Head v. Secretary, Florida Department of Corrections (St. Johns County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DAVID HEAD,

Petitioner,

v. Case No. 3:20-cv-484-TJC-LLL

SECRETARY, FLORIDA DEPARTMENT OF

CORRECTIONS AND FLORIDA ATTORNEY

GENERAL,

Respondents.

ORDER

I. STATUS

Petitioner David Head, a prisoner in the custody of the Florida

Department of Corrections, petitions this Court for a writ of habeas corpus

under 28 U.S.C. § 2254. (Doc. 1). Head challenges a judgment rendered by the

Seventh Judicial Circuit in and for St. Johns County, Florida in State v. Head,

No. CF01-492. (Id.) The Secretary of the Florida Department of Corrections

(“Respondent”) filed a response in opposition to the petition. (Doc. 10). Head

declined to file a reply (Doc. 12), and the petition is ripe for review.

Because the Court was able to resolve both of Head’s claims on the basis

of the record, an evidentiary hearing is not warranted. See Schriro v.

Landrigan, 550 U.S. 465, 474 (2007).

II. GOVERNING LEGAL PRINCIPLES

A. The Antiterrorism Effective Death Penalty Act (AEDPA)

Under the AEDPA, federal habeas relief may not be granted with respect

to a claim adjudicated on the merits in state court unless the adjudication of the

claim:

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

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States;

or

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

determination of the facts in light of the evidence presented

in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). In this context, clearly established federal law

consists of the governing legal principles set forth in the decisions of the United

States Supreme Court at the time the state court issued its decision. White v.

Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S. 70, 74 (2006)

(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

A decision is contrary to clearly established federal law if the state court

either: (1) applied a rule that contradicts the governing law set forth by

Supreme Court case law; or (2) reached a different result from the Supreme

Court when faced with materially indistinguishable facts. Ward v. Hall, 592

F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

And a state court decision involves an unreasonable application of the Supreme

Court’s precedents if the state court correctly identifies the governing legal

principle, but applies it to the facts of the petitioner’s case in an objectively

unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the

state court either unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or unreasonably refuses

to extend that principle to a new context where it should apply.” Bottoson v.

Moore, 234 F.3d 526, 531 (11th Cir. 2000) (quoting Williams, 529 U.S. at 406).

The standard to obtain relief under 28 U.S.C. §2254(d) is both mandatory

and difficult to meet. To demonstrate entitlement to federal habeas relief, the

petitioner must show that the state court’s ruling was “so lacking in justification

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

beyond any possibility for fairminded disagreement.” White, 572 U.S. at 420

(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Moreover, when

reviewing a claim under section 2254(d), a federal court must presume that any

“determination of a factual issue made by a State court” is correct, and the

petitioner bears “the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e).

A state court’s summary rejection of a claim, even without explanation,

qualifies as an adjudication on the merits—warranting deference. Ferguson v.

Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Generally, in the case of a silent

affirmance, a federal habeas court will “look through” the unreasoned opinion

and presume that the affirmance rests upon the specific reasons given by the

last court to provide a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797,

806 (1991); Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). However, the

presumption that the appellate court relied on the same reasoning as the lower

court can be rebutted “by evidence of, for instance, an alternative ground that

was argued [by the state] or that is clear in the record” showing an alternative

likely basis for the silent affirmance. Sellers, 138 S. Ct. at 1196.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part

test for determining whether a convicted person is entitled to relief on the

ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687–88

(1984). A petitioner must establish that counsel’s performance was deficient

and fell below an objective standard of reasonableness and that the deficient

performance prejudiced the defense. Id.

The focus of inquiry under Strickland’s performance prong is

“reasonableness under prevailing professional norms.” Id. at 688. In reviewing

counsel’s performance, a court must presume that “counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id. at 689

(citation omitted). A court must “judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as of the time of

counsel’s conduct,” applying a highly deferential level of judicial scrutiny. Roe

v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).

As to prejudice, “Strickland places the burden on the defendant, not the

State, to show a ‘reasonable probability’ that the result would have been

different” had Counsel performed as Head argues he should have. Wong v.

Belmontes, 558 U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). Proving

Strickland prejudice “requires showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S.

at 687.

III. BACKGROUND AND PROCEDURAL HISTORY

On December 17, 2001, Head was charged by second amended

information with two counts of sexual battery on a child between the ages of

eight and nine years old. (Doc. 10-1 at 5). The first count alleged penile

penetration of the victim’s mouth and the second count alleged insertion of a

dildo into the victim’s vagina. (Id.) Head was convicted at trial, but Florida’s

Fifth District Court of Appeal (“Fifth DCA”) reversed the conviction and

remanded for a new trial. (Id. at 7–8).

After a second trial, Head was once again found guilty as charged on both

counts. (Doc. 10-2 at 148–49). The trial court sentenced him to a mandatory

term of life in prison. (Id. at 143–44). The Fifth DCA affirmed Head’s convictions

and sentence per curiam without a written opinion. (Id. at 215).

Thereafter, Head filed a motion and an amended motion for

postconviction relief under Rule 3.850 of the Florida Rules of Criminal

Procedure (collectively, “Rule 3.850 Motion”) that raised 16 claims of ineffective

assistance of trial counsel. (Doc. 10-2 at 228–65, 276–82). The postconviction

court summarily denied all or parts of ten claims and set the remaining claims

for an evidentiary hearing. (Id. at 320–489). After the evidentiary hearing (id

at 491–586) and supplemental briefing (id. at 588–610), the postconviction court

denied the remaining claims. (Id. at 612–66). The Fifth District Court of Appeal

affirmed without a written opinion. (Id. at 754).

Head signed this federal 28 U.S.C. § 2254 petition on May 7, 2020. (Doc.

1 at 15).1

IV. DISCUSSION

Head alleges two grounds of ineffective assistance of trial counsel Jill

Barger (“Counsel”). Both grounds were raised in Head’s Rule 3.850 Motion,

denied by the postconviction court with a reasoned opinion, and affirmed by the

Second DCA without a written opinion. Therefore, the claims are exhausted,

and unless noted otherwise, the Court will look through the Second DCA’s

unreasoned opinion on each claim and presume that the affirmance rested upon

the reasons given by the postconviction court. Sellers, 138 S. Ct. at 1192.

1 Under the “mailbox rule,” a pleading is considered filed by an inmate on

the date it was delivered to prison authorities for mailing, which—absent

contrary evidence—is the date it was signed. Washington v. United States, 243

F.3d 1299, 1301 (11th Cir. 2001).

A. Ground One

Head asserts that Counsel was constitutionally ineffective for failing to

object to the introduction of collateral crime/uncharged act evidence. (Doc. 1 at

5). He explains this ground as follows:

In this case, Petitioner was charged with two counts of capital

sexual battery. The two allegations only involved oral sex and

vaginal penetration with an object. However, the prosecutor at trial

introduced evidence that Petitioner had also committed a sexual

battery upon the victim in alternative manners that were never

charged by the State. Petitioner was clearly prejudiced where the

evidence of the charged acts was weak, but the jury heard testimony

of the uncharged acts that subsequently became a feature of the

prosecution’s case. As such, a reasonable probability exists that

Petitioner was found guilty based solely on his propensity to offend

rather than his perpetration of the crimes actually charged by

Information. For instance, evidence was presented that Petitioner

attempted to or actually anally penetrated the victim, that he

digitally penetrated the victim’s vagina, and that he attempted to

penetrate her vagina with his penis. In addition, evidence was

introduced that Petitioner showed pornographic material to the

underage victim, smoked marijuana, and struck her with a stick,

all of which would constitute violations of criminal statutes.

(Doc. 1 at 5–6). Head raised a similar claim in his Rule 3.850 Motion, and after

holding an evidentiary hearing, the postconviction court denied the claim on

both Strickland prongs as follows.

Defendant alleges his counsel was ineffective for failing to object

and move for a mistrial when collateral crime evidence was

introduced. Defendant's post-conviction counsel asked Ms. Barger

if Defendant was charged only with penile penetration of the

victim's mouth and insertion of an object into victim's vagina. Ms.

Barger agreed, but said it was “on diverse days” and happened

repeatedly. Post-conviction counsel then addressed counsel's

alleged failure to object to the following alleged collateral crime

evidence:

1. Defendant showed pornographic material to victim: Ms. Barger

testified the basic tenor of the defense was that the victim had a

very poor recollection of specific facts involving the actual sexual

acts. Ms. Barger believed the victim had testified inconsistently

regarding the pornographic material in another deposition.

Accordingly, Ms. Barger intended to use that evidence as

impeachment to discredit the victim. Ms. Barger also testified she

did not necessarily feel it was collateral crime evidence and it did

not rise to the level of a mistrial.

2. Defendant attempted to or actually anally penetrated the victim:

Ms. Barger responded her strategy was not to handle the case based

on the two counts charged, and was instead looking at the case as

Defendant was charged with molesting the child every time the

mother was gone. Post-conviction counsel asked Ms. Barger why

she asked the victim questions about anal penetration. Ms. Barger

explained she was attempting to bring in the CPT documents which

showed no anal trauma and that she needed to have a unified set

of facts that she was presenting to the jury about what had

happened. Ms. Barger explained that anal penetration was alleged

by the victim on the CPT document.

3. Digitally penetrated the victim's vagina: Ms. Barger again

explained that “the defense was structured in a different way than

attempting to limit it to two specific acts in count I and count II.”

4. Victim digitally penetrated her own vagina: Ms. Barger did not

recall this specifically, but testified she did not feel it rose to the

level of a mistrial.

5. Defendant attempted to penetrate her vagina with his penis: Ms.

Barger again responded that “the tenor of the case was that

[Defendant] was attempting a series of different acts every time the

mother left the house,” and she was not “defending against two

statements in count I and count II.”

6. Defendant smoked marijuana with Ms. Dickerson: Ms. Barger

responded that she did not think this was significant enough.

7. Defendant struck the victim with a stick: Ms. Barger responded

that it was her theory of defense that this event was something the

victim her strategy to contrast the victim's detailed memory

regarding the stick incident, with her inability to remember details

of the sex acts. Ms. Barger testified that she felt she needed to

highlight this contrast to cast doubt on whether the sexual abuse

actually happened to the victim. Ms. Barger testified that combined

with the lack of medical evidence, she hoped this was enough to

create reasonable doubt. The Court finds Ms. Barger made a

strategic decision and Defendant cannot establish prejudice.

Regarding the pornographic material, the Court finds that Ms.

Barger's decision not to object was based on sound trial strategy.

Ms. Barger testified that she intended to use the victim's testimony

for impeachment purposes and the trial transcript reflects that she

did so. Regarding anal penetration, as the Court discussed in

ground seven, the fact that the victim claimed the Defendant anally

penetrated her was used to highlight the lack of physical injury

found during the exam. The fact that Defendant penetrated the

child both vaginally and anally without injury was potentially

beneficial to the defense as it could have served to discredit the

victim. Defendant presented no evidence that he was prejudiced by

the victim's additional claims that he vaginally and anally

penetrated her or that this affected the victim's credibility.

(Doc. 10-2 at 625–28 (internal citations to the record omitted)). The Fifth DCA

affirmed without a written opinion. (Doc. 10-2 at 754).

Head does not explain how the state courts’ adjudication of this claim was

unreasonable. And this Court’s review of the record, including the trial and

evidentiary hearing transcripts, supports the state courts’ conclusion that

Counsel made a strategic decision to sow doubt about the veracity and accuracy

of the victim’s allegations by pointing out that many of her claims were

inconsistent with her prior testimony and with medical evidence. Counsel

explained at the evidentiary hearing that “the tenor of the case was that [Head]

was attempting a series of different acts every time the mother left the house.

And I was not defending against [only the] two statements in Count 1 and Count

2.” (Doc. 10-2 at 519). Counsel testified that the victim remembered things (such

as Head striking her with a stick) “in color” whereas she was not “able to even

remember minor details or major details of alleged sex acts. And I felt that that

was the contrast that we had to present to the jury to raise a reasonable doubt

that these things actually happened to her, especially in conjunction with the

lack of medical evidence.” (Id. at 520). Counsel explained that there was “a

young little child saying that this great big man had molested her on a daily

basis for over a year and yet, there was not a shred of physical evidence; nor did

she ever report it, so that was my theory.” (Id. at 523).

Counsel presented this theory of defense at trial. During her opening

statement, Counsel noted that the pediatric nurse practitioner who had

examined the victim did “not find that the hymen had been transected or torn

[and] [s]he did not find anal tearing, anal healing. She found nothing to support

the allegations that [the victim] had made.” (Doc. 10-1 at 216). Counsel also told

the jury “to keep notes on how [the victim] remembers what this alleged abuse

was. During our questioning of her, this year, there were huge portions of her

original allegations she does not recall.” (Id. at 217). But Counsel noted that the

victim would tell the jury about two stories, and “[o]ne of them is about a stick.

I’ll ask her to recall it for you. The other is about a day that she wanted to go to

the beach, and [Head] got mad about it and got up—got up on their truck and

started jumping on the truck and kicking the windshield. I’ll ask you during

your deliberations to contrast the detail and the precision of memory she has

for those two events versus the issues that we’re here about today.” (Id.)

During Counsel’s cross examination of nurse practitioner Michelle

Muskus, who had examined the victim after her reports of abuse, Ms. Muskus

agreed that she would have expected to find more damage to the victim if anal

or vaginal penetration had occurred. (Doc. 10-2 at 15–16). Counsel also

questioned the victim at length about inconsistencies in her prior testimony

regarding the sexual activity that occurred. (Doc. 10-2 at 53–70). The victim

admitted that she could not remember everything she had talked about or said

during previous interviews regarding the alleged sex acts, but testified that she

“vividly” remembered Head hitting her with a stick and jumping on a truck. (Id.

at 66, 70–71).

At the close of the state’s case, Counsel moved for a judgment of acquittal,

arguing that the victim “has a very vague and inaccurate recollection, if at all,

of the events that took place that she [has alleged] and is charging Mr. Head

with.” (Id. at 77). Counsel argued that “there’s such contradiction in her

testimony, there’s such weakness in her belief, in her own words and her own

recollection that I don’t think that her testimony meets the standard of beyond

a reasonable doubt.” (Id. at 79). During closing argument, Counsel pointed out

that the victim’s testimony on the instances of molestation was inconsistent

with the medical evidence that showed only a small, healed notch on her hymen:

How then, do you take a little, tiny ten-year-old girl whose report it

is, I was sexually molested, penetrated, had dildos used on me, had

a had a grown man’s grown penis shoved in me for over a year and

a half, have no signs of sexual abuse on her private parts?

And you can’t cherry pick and say, well, maybe this happened, but

that didn’t happen, maybe – maybe she just forgot this and forgot

that. The testimony has to be taken as a whole. She’s either telling

the truth or she is not.

. . .

The only direct testimony that you have from [the victim] is her

testimony here today compared with her testimony that she gave

in March. Today it was full of drama and horrible abuse. In March

she didn’t really recall much of anything. No direct testimony of

anal penetration. No direct testimony of oral penetration. No direct

testimony of vaginal penetration.

. . .

I think the State said, you’re not going to like Mr. Head by the end

of this trial. I don’t know what evidence you’ve got that – he may

have had a temper. {The victim} remembered about that stick.

Why would she remember so much about a stick and someone

jumping on the hood of a car and not remember about a penis being

stuck in her mouth?

Use your common sense, ladies and gentlemen. You must, by law,

find Mr. Head not guilty.

(Doc. 10-2 at 105–06, 107, 110 ).

As found by the postconviction court, the record supports a conclusion

that Counsel strategically chose not to object to the testimony regarding anal

or penile penetration, drug use, pornography, or other uncharged acts because

she wanted to argue to the jury that the victim’s testimony on these allegations

was implausible. And “counsel cannot be adjudged incompetent for performing

in a particular way in a case as long as the approach taken might be considered

sound trial strategy.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.

2001); Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.”). There is no suggestion that Counsel failed to investigate the

relevant law and facts or consider other options when developing her trial

strategy. To the contrary, Counsel, an experienced trial attorney,2 testified at

the evidentiary hearing that she was Head’s postconviction counsel after his

first trial and had successfully gotten his first conviction overturned. (Doc. 10-

2 at 500). She testified that she was well aware of the victim’s allegations

regarding additional sexual activity but “[t]he whole basic tenor of the defense

. . . was that [the victim] had a very poor recollection of specific facts involving

the actual sexual acts.” (Id. at 516). And pointing out the victim’s

inconsistencies “was one of the cumulative ways that we were going to try to

2 Counsel had been a public defender for more than fifteen years before

taking Head’s case, and at the time, was trying “at least five or six cases a year.”

(Doc. 10-2 at 502). See Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.

1998) (“Our strong reluctance to second guess strategic decisions is even greater

where those decisions were made by experienced criminal defense counsel.”).

show the jury that she had a very poor memory that was probably supported by

someone telling her what to say.” (Id.) Given the damaging nature of the

victim’s testimony involving the charged activity, the defense had no choice but

to attempt to show that she was an unreliable witness. And, as noted by the

postconviction court, (id. at 630), the more egregious the allegations and the

more the lack of physical evidence was highlighted, the more implausible it

became that the victim could not remember surrounding details.

Head has not shown that no competent counsel would have failed to object

to testimony on the uncharged crimes. See Provenzano, 148 F.3d at 1332

(noting that counsel's conduct is unreasonable only if petitioner shows “that no

competent counsel would have made such a choice”). More to the point, the

postconviction court’s conclusion that “[Counsel’s] decision was based on

reasonable trial strategy and therefore not deficient” was not “so lacking in

justification that there was an error . . . beyond any possibility for fairminded

disagreement.” Harrington, 562 U.S. at 103. Thus, under the doubly deferential

standard afforded ineffective assistance claims on habeas review, Head is not

entitled to federal habeas corpus relief on Ground One.3

3 Because the Court finds that the state reasonably determined that

Counsel’s performance was not deficient, it will not consider whether Head

suffered prejudice from the introduction of collateral acts evidence. See

Strickland, 466 U.S. at 697 (recognizing that “there is no reason for a court

deciding an ineffective assistance claim to . . . address both components of the

inquiry if the defendant makes an insufficient showing on one.”).

B. Ground Two

In Ground Two, Head asserts:

[T]rial attorney was ineffective for eliciting collateral

crime/uncharged act evidence that was prejudicial and created the

very real possibility that the jury considered these acts as evidence

of his propensity to commit sexual crimes against a minor and

returned its verdicts as such. The aforesaid testimony and evidence

alleged to have been improperly introduced by Petitioner’s attorney

was substantially similar to the evidence introduced by the

prosecutor as detailed in Ground One.

(Doc. 1 at 7).4 Once again, the postconviction court denied a similar claim after

an evidentiary hearing. (Doc. 10-2 at 628–31). The court first found that Head

failed to establish Strickland prejudice and then determined that “[Counsel’s]

trial strategy was to contrast the egregiousness of the victim’s allegations with

the lack of physical evidence. The more egregious the abuse, the more the lack

of physical evidence was highlighted.” (Id. at 630). The postconviction court

4 Respondent argues that this claim should be “denied outright” because

Head does not specifically identify the evidence that defense counsel elicited

that forms the claim’s basis. (Doc. 9 at 20). Rule 2(c) of the Rules Governing

Habeas Corpus Cases under Section 2254 requires a petitioner to “specify all

the grounds for relief available to the petitioner” and to “state the facts

supporting each ground.” 28 U.S.C. § 2254 Rule 2(c)(1), (2). Therefore “[h]abeas

corpus petitions must meet heightened pleading requirements[.]” McFarland

v. Scott, 512 U.S. 849, 856 (1994). However, Head states that the improperly

introduced evidence was “substantially similar” to that in Ground One. (Doc. 1

at 7). Therefore, it appears that Head now argues that Counsel was

constitutionally ineffective for introducing collateral acts evidence whereas he

argued in Ground One that counsel was ineffective for not objecting to the

state’s introduction of the evidence. The Court will address this claim to the

extent it was raised in state court.

found that Counsel’s strategy was reasonable under the circumstances of this

case. (Id. at 631). The Fifth DCA affirmed.

For the same reasons explained in Ground One supra, the Court finds

that competent counsel could have chosen to affirmatively highlight the lack of

physical evidence and the victim’s inability to remember details of the more

egregious uncharged allegations so as to cast doubt on the victim’s veracity as

it related to the charged crimes. Therefore, the state courts’ decision to deny

this claim was neither contrary to nor based upon an unreasonable application

of Strickland, and it was not based on an unreasonable determination of the

facts given the evidence presented to the state courts. See 28 U.S.C. § 2254(d).

Ground Two is denied.

V. CONCLUSION

After carefully reviewing the pleadings and the state-court record, the

Court concludes that Head is not entitled to federal habeas corpus relief on any

ground raised in this petition.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The 28 U.S.C. § 2254 petition filed by David Head is DENIED and

this case is DISMISSED with prejudice.

2. The Clerk is DIRECTED to enter judgment in favor of Respondent

and against Head, deny any pending motions as moot, terminate any deadlines,

and close this case.

3. If Head appeals this denial, the Court denies a certificate of

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

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED in Jacksonville, Florida on July 5, 2028.

□□□ Limothy Corrigan

Ww TIMOTHY J. CORRIGAN

United States District Judge

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

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

a district court or circuit justice or judge must first issue a certificate of

appealability (COA). “A [COA] may issue... only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, a petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 478,

484 (2000), or that “the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). Upon consideration of the record, the Court declines to issue a COA.

Because Head is not entitled to a COA, he is not entitled to appeal in forma

pauperis.

17

FTMP-2

C: David Head (#709532), counsel of record