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

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

URL: https://www.frixlaw.com/law-library/cases/10113968

## Case

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

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10113968

## How later opinions describe it (automated extraction)

- holding that counsel was not deficient when he tried to challenge a witness’ testimony
- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”
- noting “that Boerckel applies to the state collateral review process as well as the direct appeal process.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113968. Public record. Not legal advice.