# Delgado-Ros v. Florida Department of Corrections

> District Court, S.D. Florida · March 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10120306

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** March 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-82118-CIV-ALTONAGA

BALTAZAR GABRIEL DELGADO-
ROS,

Petitioner,
v.
FLORIDA DEPARTMENT OF
CORRECTIONS,

Respondent.
_______________________________/

ORDER
THIS CAUSE came before the Court on pro se Petitioner, Baltazar Gabriel Delgado-Ros’s
Petition Under 28 U.S.C. [Section] 2254 for Writ of Habeas Corpus by a Person in State Custody
[ECF No. 1]. Respondent filed a Response [ECF No. 8]; an Index to Appendix[es] [ECF No. 9]
with attached exhibits (see Exs. 1–25 [ECF Nos. 9-1–9-3]);1 and a Notice of Filing Transcripts
[ECF No. 10] with attached transcripts [ECF Nos. 10-1–10-2]. Petitioner filed a Reply [ECF No.
11]. The Court has carefully considered the parties’ submissions, the record, and applicable law.
For the following reasons, the Petition is denied.
I. BACKGROUND2
Petitioner was convicted of armed sexual battery and burglary with assault in Case 11-CF-
012236 in the Seventeenth Judicial Circuit, in and for Palm Beach County, Florida. (See Pet. 1;

1 Appendix 1 [ECF No. 9-1] contains Exhibits 1 through 12 and a portion of Exhibit 13. Appendix 2 [ECF
No. 9-2] contains a portion of Exhibit 13. Appendix 3 [ECF No. 9-3] contains a portion of Exhibit 13 and
Exhibits 14–25.

2 In his Reply, “Petitioner stipulates to the accuracy of Respondent’s recital of the Statement of the Case
and Facts as well as the Procedural History set out with the Answer (“Petition”) filed in this cause[.]” (Reply
1–2 (alteration added)).
Resp. 2). Petitioner was sentenced to life in prison on each count. (See Pet. 1). He now challenges
the constitutionality of those state court convictions.
Petitioner filed a direct appeal of his convictions and sentences. (See Resp. 2). According
to Petitioner, the trial court erred by denying a motion for mistrial he made after the jury was sworn

but before opening statements. (See id. 1–3; Pet. 4–5). Petitioner maintained that during voir dire,
four prospective jurors stated they had watched the news the night before the trial, and two of them
made statements about what they had watched that tainted the remainder of the jury. (See Resp.
3; Pet. 4). Specifically, two of the prospective jurors said, in response to a question about judging
the credibility of an accuser, that they were “more comfortable yesterday, but today not so
comfortable.” (Pet. 4 (quotation marks and capitalization omitted)). The Florida Fourth District
Court of Appeal (“DCA”) per curiam affirmed Petitioner’s convictions without a written opinion.
See Delgadoros v. State, 238 So. 3d 789 (Fla. 4th DCA 2018).
Thereafter, Petitioner filed a Motion for Post-Conviction Relief Pursuant to Florida Rule
of Criminal Procedure 3.850. (See App. 1, Ex. 12 [ECF No. 9-1] 204–213 [hereinafter Rule 3.850

Mot.]). Petitioner brought six claims for relief:
(1) Trial counsel was ineffective for failing to argue a violation of Petitioner’s right to
speedy trial based on the prolonged period it took the State to extradite him. (See
id. 205).3
(2) Trial counsel was ineffective for failing to argue the State presented the wrong
DNA evidence at trial. (See id. 206).

3 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings.
(3) Trial counsel was ineffective for failing to subpoena a potential witness. (See id.
208).

(4) Trial counsel was ineffective for failing to argue a violation of Petitioner’s right to
speedy trial based on the three years he spent in county jail after his extradition.
(See id. 211).

(5) Trial counsel was ineffective for failing to file a motion to suppress. (See id. 210–
11).

(6) Trial counsel was ineffective for failing to retrieve Petitioner’s cell phone records
to support his defense theory. (See id. 210).4

The trial court denied the Rule 3.850 Motion based upon the reasoning the State provided in its
response. (See Resp. 3–4).
Petitioner appealed the order denying his Rule 3.850 Motion to the Fourth DCA. (See
Resp. 4–5). Petitioner contended the trial court “erred when it summarily denied [his Rule 3.850
Motion] without an evidentiary hearing and when the trial court ‘adopted and incorporated’ the
State’s response without making specific findings or attaching record documents to its order.”
(App. 3, Ex. 16, Appellant’s Initial Br. [ECF No. 9-3] 183 (alteration added) [hereinafter
Appellant’s Post-conviction Br.]). The Fourth DCA per curiam affirmed the trial court’s decision
without a written opinion on September 9, 2021. See Delgado-Ros v. State, 325 So. 3d 860 (Fla.
4th DCA 2021). Petitioner filed a motion for rehearing, which was denied, and a mandate issued
on November 19, 2021. (See Resp. 5).
The Petition challenges Petitioner’s state court convictions, recycling versions of the same
arguments raised in post-conviction proceedings in the state trial and appellate courts. (See
generally Pet.). Respondent opposes relief. (See generally Resp.).

4 Petitioner does not raise the argument pertaining to cell phone records in his Petition.
II. STANDARDS
A. Deference under Section 2254
A court’s review of a state prisoner’s federal habeas corpus petition is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Abdul-Kabir v. Quarterman, 550

U.S. 233, 246 (2007). “‘The purpose of [the] 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.’” Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818
F.3d 600, 642 (11th Cir. 2016) (alteration added; quoting Greene v. Fisher, 565 U.S. 34, 43
(2011)). This standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419 (2014)
(quotation marks and citation omitted).
The AEDPA provides that a federal court may not grant a habeas petitioner relief on any
claim adjudicated on the merits in state court unless the state court’s decision (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “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); see
also Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (citing 28 U.S.C.
§ 2254(d)).
A state court decision is “contrary to” established Supreme Court precedent when it
(1) applies a rule that contradicts the governing law set forth by the Supreme Court; or
(2) confronts a set of facts materially indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from Supreme Court precedent. See Williams v. Taylor,
529 U.S. 362, 405–06 (2000). An “unreasonable application” of clearly established federal law is
different from an incorrect application of federal law. Id. at 410 (emphasis omitted).
Consequently, “[a] state court’s determination that a claim lacks merit precludes federal habeas
corpus relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (alteration added; quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). If the last state court to decide a prisoner’s federal claim

provides an explanation for its merits-based decision in a reasoned opinion, “a federal habeas court
simply reviews the specific reasons given by the state court and defers to those reasons if they are
reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Even summary rejection of a claim, without explanation, qualifies as an adjudication on
the merits, warranting deference. See Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335,
1351 (11th Cir. 2019) (citing Harrington, 562 U.S. at 100). If the state court’s merits
determination is unaccompanied by an explanation, federal courts should “‘look through’ the
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, 138 S. Ct. at 1192.
Furthermore, a decision is still an adjudication on the merits when it “addresses some but

not all of a defendant’s claims.” Johnson v. Williams, 568 U.S. 289, 298 (2013). “The Supreme
Court [has] observed that there are good reasons why state courts do not address every single
argument made by a defendant, including ‘instances in which a state court may simply regard a
claim as too insubstantial to merit discussion.’” Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d
1172, 1212 (11th Cir. 2013) (alteration added; quoting Johnson, 568 U.S. at 299). “[F]ederal
courts have no authority to impose mandatory opinion-writing standards on state courts[,]” and
due to the heavy caseload shouldered by many appellate courts, “opinions issued by these courts
must be read with that factor in mind.” Id. (alterations added; quotation marks omitted; quoting
Johnson, 568 U.S. at 300).
In any event, a federal district court is authorized to deny a claim for federal habeas corpus
relief when the claim is subject to rejection under de novo review, regardless of whether AEDPA
deference applies. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (holding federal courts
can deny petitions for writs of habeas corpus under section 2254 by engaging in de novo review

when it is unclear whether AEDPA deference applies, as a habeas petitioner will not be entitled to
habeas relief if his claim is rejected on de novo review); Connor v. GDCP Warden, 784 F.3d 752,
767 (11th Cir. 2015) (“[B]ecause we conclude that [the petitioner] would not be entitled to habeas
relief under de novo review, we affirm the District Court’s denial of relief under that standard
without resolving whether AEDPA deference applies.” (alterations added; footnote call number
omitted)).
The 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) (alteration added; quotation marks, citations, and footnote call number omitted);
see also Lee, 726 F.3d at 1192 (citations omitted). The Eleventh Circuit “has stressed that in

applying AEDPA deference[,] federal courts are not to take a magnifying glass to the state court
opinion or grade the quality of it.” Meders, 911 F.3d at 1350 (alteration added). Thus, deferential
review under section 2254(d) is generally limited to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011). The
“AEDPA’s statutory scheme is designed to strongly discourage” petitioners from presenting new
evidence and ensures that “federal courts sitting in habeas are not an alternative forum for trying
facts and issues which a prisoner made insufficient effort to pursue in state proceedings.” Id. at
186 (alteration adopted; quotation marks and citations omitted).
B. Ineffective Assistance of Trial and Appellate Counsel5
The Sixth Amendment to the United States Constitution guarantees criminal defendants
the right to assistance of counsel during criminal proceedings against them. See Strickland v.
Washington, 466 U.S. 668, 684–85 (1984). When assessing counsel’s performance under

Strickland, the Court employs a strong presumption that counsel “rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
“[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right
to effective assistance[.]” Burt v. Titlow, 571 U.S. 12, 24 (2013) (alterations added; citation
omitted). “Where the highly deferential standards mandated by Strickland and [the] AEDPA both
apply, they combine to produce a doubly deferential form of review that asks only ‘whether there
is any reasonable argument that counsel satisfied Strickland’s deferential standard.’” Gissendaner
v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013) (alteration added; quoting Harrington, 562 U.S.
at 105).
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate:

(1) his counsel’s performance was deficient, falling below an objective standard of reasonableness;
and (2) petitioner suffered prejudice resulting from that deficiency. See Strickland, 466 U.S. at
687–88, 691–92.
To establish deficient performance, the petitioner must show that, considering all
circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent
assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting
Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and
facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690–

5 Five of Petitioner’s six claims allege ineffective assistance of trial counsel. (See Pet. 4–12).
91. The court’s review of counsel’s performance should focus on “not what is possible or ‘what
is prudent or appropriate, but only [on] what is constitutionally compelled.’” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (alteration added; footnote call number omitted;
quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). Counsel is not ineffective for failing to raise

non-meritorious issues, see Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (citation
omitted); nor is counsel required to present every non-frivolous argument, see Dell v. United
States, 710 F.3d 1267, 1282 (11th Cir. 2013) (citation omitted).
Regarding the prejudice component, the Supreme Court has explained “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694 (alteration added).
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
A court need not address both prongs of Strickland if the defendant makes an insufficient showing
on one of the prongs. See id. at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013)
(citations omitted).

A section 2254 petitioner must provide factual support for his contentions regarding
counsel’s performance. See Smith v. White, 815 F.2d 1401, 1406–07 (11th Cir. 1987). Bare,
conclusory allegations of ineffective assistance are insufficient to satisfy the Strickland test. See
Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1333–34 (11th Cir. 2012).
III. DISCUSSION
Petitioner raises six claims for relief:
Claim 1: The trial court erred when it denied Petitioner’s motion for mistrial based on
statements made by prospective jurors during voir dire. (See Pet. 4–5).
Claim 2: Trial counsel was ineffective for failing to argue a violation of Petitioner’s
right to speedy trial based on his prolonged extradition. (See id. 7).

Claim 3: Trial counsel was ineffective for failing to argue the wrong DNA evidence
was presented at trial. (See id. 8).

Claim 4: Trial counsel was ineffective for failing to subpoena a potential witness.
(See id. 10).

Claim 5: Trial counsel was ineffective for failing to argue a violation of Petitioner’s
right to speedy trial based on his prolonged extradition and the three years he spent
in county jail. (See id. 11).

Claim 6: Trial counsel was ineffective for failing to file a motion to suppress. (See
id. 12).

The Court examines whether each claim is procedurally barred before turning to the merits.
A. Procedural Issues6
Respondent contends each claim is unexhausted. (See Resp. 13–16). The Court agrees
only with respect to Claim 1. Claims 2 through 6, as raised in the Petition, are exhausted.
1. Claim 17
Respondent admits Petitioner argued Claim 1 on direct appeal. (See Resp. 13). Indeed,
Petitioner’s only claim on direct appeal was that “the trial court erred by denying [his] motion for
mistrial made before opening statements[.]” (App. 1, Ex. 8, Appellant’s Initial Br. [ECF No. 9-1]

6 Respondent concedes the Petition is timely. (See Resp. 8).

7 To the extent Respondent argues Petitioner’s motion for mistral was denied on independent adequate state
grounds because its direct appeal “brief explained that the issue was waived as untimely under Florida
law[,]” the Court is unconvinced. (Resp. 13 (alteration added)). The Eleventh Circuit has established a
three-part test to determine whether a state court’s procedural ruling constitutes an independent and
adequate state ground. See Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) (citation omitted). The
first part requires that “the last state court rendering a judgment in the case must clearly and expressly state
that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that
claim.” Id. (citation, quotation marks, and footnote call number omitted). Here, the Fourth DCA per curiam
affirmed Petitioner’s convictions without a written opinion. See generally Delgadoros, 238 So. 3d 789.
And the trial judge did not explicitly deny the motion for mistrial as untimely but instead stated she did not
think the rest of the jury panel was tainted. (See Trial Tr. [ECF No. 10-2] 458:9–16, 458:21–23).
175 [hereinafter Appellant’s Direct Appeal Br.]) (alterations added; capitalization omitted)). But
as Respondent notes, “Petitioner never apprised the state court of the federal nature of his claim
and therefore it is not exhausted.” (Resp. 13).
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available

state remedies . . . thereby giving the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (alteration
added; quotation marks omitted; citing 28 U.S.C. § 2254(b)(1); other citations omitted). “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.” Id. (quotation marks omitted;
citations omitted); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate 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.” (alteration added)).
To fairly present the federal constitutional issue to the state court, a petitioner can “indicate

the federal law basis for his claim in a state-court petition or brief, for example, by citing in
conjunction with the claim the federal source of law on which he relies or a case deciding such a
claim on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin, 541 U.S. at 32. “It
is not sufficient merely that the federal habeas petitioner has been through the state courts, nor is
it sufficient that all the facts necessary to support the claim were before the state courts or that a
somewhat similar state-law claim was made[.]” Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317,
1343–44 (11th Cir. 2004) (alteration added; citing Picard v. Connor, 404 U.S. 270, 275–276
(1971); Anderson v. Harless, 459 U.S. 4, 6 (1982)).
On direct appeal, Petitioner argued that several prospective jurors’ “comments and quick
excusals tainted the remaining jurors[,]” and therefore the trial court erred by refusing to grant his
motion for mistrial made before opening statements. (Appellant’s Direct Appeal Br. 174
(alteration added)). Petitioner never presented this argument as a federal claim to the state court.
Throughout his Direct Appeal Brief, Petitioner only cited state law. (See id. 167–68).

Petitioner relied on section 90.104(2), Florida Statutes, for the proposition that “the trial court
ha[d] the duty to conduct proceedings to prevent even the suggestion of improper evidence being
placed before the jury[.]” (Appellant’s Direct Appeal Br. 177 (alterations added)). While
Petitioner did state that “[d]efendants have a constitutional right to a trial by an impartial jury[,]”
he cited a First DCA case discussing Florida law. (Id. 180 (alterations added; citing Holt v. State,
987 So. 2d 237, 239 (Fla. 1st DCA 2008)). Petitioner did not cite or rely on any federal authority
to indicate the federal basis of his claim. No reader, let alone “the reasonable reader[,]” would
understand Petitioner intended to bring a federal claim before the state court. Kelley, 377 F.3d at
1344–45 (alteration added; citing Picard, 404 U.S. at 277).
The Eleventh Circuit has affirmed district court orders denying habeas petitions in

analogous situations. In McNair v. Campbell — like here — the petitioner filed a petition for
certiorari before the Supreme Court of Alabama wherein “he did not cite a single federal case[.]”
416 F.3d 1291, 1303 (11th Cir. 2005) (alteration added). The “only mention of federal law was a
repetition of the concluding paragraph of his argument before the Court of Criminal Appeals.” Id.
Instead, the petitioner “relied on state law opinions to argue a state law claim under a state law
standard, citing a lone federal district court opinion (which itself did not mention the federal
presumption of prejudice) only as part of a string citation[.]” Id. at 1304 (alteration added).
Consequently, the Eleventh Circuit found the district court correctly held that the petitioner’s claim
was procedurally barred. See id.
More recently, in Ivy v. Florida Department of Corrections, the petitioner “summarily
claimed on direct appeal of his state conviction that the state trial court violated his constitutional
right to a full and fair cross-examination of his accuser[.]” 543 F. App’x 923, 927 (11th Cir. 2013)
(alteration added). The petitioner, however, “failed to indicate that this claim was federal in

nature.” Id. As here, the petitioner never labeled his claim as a federal claim, nor did he “cite the
U.S. Constitution, a federal statute, or federal case law. He only cited state law.” Id. The Eleventh
Circuit concluded the petitioner failed to properly exhaust his claim. See id.
Like in McNair and Ivy, Petitioner did not fairly present his federal constitutional claim to
the state court for resolution, denying the state court “a meaningful opportunity to consider [the]
allegations of legal error[.]” Vasquez v. Hillery, 474 U.S. 254, 257 (1986) (alterations added;
citation omitted).
In Florida, claims which could have been raised on direct appeal, but were not, are
considered abandoned and procedurally barred from collateral review. See Sullivan v. Wainwright,
695 F.2d 1306, 1310, 1310 nn. 4, 6 (11th Cir. 1983) (citing Sullivan v. State, 372 So. 2d 938 (Fla.

1979); other citation omitted). “[F]ederal courts may treat unexhausted claims as procedurally
defaulted, even absent a state court determination to that effect, if it is clear from state law that any
future attempts at exhaustion would be futile.” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.
1999) (alteration added; citation omitted). “[A]bsent a showing of cause for and actual prejudice
from the default[,]” id. at 1302 (alteration added; citing Wainwright v. Sykes, 433 U.S. 72, 87, 97
(1977)), a petitioner procedurally barred from bringing a claim in state court is said to have
procedurally defaulted the claim.
The basis for Claim 1 was clearly available to Petitioner on direct appeal, as evidenced by
the state law version of the claim argued on direct appeal. Florida law would prohibit Petitioner
from returning to state court to exhaust the same claim clad in federal cloth; therefore, Claim 1 is
procedurally defaulted. See Ivy, 543 F. App’x at 927–28 (“[The petitioner’s] failure to exhaust his
claim resulted in a procedural default because ‘it is apparent that the Florida courts would now
refuse to hear this claim[.]’” (alterations added; quoting Smith v. Sec’y, Dep’t of Corr., 572 F.3d

1327, 1342 (11th Cir. 2009)). And Petitioner makes no showing that cause and prejudice exist to
excuse such default. (See Reply 3–6).
Altogether, Petitioner failed to exhaust and procedurally defaulted on Claim 1. Because
“the exhaustion requirement and procedural default principles combine to mandate dismissal[,]”
Claim 1 is dismissed. Bailey, 172 F.3d at 1303 (alteration added; citations omitted). The Court
will not consider its merits.
2. Claims 2 through 6
Respondent concedes Claims 2 through 6 “track the grounds raised” in Petitioner’s Rule
3.850 Motion. (Resp. 13). In his Rule 3.850 Motion, Petitioner cited Strickland, 466 U.S. 668,
the Supreme Court’s seminal case on the right to effective assistance of counsel stemming from
the Sixth Amendment to the U.S. Constitution. (See Rule 3.850 Mot. 69, 76). Thus, there is no

question whether Petitioner fairly presented his federal ineffective-assistance-of-counsel claims to
the trial court.
“In Florida, exhaustion usually requires not only the filing of a Fla. R. Crim. P. 3.850
motion, but an appeal from its denial.” Nieves v. Sec’y, Fla. Dep’t of Corr., 770 F. App’x 520,
521 (11th Cir. 2019) (alteration adopted; quotation marks and citation omitted). Petitioner
appealed the denial of his Rule 3.850 Motion. Nonetheless, Respondent insists Claims 2 through
6 are unexhausted because Petitioner only raised Florida procedural law, and not any federal law,
on appeal of his Rule 3.850 Motion. (See Resp. 13–15). The Court disagrees.
The facts of Nieves are analogous to those presented here and support a finding of non-
waiver. See 770 F. App’x 520. In Nieves, the petitioner claimed in his Rule 3.850 motion that his
trial counsel was ineffective for failing to request a hearing on his stand-your-ground motion. See
id. at 522. On appeal, the petitioner characterized the trial court’s denial as “the state court’s error

in failing to order an evidentiary hearing on his counsel’s ineffectiveness[.]” Id. (alteration added).
The petitioner then raised the same ineffective-assistance-of-counsel claim in his section 2254
petition. See id. The district court dismissed the claim as unexhausted and procedurally defaulted.
See id. The Eleventh Circuit vacated and remanded, concluding “the same constitutional claim
was fairly presented and exhausted in state court[,]” affording the “state trial and appellate courts
. . . a meaningful opportunity to consider [the petitioner’s] allegations of error.” Id. (alterations
added).
Here, following the trial court’s denial of the ineffective-assistance-of-counsel claims
raised in his Rule 3.850 Motion, Petitioner appealed the decision to the Fourth DCA. (See Resp.
4–5). Raising the exact same argument as in Nieves, Petitioner stated it was error for the trial court

to summarily deny each of the claims he raised in his Rule 3.850 Motion without an evidentiary
hearing. (Compare Appellant’s Post-conviction Br. 183 (“The sole point on appeal in this case is
that the lower tribunal erred when it summarily denied the Appellant’s [Rule 3.850 Motion]
without an evidentiary hearing[.]” (alterations added))), with Nieves, 770 F. App’x at 522 (“Nieves
characterized this claim on appeal from the state court’s denial of his Rule 3.850 post-conviction
motion . . . as the state court’s error in failing to order an evidentiary hearing on his counsel’s
ineffectiveness[.]” (alterations added; citation omitted)). Like in Nieves, Petitioner’s ineffective-
assistance-of-counsel claims were fairly presented and exhausted in state court. See 770 F. App’x
at 522.
In his Reply, Petitioner attempts to recast Claims 2 through 6 as “federal due process” and
“equal protection” claims. (Reply 7 (capitalization omitted)). According to Petitioner, his
present federal habeas claim[s] in Ground 2, 3, 4, 5 and 6 complain[] that the State
trial court’s decision not to hold a hearing and rely on the state prosecutor’s
response without making a specific finding or attaching record documents to its
order [denying] Petitioner’s [Rule 3.850 Motion] was a denial of federal due
process and a denial of the equal protection of the law, which led to a manifest
injustice and a[n] unreasonable determination of the facts without conducting a[n]
evidentiary hearing.

(Id. (alterations added; capitalization omitted)).
Petitioner did not label or argue Claims 2 through 6 as federal due process or equal
protection claims in his Petition. (See Pet. 7–12). Instead, he argued “the trial court’s decision to
deny post-conviction relief without an evidentiary hearing was based on an unreasonable
determination of the facts in light of the evidence o[f] [his] claim of ineffective assistance of trial
counsel [and] was contrary to United States Supreme Court precedent.” (Id. 7–8, 10–12 (alterations
added; capitalization omitted)). In other words, Petitioner simply challenged the state court’s
rejection of his ineffective-assistance-of-counsel claims. The Court is “not obligated to consider
[the] new argument[s] raised in [Petitioner’s] [R]eply.” Greenwood v. Sec’y, Dep’t of Corr., 794
F. App’x 831, 835 (11th Cir. 2019) (alterations added; citation and footnote call number omitted).
Moreover, there is no indication in Petitioner’s Post-conviction Brief that he was bringing
any federal due process or equal protection claim. (See generally Post-conviction Br.). Petitioner
argued that under a Florida Supreme Court case interpreting Florida law, the trial court had to
“either state its rationale in its decision or attach those specific parts of the record that refute each
claim presented in the motion.” (Post-conviction Br. 183 (quotation marks omitted; quoting
Anderson v. State, 627 So. 2d 1170, 1171 (Fla. 1993)). According to Petitioner, the trial court
erred by incorporating the State’s response brief in its Order Denying Defendant’s Motion for
Post-conviction Relief (see App. 3, Ex. 14 [ECF No. 9-3] 171). (Post-conviction Br. 183).
Again, throughout Petitioner’s Post-conviction Brief, Petitioner cited only Florida case law
and Florida procedural rules — except for one paragraph where he cited Strickland, 466 U.S. at
694, to support one of his ineffective-assistance-of-counsel claims. (See Post-conviction Br. 185).

At no point did Petitioner even use the words “due process” or “equal protection” in his Brief, let
alone the word “federal” in conjunction. (See generally id.). Clearly, he was not bringing such
claims. These claims thus are unexhausted and procedurally barred, see Ivy, 543 F. App’x at 927–
28, “mandat[ing] dismissal.” Bailey, 172 F.3d at 1303 (alteration added; citations omitted).
In any event, Petitioner’s due process and equal protection claims are meritless. Petitioner
said it himself: “The [Florida] rules of criminal and appellate procedure do not preclude a court
from incorporating a response from the State if the State has provided the necessary record
documents.” (Post-conviction Brief 186 (alteration added; citing Langdon v. State, 947 So. 2d
460, 461 (Fla. 3rd DCA 2006); Burnett v. State, 933 So. 2d 1282 (Fla. 2nd DCA 2006))). And as
Petitioner admitted, the State’s response was “replete with references to the record.” (Id. 187).

Petitioner nonetheless argued the trial court erred by “fail[ing] to append any record attachments
to its order.” (Id. 187 (alteration added)).
The argument in the Reply boils down to this: Petitioner’s federal due process and equal
protection rights were violated because he had to cross-reference the State’s record cites with the
record. (See id.). Put simply, this is not a harm that is redressable under the Fifth or Fourteenth
Amendments. Cf. United States v. Hinton, 268 F. Supp. 728, 731 (E.D. La. 1967) (“It must be a
rare case indeed, however, in which mere inconvenience to the defendant will prevent a fair and
just trial.”). If anything, this is purely a question of state procedural law. Petitioner fails to
persuade otherwise. (See Reply 7–10 (failing to cite any authority supporting federal due process
or equal protection claims)).
To recap, the Court will consider the merits of Claims 2 through 6 in accordance with how
they were presented in the state courts and in the Petition: as ineffective-assistance-of-counsel
claims. Petitioner’s references to due process and equal protection, first raised in his Reply, are

rejected as procedurally barred and meritless.
B. The Merits
Remaining are the five ineffective-assistance-of-counsel claims. As stated, summary
rejection of a claim, without explanation, qualifies as an adjudication on the merits, warranting
deference under the AEDPA. See Meders, 911 F.3d at 1351 (citing Harrington, 562 U.S. at 100).
And the AEDPA permits habeas relief from a state court’s merits decision only if the decision
(1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States;” or (2) “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). Because the Fourth DCA per curiam affirmed the trial court’s denial of Claims

2 through 6, see Delgado-Ros, 325 So. 3d 860, and there is no indication the court based its
decision on procedural grounds, the Court will examine each claim with AEDPA deference.
As an initial matter, it is worth noting Petitioner’s conviction rested upon compelling
evidence including the victim’s testimony, DNA matches, and a confession. (See App. 1, Ex. 13,
State’s Resp. to Def.’s Mot. Post-conviction Relief [ECF No. 9-1] 81–84). As discussed below,
Petitioner confessed to taking a taxicab to a friend’s house; the friend owed him money; and once
there, Petitioner attacked the friend’s wife and raped her at knifepoint. (See App. 3, Ex. 24, Def.’s
Interview [ECF No. 9-3] 239–248). The victim testified that after Petitioner was arrested and his
photograph was published on the news, she recognized him as her husband’s friend. (See Trial Tr.
521:16–522:8). And the police matched Petitioner’s DNA with the foreign DNA found on the
victim. (See id. 576:13–18).
Taken together, Petitioner is hard-pressed in arguing he was prejudiced by any of his
counsel’s supposed missteps; thus, each ineffective-assistance-of-counsel claim could fail on

Strickland’s prejudice prong. See Strickland, 466 U.S. at 691–92. For this reason alone, the state
court’s denial of each claim was not unreasonable. See id. at 697; 28 U.S.C. § 2254(d).
Nonetheless, the Court examines each claim individually.
1. Claim 2
Petitioner argues his trial counsel had a duty to move the court to dismiss the charges
brought against him based on “speedy trial violations” while he was incarcerated in a Guatemalan
jail. (Pet. 7 (capitalization omitted); see also id. 11). This claim fails because, in Florida, the
speedy trial clock does not begin to run until after a defendant is arrested and within the State’s
jurisdiction. See Fla. R. Crim. P. 3.191(e).
In this regard, Florida Rule of Criminal Procedure 3.191, titled “Speedy Trial[,]” provides:
A person who is . . . incarcerated in a jail or correctional institution outside the
jurisdiction of this state or a subdivision thereof, and who is charged with a crime
by indictment or information issued or filed under the laws of this state, is not
entitled to the benefit of this rule until that person returns or is returned to the
jurisdiction of the court within which the Florida charge is pending and until written
notice of the person’s return is filed with the court and served on the prosecutor.

Id. 3.191(e) (alteration added).
The state court’s denial of Claim 2 was not unreasonable because the claim is meritless
under the plain language of the Rule. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.
1994) (“[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute
ineffective assistance.” (alteration added; citation omitted)); 28 U.S.C. § 2254(d).
2. Claim 3
Petitioner contends his trial counsel should have argued the wrong DNA evidence was
presented at trial. (See Pet. 8). A review of the record reveals this argument is meritless.
Detective Lori Gunn extracted Petitioner’s DNA at the Palm Beach County Sheriff’s office.
(See Trial Tr. 573:16–20, 577:9–20). At trial, she testified about the process she engaged in when

she extracted Petitioner’s DNA. (See id. 577:16–578:17, 582:1–25). The prosecutor presented
Detective Gunn with an envelope containing DNA evidence. (See id. 579:4–10). Detective Gunn
identified this envelope as containing Petitioner’s DNA, testifying that she sealed and packaged
the envelope, it was her handwriting on the envelope, and the envelope was in the same or similar
condition as when she packaged it. (See id. 579:13–580:9). The prosecutor then moved to admit
the envelope into evidence, but defense counsel requested a sidebar. (See id. 580:10–13).
At the side bar, defense counsel informed the court “that there [was] a victim[’s] name on
the envelope that [did] not match the victim in this case” and the parties “agreed to
redact . . . everything including the word victim.” (Id. 580:20–23 (alterations added)). The court
then admitted the envelope without any objection. (See id. 581:10–16).

Petitioner’s contention that “the wrong DNA” was presented is speculation considering
Detective Gunn properly identified the envelope as the one she prepared when she extracted
Petitioner’s DNA. (Pet. 8 (capitalization omitted)). Consequently, the state court’s denial of
Claim 3 was not unreasonable. See 28 U.S.C. § 2254(d).
3. Claim 4
Petitioner maintains his trial counsel should have subpoenaed a potential witness that
Petitioner identified as the taxi driver who drove him to the victim’s home. (See Pet. 10). While
this argument is not expanded upon in the Petition, Petitioner did develop this argument in his
Rule 3.850 Motion. He posited that the taxi driver “would have [provided] exculpatory evidence
regarding [Petitioner], his demeanor, his clothing, his destination and why.” (Rule 3.850 Mot. 73
(alterations added)). Further, he averred the taxi driver would have testified that Petitioner
“proffered his ride was to collect a debt.” (Id.).
“[C]omplaints of uncalled witnesses are not favored, because the presentation of

testimonial evidence is a matter of trial strategy and because allegations of what a witness would
have testified are largely speculative.” Buckelew v. Unites States, 575 F.2d 515, 521 (5th Cir.
1978) (alteration added; citations omitted). Consequently, “[the] prejudice burden is heavy where
the petitioner alleges ineffective assistance in failing to call a witness[.]” Sullivan v. DeLoach,
459 F.3d 1097, 1109 (11th Cir. 2006) (alterations added; citation and footnote call number
omitted).
Courts have held that an affidavit or sworn testimony is required to overcome this heavy
burden. See, e.g., Jenkins v. Sec’y, Dep’t of Corr., No. 8:18-cv-1643, 2021 WL 3550881 (M.D.
Fla. Aug. 11, 2021) (citing United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence
about the testimony of a putative witness must generally be presented in the form of actual

testimony by the witness or on affidavit.” (alteration added; footnote call number omitted))). No
such affidavit or sworn testimony has been presented here to bolster Petitioner’s claim.
What’s more, Petitioner’s speculation actually undermines his position, as he states the taxi
driver would have corroborated the confession he gave the police. Petitioner confessed he took a
taxicab to his friend’s house to collect a debt regarding drugs that had been stolen from him, and
when he discovered his friend was not home, he raped his friend’s wife instead. (See Def.’s
Interview 239–41). Petitioner insists the taxi driver could have provided exculpatory evidence,
including that Petitioner “proffered his ride was to collect a debt.” (Rule 3.850 Mot. 73). But —
unless the Court is missing something — this testimony would be completely consistent with what
Petitioner told the police. It is entirely unclear, then, how the taxi driver’s testimony would
exculpate Petitioner of anything, rather than provide more evidence to the contrary.
Given that Petitioner has failed to provide any indication he was prejudiced by his
counsel’s failure to subpoena the taxi driver, the state court’s denial of Claim 4 was not

unreasonable. See 28 U.S.C. § 2254(d).
4. Claim 5
Petitioner asserts his trial counsel should have asserted his speedy trial rights were violated
when he spent 23 months in a Guatemalan jail awaiting extradition and then spent another three
years in Florida county jail before his trial commenced. (See Pet. 11). As stated, under Florida
law, Petitioner’s speedy trial rights did not begin to run until he was brought within the State’s
jurisdiction. See Fla. R. Crim. P. 3.191(e). The period in question then is the three years Petitioner
spent in Florida county jail before his trial commenced.
Defense counsel filed a Waiver of Speedy Trial (see App. 3, Ex. 22 [ECF No. 9-3] 214),
stating:
While I know and understand that my client has a procedural right to be tried within
the time parameters set forth by Rule 3.191 of the Florida Rules of Criminal
Procedure, and Rule 6.325 of the Florida Rules of the Florida Rules of Traffic
Court[], I have determined after thoughtful and careful deliberation, that it is in my
client’s best interest to waive those rights and consent to the setting of future court
hearings, including trial, beyond the time limitations set forth in the aforementioned
Rules of Criminal Procedure and Traffic Court.

(Id. (alteration added)).
A criminal defense attorney “may waive speedy trial without consulting the client and even
against the client’s wishes.” McKenzie v. State, 153 So. 3d 867, 875 (Fla. 2014) (citations omitted);
see also New York v. Hill, 528 U.S. 110, 115 (2000). “Thus, if the right to speedy trial may be
waived without consulting the defendant, counsels’ waiver here cannot be considered an error, let
alone one that is ‘so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.’” McKenzie, 153 So. 3d at 875 (quoting Strickland, 466 U.S.
at 687); see also Young v. Sec’y, Dep’t of Corr., No. 8:14-cv-2544, 2018 WL 1183362, at *3 (M.D.
Fla. Mar. 7, 2018) (“The state court correctly determined that Young was bound by his counsel’s
waiver of speedy trial, a decision that is left to the discretion of trial counsel.”).

Because defense counsel had the discretion to waive Petitioner’s speedy trial rights, the
state court’s rejection of Claim 5 was not unreasonable. See 28 U.S.C. § 2254(d).
5. Claim 6
Petitioner claims his trial counsel should have moved to suppress his confession. (See Pet.
12). According to Petitioner, he confessed because “under Guatemalan law[,] confessing to a
crime whether you [are] guilty or not would most assuredly guarantee the accused consideration
in the mitigation of the crime[.]” (Id. 12 (alterations added)). Petitioner “align[s] this issue with
the “Alf[ord] doctrine.”8 (Id. (alterations added)).
Put simply, Petitioner’s suppression argument is meritless under the Miranda doctrine.9
The transcript of Petitioner’s interview reveals the police advised him of his Miranda rights, and
he waived them. (See Def.’s Interview 228–29). Petitioner does not argue otherwise.

To admit a defendant’s inculpatory statement at trial, the prosecution must prove by a
preponderance of the evidence that the defendant “knowingly and voluntarily waived his Miranda
rights.” United States v. Lewis, No. 11-20745, 2012 WL 6569373, at *3 (S.D. Fla. Dec. 17, 2012)
(citing Lego v. Twomey, 404 U.S. 477, 89 (1972)). Petitioner does not maintain he unknowingly

8 “An Alford plea is a guilty plea where the defendant maintains a claim of innocence to the underlying
criminal conduct charged but admits that sufficient evidence exists to convict him of the offense.” United
States v. Ramirez-Gonzalez, 755 F.3d 1267, 1273 (11th Cir. 2014) (citing North Carolina v. Alford, 400
U.S. 25, 37–38 (1970)).

9 Miranda v. Arizona, 384 U.S. 436 (1966).
or involuntarily waived his Miranda rights. (See Pet. 12). He instead contends he only confessed
because he believed doing so would mitigate his punishment, and this belief came from his
personal understanding of his home-country’s law. (See id.). Petitioner’s belief did not stem from
police coercion, the underpinning of the Miranda doctrine. See Nash v. Estelle, 597 F.2d 513, 534

n.9 (5th Cir. 1979) (Godbold, J., concurring) (“The underpinning of Miranda is the essentially
coercive nature of in-custody interrogation.”).10
Defense counsel was not ineffective by failing to bring a meritless motion to suppress;
therefore, the state court’s denial of Claim 6 was not unreasonable. See Bolender, 16 F.3d at 1573;
28 U.S.C. § 2254(d).
C. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a
federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011) (citation omitted). “[I]f the record refutes the applicant’s factual allegations or
otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (alteration added). Here, the pertinent facts of
the case are fully developed in the record. Because the Court can “adequately assess [Petitioner’s]
claim[s] without further factual development[,]” Petitioner is not entitled to an evidentiary
hearing. Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003) (alterations added).
D. Certificate of Appealability
A prisoner seeking to appeal a district court’s final order denying his petition for a writ of
habeas corpus has no absolute entitlement to appeal and must obtain a certificate of appealability.

10 It appears Petitioner confessed at least in part because he felt remorseful. For example, he stated: “I don’t
feel happy about what I’ve done because basically, I retaliated against the wrong people. I shouldn’t — I
shouldn’t have done it.” (Def.’s Interview 248).
CASE NO. 21-82118-CIV-ALTONAGA

See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). A certificate of
appealability shall issue only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2)._ Where a district court has rejected a petitioner’s
constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Upon consideration of the record, the Court concludes there
is no basis to issue a certificate of appealability.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1. The Petition Under 28 U.S.C. [Section] 2254 for a Writ of Habeas Corpus by a
Person in State Custody [ECF No. 1] is DENIED.
2. A certificate of appealability is DENIED.
3. A judgment shall issue by separate order. The Clerk of Court is directed to CLOSE
this case.
DONE AND ORDERED in Miami, Florida, this 21st day of March, 2022.

Co ats W. AE
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc: counsel of record;
Petitioner, pro se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120306. Public record. Not legal advice.