufficient to support a claim of ineffective assistance of counsel for failure to

call a witness. Whitt fails to support his claim with the “actual testimony by

the witness or an affidavit.” Ashimi, 932 F.2d at 650. Therefore, his

ineffectiveness claim relies on nothing more than self-serving speculation.

See Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006) (noting that

where a petitioner alleges ineffective assistance of counsel for failure to call a

witness, the “prejudice burden is heavy . . . because often allegations of what

a witness would have testified to are largely speculative.”) (quotation marks

and citation omitted); Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848, 852

(11th Cir. 2016) (finding that ineffective assistance of counsel claim for

failure to call an expert witness was speculative and conclusory where

petitioner provided no evidence that he had contacted an expert and failed to

allege an expert had reviewed the evidence in the case). As such, relief on the

claim in Ground Four is due to be denied on the merits.

Nevertheless, even if Whitt presented a facially sufficient claim for

relief, it does not have merit. Whitt raised a substantially similar claim as

ground two of his Rule 3.850 Motion. Doc. 12-1 at 738-42. Following an

evidentiary hearing, the postconviction court denied relief, stating:

The defense claims that Ms. Nunnally was

deficient for not hiring and calling an expert witness

to testify that the victim was not telling the truth.

But, the Defendant’s allegation is misplaced. Ms.

Nunnally presented the testimony of an expert, Dr.

Hoffman. Dr. Hoffman testified regarding the process

used in a CPT interview and why the victim’s

interview might not be reliable. The alleged victim of

a sex crime is generally regarded as a sympathetic

witness, particularly so when, like here, the victim is

a child. Ms. Nunnally’s use of Dr. Hoffman was a

creative and effective strategy by which she used Dr.

Hoffman to point out deficiencies in the CPT

examination of the child victim in order to attack the

child’s credibility. This Court finds that the defense

has failed to establish any prejudice on this ground.

Id. at 835. The Fifth DCA per curiam affirmed the denial of relief without a

written opinion. Id. at 1036.