Santiago v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

OMAR SANTIAGO,

Petitioner,

v. Case No. 3:20-cv-844-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc.

7). He challenges a 2014 state court (Duval County, Florida) judgment of

conviction for first degree murder and solicitation to commit a capital felony.

He was sentenced to life in prison. Respondents filed an Amended Response

(Doc. 19) with exhibits (Docs. 11-1 to 11-3, 19-2; Ex.). Petitioner filed a Reply

(Doc. 20). This case is ripe for review.1

1 “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.”

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). “‘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

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). Where 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

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.

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.” Richter, 562 U.S. at 101 (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 that are 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 (1995) (per curiam) (quoting

Picard v. Connor, 404 U.S. 270, 275 (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, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

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

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, 501 U.S. at 747-48;

Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). 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, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (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.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). 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,

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 Murray

v. Carrier, 477 U.S. 478, 488 (1986). 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).

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

modified).

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. “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).

Ward, 592 F.3d at 1157 (internal citations modified). “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 the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. A court considering

a claim of ineffective assistance must apply a “strong

presumption” that counsel’s representation was

within the “wide range” of reasonable professional

assistance. Id. at 689. The challenger’s burden is to

show “that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at

687.

Richter, 562 U.S. at 104 (internal citations modified).

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the

two-part Strickland test must be satisfied to show a Sixth Amendment

violation; thus, “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)). “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is afforded great

deference.

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

a most deferential one.” Richter, 562 U.S. at 105. But

“[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the

more difficult. The standards created by Strickland

and § 2254(d) are both highly deferential, and when

the two apply in tandem, review is doubly so.” Id.

(citations and quotation marks omitted). “The

question is not whether a federal court believes the

state court’s determination under the Strickland

standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123 (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.

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

citations modified). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of

deference--this one to a state court’s decision--when we are considering whether

to grant federal habeas relief from a state court’s decision.” Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010).

III. Analysis

A. Ground One

Petitioner argues that the trial court erred by consolidating his two cases

for trial. Doc. 7 at 5. Respondents contend that this claim is unexhausted

because Petitioner failed “to fairly apprise the state courts that he was []

asserting a federal constitutional claim.” Doc. 19 at 7. Alternatively,

Respondents contend that the state court’s adjudication of this claim is entitled

to deference. See id. at 21-23.

On February 15, 2012, Petitioner was charged with solicitation to commit

a capital felony, and on April 4, 2013, he was charged in a separate case with

first degree murder. Exs. A at 84-86; B at 232. The State filed a motion seeking

to consolidate the two cases for trial, Ex. A at 100-03, and Petitioner, through

counsel, filed a motion to strike the State’s request, Ex. Q. The trial court held

a hearing on the State’s motion, Ex. B at 308-22, after which it granted the

State’s request. Ex. A at 110-14. Following a jury trial, Petitioner was found

guilty as charged on both counts. Ex. B at 274-76.

On direct appeal, Petitioner, through counsel, argued that the trial court

erred in consolidating the two cases for trial. Ex. H. In doing so, Petitioner relied

solely on state law. See id. The State responded, arguing that Petitioner

presented “a complex argument that goes beyond that made at trial,” and as

such, only the argument made at trial had been preserved for appeal, which the

State defended on the merits in terms of state law only. Ex. I at 9. The First

District Court of Appeal per curiam affirmed Petitioner’s convictions and

sentences without issuing a written opinion. Ex. J.

As noted above, Petitioner’s appellate brief on direct appeal addressed

this issue in terms of state law only and not as a violation of his federal

constitutional rights. Thus, he failed to allow the state courts the opportunity

to resolve the federal nature of his claim. Therefore, this claim is unexhausted

and procedurally barred. Petitioner fails to show cause to excuse the procedural

default or resulting prejudice. Nor has Petitioner shown that a fundamental

miscarriage of justice would result if the Court does not address the claim on

the merits. Thus, the claim is due to be denied.

Alternatively, to the extent Petitioner exhausted the federal nature of

this claim and the First DCA adjudicated the claim on the merits, the Court

defers to the state court’s ruling. Upon thorough review of the record, this Court

concludes that the state court’s adjudication was not contrary to clearly

established federal law, did not involve an unreasonable application of clearly

established federal law, and was not based on an unreasonable determination

of the facts in light of the evidence presented. Therefore, Ground One is due to

be denied.

B. Ground Two

Petitioner asserts that his trial counsel was ineffective for failing to

“further [his] demand for speedy trial.” Doc. 7 at 7. Respondents contend this

claim is unexhausted because, although Petitioner raised it in his Florida Rule

of Criminal Procedure 3.850 motion, he failed to raise it during the appeal of

the order denying his Rule 3.850 motion. Doc. 19 at 9. Respondents

alternatively address the claim on the merits. Id. at 23-25.

Petitioner raised this claim in his Rule 3.850 motion. The postconviction

court held an evidentiary hearing on other claims in the motion. The court then

summarily denied this claim, finding as follows:

In Ground One, Defendant alleges counsel was

ineffective for not pursuing Defendant’s right to

speedy trial under Florida Rule of Criminal

Procedure 3.191. Specifically, Defendant complains

that counsel was deficient for not being ready for

trial sooner. Defendant claims prejudice because the

State would not have been able to bring additional

charges against Defendant, nor would the State have

won at trial, had counsel not waived Defendant’s

right to a speedy trial.

When alleging ineffective assistance of counsel

based upon “a failure to assert a movant’s speedy

trial rights under 3.191,” a defendant must show that

counsel’s decision not to pursue a speedy trial was

unreasonable. Remak v. State, 142 So. 3d 3 (Fla. 2d

DCA 2014). Such claims should be denied absent a

reasonable probability that the ultimate result would

have been different had the State been forced to

proceed to trial during the recapture period. See

Hammond v. State, 34 So. 3d 58, 61 (Fla. 4th DCA

2010).

This Court conducted a Nelson[] inquiry on

September 19, 2011. (Ex. D.) At this hearing, counsel

testified that he was attempting to take depositions,

but it was difficult because “a lot of the witnesses

have been scattered throughout the country.” (Ex. D

at 5.) Counsel did not believe it would be in

Defendant’s best interest to go to trial before

deposing these witnesses. (Ex. D at 5.) This Court

held that counsel was not ineffective. (Ex. D at 6.)

This Court finds no basis for disturbing that ruling.

See Ford v. State, 955 So. 2d 550, 554-556 (Fla.

2007).

Weeks after the Nelson inquiry, Defendant

solicited a cellmate to arrange the murder of the

State’s key witness. (Ex. E at 565-608.) The cellmate

reported the conversation to authorities, and

undercover detectives met with Defendant to discuss

payment and how the murder should take place. (Ex.

E at 594-608, 654-60.) After this conversation, the

State charged Defendant with Solicitation to Commit

Murder. (Ex. F.) Upon the State’s motion, this Court

consolidated the solicitation charge with the murder

charge. (Ex. G.) Defendant cannot complain of any

delays caused by his own criminal conduct, Knight v.

State, 211 So. 3d 1, 13 (Fla. 2016), and it was his

attempt to murder a witness that injected further

complication and delay into his case. Accordingly,

Defendant is not entitled to relief on Ground One.

Ex. K at 82-83. Petitioner appealed, but in his initial brief, he failed to present

any argument with respect to this claim. See Ex. L. Therefore, the First DCA,

in its written opinion, found that Petitioner specifically abandoned this claim.

See Santiago v. State, 294 So. 3d 969, 970 (Fla. 1st DCA 2020) (“Although

Santiago raised four issues in his postconviction motion, he appeals only the

denial of claims two, three, and four. Santiago thus waived any argument on

claim one by failing to address the claim in his initial brief.”); see also Fla. R.

App. P. 9.141(b)(3)(C) (requiring briefs be served within 30 days of service of

the record if the postconviction court held an evidentiary hearing on one or more

claims). As Petitioner failed to give the state court the opportunity to resolve

this claim, this Court finds the claim to be unexhausted and procedurally

barred. Petitioner fails to show cause to excuse the procedural default or

resulting prejudice. Nor has Petitioner shown that a fundamental miscarriage

of justice would result if the Court does not address the claim on the merits.

Thus, Ground Two is due to be denied.

Alternatively, assuming Petitioner exhausted this claim, the Court finds

it has no merit. Notably, “[a]n attorney, acting without consent from his client,

may waive his client’s right to a speedy trial because ‘[s]cheduling matters are

plainly among those [decisions] for which agreement by counsel generally

controls.’” Fayson v. Sec’y, Fla. Dep't of Corr., 568 F. App’x 771, 773 (11th Cir.

2014) (quoting New York v. Hill, 528 U.S. 110, 115 (2000)). A review of the

record reflects that counsel explained his reasoning for not enforcing speedy

trial and his belief that going into a trial without deposing certain witnesses

was not in Petitioner’s best interests. See Ex. K at 110. Considering the record,

the Court finds that Petitioner has failed to show deficient performance or

resulting prejudice. He is not entitled to federal habeas relief on Ground Two.

C. Ground Three2

Petitioner argues that his counsel was ineffective for “failing to conduct a

proper and timely investigation of the crime scene and the facts surrounding

the case.” Doc. 7 at 8. He asserts that two witnesses, a female bartender and

Victor Aquilera, would have provided exculpatory testimony. Id. at 8-9.

Respondents argue that the state court’s adjudication of this claim is entitled

to deference. Doc. 19 at 25-30.

Petitioner raised this claim in his Rule 3.850 proceeding. After conducting

an evidentiary hearing on this issue, the state court denied the claim:

In Ground Two, Defendant alleges counsel was

ineffective for failing to investigate the crime scene

and the facts of the case. Specifically, Defendant

complains that counsel was deficient for failing to

present eyewitnesses who would have offered

testimony that contradicted the State’s key witness.

Defendant claims prejudice because the conflict in

2 Petitioner refers to this claim as Ground Two(a). Doc. 7 at 8.

evidence would have produced a different result at

trial.

In order to be effective, counsel must

reasonably investigate their client’s case or provide a

reasonable explanation as to why a more thorough

investigation was not done. Mendoza v. State, 81 So.

3d 579, 581 (Fla. 3d DCA 2012) (citing Wiggins v.

Smith, 539 U.S. 510 (2003)). Failure to sufficiently

impeach a key witness may constitute ineffective

assistance of counsel. Bentley v. State, 867 So. 2d

515, 517 (Fla. 2d DCA 2004) ( citations omitted).

Defendant alleges that both a female

bartender[] and a club patron would have provided

exculpatory evidence had counsel investigated them.

The bartender would have testified as to where the

shots were fired, that the victim’s body had been

moved, and that the victim’s girlfriend approached

the victim from another area of the club while

patrons provided first aid. The patron, Victor

Aguilera would have testified that he saw the man

who shot the victim, that the victim’s girlfriend was

not with the victim at the time of the shooting, and

that Defendant did not shoot the victim.

At trial, the victim’s girlfriend testified that

other club goers had moved the victim to a couch

after the shooting. (Ex. E at 328.) A detective

testified that two shell casings were located near the

body, but detectives could not determine where the

shooting occurred based upon the location of the shell

casings. (Ex. E at 399, 427.) The shell casings had . .

. probably been kicked as club goers evacuated after

the shooting, and the casings would have bounced

after the shooting because the club floor had a hard

surface. (Ex. E at 423.) Another detective testified

that surveillance footage of the club showed that the

shooting happened away from the bar area, just off

camera. (Ex. E at 532.) The State entered this

surveillance footage into evidence and published it to

the jury. (Ex. E at 533-37.) Additionally, Defendant

called a witness who testified that he had been

dancing with the victim’s girlfriend prior to the

shooting, and she had been drinking. (Ex. E at 720-

21.) At the evidentiary hearing, Defendant testified

that he learned of the bartender’s existence after

sentencing. The bartender spoke to his girlfriend and

said she had never been called about the case. Had

she been called she would have said the shooting did

not happen at the bar.

Based upon the evidence presented at trial and

the evidentiary hearing, the bartender’s testimony

would have been cumulative, so Defendant was not

prejudiced by counsel’s failure to investigate and call

this witness. Schofield v. State, 914 So. 2d 990, 993

(Fla. 4th DCA 2005).

As for Aguilera, Defendant testified at the

evidentiary hearing that he met Aguilera in the

county jail. Defendant had already been sentenced,

and Aguilera asked what Defendant was in for.

Defendant replied that he had been accused of a

death at a discotheque. Aguilera asked which one,

and Defendant said Aqua. Aguilera was surprised

and said “I saw everything, and you don’t have

anything to do with that. I saw everything when the

person came from the back door.” Defendant never

told counsel about this conversation.

Counsel testified that he took over the case

from another attorney at the Office of the Public

Defender in September of 2012. The crime had been

committed in February of 2009, but Defendant had

not been extradited back to Florida until May of

2010. The delay between the date the crime was

committed and charges being filed made

investigating the case more difficult. He spoke with

Defendant about the shooting and presented a

defense witness based upon their conversations. He

had nothing in his notes about either the bartender

or Mr. Aguilera.

While an attorney must conduct a reasonable

investigation into his client’s case, Strickland does

not require an attorney to ascertain the identity of

every witness who could provide exculpatory

evidence. Rhodes v. State, 986 So. 2d 501, 512 (Fla.

2008). The Office of the Public Defender did not

receive this case until over a year after the shooting.

Counsel reviewed police reports, statements, and

spoke with Defendant and his family about potential

witnesses. Counsel conducted a reasonable

investigation through depositions and reviewing

surveillance footage of the shooting. Simmons v.

State, 105 So. 3d 475, 494-95 (Fla. 2012). Assuming

Aguilera exists, the fact that counsel did not discover

him was not a result of a lack of investigation, but

the practical impossibility of speaking to hundreds of

unnamed club patrons over a year after the murder.

Even Defendant, who was in the best position to

know who was in the club that night, did not learn

about Aguilera’s existence until after trial and

sentencing, and he never informed counsel about

their conversation. Thus, counsel was not deficient.

Further, after listening to Defendant’s

testimony and observing his demeanor, this Court

does not find his testimony to be credible. Defendant

offered only hearsay as to what Aguilera said to him,

Mendoza v. State, 87 So. 3d 644, 665 (Fla. 2011), and

this Court finds it incredible that a witness who

could have exonerated Defendant materialized days

after sentencing. See Sandoval v. State, 225 So. 3d

962, 963 (Fla. 3d DCA 2017). Accordingly, Defendant

is not entitled to relief on Ground Two[.]

Ex. K at 83-86. Petitioner appealed, and the First DCA per curiam affirmed his

convictions and sentences in a written opinion. As to this claim, the First DCA

found as follows:

Santiago alleged in his motion that his counsel

was ineffective for failing to discover and interview

Victor Aguilera, a witness Santiago claims would

have presented exculpatory evidence. Though he did

not make the argument below, Santiago argues on

appeal that this claim should have been construed as

a newly discovered evidence claim because it was

clear that neither Santiago nor his counsel could

have discovered the witness earlier.

But in his motion, Santiago alleged only that

Aguilera would have been available had counsel

conducted a proper and timely investigation. To

qualify as newly discovered evidence, the asserted

facts must have been unknown by the trial court, by

the party, or by counsel at the time of trial, and it

must appear that defendant or his counsel could not

have known them by the use of diligence. See

Robinson v. State, 707 So. 2d 688, 691 (Fla. 1998)

(quoting Blanco v. State, 702 So. 2d 1250, 1252 (Fla.

1997)). Santiago admitted that he was at the club

during the shooting and knew that there were

witnesses to the shooting. But Santiago never told

his counsel about any potential witnesses because

Santiago believed it was his counsel’s job to

investigate.

Santiago’s counsel testified at the evidentiary

hearing and asserted that he was unaware of

Aguilera as a potential witness. And the defense’s

theory was that Santiago did not commit the murder.

Santiago also testified at the hearing. He claimed

that he met Aguilera in the county jail after he was

sentenced. After hearing testimony from Santiago

and his trial counsel, the postconviction court found

that Santiago’s counsel conducted a reasonable

investigation through depositions and reviewing

surveillance footage of the shooting. The court also

found that Santiago was not credible. Because the

court’s findings were supported by competent,

substantial evidence, this claim was properly denied.

Santiago, 294 So. 3d at 971.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record, this Court concludes that the state court’s adjudication

was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence presented.

Therefore, Ground Three is due to be denied.

Assuming this claim is not entitled to deference, the Court finds it has no

merit. Petitioner has failed to show deficient performance or resulting

prejudice. As such, Petitioner is not entitled to federal habeas relief on Ground

Three.

D. Ground Four3

Petitioner asserts his trial counsel was ineffective “for failing to properly

question witnesses during trial and the state court’s denial is clearly

unreasonable in light of the evidence presented.” Doc. 7 at 10. Specifically, he

3 Petitioner refers to this claim as Ground Two(b). Doc. 7 at 10.

asserts that counsel failed to “properly question Ms. Sujey Ramos [(the victim’s

girlfriend)] and Mrs. Judith Santiago” (Petitioner’s mother). Id. at 10.

Respondents contend that the state court’s adjudication of this claim is entitled

to deference. Doc. 19 at 30-33.

Petitioner raised this claim in his Rule 3.850 motion. After conducting an

evidentiary hearing on this issue, the postconviction court denied the claim:

In Ground Three, Defendant alleges counsel

was ineffective for failing to properly impeach the

victim’s girlfriend. Specifically, Defendant complains

that counsel should have laid the proper predicate

during the witness’s cross-examination in order to

later impeach her with evidence that she had offered

to change her testimony if Defendant paid her

$10,000. Defendant claims prejudice because her

credibility was a key issue at trial, and it is likely

that the result of the trial would have been different

had she been properly impeached.

Counsel may be ineffective for failing to

impeach the State’s key witness. Bentley v. State,

867 So. 2d 515, 516 (Fla. 1st DCA 2004) (citations

omitted). However, in the case at hand, counsel

vigorously attempted to use the testimony of

Defendant’s mother in order to impeach the victim’s

girlfriend. (Ex. E at 768-90.) Counsel argued that

this Court should either allow Defendant’s mother to

testify or that the victim’s girlfriend should be

recalled and, depending on her testimony,

Defendant’s mother should be able to impeach her.

(Ex. E at 768-90.) After counsel proffered

Defendant’s mother as a witness, this Court found

that the majority of her testimony would be either

inadmissible or irrelevant. (Ex. E at 758-88). While

counsel did not then move to recall the victim’s

girlfriend as a witness (to lay the predicate), this

Court’s ruling made it clear that counsel would not

be able to impeach the witness or attack her

credibility with evidence that she had previously

offered to recant for $10,000, so any further

argument would have been fruitless. See Green v.

State, 80 So. 2d 676, 678 (Fla. 1955) (“[Counsel] was

not required to do an obviously useless thing, and to

continue to object to the procedure already

specifically ruled upon by the trial judge.”); accord

A.E. v. State, 599 So. 2d 713, 714 (Fla. 1st DCA

1992). Defendant did not appeal this issue, and a

defendant may not raise an issue in a collateral

proceeding when the issue should have been raised

on direct appeal. E.g. Wells v. State, 598 So. 2d 259,

260-61 (Fla. 1st DCA 1992).

At the evidentiary hearing, counsel testified

that he had tried to impeach the victim’s girlfriend,

and he wanted to bring out evidence of an injunction

obtained against her by Defendant’s mother. He

could not remember a specific reason why he chose

not to ask her about the extortion on cross-

examination, but this Court ultimately refused to

allow the impeachment so there was not much he

could do.

After reviewing the trial transcript and

counsel’s testimony at the evidentiary hearing, this

Court finds that counsel was not ineffective because

it was this Court’s ruling that prevented counsel

from calling Defendant’s mother to impeach the

victim’s girlfriend. Counsel attempted to impeach

the witness and had always intended to do so.

Accordingly, Defendant is not entitled to relief on

Ground Three.

Ex. K at 83-86. Petitioner appealed, and the First DCA per curiam affirmed his

convictions and sentences in a written opinion. As to this claim, the First DCA

found as follows:

Next, Santiago argues that his counsel was

ineffective for not impeaching Sujey Ramos, the

victim’s girlfriend who identified Santiago as the

shooter, with evidence that Ramos tried to extort

Santiago and his mother. Santiago contends that

Ramos asked Santiago’s mother for money in

exchange for her changing her testimony that

Santiago was the shooter. Santiago testified that his

mother then obtained an injunction against Ramos.

Santiago asserts that his counsel should have cross-

examined Ramos about the attempted extortion.

But Santiago’s claim fails because the record

shows that defense counsel tried to present evidence

of the extortion through the direct testimony of

Santiago’s mother about the injunction. But the trial

court prohibited the testimony. See Spann v. State,

985 So. 2d 1059, 1067 (Fla. 2008) (holding that

counsel was not deficient when he tried to challenge

a witness’ testimony). And Santiago failed to

establish prejudice by showing that the result of the

proceeding would have been different had Ramos

been questioned about the extortion. The record

shows that defense counsel presented evidence of the

extortion attempt to the jury by introducing a

recorded conversation between Santiago and an

undercover officer. In the recording, Santiago told the

officer that Ramos asked his mother for $10,000 to not

testify against him. Because Santiago showed neither

ineffectiveness of counsel nor prejudice, this claim

was properly denied.

Santiago, 294 So. 3d at 971-72.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record, this Court concludes that the state court’s adjudication

was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence presented.

Therefore, Ground Four is due to be denied.

E. Ground Five4

According to Petitioner, his trial counsel was ineffective for “misadvising

[him] not to testify in his defense at trial.” Doc. 7 at 11. Respondents argue that

the state court’s adjudication of this claim is entitled to deference. Doc. 19 at

33-35.

Petitioner raised this claim in his Rule 3.850 proceeding. After conducting

an evidentiary hearing on other grounds, the postconviction court denied this

claim:

In Ground Four, Defendant alleges counsel

was ineffective for advising Defendant not to testify.

Specifically, Defendant complains that counsel was

deficient for advising Defendant that the State’s case

was very weak. Defendant claims prejudice because

his version of events would have rebutted the State’s

evidence, creating a reasonable probability that the

outcome of his trial would have been different.

To prevail on a claim that counsel’s

ineffectiveness interfered with his right to testify,

Defendant must demonstrate that counsel’s advice to

him “was deficient such that it deprived [Defendant]

of the ability to choose whether to testify on his own

behalf and that this deficiency prejudiced

[Defendant].” Beasley v. State, 18 So. 3d 473, 495-96

(Fla. 2009) (citing United States v. Teague, 953 F.2d

4 Petitioner refers to this claim as Ground Two(c). Doc. 7 at 11.

1525, 1530 (11th Cir. 1992)). This involves a two-step

analysis where this Court must determine whether

Defendant’s waiver of his right to testify was

voluntary, and, if it was, whether or not counsel’s

advice that Defendant not testify was reasonable.

Simon v. State, 47 So. 3d 883, 885-86 (Fla. 3d DCA

2010).

First, this Court finds that Defendant

knowingly and voluntarily agreed with counsel’s

advice that he not testify. During a thorough colloquy

with Defendant, this Court informed him that he had

an absolute right to testify, and Defendant, aware of

this right, chose not to take the stand. (Ex. E at 790-

94.) Thus, this Court must determine whether or not

counsel’s advice was reasonable. Id.

Defendant alleges his testimony would have

provided the jury with the following information: (1)

the location from where the shots were fired; (2) he

did not shoot the victim; (3) he had been standing

somewhere else when the shooting occurred; (4) he

left the club with friends; (5) he went to a friend’s

apartment after leaving the club; (6) he never told

undercover detectives he wanted to hire them to

commit a murder; (7) he was aware of a failed

relationship between his sister and the mother of the

victim’s girlfriend; (8) he returned to Puerto Rico

because of financial problems; and (9) the multi-

colored shirt police located could not be his because

his was at his residence.

Based upon these allegations, counsel was not

ineffective for advising Defendant that his testimony

would not be necessary. Jackson v. State, 711 So. 2d

1371, 1373 n.1 (Fla. 4th DCA 1998) (“Here, Appellant

alleged merely that he would have declared his

innocence, rebutting the testimony of state

witnesses. To be entitled to an evidentiary hearing

on a claim counsel deprived the defendant of the

right to testify, even where no waiver is shown to be

of record, a postconviction movant must show more.”

(citing Jennings v. State, 685 So. 2d 879 (Fla. 2d DCA

1996); Smith v. State, 700 So. 2d 469 (Fla. 1st DCA

1997))). His testimony would not have laid the

predicate for a defense, e.g., Visger v. State, 953 So.

2d 741, 744-45 (Fla. 4th DCA 2007), nor would it

have been exculpatory information only Defendant

could provide. E.g., Loudermilk v. State, 106 So. 3d

959, 960 (Fla. 4th DCA 2013). Without subjecting

Defendant to cross-examination, counsel was able to

attack the credibility of the state’s only eyewitness

with inconsistent statements as well as evidence that

she had demanded money from Defendant in order to

not testify; he was able to detail how none of the

State’s forensic and investigatory witnesses

presented any evidence directly linking Defendant to

the crimes; and he was able to attack the credibility

of Defendant’s cellmate through the use of prior

convictions while also showing how the taped

recording of Defendant’s conversation with

detectives corroborated, rather than contradicted,

the argument that Defendant was being railroaded

by a vindictive former friend and a jailhouse snitch.

(Ex. E at 844-69.) Thus, Counsel was not deficient.

Ex. K at 88-90. Petitioner brief this issue on appeal, and the First DCA per

curiam affirmed his convictions and sentences in a written opinion. As to this

claim, the First DCA found as follows:

Last, Santiago claims that his counsel

rendered deficient performance when counsel

advised him not to testify. This claim is conclusively

refuted by the record.

A claim that is conclusively refuted by the

record may be summarily denied by the

postconviction court. See Peede v. State, 748 So. 2d

253, 257 (Fla. 1999); see Fla. R. Crim. P. 3.850(d).

Here, the postconviction court attached portions of

the record showing that the trial court conducted a

thorough colloquy in which Santiago affirmed his

decision not to testify. And the record shows that the

trial court found that Santiago’s decision was freely,

voluntarily, knowingly, and intelligently given.

Thus, this claim was properly denied, too.

Santiago, 294 So. 3d at 972.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record, this Court concludes that the state court’s adjudication

was not contrary to clearly established federal law, did not involve an

unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence presented.

Therefore, Ground Five is due to be denied.

In light of the foregoing, it is

ORDERED:

1. The Amended Petition (Doc. 7) is DENIED, and this case is

DISMISSED WITH PREJUDICE.

2. If Petitioner appeals, the Court denies a certificate of appealability.

Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.®

3. The Clerk shall enter judgment dismissing this case with

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

DONE AND ORDERED at Jacksonville, Florida, this 14% day of

September, 2023.

Ciro g. Corrig on

iW TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 9/8

C:

Omar Santiago, #J52235

Counsel of Record

5 The Court should issue a certificate of appealability only if the Petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make this substantial showing, 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-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

28