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

> District Court, M.D. Florida · April 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10112688

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112688

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

2
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
3
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.

4
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:

5
[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
6
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,
7
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
8
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
9
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
10
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

11
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).
12
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.
13
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.

14
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.”).
15
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).
16
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

17
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

18
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.

19
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.
20
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

21
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

22
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,”

23
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:

24
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,
25
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.

26
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.

27
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
28
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.
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 claim is meritless because the record supports the
29
postconviction court’s conclusion. Dr. Hoffman testified at trial about
children’s memories and the proper procedures for forensic interviews of

children. Doc. 12-1 at 454-65. Through Dr. Hoffman’s testimony, counsel
sought to undermine the credibility of AMR by focusing on the reliability of
her memory as opposed to whether she behaved similarly to other sexually
abused children. The Court also notes that counsel sought to introduce

testimony about AMR’s behavior through the testimony of Whitt’s niece and
sister-in-law. Id. at 342, 354. The state court ultimately excluded the
testimony as irrelevant. Id. at 395-97. Whitt does not demonstrate that no
competent counsel would have taken the action that his counsel chose to

take, especially where the witness testimony that would support the proposed
expert’s testimony would have come from Whitt’s family members. See
Chandler, 218 F.3d at 1315. As such, Whitt has failed to carry his burden of
showing that his counsel’s representation fell outside that range of

reasonably professional assistance.
Assuming arguendo counsel performed deficiently, Whitt has not
shown a reasonable probability exists that the outcome of the case would
have been different if counsel had acted as Whitt claims she should have. On

this record, Whitt’s ineffectiveness claim is without merit because he has

30
shown neither deficient performance nor resulting prejudice. Accordingly,
Whitt is not entitled to federal habeas relief on the claim in Ground Four.

E. Ground Five
Lastly, Whitt contends counsel was ineffective when she failed to
investigate the facts surrounding the offenses. Petition at 11. He specifically
alleges that counsel failed to obtain his employment records, which would

have refuted the State’s timeline of the alleged abuse. Memorandum at 21.
According to Whitt, he provided counsel with information about his
employment during the relevant time periods, but counsel never obtained any
records because his employers did not respond to her requests. Petition at 11.

He argues the records would have contradicted AMR’s testimony that Whitt
was unemployed at the time of the offenses and would have refuted “some of
the alleged instances of abuse, particularly if compared with [AMR’s
mother’s] employment records.” Memorandum at 22.

Whitt raised a substantially similar claim as ground four of his Rule
3.850 Motion. Doc. 12-1 at 744-46. Following an evidentiary hearing, the
postconviction court denied relief, stating in pertinent part:
The Defendant claims that he had some part-
time jobs in the months before the incident and
defense was ineffective for not presenting this
favorable evidence. The defense did present the
testimony of the Defendant’s father-in-law to
establish that he employed the Defendant part time
31
but he could not testify about the Defendant’s other
employment. Further, Ms. Nunnally testified that the
defense located 2 possible employers but the
employers would not provide records to the defense,
despite reasonable efforts to locate these employers
and gain their support. It is this Court’s findings that
Ms. Nunnally was not deficient for failing to find all
of the Defendant’s employment records in light of
these facts and circumstances.

Even if the W-2 data that was presented in the
hearing had been available and produced at trial, this
Court finds that it would not have made a difference
in the outcome of the case. The allegations were that
the sexual abuse occurred multiple times over a
fourteen-month period when the child victim’s
mother was not at home and the Defendant and
victim were alone in the house. The defense does not
dispute that the Defendant and victim were often
alone in the home and clearly the evidence of
employment would not contradict this critical fact.
The employment was not material to any other issue.
Accordingly, this Court finds that the defense has
failed to establish any prejudice on this ground.

Id. at 836. 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,
32
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
because the record supports the postconviction court’s findings. After the

evidentiary hearing, the postconviction court made a factual determination
when it credited counsel’s testimony. See Consalvo, 664 F.3d at 845. In
federal habeas review, a state court’s factual determination is presumed
correct unless the petitioner can rebut the presumption with clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1). Here, Whitt has not rebutted
the trial court’s credibility finding by clear and convincing evidence. As such,
the state court’s factual findings which are presumed correct refute the claim
regarding counsel’s alleged deficiencies in investigating the employment

records. Given the trial court’s credibility determination, Whitt’s claim is
unsupported, and therefore fails.
Additionally, Whitt cannot demonstrate resulting prejudice. AMR
remembered only one specific date on which an incident occurred, January

25, 2012, but noted that most of the incidents took place between December
2010 and January 2012. Doc. 12-1 at 154, 162, 166-67. Whitt fails to identify

33
which instances of abuse his employment records would refute. Notably, he
only presented W2s from Publix and Remedy Intelligent Staffing at the

evidentiary hearing. Such documents do not provide specific dates and times
on which Whitt worked. Id. at 901-02. Vague and conclusory assertions about
the results of further investigation entitle Whitt to neither an evidentiary
hearing nor habeas relief. See San Martin v. McNeil, 633 F.3d 1257, 1271

(11th Cir. 2011) (“‘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.’”) (quoting Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006));

Aldrich v. Wainwright, 777 F.2d 630, 637 (11th Cir. 1985) (“Speculation is
insufficient to carry the burden of a habeas corpus petitioner as to what
evidence could have been revealed by further investigation.”). Accordingly,
Whitt is not entitled to federal habeas relief as to Ground Five.

VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Whitt seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The Court should
issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make this substantial showing, Whitt “must demonstrate that reasonable
34
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)).

Where a district court has rejected a petitioner’s constitutional claims
on the merits, the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong. See Slack, 529 U.S. at 484. However, when the district court has

rejected a claim on procedural grounds, the petitioner must show that “jurists
of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id.

Upon consideration of the record as a whole, the Court will deny a certificate
of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.

35
2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Whitt appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the Court has determined that a
certificate of appealability is not warranted, the Clerk shall terminate from
the pending motions report any motion to proceed on appeal as a pauper that

may be filed in this case. Such termination shall serve as a denial of the
motion.
4, The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
April, 2028.

MARCIA MORALES HOWARD
United States District Judge

Jax-9 4/6
Counsel of record

36

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112688. Public record. Not legal advice.