Baez v. Florida Department of Corrections

United States District Court

for the

Southern District of Florida

Jordan Baez, )

Petitioner )

)

v. ) Civil Action No. 22-22532-Scola

)

Sec’y, Fla. Dep’t of Corr.,

Respondent.

Order

Before the Court is Petitioner Jordan Baez’s pro se petition under 28

U.S.C. § 2254 (ECF No. 1). The Petitioner challenges the constitutionality of his

state convictions and sentences on charges of second-degree murder with a

deadly weapon and attempted second-degree murder with a deadly weapon.

(See generally id.).

The Respondent filed a response (ECF No. 7), with an index to appendix

(ECF No. 8) including attached exhibits A–R (ECF No. 8-1) and S–X (ECF No. 8-

2) and a notice of filing transcripts (ECF No. 9) with attached transcripts (ECF

Nos. 9-1–9-13). The Petitioner did not file a reply and the time to do so has

passed. The Court has carefully reviewed the parties’ written submissions, the

record, and applicable law. For the reasons explained below, the petition is

dismissed in part and denied in part.

1. Background

On January 16, 2018, a Miami-Dade County jury found the Petitioner

guilty on one count of second-degree murder with a deadly weapon and one

count of attempted second-degree murder with a deadly weapon. (See ECF No.

8-1 at 30–32).1 He was sentenced to 25-years imprisonment on the murder

charge, and to a consecutive term of 20-years imprisonment on the attempted

murder charge. (See id. at 38–40).

1 The Court uses the pagination generated by the electronic CM/ECF database, which

appears in the headers of all court filings.

On direct appeal, the Petitioner raised the following claim:

THE TRIAL JUDGE ERRED IN OVERRULING DEFENSE

COUNSEL'S OBJECTION TO THE STATE'S IMPROPER

BURDEN SHIFTING ARGUMENT DURING THEIR CLOSING

ARGUMENT.

(ECF No. 8-1 at 52). On February 19, 2020, the state appellate court affirmed

the Petitioner’s convictions and sentences. See Baez v. State, 299 So. 3d 470

(Fla. 3d DCA 2020).

On December 29, 2020, the Petitioner filed a pro se Rule 3.850 post-

conviction motion with accompanying memorandum of law raising the

following three grounds:

GROUND ONE

INEFFECTIVE ASSISTANCE OF COUNSEL FOR

MISADVISING MOVANT ON THE THEORY OF LAW

APPLICABLE TO MOVANT'S DEFENSE.

GROUND TWO

INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING

TO OBJECT TO THE SENTENCE AT THE HEARING HELD

ON JANUARY 16, 2018.

(a) Stacking of Mandatory Minimums

(b) The Sentences Violate the Eight Amendment.

GROUND THREE

COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT

TO THE JURY'S VERDICT WHICH WAS BASED ON A

CHARGE NOT CHARGED IN THE INFORMATION ON BOTH

COUNTS; SECOND DEGREE MURDER AND ATTEMPTED

SECOND DEGREE MURDER.

(ECF No. 8-1 at 129–34). On August 25, 2021, the post-conviction court issued

an order striking Petitioner's pro se Rule 3.850 motion for "being insufficient to

support the relief prayed.” (Id. at 139). On September 26, 2021, Petitioner filed,

through counsel, a pleading styled: Defendant Jordan Baez's supplemental

motion to vacate, set aside, or correct sentence pursuant to Fla. R. Crim. P.

3850(a)(1, 6) based on ineffective assistance of counsel and request for

evidentiary hearing, with accompanying exhibits. (Id. at 141). The Petitioner

raised the following grounds:

GROUND ONE

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS WHERE MR. TOMAS

FAILED TO PROPERLY ADVISE DEFENDANT REGARDING

THE STATE'S PLEA OFFER, AND WHERE THERE WAS NO

REASONABLE JUSTIFICATION OF THIS OMISSION, AND

AS A RESULT DEFENDANT WAS SERVERLY PREJUDICED.

GROUND TWO

MR. TOMAS PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL WHEN HE FAILED TO MAKE

CONTEMPORANEOUS OBJECTIONS WHEN THE STATE

CALLED TWO WITNESSES WHOSE TESTIMONY WAS

CONTRADICTED BY THEIR PREVIOUS DEPOSITION

TESTIMONY AND THEREBY ALSO FAILED TO PRESERVE

POSSIBLE BRADY AND GIGLIO VIOLATIONS WHICH

PREJUDICED DEFENDANT AND VIOLATED

DEFENDANT'S RIGHTS TO DUE PROCESS, EFFECTIVE

ASSISTANCE OF COUNSEL, AND TO A FAIR TRIAL.

GROUND THREE

MR. TOMAS PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL WHEN COUNSEL RECOMMENDED TO

DEFENDANT THAT HE NOT TESTIFY WHERE

DEFENDANT'S TESTIMONY WAS NECESSARY TO REFUTE

DAKWAN PERRY'S TESTIMONY THAT DEFENDANT WAS

THE SHOOTER WHERE MR. PERRY DID NOT ACTUALLY

SEE THE SHOOTING.

GROUND FOUR

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

TRIAL COUNSEL GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS WHERE TRIAL COUNSEL

FAILED TO INVESTIGATE, LOCATE, AND DEPOSE MR

DEVON VICKERS WHO POSSESSED EXCULPATORY

EVIDENCE, WHERE THERE WAS NO REASONABLE

JUSTIFICATION FOR THESE OMISSIONS AND AS A

RESULT DEFENDANT WAS PREJUDICED.

GROUND FIVE

MR. TOMAS PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO CALL EMMETT LAWSON AS A

DEFENSE WITNESS AT TRIAL AFTER MR. LAWSON

TESTIFIED DURING HIS DEPOSITION THAT DAKWAN

PERRY AND JAVON KNIGHT HAD ROBBED MR. LAWSON

AT GUNPOINT LESS THAN A WEEK BEFORE THE

SHOOTING WHICH WOULD HAVE HELPED IMPEACH

THEIR TRIAL TESTIMONY, THEREBY CAUSING

PREJUDICE TO THE DEFENDANT.

GROUND SIX

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE

OF COUNSEL BY FAILING TO PREPARE A RESPONSE TO

THE STATE'S SENTENCING MEMORANDUM, AND AS

RESULT TRIAL COUNSEL WAS UNPREPARED TO

ADEQUATELY REPRESENT DEFENDANT DURING HIS

SENTENCING HEARING HELD ON MAY 17, 2018,

THEREBY VIOLATING DEFENDANT'S RIGHTS TO DUE

PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, AND A

FAIR SENTENCING HEARING.

GROUND SEVEN

MR. BAEZ RECEIVED INEFFECTIVE ASSISTANCE OF

TRIAL COUNSEL GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS WHERE TRIAL COUNSEL

FAILED TO EFFECTIVELY COMMUNICATE WITH

DEFENDANT AND ALSO FAILED TO ADEQUATELY

FURNISH DISCOVERY, MOTIONS DOCUMENTS

TRANSCRIPTS, AND JAIL PHONE CALLS TO DEFENDANT,

THEREBY PREJUDICING DEFENDANT AND VIOLATING

DEFENDANT'S RIGHTS TO DUE PROCESS, EFFECTIVE

ASSISTANCE OF COUNSEL, AND A FAIR TRIAL.

GROUND EIGHT

MR. TOMAS PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO CHALLENGE THE PROBABLE

CAUSE AFFIDAVIT THAT WAS THE BASIS FOR THE

SEARCH WARRANT FOR DEFENDANT'S CELLPHONE,

HOWEVER MR. TOMAS FILED A MOTION TO SUPPRESS

REGARDING THE CELLPHONE ON NOVEMBER 2, 2017

BASED ON THE LACK OF A SEARCH WARRANT AND DID

NOT WITHDRAW THE MOTION UNTIL THE MORNING OF

DEFENDANT'S TRIAL, NOR DID HE AMEND THE MOTION

TO ATTACK THE BASIS FOR THE ISSUANCE OF THE

SEARCH WARRANT, THEREBY VIOLATING DEFENDANT'S

RIGHTS TO DUE PROCESS, EFFECTIVE ASSISTANCE OF

COUNSEL, AND A FAIR TRIAL.

(Id. at 148–76). The state postconviction court denied the motion on March 9,

2022. (See ECF No. 8-2 at 130–41). The state appellate court per curiam

affirmed the trial court's denial of the motion on May 25, 2022. See Baez v.

State, 341 So. 3d 322 (Fla. 3d DCA 2022).

The instant petition was docketed on August 10, 2022.

2. 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). 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). “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). This standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419

(2014).

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). 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).

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) (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).

3. Discussion

a. Timeliness

The Respondent concedes, and the Court confirms, that the petition was

timely filed. (See ECF No. 7 at 14).

b. Exhaustion/Procedural Default

A federal district court may not grant habeas corpus relief under 28

U.S.C. § 2254 unless “the applicant has exhausted the remedies available in

the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). The State must be given

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

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

prisoner must "fairly present" his claim in each appropriate state court thereby

alerting that court to the federal nature of the claim. Id. In Florida, exhaustion

is ordinarily accomplished on direct appeal; and if not, it may be accomplished

by the filing of a Rule 3.850 motion, and an appeal from its denial. See Leonard

v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979). The Respondent asserts that

Grounds One and Two are unexhausted and procedurally defaulted. The Court

will address Grounds One and Two below along with equitable exceptions to

the procedural default rule.

Ground One

The Petitioner claims “Ineffective Assistance of Counsel for failure to

object and/or (sic) to States Amendment of the information during trial.” (ECF

No. 1 at 5). The Petitioner did not raise this issue on direct appeal,2 nor did he

raise it in his initial or supplemental Rule 3.850 motions. The Petitioner agrees

that he did not “raise this issue through a post-conviction motion or petition

for habeas corpus in a state trial court[.]” (ECF No. 1 at 6). Moreover, under

Florida procedural rules, any future attempt at exhaustion would be futile. See

2 Generally, claims of ineffective assistance of counsel are not cognizable on direct

appeal. See Desire v. State, 928 So. 2d 1256, 1257 (Fla. 3d DCA 2006). The Court thus

focuses on the claims raised in the Petitioner’s Rule 3.850 motions.

Fla. R. Crim. P. 3.850(b). Ground One is thus dismissed as procedurally

defaulted.

Ground Two

The Petitioner claims the “[t]rial [c]ourt lacked jurisdiction to enter the

judgment or impose sentence.” (ECF No. 1 at 6). Although Ground Two

presents a factual foundation like Ground Three of the Petitioner’s initial Rule

3.850 Motion, the legal basis is different. (Compare ECF No. 8-1 at 134–36 with

ECF No. 1 at 6–7). The claim presented here is couched in term of a federal due

process violation, while the one presented in the state forum was based on

counsel's ineffectiveness. (See id.). While a verbatim restatement of the claim

brought in state court is not required, the Petitioner is required to present his

claim to the state court “such that the reasonable reader would understand

each claim's particular legal basis and specific factual foundation.” Kelley v.

Sec'y for Dep't of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004) (citing Picard

v. Connor, 404 U.S. 270, 277, (1971)). The Petitioner failed to do so here.

Therefore, Ground Two is dismissed as procedurally defaulted.

Equitable Exceptions

There are two equitable exceptions to the procedural default rule: “cause

and prejudice” and “actual innocence.” Dretke v. Haley, 541 U.S. 386, 393

(2004). Petitioner bears the sole burden of proving that either one of these

exceptions would excuse a procedural default. See Gordon v. Nagle, 2 F.3d

385, 388 (11th Cir. 1993) (“A defendant has the burden of establishing cause

and prejudice.”); Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (“The

petitioner must support the actual innocence claim with new reliable

evidence[.]”). The Court concludes that the Petitioner fails to establish that

either of these exceptions excuses his procedurally defaulted claims. (See

generally ECF No. 1).

c. The Merits

The Court proceeds to address the merits of remaining Grounds Three

through Six.

Ground Three

The Petitioner claims that during his trial:

[T]he State called two critical and material witnesses,

Dakwan Perry and Javon Knight which [the] State knew, or

should have known, would offer testimony at trial, in the

presence of the jury which was completely different from

what they had previously testified to under oath and entirely

different from their witness accounts as part of the State[’]s

discovery.

(ECF No. 1 at 9). The Petitioner asserts his “[t]rial [c]ounsel was deficient in

failing to make contemporaneous objections” to the witnesses’ testimony. (Id. at

8). In rejecting this ground, the state post-conviction court stated as follows:

First, the record reflects that the State did not have contact

with both witnesses and did not know whether they would

testify at trial.

Dakwan Perry

The State filed a Petition for Material Witness Bond and Writ

of Attachment on Dakwan Perry in order to have the trial

court assist in securing the witness for trial. See Order

Setting Material Witness Bond and Writ of Attachment,

attached. Dakwan Perry was arrested on the writ after the

trial had begun. T.T. 341. The Defendant alleges Dakwan

Perry changed his testimony and there should have been a

contemporaneous objection by the defense. The Defendant

fails to state what the objection should have been. Defense

counsel impeached the witness on cross examination and

effectively did so. The alleged change was not a change in

testimony, at best, it was an omission and defense counsel

fully exploited that:

Mr. Tomas: Mr. Perry, back in 2016, I asked you about

all this, and at no point did you say you were there and

you saw your friend steal this gun; isn't that correct?

Mr. Perry: Yes.

Mr. Tomas: So today for the first time you're saying

that you were there, and you saw this happen, is that

right?

Mr. Perry: Yes.

T.T. 421:8-14. Regardless of whether Dakwan Perry

witnessed Javon Knight steal the Defendant's firearm or

heard rumors about it, the substance of his statement that

he had knowledge that Javon Knight had stolen a firearm

from the Defendant-remained the same. The motive for the

shooting, retaliation for the theft of the gun, was never in

question. Defense counsel was aware of this fact. This shift

in testimony is not Brady because it was an nonmaterial

collateral matter not relevant to the elements of the crime

charged. The change in testimony does not exculpate the

Defendant in any way, therefore, it is not Brady.

To establish a Giglio violation, it must be shown that the

statement was material. Here, the alleged change in

testimony was not a material fact. Guzman v. State, 941 So.

2d 1045, 1050 (Fla. 2006) (internal citations omitted). Even

if the trial court finds that this change was Giglio material,

the Defendant fails to show under Strickland that there was

a reasonable probability that the result would have been

different because the Defendant was unaware of this fact.

The record reflects the defense thoroughly impeached the

witness on this issue (T. T. 419 421) and focused on his lack

of credibility in closing argument. T. T. 900-901, 906-908.

For these reasons, this claim is denied without an

evidentiary hearing.

Javon Knight

Similar to Dakwan Perry, the State did not know whether

Javon Knight would be testifying and did not have good

contact with the witness: [L]ike Mr. Perry, [we] do not always

have good contact ...[s]o in full disclosure, he may or may

not be here. He's under State's subpoena. "T.T. 531:9- 12.

Javon Knight was not an eyewitness to the homicide. The

Defendant's motion does not identify what was the change

in testimony pertaining to this witness and therefore, fails

to show how counsel was ineffective for failing to object to

his testimony. For these reasons, this claim is denied

without an evidentiary hearing.

(ECF No. 8-2 at 136–37). The state appellate court affirmed the post-conviction

court's denial of this claim. See Baez v. State, 341 So. 3d 322 (Fla. 3d DCA

2022). Having reviewed the record in full, the Court finds nothing unreasonable

with the state courts’ rejection of this claim. See 28 U.S.C. § 2254(d). Ground

Three is thus denied.

Ground Four

The Petitioner asserts his counsel was ineffective for failing “to

investigate, locate, and depose Mr. Devon Vickers who possessed exculpatory

evidence[.]” (ECF No. 1 at 10). He claims he was prejudiced because Mr.

Vickers would have testified that he did not have the gun. (See id. at 11).

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

the state courts’ rejection of this claim. See 28 U.S.C. § 2254(d).

“[C]omplaints about uncalled witnesses are not favored, because the

presentation of testimony involves trial strategy and allegations of what a

witness would have testified are largely speculative.” Shaw v. United States,

729 F. App’x 757, 759 (11th Cir. 2018) (cleaned up). In assessing a claim of

ineffective assistance of counsel, “which witnesses, if any, to call, and when to

call them, is the epitome of a strategic decision, and it is one that the court will

seldom, if ever, second-guess.” Rhode v. Hall, 582 F.3d 1273, 1284 (11th Cir.

2009) (cleaned up). It was thus reasonable for the state court to reject

Petitioner’s speculative claim of prejudice concerning the testimony of uncalled

witnesses, and this claim is denied under the performance and prejudice

prongs of Strickland, 466 U.S. at 687–88.

Ground Five

The Petitioner claims his counsel was ineffective for failing to effectively

communicate with him and failing to “adequately furnish Discovery, Motions,

Documents, Transcripts and Jail Phone Calls” to him. (ECF No. 1 at 12). The

state post-conviction court rejected the claim, stating as follows:

The court file and record are devoid of any time where the

Defendant complained of inadequate representation by his

counsel. The Defendant never filed any motion nor

requested a Nelson hearing. The Defendant cannot now

allege after he has been convicted that he was unhappy with

his representation before trial. The Defendant fails to show

there is a reasonable probability that the result would have

been different had his counsel had more communication

with him under Strickland. Therefore, this claim is denied.

(ECF No. 8-2 at 139–40). The state appellate court affirmed the post-conviction

court's denial of this claim. See Baez v. State, 341 So. 3d 322 (Fla. 3d DCA

2022). The Court finds nothing unreasonable with the state courts’ rejection of

this claim, see 28 U.S.C. § 2254(d), and Ground Five is denied under the

performance and prejudice prongs of Strickland, 466 U.S. at 687–88.

Ground Six

The Petitioner asserts his trial counsel was ineffective for “failing to

challenge the probable cause affidavit that was the basis for the search warrant

for the [Petitioner’s] cell phone.” (ECF No. 1 at 14). The state post-conviction

court rejected the claim, stating:

Defense counsel in this case filed a Motion to Suppress the

contents from the Defendant's cell phone. On the day of

trial, defense withdrew the motion and stated that he had

filed it not knowing that a search warrant had been obtained

in order to search the cell phone. Therefore, he withdrew the

motion once he learned of the existence of the search

warrant. The Defendant is suggesting that trial counsel

should have argued the motion even though he believed it

would have been frivolous. The Defendant in the instant

motion does not allege there was a lack of probable cause in

the affidavit for search warrant. The Defendant makes a

baseless claim and therefore this ground is denied.

(ECF No. 8-2 at 140). The state appellate court affirmed the post-conviction

court's denial of this claim. See Baez v. State, 341 So. 3d 322 (Fla. 3d DCA

2022). The Court finds nothing unreasonable with the state courts’ rejection of

this claim, see 28 U.S.C. § 2254(d), and Ground Six is denied under the

performance and prejudice prongs of Strickland, 466 U.S. at 687–88.

d. 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 record refutes the Petitioner’s factual

allegations and precludes habeas relief. See id. Because the Court can

“adequately assess [the Petitioner’s] claim[s] without further factual

development|,]” he is not entitled to an evidentiary hearing. Turner v. Crosby,

339 F.3d 1247, 1275 (11th Cir. 2003).

e. 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 the petitioner makes “a

substantial showing of the denial of a constitutional right.” See 28 U.S.C. §

2253(c)(2). Where, as here, 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). The

Petitioner does not satisfy this burden, so the Court will not issue a certificate

of appealability.

4. Conclusion

For the foregoing reasons, Petitioner Jordan Baez’s petition for writ of

habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) is dismissed in part and

denied in part. Grounds One and Two are dismissed as procedurally

defaulted. Grounds Three, Four, Five, and Six are denied. A certificate of

appealability is also denied. Because there are no issues with arguable merit,

an appeal would not be taken in good faith, and thus, the Petitioner is not

entitled to appeal in forma pauperis. The Clerk is directed to close the case.

Done and ordered, in chambers, in Miami, Florida, on April 1 7

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Jordan Baez

F01007

Northwest Florida Reception Center

Inmate Mail/Parcels

4455 Sam Mitchell Drive

Chipley, FL 32428

PRO SE