# Baez v. Florida Department of Corrections

> District Court, S.D. Florida · April 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10121884

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121884. Public record. Not legal advice.