Gustave v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-61191-BLOOM

EMMANUEL GUSTAVE,

Petitioner,

v.

FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

THIS CAUSE is before the Court upon Emmanuel Gustave’s (“Gustave” or “Petitioner”)

Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No. [1] (“Petition”), filed on

June 3, 2021.1 Gustave challenges the constitutionality of his convictions and sentences in Broward

County Case No. 2013-004472-CF-A. See generally id. Respondent Florida Department of

Corrections (“Respondent”) filed a Response to Order to Show Cause, ECF No. [11]

(“Response”), and an Appendix to the Response, ECF No. [12], with attached exhibits, ECF No.

[12-1]. Respondent also filed a Notice of Filing Transcripts, ECF No. [13], with attached

transcripts, ECF Nos. [13-1], [13-2], and [13-3]. Gustave thereafter filed a Reply, ECF No. [16]

(“Reply”). The Court has carefully considered the Petition, all supporting and opposing

submissions, the record in this case, the applicable law, and is otherwise fully advised. For the

reasons set forth below, the Petition is denied.

1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is delivered

to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009).

I. BACKGROUND

On April 9, 2013, an Information was filed in Amended Case No. 13-4472-CF-10A in the

Seventeenth Judicial Circuit for Broward County, charging Gustave with committing sexual

battery while standing in a position of familial or custodial authority, on or between May 1, 2008

and April 29, 2012, and impregnating a child, on or between May 1, 2008 and August 31, 2008.

ECF No. [12-1] at 2. He pleaded not guilty and went to trial on the charges. ECF No. [13-1] at 18.

Evidence Presented at Trial.

The victim, A.F., testified that even though Gustave was not her biological father, he was

her stepfather from the age of two and she called him “daddy.” Id. at 42-43, 48. A.F. testified that

when she was seven years old, Gustave began engaging in sexual activities with her that included

kissing, touching, and oral sex. Id. at 45. A.F. testified that Gustave began having sexual

intercourse with her at night—when her siblings were asleep and her mother was working—when

she was eleven years old. Id. at 49-51. She testified that Gustave had sex with her “very often”

while she was in middle school, continuing almost every day until a day or two before she reported

the abuse at age sixteen. Id. at 52, 71, 80-82, 85.

A.F. testified that when she was twelve years old, she became pregnant with Gustave’s son.

Id. at 55-56, 123. She testified that out of fear, she made up lies about the father’s identity. Id. at

57-58, 124. She also explained that Gustave tried to get her an abortion but was unable to do so

without her mother’s involvement. Id. at 56. Because Gustave would not tell A.F.’s mother about

the pregnancy, she kept the child and gave birth when she was thirteen and in the eighth grade. Id.

at 58-59. She testified that Gustave continued to have sexual intercourse with her after the child

was born resulting in three additional pregnancies; however, Gustave gave her pills to terminate

the pregnancies. Id. at 72-73.

While on a school field trip at age sixteen, A.F. was overheard by a school counselor

confiding in her best friend, Cynthia Joseph, that Gustave abused her and was the father of her

child. Id. at 59-60, 73. The counselor, Rose Hall, confronted A.F. about the disclosure and notified

the police. Id. at 63. In speaking to the counselor and police, A.F. initially denied her statements

but later admitted the abuse. Id. at 62-63, 233-34. She also stated that Gustave would sometimes

send her pictures of his penis and ask her to send him naked pictures of herself. Id. at 91-93. A.F.’s

testimony was corroborated by Cynthia Joseph and Rose Hall who, over defense objection, was

found to be an expert in child sexual abuse disclosure. Id. at 110-111, 157-159.

After learning of the abuse, A.F.’s mother testified that she confronted Gustave who stated

that A.F. “came on to him” Id. at 127. She later confronted him in a controlled phone call arranged

by law enforcement. The call was played for the jury. Id. at 262-76. In it, Gustave did not admit

his guilt, but instead stated that everything would come out when the DNA results came back. Id.

A.F.’s mother further testified to receiving a note offering helpful information from

Gustave’s former employer, John Longo. Id. at 132-33. Longo later told the police that Gustave

had confided in him and admitted to the sexual abuse of his stepdaughter. Id. at 193-195, 211.

Longo testified that Gustave offered to show explicit pictures of A.F. and mentioned fleeing to

Haiti to escape charges. Id. at 195-198, 211. Longo cooperated with police, and Gustave was

arrested on June 8, 2012, while picking up his paycheck. Id. at 199, 280, 292.

Detective Michael Anthony Vadnal from the Broward Sheriff’s Office (“BSO”) Special

Victim’s Unit took DNA swabs from A.F., her child, and Gustave. Id. at 254, 256. Those swabs

were analyzed by Paula Bolivar from the BSO crime lab. Bolivar was received by the trial court

as an expert in the field of forensic DNA analysis. Id. at 302-13. After testing the DNA samples

from Gustave, A.F., and A.F.’s child, Gustave could not be excluded as the possible biological

father of A.F.’s child Id. at 317-24, 369-70. Out of fifteen different markers that were tested,

Gustave was consistent with all fifteen, as well as the sex determining marker. Id. at 324-36.

Bolivar confirmed that the FBI has set thirteen core markers for purposes of DNA comparison in

its FBI CODIS database. Id. at 325. The case was referred to Dr. Martin Tracey, a geneticist, to

determine the probability of paternity. Id. at 327, 370.

Dr. Tracey was received as an expert in DNA analysis and paternity statistics and testified

that the probability that Gustave was the biological father of A.F.’s child was 99.9999 percent Id.

at 392-93, 404, 406-07. Alternatively, this meant that the probability of reaching into the general

population of sexually mature males and finding another man with fifteen genes that matched was

less than one in 130 million. Id. at 406-07, 410.

Gustave testified in his defense. He stated that he treated A.F. as his daughter and had

known her since she was two years old. Id. at 422-25. He denied having vaginal intercourse with

A.F. and denied that her child was his, claiming she made it up to get him out of the house so she

could have more freedom. Id. at 431-32, 460. He denied making any type of admission of guilt to

his wife or former employer. Id. at 432, 434-35. In sum, Gustave denied any sexually inappropriate

contact with A.F. and claimed “everybody [was] lying.” Id. at 445-46, 454, 467

Remaining Procedural History.

The jury found Gustave guilty of Count I as charged in the Information and found that

“[t]he Defendant’s penis did penetrate the vagina of A.F.” ECF No. [12-1] at 2-7. The jury found

Petitioner guilty of Count II, as charged in the Information. Id.

On Count I, the court sentenced Gustave to twenty-five years in prison, followed by

twenty-four months of community control, followed by thirty-six months of sex offender

probation. ECF No. [12-1] at 15-24, 28-35. On Count II, the court sentenced him to five years

prison, to run consecutive to Count I. ECF No. [12-1] at 15-24.

On August 16, 2016, the Fourth District Court of Appeal per curiam affirmed Petitioner’s

conviction and sentence. ECF No. [12-1] at 98.

On December 13, 2016, Gustave filed a pro se Motion for Postconviction Relief. ECF No.

[12-1] at 102-25. The State responded and Gustave replied. ECF No. [12-1] at 127-60. The court

entered an order denying Gustave’s Motion for Postconviction Relief, adopting the reasoning in

the State’s response. ECF No. [12-1] at 162-63. Gustave filed a Motion for Rehearing as well as a

Notice of Appeal of the trial court’s order denying his Motion for Postconviction Relief. ECF No.

[12-1] at 162-72. The court denied the Motion for Rehearing and the Fourth District Court of

Appeal per curiam affirmed. ECF No. [12-1] at 176-179, 294.

On June 3, 2021, Gustave filed the instant Petition. ECF No. [1]. He asserts two claims of

ineffective assistance of counsel. Id. at 4-5.

II. LEGAL STANDARD

Deference Under § 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 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) (quotation marks omitted). This standard is “difficult to meet.” White v. Woodall,

572 U.S. 415, 419 (2014) (quotation marks omitted).

According to AEDPA, 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. 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. Consequently, “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011) (quotation marks omitted). 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). If the state court’s merits determination is unaccompanied by an

explanation, federal courts 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, 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).

Moreover, 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

may deny petitions for writs of habeas corpus under § 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 following de novo review); Connor v. GDCP Warden, 784 F.3d 752,

767 (11th Cir. 2015).

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) (quotation marks and footnote omitted). Deferential review under § 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).

Ineffective Assistance of Counsel.

The Sixth Amendment to the United States Constitution guarantees criminal defendants

the right to assistance of counsel during criminal proceedings. 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, 20 (2013). “Where the highly deferential standards

mandated by Strickland and 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)

(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also

Harrington, 562 U.S. at 104.

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-

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) (footnote 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); nor is counsel required to present every

non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).

Regarding the prejudice component, “[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. “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).

III. DISCUSSION

A. Timeliness and Exhaustion/Procedural Default

The parties agree that the Petition is timely filed. ECF Nos. [1] at 9, [11] at 3. They also

agree that both grounds were exhausted. ECF Nos. [1] at 5, 6, [11] at 4, 5. Having reviewed the

record in full, the Court finds that the Petition was timely filed and both grounds were exhausted.

The parties dispute the merits of Gustave’s ineffective assistance of counsel (“IAC”) claims

in Grounds One and Two of the Petition.

B. IAC Ground One

Gustave asserts ineffective assistance in trial counsel’s failure to obtain an independent

DNA test regarding the paternity of A.F.’s child. ECF No. [1] at 4. He asserts that an independent

DNA test would have refuted the DNA results presented by the State at trial and exonerated him.

Id. He also alleges that issues with the lab and a failure to comply with procedures compromised

the DNA results in his case. Id. The same issues were raised in Ground One of Gustave’s Motion

for Postconviction Relief, ECF No. [12-1] at 112-15. The State responded to this Motion, ECF No.

[12-1] at 127-49, Gustave replied, ECF No. [12-1] at 151-60, and the court denied—adopting and

incorporating the reasoning set forth in the State’s response and exhibits. ECF No. [12-1] at 162-

63.

Having reviewed the record in full, the Court finds nothing unreasonable with the trial

court’s rejection of IAC Ground One. Wilson, 138 S. Ct. at 1192 (requiring a federal court sitting

in habeas to defer to “reasonable” reasons given by the state court in rejecting a claim for relief).

Gustave asserts that an independent DNA test would have exonerated him. His assertion is purely

speculative. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague,

conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim

and do not warrant an evidentiary hearing).

Moreover, had a defense expert made the same findings as the State’s experts, it would

have been devastating to Gustave’s case. His speculation about what an expert might have opined

is not a basis for relief. See Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978) (noting

that complaints of uncalled witnesses, in support of claims of ineffective assistance of counsel, 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).

The Court agrees with the postconviction court that Gustave’s counsel made reasonable

strategic choices based on an informed understanding of the law and facts of the case. See

Strickland, 466 U.S. at 690-91. Gustave also fails to show that “the result of the proceedings would

have been different” had trial counsel obtained an independent DNA test. Accordingly, this claim

is denied under both the “prejudice” and “deficient performance” prongs of Strickland. 466 U.S.

at 687-88.

C. IAC Ground Two

Gustave alleges ineffective assistance in trial counsel’s failure “to obtain and call as a

witness a forensic DNA expert on DNA analysis to rebut the DNA testimony and establish Mr.

Gustave’s actual innocence of the crime.” ECF No. [1] at 5. He asserts that if an independent

witness had been called, he would have been able “to question the validity of Ms. Bolivar’s test

results based on using defective or expired outdated buccal swabs, and impeached her testimony.”

ECF No. [1] at 5. Again, the Court finds the postconviction court’s rejection of this claim well-

reasoned and supported by the record. Wilson, 138 S. Ct. at 1192.

The Court adopts the reasoning provided in the prior section and finds that Gustave’s

claims regarding the testimony of a DNA expert witness are speculative and conclusory. Therefore,

he fails to satisfy the “prejudice” prong of Strickland. The Court also notes that Gustave’s counsel

challenged the DNA evidence in pretrial motions and argued the issue concerning the expired

buccal swabs in closing at trial. ECF No. [13-1] at 507-11. The Court therefore finds an absence

of “deficient performance” under Strickland.

The Court also notes that, post-trial, the State provided a published article based on a

controlled study finding that buccal swabs can be used regardless of the printed expiration date,

provided the package is intact. ECF No. [12-1] at 251-53. Moreover, a second paternity test,

conducted for dependency court, confirmed the DNA results in the criminal case. ECF No. [12-1]

at 127-49. Those post-trial developments lend additional support to the already overwhelming

evidence of Gustave’s guilt at trial. However, the Court does not factor these post-trial

developments into its decision in this Petition.

Because Gustave’s claims concerning the testimony of a DNA expert witness are wholly

speculative and conclusory, he is not entitled to relief. The postconviction court reasonably

rejected this claim due to Gustave’s failure to establish prejudice from the allegedly deficient

performance. ECF No. [12-1], 162-63. Accordingly, this claim is denied under both the

“prejudice” and “deficient performance” prongs of Strickland. 466 U.S. at 687-88.

IV. EVIDENTIARY HEARING

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for an

evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir.

2011). “[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); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th

Cir. 2016). Here, the issues presented can be resolved based on the record before the Court.

Because the Court can “adequately assess [Gustave’s] claim[s] without further factual

development[,]” Gustave is not entitled to an evidentiary hearing. Turner v. Crosby, 339 F.3d

1247, 1275 (11th Cir. 2003).

V. CERTIFICATE OF APPEALABILITY

A prisoner seeking to appeal a district court’s final order denying his or her petition for

writ of habeas corpus has no absolute entitlement to appeal; rather, in order to do so, he must obtain

a certificate of appealability. See 28 U.S.C. § 2253(c)(1); see also Harbison v. Bell, 556 U.S. 180,

183 (2009). This Court should issue a certificate of appealability only if Gustave makes “a

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

district court rejects 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). Where the district

court rejects a petitioner’s claims on procedural grounds, the petitioner must additionally show

that “jurists of reason” would find the district court’s procedural ruling “debatable.” Id.

Upon consideration of the record, the Court denies a certificate of appealability on all

grounds.

VI. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Petitioner Emmanuel Gustave’s Petition for a Writ of Habeas Corpus under 28

U.S.C. § 2254, ECF No. [1], is DENIED.

2. A certificate of appealability is DENIED.

Case No. 21-cv-61191-BLOOM

3. To the extent not otherwise disposed of, any pending motions are DENIED AS

MOOT and all deadlines are TERMINATED.

4. The Clerk of Court is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on September 14, 2022.

BETHBLOOM i (aststsi—‘CsS

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Emmanuel Gustave

143242

South Bay Correctional Facility

Inmate Mail/Parcels

600 U S Highway 27 South

South Bay, FL 33493-2233

PRO SE

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