HEAGNEY v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

RICHARD WILLIAM HEAGNEY,

Petitioner,

v. CASE NO. 1:18-cv-243-AW-GRJ

SECRETARY, DEPT.

OF CORRECTIONS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a Petition for a Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 challenging his Alachua County jury-

trial conviction and life sentence for capital sexual battery. ECF No. 1. The

Respondent has filed a response to the Petition, together with a copy of the

state-court record, and Petitioner has filed a reply. ECF Nos. 32, 51. Upon

due consideration of the Petition, the Response, the state-court record, and

Petitioner’s reply, it is respectfully recommended that the Petition be

denied.1

1Because the Court may resolve the Petition on the basis of the record, the Court has

determined that an evidentiary hearing is not warranted. See Rule 8, Rules Governing

Habeas Corpus Petitions Under Section 2254.

I. State Court Procedural History

The relevant procedural history of Petitioner’s case may be

summarized as follows. Petitioner was charged by a second amended

information with committing sexual battery on the six-year-old victim

(Petitioner’s granddaughter) between July 15, 2011 and October 21, 2011.

ECF No. 32-16 at 185. Prior to trial, the State moved pursuant to Fla. Stat.

§ 92.54 to allow the victim to testify outside of the Petitioner’s presence by

closed circuit television. Following a hearing, the court granted the motion.

Id. at 183-84; see ECF No. 32-3 at 1-111 (transcript of motion hearing).

Based on the evidence adduced at the hearing, the court found that there

was a substantial likelihood that the victim, who was eight years old at the

time of trial, would suffer at least moderate emotional or mental harm if she

were compelled to testify in Petitioner’s presence about the allegations of

sexual abuse by him. ECF No. 32-16 at 183-84.

The State’s evidence at trial included a video of the victim’s interview

with a Child Protection Team (CPT) interviewer on November 1, 2011 (the

day after the abuse was reported) during which the victim described in

graphic detail the repeated episodes of sexual battery by Petitioner. The

victim’s live testimony was received by having her and the other trial

participants, including Petitioner’s counsel and the jury, move to another

courtroom; co-defense counsel remained with Petitioner. During a colloquy

between the court and counsel regarding how counsel would communicate

with Petitioner, counsel stated that he had discussed with Petitioner that

following cross-examination of the victim he would return to the other

courtroom and confer with Petitioner privately regarding the testimony.

ECF No. 32-4 at 6-11; 32-5 at 40-41.

In addition to the victim’s CPT interview and live testimony, the

State’s evidence included the following: Testimony by the CPT interviewer;

testimony by medical professionals who examined the victim and testified

that it is rare to find evidence of physical trauma in prepubertal children;

men’s underwear bearing spermatozoa and Petitioner’s DNA together with

items of the victim’s clothing that were concealed in a trash bag in

Petitioner’s work van; testimony by Petitioner’s former wife that

corroborated some of Petitioner’s sexual habits as described by the victim;

testimony from the victim’s mother and aunt that they observed discharge

in the victim’s underwear and that the victim complained of groin discomfort

during the time that the abuse occurred; and testimony from family

members that the victim’s behavior toward Petitioner was markedly

different shortly before the victim told them about the abuse. ECF No. 32-5

at 86-97; ECF No. 32-6 at 1-115; 32-7 at 1-83; 32-8 at 1-162; 32-9 at 1-

113.

Petitioner did not testify, and although he had retained experts for trial

he elected not to present their testimony. ECF No. 32-9 at 66-68. After

conferring with counsel, Petitioner elected not to request any jury

instructions on lesser-included offenses, in view of the fact that he was on

parole from an earlier life sentence for armed burglary when the new

offenses occurred and therefore (in his words) he would be “taking a dirt

nap either way”. ECF No. 32-9 at 81-85. After deliberating for a total of

just over 30 minutes (with an intervening break to hear the victim’s CPT

interview again), the jury found Petitioner guilty. ECF No. 32-10 at 89-92.

Petitioner appealed on three grounds: (1) The trial court erred in

allowing a witness not qualified as a licensed psychologist to testify that the

victim would suffer mental or emotional harm by testifying in Petitioner’s

presence; (2) Petitioner’s right to confront his accuser was violated

because the decision to allow the victim to testify outside of his presence

was not supported by sufficient evidence; and (3) the State’s closing

argument was improper and deprived him of a fair trial in several ways.

ECF No. 32-12 at 1-35. The First DCA affirmed the conviction, per curiam,

without a written opinion. ECF No. 12-15 at 1.

Petitioner sought postconviction relief. For purposes of the instant

federal habeas petition the operative state-court pleading is his second

amended motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850.

ECF No. 32-16 at 117-60. Petitioner asserted eleven claims of ineffective

assistance of trial counsel. Id. The trial court summarily denied the motion.

Id. at 163-82. The First DCA affirmed, per curiam, without a written

opinion. ECF No. 32-19 at 1.

Petitioner then filed the Petition now before this Court, ECF No. 11,

which Respondent concedes is timely. Petitioner asserts the same three

claims that he raised in his direct criminal appeal, as well as the ineffective-

assistance claims raised in his postconviction motion. See ECF No. 11.

II. Section 2254 Exhaustion Requirement

Before bringing a habeas action in federal court, a petitioner must

exhaust all state court remedies that are available for challenging his

conviction, either on direct appeal or in a state post-conviction motion. 28

U.S.C. § 2254(b)(1), (c). Exhaustion requires that prisoners give the state

courts a “full and fair opportunity” to resolve all federal constitutional claims

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

process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To properly

exhaust a federal claim, a petitioner must “fairly present” the claim in each

appropriate state court, thereby affording the state courts a meaningful

opportunity to “pass upon and correct alleged violations of its prisoners’

federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation

omitted).

III. Merits: Standard of Review

For claims that are properly exhausted, the Anti-Terrorism and

Effective Death Penalty Act (AEDPA) imposes limitations on the scope of

this Court's review. Under 28 U.S.C. § 2254(d)(2), a federal court may not

grant a state prisoner's application for a writ of habeas corpus based on a

claim already adjudicated on the merits in state court unless that

adjudication “resulted in a decision that was based on an unreasonable

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

court proceeding.” Under § 2254(e)(1), “a determination of a factual issue

made by a State court shall be presumed to be correct,” and the petitioner

“shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” “‘[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have

reached a different conclusion in the first instance.’” Burt v. Titlow, 571

U.S. 12, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290,

301, 130 S.Ct. 841(2010)).

As to legal findings, a petitioner is entitled to federal habeas relief

only if the state court's adjudication of the merits of the federal claim

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” § 2254(d)(1); see Burt, 134 S.Ct. at

15 (standard for reviewing claims of legal error by state courts is “highly

deferential”). This standard “recognizes a foundational principle of our

federal system: State courts are adequate forums for the vindication of

federal rights.” Id. This highly deferential standard carries special force in

habeas cases asserting ineffective-assistance claims: “Especially where a

case involves such a common claim as ineffective assistance of counsel

under Strickland—a claim state courts have now adjudicated in countless

criminal cases for nearly 30 years—‘there is no intrinsic reason why the fact

that a man is a federal judge should make him more competent, or

conscientious, or learned . . . than his neighbor in the state courthouse.’”

Id. (quoting Stone v. Powell, 428 U.S. 465, 494, n. 35 (1976)).

In view of the deference afforded to the state courts’ adjudication of

constitutional claims, “AEDPA erects a formidable barrier to federal habeas

relief for prisoners whose claims have been adjudicated in state court.

AEDPA requires ‘a state prisoner [to] show that the state court's ruling on

the claim being presented in federal court was so lacking in justification that

there was an error . . . beyond any possibility for fairminded disagreement.’”

Id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786–787

(2011). “‘If this standard is difficult to meet’—and it is—'that is because it

was meant to be.’” Id. (quoting Harrington, 131 S.Ct. at 786). “We will not

lightly conclude that a State's criminal justice system has experienced the

‘extreme malfunction’ for which federal habeas relief is the remedy.” Id.

(quoting Harrington, 131 S.Ct. at 786).

Further, when reviewing state-court decisions under § 2254, if a state

appellate court issues a silent affirmance, “the federal court should ‘look

through’ the unexplained decision to the last related state-court decision

that does provide a relevant rationale” and “presume that the unexplained

decision adopted the same reasoning.” Wilson v. Sellers, ___ U.S. ___,

138 S.Ct. 1188, 1192 (2018).

IV. Discussion

A. Grounds 1 and 2: Confrontation Clause and Victim’s Testimony

Petitioner’s first two claims stem from the trial court’s decision

allowing the victim to testify outside of his presence, and may be discussed

together. Petitioner first argues that the trial court erred in relying on the

testimony of a licensed mental health counselor (rather than a physician or

psychologist) in finding that there was a substantial likelihood that the

victim would suffer at least moderate emotional or mental harm if she were

compelled to testify in Petitioner’s presence. Next, Petitioner contends that

even if the trial court correctly relied on the counselor’s testimony, the

evidence was insufficient to demonstrate a “substantial likelihood” of at

least moderate harm. ECF No. 11 at 10-12.

The State contends that this claim is unexhausted because Petitioner

did not raise this issue as one of federal constitutional law in his direct

appeal. The State argues that Petitioner’s claim “hinged on whether

section 827.03(3), Florida Statutes, which requires that expert opinions in

child abuse cases be given by physicians or psychologists, applied to a

circumstance involving the ‘at least moderate mental or emotional harm’

the child victim of a sex crime might suffer if required to testify in the

defendant’s presence, from section 92.45(1), Florida Statutes.” ECF No.

32 at 42. Respondent concedes that Petitioner argued in his appeal that

the trial court’s asserted error cannot be deemed harmless because of the

Confrontation Clause. Id. at 42.

The Respondent’s argument is not well-taken. On direct appeal,

Petitioner stated as follows regarding the trial court’s decision:

The procedure also violated the Confrontation Clause, which allows

denial of face-to-face confrontation only when necessary to protect a

child witness from trauma which would impair the child's ability to

communicate. The court had no evidence from which it could

anticipate trauma of the magnitude required by the Sixth Amendment

to justify denial of confrontation.

ECF No. 32-12 at 13. Petitioner further argued that even “if the evidence

sufficed under section 92.54, it fell short under the Confrontation Clauses of

the Sixth Amendment to the U.S. Constitution and Article I, Section 16(a) of

the Florida Constitution.” Id. at 27. Petitioner cited federal habeas corpus

cases in support of his argument, as well as state-law cases. See id.

Thus, on this record, the Court is satisfied that Petitioner “fairly presented”

this claim to the state courts as one of federal constitutional law.

Turning to the merits of Petitioner’s claim, the First DCA has

explained:

[I]t is recognized that the defendant’s right to confront his accuser

must give way to the State’s interest in sparing child victims of sexual

crimes the further trauma of in-court testimony.” Ritchie v. State, 720

So.2 d 261, 262 (Fla. 1st DCA 1998). Consistent with that interest,

sections 92.53 and 92.54, Florida Statutes, allow children to testify by

closed-circuit television or pre-recorded video in certain

circumstances. The United States Supreme Court has upheld similar

statutes against Confrontation Clause challenges, see Maryland v.

Craig, 497 U.S. 836, 857 (1990), and the Florida Supreme Court has

upheld Florida’s law, see Hopkins v. State, 632 So. 2d 1372, 1376

(Fla. 1994). However, both the United States Supreme Court and the

Florida Supreme Court have acknowledged that the Constitution

requires trial court judges to make case-specific findings before

defendants can be denied face-to-face confrontation. Craig, 497 U.S.

at 857 (“The requisite finding of necessity must of course be a case-

specific one: the trial court must hear evidence and determine

whether use of the one-way closed circuit television procedure is

necessary to protect the welfare of the particular child witness who

seeks to testify.”); Leggett v. State, 565 So. 2d 315, 318 (Fla. 1990)

(“[T]he factual findings required by section 92.54 are necessarily

related to the constitutional right to confrontation.”).

Knight v. State, 254 So. 3d 642, 644 (Fla. 1st DCA 2018).

In McDonald v. Sec’y Fla. Dep’t of Corr., 632 F. App’x 586 (11th Cir.

2016) (unpublished), the Eleventh Circuit affirmed the district court’s denial

of federal habeas relief under circumstances similar to this case. The

district court had explained that a witness’s testimony received remotely is

generally a violation of the Confrontation Clause,

[b]ut there is a narrow exception for children who are alleged victims

of sexual abuse. On this issue, the “clearly established Federal law,

as determined by the Supreme Court of the United States,” is set out

in two decisions: Coy v. Iowa, 487 U.S. 1012 (1988), and Maryland v.

Craig, 497 U.S. 836 (1990). The report and recommendation correctly

analyzes these decisions and an Eleventh Circuit decision applying

them, Cumbie v. Singletary, 991 F.2d 715 (11th Cir.1993). Together,

Coy and Craig establish that child testimony cannot be presented

remotely based only on a presumption of harm, but child testimony

can be presented remotely based on individualized findings that the

child will suffer harm, not just from testifying in a courtroom, but from

testifying in the defendant’s presence.

Whether the state’s factual showing was sufficient under Coy

and Craig is far from clear. The issue, though, is not whether those

decisions clearly authorized this remote testimony. The issue is

whether those decisions clearly prohibited this remote testimony. The

decisions did not. The state courts’ rejection of Mr. McDonald’s

Confrontation Clause claim was not contrary to or an unreasonable

application of federal law as determined by the United States

Supreme Court.

McDonald v. Crews, No. 4:10cv428-RH/CAS, 2014 WL 1328969, at *2

(N.D. Fla. Mar. 31, 2014) (emphasis in original), aff’d sub nom. McDonald

v. Sec’y, Fla. Dep’t of Corr., 632 F. App’x 586 (11th Cir. 2016); see also

Sanders v. Sec’y, Fla. Dep’t of Corr., No. 4:17cv355-RH/CAS (N.D. Fla.

Dec. 28, 2018) (report and recommendation adopted Feb. 19, 2019)

(denying habeas relief where trial court made individualized findings to

determine that child victim could testify out of the presence of the

defendant, findings were supported by the record, and therefore case fell

within the narrow exception to the Confrontation Clause for children who

are alleged victims of sexual abuse).

In this case, the trial court held a hearing pursuant to Fla. Stat. §

92.54 (2011), to determine if there was a substantial likelihood that the

victim would suffer at least moderate emotional or mental harm due to the

presence of the defendant when she testified. The State called Lisa Litz.

Ms. Litz had a Master’s degree in education from the University of Florida,

taught at the University of Cincinnati and Ohio about abused children, and

was currently doing therapy with abused children and their families. Litz’s

CV was entered into evidence. Her qualifications included over 10 years of

experience in a variety of mental health and psychoeducational settings,

over 20 years of experience in childcare settings, and she had recently

served as an expert witness in determining the impact of children testifying

in open court in 2012. She was also a licensed marriage and family

counselor, a registered play therapist, and a certified mental health

counselor. She had been working at the Child Advocacy Center for about

four years and had been in the counseling field for about 10 years. ECF

No. 32-3 at 18-44.

The State asked Litz to evaluate the victim to determine whether

testifying in the Petitioner’s presence would be harmful to her. Litz spoke

with the victim’s school guidance counselor, watched her CPT interview

and deposition, and personally spoke with the victim for about an hour to

evaluate her anxiety levels. Defense counsel objected that Litz was not

qualified as a psychologist or psychiatrist. The trial court stated “I believe

by statute, a licensed mental health counselor is qualified to give such an

opinion,” and the State concurred. Litz testified that in the face of “intimate

and intrusive” questions, the victim showed a high level of anxiety and even

some “dissociative episodes”. Litz opined that if the victim were forced to

testify in Petitioner’s presence “[s]he would suffer a substantial emotional

harm.” Litz conceded that the victim had expressed that she was not afraid

of Petitioner, but explained that “there are any number of reasons that a

child would say they were not afraid of someone who had hurt them.

Children are very literal.” Litz testified that “in any of those questions, I

didn’t hear about her being in a courtroom and telling her story in front of

him. That would be a big difference to a child.” ECF No. 32-3 at 18-44.

Following the hearing, the trial court made written findings that: (1)

the victim was six years old at the time of the offense and would be eight

years old at the time of trial; (2) Petitioner is the victim’s grandfather; (3)

Litz is a licensed mental health counselor with other relevant credentials

and experience evaluating and counseling child victims of sexual abuse; (4)

Litz previously testified as an expert in Florida’s Eighth Judicial Circuit on

the issue of whether child victims should be compelled to testify in the

presence of the their alleged abusers; (5) Litz personally examined the

victim in preparation for the hearing and reviewed her CPT interview, the

police reports, the victim’s deposition, and other case materials; (6) Litz

testified that the victim was experiencing significant anxiety about the

prospect of testifying at trial and engaged in a variety of psychological

defenses when talking about the alleged sexual abuse; (7) Litz testified that

in her professional opinion, to within a reasonable degree of professional

certainty, there was a substantial likelihood that the victim would suffer at

least moderate mental or emotional harm if she was compelled to testify at

trial in the presence of Petitioner; (8) the court also reviewed the recording

of the CPT interview; (9) after hearing the testimony and reviewing the

recording of the CPT interview, the court concluded there was a substantial

likelihood that the victim would suffer at least moderate emotional or mental

harm if compelled to testify in the presence of the Petitioner about the

allegations of sexual abuse; and (10) Petitioner’s right to confront the victim

as a witness against him was adequately balanced with the interest of

protecting the victim by the fact that counsel would be personally present

during the testimony and would be permitted a full and fair opportunity to

cross-examine the victim. ECF No. 32-16 at 183-84.

Contrary to Petitioner’s assertion, there is no prohibition under state

or federal law that precluded the trial court from considering the opinion of

a mental health professional in arriving at its decision. See § 92.54(5), Fla.

Stat. To the contrary, under its companion statute (§ 92.55), trial courts

“shall” consider:

(a) The age of the child, the nature of the offense or act, the

relationship of the child to the parties in the case or to the defendant

in a criminal action, the degree of emotional trauma that will result to

the child as a consequence of the defendant’s presence, and any

other fact that the court deems relevant[.]

Fla. Stat. § 92.55(2)(a) (emphasis added). This includes opinion testimony

of a licensed mental health care professional such as Litz. For example, in

Leggett v. State, 565 So. 2d 315, 316-17 (Fla. 1990), the Florida Supreme

Court held: “There is no question of the competency of the single witness

who testified. She was a licensed, well-trained and experienced clinical

social worker who had counseled the child at weekly intervals for more than

a year.” Id. The Florida Supreme Court found that there was sufficient

evidence presented from which the trial court could have concluded “that

the child would suffer at least moderate emotional or mental harm.” Id. at

317.

The record in this case reflects that the trial court made detailed,

individualized findings to arrive at the conclusion that the victim’s interests

could be protected by having her testify outside of Petitioner’s presence,

while preserving Petitioner’s essential rights under the Confrontation

Clause to fully and fairly cross-examine her. As explained by this Court in

McDonald, the Supreme Court’s pronouncements on this issue in Coy and

Craig do not prohibit the process utilized by the trial court in arriving at its

decision. Thus, the state courts’ rejection of Petitioner’s Confrontation

Clause claim was not contrary to or an unreasonable application of federal

law as determined by the United States Supreme Court. See McDonald,

2014 WL 1328969, at *2.

B. Prosecutorial Misconduct in Closing Argument

Petitioner contends that his right to a fair trial was violated when the

State in closing argument improperly claimed that the victim was truthful

and “no one believed she was lying,” and made other remarks to evoke

sympathy for her and bolster her credibility. Petitioner asserts that the

victim’s “credibility was the crux of the case”, and where witness credibility

is pivotal the State’s improper argument is prejudicially harmful. ECF No.

11 at 14.

This issue was raised in Petitioner’s direct criminal appeal. The

specific remarks by the prosecutor underlying the appeal were: (1) “If you

think that little girl was lying on Tuesday, go back in that room and acquit

the Defendant. I suggest to you though that nobody thought she was lying.

Nobody thought she was lying on November 1, 2011 [when she gave the

CPT interview], and nobody thought she was lying on Tuesday [at trial];” (2)

the victim’s words were “Horrible, chilling truth;” and (3) “Remember her

words. Remember her face. Remember her tears. And remember the pain

that she will carry for the rest of her life. And I ask that you find the

Defendant guilty as charged.” ECF No. 32-10 at 24-25, 39. To the extent

that Petitioner’s argument is limited to these comments, the Respondent

concedes that this claim was exhausted in Petitioner’s direct appeal.

Respondent further argues, however, that any error in allowing the

arguments was unpreserved. Petitioner’s counsel objected to the first

comment, and the trial court sustained the objection. Counsel did not,

however, move for a mistrial or a curative instruction. Counsel did not

object to the other two comments.

It is well-settled that improper jury argument by the prosecution

violates a defendant’s constitutional right to a fair trial in some

circumstances. See, e.g., Cronnon v. State, 587 F.2nd 246, 251 (5th Cir.

1978). “[T]he appropriate standard of review for such a claim on writ of

habeas corpus is ‘the narrow one of due process, and not the broad

exercise of supervisory power.’” Davis v. Kemp, 829 F.2d 1522, 1527 (11th

Cir. 1987). The Court applies a two-step process in reviewing such a

claim: (1) the Court considers whether the argument was improper; and (2)

whether any improper argument was so prejudicial as to render the trial

fundamentally unfair. Id. at 1526. Thus, “‘[t]he relevant question is whether

the prosecutors’ comments ‘so infected the trial with unfairness as to make

the resulting conviction a denial of due process.’” Id. at 1526-27 (quoting

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). A trial is fundamentally

unfair if there is a reasonable probability that but for the prosecutor’s

improper remarks, the outcome of the trial would have been different.

Williams v. Kemp, 846 F.2d 1276, 1283 (11th Cir. 1988).

Upon this Court’s review of the prosecutor’s comments in the context

of the trial record as a whole, there is no reasonable probability that but for

the prosecutor’s remarks – even if improper – the outcome of the trial

would have been different.

The first comment was made in the context of the prosecutor’s

summarizing the victim’s CPT statement and testimony in which she

described the abuse in graphic detail. The prosecutor stated to the jury

that if, after watching the victim describe acts that “no six-year-old should

have ever known about” the jury nevertheless thought she was lying, then

they should acquit Petitioner. The prosecutor referenced the victim’s

obvious pain and emotion during her testimony, and then said “[i]f you think

that little girl was lying on Tuesday, go back in that room and acquit

[Petitioner]. I suggest to you though that nobody thought she was lying.

Nobody thought she was lying on November 1st, 2011, and nobody thought

she was lying on Tuesday.” The trial court sustained defense counsel’s

objection. The prosecutor then went on to explain why the evidence

showed the victim was telling the truth:

That little girl described what happened to her in childlike language

because she doesn’t know the real language. She described things

that happened to her that she shouldn’t have known about. And the

only reason she knows about them is because they happened to her.

And if there is only one thing that you take from the evidence in this

case as you’re considering the 33 exhibits, and as you’re

remembering the last couple days of testimony, if there is only one

thing that you take from that, I submit that you take [her] words. I

submit that you take the way [the victim] said her words. I submit to

you they were the truth. Horrible, chilling truth.

ECF No. 32-10 at 24-25.

In the context of the record and the full closing arguments, the

prosecutor’s comments that “nobody thought she was lying” can fairly be

read as focused on whether the jury believed what the victim said, and not

a suggestion that unidentified third parties found the victim credible. The

prosecutor also invited the jury to acquit the Petitioner if they did not

believe the victim’s testimony. ECF No. 32-10 at 24-25. Moreover, as the

State pointed out, Petitioner’s defense was premised on suggesting that

the victim’s allegations were fabricated, thereby inviting the prosecutor to

highlight reasons drawn from the evidence that she was credible. Such

reasons included her detailed description of sexual acts (accurately

characterized by the prosecutor as “horrible”) that are beyond the

knowledge or experience of six-year-old children, and the consistencies of

her descriptions in the CPT interview and trial testimony. Further, in

addition to the victim’s testimony, the evidence of Petitioner’s guilt was

overwhelming and essentially unrebutted, including the physical evidence

recovered from Petitioner’s work van and the testimony of the victim’s

family members corroborating her description of some of Petitioner’s sexual

habits and their observations of physical manifestations of abuse and

changes in the child’s behavior, as summarized above.

Further, the trial court instructed the jury that:

You should consider how the witnesses acted, as well as what they

said. . . . This case must not be decided for or against anyone

because you feel sorry for anyone, or are angry at anyone. . . . Your

verdict should not be influenced by feelings of prejudice, bias, or

sympathy. Your verdict must be based on the evidence, and on the

law contained in these instructions.

ECF No. 32-10 at 80-83. The jury is presumed to have followed the court’s

instructions.

Given the overwhelming evidence of Petitioner’s guilt, it cannot be

said that the isolated comments identified by Petitioner “’so infected the trial

with unfairness as to make the resulting conviction a denial of due

process.’” Davis, 829 F.2d at 1526-27. On this record, Petitioner has failed

to show that the state court’s rejection of this claim was contrary to, or an

unreasonable application of, federal law, or an unreasonable determination

of the facts in light of the evidence contained in the state court record.

C. Ineffective Assistance of Trial Counsel

Petitioner asserted 11 ineffective-assistance claims in his state

postconviction motion. ECF No. 32-16 at 117-160. Petitioner asserts the

same claims in this Court, with the exception of his state claim number (3),

which argued that counsel was ineffective for failing to move for a judgment

of acquittal on the ground that the State failed to establish that Petitioner

was over age 18, an element of the charging statute. See ECF No. 32-16

at 123-24. Petitioner concedes in the instant Petition that claim (3) has no

merit. ECF No. 11 at 17. This Court will retain Petitioner’s original

numbering of his claims for ease of referring to the state record.

Claim (1): Failure to Object to Closing Argument

Petitioner argues that his trial counsel rendered ineffective assistance

for failing to object to the prosecutor’s comments discussed above. In

rejecting this claim, the trial court on postconviction review noted that

counsel did object to the first comment (“nobody thought she was lying”),

and the objection was sustained. ECF No. 32-16 at 167. To the extent

counsel erred by failing to request a curative instruction and move for a

mistrial, the court found that Petitioner failed to establish prejudice under

the second Strickland prong because there was no reasonable probability

that the argument affected the outcome of the trial. The court reasoned

that the argument was mitigated by the State’s suggestion to the jury that

they should acquit Petitioner if they did not believe the victim. The court

observed that “’it will not be presumed that [the jury] is led astray, to

wrongful verdicts, by the impassioned eloquence and illogical pathos of

counsel.’” Id. (quoting Paramore v. State, 229 So.2d 855, 860 (Fla. 1969)).

The trial court made the jury aware that the comment was improper by

sustaining the objection. Id.

The court concluded that the remaining comments (that the victim’s

words were “horrible, chilling truth” and that the jury should remember the

victim’s “words, remember her face, remember her tears and remember her

pain”) did not amount to improper vouching or improper appeals to

sympathy for the victim, but were inferences and conclusions that

reasonably could be drawn from the testimony. Id. The court further

concluded that Petitioner failed to establish a reasonable probability that

the State’s argument affected the outcome of the trial. Id.

Petitioner has failed to show that the state court’s rejection of this

claim on either the performance or prejudice prongs of Strickland was

unreasonable. For the same reasons as discussed above, the trial record

amply supports the court’s conclusions. Because the state court’s rejection

of this claim was not contrary to, or an unreasonable application of federal

law, Petitioner is not entitled to habeas relief.

Claim (2): Failing to Object to State’s Emphasis on Evidence

Petitioner argues that his counsel was ineffective for failing to object

“to the State making the alleged victim’s discharge [in her panties] a feature

of the trial.” ECF No. 11 at 17.

In rejecting this claim, the state court explained:

The discharge found in the victim's panties was evidence supporting

Defendant's guilt of the charged offense, as it corroborated the

victim's testimony that Defendant sexually battered her. Thus, it was

not improper for the State to introduce testimony regarding it; nor was

it improper for the State to reference it during its closing argument.

And, the purportedly leading question by the State on redirect

examination of Marilyn Barnes was not an improper question. For

these reasons, counsel did not err by failing to object to any of this

testimony. Accordingly, the claim raised is without merit.

ECF No. 32-16 at 169. 2

Petitioner complains that the State improperly made the “discharge”

evidence a “feature” of the trial, but the fact that the State highlighted

important corroborative evidence that is unfavorable to the accused in no

way renders the State’s tactic improper, and Petitioner points to no

authority suggesting otherwise. Petitioner has failed to show that the state

court’s rejection of this claim on the performance prong of Strickland was

contrary to, or an unreasonable application of, federal law.

Claim (4): Interference with Petitioner’s Right to Testify

Petitioner argues that his trial counsel was ineffective for “interfering”

with his “right and desire to testify in his own behalf at trial.” ECF No. 11 at

17. In his state postconviction motion, Petitioner claimed that counsel

misled him into believing that testifying would “open the door for the State

2 Marilyn Barnes was an ARNP who conducted a physical examination of the victim.

Barnes was asked whether the victim’s “history of discharge” could be linked to

molestation, and Barnes replied “yes”. ECF No. 32-9 at 49.

to introduce evidence regarding the nature of [his] prior felony convictions.”

ECF No. 32-16 at 170. He contended that he would have testified that he

did not commit the charged offense and had never been accused by his

daughters of molestation, that the victim was lying at the direction of

Petitioner’s ex-wife who believed that Petitioner was trying to cheat her out

of an inheritance, and that he would have explained that the victim’s

clothes were in a garbage bag in his work van because his trash can was

full. Id.

The state court rejected this claim, finding that there was not a

reasonable probability that his testimony would have affected the outcome

of the trial because it did not undermine the other evidence of his guilt. The

court pointed to the corroborative testimony of the victim’s mother and aunt

(both of whom are Petitioner’s daughters), evidence that his ex-wife’s

inheritance money was in a trust and she had no reason to fabricate the

victim’s accusation to prevent Petitioner from accessing the money, the fact

that Petitioner would not have been allowed to testify that his daughters

had not accused him of molestation, and that it was the act of disposing of

the victim’s clothes that was relevant evidence of consciousness of guilt

rather than specifically where he placed the garbage bag. Id. at 171-172.

Lastly, the state court observed that Petitioner stated to the court,

under oath, that after conferring with counsel it was his decision not to

testify and that no one had threatened or coerced him not to testify. Id. at

172; see ECF No. 32-9 at 66-67.

A criminal defendant has a fundamental right to testify in his defense.

Rock v. Arkansas, 483 U.S. 44, 52 (1987). AAlthough often framed as a

right to testify, it is more properly framed as a right to choose whether to

testify.@ United States v. Hung Thien Ly, 646 F.3d 1307, 1313 (11th Cir.

2011) (citing United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.1992)

(en banc)). ALike other fundamental trial rights, the right to testify is truly

protected only when the defendant makes his decision knowingly and

intelligently.@ Hung Thien Ly, 646 F.3d at 1313 (citations omitted). AIn

cases where a defendant is represented by counsel, counsel is responsible

for providing the advice needed to render the defendant's decision of

whether to testify knowing and intelligent.@ Id. (citing Teague, 953 F.2d at

1533).

Petitioner has pointed to no evidence in the record that controverts

the state court=s finding at trial that Petitioner freely and voluntarily waived

his right to testify, and the finding on postconviction review that counsel=s

performance in this regard was not deficient. The trial transcript reflects

that the court and counsel made an inquiry into whether Petitioner was

aware of his right to testify and the consequences of testifying, and

Petitioner willingly waived that right. ECF No. 32-9 at 66-67. Moreover, in

light of the overwhelming evidence of his guilt, Petitioner has not shown

that there is any reasonable probability that the outcome of the trial would

have been different had he elected to testify at trial. Under these

circumstances, Petitioner has failed to establish that the state court=s

rejection of this claim was contrary to, or an unreasonable application of,

Strickland.

Claim (5): Instruction on Lesser-Included Offenses

Petitioner contends that his counsel was ineffective for failing to

request jury instructions on lesser-included offenses. ECF No. 11 at 17.

The state postconviction court rejected this claim as follows:

Defendant is essentially arguing that had they been instructed on

lesser included offenses the jury would have found him guilty of one

of the lesser offenses instead of the charged offense. However, "[t]he

possibility of a jury pardon cannot form the basis for a finding of

prejudice." Sanders v. State, 946 So, 2d 953, 960 (Fla. 2006).

"Therefore, a claim alleging ineffective assistance of counsel for

failure to request an instruction on a lesser-included offense may be

summarily denied." Id.; see also James v. State, 973 So. 2d 528,529

(Fla. 5th DCA 2007) ("[A]n ineffective assistance of counsel claim

may be summarily denied if the only allegation of prejudice is that the

jury was unable to exercise its pardon power.").

ECF No. 32-16 at 173. The court further noted that Petitioner agreed with

counsel’s decision not to request any lesser-included offenses because

Petitioner “would be taking a dirt nap either way” since he was subject to

having his parole from an earlier life sentence revoked regardless of the

sentence he received in this case. Id. at 173-74; see ECF No. 32-9 at 85-

86.

The record reflects that Petitioner understood his right to have the

jury instructed on lesser-included offenses, had conferred with his lawyer

about it, and agreed that it was his own decision not to have an instruction.

ECF No. 32-9 at 83-84, 85-86. On this record, Petitioner has failed to show

that the state court’s rejection of this claim on both the performance and

prejudice prongs of Strickland was contrary to, or an unreasonable

application of, federal law.

Claim (6): Failure to Call Expert Witness

Petitioner claims that his counsel was ineffective for failing to call

expert witnesses to refute the opinion testimony of the State’s experts,

Debra Esernio-Jenssen and Marilyn Barnes. ECF No. 11 at 17. In his

postconviction motion, Petitioner claimed that an expert could have testified

that physical trauma from sexual abuse would have been evident on the

victim, and that the victim could have been projecting memories of having

been molested by a different person when she was two or three years old.

ECF No. 32-16 at 130-31.

Petitioner conceded that during trial his counsel requested a recess

to discuss whether their retained expert, Dr. Harry Krop, should testify.

Counsel stated on the record: “there are things that I think Dr. Krop can

testify about that may both help and hurt the case. So there has to be a

decision made by my client whether one outweighs the other, and with my

advice.” Id. at 133. Petitioner states that counsel advised him that he did

not think Dr. Krop should testify and that counsel could not “get an expert

witness to say what I want them to say.” Id.

At trial, Petitioner’s counsel informed the court of his discussion with

Petitioner and stated “I think we’ll both agree that it is better not to call Dr.

Krop and to also not have rebuttal then. My understanding is if Dr. Krop is

not called, Dr. Dikel [the State’s rebuttal expert] will not be called.” ECF

No. 32-9 at 68-69.

The court then inquired of Petitioner: “You’ve talked with your

attorney about the trial strategy, about whether or not to call Dr. Krop?”

Petitioner responded: “Yes, I have”. The court asked: “And you’re in

agreement with the decision that’s being made not to call him to the

stand?” Petitioner stated: “Yes, I am.” Id. at 68-69.

The state postconviction court rejected this claim, finding that

Petitioner’s assertion that counsel could have obtained an expert to testify

in the manner that they wanted “conclusory” and “based on nothing more

than mere conjecture and speculation.” The court noted that both State

experts testified that it was normal not to find trauma to the child-victim’s

genitalia absent an acute assault, which was not the circumstance in this

case. The court concluded “it is unlikely that counsel could have found a

credible expert to testify to the contrary,” and rejected Petitioner’s

ineffective-assistance claim on both the performance and prejudice prongs

of Strickland. ECF No. 32-16 at 174-75.

Petitioner points to nothing in the record that suggests the state

court’s conclusion was anything but reasonable given the fact that

Petitioner agreed on the record that it was a strategic decision not to call

Dr. Krop, and nothing in the record suggests that any expert would have

testified as Petitioner now claims. Petitioner has failed to show that the

state court’s rejection of this claim was contrary to, or an unreasonable

application of, federal law.

Claim (7): Failure to File Motion in Limine Regarding Computer

Plaintiff contends that his trial counsel was ineffective for failing to file

a motion in limine to prevent any mention of his laptop computer at trial.

ECF No. 11 at 17. This claim is based on the State’s opening argument

which mentioned a laptop computer that was recovered from Petitioner’s

work van. Subsequent to opening argument, the court ruled that evidence

and testimony relating to the laptop was inadmissible. See ECF No. 32-16

at 134-37.

During opening, the prosecutor stated that a computer had been

recovered and forensic analysis determined that the computer had been

used to access pornography, and that efforts had been made to “clean up”

the computer before police examined it. ECF No. 32-5 at 73. The victim

had stated in her CPT interview that she watched “scary” movies with

nudity on a television with Petitioner. ECF No. 32-6 at 75. The trial court

concluded that there was an insufficient nexus between the alleged offense

and Petitioner’s laptop, and precluded any further mention of the laptop. Id.

at 75-77.

In rejecting this claim on postconviction review, the state court

concluded:

Given the fact that Defendant's computer was excluded at trial, had

counsel filed a motion in limine, the computer would have been

excluded prior to trial. And, it is clear from the record that counsel

was aware of the computer prior to trial. Thus, counsel erred by

failing to move to exclude the computer prior to trial. However, even

though counsel erred, Defendant fails to show any prejudice because

there is not a reasonable probability that this error affected the

outcome of the trial. After the State's opening statement, the

computer was only tangentially mentioned once more,

by a witness (Glenn Jones), during the three-day trial (July 9-11,

2013). And, the jury did not inquire about it during deliberations.

Therefore, there is no reason to believe that the State's mention of

the laptop during its opening statement was considered by the jury in

its determination of Defendant's guilt. Accordingly, the claim raised is

without merit.

ECF No. 32-16 at 176.

Petitioner points to nothing in the record that suggests the state court

unreasonably concluded that the error by counsel did not affect the

outcome of the trial because the laptop was mentioned only briefly and was

excluded from evidence with no further mention by the State. Petitioner

has failed to show that the state court’s rejection of this claim on the

prejudice prong of Strickland was contrary to or an unreasonable

application of federal law.

Claim (8): Failure to File Motion to Suppress

Petitioner claims that his counsel was ineffective for failing to move to

suppress the evidence recovered from his work van. ECF No. 11 at 17.

Petitioner argued in his state postconviction motion that the part of the

search warrant that permitted searches of vehicles on the premises and/or

the curtilage was not requested within the search warrant application and

affidavit. His work van was owned by “Mark Hurm & Co.”, which gave

consent for the search. A deputy recovered Petitioner’s laptop from the

van while it was on his premises. The van subsequently was moved to the

owner’s business. While it was there, the owner conducted an inventory of

the van and found the garbage bag containing the victim’s clothing.

Petitioner argued that this evidence should have been excluded. Id. at

138-40.

The state postconviction court determined that Petitioner’s own

factual allegations refuted his claim, citing numerous cases holding that a

vehicle found on the premises to be searched is included within the scope

of a warrant if objects of the search might be located in a vehicle. ECF No.

32-16 at 177. The court further noted that the van was not owned by

Petitioner and was returned to the owner after the initial search. The owner

then discovered the garbage bag and clothing. The court concluded

“[o]nce the vehicle was returned to the owner, Defendant no longer had

standing to object to its search by law enforcement, especially given the

fact that the owner consented to the search and the fact that the vehicle

was no longer in Defendant’s possession.” Id. at 178. Thus, had counsel

moved to suppress the clothing recovered from the van, the motion would

have been denied and counsel did not err by failing to move to suppress it.

Id.

Petitioner has shown no error in the state court’s conclusion.

Petitioner has failed to show that he would have had any standing to

contest the search of the van after it was returned to the owner and then

searched with the owner’s consent. Counsel is not ineffective for failing to

make non-meritorious motions. Petitioner has failed to show that the state

court’s rejection of this claim on the prejudice prong of Strickland was

contrary to, or an unreasonable application of, federal law.

Claims (9) through (11): Errors Relating to Victim’s Testimony

Petitioner’s remaining three claims all relate to the trial court’s

decision to allow the victim to testify via closed circuit television. ECF No.

11 at 17. Petitioner first contends that his counsel should have opposed

the State’s motion by securing expert testimony or filing a memorandum of

law (Claim 9). Next, Petitioner contends that his counsel deprived him of

his right to be present at a critical stage of trial (during the victim’s

testimony) (Claim 10). Finally, Petitioner contends that his counsel was

deficient for “acquiescing” to the court’s decision and failing to move for a

mistrial (Claim 11). ECF No. 11 at 17-18.

As explained above, the underlying substantive issue regarding the

victim’s testimony does not present any grounds for habeas relief. As an

ineffective-assistance claim, as the state postconviction court found,

counsel did vigorously oppose the State’s motion to allow the child to testify

outside of Petitioner’s presence. See ECF No. 32-16 at 178-79; ECF No.

32-3 at 17-43. The state postconviction court concluded that it would have

granted the State’s motion even if counsel had called an expert to testify at

the hearing or had filed a memorandum of law after the hearing. The

evidence before the court was sufficient for the court to find that the victim

should be permitted to testify outside of Petitioner’s presence. Further, the

method used for the victim’s testimony did not cause Petitioner to be

“absent” during a critical stage of the trial. Petitioner was not prevented

from watching all of the victim’s testimony, or from consulting with counsel

to aid in cross-examination. Petitioner points to nothing in the record that

shows he was deprived of the opportunity to effectively communicate with

his counsel regarding counsel's cross-examination of the victim. Petitioner

has failed to show counsel was in any way deficient in his performance

once the court had decided that the victim should be permitted to testify out

of his presence. Petitioner’s claim that his counsel “acquiesced” in any way

to a deprivation of his constitutional rights is squarely refuted by the trial

record. The state court rejected these claims on both the performance and

prejudice prongs of Strickland. See ECF No. 32-16 at 178-82. Petitioner

has failed to show that this decision was contrary to, or an unreasonable

application of, federal law.

V. Certificate of Appealability

Section 2254 Rule 11(a) provides that “[t]he district court must issue

or deny a certificate of appealability when it enters a final order adverse to

the applicant,” and if a certificate is issued “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2).” A timely notice of appeal must still be filed, even if the court

issues a certificate of appealability. Rule 11(b), Rules Governing Section

2254 Cases.

The undersigned finds no substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 483–84 (2000). Therefore, the undersigned recommends that the

district court deny a certificate of appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court

may direct the parties to submit arguments on whether a certificate should

issue.” Thus, if there is an objection to this recommendation by either

party, that party may bring this argument to the attention of the district

judge in the objections permitted to this report and recommendation.

VI. Conclusion

For the foregoing reasons, it is respectfully RECOMMENDED that the

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, ECF No.

11, should be DENIED and a COA should be DENIED.

IN CHAMBERS this 15th day of October 2021.

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations

must be filed within fourteen (14) days after being served a copy

thereof. Any different deadline that may appear on the electronic

docket is for the court’s internal use only, and does not control. A

copy of objections shall be served upon all other parties. If a party

fails to object to the magistrate judge's findings or recommendations

as to any particular claim or issue contained in a report and

recommendation, that party waives the right to challenge on appeal

the district court's order based on the unobjected-to factual and legal

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.