Budd v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-81441-CIV-ALTONAGA

STEPHEN JEROME BUDD,

Petitioner,

v.

FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________/

ORDER

THIS CAUSE came before the Court on Petitioner, Stephen Jerome Budd’s Petition Under

28 U.S.C. [Section] 2254 for Writ of Habeas Corpus by a Person in State Custody [ECF No. 1].

Petitioner challenges the constitutionality of his state conviction and sentence in case number

2013-CF-003572 in the Fifteenth Judicial Circuit for Palm Beach County, Florida. (See generally

Pet.). Respondent filed a Response [ECF No. 12]; an Appendix to the Response with an Index

[ECF No. 14] and accompanying Exhibits 1–39 [ECF No. 14-1–14-10]; and a Notice of Filing

Transcripts [ECF No. 13] with accompanying transcripts [ECF Nos. 13-1 to 13-4]. Petitioner filed

a Reply [ECF No. 15]. The Court has carefully considered the parties’ written submissions, the

record, and applicable law. For the following reasons, the Petition is dismissed in part on

procedural grounds and denied in part on the merits.

I. BACKGROUND

On May 26, 2015, Petitioner was charged by an Amended Information with two counts of

sexual battery on a person less than 12 years of age (Counts 1 and 2), one count of lewd or

lascivious molestation (Count 3), and two counts of lewd or lascivious exhibition (Counts 4 and

5). (See App., Ex. 1, Third Am. Information 21).1

Before his arrest, Petitioner was a teacher in Palm Beach County, Florida. During the 2006

to 2007 school year, Petitioner taught fourth-grade students, among whom were two girls

Petitioner would come to molest several times. Petitioner’s molestation of the victims went

unreported for roughly six years until one of the victims (“Victim One”) broke her silence. (See

Notice, Ex. 1, Trial Tr. 620:1–10). Victim One first told her boyfriend (see id.); and, roughly eight

months later, she told her parents (see id. 621:2–21). After this revelation, Victim One and her

parents contacted the police. (See id. 626:18–23).

Shortly after Victim One reported Petitioner’s crimes, investigators set up a series of

controlled calls between Petitioner and the victims to elicit a confession from him. (See id. 627:24–

628:10, 646:16–19). At trial, a recording — approximately two hours in length — of the controlled

calls was played for the jury. (See id. 689:14–25). The State redacted the recording, following

the trial court’s order on a motion in limine, removing any references in the calls to uncharged

conduct. (See id. 716:2–6). On the recording, Petitioner did not admit to molesting the victims

nor did he unequivocally deny the numerous allegations the victims lodged against him. (See, e.g.,

id. 745:11–15, 754:18–24, 768:8–769:15, 788:23–789:25). After the controlled calls, the police

arrested Petitioner. (See id. 837:15–17). Petitioner voluntarily answered the investigators’

questions (see id. 839:3–5); however, Petitioner’s post-arrest statements were not admitted at trial

due to their hearsay nature (see id. 838:6–17).

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

of all court filings. Citations to transcript testimony rely on the pagination and line numbering in the

original document.

During trial, defense counsel attacked the adequacy of the police investigation by

questioning the lead detective on her failure to follow up on certain leads. (See id. 847:2–857:8).

Defense counsel argued that the lead detective failed to conduct a thorough investigation by, for

example, failing to obtain school records to confirm the victims’ claims that Petitioner would take

the victims out of their other classes to molest them. (See id. 848:19–849:14). On redirect, the

State offered a sworn statement by the victims’ Spanish teacher — which was not read to the jury

directly but was described in another witness’s testimony — stating that Petitioner took

unspecified students from her class; given this statement, the lead investigator did not think it was

necessary to obtain school records to confirm the victims’ claims. (See id. 859:4–17, 864:6–18).

The State’s closing argument underscored the large body of probative evidence the State

presented. (See id. 1044:18–1081:21). The State also argued, in closing, that police conducted a

thorough investigation, interviewing over 70 witnesses. (See id. 1052:25–1053:4). Defense

argued the opposite in closing (see id. 1081:24–1112:25), asserting that police conducted an

incomplete investigation and, thus, the State failed to carry its heavy burden of proving Petitioner’s

guilt beyond a reasonable doubt (see id. 1083:11–1084:15, 1111:8–24).

A jury found Petitioner guilty as charged on all counts. (See generally App., Ex. 1, Jury

Verdict, 24–25). As a result, the trial court: adjudicated Petitioner guilty (see generally App., Ex.

1, J., 2); sentenced him to three consecutive life sentences on Counts 1, 2, and 3, and two

concurrent 15-year sentences on Counts 4 and 5 (see generally App., Ex. 1, Sentence 4–16); and

declared him a sexual predator under Florida law (see generally App., Ex. 1, Order Declaring Pet’r

Sexual Predator 31–32).

Petitioner filed a direct appeal raising seven issues. (See generally App., Ex. 1, Initial Br.

36–91). The State filed an answer to Petitioner’s direct appeal (see generally App., Ex. 1, Answer

Br. 93–148), to which Petitioner filed a reply (see generally App., Ex. 1, Reply Br. 150–68). On

May 11, 2017, the Florida Fourth District Court of Appeal (“DCA”) affirmed the lower court

proceedings in a per curiam, unwritten opinion. See Budd v. State, 226 So. 3d 840 (Fla. 4th DCA

2017). Petitioner filed a motion for rehearing and for certification of question (see generally App.,

Ex. 1, Mot. for Reh’g and for Certification of Question 172–78), which the Fourth DCA denied

(see App., Ex. 1, Order Den. Mot. for Reh’g and for Certification of Question 180). The Fourth

DCA issued its mandate on June 30, 2017. (See App., Ex. 1, June 30, 2017 Mandate 182).

On February 12, 2018, Petitioner filed a motion for postconviction relief under Florida

Rule of Criminal Procedure 3.850 (see generally App., Ex. 1, R. 3.850 Mot. 184–232), raising six

grounds for relief. In the first five, Petitioner claimed he received ineffective assistance of counsel

because of counsel’s failure to: (1) investigate and present witnesses who would have supported

Petitioner’s theory of a recent fabrication or fanciful tale; (2) introduce evidence of a civil suit that

would have given the victims a motive to fabricate the allegations and support the theory of defense

of a fanciful tale; (3) move for a continuance and review the State’s redacted version of certain

controlled calls before those calls were played for the jury, move to suppress those calls, or

introduce exculpatory statements challenging the State’s theory of prosecution; (4) introduce

Petitioner’s post-arrest statement at the time the recording of the controlled calls was introduced;

and (5) object, and request the court give a curative instruction, to improper prosecutorial

comments made during closing argument. (See id. 186, 197, 203, 213, 224, 227). Petitioner’s

sixth and final claims were the general assertion that Petitioner was cumulatively deprived of his

right to effective assistance of counsel. (See id. 227).

The State responded, arguing that the post-conviction court should grant an evidentiary

hearing only as the second ground for relief. (See generally App., Ex. 1, Resp. to R. 3.850 Mot.

234–64). In an Amended Order entered September 11, 2019, the post-conviction court granted an

evidentiary hearing on the first, second, and sixth grounds for relief and summarily denied all other

grounds. (See generally App., Ex. 9, Am. Order Grant. and Den. R. 3.850 Mot. 183–91).

Following an evidentiary hearing (see generally Notice, Ex. 4, Evid. Hr’g Tr.), the post-conviction

court denied Petitioner’s first, second, and sixth grounds for relief. (See generally App., Ex. 9,

Final Order Den. R. 3.850 Mot 288–96). On appeal, the Fourth DCA affirmed the denial in a per

curiam, unelaborated opinion. See Budd v. State, 345 So. 3d 285 (Fla. 4th DCA 2022). The

mandate issued on September 2, 2022. (See App., Ex. 10, Sept. 2, 2022 Mandate 215).

Petitioner filed this Petition on September 12, 2022.2 Petitioner asserts that: (1) the trial

court erred in limiting the defense’s cross-examination of one of the victims (“Ground One”);3 (2)

the trial court erred in allowing evidence of collateral crimes allegedly committed on another

victim (“Ground Two”); (3) the trial court erred by admitting the substance of the Spanish teacher’s

statement that Petitioner’s students were sometimes removed from her class (“Ground Three”); (4)

defense counsel provided ineffective assistance when he failed to identify and present witnesses

who would have supported a fabrication defense (“Ground Four”); (5) defense counsel provided

ineffective assistance when he failed to introduce evidence of a civil suit between one of the

victims and the school where Petitioner was employed (“Ground Five”); (6) counsel provided

ineffective assistance when he failed to review the redacted versions of the controlled calls played

to the jury (“Ground Six”); (7) counsel provided ineffective assistance when he failed to introduce

2 “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) (citations

omitted).

3 In the interest of clarity, the Court adopts Respondent’s framing of the Petition’s claims as grounds for

relief (see generally Resp.), rather than the Petitioner’s overlapping — and needlessly

confusing — framing of the claims as “ground[s,]” “issue[s,]” and “sub-claim[s.]” (Pet. 3–4, 10–19

(alterations added)).

Petitioner’s post-arrest statement at the same time the controlled calls were played for the jury

(“Ground Seven”); and (8) counsel provided ineffective assistance when he failed to object to the

State’s mischaracterization of the evidence during closing (“Ground Eight”). (See generally Pet.).

II. LEGAL STANDARDS

A. Deference under Section 2254

A court’s review of a state prisoner’s federal habeas corpus petition is governed by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Abdul–Kabir v. Quarterman, 550

U.S. 233, 246 (2007). “The purpose of [the] AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice systems, and not as

a means of error correction.” Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818

F.3d 600, 642 (11th Cir. 2016) (alteration added; quoting Greene v. Fisher, 565 U.S. 34, 38

(2011)). This standard is “difficult to meet.” White v. Woodall, 572 U.S. 415, 419 (2014)

(quotation marks and citation omitted).

Under the 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 [f]ederal 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)(1)–

(2) (alteration added).

A state court decision is contrary to established Supreme Court precedent when it

(1) applies a rule that contradicts the governing law set forth by the Supreme Court; or (2)

confronts a set of facts materially indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from Supreme Court precedent. See Williams v. Taylor,

529 U.S. 362, 405–06 (2000). An “unreasonable application of [clearly established] federal law

is different from an incorrect application of federal law.” Id. at 410 (emphasis in original;

alteration added). 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) (alteration added; citation

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).

This is “a highly deferential standard for evaluating state-court rulings” which “demands

that state-court decisions be given the benefit of the doubt[.]” Renico v. Lett, 559 U.S. 766, 773

(2010) (alteration added; quotation marks, citations, and footnote call number omitted).

Deferential review under section 2254(d) is generally limited to the record that was before the state

court that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011).

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. Finally, 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).

B. Harmless Error

In addition to the requirements imposed by the AEDPA, when a state court has ruled on

the merits of a state prisoner’s claim, a federal court cannot grant relief unless the petitioner also

demonstrates that any error made by the state trial court had a “substantial and injurious effect or

influence” in determining the jury’s verdict. Brown v. Davenport, 596 U.S. 118, 126 (2022)

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); quotation marks omitted). To

accomplish that, a petitioner must persuade a federal court that he suffered “actual prejudice” from

the alleged error.

“Actual prejudice” requires a petitioner to show that “a federal habeas court itself harbors

grave doubt about the petitioner’s verdict” based on the “whole body of law” — without being

limited to Supreme Court precedents as of the time the state court renders its decision, as is the

case under the AEDPA. Davenport, 596 U.S. at 135–136 (emphasis omitted). In short, a “federal

court must deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or [the]

AEDPA. But to grant relief, a court must find that the petitioner has cleared both tests.” Id. at

134 (alterations added; emphases in original); see also Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d

1301, 1307 (11th Cir. 2012) (“[A] habeas petition cannot be successful unless it satisfies both [the]

AEDPA[] and Brecht.” (alterations added)).

C. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees criminal defendants

the right to assistance of counsel during criminal proceedings against them. See Strickland v.

Washington, 466 U.S. 668, 684–85 (1984). This includes not just the right to the presence of

counsel, but also “the right to the effective assistance of counsel.” Id. at 686 (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)).

When assessing counsel’s performance under Strickland, the Court employs a strong

presumption that counsel “rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth Amendment does not

guarantee the right to perfect counsel; it promises only the right to effective assistance[.]” Burt v.

Titlow, 571 U.S. 12, 24 (2013) (alterations added; citation omitted). “Where the highly deferential

standards mandated by Strickland and [the] AEDPA both apply, they combine to produce a doubly

deferential form of review that asks only ‘whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th

Cir. 2013) (alteration added; quoting Harrington, 562 U.S. at 105).

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

(1) his counsel’s performance was deficient, falling below an objective standard of reasonableness;

and (2) he suffered prejudice resulting from that deficiency. See Strickland, 466 U.S. at 687–88.

To establish deficient performance, a 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 Corrs., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting Strickland,

466 U.S. at 690). “[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable[.]” Strickland, 466 U.S. at 690–91 (alterations

added).

A court’s review of counsel’s performance should “only” focus on “what is constitutionally

compelled” and not merely “what is possible or ‘what is prudent or appropriate[.]’” Chandler v.

United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (alteration added; footnote call

number omitted; quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). Counsel is not ineffective

for failing to raise non-meritorious issues, see Chandler v. Moore, 240 F.3d 907, 917 (11th Cir.

2001) (citation omitted); nor is counsel required to present every non-frivolous argument, see Dell

v. United States, 710 F.3d 1267, 1281 (11th Cir. 2013) (citation omitted).

To satisfy Strickland’s prejudice prong, “[t]he [petitioner] must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” 466 U.S. at 694 (alterations added). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. A court need not address both

prongs of Strickland if the defendant makes an insufficient showing on one of the prongs. See id.

at 697; Brown v. United States, 720 F.3d 1316, 1326 (11th Cir. 2013) (citations omitted).

III. DISCUSSION

The Court first determines the exhaustion status of the Petition’s grounds for relief; next,

the merits of the Petition’s exhausted grounds for relief; then, Petitioner’s entitlement to an

evidentiary hearing; and last, Petitioner’s entitlement to a certificate of appealability. The Court

addresses each issue in turn below.

A. Exhaustion and Procedural Default

Before seeking a federal writ of habeas corpus, “a state prisoner must exhaust available

state remedies, 28 U.S.C. § 2254(b)(1), thereby [allowing] the State . . . to pass upon and correct

alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(alterations added; quotation marks and citation omitted). “To provide the State with the necessary

opportunity, the prisoner must fairly present his claim in each appropriate state court (including a

state supreme court with powers of discretionary review), thereby alerting that court to the federal

nature of the claim.” Id. (citations and quotation marks omitted). This requirement — acting

together with the requirements of section 2254(d) — was designed “to ensure that state

proceedings are the central process [for asserting constitutional challenges to state convictions],

not just a preliminary step for a later federal habeas proceeding[.]” Harrington, 562 U.S. at 103

(alterations added; citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)). Consequently, if a claim

raised in a section 2254 petition is unexhausted, the claim is barred from consideration and must

be dismissed. See Brown v. Dixon, 591 F. Supp. 3d 1251, 1265 (S.D. Fla. 2022) certificate of

appealability denied sub nom Brown v. Dep’t of Corr., No. 22-11344, 2023 WL 3064699 (11th

Cir. Feb. 17, 2023).

Respondent concedes — and the Court agrees — that Grounds Five, Six, Seven, and Eight

are exhausted and properly presented for habeas review. (See Resp. 16). Respondent maintains

that Grounds One and Three are unexhausted because Petitioner failed to raise the federal nature

of these claims in state court. (See id. 14). The Court disagrees, because Petitioner raised the

relevant arguments in his direct appeal. Respondent correctly argues that Ground Two is

unexhausted (see id.), because Petitioner failed to raise the federal nature of this claim on direct

appeal. Respondent is also correct that Ground Four is partially unexhausted (see id. 16), because

Petitioner named only three of the seven witnesses identified under this ground for relief in his

Rule 3.850 motion and the appeal of that motion’s denial. The Court explains.

Grounds Five, Six, Seven, and Eight. Respondent concedes that Grounds Five, Six,

Seven, and Eight are exhausted. (See Resp. 16). The Court therefore reviews Grounds Five, Six,

Seven, and Eight for relief on the merits without independently analyzing their exhaustion status.

See Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966 (11th Cir. 2016) (“States can waive

procedural bar defenses in federal habeas proceedings, including exhaustion.” (alteration adopted;

quotation marks and citation omitted)).

Grounds One and Three. Respondent argues that Grounds One and Three are

unexhausted. (See Resp. 14). Regarding Ground One, Respondent claims Petitioner makes only

a “cursor[y] reference[] [to] ‘the right of confrontation under the state and federal constitution[s.]’”

(Resp. 14 (alterations added; quoting Initial Br. 58). As to Ground Three, Respondent describes

Petitioner’s brief as “summarily alleg[ing] that [the] ‘admission of [the Spanish teacher’s] sworn

police statement violated [his] rights [to] cross-examination, confrontation and due process under

the state and federal constitutions.’” (Id. (alteration in original; other alterations added; quoting

Initial Br. 68; other citation omitted). Yet, it appears that in his direct appeal, Petitioner raised the

federal nature of these claims by framing these grounds for relief as issues relating to Petitioner’s

right to face his accusers. (See Initial Br. 57–58, 65–69); see also United States v. Yates, 438 F.3d

1307, 1312 (11th Cir. 2006) (“The Sixth Amendment provides: ‘[i]n all criminal prosecutions, the

accused shall enjoy the right to be confronted with the witnesses against him.’” (alteration added;

other alteration adopted; quoting U.S. Const. amend. VI)).

Because reasonable minds could disagree over Grounds One and Three’s exhaustion, the

Court conducts a de novo review and denies the Grounds on their merits, rather than consider

potential procedural deficiencies. Dallas, 964 F.3d at 1307; Berghuis v. Thompkins, 560 U.S. 370,

390 (2010) (explaining courts can “deny writs of habeas corpus under [section] 2254 by engaging

in de novo review when it is unclear whether AEDPA deference applies, because a habeas

petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo

review” (alteration added; citing 28 U.S.C. § 2254(a)); see also 28 U.S.C. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the courts of the State.”).

Ground Two. Respondent further argues that Ground Two is unexhausted because

Petitioner failed to raise the federal nature of this claim before the state court. (See Resp. 14). The

Court agrees.

Petitioner attempts to raise the federal nature of this claim by citing a United States

Supreme Court decision and making a passing reference to his federal due process rights. (See

Initial Br. 65). Neither is sufficient to raise the federal nature of this claim. First, Petitioner cites

Stogner v. California, 539 U.S. 607 (2003), to support the general proposition that the passage of

time makes testimonial evidence less reliable. (See id. 63). Aside from that citation, Petitioner

argues this ground for relief solely in terms of state law. (See id. 58–65).

Next, Petitioner references a purported deprivation of “due process under the state and

federal constitutions” stemming from the trial court’s ostensible error. (Id. 65). This isolated

reference to Petitioner’s federal due process rights, even when viewed in light of the citation to

Stogner — which has nothing to do with federal due process, see generally 539 U.S. 607 — is

insufficient to exhaust this claim because proper exhaustion “requires a habeas applicant to do

more than scatter some makeshift needles in the haystack of the state court record[,]” McNair v.

Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (alteration added; quotation marks and citations

omitted omitted). Consequently, Ground Two is unexhausted.

When grounds for relief are unexhausted, the Court may dismiss a petition without

prejudice as to the unexhausted claims and give a petitioner the opportunity to either exhaust state

remedies, bring a new petition presenting only the exhausted claims, or amend the petition to

remove any unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 520 (1982). “But, when it is

obvious that the unexhausted claims would be procedurally barred in state court due to a state-law

procedural default, [the Court] can forego the needless ‘judicial ping-pong’ and just treat those

claims now barred by state law as no basis for federal habeas relief.” Snowden v. Singletary, 135

F.3d 732, 736 (11th Cir. 1998) (footnote call number and citations omitted).

Here, Petitioner no longer can litigate his claim under state procedural rules because he

raised this claim on direct appeal (see Initial Br. 58–65), and it thus cannot be reconsidered in a

motion for post-conviction relief, see McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983) (“Matters

which were raised on appeal and decided adversely to the movant are not cognizable by motion

under Rule 3.850.” (citations omitted)). Since this unexhausted claim is “procedurally barred from

being considered in Florida courts, it would serve no purpose to dismiss the petition for further

exhaustion because review of [this] claim[] is unavailable in state courts.” Snowden, 135 F.3d at

736 (alterations added; footnote call number omitted).

Petitioner could overcome this procedural bar by showing either (1) cause and prejudice

for his procedural default or (2) actual innocence. See Granda v. United States, 990 F.3d 1272,

1286 (11th Cir. 2021). But Petitioner does not argue that he is entitled to either exception.

Therefore, this ground for relief is procedurally barred. See Alexander v. Dixon, No. 23-cv-60262,

2023 WL 2646262, at *4 (S.D. Fla. Mar. 27, 2023) (explaining that “the habeas petitioner bears

the burden of presenting evidence showing that he or she is entitled to rely” on an equitable

exception (citing Jones v. United States, 304 F.3d 1035, 1040 (11th Cir. 2002); Arthur v. Allen,

452 F.3d 1234, 1245 (11th Cir. 2006))).

For the foregoing reasons, the Court dismisses Ground 2 as unexhausted.

Ground Four. Respondent argues that Ground Four is partially unexhausted because

Petitioner only named three of the seven witnesses identified under this ground for relief in his

Rule 3.850 motion and the appeal of that motion’s denial. (See Resp. 16–17).

In Ground Four, Petitioner names seven witnesses who would have provided testimony

probative of his innocence. (See Pet. 11–14). These witnesses are: (1) Aileen Adley, a teacher

who taught in a room next door to Petitioner’s classroom (see id. 11–12); (2) Will Avis, Petitioner’s

former student who was in Petitioner’s class at the same time as the victims (see id. 12); (3) Linda

Linsin, Petitioner’s former “co-teacher” (id.); (4) Jane Tucker, a school administrator (see id.); (5)

Molly Del Re, a fellow teacher (see id. 12–13); (6) Cyndee Hackney, a fellow teacher (see id. 13);

and (7) Carline Kloniger, Petitioner’s former student and the victims’ classmate (see id.).

Petitioner raised this issue in his Rule 3.850 motion, arguing that defense counsel was

ineffective for failing to call as witnesses at trial Del Re, Adley, Hackney, Linsin, Rogers, Tucker,

and Kloniger. (See R. 3.850 Mot 187–88). When the post-conviction court denied this ground for

relief, Petitioner raised this issue again on appeal but only named Tucker, Hackney, and Del Re in

that pleading. (See App., Ex. 10, Appeal of R. 3.850 Mot. Den. 25–29). As such, this ground for

relief is exhausted only to the extent that Petitioner argues that counsel was ineffective for failing

to call Tucker, Hackney, and Del Re as witnesses. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate review

process.” (alteration added)); see also Johnson v. Fla., 32 F.4th 1092, 1096 (11th Cir. 2022) (“[A]

state-court prisoner must present his claim to the state court in a manner that would allow a

reasonable reader to understand the legal and factual foundation for each claim.” (alteration added;

quotation marks and citation omitted)).

B. The Merits

The Court now turns to the merits of each of Petitioner’s properly exhausted claims for

relief.

Ground One. In Ground One, Petitioner asserts that the trial court erred “in limiting the

defense’s cross-examination of A[.]” (Pet. 3 (alteration added)). Further, Petitioner argues that

the state court’s finding that he could not establish prejudice in relation to this claim was

unreasonable and wrong. (See id. 10). In short, Petitioner raises a challenge under the

Confrontation Clause of the Sixth Amendment. Petitioner’s arguments fail to persuade.

The limitation imposed by the trial court that Petitioner challenges is as follows:

[DEFENSE COUNSEL]: And you testified that on other occasions the girls would

make reference to this alleged abuse, correct?

[AM]: Yes.

[DEFENSE COUNSEL]: And after a while they started saying it as a joke?

[AM]: They did.

[DEFENSE COUNSEL]: They would laugh about it?

[AM]: Yes.

[DEFENSE COUNSEL]: And it made you feel like it wasn’t real?

[STATE]: Objection, Judge.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Can we approach?

THE COURT: No.

(Whereupon, a bench conference was had as follows:)

[STATE]: Same objection as before we started. There’s no relevance and this

witness can’t opine as to the truthfulness of these victims’ -- of their statements.

[DEFENSE COUNSEL]: The difference is that on direct examination she elicited

a reason, a very specific reason from this witness as to why she never told an adult,

which was she was trying to keep their friendship. There’s a different reason that

she has testified as to why she didn’t tell anybody, and that was that she no longer

believed it and did not want to look stupid.

THE COURT: Anything else from anyone?

[STATE]: No, Judge.

THE COURT: Objection sustained. Move on.

(Whereupon, the bench conference was concluded.)

(Trial Tr. 969:25–971:9 (alterations added)).

“The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in

a criminal prosecution ‘to be confronted with the witnesses against him.’” Delaware v. Van

Arsdall, 475 U.S. 673, 678 (1986). Nevertheless, “the right to confront and to cross-examine is

not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the

criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (citation omitted).

“[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (alteration added; citation and emphasis omitted).

The Supreme Court has explained that “trial judges retain wide latitude [under] the Confrontation

Clause [] to impose reasonable limits on [] cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679 (alterations added).

The trial court’s decision to limit this cross-examination did not amount to a violation or

an unreasonable application of federal law. To show a Confrontation Clause violation, a defendant

must prove he was “prohibited from engaging in otherwise appropriate cross-examination[.]” Id.

at 680 (alteration added; citation omitted). Under both federal and Florida law, a witness cannot

comment on the credibility of another witness. See United States v. Schmitz, 634 F.3d 1247, 1269

(11th Cir. 2011) (explaining that “credibility determinations are to be made by the jury, not the

testifying witness” (citations omitted)); Calloway v. State, 210 So. 3d 1160, 1189 (Fla. 2017) (“[I]t

is erroneous to permit a witness to comment on the credibility of another witness because the jury

alone determines the credibility of witnesses.” (alteration added; citations omitted)). In short,

defense counsel’s questions — asking the witness if she believed the victims’ accounts of

events (see Trial Tr. 969:9–971:6) — were improper. The trial court was thus within its discretion

to limit cross-examination.

Even if Petitioner could establish that the trial court erred, he would not be entitled to

habeas relief on this claim because he fails to demonstrate prejudice. See Davenport, 596 U.S. at

126. He does not argue, nor does he offer any evidence showing the trial court’s decision to limit

cross-examination rendered his trial fundamentally unfair. (See generally Pet.; Reply). Further,

Petitioner faces a voluminous body of high-quality evidence supporting the jury’s verdict. Such

evidence includes: (1) the victims’ testimony that Petitioner touched Victim One’s genitals (see

Trial Tr. 604:1–20, 881:1–18); (2) the victims’ testimony that Petitioner would expose himself to

the girls under his desk and force them to kiss his genitals (see id. 608:18–611:24, 883:9–18); (3)

a fellow student’s testimony that he saw the victims go under Petitioner’s desk (see id. 666:19–24

(“[T]hey would ask some questions about whatever the work they were doing would be. And they

would just end up under [the desk].” (alterations added))); (4) testimony from another victim that

Petitioner molested her several times during the year he was her teacher (see id. 981:8–984:25);

and (5) Petitioner’s failure to unequivocally deny the victims’ accusations of molestation on the

controlled calls (see id. 728:2–778:7, 785:3–833:11).

Accordingly, the Court denies Ground One on the merits.

Ground Three. In Ground Three, Petitioner asserts, “the [trial] court erred in admitting

the substance of the Spanish teacher’s police statement that the [Petitioner’s] student[]s were

sometimes removed from her class.” (Pet. 4 (alterations added)). Petitioner does not argue facts

to substantiate this claim, instead relying on vague and conclusory statements to support an

entitlement to habeas relief. (See id. 10 (stating “Petitioner’s Fifth, Sixth and Fourteenth

Amendment protections were implicated” by the trial court’s admission of “the substance of the

Spanish teacher’s police statement”)). Petitioner, therefore, fails to establish that he is entitled to

relief on Ground Three. See Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (“It is the

petitioner’s burden to establish his right to habeas relief[,] and he must prove all facts necessary to

show a constitutional violation.” (alteration added; citations omitted)).

Putting this deficiency aside, the claim still fails on the merits. Read liberally, the Petition

appears to raise a Confrontation Clause challenge to the Spanish teacher’s statements. Even

assuming Petitioner had properly framed this ground for relief, the challenge would be futile,

because the introduction of the Spanish teacher’s sworn statement did not result in a violation or

an unreasonable application of federal law.

To recap, at trial, defense counsel challenged the thoroughness of the lead detective’s

investigation by exposing the detective’s failure to corroborate the victims’ accusations with

school records or the findings of the school’s internal investigation into Petitioner’s conduct. (See

Trial Tr. 848:15–850:15). To rebut this line of questioning, the State elicited testimony from the

lead detective describing the Spanish teacher’s sworn statement that Petitioner took certain

unspecified students “out of her Spanish class[.]” (Id. 863:21–864:2 (alteration added)). Relying

on the Spanish teacher’s statement, the lead detective stated that she did not feel there was “any

need to get the school records[.]” (Id. 864:14–23) (alteration added)).

Certainly, the Confrontation Clause, in some circumstances, bars the introduction of out-

of-court, testimonial statements at trial. See Crawford v. Washington, 541 U.S. 36, 50–51 (2004).

And while Petitioner is correct that the Spanish teacher’s statement was hearsay, the constitutional

right to confrontation does not exclude all hearsay evidence. (See Pet. 7, 10); Fla. Stat. §

90.801(1)(b) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); Dutton v. Evans,

400 U.S. 74, 80 (1970). For instance, “where proffered hearsay has sufficient guarantees of

reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause

is satisfied.” White v. Illinois, 502 U.S. 346, 356 (1992) (alteration added). Courts deem such

admissible hearsay reliable because “a statement that qualifies for admission under a ‘firmly

rooted’ hearsay exception is so trustworthy that adversarial testing can be expected to add little to

its reliability.” Id. at 357 (citing Idaho v. Wright, 497 U.S. 805, 820–21 (1990)).

The Spanish teacher’s testimonial statement4 falls squarely into a well-settled hearsay

exception: the State introduced the statement not to prove the truth of the matter asserted, but rather

to show why the lead detective made certain decisions during her investigation. (See Trial Tr.

860:9–11; Answer Br. 136 (arguing, before the Fourth DCA, that that the Spanish teacher’s

statement was not inadmissible hearsay because it “was not offered to prove the truth of the matter

asserted” but “to show that the [Spanish teacher’s] statement made review of the school records

unnecessary” (alteration added))). Considering the Confrontation Clause “does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter asserted[,]”

Crawford, 541 U.S. at 59 n.9 (alteration added; citation omitted), the trial court did not err in

allowing the State to introduce the Spanish teacher’s sworn statement, see United States v. Jiminez,

564 F.3d 1280, 1287 (11th Cir. 2009) (allowing an out-of-court statement to explain why certain

decisions were made during an investigation).

In any event, even if Petitioner could establish that the trial court’s decision was erroneous,

4 The Spanish teacher’s statement was testimonial because it could have been offered at trial as testimony.

See United States v. Hano, 922 F.3d 1272, 1287 (11th Cir. 2019) (“Statements made in the course of an

out-of-court conversation are ‘testimonial’ if ‘in light of all the circumstances, viewed objectively, the

primary purpose of the conversation was to creat[e] an out-of-court substitute for trial testimony.’”

(alteration in original; quoting Ohio v. Clark, 576 U.S. 237, 245 (2015); other citations omitted)).

he fails to show, with any degree of specificity, how the trial court’s decision in this regard affected

the outcome of his trial. (See generally Pet.; Reply); see also Davenport, 596 U.S. at 126.

Petitioner, thus, fails to show prejudice.

Accordingly, the Court denies Ground Three on the merits.

Ground Four. In Ground Four, Petitioner argues that defense counsel rendered ineffective

assistance by failing to call additional defense witnesses to support a theory of fabrication. (See

Pet. 11). The Court denies this claim on the merits because the trial court’s ruling on this issue

was not contrary to federal law, and defense counsel’s performance did not amount to ineffective

assistance.

Petitioner raised this issue in his Rule 3.850 motion, arguing that defense counsel was

ineffective for failing to call Tucker, Hackney, and Del Re, among others. (See R. 3.850 Mot.

187–97). The post-conviction court granted an evidentiary hearing on this issue. (See Am. Order

Grant. and Den. R. 3.850 Mot. 185). At the hearing, Petitioner testified that he informed defense

counsel of the existence of potential witnesses — such as Tucker, Hackney, and Del Re — and

that defense counsel thought these three witnesses “would be good to counter what the State was

saying.” (Evid. Hr’g Tr. 27:24–25). Defense counsel testified that he decided against calling

witnesses because his trial strategy focused on attacking the adequacy of the police investigation

and arguing that there existed reasonable doubt as to Petitioner’s guilt. (See id. 21:14–22:9).

At trial, Petitioner appears to have acquiesced to this strategy. During the trial, the court

recessed to allow Petitioner to confer with his attorney over the decision to not call witnesses (see

id. 28:15–29:3), after which defense counsel confirmed he would not be calling any witnesses.

(See id. 29:4–14). Following the evidentiary hearing, the post-conviction court — acting within

the scope of its authority — found defense counsel’s testimony more credible than Petitioner’s,

see Cuevas-Rodriguez v. Sec’y, Fla. Dep’t of Corr., No. 20-cv-904, 2023 WL 6038104, at *16

(M.D. Fla. Sept. 15, 2023) (“The postconviction court found their testimony credible, and this

Court is not in a position to revisit credibility determinations and extends deference to the state

court’s credibility determinations.” (citing Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845

(11th Cir. 2011))), and concluded that counsel rendered competent assistance (see Final Order

Den. R. 3.850 Mot. 294). The Fourth DCA affirmed the post-conviction court’s order in an

unelaborated affirmance, see Budd, 345 So. 3d at 285, and so the Court looks to the post-conviction

court’s decision, see Wilson, 138 S. Ct. at 1192. The post-conviction court’s decision is

reasonable, and, as such, is entitled to deference under the AEDPA.

When it comes to the strategic decisions a defense attorney makes at trial, the Supreme

Court is clear: “[c]ourts must ‘indulge the strong presumption’ that counsel’s performance was

reasonable and that counsel ‘made all significant decisions in the exercise of reasonable

professional judgment.’” Chandler, 218 F.3d at 1314 (alteration added; other alteration adopted;

citations omitted). “Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one [courts] [should] seldom, if ever, second guess.” Waters v. Thomas,

46 F.3d 1506, 1512 (11th Cir. 1995) (alterations added; citation omitted). To rebut the strong

presumption that counsel’s strategic decision was reasonable, “a petitioner must establish that no

competent counsel would have made such a choice.” Provenzano v. Singletary, 148 F.3d 1327,

1332 (11th Cir. 1998) (citations omitted).

Further, even if counsel erred, Petitioner must also show that counsel’s failure to call the

witnesses prejudiced his defense. See Fortenberry v. Haley, 297 F.3d 1213, 1227 (11th Cir. 2002)

(“Whether or not defense counsel’s investigation [of an allegedly exculpatory witness] was in fact

unreasonable under Strickland, [the alleged testimony] is insufficient to undermine confidence in

[the] conviction.” (alterations added; citation omitted)). A defendant is generally not prejudiced

if there is otherwise strong evidence of his guilt. See, e.g., Thomas v. United States, 596 F. App’x

808, 811 (11th Cir. 2015).

Petitioner fails to show that defense counsel’s decision to not call witnesses was

unreasonable. At the evidentiary hearing, defense counsel provided sound reasoning for deciding

against calling witnesses: he was concerned about the possibility of creating an opening for the

State to attack Petitioner’s character, and his trial strategy instead focused on attacking the police

investigation. (See Evid. Hr’g Tr. 22:10–13). In reviewing defense counsel’s performance, the

Court “must be highly deferential” and make “every effort . . . to eliminate the distorting effects

of hindsight[.]” Strickland, 466 U.S. at 690 (alterations added). Given this highly deferential

standard of review, the Court agrees with the post-conviction court that counsel’s performance did

not fall “below an objective standard of reasonableness.” Id. at 688. Certainly, Petitioner has

failed to demonstrate that “no competent counsel would have made” a similar decision.

Provenzano, 148 F.3d at 1332. Petitioner thus fails to establish deficient performance.

Even if defense counsel had rendered ineffective assistance — which he did

not — Petitioner fails to demonstrate that counsel’s performance prejudiced his defense. The

burden of establishing prejudice under Strickland “is particularly heavy where the petitioner

alleges ineffective assistance in failing to call a witness because often allegations of what a witness

would have testified to are largely speculative.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d

1357, 1365 (11th Cir. 2021) (quotation marks and citations omitted). Moreover, “a petitioner’s

own assertions about whether and how [] witness[es] would have testified are usually not enough

to establish prejudice[.]” Id. (alterations added; citations omitted)).

Petitioner provides no independent evidence that, had defense counsel called Tucker,

Hackney, and Del Re, their testimony would have proven favorable to his defense. (See generally

Pet.; Reply). Thus, Petitioner’s speculation on this point is insufficient to establish prejudice. See

Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) (noting that “speculation that the

missing witnesses would have been helpful . . . is insufficient to carry the burden of a habeas

corpus petitioner.” (alteration added; quotation marks and citation omitted)). Furthermore, as

previously discussed, the State presented strong evidence proving Petitioner’s guilt, making it

difficult — if not impossible — for Petitioner to demonstrate prejudice. See Thomas, 596 F. App’x

at 811.

Accordingly, the Court denies Ground Four on the merits.

Ground Five. In Ground Five, Petitioner argues that defense counsel rendered ineffective

assistance by failing to introduce evidence of a civil suit that would have given the victims motive

to fabricate their molestation accusations. (See Pet. 14). Like Ground Four, the Court denies this

claim on the merits because the post-conviction court’s ruling on this issue was not contrary to

federal law, and because defense counsel’s performance did not amount to ineffective assistance.

Petitioner states that he told his defense counsel to present evidence of the civil suit

between the victims and the school. (See id.). Petitioner believed that introducing this evidence

would demonstrate to the jury that the victims had a motive to make false accusations against him.

(See id.). Additionally, Petitioner argues that if defense counsel had introduced evidence of the

civil suit, the outcome of his trial would have been different. (See id. 14–15).

Petitioner raised this claim in his Rule 3.850 motion (see R. 3.850 Mot. 197–203); and the

post-conviction court granted an evidentiary hearing (see Am. Order Grant. and Den. R. 3.850

Mot. 185–86). During the hearing, defense counsel stated that he researched the admissibility of

the civil suit, finding it would be admissible and relevant to proving the victims’ motive or bias.

(See Evid. Hr’g Tr. 23:10–13). But after discussing the issue with Petitioner, defense counsel

decided against using evidence of the civil suit because he thought the jury would interpret it as a

concession of Petitioner’s guilt. (See id. 23:23–24:5). Moreover, defense counsel did not think

evidence of the civil suit was particularly convincing because it would have required the defense

to argue that the victims “hatched a scheme when they were nine to lie about [Petitioner] [a]nd

then waited six years until they were fifteen years old to spring that scheme in order to make

money.” (Id. 24:23–25:7).

Following the evidentiary hearing, the post-conviction court concluded that counsel’s

“decision not to cross-examine witnesses about the settlement agreement was . . . an appropriate

strategic decision” and denied Petitioner’s claim. (Final Order Den. R. 3.850 Mot. 295). The

Fourth DCA affirmed the post-conviction court’s order. See Budd, 345 So. 3d at 285. The post-

conviction court’s determination is reasonable and entitled to deference under the AEDPA.

Defense counsel’s decision to present certain evidence to the exclusion of other evidence

is a strategic decision “entitled to a ‘strong presumption’ of reasonableness.” Dunn v. Reeves, 141

S. Ct. 2405, 2410 (2021) (quoting Harrington, 562 U.S. at 104). Simply put, “strategy” means

“counsel’s course of conduct, that was neither directly prohibited by law nor directly required by

law, for obtaining a favorable result for his client.” Chandler, 218 F.3d at 1314 n.14. A strategic

decision does not amount to ineffective assistance unless it is patently unreasonable, even if the

decision might “have been unwise in retrospect[.]” Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092,

1099 (11th Cir. 2007) (alteration added). “It is reasonable — and not ineffective — for trial

counsel to eliminate certain lines of presentation if he has misgivings about hurtful cross-

examination and rebuttal witnesses.” Lukehart v. Sec’y, Fla. Dep’t of Corr., 50 F.4th 32, 47 (11th

Cir. 2022) (quotation marks and citation omitted).

Petitioner fails to demonstrate that defense counsel’s decision to not present evidence of

the civil suit was patently unreasonable. It was certainly rational for counsel to conclude that (1)

accusing two young girls of lying about their molestation was a risky trial strategy, and

(2) referencing a civil suit that ended with a significant monetary settlement could have proven

fatal to Petitioner’s case. (See Evid. Hr’g Tr. 24:23–25:7; Final Order Den. R. 3.850 Mot. 294).

Further, defense counsel was an attorney with over 20 years of experience exclusively practicing

criminal defense (see Evid. Hr’g Tr. 13:5–18), and the Court is reluctant “to second guess strategic

decisions . . . made by experienced criminal defense counsel[.]” Provenzano, 148 F.3d at 1332.

Consequently, Petitioner fails to establish that defense counsel was deficient in this regard.

Petitioner also fails to establish prejudice. Even if counsel had used evidence of the

settlement agreement to impeach the victims’ credibility, Petitioner offers no reason why the jury

might have found this defense convincing. Indeed, the State might have used it to Petitioner’s

disadvantage, as defense counsel feared might happen. (See Evid. Hr’g Tr. 24:23–25:7). As such,

Petitioner’s speculative claims of prejudice fail to persuade. See Johnson, 256 F.3d at 1187.

Accordingly, the Court denied Ground Five on the merits.

Ground Six. In Ground Six, Petitioner argues that defense counsel rendered ineffective

assistance by failing to review the State’s redacted versions of the controlled calls and failing to

file a motion to suppress. (See Pet. 16). As with Petitioner’s prior claims, the Court denies this

claim on the merits because the post-conviction court’s ruling on this issue was not contrary to

federal law and counsel’s performance did not amount to ineffective assistance.

In the Petition, Petitioner argues that defense counsel should have moved for a continuance

and reviewed the redacted versions of the controlled calls before the State played them for the jury.

(See id. 16). According to Petitioner, the redacted versions of the controlled calls excluded his

statements denying the victims’ accusations and, as such, should have been suppressed. (See id.

16–17).

Petitioner raised this claim in his Rule 3.850 motion. (See R. 3.850 Mot. 203–12). The

post-conviction court denied this claim, finding defense counsel did review the controlled calls

and moved to redact portions of the controlled calls for strategic defense purposes. (See Am. Order

Grant. and Den. R. 3.850 Mot. 186–88). The post-conviction court also found that Petitioner failed

to demonstrate prejudice because he did not make exculpatory statements on the controlled calls,

as he claimed to have done. (See id.). The Fourth DCA affirmed the post-conviction court’s order.

See Budd, 345 So. 3d at 285. Once more, the post-conviction court’s determination was reasonable

and is entitled to deference under the AEDPA.

Petitioner’s ineffective-assistance-of-counsel argument fails for two reasons. First,

counsel had no grounds on which to seek suppression of the recorded calls. Florida law allows

law enforcement officers or those acting under an officer’s “direction” to “intercept a wire, oral,

or electronic communication when such person is a party to the communication or one of the

parties to the communication has given prior consent to such interception and the purpose of such

interception is to obtain evidence of a criminal act.” Fla. Stat. § 943.03(2)(c).

The recording was admissible because the victims — parties to the

communications — consented to the controlled calls. See id.; (Trial Tr. 627:24–628:10, 703:9–

11). Certainly, defense counsel might have argued for suppression of the recordings if Petitioner

demonstrated that the calls were coerced. See, e.g., Harris v. Jones, No. 15-cv-628, 2017 WL

1017644, at *14 (N.D. Fla. Jan. 31, 2017) (“In the absence of any evidence suggesting coercion,

there was no basis for defense counsel to seek suppression of the controlled call under Florida's

wiretap statutes.”), report and recommendation adopted, No. 15-cv-628, 2017 WL 1015845 (N.D.

Fla. Mar. 15, 2017). But Petitioner presents no evidence showing that the controlled calls were

“coerced in any way, and, thus,” defense counsel had no basis on which to seek suppression of the

controlled calls. Rightmire v. Fla., Sec’y Dep’t of Corr., No. 17-10947-D, 2017 WL 3923327, at

*2 (11th Cir. May 15, 2017). Defense counsel thus cannot be deemed ineffective for failing to file

a meritless suppression motion. See Owens v. Wainwright, 698 F.2d 1111, 1114 (11th Cir. 1983).

Second, the record refutes Petitioner’s claim (see Pet. 16) that defense counsel failed to

review the redacted versions of the controlled calls. Defense counsel reviewed the controlled calls

and filed a pretrial motion to redact portions that related to Petitioner’s uncharged conduct, which

the trial court granted. (See Trial Tr. 718:19–719:16). Counsel also objected to the State’s

redaction of the victims’ statements from the controlled calls, which he argued were inconsistent.

(See id. 722:22–724:1). Therefore, Petitioner’s claims that defense counsel failed to review the

controlled calls are baseless.

Regardless, Petitioner once again offers no evidence of prejudice. “Strickland places the

burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would

have been different” had counsel performed as Petitioner now argues he should have. Wong v.

Belmontes, 558 U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). Petitioner fails to meet

this burden, offering only unsubstantiated — and thus, insufficient — claims of prejudice. See

Hill v. Lockhart, 474 U.S. 52, 60 (1985); see also Rockett v. Sec’y, Dep’t of Corr., No. 08-cv-1417,

2014 WL 3809146, at *12 (M.D. Fla. Aug. 1, 2014) (“The Defendant’s claim is facially

insufficient because the Defendant has not alleged how he was prejudiced by counsel’s erroneous

advice.” (citation omitted)). Furthermore, Petitioner provides no reason to overlook the

voluminous and highly probative evidence otherwise offered at trial. Petitioner thus fails to

establish that defense counsel’s performance in this regard affected the outcome of his trial.

Accordingly, the Court denies Ground Six on the merits.

Ground Seven. In Ground Seven, Petitioner argues that defense counsel rendered

ineffective assistance by failing to introduce Petitioner’s post-arrest statement to police denying

the victims’ accusations. (See Pet. 17). As with the other claims, the Court denies this claim on

the merits because the trial court’s ruling on this issue was not contrary to federal law, and defense

counsel’s performance did not amount to ineffective assistance.

In the Petition, Petitioner argues that defense counsel should have introduced his post-

arrest statement to police denying the victims’ accusations. (See id. 17–18). Petitioner believes

that had his post-arrest statement been introduced, it would have contradicted the controlled calls,

which were redacted to make Petitioner appear guilty. (See id.).

Petitioner raised this claim in his Rule 3.850 motion. (See R. 3.850 Mot. 213–24). The

post-conviction court denied the claim, finding that Petitioner’s post-arrest statement was

inadmissible hearsay. (See Am. Order Grant. and Den. R. 3.850 Mot. 188–89). The post-

conviction court added that the rule of completeness did not apply because the post-arrest

statement was to police during an interrogation, while Petitioner’s statements on the controlled

call were made to the victims. (See id. 189). “Thus, the two statements ‘were made to different

persons in different settings and could not be viewed as a single continuous narrative or process

of interrogation.’” (Id. (quoting Carter v. State, 226 So. 3d 268, 271–72 (Fla. 4th DCA 2017))).

The Fourth DCA affirmed the post-conviction court’s order. See Budd, 345 So. 3d at 285. Once

more, the post-conviction court’s determination here is reasonable and, as such, entitled to

deference under the AEDPA.

Petitioner’s post-arrest statement was inadmissible hearsay; thus, defense counsel’s failure

to move for its admission did not amount to ineffective assistance. Hearsay “is a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Fla. Stat. § 90.801(1)(b). Petitioner’s statement made to the

police denying the victims’ accusations against him was an inadmissible, out-of-court statement

offered to prove the matter asserted. See Calloway, 210 So. 3d at 1183 (“Self-serving hearsay

statements are generally inadmissible.” (citation omitted)).

The Court defers to the post-conviction court’s finding that Petitioner’s statement did not

fall within the exception established by Florida’s rule of completeness. (See Am. Order Grant.

and Den. R. 3.850 Mot. 189); see also McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.

1992) (“A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus

relief, since no question of a constitutional nature is involved.” (citation omitted)). In sum,

Petitioner’s statement did not fall under a hearsay exception; consequently, defense counsel had

no ground on which to seek its admission. See, e.g., United States v. Curbelo, 726 F.3d 1260,

1267 (11th Cir. 2013) (“[I]t goes without saying that counsel is not ineffective for failing to file a

meritless [] motion.” (alterations added; citation omitted)).

Accordingly, the Court denies Ground Seven on the merits.

Ground Eight. In his eighth, and final claim, Petitioner argues that defense counsel

rendered ineffective assistance by failing to object to the State’s improper closing argument and

failing to request a jury instruction that would cure the prejudice created by the State’s comments.

(See Pet. 19). As with Petitioner’s previous claims, the Court denies this claim on the merits

because the trial court’s ruling on this issue was not contrary to federal law, and counsel’s

performance did not amount to ineffective assistance.

Petitioner claims that the State mischaracterized the evidence presented by overstating the

thoroughness of the police investigation and asserts that this mischaracterization prejudiced the

outcome of his trial. (See id.). Petitioner raised this claim in his Rule 3.850 motion. (See R. 3.850

Mot. 224–27). The post-conviction court denied this claim on the ground that Petitioner failed to

demonstrate prejudice because the trial court instructed the jury that “closing argument [was] not

evidence nor instruction on the law” (Am. Order Grant. and Den. R. 3.850 Mot. 190 (alteration

added; citing Trial Tr. 1044:5–11)), and defense counsel “extensively attacked the thoroughness

and credibility of” the police investigation (id. (alteration added; citing Trial Tr. 1083:11–

1090:12)). The post-conviction court determined that these two considerations militated against a

finding of prejudice. (See id.). The Fourth DCA affirmed the post-conviction court. See Budd,

345 So. 3d at 285. The post-conviction court’s determination is reasonable and entitled to

deference under the AEDPA.

Petitioner’s claim arises from defense counsel’s failure to object to the following

statements made by the State during closing:

So the only evidence that would be present would come in the form of

witnesses and statements that corroborate them.

Now, I imagine that counsel will also argue that, you know what, Detective

Colombino, she just did not do a thorough investigation. He’s going to tell you she

didn’t follow up with the witnesses. She didn’t get the reports from [the School].

But what do you know about that?

You had an opportunity to hear from Detective Colombino. And what did

she tell you?

She told you that during the course of this investigation law enforcement

spoke with over seventy witnesses involved in this matter.

. . . .

Think about it. If every child whose photographed on that classroom

photograph had came [sic] in here, each one by one, and said to you, yes, I

remember, I remember [Petitioner] had those girls under the desk, I remember that

[Petitioner] would let them have special privileges, I remember that they were doing

cartwheels in the class, I can imagine that the Defense[’]s argument at that point

would be it would be too convenient that they all now shared that memory.

(Trial Tr. 1052:14–1053:24 (alterations added)).

Again, a habeas petitioner bears a “heavy burden” in proving claims of ineffective

assistance of counsel. Ward, 592 F.3d at 1163. This is partly because “[j]udicial scrutiny of

counsel’s performance must be highly deferential,” and there is a “strong presumption that

counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Strickland,

at 689. Petitioner does not meet this burden.

While defense counsel did not object, he nevertheless challenged the State’s comments

during his own closing argument, emphasizing the defense’s position that Petitioner was innocent,

and the State failed to prove Petitioner’s guilt beyond a reasonable doubt. (See Trial Tr. 1082:6–

23). Defense counsel supported this position by arguing that (1) police failed to conduct a thorough

investigation before arresting Petitioner and instead allowed the investigation to take place “after

[Petitioner] was already arrested” (id. 1083:15–22); (2) the police undermined the reliability of the

witnesses interviewed because they were interviewed after Petitioner’s “face was plastered on

television and in the newspaper” (id.); (3) there was “[z]ero physical . . . [or] scientific evidence”

proving Petitioner’s guilt (id. 1084:10–15); and (4) police failed to locate and interview critical

witnesses (see id. 1085:8–16). Considering defense counsel’s closing — which directly attacked

the statements Petitioner now objects to — Petitioner cannot show his counsel’s performance was

deficient.

Petitioner also fails to demonstrate prejudice. The trial court properly instructed the jury

that closing arguments are not evidence (see id. 1044:8–9), and “a jury is presumed to follow jury

instructions[,]” United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (alteration added;

quotation marks and citations omitted). Absent any evidence to the contrary, the trial court’s

instruction to the jury was enough to safeguard against any alleged prejudice created by the State’s

characterization of the evidence.

Accordingly, the Court denies Ground Eight on the merits.

C. Evidentiary Hearing

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

federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corrs., 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) (alteration added). Here, the pertinent facts of the case are fully

developed in the record, and the Court can “adequately assess [Petitioner’s] claim[s] without

further factual development.” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003)

(alterations added). Accordingly, Petitioner is not entitled to an evidentiary hearing. See id.

D. Certificate of Appealability

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

habeas corpus has no absolute entitlement to appeal and must obtain a certificate of appealability.

See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). A certificate of

appealability shall issue only if Petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner must

demonstrate that “reasonable jurists” would find the correctness of the district court’s rulings

“debatable.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration of the record, the

Court concludes there is no basis to issue a certificate of appealability.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. The Petition Under 28 U.S.C. [section] 2254 for a Writ of Habeas Corpus by a

Person in State Custody [ECF No. 1] is DISMISSED without prejudice in part on

CASE NO. 22-81441-CIV-ALTONAGA

procedural grounds and is DENIED in part on the merits, as described above.

2. A certificate of appealability is DENIED. Because there are no issues with

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

not entitled to appeal in forma pauperis.

3. Final judgment shall be entered by separate order. The Clerk of Court is directed

to CLOSE this case.

DONE AND ORDERED in Miami, Florida, this 3rd day of November, 2023.

Coccha Ih. Athnape

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

ce: counsel of record;

Petitioner, pro se

34