# Reyes v. Florida Department of Corrections

> District Court, S.D. Florida · April 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10121871

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121871

## How later opinions describe it (automated extraction)

- stating that the deference afforded to Strickland claims when viewed under the AEDPA lens is “doubly difficult for a petitioner to overcome”

## Opinion text

SUONUITTEHDE RSTNA DTIESTS RDIICSTTR OIFC TF LCOORUIRDTA

CASE NO. 22-CV-60567-RAR/Strauss

FRANK REYES,

Petitioner,

v.

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.
_________________________________________/

ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION AND
DENYING PETITION FOR WRIT OF HABEAS CORPUS

THIS CAUSE comes before the Court upon United States Magistrate Judge Jared
Strauss’s Report and Recommendation (“Report”), [ECF No. 13], filed on April 11, 2023. The
Report recommends that the Court deny the Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus (“Petition”), [ECF No. 1], filed by Petitioner, Frank Reyes, on March 17, 2022. See Report
at 1, 42. The Report properly notified Petitioner of his right to object to Magistrate Judge Strauss’s
findings. Id. at 42. Petitioner timely filed objections to the Report (“Objections”), [ECF No. 14],
on April 21, 2023. The Court having carefully reviewed the Report, the Objections, and the record,
and being otherwise fully advised, it is hereby
ORDERED AND ADJUDGED that the Report, [ECF No. 13], is AFFIRMED AND
ADOPTED as explained herein.
LEGAL STANDARD
This Court reviews de novo the determination of any disputed portions of the Magistrate
Judge’s Report. United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). Any portions of
the Report to which no specific objection is made are reviewed only for clear error. Macort v.
Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A proper objection “identifie[s] specific
findings set forth in the [Report] and articulate[s] a legal ground for objection.” Leatherwood v.
Anna’s Linens Co., 384 F. App’x 853, 857 (11th Cir. 2010) (alterations and emphasis added;
citations omitted).
ANALYSIS
Upon due consideration of the record, including Judge Strauss’s Report and Petitioner’s
Objections thereto, the Court overrules the Objections and adopts the Report. In his Petition, Reyes
seeks relief based on three grounds: (1) trial counsel provided ineffective assistance of counsel by
failing to object to the jury instructions on self-defense and the duty to retreat (“Ground 1”); (2) a
juror failed to disclose that he was a victim of a violent crime which either constituted new

evidence that entitled Petitioner to a new trial or that his trial counsel rendered ineffective
assistance by failing to properly question the juror (“Ground 2”); and (3) Petitioner’s sentence of
40 years in prison is illegal because juvenile sentencing laws enacted after his conviction make his
sentence grossly disproportionate to those of other juvenile homicide offenders, in violation of the
Eighth Amendment (“Ground 3”). The Report recommends this Court deny the Petition on all
three grounds. Petitioner objects to the Report’s analysis on each of these three grounds. A careful
review of the Report and underlying record clearly indicates that Magistrate Judge Strauss properly
analyzed the relevant law in this case while giving due deference to the state court as mandated by
AEDPA.

The Objections do not take issue with the Report’s legal standard analysis as to the
deference owed to state courts under AEDEPA, Rep. at 16–22, nor the Report’s timeliness
analysis, Rep. at 8–10. Upon review for plain error, the Court finds none and adopts these sections
of the Report. Since the Objections address each of the initial three grounds upon which the
Petition relies, the Court addresses each in turn.
A. Ground 1
Reviewing the Ground 1 Objections de novo, the Court agrees with the Report and denies
the Petition as to Ground 1. Ground 1 involves trial counsel’s failure to object to certain jury
instructions given at the end of Petitioner’s trial. Rep. at 22. Namely, Petitioner argued at trial
that his shooting of the victim was in self-defense. Id. The jury was instructed, as agreed to by
the state and defense counsel, “deadly force is justifiable only if the defendant reasonably believes
that the force is necessary to prevent imminent death or great bodily harm to himself while resisting
[] another’s attempt to murder him….” Id. at 23. Petitioner now argues that his counsel should
have insisted that the instruction include attempts at aggravated battery and aggravated assault by
the victim as additional justification for the use of deadly force. Id. Moreover, Petitioner argues

that counsel should have objected to a separate instruction on the duty to retreat because it
incorrectly implied that Petitioner had a duty to retreat. Id. at 24, 27. The Court agrees with the
Report’s recommendation regarding both jury instructions and addresses them in turn.
To begin, Petitioner made the argument regarding the self-defense jury instruction in state
court in a Rule 3.850 Motion. The Report explains that in its response, the State contended that
Petitioner failed to establish the “deficient performance” prong under Strickland v. Washington
because there was no record evidence to support the inclusion of either aggravated battery or
aggravated assault in instruction 3.6(f) on the justifiable use of deadly force. Id. at 25 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). Because the State asserted that there was no

record evidence that the victim committed an aggravated battery as defined by Fla. Stat. § 784.045
(2009) or an aggravated assault per Fla. Stat. § 784.021, it argued that those felonies would not
have been properly included in the instructions even if trial counsel had asked for them. Id.
(quotations omitted). The state trial court summarily denied Petitioner’s Rule 3.850 Motion for
the reasons contained in the State’s Response. Id. After Petitioner appealed the trial court’s ruling
to the Fourth District Court of Appeal, the Fourth District Court of Appeal per curiam affirmed
the trial court’s decision. Id.
As the Report correctly observes, Petitioner has failed to establish that the state courts
unreasonably denied him relief. Rep. at 26 (citing Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117,
1126 (11th Cir. 2012) (stating that the deference afforded to Strickland claims when viewed under
the AEDPA lens is “doubly difficult for a petitioner to overcome”)). Here, Petitioner did not
present sufficient evidence at trial of the victim committing or attempting aggravated battery or
aggravated assault. Additionally, Petitioner did not sufficiently argue that the evidence presented
entitled him to an instruction under the state’s self-defense law. Thus, this Court must defer to the
state court’s determination because it involves the interpretation of state law. Id. (citing Pinkney

v. Sec’y, Dep’t of Corr., 876 F.3d 1290, 1295 (11th Cir. 2017) (“[A]lthough ‘the issue of
ineffective assistance—even when based on the failure of counsel to raise a state law claim—is
one of constitutional dimension,’ we ‘must defer to the state’s construction of its own law’ when
the validity of the claim that appellate counsel failed to raise turns on state law.” (citations
omitted))).
In his Objections, Petitioner argues that the deference discussed in Pinkney does not apply
here, and the Court can grant relief when the state court’s determination is an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding. Obj. at
1 (citing Walters v. Sec’y, Dep’t of Corr., 8:20-CV-474-WFJ-AAS, 2023 WL 2633340, at *15

(M.D. Fla. Mar. 24, 2023) (recognizing difference when claim is premised on misapplication of
state law or on unreasonable determination of the facts)). The Court disagrees, as Petitioner has
presented no persuasive argument that the trial evidence warranted a different jury instruction.
Having considered the arguments de novo, the Court concludes, as did the Report, that since the
trial court could not have properly given the instructions that Petitioner argues his trial counsel
should have requested—i.e., including aggravated assault and battery—the state court’s
conclusion that trial counsel’s performance was not deficient is a reasonable one to which this
Court owes deference. See Rep. at 27.
The same is true regarding Petitioner’s objection to the jury instruction regarding the duty
to retreat. As the Report correctly explains, the posture regarding this second jury instruction
differs from the first in that the Court must review this question de novo because the state court
did not address it. See id. at 28. As identified by the Report, the pertinent language in this jury
instruction stated, “[i]f the defendant was not engaged in an unlawful activity and was attacked in
any place where he had a right to be, he had no duty to retreat and had the right to stand his ground
and meet force with force, including deadly force.” Id. Petitioner argues that because he was

engaged in an unlawful activity at the time of the offense (the sale of marijuana), the instruction
given by the trial court did not apply. Id. In his Objections, Petitioner argues “[t]he question here
is not whether the model instruction was misstated, but that providing the model instruction under
the circumstances of Reyes’s case was erroneous.” Obj. at 3.
However, the Court agrees with the Report’s conclusion that Petitioner has not shown that
the failure of his trial counsel to both object and ask for a different jury instruction was prejudicial.
Petitioner has not shown a reasonable likelihood that he would have been acquitted if his trial
counsel had objected to the given standard instruction and requested the special instruction on the
duty to retreat. Rep. at 28–29. The Report found, “Petitioner’s brief does not describe any

evidence suggesting that retreating would have increased his own danger, and having reviewed the
trial transcript, I cannot find any such evidence.” Id. at 29 (internal citation omitted). Considering
the arguments de novo, the Court finds that Petitioner has failed to establish prejudice.
In addition to failing to establish prejudice, the Court agrees with the Report’s conclusion
that Petitioner has also failed to demonstrate deficient performance by counsel regarding this jury
instruction. See id. at 30. The jury instruction at issue is standard in Florida, and in Florida courts,
standard instructions are presumed to be correct. See Peters v. State, 33 So. 3d 812, 814 (Fla. 4th
DCA 2010). Considering the arguments de novo, the Court agrees with the Report that Petitioner’s
counsel did not perform deficiently by failing to object to a standard instruction that has not been
invalidated by the Florida Supreme Court. See Griffin v. State, 866 So. 2d 1, 15 (Fla. 2003).
Accordingly, Ground 1 fails regarding both jury instructions.
B. Ground 2
Second, reviewing the Objections to Ground 2 de novo, the Court agrees with the Report
and denies the Petition as to Ground 2. The first juror in the voir dire panel initially stated he had
been the victim of a crime, but no attorney followed up on that statement. Rep. at 30–31. And

when the panel was later asked if anyone on the panel had ever been a victim of a violent crime or
witness an act of violence, the juror did not respond. Id. After the trial, Petitioner learned the
juror in question was a victim of an armed robbery during which he was shot in the stomach four
years prior to the trial. Id. at 31. Petitioner now contends this was either newly discovered
evidence that entitles him to a new trial or that his counsel rendered ineffective assistance by failing
to properly question the juror. Id. The Court finds both arguments meritless.
As the Report concluded, Petitioner’s newly discovered evidence and ineffective assistance
of counsel arguments are incongruous. Id. at 33. First, Petitioner argues that neither he nor his
counsel could have known the juror was a victim of a violent crime through due diligence. Id.

But, if his counsel could not have known the juror was a victim of a violent crime, then counsel
cannot have been constitutionally ineffective for failing to further question the juror. Id. at 33–34.
The Court agrees with the Report that Petitioner did not establish that his counsel’s failure to
further question the juror amounts to an error “so serious that counsel was not functioning as
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Additionally, the Report recommends the Court find that Petitioner has failed to exhaust,
and therefore procedurally defaulted, his Sixth Amendment impartial jury claim because “nowhere
in the Petition does Petitioner mention that Ground 2 includes allegations of ineffective assistance
of counsel. Petitioner raises the issue of ineffective assistance of counsel regarding his counsel’s
failure to question [the juror] in his reply.” Rep. at 32. In his Objections, Petitioner explains that
he “clarified in the reply” that his counsel could not locate precedent in state postconviction
proceedings. But, he nevertheless referenced ineffective assistance of counsel and made implicit
reference to the right to be tried by an impartial jury due to the juror’s “failure to disclose
information that would have resulted in his removal from the jury.” Obj. at 5.
The Court agrees with the Report that “arguments raised for the first time in a reply brief

are deemed waived.” Rep. at 32 (citing United States v. Coy, 19 F.3d 629, 632 (11th Cir. 1994)).
Additionally, Petitioner’s references to ineffective assistance of counsel in his reply are “bald and
conclusory” and therefore insufficient, even if the Court were to consider arguments first raised in
reply. Id. (citing Univ. of Alabama Bd. of Trustees v. New Life Art, Inc., 683 F.3d 1266, 1280 n.7
(11th Cir. 2012)). Accordingly, after considering the arguments de novo, the Court adopts the
Report’s well-reasoned analysis on Ground 2.
C. Ground 3
Upon de novo review, the Court agrees with the Report and denies the Petition as to Ground
3. Petitioner’s third ground for seeking habeas relief argues that his sentence was illegal because

juvenile sentencing laws enacted after his conviction make his sentence “grossly disproportionate”
to other juvenile offenders. Rep. at 34. In his Objections, Petitioner “relies on the arguments as
presented in the reply” and cites one additional case as a point of comparison: Kitchen v. Whitmer,
No. 18-11430, 2022 WL 2898633 (E.D. Mich. July 21, 2022). Obj. at 5. In Kitchen, the juvenile
offender was able to establish through expert testimony that his sentence qualified as a de facto
life sentence because the sentence provided the opportunity for release only four to five years prior
to his expected death. Id. Petitioner maintains that this case “underscores the unreasonableness
of denying Reyes’s claim without a hearing and disparate treatment of like individuals.” Id. The
Court disagrees. There is no argument that Petitioner has a similar life-expectancy as the juvenile
offender in Kitchen, and Petitioner’s conclusory assertions fail to relate this case back to the
arguments in his Petition.
The Report correctly outlines the updates in relevant caselaw following Petitioner’s
sentencing. See Rep. at 34–36. Petitioner does not dispute this recitation of the law, and the Court
finds no clear error. Indeed, Petitioner does not argue that his sentence should be changed pursuant
to updates in relevant caselaw. Instead, he maintains that because of the new juvenile sentencing

laws, his sentence is now excessive and grossly disproportionate compared to other juvenile
offenders, and this disproportionate treatment renders his sentence unconstitutional. Id. at 36. As
the Report points out, “Petitioner has not identified any case applying this disproportionality
principle to a similar context. He has not identified any case addressing a sentence of similar
length to his. He has not identified a case addressing disparities arising from subsequent changes
in sentencing law.” Id. at 39.
Accordingly, the Court agrees with the Report that Petitioner has not shown that the state
court’s decision was “contrary to” clearly established federal law. Id. (citing Williams v. Taylor,
529 U.S. 362, 405 (2000); Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010)). Thus, after

carefully reviewing the Objections de novo, the Court agrees with the Report and the Petition must
be denied as to Ground 3.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:
1. The Report, [ECF No. 13], is AFFIRMED AND ADOPTED.
2. Petitioner’s Petition [ECF No. 1] is DENIED.
3. Any request for a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2)
(“A certificate of appealability may issue ... only if the applicant has made a substantial showing
of the denial of a constitutional right”); see also Harbison v. Bell, 556 U.S. 180, 183 (2009); Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (“To obtain a COA under § 2253(c), a habeas prisoner
must make a substantial showing of the denial of a constitutional right, a demonstration that []
includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” (citations omitted)).
4. Further, any request for an evidentiary hearing is DENIED. Petitioner has failed to
demonstrate the existence of any basis to warrant an evidentiary hearing. See Martinez v. Sec’y,
Fla. Dep’t of Corr., 684 F. App’x 915, 926 (11th Cir. 2017) (citing Schriro v. Landrigan, 550 U.S.
465, 474 (2007)) (“[T]he district court need not conduct an evidentiary hearing if the record refutes
the petitioner’s factual allegations, otherwise prevents habeas relief, or conclusively demonstrates
that the petitioner was not denied effective assistance of counsel.”).
5. All deadlines are TERMINATED, and any pending motions are DENIED as moot.
6. Accordingly, this case is CLOSED.
DONE AND ORDERED in Miami, Florida, this 30th day of April, 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121871. Public record. Not legal advice.