Henderson v. Secretary, Department of Children & Families

United States District Court

for the

Southern District of Florida

Gregory O’Neil Henderson, )

Petitioner )

)

v. )

Civil Action No. 23-21294-Scola

)

Secretary, Department

Of Children and Families, et al.,

Respondents.

Order

Before the Court is pro se Petitioner Gregory O’Neil Henderson’s petition

under 28 U.S.C. § 2254 (ECF No. 1).1 The petition raises sixteen grounds for

relief which challenge the constitutionality of his involuntary commitment as a

“sexually violent predator” at the Florida Civil Commitment Center (“FCCC”).

(See id. at 1–2). The Respondent filed a response (ECF No. 14) and two

appendices (ECF Nos. 15, 16) with accompanying exhibits (ECF No. 15-1–15-4)

and transcripts (ECF No. 16-1–16-4). The Petitioner filed a reply (ECF No. 22).

The Court has carefully reviewed the parties’ written submissions, the record,

and applicable law. For the reasons explained below, Grounds 13 through 16 of

the Petition are dismissed and the rest of the Petition is denied on the merits.

1. Background

Between November 22, 1989, and January 12, 1990, the State charged

the Petitioner with six counts of sexual battery on a person less than twelve

years of age. (See Informations, ECF No. 15-1 at 24–34). Pursuant to a plea

agreement with the State, the Petitioner entered a plea of no contest to three

counts of familial sexual battery, a lesser-included offense, in exchange for a

1 Although the Petitioner claims that he is bringing his Petition under 28 U.S.C.

§ 2241, challenges to the constitutionality of an involuntary civil commitment

occurring after the petitioner served a criminal sentence should be brought

pursuant 28 U.S.C. § 2254. See Kakuk v. Dep’t of Child. & Fam., 516 F. App’x

901, 902 & n.1 (11th Cir. 2013); Garcia v. Abbate, 2024 WL 517987, at *1 n.1

(S.D. Fla. Feb. 9, 2024) (Ruiz, J.).

fifteen-year sentence followed by five years of probation. (See J. & Sentences,

ECF No. 15-1 at 36–52). After the Petitioner violated the terms of his probation,

the state trial court revoked his probation on February 14, 1997, and imposed

a new sentence of thirty years. (See VOP J. & Sentences, ECF No. 15-1 at 53–

76). The Petitioner was then placed on “conditional release” on November 9,

2004, but that release was revoked effective May 18, 2005, after probation

officers discovered pornographic material in the Petitioner’s home. (See

Revocation of Conditional Release Order, ECF No. 15-1 at 79).

On September 5, 2013, a team of psychologists retained by the Florida

Department of Children and Families (“DCF”) determined that the Petitioner

met the “criteria to be considered a sexually violent predator” and

recommended that the State “file a petition seeking Mr. Henderson’s

involuntary civil commitment” under Florida’s “Jimmy Ryce Act.” (DCF

Recommendation, ECF No. 15-1 at 83); see generally Jimmy Ryce Involuntary

Civil Commitment for Sexually Violent Predators’ Treatment and Care Act, Fla.

Stat. §§ 394.910–.932.

On May 1, 2018, after holding a commitment hearing, the state trial

court found that the Petitioner was a “sexually violent predator within the

meaning of the Act” and ordered him to be involuntarily committed to the

custody of DCF. (Order of Commitment, ECF No. 15-1 at 162–63). On appeal,

the Third District Court of Appeal (the “Third DCA”) affirmed the Petitioner’s

involuntary commitment in an unelaborated per curiam decision. See

Henderson v. State, 280 So. 3d 486 (Fla. 3d DCA 2019).

On December 9, 2019,2 the Petitioner filed a twenty-six-claim petition for

writ of habeas corpus under Rule 4.460 of the Florida Rules of Civil Procedure

for Involuntary Commitment of Sexually Violent Predators. (See generally

Habeas Pet., ECF No. 15-1 at 217–68). On June 4, 2020, the State filed a

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).

Response opposing relief. (See generally Resp. to Habeas Pet., ECF No. 15-2 at

1–18). The state postconviction court denied relief on November 20, 2020. (See

Order Denying Habeas Pet., ECF No. 15-3 at 21–31). The Petitioner appealed,

and the Third DCA affirmed in an unelaborated per curiam decision. See

Henderson v. State, 338 So. 3d 881 (Fla. 3d DCA 2022). The Third DCA’s

mandate issued on May 18, 2022. (See May 18, 2022 Mandate, ECF No. 15-3

at 174).

The Petitioner filed the instant petition on March 30, 2023. (See Pet. at

20).

2. Legal Standard

A. 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) (quotation marks omitted). “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) (quoting Greene v. Fisher, 565 U.S. 34, 38

(2011)).

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)(1)–(2).

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 409–10. Consequently, “[a] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as fairminded jurists could

disagree on the correctness of [the state court’s] decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted). If the last state

court to decide a prisoner’s federal claim provides an explanation for its merits-

based decision in a reasoned opinion, “a federal habeas court simply reviews

the specific reasons given by the state court and defers to those reasons if they

are reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

Even summary rejection of a claim qualifies as an adjudication on the

merits that is entitled to deference under AEDPA. 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).

B. Exhaustion under § 2254

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

exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the

State the opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation

marks 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. (quotation marks and

other omitted); see also 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.”); 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.” (quotation marks omitted)). “In Florida,

exhaustion usually requires not only the filing of a [Fla. R. Crim. P.] 3.850

motion, but an appeal from its denial.” Nieves v. Sec’y, Fla. Dep’t of Corr., 770

F. App’x 520, 521 (11th Cir. 2019) (alteration in original).

To fairly present the federal nature of the claim, “[i]t is not sufficient

merely that the federal habeas petitioner has been through the state courts,

nor is it sufficient that all the facts necessary to support the claim were before

the state courts or that a somewhat similar state-law claim was made.” Kelley

v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1343–44 (11th Cir. 2004) (citing

Picard v. Connor, 404 U.S. 270, 275–76 (1971) and Anderson v. Harless, 459

U.S. 4, 6 (1982)). Rather, federal courts “have required a state prisoner to

present the state courts with the same claim he urges upon the federal courts.”

Picard, 404 U.S. at 276 (citations omitted). The Eleventh Circuit further has

observed that 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) (quotation marks

omitted).

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. 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) (citation omitted). “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; Harrington, 562 U.S. at 104.

To establish deficient performance, the petitioner must show that,

considering all circumstances, “counsel’s conduct fell ‘outside the wide range of

professionally competent assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588

F.3d 1331, 1356 (11th Cir. 2009) (quoting Strickland, 466 U.S. at 690). Strategic

choices made after thorough investigation of the law and facts relevant to

plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690–

91. The court’s review of counsel’s performance should focus on “not what is

possible or ‘what is prudent or appropriate, but only [on] what is constitutionally

compelled.’” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)

(footnote 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); 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. Timeliness and Exhaustion

The Respondent argues that Ground 15 is untimely and that Grounds 8,

13, 14, 15, and 16 are unexhausted. (See Resp. at 15–16 28–30, 40–41, 43–44,

46–48). The Respondent concedes that all other grounds raised in the Petition

are timely and properly exhausted. (See generally Resp.).

The Court agrees with the Respondent that Grounds 13, 14, 15, and 16

must be dismissed because they are unexhausted and procedurally defaulted

under the “independent and adequate state procedural ground” doctrine.

However, the Court finds that Ground 8 has been exhausted and should be

reviewed on the merits. The Court will not address the Respondent’s timeliness

argument for Ground 15 since it must be dismissed as unexhausted in any

event.

“As a rule, a state prisoner’s habeas claims may not be entertained by a

federal court ‘when (1) a state court has declined to address those claims

because the prisoner failed to meet a state procedural requirement, and (2) the

state judgment rests on independent and adequate state procedural grounds.’”

Maples v. Thomas, 565 U.S. 266, 280 (2012) (cleaned up) (quoting Walker v.

Martin, 562 U.S. 307, 316 (2011)). The Petitioner admits that Grounds 13, 14,

15, and 16 of his Petition are identical to Issues 22, 24, 25, and 26 of his state-

court habeas petition. (Compare Pet. at 15–19, with Habeas Pet., ECF No. 15-1,

at 256–58, 260–67). The state postconviction court denied all four of these

“issues” for the same reason: “any such error should have been raised on direct

appeal.” (Order Denying Habeas Pet., [ECF No. 15-3] at 29–30). Since the Third

DCA affirmed the lower court in an unelaborated per curiam decision, see

Henderson, 338 So. 3d at 881, the Court must assume that it adopted the state

postconviction court’s reasoning that these claims were barred under state law,

see Wilson, 138 S. Ct. at 1192.

Habeas corpus proceedings initiated by involuntarily committed sexually

violent predators are governed by Rule 3.850 of the Florida Rules of Criminal

Procedure. See Fla. R. Civ. P. S.V.P. 4.440(a)(2); see also Williams v. State, 126

So. 3d 264, 265 (Fla. 3d DCA 2010). Rule 3.850 “does not authorize relief

based on grounds that could have or should have been raised at trial and, if

properly preserved on direct appeal of the judgment and sentence.” Fla. R.

Crim. P. 3.850(c). In other words, “issues that could have been, but were not

raised on direct appeal are not cognizable” under Rule 3.850 and “are

procedurally barred from review[.]” Harvey v. Dugger, 656 So. 2d 1253, 1256

(Fla. 1995). The state postconviction court found that Issues 22, 24, 25, and 26

were procedurally barred from being considered under state law because they

could have been raised on direct appeal but were not. (See Order Denying

Habeas Pet., [ECF No. 15-3] at 29–30).3

The Eleventh Circuit has held if a state court denies a claim for failing to

comply with the procedural requirements of Rule 3.850 then it “rest[s] on an

independent and adequate state ground that precludes federal habeas

consideration of [that] issue.” LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d

1237, 1260 & n.25 (11th Cir. 2005); see also, e.g., Hodges v. Sec’y, Dep’t of

Corr., 2007 WL 604982, at *32 (M.D. Fla. Feb. 22, 2007) (finding that an issue

which “should have been objected to at trial and raised on direct appeal” was

procedurally defaulted under § 2254). Since the Petitioner cannot file a second

direct appeal in state court, it is now impossible for him to exhaust Grounds

13, 14, 15, and 16. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

Since the substance of Grounds 13 through 16 were dismissed as procedurally

3 The Petitioner raised only one issue on direct appeal: that the “final judgment

of civil commitment [was] not supported by competent substantial evidence.”

(Initial Br., [ECF No. 15-1] at 176).

barred under state law, they are unexhausted and procedurally defaulted on

federal habeas review.

Procedurally defaulted claims can still be reviewed under § 2254 if the

petitioner can show either “cause and prejudice to excuse the default” or “that

the alleged constitutional error has resulted in the conviction of one who is

actually innocent of the underlying offense.” Dretke v. Haley, 541 U.S. 386, 393

(2004). “But, for either exception to apply, the petitioner bears the burden of

proof.” Burgos v. Dixon, 2022 WL 17093216, at *11 (S.D. Fla. Nov. 21, 2022)

(Altman, J.) (first citing Gordon v. Nagle, 2 F.3d 385, 388 (11th Cir. 1993); and

then citing Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006)). Since the

Petitioner does not argue that the “cause and prejudice” exception applies, the

Court will not address it further. (See generally Pet.; Reply).

Instead, the Petitioner makes conclusory assertions that he is “innocent,”

which the Court takes to mean that the Petitioner does not meet the definition

of a “sexually violent predator” under Florida law. (See Reply at 4). A

petitioner’s blanket insistence that he is innocent is not good enough. He must

support his actual innocence claim “with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S.

298, 324 (1995). Although the Petitioner relies on the putative testimony of

several witnesses as “proof” of his innocence, he admits that he knew about

these witnesses (and their allegedly helpful testimony) before his commitment

hearing took place. (See Reply at 4–5, 9). Many federal courts have held

“evidence that was available at trial but simply not presented” cannot be

considered “new” under Schlup. Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d

1000, 1018 n.21 (11th Cir. 2012). Moreover, even if this testimony could be

considered “new evidence,” the Court finds—for reasons that will be discussed

below—that it fails to meet the “actual innocence” standard since it would not

have changed the outcome of the commitment hearing. See id. at 1011. For

these reasons, the Court finds that the “actual innocence” exception does not

apply, and that the Petitioner cannot excuse the procedural default against

Grounds 13, 14, 15, and 16.

On the other hand, the Court finds that Ground 8 has been exhausted.

Unlike Grounds 13, 14, 15, and 16, Ground 8 argues that counsel performed

ineffectively during the Petitioner’s commitment hearing. (See Pet. at 11–12).

Unlike claims of trial court error or challenges to the constitutionality of a

statute, ineffective-assistance claims must generally “be raised on collateral

review pursuant to Florida Rule of Criminal Procedure 3.850.” Sullivan v. Sec’y,

Fla. Dep’t of Corr., 837 F.3d 1195, 1199 (11th Cir. 2016). Although the state

postconviction court found that the Petitioner’s “substantive claims of

prosecutorial misconduct” were procedurally barred under state law, it did not

find that an ineffective-assistance claim based on that alleged misconduct was

also barred. (Order Denying Habeas Pet., [ECF No. 15-3] at 26). Since Ground 8

was reviewed on the merits by the state’s highest court, it has been exhausted.

See O’Sullivan, 526 U.S. at 845.

4. Discussion

A. Grounds 1 through 7

Grounds 1 through 7 of the Petition allege that counsel should have

called several different witnesses during his commitment hearing: T.D., one of

the victims from the original 1989 sexual battery offenses (Ground 1); four

probation officers and “nine other witnesses”4 (Grounds 2 and 7); Dr. Jeffrey

Musgrove, Dr. Karen T.J. Nammer, Dr. Terrence Campbell and Dr. Joseph

Sesta, four psychologists who examined the Petitioner (Grounds 3, 4 and 6);

and Sergeant Jorge Lorenzo and Officer Rufus Boclaire, two police officers who

arrested the Petitioner on May 17, 2005 (Ground 5). (See Pet. at 5–11). The

state postconviction court concluded that counsel “investigated all witnesses

4 The Petitioner never says who these “nine other witnesses” are or what they

would have testified about. (See Pet. at 6–7). Since the Petitioner fails to allege

who these witnesses are or how they would have been useful to his defense, he

failed to state a claim as to these “nine other witnesses.” See Estiven v. Sec’y,

Dep’t of Corr., 2017 WL 6606915, at *4 (11th Cir. Sept. 28, 2017) (citing United

States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)).

thoroughly and concluded they would only damage [the Petitioner’s] case if

called to testify.” (Order Denying Habeas Pet., [ECF No. 15-3] at 25). The Court

agrees with the state postconviction court’s reasonable application of federal

law and the facts.

“Which witnesses, if any, to call, and when to call them, is the epitome of

a strategic decision, and it is one we will seldom, if ever, second guess.” Waters

v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). Strategic decisions

are entitled to a “strong presumption” of correctness, and so the Petitioner

bears the burden of showing that “no competent counsel” would have refused

to call the witnesses he named. Chandler, 218 F.3d at 1314–15. In addition,

the Petitioner must also show that the testimony of these witnesses was

sufficiently exculpatory such that there was a “reasonable probability” the

outcome of the commitment hearing would have been different if they were

called. See Fortenberry v. Haley, 297 F.3d 1213, 1227 (11th Cir. 2002) (citing

Strickland, 466 U.S. at 694).

First, the Petitioner says that T.D. would have admitted that her “mother

told her to say Petitioner molested her” when she was four years old and that

she would have recanted her accusations against the Petitioner at the

commitment hearing. (See Pet. at 5–6). This argument is meritless and

borderline fanciful. There is no evidence that T.D. would have recanted her

testimony from when she was four-years-old and any argument to the contrary

is rank speculation. See Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.

1985). In addition, counsel did reach out to T.D. and her family and concluded

that they “were not receptive.” (Aug. 29, 2017 Letter from Counsel, ECF No. 15-

2 at 24). Counsel was not ineffective for failing to call a victim who was not

willing to testify on the Petitioner’s behalf and would have most likely given

damaging testimony at the hearing. See, e.g., Cardona v. Dixon, __ F. Supp. 3d

___, 2023 WL 4202633, at *14 (S.D. Fla. June 27, 2023) (Altman, J.) (holding

that counsel was not ineffective for failing to call a witness who told the

defendant’s investigator to “[L]eave me alone. Leave my family alone”).

Second, the Petitioner claims that four different probation officers would

have testified about the circumstances of a “verification check” where

pornography was found in the Petitioner’s bedroom. (See Pet. at 6–7, 11). The

state postconviction court reasonably concluded that this testimony would

have been “irrelevant.” (See Order Denying Habeas Pet., [ECF No. 15-3] at 25).

Counsel considered calling these witnesses but wisely concluded that the

pornography incident was essentially a red herring. As counsel explained to the

Petitioner:

I again implore you to look at the bigger picture. If you are civilly

committed it won’t be because the jury believed you had

pornography, it will be because they believe you molested 3 little

girls, that you are a pedophile and that you are likely to do it again.

Whether or not you had pornography under your bed and who it

belonged to is NOT the main issue, in fact it is barely an issue at all.

(Oct. 2, 2015 Letter from Counsel, [ECF No. 15-2] at 33).

Counsel’s assessment was undoubtedly correct since the trial court cited

the Petitioner’s pedophilia—not the fact he once had pornographic material

under his bed—as the reason he should be committed as a sexually violent

predator. (See Vol. 2 May 1, 2018 Tr., ECF No. 16-4 at 46–48). In his Reply, the

Petitioner argues that the pornography found under his bed was mistakenly

described as “child porn,” so it must have had an adverse impact on him

during the commitment hearing. (See Reply at 2). This argument is

unpersuasive since the order revoking the Petitioner’s conditional release

specifically describes the pornography as an “adult video tape”—not child

pornography. (See Revocation of Conditional Release Order, ECF No. 15-1 at

79). Counsel was not ineffective for failing to call these irrelevant witnesses.

See Densmore v. United States, 543 F. Supp. 2d 1359, 1365 (S.D. Ga. 2008).

Third, the Petitioner alleges that counsel should have called Drs.

Musgrove, Namer, Campbell, and Sesta to explain the “different and conflicting

results in the evaluations” they gave. (Pet. at 7–8, 10). The state postconviction

court reasonably concluded that the testimony of these psychologists would

have been damaging to the Petitioner’s case, not favorable. Although Dr.

Musgrove and Dr. Namer’s reports were not identical, both still concluded that

the Petitioner met the criteria to be committed as a sexually violent predator.5

(See Dr. Musgrove Report, ECF No. 15-1 at 87–110; Dr. Namer Report, ECF No.

15-1 at 119–29). Dr. Sesta was potentially an even more damaging witness

since he “changed his opinion” to the Petitioner’s detriment after concluding

that the Petitioner was malingering during the examination. (See Jan. 9, 2018

Letter from Counsel, [ECF No. 15-2] at 27). Finally, Dr. Campbell died before

the commitment hearing took place so counsel cannot be blamed for failing to

call an unavailable witness. See Cardona, 2023 WL 4202633, at *13.

Counsel recounted all of this to the Petitioner in three separate letters,

indicating that she investigated all four psychologists and reasonably

concluded that they would not be helpful to the Petitioner’s case. (See Aug. 29,

2017 Letter from Counsel, ECF No. 15-2 at 23–24; Jan. 8, 2018 Letter from

Counsel, ECF No. 15-2 at 26–27; Aug. 27, 2015 Letter from Counsel, ECF No.

15-2 at 29–30). Since the testimony of these psychologists would have been

“aggravating” and harmful to the Petitioner’s case, counsel reasonably decided

not to call them as witnesses. See Thomas v. United States, 596 F. App’x 808,

811 (11th Cir. 2015).

Fourth, the Petitioner argues that counsel should have called Sergeant

Lorenzo and Officer Boclaire to discuss the Petitioner’s arrest after pornography

was found in his residence. (See Pet. at 9–10). As the Court discussed above,

testimony about this event was irrelevant to the state court’s determination

that the Petitioner was a sexually violent predator. Counsel also deposed both

officers but concluded that neither of them would be useful since they no

longer remembered the events surrounding the Petitioner’s arrest. (See Boclaire

Depo. Tr., ECF No. 15-2 at 39; Lorenzo Depo. Tr., ECF No. 15-2 at 48–49).

Since all of the witnesses the Petitioner names were thoroughly

investigated by counsel and would have given either irrelevant or harmful

5 The State called Dr. Namer as a witness at the commitment hearing, so, in

any event, defense counsel had an opportunity to cross-examine her. (See Vol.

May 1, 2018 Tr., ECF No. 16-3 at 133–96).

testimony, the state postconviction court reasonably applied Strickland in

concluding that counsel was not ineffective. The Court denies Grounds 1

through 7.

B. Ground 8

In Ground 8, the Petitioner argues that counsel was ineffective “for failing

to object to [an] improper comment by the prosecution.” (Pet. at 11). During the

Petitioner’s commitment hearing, the prosecutor “improperly informed [the

judge] that Petitioner was charged and convicted of four counts of sexual

battery” even though he had only been convicted of three counts of sexual

battery. (Id. at 11–12). This argument is meritless. The prosecutor corrected

herself and confirmed that the Petitioner had only been convicted of three

counts of sexual battery. (See Vol. 2 May 1, 2018 Tr., ECF No. 16-4 at 25, 34–

35). In any event, the prosecutor’s brief misstatement had no effect on the

outcome of the case since the Petitioner had been convicted of sexually

battering multiple young girls under the age of six—whether he was convicted

of three or four counts was immaterial to the state court’s commitment

decision. See United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

Ground 8 is denied.

C. Ground 9

The Petitioner alleges in Ground 9 that counsel interfered with his right

to testify when she (incorrectly) informed him that “should he testify it would

give the prosecutor an opportunity to bring up his criminal past.” (Pet. at 12).

Since “the prosecutor brought up Petitioner’s criminal history anyway,” the

Petitioner says that he would have testified at his commitment hearing had

counsel not misled him. (Id.). The state court reasonably concluded that this

claim was “refuted by the record.” (Order Denying Habeas Pet., [ECF No. 15-3]

at 27). The Petitioner was present throughout the commitment hearing and

saw firsthand that the prosecutor was actively referencing his criminal history.

Nevertheless, even after his criminal history had been discussed in front of

him, the Petitioner engaged in a sworn colloquy with the trial court where he

confirmed that he knew he had the right to testify, that he could testify even if

his attorney advised him not to, and that he was still waiving his right to

testify. (See Vol. 2 May 1, 2018 Tr., ECF No. 16-4 at 21–23). By engaging in

this colloquy, the Petitioner eliminated “the basis for a claim that [he] was

denied the right to testify[.]” United States v. Anderson, 1 F.4th 1244, 1258

(11th Cir. 2021). Ground 9 is denied.

D. Ground 10

In Ground 10, the Petitioner claims that counsel was ineffective for

failing to introduce psychological evaluations conducted by Dr. Campbell and

Dr. Sesta. (See Pet. at 13). The state postconviction court found that counsel

could not have done this since the evaluations were inadmissible under Florida

law. (Order Denying Habeas Pet., [ECF No. 15-3] at 27). This was a reasonable

decision. The trial court refused to admit Dr. Campbell’s report because he had

died before the commitment hearing and the reliability of his report had not

previously been established. (See Vol. 1 May 1, 2018 Tr., ECF No. 16-3 at 139–

41); see also DeLisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018)

(explaining that expert testimony must be deemed reliable before it can be

admitted into evidence). And, as the Court explained above, Dr. Sesta’s

conclusion changed, so admitting Dr. Sesta’s first report would have meant the

State would have responded by showing that Dr. Sesta had changed his

opinion to the Petitioner’s detriment.

The Petitioner responds that it was counsel herself that caused these

issues when she “purposely waited until the witnesses was [sic] either dead or

changed their mines [sic] before she decided to set a trial date[.]” (Pet. at 13).

This is a purely speculative argument, but, even if it was not, counsel could not

have reasonably predicted that Dr. Campbell would die and that Dr. Sesta

would change his opinion before the Petitioner’s commitment hearing took

place. See Richter, 562 U.S. at 110 (“[A]n attorney may not be faulted for a

reasonable miscalculation or lack of foresight or for failing to prepare for what

appear to be remote possibilities.”). Ground 10 is denied.

E. Ground 11

In Ground 11, the Petitioner argues that counsel was ineffective for

failing to file a motion to dismiss the civil commitment petition. (See Pet. at 13–

14). This argument is refuted by the record. Counsel adopted the Petitioner’s

pro se motion to dismiss the civil commitment petition. (See Mot. to Dismiss,

ECF No. 15-4 at 310–35; Resp. to Mot. to Dismiss, ECF No. 15-4 at 337). The

state court denied the motion to dismiss as meritless. (See Order Denying Mot.

to Dismiss, ECF No. 15-4 at 345). Undeterred, defense counsel also moved for a

directed verdict during the commitment hearing, (see Vol. 2 May 1, 2018 Tr.,

ECF No. 16-4 at 16–24), and then again argued on appeal that there was

insufficient evidence to involuntarily commit the Petitioner, (see Initial Br., ECF

No. 15-1 at 176–80). Counsel dutifully attempted to challenge the State’s civil

commitment proceedings. Her lack of success was not due to her deficient

performance but rather because of the State’s overwhelming evidence that the

Petitioner’s pedophilia makes him a sexually violent predator. See Stephens v.

Sec’y, Fla. Dep’t of Corr., 678 F.3d 1219, 1227 (11th Cir. 2012) (rejecting claim

that counsel was ineffective for failing “to more vigorously argue” for a

judgment of acquittal where there was “overwhelming evidence of guilt”).

Ground 11 is denied.

F. Ground 12

In his final ground for relief, Ground 12, the Petitioner alleges that the

Jimmy Ryce Act is unconstitutional as applied to him. The Petitioner argues

that, at the time he was convicted for sexual battery, the Jimmy Ryce Act “was

not in effect.” (Pet. at 15). In short, the Petitioner is claiming that his detention

violates the Constitution’s prohibition on ex post facto laws since the Jimmy

Ryce Act retroactively “increase[d] the punishment for [his] criminal acts” in a

way that could not have reasonably anticipated when the Petitioner was

convicted. Collins v. Youngblood, 497 U.S. 31, 43 (1990). The state

postconviction court denied this claim based on the Florida Supreme Court’s

decision in Westerheide v. State, 831 So. 2d 93 (Fla. 2002), which held that the

Jimmy Ryce Act neither violated the constitutional ban on ex post facto laws

nor violated a civil committee’s due process rights. (Order Denying Habeas Pet.,

[ECF No. 15-3] at 29 (citing Westerheide, 831 So. 2d at 103–04)).

Both the state postconviction court and the Florida Supreme Court in

Westerheide reasonably applied federal law in concluding the Jimmy Ryce Act

is not an ex post facto law. As the Supreme Court explained in upholding the

constitutionality of a nearly identical Kansas law, involuntary commitment

statutes are not ex post facto laws since they are not punitive in nature and do

not “have a retroactive effect” since they are “based on a determination that

person currently . . . suffers” from a mental disorder that poses a danger to the

public. Kansas v. Hendricks, 521 U.S. 346, 370–71 (1997); see also

Westerheide, 831 So. at 99–100 (adopting the Supreme Court’s ex post facto

analysis in Hendricks); Vega v. Poppell, 2019 WL 12021768, at *11 (S.D. Fla.

Nov. 26, 2019) (Altonaga, J.) (affirming constitutionality of Jimmy Ryce Act). In

sum, the Petitioner’s constitutional rights were not violated when he was

involuntarily committed based (at least in part) on convictions that occurred

prior to the enactment of the Jimmy Ryce Act. Ground 12 is denied.

5. 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). Here, the record refutes the Petitioner’s grounds for

relief, meaning the Court can “adequately assess [the Petitioner’s] claim

without further factual development.” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). The Petitioner, therefore, is not entitled to an evidentiary

hearing.

6. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his

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). This Court should issue a certificate of appealability only if the

Petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Where a district court rejects a petitioner’s

constitutional claims on procedural grounds, the petitioner must demonstrate

that “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right, and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). If 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.” Id. at 484.

The Petitioner fails to make such a showing for the claims that were

denied on procedural grounds and for the claims denied on the merits., hence

the Court declines to issue a certificate of appealability.

7. Conclusion

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

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

part. 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 deny any and all pending motions as moot and close this case.

Done and ordered, in chambers, in Miami, Florida, on February 28,

2024.

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Gregory O’Neil Henderson

991530

Florida Civil Commitment Center (FCCC)

13619 SE Highway 70

Arcadia, Florida 34266

PRO SE