Worrell v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL LLOYD WORRELL,

Petitioner,

v. Case No. 3:20-cv-373-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Doc.

1. He is challenging a state court (Duval County, Florida) judgment of

conviction for seven counts of sexual battery. He is a designated sexual predator

serving a life term of incarceration. Respondents have responded. See Doc. 8;

Resp.1 Petitioner replied. See Doc. 11. This case is ripe for review.2

II. Governing Legal Principles

A. Standard of Review

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

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

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

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

1 Attached to the Response are several exhibits. See Docs. 9-1 to 9-12; S-14 The

Court cites the exhibits as “Resp. Ex.”

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

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing 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) (citation omitted). “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.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

state court need not issue an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court

remedies available for challenging his state conviction. See 28 U.S.C. §

2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause and prejudice,

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[5] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496, 106 S. Ct. at 2649. “This exception is

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

5 Murray v. Carrier, 477 U.S. 478 (1986).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’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 ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “iron-clad rule requiring a court to tackle one prong

of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th

Cir. 2010). 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.” 466 U.S. at 697.

“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 (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 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Relevant Procedural History and Evidence Presented at Trial

In 2012, Petitioner was arrested and charged with seven counts of sexual

battery involving three minor victims – A.E.; B.L.; and M.B. Resp. Ex. 7 at 41-

42. The state later filed a second amended information charging Petitioner with

ten counts of sexual battery involving the same three victims – counts one, two,

and three charged Petitioner with sexual battery of B.L.; counts four, five, six,

eight, and nine charged Petitioner with sexual battery of A.E.; and counts seven

and ten charged Petitioner with sexual battery of M.B. Resp. Ex. 3. While the

state intended to try all ten counts together, it also filed a pretrial Williams6

rule notice asking the trial court to determine the propriety of presenting at

trial evidence of the events involving all three victims. Resp. Ex. 4. After

conducting a hearing on the notice, the trial court entered an order permitting

the state to present “the testimony of A.E. as a witness to B.L.’s alleged abuse

and vice versa; the testimony of M.B. as a witness to A.E.’s alleged abuse and

vice versa; and the testimony of A.E. as a witness to M.B.’s alleged abuse and

6 Williams v. State, 110 So. 2d 654 (Fla. 1959).

vice versa.” Resp. Ex. 6. In support of its ruling, the trial court explained that

the ten counts had not been severed for trial; the collateral acts regarding each

victim were proved by clear and convincing evidence; the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice to

the defense; the evidence suggested a pattern of behavior; and the events were

close in time and similar in nature. Id.

On the morning of trial, the state advised the trial court that A.E. had

gone missing and was unavailable for trial. Resp. Ex. 7 at 552. Because A.E.

was unavailable, the state agreed to abandon the charges in counts four, six,

and eight of the second amended information. Id. at 553. Trial counsel moved

to continue the trial proceedings, but the trial court denied the request. Id. at

553-54. Petitioner proceeded to trial on the remaining seven counts.

The relevant trial testimony is summarized in Petitioner’s initial brief

filed on direct appeal:

First, Detective [Larry] Baker testified that he

investigated a case involving [Petitioner’s abuse of]

M.B. Later he identified A.E. as another possible

victim, and she informed him that she had engaged in

various sexual acts with the defendant in several

motels in Duval County. His discussion with A.E. led

him to B.L., who also gave a history of having sex with

the defendant at a local motel. M.B. and B.L. do not

know each other, and there is no link between them

except A.E.

No physical evidence was ever collected. Baker

determined that the incident with B.L. occurred in

2006 based on her history of attending a carnival at a

particular mall at the time. B.L. and M.B. pointed out

motels to him, and he determined that one of [the

motels] had no records, because it was under new

management as of 2012. He made contact with the

manager of an Executive Inn, who remembered the

defendant and said he was one of his best customers.

B.L. did not know the defendant before the single

incident [of abuse].

B.L., who was 18 years old at the time of trial,

testified that she met the defendant one time in the

company of her then friend, A.E., when the two were in

the fourth grade. B.L. spent the night at A.E.’s house

one time. On that occasion, they went to a carnival at

Regency Square. The defendant took them to the

carnival. B.L. testified that he dropped them off at the

carnival and picked them up later on. He took them to

a motel and apparently already had a key. The room

was on the first floor.

B.L. further testified that the defendant told

them to take a bath, and A.E. ran out of the bathroom

naked. A.E. was on the bed and B.L. was on the bed.

B.L. said the defendant performed oral sex on her,

rubbed his penis on her vagina, and put his finger

inside her vagina. B.L. said she screamed and someone

came to the door, and A.E. pushed her to the floor and

the defendant went to the door and nothing happened.

B.L. then ran into the bathroom and got her clothing.

When she came out she saw A.E. and the defendant

having vaginal intercourse. The defendant told her not

to tell her mother until she was 40. The defendant took

them back to the carnival and later on took them back

to A.E.’s house. B.L. did not tell anyone what had

happened except her cousin. Years later she told her

mother. She was 16 when the police located her. She

showed Detective Baker the motel. She did not stay in

touch with A.E. She does not know M.B.

On cross-examination, B.L. testified that she

never saw the defendant again and told police she did

not know who he was and did not previously identify

him. B.L. said that before they went to the motel A.E.

had her phone. B.L. said she knew the defendant as

A.E.’s godfather.

M.B., age 17 at the time of trial, testified that she

and A.E. were friends and the defendant had been her

brother’s teacher and her godfather. She lived in the

defendant’s home during seventh or eighth grade but

not during summers, and at times A.E. also lived there.

They were all about the same age. When she was about

13 or 14 years old, she went to a motel with A.E. and

the defendant and saw them having sex. M.B. was lying

down next to A.E., and the defendant touched her

breast and tried to have sex with her, but that did not

happen. She later went to a motel with the defendant

on other occasions without A.E., maybe about ten

times.

M.B. testified that they drank alcohol, smoked

weed and had sex. He put his mouth on her vagina and

put his penis in her vagina. The motel was near a flea

market and gas station. He went and got the room key

while she waited in the car and then they went into the

room, usually on the first floor. The defendant would

take her shopping and buy her clothes, and he also

bought school clothes for her brother. She once told her

mother about it, but then said it did not happen. She

showed Detective Baker where some of the motels were

located. She does not know B.L. She has not talked to

A.E. in years. M.B. had known the defendant since she

was in the fourth grade. She knew his family and they

went to school together. She would go home on

weekends. She and her brother lived with the

defendant’s family so they could go to a better school.

They were all on the same family phone plan. She said

the incidents with the defendant occurred during the

school year; she said all of [the incidents] did not

happen in the summer or in one year. At one point she

told her mother what had happened, but then told her

to never mind, that it never happened. She also tried to

tell her brother, but he did not listen.

Larnell Evans, A.E.’s father, testified that he

knew the defendant and he called himself A.E.’s

godfather. A.E. lived with the defendant between 2007-

11, off and on. Mr. Evans had last spoken to A.E. three

weeks earlier.

Mihir Patel testified that he manages the

Executive Inn motel in Jacksonville, and that he had

encountered the defendant often at the motel front

desk, and that he usually came to the night window.

The defendant checked into the motel alone in the

evening and was not seen there in the morning. He said

the defendant was one of their best customers. He

preferred a downstairs room. He rented a room once or

sometimes twice a week. Patel pulled records for 2011

and 2012. He did not recall seeing the defendant with

another person at the motel.

. . . .

The defendant, his son and his wife testified for

the defense.

D.W., the defendant’s son, testified that he was

17 years old and knew both A.E. and M.B. They were

in school together and became friends. To his

knowledge, his Dad was never alone with A.E., M.B. or

M.B.’s brother, who was also one of his friends. He had

not spoken to them recently, but knew A.E. had talked

to his Mom. He did not know B.L.

Alma Worrell, the defendant’s wife, testified that

they had been married for 26 years. She was aware that

he suffered from erectile dysfunction and had done so

since 2005, and took medication for that condition. Mrs.

Worrell knew A.E. and M.B. and her brother and also

their father. They spent time at her house on weekends.

They sometimes left from her house to go to school, and

her husband would take them to school. They

sometimes spent the night at her house. Her husband

was never alone in the house with them. She had no

contact with M.B. since the allegations were brought,

but A.E. called her. She did not know B.L.

Mr. Worrell, age 64 at the time of trial, testified

that he was a school teacher from 2005 until 2012 after

serving 30 years in the Navy. He had known his wife

for 30 years. He has four older children in addition to

D.W. He denied any sexual activity with any of the girls

and said he did not know B.L. He does know A.E. and

M.B., and had known them since they were in about

third grade. He tutored math and also gave M.B. and

her brother rides home from school. At times he also

picked them up in the morning before school. He met

A.E. under different circumstances, and also tutored

her. The children all became friends. M.B.’s mother

worked on weekends, and A.E.’s father was a single

parent, so the kids would come over and hang out on

weekends. They functioned as a family. At times his

wife had problems with the kids being around. There

were other family members around as well, and she

cooked for all of them. He paid the kids to help with one

of his side businesses, and when the kids were in

middle school, M.B. and her brother came to stay with

his family so they could go to a better school. They

stayed over on week days and went home on weekends.

A.E. did not go to the same middle school, and he would

pick her up and take her to school. The children were

in need so he tried to help. He purchased school

clothing for them at times. He did not expect anything

from them in return.

Mr. Worrell did recall taking A.E. and another

girl to a carnival in November, 2006. He dropped them

off and gave them money. He picked them up and went

to Larnell Evans’s home for a while. He could not say

who the other girl was. He did stay at the Executive Inn

once or twice a week because he suffered from PTSD

and got upset at times, so he went there to be alone. He

did not take anyone with him. The girls would have

known that he went there because of the receipts in his

car. Sometimes money was missing from his truck.

Sometimes he stayed at the motel all night. He would

get the key and watch movies and have a drink and that

was it. The kids did not stay over at his house very often

during the summer months. He did not behave

inappropriately with M.B., B.L., or A.E. Mr. Worrell

testified he only went to one motel.

Resp. Ex. 12 at 2-10 (record citations omitted).

Following closing arguments, the jury found Petitioner guilty of the

capital sexual battery offenses charged in counts one, two, three, and five, as

well as the first degree sexual battery offenses charged in counts seven, nine,

and ten. Resp. Ex. 7 at 200-06. The trial court adjudicated Petitioner as a sexual

predator and sentenced him to a mandatory life term of incarceration as to

counts one, two, three, and five, and a thirty-year term of incarceration as to

counts seven, nine, and ten. Id. at 428-38. Petitioner, with help from appellate

counsel, sought a direct appeal, and the First District Court of Appeal affirmed

his judgment and sentences without a written opinion. Resp. Ex. 15. Petitioner

filed with the state court a Florida Rule of Criminal Procedure 3.850 motion,

which the trial court summarily denied. Resp. Ex. 24. Petitioner appealed the

trial court’s order, and the First DCA affirmed the denial through a written

opinion. Resp. Ex. 30. The Petition followed.

IV. The Petition

A. Ground One

Petitioner argues his trial attorney was ineffective for failing to object to

or seek to exclude A.E.’s testimonial statements introduced at trial through

other witnesses’ testimony. Doc. 1 at 16. According to Petitioner, “[b]efore trial,

A.E. recanted her testimony . . . and became unavailable for trial.” Id. He

contends Detective Baker testified to statements A.E. made to him during his

investigation and B.L. testified to alleged statements A.E. made during

Petitioner’s alleged assault of both B.L. and A.E. Doc. 11 at 4-3. Petitioner

argues this evidence, and all charged counts involving A.E., should have been

prohibited and dismissed because the jury could not observe A.E.’s demeanor

and consider her credibility; and presentation of her hearsay statements

violated Petitioner’s confrontation rights. Doc. 1 at 16-17.

Petitioner admits that he did not present this claim to the state court, and

thus it is unexhausted and procedurally defaulted. Id. at 12. But he attempts to

overcome this procedural default by relying on Martinez v. Ryan, 566 U.S. 1

(2012), and arguing he can show “cause” to excuse his default because he did

not have counsel when he filed his Rule 3.850 motion. Id. Under Martinez,

Petitioner must prove more than the general assertion that the trial court did

not appoint counsel in the initial-review collateral proceeding. Martinez, 566

U.S. at 14. Petitioner must “also demonstrate that the underlying ineffective-

assistance-of-trial-counsel claim is a substantial one, which is to say that the

prisoner must demonstrate that the claim has some merit.” Id. (citations

omitted); see also Lambrix v. Sec’y Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th

Cir. 2017). On the other hand, his claim is “insubstantial” if “it does not have

any merit or . . . is wholly without factual support.” Id. at 16. For the reasons

that follow, the Court finds that even if Petitioner shows that his lack of

postconviction counsel caused his procedural default, he cannot show that his

underlying ineffective assistance of counsel claim is substantial.

Prior to jury selection in March 2015, the state advised the trial court that

A.E. was reported missing and believed to be a runaway. Resp. Ex. 7 at 552-54.

According to the state, A.E. had not been seen by her family since the end of

January and state investigators could not locate her. Id. Considering her

disappearance, the state advised trial counsel of its intent to abandon the

charged offenses in count four (sexual battery of A.E. by “placing his mouth on

her vagina”); count six (sexual battery of A.E. by “placing his penis in her anus”);

and count eight (sexual battery of A.E. by “placing his penis in her anus”) of the

second amended information; but it intended to proceed on count five (sexual

battery of A.E. by “placing his penis in her vagina”) and count seven (sexual

battery of A.E. by “placing his penis in her vagina”) as evidence of those offenses

would be presented through testimony of other witnesses. Id. at 553-54; see also

Resp. Ex. 3. The state also advised it intended to call as a witness A.E.’s father

who would testify to A.E.’s date of birth and that she is missing. Resp. Ex. 7 at

553. Trial counsel advised he knew A.E. was missing, explained defense

investigators also could not find her, and noted that the trial court had granted

his prior requests for continuances. Id. at 555-56. Trial counsel also advised that

he did have an opportunity to depose A.E. before trial. Id. at 556-57. Despite

these facts, trial counsel requested another continuance because A.E. was

unavailable. Id. at 553-54.

The trial court then acknowledged that it had granted many of trial

counsel’s requests for continuance, over the state’s objection, in hopes of locating

A.E. but that the parties and the court set a hard trial date because the case

had been pending since 2012. Id. at 557-10. The trial court explained that it

understood trial counsel’s request to again continue trial in hopes of locating

A.E. but advised she had not been found by either her family or the parties’

investigators for two months. Id. at 558-59. It added that because of those

circumstances and the three-year pendency of the proceedings, it would not

continue the trial again. Id. In response, trial counsel argued that the other two

victims intended to testify about what they witnessed between Petitioner and

A.E., and thus Petitioner had a Sixth Amendment right to confront A.E. about

those issues and her unavailability required dismissal of counts five and seven.

Id. at 560. The trial court responded:

THE COURT: Well, I don’t think, and unless you can

all show me case law to the contrary, the Sixth

Amendment right . . . to confront witnesses against you

is just that, to confront the witnesses against you. It

doesn’t have to be the alleged victim in the count. If

there are witnesses that the state intends to prove, and

I don’t know who they are or how many there are, but

if they have witnesses that they intend to introduce to

prove up the elements of Count 5 and Count 7, then

clearly Mr. Worrell will have the right to confront those

witnesses by cross-examining them.

I don’t believe the Sixth Amendment or any case law --

and, again, unless you all can show me to the contrary

-- says the actual victim of the alleged crime has to be

presented, because we all know that victims of crimes

often don’t show up in cases, can be proven without

their assistance and without their presence at trial,

domestic battery, for instance, and other such charges.

So I don’t think that alone would preclude the state

from going forward on Counts 5 and 7 or from this

Court going forward on Count 5 and 7, assuming

evidence and testimony is sufficiently pled and proven.

If it’s not, that is what a JOA is for, and that is where I

would then come in. And if it is, then that is what the

jury’s decision will be, to decide whether the state has

proven those two counts beyond a reasonable doubt.

If -- who are the witnesses -- if either [ ] or [ ] can provide

enough testimony or evidence to prove the allegations

in Counts 5 and 7, then they would go forward.

I don’t think it requires [A.E.] to have to be here for

Count 5 and Count 7 to go forward.

Resp. Ex. 7 at 561-62. Trial counsel then argued that during the Williams rule

hearing, one reason the state sought to introduce A.E.’s testimony was to

identify Petitioner as the abuser of [B.L.] Id. at 562. The trial court then

acknowledged that reasoning but also explained that other alleged victims may

be able to identify Petitioner through other evidence and thus A.E.’s testimony

was unnecessary for that purpose. Id. at 562-63.

In light of this record evidence, and contrary to Petitioner’s assertions

here, trial counsel did argue, although unsuccessfully, that the state should

have abandoned all charges involving A.E. because A.E. was unavailable for

trial. Also, there is no record evidence that testimonial statements by A.E. were

introduced through other witnesses’ trial testimony. Detective Baker did not

testify to any pretrial statements A.E. made to him during his investigations.

Resp. Ex. 7 at 730-46. Indeed, the only statements Baker made during trial that

alluded to his discussions with A.E. were that after he interviewed A.E., he

identified two other potential victims. Id. at 734. Further, neither B.L. nor M.B.

testified to improper testimonial statements by A.E. Rather, each victim

testified that on separate occasions, they witnessed Petitioner having sexual

intercourse with A.E. Id. at 757, 790. In other words, B.L. and M.B. offered

“straight-forward eyewitness testimony.” United States v. Marshall, 259 F.

App’x 855, 861 (7th Cir. 2008). They had first-hand knowledge about the facts

to which they testified, and Petitioner’s ability to cross-examine them about

what they witnessed between A.E. and Petitioner satisfied his confrontation

rights.

As such, Petitioner cannot establish that his trial counsel acted

deficiently or that counsel’s alleged erroneous conduct resulted in prejudice to

Petitioner. Because this claim is insubstantial and lacks merit, Petitioner

cannot rely on Martinez to excuse the procedural default of this claim. Likewise,

Petitioner has failed to demonstrate that failure to consider this claim will

result in a fundamental miscarriage of justice. Ground One is due to be denied.

B. Ground Two

Petitioner argues his trial counsel was ineffective for failing to object to

B.L.’s out-of-court and in-court identifications of Petitioner as her abuser, which

were not based on her independent recollection. Doc. 1 at 17. According to

Petitioner, during law enforcement’s initial investigation into Petitioner’s

alleged assault of B.L., B.L. did not identify Petitioner during officers’ “showup”

because her alleged assault occurred six years earlier. Instead, B.L. was able to

only identify her assailant as “A.E.’s godfather” who she had met once. Id.

Petitioner argues officers then engaged in “suggestive out of court procedures”

and used the show up to advise B.L. that Petitioner is A.E.’s godfather.

Petitioner asserts officers’ suggestive identification measures then led to B.L.

making an in-court identification of Petitioner as the individual who abused

her. Id. He contends that counsel should have moved to suppress evidence of

B.L.’s identification testimony as it was tainted by officers’ impermissible

actions.

Petitioner again admits that he did not present this claim to the state

court and thus it is unexhausted and procedurally defaulted. Id. at 12. But he

attempts to overcome this procedural default by relying on Martinez and

arguing he can show “cause” to excuse his default because he did not have

counsel when he filed his Rule 3.850 motion. Id. But the Court finds that even

if Petitioner could show that his lack of postconviction counsel caused his

procedural default, he cannot show that his underlying ineffective assistance of

counsel claim is substantial.

Here, Petitioner does not point to any record evidence that during their

investigation, officers presented to B.L. an out-of-court “show up” either

through an in-person lineup or a photo lineup, and the Court can locate no such

evidence in its review of the record. In any event, assuming law enforcement

employed such procedures during their investigation, an out-of-court

identification is subject to exclusion if the identification procedure was unduly

suggestive such that it created a substantial risk of misidentification. Neil v.

Biggers, 409 U.S. 188, 199 (1972). In determining whether an identification

violates due process, a court undertakes a two-part analysis. “First, we must

determine whether the original identification procedure was unduly suggestive

. . . . If we conclude that the identification procedure was suggestive, we must

then consider whether, under the totality of the circumstances, the

identification was nonetheless reliable.” Cikora v. Dugger, 840 F.2d 893, 895

(11th Cir. 1988) (citing Biggers, 409 U.S. at 199).

In Biggers, the United States Supreme Court identified five factors to be

considered in determining whether the identification was reliable. They are: the

witness’s opportunity to view the suspect at the time of the crime, the witness’s

degree of attention, the accuracy of the description of the suspect, the level of

certainty of the identification, and the length of time between the crime and the

identification. See Biggers, 409 U.S. at 199. In Manson v. Brathwaite, 432 U.S.

98 (1977), the Supreme Court stated that absent “a very substantial likelihood

of irreparable misidentification,” the identification of a suspect by a witness is

evidence for the jury to weigh. Id. at 116.

During trial, B.L testified that she only met Petitioner one time, the same

day he sexually abused her, and she never saw him again after the assault.

Resp. Ex. 7 at 748-50. But B.L. testified that she could recognize Petitioner if

she saw him again and she made an in-court identification of Petitioner as her

abuser. Id. at 748. B.L. then provided detailed testimony of the events

surrounding Petitioner’s actions. Id. at 750-61. During cross-examination, B.L.

testified that she told police she did not know Petitioner when he abused her

and at no point did she ever identify him to police. Id. at 762. But on re-direct,

B.L. testified that on the day that the incident occurred, she met Petitioner at

A.E.’s house, she knew him as A.E.’s godfather, and he had introduced himself

to her as “Michael.”7 Id. at 782-83.

Under the totality of the circumstance, B.L.’s in-court identification of

Petitioner was reliable. She clearly remembered specific details of the incident

and there is no evidence that her testimony stemmed from any outside

influence. Trial counsel tried to test her credibility by eliciting testimony that

B.L. did not know who Petitioner was but those statements, in context, did not

suggest she could not recognize Petitioner. Rather, they suggested that her one

and only interaction with Petitioner was on the day he assaulted her. As such,

the Court cannot find that trial counsel acted deficiently in failing to move to

suppress B.L.’s identification of Petitioner. And to that end, because this claim

is insubstantial and lacks merit, Petitioner cannot rely on Martinez to excuse

the procedural default of this claim. Likewise, Petitioner has failed to

demonstrate that failure to consider this claim on the merits will result in a

fundamental miscarriage of justice. Ground Two is due to be denied.

C. Ground Three

Petitioner argues that the trial court erred in denying his request for a

continuance before jury selection when the state could not locate A.E. for trial.

Doc. 1 at 18. According to Petitioner, during the pretrial Williams rule hearing,

7 The trial transcript shows that at the time of the incident, she identified

Petitioner through other information, but that information has been redacted. Resp.

Ex. 7 at 782-83.

the trial court and the parties clarified that A.E. was the only connection

between the alleged offenses involving B.L. and M.B., and the entire case,

including Petitioner’s defense strategy, was altered when A.E. failed to appear

for trial. Id. Petitioner argues that without A.E., there was no basis for the state

to pursue a single trial for the offenses involving the other two victims,

especially considering B.L.’s prior inability to identify Petitioner. Id.

Petitioner, with help from appellate counsel, raised this claim as his sole

issue on direct appeal.8 Resp. Ex. 12. The state filed an answer arguing:

The initial problem with the argument advanced

by the appellant is that, despite the wording of the

issue statement, the appellant in substance attempts to

assert an argument that the charges were improperly

joined. The appellant, plainly aware that the offenses

were charged in one information, never filed a motion

to sever the charges. Motions for severance are waived

if not timely raised. Brooks v. State, 762 So. 2d 879, 890

(Fla. 2000) (citing Fla. R. Crim. P. 3.152 (a)) (further

citation omitted).

The decision to decline the appellant’s request for

another continuance was not “arbitrary, fanciful, or

unreasonable.” White [v. State], 817 So. 2d [779,] 806

[(Fla. 2002)]. To prevail on his motion [for continuance],

the appellant was required to demonstrate:

(1) prior due diligence to obtain the

witness’s presence; (2) that substantially

8 In his initial brief on direct appeal, Petitioner raised this claim in terms of

state law only and did not reference a due process violation or any other federal

constitutional right. See generally Resp. Ex. 12. Respondents, however, do not argue

that Petitioner failed to exhaust the federal nature of this claim and instead address

the claim on the merits. Resp. at 21-22. Considering the Response, and for purposes of

this Order, the Court considers this claim exhausted.

favorable testimony would have been

forthcoming; (3) that the witness was

available and willing to testify; and (4) that

the denial of the continuance caused

material prejudice.

Geralds [v. State], 674 So. 2d [96,] 99 [(Fla. 1996)]

(citations omitted). Here, the record contains no

showing by the appellant that A.E. was willing to

testify or was capable of being located. Nor does the

record contain a showing that A.E. would have

provided testimony favorable to the appellant.

Moreover, contrary to the argument by the

appellant, the transcript of the ruling reveals that the

trial court’s concern extended beyond “efficiency and

practicality.” The trial court stated:

This was a September 2012 arrest, and for

the very reason that we try to put cases on

the trial docket sooner rather than later,

that is to prevent witnesses from

disappearing, here is in fact what we have

now.

I understand your request, you want to

continue because A.E. is not available, but

there is no guarantee that she might be

found that she might be picked up on that

order or as a result of that [sheriff’s office]

bulletin.

In other words, the trial court’s concern extended to the

ability to secure at a later date the presence of the

witnesses who were present and were prepared to

testify. Having balanced this concern against the

uncertainty that A.E. would be found, the court

declined to continue the trial.

Because the appellant is unable to sustain his

burden of showing that the trial court judge abused her

discretion, this Honorable Court is requested to affirm

the judgment and sentence entered in this matter.

Resp. Ex. 13 at 8-10 (record citations omitted). The First DCA per curiam

affirmed Petitioner’s judgment and sentence without a written opinion. Resp.

Ex. 15. The Court addresses this claim under the deferential standard for

federal court review of state court adjudications.

The Supreme Court has stated that “[t]he matter of continuance is

traditionally within the discretion of the trial judge, and it is not every denial

of a request for more time that violates due process . . . .” Ungar v. Sarafite, 376

U.S. 575, 589 (1964). Thus, “a constitutional violation occurs only where the

court exhibits an unreasoning and arbitrary insistence upon expeditiousness in

the face of [a] justifiable request for delay.” United States v. Bonilla-Siciliano,

643 F.3d 589, 591 (8th Cir. 2011) (internal quotation marks and citation

omitted). “To prevail, [Petitioner] must establish that the court’s decision was

so egregious that it was fundamentally unfair.” Id. (internal quotation marks

and citation omitted).

Here, the trial court’s denial of Petitioner’s request for a continuance was

not fundamentally unfair. Petitioner was always aware that the case involved

three victims; all versions of the charging document included charges involving

all three victims; Petitioner never sought to sever the counts involving B.L. and

M.B. from those involving A.E.; and the evidence presented at trial supported

Petitioner’s convictions for the separate offenses involving A.E., M.B., and B.L.

As such, upon review of the record, the Court concludes that the state court’s

adjudication of this claim was neither contrary to, nor an unreasonable

application of, clearly established federal law. Nor was it based on an

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

the state court proceedings. Ground Three is denied.

D. Ground Four

Petitioner argues that his trial counsel was ineffective for failing to

adequately investigate and/or present testimony from physicians who

unsuccessfully treated Petitioner for erectile dysfunction and conducted

psychosexual evaluations on Petitioner. Doc. 1 at 18.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 23 at 28-

33. The trial court summarily denied the claim. Resp. Ex. 24 at 6-7. Petitioner

appealed, and the First DCA issued a written opinion affirming the trial court’s

denial. Resp. Ex. 30. The First DCA addressed this issue:

Michael Worrell was convicted on seven counts of

sexual battery against two young girls. Worrell filed a

postconviction motion alleging six reasons that his trial

counsel was ineffective, which the postconviction court

summarily denied. On appeal, we affirm the summary

denial, but write to address Worrell’s claim that

counsel was ineffective for failing to present the

testimony of two doctors who would have supported his

defense.

To prevail on an ineffectiveness claim, a

defendant must show that counsel’s performance was

deficient and prejudicial; counsel’s errors must have

been so serious that the Sixth Amendment’s guarantee

of counsel was not satisfied and the defendant was

deprived of a fair trial. See Strickland v. Washington,

466 U.S. 668, 687 (1984). If a defendant asserts

ineffectiveness due to counsel’s failure to call,

interview, or investigate witnesses, he must allege the

testimony that could have been elicited from the

witness and how the failure to elicit this testimony

caused prejudice. See Nelson v. State, 875 So. 2d 579,

583 (Fla. 2004). If this claim is legally sufficient, an

evidentiary hearing is required unless it is conclusively

refuted by the record. See Franqui v. State, 59 So. 3d

82, 95 (Fla. 2011).

Worrell claimed that counsel should have called

Dr. Neidigh, who had conducted a psychosexual

evaluation of Worrell and would have testified that he

had no propensity to molest children. Worrell also

claimed that counsel should have called Dr. Kirk, who

would have testified that he had treated Worrell,

unsuccessfully, for erectile dysfunction, thus rendering

dubious the victims’ allegations.

“Typically, it will be necessary to hold an

evidentiary hearing to determine why trial counsel did

not call a particular witness.” Terrell v. State, 9 So. 3d

1284, 1288-89 (Fla. 4th DCA 2009). However, summary

denial is appropriate when the record shows that the

defendant knew of potential witnesses and told the trial

court that he did not wish to call additional witnesses.

See McIndoo v. State, 98 So. 3d 640, 641 (Fla. 4th DCA

2012) (“Because his sworn motion indicates that he was

aware of the witness and that witness’s testimony prior

to trial, the colloquy to the court conclusively refutes

his claim that his attorney failed to call a known

witness against the appellant’s wishes. He is bound by

his answers to the court.”). Similarly, in Terrell, the

defendant told the trial court that he did not wish to

call additional witnesses and had not asked counsel to

call or locate any before making contrary claims in his

postconviction motion. 9 So. 3d at 1287. The Fourth

District found that the claims were properly denied

summarily because “the defendant assured the court

that there were no other witnesses he wanted to call in

his defense” and is “bound by his sworn answers during

the colloquy.” Id. at 1289. At trial, the court asked

Worrell if he wished to call any additional witnesses

and Worrell named two – neither being Drs. Neidigh or

Kirk – but stated that they were unfortunately

unavailable. On [his Rule 3.850] appeal, he “admits

that during trial . . . he had neglected to recollect that

Drs. [Neidigh and Kirk] and others should have been

called as additional witnesses for his defense.” As

defendants cannot go behind their colloquy statements,

we cannot permit them to do so by asserting that they

simply forgot about potential witnesses during trial

and now, in postconviction proceedings, remember

them and their potential testimony.

Even had the record not conclusively refuted

Worrell’s claims, he would not be entitled to an

evidentiary hearing. Dr. Neidigh’s potential expert

opinion testimony as to Worrell’s propensities or

characteristics is not admissible. Section 90.405,

Florida Statutes, governs the admission of character

evidence and “does not permit evidence of character to

be made by opinion.” Wyatt v. State, 578 So. 2d 811,

813 (Fla. 3d DCA 1991). In Wyatt, the defendant faced

allegations similar to Worrell and intended to call a

clinical psychologist “to testify that the defendant does

not fit the profile of a pedophile,” the trial court

excluded the testimony, and the Third District held

that “the defendant sought to introduce evidence of his

character through the expert opinion of a psychologist,

which is not permitted by the statute.” Id. at 812-13.

Our rules of evidence would not have permitted Dr.

Neidigh to opine on whether he believes Worrell has the

characteristics of a child molester. As to Dr. Kirk, who

Worrell claims could have testified that he suffered

from erectile dysfunction, the postconviction court

found that any potential deficiency cannot be found to

have prejudiced Worrell. Given that Worrell and his

wife both testified as to this issue, the two victims did

not know each other and gave extremely similar

accounts of their experiences of Worrell bringing them

to a hotel to have sex, and other evidence presented,

such as a hotel owner’s testimony that Worrell often

rented a room in the most private area of the hotel, we

agree with the postconviction court that there is not a

reasonable probability that Dr. Kirk’s testimony would

have changed the outcome of the trial.

Worrell’s claim that counsel was ineffective for

failing to present two witnesses is conclusively refuted

by the record, and we decline to permit defendants to

go behind their representations to the trial court by

asserting a lapse in memory. Even had Worrell’s claims

not been refuted by the record, summary denial was

proper. Therefore, we affirm the denial of his

postconviction motion.

AFFIRMED.

Resp. Ex. 30; see also Worrell v. State, 281 So. 3d 1275 (Fla. 1st DCA 2019).

The Court addresses these claims under the deferential standard for

federal court review of state court adjudications. As the state court noted,

during trial, the trial court asked Petitioner whether there were any other

witnesses he wished to call in his defense. Resp. Ex. 7 at 876. Petitioner replied

that he wished to call Dr. Tiomico but explained that she was unavailable

because she was out of the country addressing a family emergency. Id.

According to Petitioner, she would have testified that she prescribed Petitioner

medication for his erectile dysfunction. Id. The trial court acknowledged his

concern but noted Petitioner’s wife testified about his prescribed medication for

erectile dysfunction, thus he presented that evidence to the jury without Dr.

Tiomico. Id. Petitioner agreed with the trial court’s reasoning and mentioned

no other expert witnesses he wished to call in his defense.9 Id. Thus, Petitioner

cannot demonstrate that but for trial counsel’s alleged error, the outcome of his

trial would have been different. Upon thorough review of the record and the

applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

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

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

Four is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED

with prejudice.

2. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals the dismissal of this case, the Court denies a

9 Petitioner did state that he would have liked to call Charles Burgess,

an inmate of the Duval County Jail, as a witness but explained that Burgess

was also not available to testify. Resp. Ex. 7 at 876-77.

certificate of appealability.'° Because the Court has determined that a

certificate of appealability 1s 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 at Jacksonville, Florida, this 7th day of August,

2023.

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Michael Lloyd Worrell, #J55039

Counsel of record

10 The Court should issue a certificate of appealability only if a petitioner

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

§ 2258(c)(2). To make this substantial showing, Petitioner “must demonstrate

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

constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 4738, 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 (2008) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983)). Upon due consideration, the Court will deny a

certificate of appealability.

34