# Solano v. Secretary, Department of Corrections (St. Johns County)

> District Court, M.D. Florida · August 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10113667

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

HERMAN PAUL SOLANO,

Petitioner,

vs. Case No. 3:20-cv-410-BJD-MCR

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,

Respondents.

ORDER
I. STATUS
Petitioner Herman Paul Solano is proceeding pro se on a Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody
(Petition) (Doc. 1) challenging his St. Johns County conviction for violation of
pretrial release, aggravated battery, false imprisonment, shooting into a
building, and burglary with an assault or battery.1 Respondents filed a

1 Petitioner was not in custody for the offense of violation of pretrial release at the time of
the filing of his Petition on April 17, 2020 pursuant to the mailbox rule. See Response at 2,
listing the offenses other than the offense of violation of pretrial release. He received a
sentence of 364 days for that offense and was allowed a credit of 428 days of time incarcerated
before imposition of his sentence. As such, Petitioner does not meet the “in custody”
requirement to attack that particular offense. See Medberry v. Crosby, 351 F.3d 1049, 1055
(11th Cir. 2003); 28 U.S.C. § 2254(a). A federal habeas petitioner must be “in custody” under
the conviction or sentence under attack at the time he files his petition. Maleng v. Cook,
490 U.S. 488, 490-91 (1989) (per curiam). Based on the record, Petitioner was not in custody
pursuant to the state judgment for violation of pretrial release when he filed his Petition.
Response to Order to Show Cause (Doc. 10) and an Appendix of Exhibits (Doc.
11). Petitioner filed an Amended Reply to Answer (Reply) (Doc. 20).2

II. HABEAS REVIEW
The role of this Court is limited when reviewing a state prisoner’s
application pursuant to 28 U.S.C. § 2254; “[u]nder AEDPA, a court cannot
grant relief unless the state court's decision on the merits was ‘contrary to, or

involved an unreasonable application of,’ Supreme Court precedent, or ‘was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” McKiver v. Sec’y, Fla. Dep’t of
Corr., 991 F.3d 1357, 1364 (11th Cir.) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert.

denied, 142 S. Ct. 441 (2021). Therefore, habeas relief is limited to those
occasions where the state court’s determinations are unreasonable, that is, if
no fairminded jurist could agree with them. Id.
If there has been one reasoned state court judgment rejecting a federal

claim followed by an unexplained order upholding that judgment, federal
habeas courts employ a "look through" presumption: "the federal court should
'look through' the unexplained decision to the last related state-court decision

2 The Court refers to the exhibits contained in the Appendix of Exhibits (Doc. 11) as “Ex.”
and references the page number in the bottom center of the page. For the Petition,
Response, and Reply, the Court references the docket and page numbers assigned by the
electronic filing system.

2
that does provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018) (Wilson).
Also, a state court's finding of fact, whether a state trial court or
appellate court, is entitled to a presumption of correctness under 28 U.S.C. §
2254(e)(1). “The state court’s factual determinations are presumed correct,

absent clear and convincing evidence to the contrary.” Sealey v. Warden, Ga.
Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (quoting 28 U.S.C. §
2254(e)(1)), cert. denied, 141 S. Ct. 2469 (2021). This presumption of
correctness, however, applies only to findings of fact, not mixed determinations

of law and fact. Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th
Cir. 2013) (per curiam) (acknowledging the distinction between a pure question
of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).3
Furthermore, the second prong of § 2254(d), requires this Court to “accord the

state trial court [determination of the facts] substantial deference.” Dallas v.
Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576

3 The Court finds the reasoning of Brannan persuasive on this point. See McNamara v.
Gov’t Emp. Ins. Co., 30 F.4th 1055, 1060-61 (11th Cir. 2022) (reiterating that unpublished
opinions may be cited as persuasive authority but are not binding precedent. See Rule 32.1,
Fed. R. App. P. The Court references other unpublished decisions in this opinion,
recognizing that these decisions constitute persuasive authority, not binding precedent.

3
U.S. 305, 314 (2015)), cert. denied, 142 S. Ct. 124 (2021). As such, a federal
district court may not supersede a state court’s determination simply because

reasonable minds may disagree about the finding. Id. (quotation and citation
omitted).
Of import, “[i]t is not the province of a federal habeas court to reexamine
state-court determination on state-law questions.” Estelle v. McGuire, 502

U.S. 62, 67 (1991). Indeed, a habeas petition grounded on issues of state law
provides no basis for federal habeas relief as a violation of state statute or rule
of procedure does not constitute a violation of the federal constitution.
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989) (per curiam). As such,

a federal writ is only available in cases amounting to federal constitutional
error. Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993). This is so even
if the claim is “couched” in terms of alleged constitutional violations, like due
process. Branan, 861 F.2d at 1508.

The two-part Strickland standard governs claims of ineffective
assistance of counsel.4 Knight v. Fla. Dep’t of Corr., 958 F.3d 1035, 1038 (11th
Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021). See Freeman v. Comm’r, Ala.
Dep’t of Corr., 46 F.4th 1193, 1220 (11th Cir. 2022) (“In an ineffective

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

4
assistance of counsel claim, § 22543(d)’s terms are judged by the standard set
forth in Strickland v. Washington.”), cert. denied, 143 S. Ct. 1785 (2023).

Pursuant to this standard, a defendant must show: (1) his counsel's
performance was deficient and (2) the deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687. A district court need not address both
prongs if a petitioner makes an insufficient showing on one. Fifield v. Sec’y,

Dep’t of Corr., 849 F. App’x 829, 833 (11th Cir. 2021) (per curiam) (relying on
Strickland), cert. denied, 142 S. Ct. 788 (2022).
To prevail, a petitioner must successfully show his counsel “made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” as well as show “the deficient
performance prejudiced the defendant, depriving him of a ‘fair trial, a trial
whose result is reliable.’” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th
Cir. 2021) (quoting Strickland, 466 U.S. at 687), cert. denied, 142 S. Ct. 1234

(2022). Additionally, combining the deferential standard for judging the
performance of counsel with the extra layer of deference that § 2254 provides,
the resulting double deference “is doubly difficult for a petitioner to
overcome[.]” Johnson v. Sec’y, DOC, 643 F.3d 907, 911 (2011).

To determine whether Petitioner is entitled to habeas relief, this Court
must ask (1) whether the [state court] decisions were ‘contrary to, or involved

5
an unreasonable application of, clearly established Federal law, as determined’
in Strickland, or (2) whether the . . . decisions were ‘based on an unreasonable

determination of the facts in light of the evidence presented in the state court
proceeding.’” Whatley v. Warden, Ga. Diagnostic & Classification Ctr., 927
F.3d 1150, 1175 (11th Cir. 2019) (citations omitted), cert. denied, 141 S. Ct.
1299 (2021). The AEDPA standard is quite difficult to meet as a state court’s

decision must be given deference and latitude.
A claim of ineffective assistance of appellate counsel is also governed by
the Strickland standard. Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir.
2009) (per curiam), cert. denied, 559 U.S. 1010 (2010). As in a claim of

ineffective assistance of trial counsel, failure to establish either prong of the
Strickland standard is fatal to a claim of ineffective assistance of appellate
counsel. Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020),
cert. denied, 141 S. Ct. 1721 (2021).

In applying the two-pronged standard established in Strickland, the
Court is mindful that appellate counsel may weed out weaker, although
meritorious arguments, as there is no duty under the Sixth Amendment to
raise every non-frivolous issue. Overstreet v. Warden, 811 F.3d 1283, 1287

(11th Cir. 2016). Regarding the prejudice prong, “[a]ppellate] [c]ounsel’s
performance will be deemed prejudicial if we find that the neglected claim

6
would have a reasonable probability of success on appeal.” Tuomi, 980 F.3d
at 795 (quoting Philmore, 575 F.3d at 1265) (internal quotation omitted).

“Generally, only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome.”
Overstreet, 811 F.3d at 1287 (quoting Smith v. Robbins, 528 U.S. 259, 288
(2000) quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

III. GROUNDS
Petitioner raises eleven grounds in the Petition:
(1) the trial court erred in failing to appoint a second
expert to determine Petitioner’s competency in
violation of Fla. Stat. § 916.12(2) and Florida Rule of
Criminal Procedure 3.210;

(2) the trial court erred in failing to discharge counsel
after a Nelson hearing showing irreconcilable
differences;

(3) the trial court erred by summarily denying a
motion to withdraw a plea to a charge of possession of
a firearm by a convicted felon without opportunity to
amend;

(4) ineffective assistance of appellate counsel for
failure to argue that the trial court erred and deprived
Petitioner of due process of law by using the standard
jury instruction for shooting into a building which
erroneously defined malice;

(5) prosecutorial misconduct resulting in Petitioner’s
conviction for burglary being obtained by the use of

7
false or perjured testimony in violation of the Due
Process Clause;

(6) ineffective assistance of counsel for failure to object
to the prosecutor’s use of text messages obtained from
Petitioner’s cell phone;

(7) ineffective assistance of counsel for failure to
properly cross-examine and impeach Kelly Solano, the
victim;

(8) ineffective assistance of counsel for failure to object
to the Florida Department of Law Enforcement
(FDLE) lab report being admitted into evidence and
Deputy Keegan being allowed to testify regarding the
contents of the report in violation of Petitioner’s right
to confrontation;

(9) ineffective assistance of counsel for failure to call
Jimmy Blalock, Petitioner’s half-brother, to testify;

(10) ineffective assistance of counsel for failure to
object to improper and misleading remarks of the
prosecutor during closing arguments; and

(11) ineffective assistance of counsel for misadvising
Petitioner that he would receive a three-year prison
sentence if he entered an open plea of nolo contendere
to the offense of possession of a firearm by a convicted
felon.

Although Petitioner seeks an evidentiary hearing, Petition at 36, Reply
at 39-41, the Court concludes no evidentiary proceedings are required. The
pertinent facts are fully developed in the record, or the record otherwise
precludes habeas relief; therefore, the Court can adequately assess these

8
claims without any further factual development. Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).

IV. DISCUSSION
A. Ground One
Petitioner claims the trial court erred in failing to appoint a second
expert to determine Petitioner’s competency in violation of Fla. Stat. §

916.12(2) and Florida Rule of Criminal Procedure 3.210. Petition at 5-6. He
raised a comparable claim on direct appeal in his pro se brief.5 Ex. D at 742,
756-60. In state court, he essentially raised a state law claim, although he did
reference both Pate v. Robinson, 383 U.S. 375, 386-87 (1966) and Drope v.

Missouri, 420 U.S. 162 (1975). Id. at 758-60. The state filed a notice that it
would not respond unless directed to do so. Ex. E. On July 25, 2017, the
Fifth District Court of Appeal (5th DCA) affirmed. Ex. F. Petitioner moved
for rehearing, asserting the state court failed to address his due process

competency claim. Ex. G. The 5th DCA denied rehearing. Ex. H. The
mandate issued on September 25, 2017. Ex. I.
To the extent Petitioner complains of the trial court’s alleged
noncompliance with Rule 3.210, that claim is not a cognizable claim under §

5 Petitioner’s appellate counsel filed an Anders brief. Ex. B. Anders v. Cal., 386 U.S. 738
(1967).

9
2254. Notably, although Fla. R. Crim. P. 3.210(b) requires no fewer than two
experts to examine an accused to report on competency, failure to require two

expert reports is not considered fundamental error. Green v. State, 598 So.
2d 313, 313-14 (Fla. 2nd DCA 1992) (citing D’Oleo-Valdez v. State, 531 So. 2d
1347 (Fla. 1988)).
Respondents assert Petitioner failed to raise any claim in the federal

constitutional sense. Response at 6-7. Even liberally construing the
documents before the Court, the Court finds Petitioner has not raised a claim
of constitutional dimension by asserting that the trial court erred in appointing
only one expert to determine competency.

Of import,
The Due Process Clause of the Fourteenth
Amendment prohibits states from trying and
convicting mentally incompetent defendants. James v.
Singletary, 957 F.2d 1562, 1569–70 (11th Cir. 1992)
(citing Pate v. Robinson, 383 U.S. 375, 384–86, 86
S.Ct. 836, 841–42, 15 L.Ed.2d 815 (1966); Dusky v.
United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d
824 (1960)). The test for determining competence to
stand trial is “whether [a defendant] has sufficient
present ability to consult with his lawyer with a
reasonable degree of rational understanding—and
whether he has a rational as well as factual
understanding of the proceedings against him.”
Dusky, 362 U.S. at 402, 80 S.Ct. at 789.

A petitioner may make a procedural competency
claim by alleging that the trial court failed to hold a

10
competency hearing after the defendant's mental
competence was put at issue. Pate, 383 U.S. at 385, 86
S.Ct. at 842. To prevail on the procedural claim, “a
petitioner must establish that the state trial judge
ignored facts raising a ‘bona fide doubt’ regarding the
petitioner's competency to stand trial.” James, 957
F.2d at 1572 n. 15 (citing Fallada v. Dugger, 819 F.2d
1564, 1568 (11th Cir. 1987)). Even if a defendant is
mentally competent at the beginning of his trial, the
trial court must continually be alert for changes which
would suggest that he is no longer competent. Drope
v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43
L.Ed.2d 103 (1975).

Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995) (emphasis added),
cert. denied, 517 U.S. 1247 (1996).
Here, Petitioner’s claim was not that the trial court failed to hold a
competency hearing after Petitioner’s mental competence was put at issue.
Instead, he complains that the trial court erred by only appointing one expert
to determine his competency, in violation of state law. As such, he has failed
to raise a ground cognizable on federal habeas review.
The record shows defense counsel filed a Suggestion of Mental
Incompetence to Stand Trial. Ex. A at 40-41. The court entered an Order for
Mental Examination appointing Dr. Roger Davis to examine Petitioner. Id.
at 42-43. Dr. Davis submitted his August 22, 2015 report to the court. Id. at
45-49. The report reflects that Dr. Davis examined Petitioner at the St. Johns
County Detention Center on August 21, 2015 for 1.2 hours to assess

11
Petitioner’s competency to proceed. Id. at 45. He utilized the following
procedures: record review, pertinent history, mental status examination and

competency interview. Id. After undergoing a record review, Dr. Davis
noted, at the detention center Petitioner had been prescribed Zoloft, an
antidepressant, and had been diagnosed with an unspecified depressive
disorder. Id. Dr. Davis noted a claim of a history of mental health issues

including a purported suicide attempt. Id. Dr. Davis also reviewed a Flagler
Hospital note that Petitioner had suffered a mini-stroke, and has been
diagnosed with atrial fibrillation, glaucoma, and alcohol abuse. Id.
Dr. Davis conducted a mental status examination and a competency

interview. Id. at 46-48. Dr. Davis reported his impressions and gave his
opinion that Petitioner “has sufficient present ability to consult with his
attorney with a reasonable degree of rational understanding and he has a
factual and rational understanding of the proceedings against him.” Id. at 49.

On August 31, 2015, the court conducted a competency hearing on the
questions of competency raised by Petitioner and heard argument of counsel.6
Id. at 50. The court found Petitioner competent to proceed. Id.

6 Petitioner states he has no memory of a competency hearing. Petition at 5. The
transcript of the competency proceeding is not in the record before the Court but the order
finding Petitioner competent to proceed references an August 31, 2015 hearing and the
court’s consideration of the argument of counsel.

12
Here, Petitioner’s mental competence was put at issue, the court
appointed an expert to examine Petitioner and report to the court, a thorough

examination and assessment took place, the mental health expert reported his
assessment of Petitioner’s competency to the court, the court conducted a
competency hearing and heard argument of counsel, and finally, the court
ruled Petitioner was competent to proceed. As such, Petitioner is not entitled

to habeas relief on this ground.
B. Ground Two
In his second ground, Petitioner claims the trial court erred in failing to
discharge counsel after a Nelson7 hearing showing irreconcilable differences.

Petition at 7-9. In essence, Petitioner challenges the adequacy of the trial
court’s Nelson hearing. Id. at 8-9. He raised and exhausted a comparable
claim on direct appeal. Ex. D at 742, 760-63. He argued the trial court erred
by not discharging counsel after a Nelson hearing, blaming the inadequacy of

the hearing itself. Id. at 762-63. The 5th DCA affirmed. Ex. F.
The record shows Petitioner filed a Motion/Request to Discharge Court
Appointed Attorney. Ex. A at 79-81. A hearing was conducted on September

7 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) (holding that if an indigent defendant
expresses a desire to discharge court-appointed counsel due to counsel’s alleged
ineffectiveness, the court must hold a hearing to determine whether there is reasonable cause
to believe that court-appointed counsel is not rendering effective assistance).

13
19, 2016. Id. at 202-27. Ms. Renee Peshek explained her rationale and
strategy for trial. She said her investigator met with Petitioner and then

counsel met with Petitioner five times prior to meeting with him a week before
the hearing. Id. at 211. Ms. Peshek noted that she had filed motions in
limine. Id. at 212. After considering Petitioner’s contentions and counsel’s
responses, the court found defense counsel were providing effective assistance.

Id. at 216. The court recognized that Ms. Peshek and Mr. Mosley were
seasoned trial attorneys, and Petitioner was privileged to have two attorneys
assisting him with his case. Id. Given the choice to proceed pro se or with
his counsel, Petitioner elected to proceed with the public defender. Id. at 227.

Respondents contend the adequacy of a trial court’s Nelson hearing is a
matter of state law. Response at 7. Upon review, that is the case. Johnson
v. Sec’y, Fla. Dep’t of Corr., No. 3:17-cv-731-J-32JRK, 2020 WL 2114652, at *6
(M.D. Fla. May 4, 2020) (not reported in F. Supp.). As noted, in Johnson,

The United States Supreme Court has not
established a procedure for when a represented
indigent criminal defendant does not want to proceed
pro se, but instead wants another court-appointed
lawyer because his current lawyer is allegedly
ineffective. See, e.g., United States v. Garey, 540 F.3d
1253, 1262-66 (11th Cir. 2008) (“Although the Sixth
Amendment guarantees counsel, it does not grant
defendants the unqualified right to counsel of their
choice. An indigent criminal defendant ‘does not have
a right to have a particular lawyer represent him, nor

14
to demand a different appointed lawyer except for good
cause.’” (quoting Thomas v. Wainwright, 767 F.2d 738,
742 (11th Cir. 1985)). This Court will not reexamine
state court determinations on issues of state law. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Since
Petitioner's claim regarding a Nelson inquiry presents
a state law claim concerning the trial court's failure to
follow the procedures of a state law requirement,
Petitioner is not entitled to federal habeas relief on
that claim, as there has been no breach of a federal
constitutional mandate. Ortiz v. McNeil, No. 3:09-cv-
563-J-12TEM, 2010 WL 4983599, at *5 (M.D. Fla. Dec.
2, 2010) (“Any complaint about the lack of a proper
Nelson inquiry raises an issue of state law that is not
cognizable in this proceeding.”).

Johnson, 2020 WL 2114652, at *6.
Indeed, whether the court performed a proper Nelson inquiry is a matter
of state law. “Federal habeas relief is not available to reexamine state
decisions on its own procedural rules.” Ortiz v. McNeil, No. 3:09-cv-563-J-
12TEM, 2010 WL 4983599, at *5 (M.D. Fla. Dec. 2, 2010) (not reported in
F.Supp.2d) (citing Estelle; Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.
1983); Branan). The federal constitution does not mandate the Nelson
procedure; therefore, this is purely an issue of state law not cognizable in this
habeas proceeding. Duncan v. Sec’y, Fla. Dep’t of Corr., No. 3:18-cv-2099-
MCR-GRJ, 2021 WL 4464431, at *6 (N.D. Fla. Aug. 20, 2021), report and

15
recommendation adopted by 2021 WL 4465996 (N.D. Fla. Sept. 29, 2021). As
such, ground two is due to be denied.

C. Ground Three
In ground three, Petitioner claims the trial court erred by summarily
denying a motion to withdraw a plea to a charge of possession of a firearm by
a convicted felon without opportunity to amend. He raised and exhausted a

similar claim on direct appeal. Ex. D at 742, 763-64. He claimed he should
have been given a one-time opportunity to amend the motion, citing Spera v.
State, 971 So. 2d 754 (Fla. 2007) (announcing a narrow resolution holding that
in dismissing a first postconviction motion based on a pleading deficiency, a

court must give at least one opportunity to correct the deficiency unless it
cannot be corrected). Id. at 764. The 5th DCA per curiam affirmed. Ex. F.
Of note, a motion to withdraw a plea is not comparable to a
postconviction motion under Fla. R. Crim. P. 3.850 (a motion to vacate a

criminal judgment and sentence, known as a postconviction motion under
3.850). The narrow resolution adopted in Spera has not been extended by the
state courts as evidenced by the state court’s ruling.
The record demonstrates Petitioner filed a Motion to Withdraw Plea of

No Contest to Possession of Firearm by in [sic] State Felon. Ex. A at 186.

16
The court, finding the motion provided no legal or factual basis for withdrawal
of the plea, denied the motion finding it legally insufficient. Id. at 196.

The record contains the plea proceeding. Id. at 697-704. The record
shows Petitioner was sworn. Id. at 697-98. Petitioner confirmed that he was
to plead no contest to the second-degree felony charge of possession of a firearm
by a convicted felon. Id. at 698. The court advised that it is a crime

punishable by up to 15 years in state prison, although Petitioner “may be
considered for a lesser sentence.” Id. The court believed that because
Petitioner was found in actual possession, there would be a three-year
minimum mandatory term. Id. at 698. Petitioner confirmed that he wanted

to enter the plea. Id. at 699. The court apprised Petitioner of his
constitutional rights. Id. at 700-702. Petitioner stated he understood them,
and he understood he would be giving up those rights by entering his plea. Id.
at 701-702.

On the record, Petitioner said no one had used force, threats, or pressure
or intimidation to get him to enter the plea, and no one promised anything to
get him to enter the plea. Id. at 702. The state provided a factual basis for
the plea. Id. at 703. The court asked, “has anyone coached you or told you to

testify falsely because of any promise or understanding which has not been told
to me?” Id. Petitioner responded in the negative. Id. The court found

17
Petitioner understood the nature and consequences of his plea, the court found
a factual basis for the plea, and the court accepted the plea. Id. at 704. The

court sentenced Petitioner to 15 years in prison for possession of a firearm by
a convicted felon. Id. at 314.
Respondents contend Petitioner presented an issue of state law on direct
appeal. Response at 9. Upon review, Petitioner relied on state law to raise

his claim. The purpose of a federal habeas corpus proceeding is to review the
lawfulness of a petitioner’s custody to determine whether that custody is in
violation of the Constitution or law or treaties of the United States.8 Coleman
v. Thompson, 501 U.S. 722, 730 (1991). “Without a cognizable federal

constitutional claim, there can be no federal habeas corpus relief.” Fuster-
Escalona v. Fla. Dep’t of Corr., 170 F. App’x 627, 630 (11th Cir. 2006) (per
curiam) (citing Herrera v. Collins, 506 U.S. 390, 400 (1993)), cert. denied, 549
U.S. 1213 (2007).

On habeas review, a federal court’s only concern is whether the
defendant was convicted in violation of his constitutional rights. Jones v.
Goodwin, 982 F.2d 464, 471 (11th Cir. 1993). Since the reviewing court is

8 A federal district court “shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).

18
strictly limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States, “it is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions.”
Estelle, 502 U.S. at 67-68. Therefore, “[t]his limitation on federal habeas
review is of equal force when a petition, which actually involves state law
issues, is ‘couched in terms of equal protection and due process.’” Branan, 861

F.2d at 1508 (quoting Willeford v. Estelle, 538 F.2d 1194, 1998 (5th Cir. 1976)).
Indeed, “state law is what the state courts say it is.” Pinkney v. Sec’y, DOC,
876 F.3d 1290, 1299 (11th Cir. 2017), cert. denied, 139 S. Ct. 193 (2018).
In this ground, Petitioner has not articulated a cognizable claim for

federal habeas corpus relief. Id. (“a habeas petition grounded on issues of
state law provides no basis for habeas relief”). There has been no breach of a
federal constitutional mandate in this ground; therefore, this Court is bound
by the Florida court’s interpretation of its own laws. See McCoy v. Newsome,

953 F.2d 1252, 1264 (11th Cir.) (per curiam), cert. denied, 504 U.S. 944 (1992).
As such, ground three is denied.
D. Ground Four
Petitioner raises a claim of ineffective assistance of appellate counsel for

failure to argue that the trial court erred and deprived Petitioner of due process
of law by using the standard jury instruction for shooting into a building which

19
erroneously defined malice. Petition at 11-12. Petitioner urges this Court to
find that his appellate counsel was ineffective for failure to argue that the use

of the standard jury instruction was not only error, but it deprived Petitioner
of due process of law. Id.
Petitioner faced a charge of shooting into a building in violation of Fla.
Stat. § 790.19. The court instructed the jury on the three elements that had

to be proved beyond a reasonable doubt: (1) Petitioner shot a firearm; (2) he
did so within a public or private building occupied or unoccupied; (3) the act
was done wantonly and maliciously. Ex. A at 632. The court instructed,
“[w]antonly means consciously and intentionally with reckless indifference to

consequences and with the knowledge that damage is likely to be done to some
person.” Id. The court further instructed: “[m]aliciously means wrongfully,
intentionally, without legal justification or excuse, and with the knowledge
that injury or damage will or may be caused to another person or to the

property of another person.” Id. at 632-33.
The standard jury instruction for malice given by the court is referred to
as legal, or technical malice. Reed v. State, 837 So. 2d 366, 369 (Fla. 2002).
Petitioner contends appellate counsel should have argued that Petitioner was

deprived of due process of law because the court did not give the actual malice,

20
or malice in fact instruction which requires proof of evil intent or motive rather
than legal malice which may be inferred from one’s acts.

The record demonstrates that Petitioner filed a state petition for writ of
habeas corpus raising this claim of ineffective assistance of appellate counsel.
Ex. M. The state responded. Ex. N. Petitioner replied. Ex. O. The 5th
DCA denied the petition on its merits. Ex. P.

In his state court petition, Petitioner raised a claim of ineffective
assistance of appellate counsel for failure to argue that the trial court erred
and deprived Petitioner of due process of law by using the standard jury
instruction for shooting into a building which erroneously defined malice. Ex.

M at 1178. Thus, he exhausted the claim of ineffective assistance of appellate
counsel by raising it in the state habeas petition. The state has addressed the
exhausted claim of ineffective assistance of appellate counsel in its Response.
Response at 10-11.

In his state habeas petition, Petitioner referred to the definition of
“maliciously” adopted in State v. Gaylord, 356 So. 2d 313, 314 (Fla. 1978), Ex.
M at 1183, and argued the court gave the Standard Jury Instruction which
erroneously defined maliciously, not in keeping with the definition used in

Gaylord.

21
Upon review, Florida adopted the malice in fact instruction for
aggravated child abuse. Gaylord, 356 So. 2d at 314. Thereafter, the Florida

Supreme Court (FSC) found a trial court erred when it gave the jury definition
of legal, or technical malice included in the standard jury instruction rather
than that adopted by the FSC in Gaylord for the crime of aggravated child
abuse and requested by the defendant. Reed, 837 So. 2d at 369.

Petitioner has not shown that Florida has adopted the malice in fact
instruction for the crime of shooting into a building. In fact, Florida has
consistently adopted the legal malice instruction for shooting into a building.
State v. Kettell, 980 So. 2d 1061, 1063-64 (2008). Thus, for shooting into a

building, “[m]aliciously means wrongfully, intentionally, without legal
justification or excuse, and with the knowledge that injury or damage will or
may be caused to another person or to the property of another person.” Id. at
1063. However, “merely shooting a firearm into a building does not establish

the third element.” Browning v. Sec’y, Fla. Dep’t of Corr., No. 3:17-cv-905-J-
32PDB, 2020 WL 5350308, at *8 (M.D. Fla. Sept. 4, 2020) (citing State v.
Kettell, 980 So. 2d 1061, 1062 (Fla. 2008)).
For a claim of ineffective assistance of appellate counsel, a petitioner’s

burden is a heavy one; he must show that his appellate counsel was objectively
unreasonable in failing to raise the matter on appeal. If a petitioner satisfies

22
that requirement, he must then show a reasonable probability that, but for
counsel’s unprofessional errors, there would have been a reasonable

probability of success on appeal.
The 5th DCA’s ruling is entitled to deference. Ex. P. The state court’s
determination is consistent with federal precedent. The criteria for proving
ineffective assistance of appellate counsel parallels that of ineffective

assistance of trial counsel, with the second prong focusing on whether the
deficiency in the performance compromised the appellate process to the degree
as to undermine confidence in the correctness of the result.
It is a difficult task to show appellate counsel was incompetent. Smith

v. Robbins, 528 U.S. 259, 288 (2000). “Appellate counsel's performance will
be deemed prejudicial only if we find that ‘the neglected claim would have a
reasonable probability of success on appeal.’” Farina v. Sec’y, Fla. Dep’t of
Corr., 536 F. App’x 966, 979 (11th Cir. 2013) (per curiam) (quoting Heath v.

Jones, 941 F.2d 1126, 1132 (11th Cir. 1991)), cert. denied, 574 U.S 1003 (2014).
The Court is not convinced that the suggested claim would have a reasonable
probability of success on appeal.
As noted by Respondents, Florida’s standard jury instruction uses the

definition of legal malice, not actual malice. Furthermore, the FSC has not
rejected the malice in law instruction for the crime of shooting into a building,

23
as done in Gaylord for the crime of aggravated child abuse. Therefore,
Petitioner’s contention that appellate counsel should have pressed the issue is

unsupported by authority.
Had Petitioner’s appellate counsel raised the claim Petitioner now
contends should have been raised on direct appeal, no appellate relief would
have been forthcoming as evinced by the 5th DCA’s decision denying relief on

the claim of ineffective assistance of appellate counsel. Ex. P. Thus,
Petitioner has failed to show a reasonable probability the outcome of the direct
appeal would have been different had appellate counsel argued as Petitioner’s
suggests appellate counsel should have on direct appeal.

Petitioner has not shown that the 5th DCA decided his claim of
ineffective assistance of appellate counsel in a manner contrary to Strickland,
or that the 5th DCA’s application of Strickland was objectively unreasonable.
The denial of relief on the ineffective assistance of appellate counsel claim was

neither contrary to, nor an unreasonable application of Strickland. Therefore,
the 5th DCA’s decision is entitled to deference and ground four is due to be
denied.
Petitioner has failed to demonstrate that his state court proceeding was

fundamentally unfair and his appellate counsel ineffective. Thus, he has

24
failed to demonstrate a constitutional violation. As such, he is not entitled to
habeas relief on ground four.

E. Ground Five
Petitioner claims prosecutorial misconduct resulted in Petitioner’s
conviction for burglary being obtained by the use of false or perjured testimony
in violation of the Due Process Clause. Petition at 13-18. As noted by

Respondents, Petitioner raises a Giglio9 violation. Response at 11-16.
Petitioner raised a comparable claim in ground A of his Amended Motion
for Postconviction Relief. Ex. J at 837-43. The circuit court denied this claim
and the motion. Id. at 961-67. Petitioner appealed. Id. at 1156. On April

7, 2020, the 5th DCA per curiam affirmed the decision of the trial court. Ex.
K. The mandate issued on May 1, 2020. Ex. L. As such, this ground is
exhausted.
The circuit court denied the claim relying on the requirements for

establishing a Giglio violation. Ex. J at 959-61. Petitioner cannot satisfy the
“contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court applied the
applicable standards set forth in Giglio in addressing this ground. The Court
next considers whether the state court unreasonably applied those principles

9 Giglio v. United States, 405 U.S. 150 (1972) (to establish a Giglio violation, a defendant
must demonstrate the testimony was false, the prosecutor knew the testimony was false, and
the statement was material).

25
to the facts or premised its adjudication on the claim on an unreasonable
determination of the facts.

Petitioner contends the Giglio violation occurred when the state
permitted the victim, Mrs. Solano, to testify as to the intent behind a text
message. During a series of texts, she texted, “[n]o, do not come here.” At
trial, she testified this statement meant she did not want Petitioner to come to

her house. Petitioner contends that this message was sent from Mrs. Solano’s
place of work; therefore, she meant do not come to my place of work.
Petitioner submits that a Giglio violation occurred because the state did not
correct Ms. Solano and referenced her testimony throughout closing argument

to support the state’s contention that Petitioner was not invited to the home.
The circuit court denied relief finding the state’s argument persuasive
that only Ms. Solano could know her intent behind her statement, and she
testified she meant do not come to my house. Ex. J at 964. The court found

Petitioner’s contention that the only reasonable interpretation of the
statement was that she did not want to be confronted at work was wholly
speculative. Id. at 965. In rejecting Petitioner’s claim, the court explained:
“[s]peculation could just as easily support (and in fact more plausibly supports)

that Mrs. Solano did not want Defendant to come anywhere to confront her
about his suspicion that she was having an affair with his brother, and

26
particularly supports that she did not want him to awaken her at her residence
at 1:00 a.m. armed with a handgun.” Id. To the extent Petitioner wanted the

state to impeach its own witness, the court concluded “[t]his cannot support a
Giglio violation.” Id.
Finally, the court found, even assuming Petitioner could theoretically
demonstrate the state knew that Mrs. Solano was dishonest in her response as

to the meaning of the text message, this “singular statement” did not
materially affect the outcome of the proceedings. Notably, there was
considerable evidence that Petitioner’s entry into Mrs. Solano’s residence was
uninvited, including the fact that it was apparently a forced entry. Id. at 966-

67. This was compounded by the fact of Petitioner’s own trial testimony. Id.
at 967. Indeed, the trial record shows that on cross-examination the
prosecutor inquired:
Without permission. You did not have
permission to go to that house on that evening, did
you?

A Not that evening.

Q So you went there without permission.
You entered the home with the intention, number one,
knowing you were going to violate a pretrial release
order. Correct?

A Yes, sir.

27
Ex. A at 603-604.
Upon review, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C.

§ 2254(d)(1) as the state court rejected this claim based on Giglio. Moreover,
Petitioner has not shown the state court unreasonably applied Giglio or
unreasonably determined the facts. Finally, the record and reasonableness
standard support the state court’s findings and conclusions.

Therefore, applying the AEDPA deference standard, Petitioner is not
entitled to habeas relief on the Giglio claim. The Court concludes the 5th
DCA’s decision affirming the trial court’s decision is not contrary to, nor an
unreasonable application of controlling United States Supreme Court

precedent. As Petitioner has failed to demonstrate that the adjudication of
the state court was contrary to or an unreasonable application of any clearly
established federal law as determined by the United States Supreme Court or
an unreasonable determination of the facts, Petitioner is not entitled to habeas

relief on his claim of a Giglio violation.
To the extent Petitioner is attempting to raise a claim of ineffective
assistance of trial counsel in this regard, it is wholly unsupported. Petition at
13. See Response at 16. Petitioner has failed to demonstrate either

deficient performance or prejudice in this regard. Therefore, Petitioner is not
entitled to habeas relief on his claim of ineffective assistance of counsel.

28
F. Ground Six
Petitioner claims his trial counsel was ineffective for failure to object to

the prosecutor’s use of text messages obtained from Petitioner’s cell phone.
Petition at 19-23. Petitioner raised a similar claim in ground B of his
Amended Motion for Postconviction Relief. Ex. J at 843-48. The circuit court
denied post-conviction relief. Id. at 967-71. Petitioner appealed. Id. at

1156. The 5th DCA affirmed. Ex. K. Thus, the claim is exhausted.
Here, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. §
2254(d)(1) as the state court applied the two-pronged Strickland standard.
Ex. A at 960-61. Next, the Court considers whether the state court

unreasonably applied that principle to the facts or premised its adjudication
on the claim on an unreasonable determination of the facts.
In rejecting this ground, the court found that any objection would have
been futile because the messages were taken from an exchange between

Petitioner and Mrs. Solano, and Mrs. Solano’s cell phone was procured through
a valid search warrant and she had consented to a search of her phone;
therefore, even upon objection to the printouts obtained from Petitioner’s
phone, the state would have simply introduced the identical records from Mrs.

Solano’s phone. Ex. J at 968-69. Furthermore, even assuming the printouts
were successfully excluded, the state would have offered Mrs. Solano’s

29
testimony regarding the contents of their exchange and her testimony would
have been admissible. Id. at 969. Either way, counsel was not ineffective for

any failure to object to the printouts obtained from Petitioner’s phone. Id.
Perhaps even more significantly, Petitioner cannot meet the prejudice
prong. Id. at 970. The record shows Petitioner did not have permission to
enter the residence, as acknowledged by Petitioner in his trial testimony. Id.

Thus, the text messages “were inconsequential to the verdict” due to wealth of
evidence showing Petitioner was uninvited. Id. at 970-71.
Finding neither deficient performance nor prejudice, the court denied
this ground. Upon review, the circuit court properly applied the Strickland

standard. The 5th DCA affirmed. Therefore, Petitioner cannot satisfy the
“contrary to” test of 28 U.S.C. § 2254(d)(1). Applying the look-through
presumption set forth in Wilson, the Court finds the state court’s ruling is
based on a reasonable determination of the facts and a reasonable application

of the law. Petitioner has not demonstrated that the state court unreasonably
applied Strickland or unreasonably determined the facts. Thus, the 5th
DCA’s decision, although unexplained, is entitled to AEDPA deference.
The Court finds the state court’s adjudication of this claim is not contrary

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

30
determination of the facts. As such, Petitioner is not entitled to habeas relief
on ground six of the Petition.

G. Ground Seven
In his seventh ground, Petitioner claims his trial counsel was ineffective
for failure to properly cross-examine and impeach Mrs. Solano, the victim.
Petition at 24-26. Petitioner raised a comparable claim in ground C of his

Amended Motion for Postconviction Relief. Ex. J at 848-60. The circuit court
denied post-conviction relief. Id. at 971-77. Petitioner appealed. Id. at
1156. The 5th DCA affirmed. Ex. K.
This ground is exhausted. As noted previously, Petitioner cannot

satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court applied
the two-pronged Strickland standard. The Court next takes under
consideration whether the state court unreasonably applied that principle to
the facts or premised its adjudication on the claim on an unreasonable

determination of the facts.
Petitioner contends he lacked the mental intent to commit an offense
when he entered Mrs. Solano’s trailer. Petition at 24. Mrs. Solano’s trial
testimony was that Petitioner entered the bedroom and announced his

intention to kill her and then shot the gun several times near her head and
beat her about the head and face with the gun before Mrs. Solano picked up

31
the lamp and swung it at him. Id. at 25. Petitioner complains his counsel
performed deficiently by failing to impeach Mrs. Solano with her prior

inconsistent deposition testimony, sworn recorded interviews with Detective
McGinnis and Detective English, and her August 22 phone conversation with
Petitioner. Id. at 26.
Petitioner asserts that his sole intention was to enter the trailer and

shoot and kill himself in front of Mrs. Solano. Id. He references and relies
on his trial testimony that he did not shoot the gun or strike Mrs. Solano until
she attacked him with a can of hair spray and a lamp, and he acted in self-
defense. Id.

The probable cause statement contained in the arrest report dated July
29, 2015 includes the following. Ex. A at 17. The victim reported she was in
bed about to go to sleep when Petitioner kicked open the bedroom door and
then closed it and barricaded it with a large TV and entertainment center. Id.

The victim said Petitioner pointed a handgun at her and said he was going to
kill her and then commit suicide. Id. She told the police that Petitioner fired
approximately six shots next to her head, and when Petitioner stopped firing,
he began to strike her in the head and face with the gun and his fist. Id. At

this point, the victim tried to escape, pushed the TV away from the door, but
then Petitioner knocked her to the ground and started kicking her. Id. The

32
victim grabbed a lamp, the only source of light in the room, and tried to defend
herself with the lamp. Id. When Petitioner exited the bedroom, the victim

escaped. Id.
The police investigation revealed that the evidence supported the
victim’s statement. Id. at 30, 98-118. There was evidence of the shooting and
the beating, consistent with the victim’s statement. Id. at 98-108.

At trial, Mrs. Solano testified relatively consistently with her statement
given to the police. Ex. A at 420-63. She described Petitioner slamming the
door open. Id. at 440. Although Mrs. Solano did not mention that Petitioner
said he was going to commit suicide after killing her, Mrs. Solano said

Petitioner told her he was going to kill her. Id. at 444. Mrs. Solano described
Petitioner shooting the gun and the bullets striking the headboard of the bed.
Id. Mrs. Solano also spoke of her attempt to defend herself with a lamp. Id.
at 446. She described the entertainment center that had been slid over by

Petitioner. Id. at 448. Mrs. Solano said Petitioner hit her with the gun and
his fists. Id. Finally, Mrs. Solano attested she did not invite Petitioner over
to the house. Id. at 450.
On cross-examination, when Mrs. Solano denied that Petitioner told her

he was going to kill himself, defense counsel brought up the interview with
Detective McGinnis and Detective English. Id. at 470. When asked if she

33
remembered telling both detectives that Petitioner said he was going to kill
himself, Mrs. Solano said she did not recall that fact. Id.

On cross-examination of Detective McGinnis, defense counsel referred to
the interviews of the victim by Detective McGinnis and Detective English. Id.
at 528. Defense counsel pointed out the differences between the reports,
including the fact that the victim said Petitioner first barricaded the door and

then fired shots, but later on Mrs. Solano said Petitioner shot first and then
barricaded the door. Id. at 528-29. Detective attested the victim’s
statements were different. Id.
Petitioner testified at trial. Id. at 578-609. He said he went into Mrs.

Solano’s bedroom and an argument ensued. Id. at 586. He testified Mrs.
Solano jumped off the bed and hit Petitioner with a can of hair spray or some
similar object. Id. at 586-87. Petitioner said he fired shots, but not at Mrs.
Solano. Id. at 587. Petitioner testified that Mrs. Solano beat him with a

lamp. Id. Petitioner testified that he never moved the entertainment center
to block the doorway. Id. at 588. He attested the bedroom door was closed
when he arrived. Id. at 597-98. He admitted hitting Mrs. Solano with his
hands. Id. at 601. He testified he did not have permission to go the house

that evening. Id. at 603. He said his intent was to shoot himself with a gun.
Id. at 604. Petitioner testified that when Mrs. Solano departed, he stabbed

34
himself in the heart with scissors. Id. at 605. On re-direct, he testified he
did attempt to shoot himself, but the gun was out of bullets. Id. at 608.

In denying this claim of ineffective assistance of counsel, the trial court
determined that Petitioner did not establish the requisite prejudice from the
alleged failure of counsel to impeach Mrs. Solano to warrant relief under
Strickland. Ex. J at 975. Of import, the court concluded that, “[e]ven if the

jury had found Mrs. Solano’s testimony regarding when Defendant first fired
the gun at her to be less credible as a result of the impeachment, and even if
the jury had found that Defendant initially only intended to kill himself in
front of Mrs. Solano, all of Defendant’s convictions would nonetheless have

been supported by the record.” Id. The court explained its reasoning,
including the fact that the court found Petitioner’s version of the events
“inherently less credible” than Mrs. Solano’s version. Id. at 977. The court
surmised, the fact that Petitioner severely beat the victim negated his

contention that he was simply acting in self-defense. Id.
Petitioner has not shown resulting prejudice as there is no reasonable
probability that if defense counsel had acted as Petitioner suggests she should
have, it would have altered the outcome of the proceeding. Here, the circuit

court applied the two-pronged Strickland standard. The state court was
objectively reasonable in its Strickland inquiry and in concluding Petitioner

35
did not meet the prejudice prong. Since Petitioner made an insufficient
showing on one prong, the Court need not reach the other. Fifield, 849 F.

App’x at 833 (relying on Strickland).
The 5th DCA’s decision, although unexplained, is entitled to AEDPA
deference. Applying the look through presumption described in Wilson, the
state’s court’s ruling is based on a reasonable determination of the facts and a

reasonable application of the law. In sum, the Court finds the state court’s
adjudication of this claim is not contrary to or an unreasonable application of
Strickland and its progeny or based on an unreasonable determination of the
facts.

As the threshold standard of Strickland has not been met, Petitioner has
failed to demonstrate that his state court proceeding was fundamentally unfair
and his counsel ineffective. Thus, Petitioner has failed to demonstrate a Sixth
Amendment violation under the United States Constitution. As such,

Petitioner is not entitled to habeas relief on ground seven.
H. Ground Eight
In his eighth ground, Petitioner raises a claim of ineffective assistance
of counsel for failure to object to the FDLE lab report being admitted into

evidence and Deputy Keegan being allowed to testify regarding the contents of
the report in violation of Petitioner’s right to confrontation. Petition at 27-29.

36
Petitioner raised a comparable claim in Claim D of his Amended Postconviction
Motion. Ex. J at 860-65. The circuit court denied relief. Id. at 978-79.

The 5th DCA affirmed. Ex. K. Thus, this claim is exhausted.
Notably, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. §
2254(d)(1) as the state court applied the two-pronged Strickland standard in
addressing Petitioner’s claim of ineffective assistance of counsel. The Court

next considers whether the state court unreasonably applied that principle to
the facts or premised its adjudication on the claims on an unreasonable
determination of the facts.
The record includes a FDLE Laboratory Report dated March 17, 2016.

Ex. A at 117-18. The parties stipulated to a DNA report, and the DNA report
was admitted as State’s Exhibit No. 27. Id. at 565. Petitioner complained
that the stipulation deprived him of his constitutional right to confront the
FDLE analyst.

In denying this ground, the court noted that Kristine Keegan, the crime
scene technician, testified that the report confirmed that both the knife and
the handgun exhibited DNA from both Petitioner and Mrs. Solano. Ex. J at
978. In denying Petitioner’s claim, the court explained:

Defendant’s own allegations demonstrate that
any prejudice resulting from counsel’s stipulation to
the admission of the DNA report is purely speculative.

37
Nowhere in Defendant’s motion does he assert any
facts supporting a basis for attacking the reliability of
the DNA results. Defendant’s contention that the
DNA evidence would necessarily have been excluded if
his counsel had refused to stipulate to the introduction
of the FDLE report is clearly predicated on the
factually unsupported presumption that the State
would not have been able to produce the FDLE analyst
to testify.

Id. at 978-79.
The record shows the state listed the analyst, L. SukHan Warf, as a
state’s witness. Ex. A at 73. Two FDLE lab reports, one dated March 17,
2016, and one dated April 27, 2016, are listed as evidence. Id. As there was
a stipulation, the state did not call the analyst. The court surmised that any
examination of the analyst would have proved fruitless as there was only
Petitioner’s conjecture that the analyst used poor or deficient scientific
methodology in conducting the test or in calculating or using the population
frequency statistics. Ex. J at 979. Finding Petitioner’s contention based on
mere speculative assertions, the court denied the claim. Id.
Apparently the state was prepared to call the analyst as a witness, if
necessary. Instead, the parties entered their stipulation. Any speculation on
Petitioner’s part that the state would be unable to produce the analyst, or the
analyst would be unable to support his analysis is conclusory and unsupported
as evinced by the lab report and the listing of the analyst as a state’s witness.

38
Applying the look through presumption described in Wilson, the state’s
court’s ruling is based on a reasonable determination of the facts and a

reasonable application of the law. Upon review, the state court’s
determination is consistent with federal precedent. Thus, ground eight of the
Petition is due to be denied as the state court’s adjudication of this claim is not
contrary to or an unreasonable application of Strickland and clearly

established Federal law or based on an unreasonable determination of the
facts. As such, Petitioner is not entitled to federal habeas relief on ground
eight.
I. Ground Nine

In ground nine, Petitioner raises a claim of ineffective assistance of
counsel for failure to call Jimmy Blalock, Petitioner’s half-brother, to testify.
Petition at 30-31. Petitioner raised a similar claim in Claim E of his Amended
Motion for Postconviction Relief. Ex. J at 865-69. The circuit court denied

relief. Id. at 979-82. The 5th DCA affirmed. Ex. K.
Petitioner claimed Mr. Jimmy Blalock would have supported Petitioner’s
testimony that he was an invited guest to the victim’s trailer and defense
counsel’s failure to interview and call this witness was objectively

unreasonable and constituted deficient performance and prejudiced the
defense. Petition at 30. Petitioner claimed Mr. Blalock’s testimony would

39
have corroborated Petitioner’s testimony that he was invited. Id.
Additionally, Petitioner alleged that Mr. Blalock would have testified as to

Petitioner’s intent to shoot himself in front of the victim and that he only struck
her in self-defense.10 Petition at 30-31.
Petitioner filed a Motion/Request to Discharge Court Appointed Attorney
pursuant to Nelson. Ex. A at 79-81. The record demonstrates that the trial

court conducted a Nelson inquiry during which Petitioner expressed his
dissatisfaction with his counsel alleging counsel had failed to investigate and
interview Petitioner’s two half-brothers, Larry Blalock, and Jimmy Blalock.
Ex. A at 205-16. Ms. Peshek explained that she did not want to call Jimmy

Blalock because it would gift wrap a motive for the crime of attempted murder,
as previously charged, as Jimmy Blalock could verify that the victim and Larry
Blalock had an affair. Id. at 210. The court denied the motion finding
Petitioner’s lawyers were providing effective assistance of counsel. Id. at 216.

The circuit court, in denying postconviction relief, concluded counsel
made a strategic decision not to call Jimmy Blalock. Ex. J at 981. The court
found of paramount importance, even if Mr. Blalock had testified that the
victim told him she wanted Petitioner to come to her house after she got off

10 The record is clear; Jimmy Blalock was not present during the offense.

40
work, Mr. Blalock would have been subjected to cross-examination on the issue
of the alleged affair between Larry Blalock and the victim, providing the state

with the ammunition it needed to show or argue the real motive behind
Petitioner’s actions that evening. Id. As such, the court held that defense
counsel decision not to interview or subpoena Jimmy Blalock “constituted
sound trial strategy.” Id.

Also of import, even if Jimmy Blalock testified that the victim had
wanted Petitioner to come over, the court found Mrs. Solano’s testimony
showed she rescinded all permission when she refused Petitioner’s entry into
her home earlier in the evening and both her testimony and the testimony of

the child supported the conclusion that Petitioner’s later entry was a forced
entry. Id. at 982. As such, the court concluded:
The record thus demonstrates Mr. Blalock’s testimony
would not have overcome the virtually
insurmountable evidence supporting that Defendant’s
armed entry into Mrs. Solvano’s residence and
bedroom at 1:00 a.m. on the morning of July 29, 2015,
was uninvited, including Defendant’s own admission
that he did not have permission to enter her home on
the morning of the 29th.

Id.
Based on the above, the court found neither deficient performance nor
prejudice, applying the Strickland two-pronged standard of review. The

41
Court finds the state court’s determination is consistent with federal precedent
as the state court employed the Strickland standard. Although the 5th DCA’s

decision is unexplained, it is entitled to AEDPA deference. Petitioner has
failed to demonstrate that the state court’s adjudication of the claim resulted
in a decision that was contrary to, or involved an unreasonable application of
clearly established federal law, or that it was based on an unreasonable

determination of the facts in light of the evidence presented in the state court.
Petitioner is not entitled to habeas relief on ground nine of the Petition.
J. Ground Ten
In his tenth ground for postconviction relief, Petitioner raises a claim of

ineffective assistance of counsel for failure to object to improper and misleading
remarks of the prosecutor during closing arguments. Petition at 32-33.
Petitioner raised a similar contention in Claim F of his Amended Motion for
Postconviction Relief. Ex. J at 869-76. The circuit court denied relief. Id.

at 982-85. The 5th DCA affirmed per curiam. Ex. K.
Petitioner contends the no contact order did not prohibit him from going
to or entering the victim’s trailer, her place of work, or any other building or
structure. Petition at 32. Rather, Petitioner contends the order prohibited

Petitioner from having contact with the victim, directly or indirectly. Id. He

42
complains that the prosecutor’s comment mischaracterized the no contact
order as meaning no contact whatsoever, even if upon invitation. Id.

The Domestic Violence Pretrial Release No Contact Order is dated June
21, 2015. Ex. A at 90-92. It states Petitioner is to have no contact with the
victim, Mrs. Solano, either directly or indirectly, in any manner. Id. at 90. It
advises that if the victim tries to communicate with Petitioner, Petitioner is in

violation if he communicates with the victim. Id. It also states Petitioner is
to refrain from criminal activity and possession of a firearm. Id. The order
granted Petitioner permission to return to an apartment to obtain personal
belongings, accompanied by a law enforcement officer. Id. at 91.

Petitioner objected to the prosecutor’s closing argument regarding
Petitioner’s affirmative defense of invited entry as to the burglary count. The
prosecutor argued:
First of all, I want to touch on something Ms.
Peshek [defense counsel] mentioned about it’s not a
burglary because he had lived there in the past or he
claims he had a key or he had been invited over a few
days before. That doesn’t matter. That’s not the
law. Number one, I submit to you, he didn’t have the
key. But it doesn’t matter. You can’t go in a
residence even if you own it, number one, if you’ve
been ordered by a court not to be there, and you
certainly can’t go in there with a person who is inside
that’s told you not to come in and said you’re not
welcome right now and you go in there with a gun to
do harm.

43
Id. at 661.
In denying this claim, the circuit court noted that Petitioner’s contention
that the violation of a no contact order does not preclude the legal defense of
licensed or invited entry to the charge of burglary is supported by the holding

in Pilafjian v. State, 210 So. 3d 738, 739-40 (Fla. 5th DCA 2017) (per curiam).
Ex. J at 983. However, the circuit court found any failure to object on defense
counsel’s part was not prejudicial because there was extensive evidence that
Petitioner’s entry was uninvited. Id. As such, the court found Petitioner

failed to satisfy the prejudice prong of Strickland. Id.
Petitioner also claimed the following argument was improper and his
counsel should have objected:
He went there, by his words, to violate the
condition of pretrial release, and he went there and he
says – he says to shoot himself. Well, that would be
guilty of the offense of shooting into a building. Going
into someone’s home and shooting the weapon at your
own head is guilty of shooting into a building. There’s
yet another crime he’s confessed to intending to
commit when he entered that building. So we’ve got
two crimes he’s confessed to entering in there to
commit.

Ex. A at 669-70.
Petitioner contends he did not have the requisite intent, and his counsel
should have objected to this argument and moved for a mistrial. Petition at

44
32. He submits that had counsel done so, the court would have declared a
mistrial. Id.

The circuit court was not convinced by this argument, finding
Petitioner’s own testimony showed that he had every intention of entering the
home to shoot himself in front of the victim in order to punish or hurt the
victim. Ex. J at 984-85. The court found this was sufficient evidence of

wantonness. Id. at 985. Also, the court found that Petitioner knew by
shooting inside the house, there would be damage to the victim’s property or to
some person (Petitioner). Id. As such, the court concluded there was no basis
for an objection to the prosecutor’s argument and defense counsel did not

perform deficiently by failing to object.
In reviewing Petitioner’s claim, this Court recognizes the legal maxim
that attorneys are permitted wide latitude during closing argument.
Hammond v. Hall, 586 F.3d 1289, 1335 (11th Cir. 2009), cert. denied, 562 U.S.

1145 (2011). Also, it is important to place the argument in context,
recognizing that often that prosecutor’s remarks are in response to argument
made by defense counsel, or are meant to be read as part of a more complete
argument.

45
Regarding the first comment at issue, the court found Petitioner did not
satisfy the prejudice prong of Strickland. With regard to the second comment

at issue, the state court rejected the claim of deficient performance.
In denying post-conviction relief, the circuit court properly applied the
two-pronged Strickland standard of review. Thus, Petitioner cannot satisfy
the “contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court rejected the

claim based on Strickland. Further, Petitioner has not shown the state court
unreasonably applied Strickland or unreasonably determined the facts.
Indeed, upon review, the state court was objectively reasonable in its
Strickland inquiry. Furthermore, the 5th DCA affirmed.

The 5th DCA’s decision, although unexplained, is entitled to AEDPA
deference. Applying the look through presumption described in Wilson, the
state’s court’s ruling is based on a reasonable determination of the facts and a
reasonable application of the law.

As the threshold standard of Strickland has not been met, Petitioner has
failed to demonstrate that his state court proceeding was fundamentally unfair
and his counsel ineffective. Thus, Petitioner has failed to demonstrate a Sixth
Amendment or Fourteenth Amendment violation under the United States

Constitution. In sum, the Court finds the state court’s adjudication of this
claim is not contrary to or an unreasonable application of Strickland and its

46
progeny or based on an unreasonable determination of the facts. As such,
Petitioner is not entitled to habeas relief on ground ten.

K. Ground Eleven
Petitioner, in his final ground, raises a claim of ineffective assistance of
counsel for misadvising Petitioner that he would receive a three-year prison
sentence if he entered an open plea of nolo contendere to the offense of

possession of a firearm by a convicted felon. Petition at 34-35. He contends,
“Ms. Peshek misadvised Mr. Solano that he would receive a minimum
mandatory three-year prison sentence if he entered an open plea of nolo
contendere to [possession of a firearm by a convicted felon] and, based on Ms.

Peshek’s advise, he entered an open plea of nolo contendere to that charge.”
Id. at 34. He complains, “[r]ather than receiving the three-year sentence Ms.
Peshek had promised, however, Mr. Solano was sentenced to a term of 15-years
in prison for that offense.” Id. Petitioner contends but for that misadvise, he

would have insisted upon going to trial on that charge. Id.
In Claim G of his Amended Motion for Postconviction Relief Petitioner
presented a similar claim. Ex. J at 876-80. The circuit court denied this
ground. Id. at 985-88. The 5th DCA affirmed per curiam. Ex. K.

With respect to an ineffective assistance challenge to the voluntariness
of a guilty or no contest plea, a petitioner must show there is a “reasonable

47
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

The ineffective assistance of counsel may require a plea be set aside on the
ground that it was involuntary because voluntariness implicates not only
threats and inducements but also ignorance and incomprehension. Finch v.
Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (citations omitted).

This Court must be mindful that in a post-conviction challenge to a guilty
plea, the representations of the defendant, his counsel, and the prosecutor at
the plea hearing, plus the findings of the judge, constitute “a formidable
barrier.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Indeed, a

defendant’s solemn declarations in open court carry a strong presumption of
verity. Thus, later contentions by a defendant contrary to the record may be
deemed wholly incredible based on the record.
The standards set forth in Strickland and Hill are applicable as

Petitioner entered a plea. Upon review, Petitioner has not satisfied the
“contrary to” test of 28 U.S.C. § 2254(d)(1). Next, the Court’s considers
whether the state court unreasonably applied that principle to the facts or
premised its adjudication of the claim on an unreasonable determination of the

facts.

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Petitioner was sworn in and the court conducted a thorough colloquy.
Ex. A at 697-98. Petitioner confirmed that he wanted to enter a plea of no

contest to the second-degree felony charge of possession of a firearm by a
convicted felon. Id. at 698. The court stated: “[t]hat is a crime that’s
punishable by up to 15 years in the state prison, 10,000-dollar fine, or both.
You may be considered for a lesser sentence.” Id. The court advised, “[t]he

other thing is I believe since they found in actual possession, it would be a
three-year minimum mandatory I believe. Id.
Petitioner stated he could read and write, and English is his primary
language. Id. at 699. He said he was married, worked underground utilities,

and is a United States citizen. Id. He noted he had been treated for a mental
or emotional disability and was currently taking medications. Id. at 699-700.
He assured the court that the medication did not impair his ability to
understand the proceeding. Id. at 700. Petitioner told the court he had taken

no drugs or alcohol within the past 24 hours. Id.
The Court advised Petitioner of his constitutional rights and the rights
he was giving up by pleading guilty. Id. at 700-702. Petitioner told the court
no one had used any force, threats, pressure, or intimidation to get him to plead

to this count. Id. at 702.

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The court inquired, “[o]ther than the fact you’re plea[d]ing to the Court
in this count, has anyone promised you anything to get you to enter this plea?”

Id. Petitioner responded in the negative. Id. The court asked if Petitioner
had discussed his plea with his counsel, and Petitioner responded yes, and he
was satisfied with their representation. Id. at 702-703. The prosecutor
proffered the facts: “Herman Solano on or about July 29th, 2015, was in actual

possession of a firearm and he had been previously convicted of a felony,
contrary to Florida statute.” Id. at 703. Ms. Peshek made no objection to the
proffer. Id.
Once again the court asked if there were any hidden promises or

understandings: “Mr. Solano, has anyone coached you or told you to testify
falsely because of any promise or understanding which has not been told to
me?” Id. Petitioner responded, no. Id. Petitioner stated he believed the
plea was in his best interest. Id.

The court found Petitioner to be alert and intelligent. Id. at 703-704.
The court also found Petitioner understood the nature and consequences of the
plea. Id. at 704. The court further found there was a factual basis to sustain
the plea. Id. As such, the court accepted the plea. Id. The court sentenced

Petitioner to a term of 15 years in prison. Id. at 314.

50
Petitioner faces the formidable barrier of his sworn testimony and
representation at the plea hearing. His solemn declarations are not taken

lightly and carry a strong presumption of verity. Petitioner’s contentions to
the contrary are wholly incredible in view of the record. Also, his attempt to
go behind his previously sworn testimony is not well received.
During the plea colloquy the court made certain Petitioner was aware of

the charge he faced and the maximum penalty for that offense. After hearing
the court’s admonishments and maximum exposure, Petitioner remained
determined to plead no contest, knowing that the court could consider a lesser
sentence, but he still faced a maximum sentence of 15 years. Furthermore,

Petitioner assured the court no promises had been made.
Also of import, at sentencing, the state introduced the documentation
showing Petitioner qualified as a prison release reoffender. Ex. A at 311-312.
The prosecutor asked for the maximum sentence on all counts. Id. at 312. At

sentencing, the court designated Petitioner a prison release reoffender. Id. at
315. Petitioner received a term of 364 days for count I, a term of 15 years for
counts II, IV, & V (the possession of a firearm count), 5 years for count III, and
life for count VI as a prison release reoffender. Id. at 172-80. As a prison

release reoffender, Petitioner must serve 100 percent of his life sentence and

51
not be eligible for parole, control release, or any form of early release. Id. at
177.

The seminal case of Hill v. Lockhart is the guiding source of applicable
Supreme Court law along with Strickland regarding a challenge to the
voluntariness of a guilty plea. Petitioner has not satisfied the “contrary to”
test of 28 U.S.C. § 2254(d)(1) as the state court soundly rejected Petitioner’s

claim after applying the standards set forth in Strickland and Hill. Ex. J at
959-61. Furthermore, Petitioner has failed to show that the state court
unreasonably applied Strickland and Hill or unreasonably determined the
facts. Notably, in its Order Denying Defendant’s Amended Motion for

Postconviction Relief, the court stated the principal issue it must address is
whether Petitioner demonstrated a reasonable probability that he would have
insisted on going to trial if counsel had not misadvised him as to the
consequences of an open plea. Ex. J at 986-87. The court looked to

Petitioner’s entire theory of defense, to which he testified at trial. He attested
that he carried a handgun to Mrs. Solano’s residence with the intention of
shooting himself in front of her. Id. at 987.
Not only did Petitioner admit having the gun he also admitted to having

been previously convicted of six felonies. Id. These factors were compounded
by the fact that the jury specifically found Petitioner in possession of a firearm

52
during the commission of the offense of aggravated battery with a deadly
weapon. Id. Ex. A at 121. As such, the court found, “the record conclusively

demonstrates that no prejudice resulted from counsel’s alleged failure to
properly advise Defendant of the sentence he would receive if he pled open to
the possession of a firearm offense.” Id. at 987-88. There is simply no
reasonable probability that Petitioner would have insisted on going to trial

under these circumstances.
Upon due consideration, the state court was objectively reasonable in its
inquiry and the 5th DCA affirmed the circuit court’s decision. The 5th DCA’s
decision, although unexplained, is entitled to AEDPA deference. Applying the

look through presumption described in Wilson, the state’s court’s ruling is
based on a reasonable determination of the facts and a reasonable application
of the law. The Court finds the state court’s adjudication of this claim is not
contrary to or an unreasonable application of Strickland and Hill or based on

an unreasonable determination of the facts. As such, Petitioner is not entitled
to habeas relief on ground eleven of the Petition.
Accordingly, it is now
ORDERED AND ADJUDGED:

1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.
2. This action is DISMISSED WITH PREJUDICE.

53
3. The Clerk shall enter judgment accordingly and close this case.
4. If Petitioner appeals the denial of his Petition (Doc. 1), the Court
denies a certificate of appealability. '' | 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 at Jacksonville, Florida, this 2nd day of
August, 2023.

4 ry
fo {ton | LE O14
BRIAN/J . DAVIS
United States District Judge

sa 7/31
C:
Herman Paul Solano
Counsel of Record

11 This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that "the issues presented were ‘adequate to deserve encouragement to proceed further,"
Miller-E] v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability.

54

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113667. Public record. Not legal advice.