Butler v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RODGER N. BUTLER,

Petitioner,

v. Case No. 3:17-cv-464-J-32PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Doc.

1. He is challenging a state court (Columbia County, Florida) judgment of

conviction for six counts of sexual battery by a person in familial or custodial

authority and one count of lewd or lascivious molestation of a child. Id. at 1. He

is currently serving a life term of incarceration. Id. Respondents have

responded. See Doc. 28; Response.1 Petitioner replied. Doc. 32. This case is ripe

1 Attached to the Response are numerous exhibits. See Doc. 16-1 through

Doc. 16-26. The Court cites to the exhibits as “Resp. Ex.”

for review.

II. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘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.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

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) (internal

quotation marks omitted). “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) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

“The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Evidence at Trial

Petitioner raises twelve grounds for relief. To add context to these issues,

the Court summarizes the evidence produced at trial. Marsha Butler, the

victim’s mother, testified she and Petitioner were married from 2002 until 2009.

Resp. Ex. F at 36-37. Marsha explained she and Petitioner had two children

together and she also had a child from a previous marriage, the victim E.M. Id.

Marsha testified that E.M. lived with her and Petitioner during the duration of

their marriage. Id. According to Marsha, during their marriage, she worked at

least 48 hours a week as an emergency room nurse, and Petitioner worked

intermittently until 2005 when Petitioner became the fulltime contractor

working on building their home. Id. at 41. She stated that around that time,

E.M. began homeschooling at the age of 13, so she could help with childcare and

assist Petitioner with work on the new house. Id. at 42. According to Marsha,

Petitioner always wanted E.M. with him when he went to the construction site,

and he refused to take another child to help. Id. at 44. Marsha explained that

during the course of her marriage to Petitioner, she was aware of only one

occurrence of inappropriateness between E.M. and Petitioner, in which E.M.

told Marsha that Petitioner showed E.M. a “sexual toy” that Marsha kept in her

drawer. Id. at 47. Marsha explained that she confronted Petitioner about his

actions, and Petitioner advised that he showed her the toy to “enlighten[ ] [E.M.]

on sexuality” and “broaden her horizons,” to which Marsha replied it was not

Petitioner’s job to “sexually educate a 13 year old girl.” Id. at 47-48.

Marsha stated that after she divorced Petitioner, E.M. still had overnight

visitations with Petitioner, but the visits stopped after Petitioner drove E.M.

from Tennessee back to Florida without Marsha’s permission. Id. at 63-65.

When E.M was six weeks away from her 18th birthday, Marsha found sexually

explicit text messages on E.M.’s phone between E.M. and her boyfriend Travis.

Id. at 67. When Marsha confronted E.M. about the messages, E.M. informed

Marsha that Petitioner had sexually abused her. Id. at 68-69. Marsha explained

she contacted police immediately and Detective Katina Dicks interviewed her

and E.M. Id. at 70.

E.M.’s stepbrother, J.B., testified he lived with his father (Petitioner) and

Marsha while they were married. Id. at 77. J.B. testified that one day when he

was between the ages of 11 and 13, he walked to the building site to see his

father and E.M. once he got home from school. Id. at 79. He explained that he

walked into the house and down the hallway, and when he looked into the

master bedroom, he saw E.M “on her knees and [his] dad just standing there.”

Id. at 79. He explained that E.M. was kneeling directly in front of Petitioner

and had her hands on his zipper. Id. J.B. stated he quickly walked out of the

house and his father ran after him, telling J.B. that his zipper was stuck and

E.M. was helping him fix it. Id. at 81.

At the time of trial, E.M. was 18 years old. Id. at 99. E.M. testified that

she and her mother began living with Petitioner when E.M. was 6 years old. Id.

at 100. When E.M. was 13, she began homeschooling, so she could help babysit

her younger brother and help Petitioner as he built their new house. Id. at 103-

06. According to E.M., it was at that time, when she was 13, that Petitioner

began sexually abusing her. Id. at 109-10. She explained that the first time he

abused her, she and her brother were sleeping in their bunk beds when

Petitioner came in and began touching her vagina over her clothing. Id. at 111.

She stated that in the following months, Petitioner continued to abuse her in

this way, but the abuse progressed, and he began touching himself and

eventually put his hand in her underpants. Id. at 113. E.M. testified that when

she was 14 years old, she and Petitioner were “wrestling” in the living room

when Petitioner held her down, took off her pants and underwear, and

penetrated her vagina with his penis. Id. at 115. After the incident, Petitioner

told her he would kill himself if she told anyone. Id. at 116.

E.M. explained that Petitioner continued to abuse her by vaginal or oral

penetration until she was 17 years old. Id. When E.M. was between the ages of

14 and 15, he abused her in this manner “at least once or twice a week.” Id. at

117. She further explained that when she was between the ages of 15 and 17,

Petitioner abused her through vaginal or oral penetration “at least three or four

times a week.” Id. at 118. She stated she never told anyone about the abuse

because she believed Petitioner would kill himself and he was the only father

figure in her and her siblings’ lives. Id. at 119-20. However, she recalled that on

one occasion, her brother J.B. walked in while she was performing oral sex on

Petitioner, but she’s never spoken to her brother about what he saw. Id. at 120-

21.

According to E.M., Petitioner would force E.M. to perform sexual acts by

bribing her with material items (i.e., clothing, bags, pets) or as a form of

punishment. Id. at 122-23. She stated that after her mother and Petitioner’s

divorce, E.M. continued to visit Petitioner, so she could help care for her younger

siblings. Id. at 123-24. E.M. stated Petitioner continued to sexually abuse her

during this time. Id. at 124. E.M. explained the abuse stopped when she stopped

visiting Petitioner around her 17th birthday and when she started dating

Travis. Resp. Ex. G at 132. E.M. stated that her mother found sexually explicit

text messages between E.M. and Travis and confronted E.M. about not being

honest. Id. at 136. During this conversation, E.M. told her mother “everything”

about Petitioner’s abuse. Id. According to E.M., her mother immediately called

police. Id. at 137. E.M. also testified Petitioner had a distinguishing “scar” or

skin tag on the top of his penis. Id. at 121.

E.M. testified that police asked her to wear a recording device and have a

conversation with Petitioner the next time he comes over to pick up her siblings.

Id. at 137. E.M. complied and recorded a scripted conversation with her and

Petitioner regarding her mother calling the police about Travis’ inappropriate

text messages, and that she was scared Travis would tell the police about

Petitioner’s abuse because she disclosed the abuse to Travis. Id. at 146. The

recording was played for the jury. Id. at 148-49. During the conversation,

Petitioner is heard pleading with E.M. to please not tell anyone about their

sexual activities because it would “destroy” him. Id. at 148-49. When E.M. tells

Petitioner she was just a child and he did not have to do that to her, Petitioner

responds, “You liked that, too.” Id. at 147.

Detective Dicks testified she was the lead detective on Petitioner’s case

and arranged for the controlled conversation to occur. Id. at 168-69. She

explained that following the controlled conversation, Petitioner was

immediately transported to the police station where she conducted an interview

of Petitioner. Id. at 169. Following the reading of Petitioner’s Miranda2 rights,

the Detective interviewed Petitioner. Id. at 177. He denied ever abusing E.M.

and he disclosed he had a distinguishing scar on his penis. Id. at 177. He stated

that E.M. knew about the scar because it was “common knowledge” and that

everyone in his family knew about the scar. Id. at 178.

Petitioner testified at trial that he was really surprised that E.M.

2 Miranda v. Arizona, 384 U.S. 436 (1966).

confronted him with such allegations on the night he was arrested. Id. at 212-

13. He admitted that in December 2009, he did have sexual contact with E.M.,

but he did not initiate the contact, nor did he participate in it willingly. Id. at

214. He stated he and E.M. were laying on the couch watching a movie and he

fell asleep. Id. He testified he then woke up to “some sensation down there” and

saw E.M. sitting up with her hand down his pants. Id. He said he got up and

asked what she was doing, and she replied that she was “helping” him. Id. He

stated that was the only time he ever had any inappropriate contact with her

but she offered sexual favors “once or twice a month” thereafter. Id. at 216. On

cross-examination, Petitioner admitted that during his police interrogation, he

did not inform police about the December 2009 incident. Id. at 220.

IV. Petitioner’s Claims and Analysis

a. Ground One

Petitioner argues his trial attorney was ineffective for failing to move to

suppress certain evidence from the initial investigation of the crimes and

primarily challenge the manner in which he was arrested. Doc. 1 at 6-14.

Though not a picture of clarity, he appears to argue that E.M.’s wire recording

of their conversation amounted to a police interrogation, violating his Fifth,

Sixth, and Fourteenth Amendment rights; and that his subsequent arrest was

violent as he was “confronted by officers, guns pointed at him and physically

attacked, handcuffed and placed in backseat of police car.” Id. at 8.

Petitioner asserts he raised this claim as ground thirteen of his Florida

Rule of Criminal Procedure 3.850 motion for postconviction relief. Doc. 1 at 6;

Resp. Ex. HH at 88-92. The trial court denied the claim, finding in pertinent

part as follows:

The Defendant alleges that counsel was

ineffective for failing to move for suppression of certain

evidence from the initial investigation of the crimes

committed. Motion at 37. The Defendant lists eleven

concerns that he has with evidence that came from the

initial investigation. Motion at 37-41. Each of the

Defendant’s claims is subjective opinion of

inadmissibility. Many of the claims relate to the

manner in which the Defendant was arrested. The

Defendant does not appreciate that he was handcuffed

and taken into custody by police, as the Defendant

labels the arresting officer as an “attacker.” Motion at

39. The Defendant claims that police instilled fear in

him because he was arrested with a “display of guns

drawn and pointed at [the Defendant].” Motion at 38.

The Defendant simply describes a regular arrest and

investigation and points out no facts of misconduct;

certainly no misconduct that would result in a

suppression of evidence.

Many other claims made in this section of the

instant motion relate to issues already discussed in this

order. The Defendant again refers to his displeasure

with the victim confronting the Defendant and asking

him questions while wearing a recording device. This

issue has been resolved as the recording was made for

the purpose of a police investigation as explained in

Argument One of this order. The Defendant also

revisits the issue of the skin tag which has been

thoroughly discussed throughout this order. Motion at

40. Finally, the Defendant makes several claims that

the investigator was biased towards the victim,

including claims such as, the investigator acted “with

premeditated agenda for [the victim] to deliberately

elicit self-incrimination from [the Defendant].” Motion

at 38. These claims are meritless as this is the very job

of the police, to investigate suspects for crimes and

illicit information from the suspect as to the acts

committed.

Resp. Ex. II at 205. The First District Court of Appeal issued a written opinion

affirming the trial court’s denial of this claim.3 Resp. Ex. LL. To the extent that

the First DCA affirmed the denial on the merits, the Court will address the

claim in accordance with the deferential standard for federal court review of

state court adjudications.

At Petitioner’s sentencing hearing, the trial court heard argument on a

pro se motion alleging various claims of ineffective assistance of counsel.4 Resp.

Ex. D at 15. During the hearing, Petitioner argued that counsel should have

moved to suppress the audio recording between him and E.M. because he felt it

violated his Fourth Amendment rights and his “right to privacy.” Id. at 15. Trial

counsel responded that he considered filing a motion to suppress but

3 In its written opinion, the First DCA “affirmed the post-conviction order

without additional comment, except for [Petitioner’s] second claim.” Resp. Ex.

LL. As to ground two, the court reversed and remanded with specific

instructions that the trial court either conduct an evidentiary hearing or

provide the appellate court with record attachments refuting that claim. Id.

4 The trial court was initially reluctant to hear any argument on

Petitioner’s pro se claims on ineffective assistance during his sentencing

hearing, but trial counsel insisted that he respond to Petitioner’s complaints on

the record. Resp. Ex. OO at 14.

determined that such motion would not have been successful because the

recording was made at the home of his ex-wife rather than Petitioner’s home

and the type of recording was similar to recordings made in routine controlled

drug buy cases. Id. As such, trial counsel felt that there was no basis for filing

a motion to suppress because the recording was made during the course of a

police investigation and they clearly had E.M.’s consent to participate in the

controlled conversation. Id. at 16. He explained that he discussed the issue with

Petitioner, explained he could not suppress it and that despite any objection,

the court would have overruled it. Id. Indeed, at trial, trial counsel did object to

the introduction of the recording, however, the objection was overruled because

the recording was created during a police investigation. Resp. Ex. F at 138-39.

Thus, after a review of the record and the applicable law, the Court

concludes that the state court’s adjudication of the claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

clearly established federal law, and was not based on an unreasonable

determination of the facts given the evidence presented in the state court

proceedings. Ground One is due to be denied.

b. Ground Two

Petitioner argues the trial court failed to enter a signed written order

denying his motion for new trial in violation of Florida Rule of Appellate

Procedure 9.020(h)(1). Doc. 1 at 16. He avers the trial court instead erroneously

orally denied the motion during his sentencing hearing; and he appears to

allege that the failure to enter a written order means his criminal conviction is

not final and is thus now “dischargeable.” Id. He also argues that trial counsel

was ineffective for failing to procure a signed written order of denial, and that

the recusal of the Honorable Paul Bryan prior to the entry of a signed written

order of denial further violated his due process rights. Id. at 19.

In December 2015 and again in January 2016, Petitioner filed

postconviction motions with the trial court arguing that he is entitled to a

signed written order disposing of his motion for new trial. Resp. Ex. RR. The

trial court denied the motions, finding the following:

In the instant motions, the Defendant alleges

that he is entitled to “a signed written order pursuant

to Florida Statute 924.065(1)” on his motion for new

trial, which was heard on June 6, 2011, just prior to

sentencing. The Defendant further maintains that the

Honorable Paul S. Bryan, trial judge, should enter this

required written order. Judge Bryan, however, was

recused from this case and any matter in which the

Defendant is involved; accordingly, His Honor cannot

legally enter any orders in this case or any case

involving the Defendant. Moreover, the Defendant is

not legally entitled to the relief he seeks – that is, a

signed, written order on his June 6, 2011, motion for

new trial.

In its entirety, section 924.065(1) provides:

Immediately after denial of a motion for a

new trial or a motion in arrest of judgment,

the court shall dictate the denial to the

court reporter and sentence the defendant.

The defendant may file notice of appeal

following denial of the motion and

sentencing. Upon filing of notice of appeal,

the court shall set the amount of the appeal

bond if the defendant is entitled to bail. The

clerk shall prepare a certificate setting

forth the filing and approval of the

supersedeas bond, and the certificate shall

be sufficient authority for release of the

defendant.

Nothing within this section mandates that a written

order must be entered on a motion for new trial. In fact,

the explicit language of the statute indicates that an

oral order by the trial judge is appropriate: “the court

shall dictate the denial to the court reporter.” That is

precisely what occurred in this case. Towards the end

of the June 6, 2011, sentencing hearing, after the

various pro se motions were argued and addressed, the

pending motion for new trial was addressed:

THE COURT: ... Is there any legal cause to

show why sentence cannot now proceed?

You do have a motion for new trial, do you

not Mr. Hunt, yourself?

[TRIAL COUNSEL]: Yes, sir, I do. The --

raised from the standard grounds that the

verdict was contrary to the evidence.

Contrary to the law. I don’t wish to be

heard further about that. It alleged that

the Court erred in denying the motions for

judgement of acquittal, and also in

overruling my objection to the admission of

the recording between the Defendant on

the one hand and [E.M.] on the other, but

we’ve already addressed that at some

length, so I don’t wish to be heard.

I also did raise the issue of

permitting Stacy McCrae to serve on the

jury, but I’ll acknowledge I did not perserve

[sic] that with an objection and I did not

challenge Stacy McCrae.

THE COURT: And you had specifically

discussed that with your client and were

given time to do that?

[TRIAL COUNSEL]: Yes, sir.

THE COURT: All right. Anything else?

[TRIAL COUNSEL]: And at the --

THE COURT: On the Motion for New

Trial?

[TRIAL COUNSEL]: -- at the time my

client actually told me he wanted her to be

on the jury because he knew the jailer was

a really nice person and Benjamin was a

really nice person, so therefore he thought

she came from a -- he came from a good

family, that she must be a good person, so,

I left her on.

THE COURT: Anything else on motion for

new trial?

[TRIAL COUNSEL]: No, sir.

THE COURT: Does the State wish to be

heard on the official or the attorney filed

Motion for New Trial?

[THE STATE]: We would just say that in

terms of the verdict being against the

weight of the evidence, we would say the

evidence speaks for itself. The denial of the

objections. Judge, we would rely on what

was presented at trial. And as to that juror

serving, you know, it’s just hindsight now,

you know, saying, well, I guess I wish I

wouldn’t have had that person. I don’t see

a valid ground there.

THE COURT: The Motion for New Trial

filed by Mr. Hunt is denied on all basis

raised so I’ve now denied the Motion for

New Trial however it may be styled. There

some that are pro se, there are some that

are Mr. Hunt’s. They’re all denied on all

counts, on all basis.

Sentencing Hearing transcript at 50-51. As the above

passage illustrates, the sentencing judge, after hearing

the arguments pertaining to the motion for new trial,

rendered an oral ruling that was dictated to the court

reporter and appropriately transcribed. And

immediately following this ruling, the trial court

sentenced the Defendant. This was in accordance with

the demands of section 924.065(1).

The Defendant’s reliance on “Rule 9.020(i)(l) App.

P.,” which he claims is applicable and would mean that

the oral ruling on the motion for new trial “SHALL

NOT BE DEEMED RENDERED -UNTIL THE FILING

OF A SIGNED WRITTEN ORDER” is completely

misplaced. Defendant’s Motion for Reversal of Case for

New Trial due to Court Error Unrecoverable at 3. This

appellate rule, Florida Rule of Appellate Procedure

9.020, does not mandate that an oral ruling on a pre-

sentence motion for new trial is not effective or

rendered until it is reduced to writing. The Defendant

misreads and misapplies this rule.

Finally, even if the Defendant were seeking a

ruling on the seemingly outstanding written motion for

new trial filed by his trial counsel post-trial, that

motion was deemed abandoned when the Defendant

sought to appeal his convictions and sentences-albeit, a

belated appeal given the procedural posture of this

case. See e.g., Johnson v. State, 154 So. 3d 1184 (Fla.

4th DCA 2015) (“when appellant filed a notice of

appeal, while his second Motion for New Trial was

pending before the trial court, he abandoned the motion

and divested the trial court of jurisdiction to rule on it”).

This case, like the Johnson case, predates enactment of

the amended Rule 9.020(i), which eliminates the

language providing that postjudgment motions are

abandoned upon the filing of a notice of appeal. As such,

that post-trial and sentence motion for new trial was

deemed abandoned when the Defendant sought to and

successfully did appeal his convictions and sentences,

and this Court lacks jurisdiction to render a ruling on

the motion.

Resp. Ex. RR. Petitioner then appealed the trial court’s order by filing a petition

for writ of certiorari with the First DCA. Resp. Ex. SS. The First DCA per

curiam denied the petition without a written opinion. Resp. Ex. TT.

To the extent that the First DCA affirmed the denial on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. In doing so, the Court notes

that during Petitioner’s sentencing hearing Petitioner filed a pro se construed

motion for new trial and trial counsel also filed a motion for new trial. Resp. Ex.

D at 51. After hearing argument from the state, trial counsel, and Petitioner,

the trial court denied the motions for new trial on the record. Id. The trial court

then sentenced Petitioner to a life term of incarceration on count one and a

concurrent 631.5 month-term of incarceration on counts two through six. Id. at

66. Petitioner then sought a direct appeal and the First DCA per curiam

affirmed his judgment and sentence without a written opinion. Resp. Ex. M.

Petitioner sought review with the Florida Supreme Court, however, the court

declined jurisdiction. Petitioner’s judgment and sentence are final, and the trial

court was not required to enter a written order on his motions for new trial. As

such, the state court’s adjudication of this claim was not contrary to clearly

established federal law nor was it an unreasonable determination in light of the

facts presented in the state court proceeding. Further, as to any claim that

counsel was ineffective for failing to procure a signed written order on

Petitioner’s motion for new trial, Petitioner cannot demonstrate deficient

performance or prejudice from such alleged deficiency. Ground Two is due to be

denied.

c. Ground Three

Petitioner argues his Sixth Amendment right to conflict-free counsel was

violated at the hearing on his pro se motion for new trial based on ineffective

assistance of trial counsel, and at sentencing thereafter. Doc. 1 at 20-23.

Petitioner, with the help of appellate counsel, raised this claim as “Issue I”

during his direct appeal. Resp. Ex. J at 10. In his initial brief, Petitioner noted

that at the beginning of Petitioner’s sentencing hearing, Petitioner filed a pro

se motion for new trial containing arguments regarding trial counsel’s alleged

ineffectiveness at trial. Id. at 11. He explains that when the trial court heard

argument on the motion, “[d]efense counsel was placed in a position of testifying

in direct conflict to [Petitioner’s] allegations and interests”; and “was placed in

an adversary position relative to . . . his client.” Id. at 11-12. As such, according

to Petitioner, Petitioner was entitled to conflict-free counsel to represent him

during a critical stage of his proceedings. Id.

In its answer brief, the state argued this argument was not preserved for

appellate review because Petitioner never requested the trial court to appoint

conflict-free counsel for purposes of sentencing. Resp. Ex. K at 12. It also argued

that even assuming the claim was preserved, it is without merit because none

of the claims Petitioner asserted in support of his claim that counsel was

ineffective were viable, and thus, he was unable to show that there was an

actual conflict of interest warranting substitution of counsel. Id. at 22.

The state addressed each of the claims Petitioner asserted to support his

allegation that trial counsel was ineffective at trial. Id. at 15-22. It first argued

trial counsel had no legal basis to challenge the recorded conversation between

Petitioner and E.M.; that Petitioner’s current challenge to his pretrial detention

is now moot; and that trial counsel had no basis to challenge Petitioner’s custody

revocation of J.B. because it was unrelated to the criminal case. Id. at 17. The

state also noted trial counsel had no basis to challenge an unrelated domestic

violence case, or to challenge the alleged unlawful entry into Petitioner’s home

because the state did not present any evidence obtained from his home during

his trial. Id. at 18. It further explained trial counsel was not ineffective for

failing to ensure Petitioner’s presence during a brief pretrial status conference;

and counsel was not ineffective for failing to subpoena Marsha’s father as a

witness because Marsha’s own sexual abuse was irrelevant. Id. The state also

noted that trial counsel explained during the sentencing hearing that he made

a tactical decision to not present evidence of E.M.’s other sexual partners or to

pursue DNA evidence of other individuals. Id. Finally, the state noted that trial

counsel testified at the sentencing hearing that he had no basis to object to

Detective Dicks’ testimony at Petitioner’s bond hearing. Id. at 22. Upon

consideration of these arguments, the First DCA per curiam affirmed

Petitioner’s judgment and sentence without a written opinion. Resp. Ex. M.

To the extent that the First DCA affirmed the denial on the merits, the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. A true conflict of interest must

be actual and not merely potential or hypothetical. Cuyler v. Sullivan, 446 U.S.

335, 350 (1980). The mere possibility of a conflict is insufficient and must be

based on a showing that counsel has interests inconsistent with the defendant’s

and that the conflict adversely affected the lawyer’s performance. Both prongs

of this test—actual conflict and adverse effect on counsel’s performance—must

be met. See Buenoano v. Singletary, 74 F.3d 1078, 1086 (11th Cir. 1996); Smith

v. White, 815 F.2d 1401, 1404 (11th Cir. 1987). Contrary to Petitioner’s

contentions, his disagreement over whether counsel properly prepared for trial

and his unhappiness with the outcome of trial do not create an actual conflict

or demonstrate the type of prejudice requiring the appointment of new counsel.

Based on trial counsel’s responses to each of Petitioner’s complaints at his

sentencing hearing, the trial court concluded that counsel acted reasonably.5

After reviewing the record, the Court finds the state court’s adjudication of this

claim was not contrary to clearly established federal law nor was it an

unreasonable determination of the facts in light of the evidence presented in

the state court proceeding. Ground Three is due to be denied.

d. Ground Four

Petitioner argues his trial attorney was ineffective for failing to

investigate Petitioner’s “probable cause affidavit” and move for dismissal at or

before Petitioner’s arraignment. Doc. 1 at 25. It appears Petitioner is

challenging the detective’s search warrant affidavit. Petitioner raised this claim

as ground fourteen in his Rule 3.850 motion. Resp. Ex. II at 205. The trial court

denied the claim as follows:

The Defendant alleges that counsel was

ineffective for failing to “be diligent and read and

confirm the contents of the probable cause affidavit.”

Motion at 42. The Defendant argues that if counsel had

better investigated the probable cause affidavit, then

counsel would have found the probable cause affidavit

to be “fraudulent and legally insufficient.” The

Defendant then points out areas in the probable cause

5 The trial court’s inquiry here was no different than that in a Nelson v.

State, 274 So. 2d 256 (Fla. 4th DCA 1973).

affidavit where he believes there are omissions or

mistakes. Motion at 42-47. None of these allegations

raise valid claims of legal merit.

First, the Defendant was convicted of the crimes

in this case based on the official charging document

from the State, which is the Information, and not the

probable cause affidavit. Additionally, the probable

cause affidavit very well could have contained

mistakes, omissions, or other insignificant errors.

However, the affidavit was more than sufficient for the

State to follow-up with an investigation and

subsequent filing of charges through an Information by

which the Defendant was ultimately charged, tried,

and properly convicted. See attached Probable Cause

Affidavit. Regardless of any concerns the Defendant

may have, (most of which are the Defendant adding his

own thoughts as to what other irrelevant information

he would like to be contained within the probable cause

affidavit), the probable cause affidavit contained all the

information necessary to charge the Defendant with

the seven counts of sexual battery and lewd or

lascivious molestation. The probable cause affidavit

includes specific details for pages about the Defendant

fondling the victim at age 13, having sexual intercourse

with the victim, forcing the victim to perform oral sex

acts, and forcing the victim to manually stimulate the

Defendant. The affidavit states that the victim would

cry when the Defendant had sex with the victim, that

the victim was forced to watch pornographic material

to learn how to perform oral sex on the Defendant, and

that on a few occasions, the Defendant used arm and

leg restraints on the victim while performing sexual

acts. The affidavit provides that the Defendant forced

sex acts upon the victim hundreds and hundreds of

times. See attached. It is adequate to say that the

probable cause affidavit was sufficient to serve its

purpose. Counsel cannot be deemed ineffective for

failing to discern what the Defendant claims are errors

in that affidavit. Again, the Defendant was not

prejudiced as he was ultimately found guilty based

upon the evidence presented against him at trial.

Resp. Ex. II at 205-06 (citing Resp. Ex. II at 298-301). The First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. LL. To the

extent the First DCA addressed this claim on the merits, the Court will address

the claim in accordance with the deferential standard for federal court review

of state court adjudications.

As the state court noted, the information in the subject affidavit had no

impact on the jury’s verdict. Rather, this affidavit was executed in support of a

search warrant to obtain a photograph of Petitioner’s genitals for purposes of

confirming any distinguishing marks and such photographs were not presented

at trial. Resp. Ex. II at 301. As such, upon thorough review of the record and

the applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim is neither contrary to nor an unreasonable application of

Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court. Ground Four is due to be denied.

e. Ground Five

Petitioner contends his trial counsel was ineffective for failing to move for

a Richardson6 hearing when the state committed a discovery violation by filing

an Amended Information, and for failing to ask that a continuance be charged

6 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

the state, so Petitioner would not have to waive his speedy trial rights by asking

for a continuance. Doc. 1 at 62. Petitioner raised a similar claim in his Rule

3.850 motion.7 Resp. Ex. HH at 74. The trial court denied the claim as follows:

The Defendant alleges that counsel was

ineffective because counsel moved for a continuance

following the State filing an amended Information.

Motion at 23. The Defendant has failed to point out any

deficiency by his counsel in this claim. The State is

permitted to file an amended Information. It would

then be far more dangerous for defense counsel to rush

to trial while unprepared, rather than filing a motion

to continue in order for defense counsel to have

adequate time to prepare a reasonable defense on

behalf of the Defendant.

Resp. Ex. HH at 199. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Resp. Ex. LL. To the extent the First DCA addressed

this claim on the merits, the Court will address the claim in accordance with

the deferential standard for federal court review of state court adjudications.

“A Richardson hearing is held to determine whether the State committed

a discovery violation in contravention of the Florida Rules of Criminal

Procedure and, if so, whether the non-compliance resulted in prejudice to the

defendant’s ability to prepare for trial.” Cisneros v. McNeil, No. 8:05-cv-762-T-

27TGW, 2008 WL 1836368, at *5 (M.D. Fla. Apr. 23, 2008). A discovery violation

7 Petitioner also raised a similar claim in his petition alleging ineffective

assistance of appellate counsel under Florida Rule of Appellate Procedure

9.141. Resp. Ex. P at 74. Here, Petitioner clearly challenges trial counsel’s

effectiveness, so the Court refers to Petitioner’s Rule 3.850 claim.

is a question of state law, and thus, the Court defers to the state court’s

determination that trial counsel was not deficient for failing to object to the

Amended Information. See Huddleston v. Sec’y Dep’t of Corr., No. 8:16-cv-76-T-

02AAS, 2019 WL 339225, at *5 (M.D. Fla. Jan. 28, 2019) (holding that “[w]hile

the issue before the court is one of ineffective assistance, a question cognizable

on federal habeas review, the underlying issue of whether a discovery violation

occurred under Florida law and whether counsel should have objected and

moved for a Richardson hearing is a question of state law” that binds the court).

In any event, to support his contention that the state committed a discovery

violation, Petitioner merely argues the Amended Information resulted in

counsel moving for a continuance. That argument does not demonstrate

prejudice under Strickland. In sum, upon thorough review of the record and the

applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim is neither contrary to nor an unreasonable application of

Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court. Ground Five is due to be denied.

f. Ground Six

Petitioner contends his trial counsel was ineffective for failing to strike a

biased juror – Ms. McRae. Doc. 1 at 65. Petitioner raised this claim in his Rule

3.850 motion. Resp. Ex. HH at 75. The trial court denied the claim as follows:

The Defendant alleges that counsel was

ineffective in voir dire as it relates to the selection of

the juror named Stacy McRae. The Defendant claims

that McRae stated during voir dire: “Abuse of a child,

any kind of abuse of a child.” Motion at 24. The context

is not entirely clear, but it is clear that McRae did in

fact state during voir dire that she would not judge

people but look at the facts. See attached Jury Selection

transcript at 43. Most importantly, however, is how

McRae was finally selected to be a member of the jury.

The Court addressed each juror individually. When the

Court asked the State and defense counsel specifically

about selecting McRae to serve as a member of the jury,

defense counsel responded by saying, “[l]et me confer

one more time.” See attached Jury Selection transcript

at 73. At which point defense counsel discussed with

the Defendant the juror selection. It is not clear what

exactly was said between counsel and the Defendant,

but when defense counsel finished conferring directly

with the Defendant, defense counsel stated: “Defense

accepts the jury.” The Court follows up by asking

defense counsel again, “[a]nd you had a conference with

your client just then?” to which defense counsel

answered, “Yes, I did.” See attached Jury Selection

transcript at 73. It is clear that the choice to add McRae

to the jury was discussed directly with the Defendant

and the Defendant and defense counsel found McRae to

be a satisfactory choice for the jury.

Resp. Ex. HH at 199. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Resp. Ex. To the extent the First DCA addressed this

claim on the merits, the Court will address the claim in accordance with the

deferential standard for federal court review of state court adjudications.

During jury selection, it is not clear if Ms. McRae said anything about her

opinions on the nature of Petitioner’s charges. Resp. Ex. E at 26. However, Ms.

McRae did advise the parties that her son is Benjamin McRae, III, and he

worked at the Columbia County Jail. Id. at 26. She further stated that this fact

would not affect her evaluation of the witnesses or evidence. Id. During the

parties’ cause challenges, the state did not challenge the selection of Ms. McRae

and after conferring with Petitioner, trial counsel advised that the “[d]efense

accepts the jury.” Id. at 73. At Petitioner’s sentencing hearing, Petitioner, for

the first time, argued in a pro se motion that he was entitled to a mistrial

because Ms. McRae was a biased juror who deliberated in his case. Resp. Ex. D

at 7-8. In support of his claim, Petitioner argued that prior to his trial Ms.

McRae’s son, Benjamin McRae, always treated him nicely in the jail, and that

after the verdict, his demeaner changed and thus Petitioner was convinced that

Ms. McRae improperly spoke to her son about the case. Id. However, Petitioner

admitted that he told Benjamin McRae about his pending case and openly spoke

about the trial while he was in the jail. Id. at 9. Trial counsel then advised the

trial court that when they selected Ms. McRae as a juror, he and Petitioner were

aware that her son worked at the jail. Id. at 8. Trial counsel specifically recalled

conferring with Petitioner about Ms. McRae’s son, and based on that

conversation, counsel decided not to challenge her. Id. at 11. Indeed, trial

counsel advised that “at the time [Petitioner] actually told me he wanted her on

the jury because he knew the jailer was a really nice person, so therefore he

thought . . . he came from a good family, that she must be a good person, so I

left her on.” Id. at 50.

Upon thorough review of the record and the applicable law, the Court

finds that the state court’s decision to deny Petitioner’s claim is neither contrary

to nor an unreasonable application of Strickland, and it is not based on an

unreasonable determination of the facts given the evidence presented to the

state court. See Price v. Sec’y Dep’t of Corr., 558 F. App’x 871, 872-73 (11th Cir.

2014) (holding that it was not unreasonable application of clearly established

federal law for the Florida courts to conclude that defendant could not argue

that counsel had been ineffective for failing to strike a juror that the defendant

had approved); Kelley v. State, 109 So. 3d 811, 812 (Fla. 1st DCA 2013) (“Thus,

it follows that a defendant who . . . personally affirms his acceptance of the jury

panel will not be heard to complain in a postconviction motion that his counsel

was ineffective for allowing a biased juror to serve on his jury.”). Ground Six is

due to be denied.

g. Ground Seven

Petitioner contends his trial attorney was ineffective for failing to present

the photographs and drawings of Petitioner’s penis to challenge E.M.’s

credibility regarding the location of his skin tag. Doc. 1 at 68-69. Petitioner

raised a similar claim in his Rule 3.850 motion.8 Resp. Ex. HH at 76. The trial

8 In his Rule 3.850 motion, Petitioner also argued that the photographs

were Brady material. Resp. Ex. HH at 76. Here, however, Petitioner does not

cite to or argue this claim under Brady v. Maryland, 373 U.S. 83 (1963). Doc. 1

at 69-71.

court denied the claim, finding in relevant part the following:

The Defendant alleges that defense counsel was

“objectively unreasonable in performance to not correct

the State’s improper burden shifting and non-

admission of 3 pieces of material evidence favorable to

the Defendant, in trial.” Motion at 25. The Defendant

argues that pictures taken of his penis show that the

skin tag on the Defendant’s penis is in a different

location from where the victim identified the skin tag

in the victim’s drawing made for the investigating

officer. The Defendant claims that the pictures of his

own penis are Brady information and the State was

wrong in not entering those photos into evidence.

The Defendant misunderstands the meaning of

Brady evidence.[] The pictures of the Defendant’s

penis, along with the pictures that the victim drew of

the Defendant’s penis were all turned over to the

defense during discovery. See attached portions of

discovery. Therefore, the State did not hide, suppress,

or fail to disclose any of the evidence to which the

Defendant refers. Furthermore, just because the victim

may have failed to identify the precise location of the

skin tag on the Defendant’s penis does not mean that

the skin tag does not exist, or that the Defendant is

innocent of the crimes. The picture of the penis in no

way absolves the Defendant of the crimes committed.

The significance of the evidence was the victim’s

knowledge of a skin tag, and not the exact location of

the skin tag on the Defendant’s penis. If the Defendant

was concerned about the penis pictures not being

admitted into evidence by the State, the defense could

have had those pictures entered. However, the

defense’s strategy was not actually to show those

pictures to the jury, but instead, to cross-examine the

investigator as explained in Argument Two, Claim 8 of

this order. Defense counsel discussed with the

investigator, during cross-examination, the drawing of

the skin tag made by the victim. Then, defense counsel

showed the picture of the Defendant’s penis to the

investigator, and defense counsel was able to elicit from

the investigator that there may be some discrepancy in

the explanation by the victim as to the location of the

skin tag on the Defendant’s penis, versus the actual

location of the skin tag as depicted in the photograph.

As such, defense counsel was able to present to the jury

the issue of the misidentification of the location of the

skin tag without actually entering the photo of the

penis into evidence. Therefore, no prejudice could have

occurred.

Resp. Ex. HH at 199-200. The First DCA per curiam affirmed the trial court

denial without a written opinion. Resp. Ex. LL. Upon thorough review of the

record and the applicable law, the Court finds that the state court’s decision to

deny Petitioner’s claim is neither contrary to nor an unreasonable application

of Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court. Ground Seven is due to be

denied.

h. Ground Eight

Petitioner argues his trial attorney failed to adequately argue a motion

for judgment of acquittal as to count seven – lewd and lascivious molestation.

Doc. 1 at 73-75. He raised this claim in his Rule 3.850 motion. Resp. Ex. HH at

160. The trial court denied the claim as follows:

The Defendant alleges that defense counsel did

not provide an adequate rebuttal to the State’s

argument against defense counsel’s motion for

judgment of acquittal, (JOA). Motion at 30. The State’s

response to defense counsel’s motion for JOA includes:

“And the evidence produced through the testimony of

[the victim] herself being 13 years of age and having

the defendant touching her genitalia in her bed would

constitute a prima facie case or prima facie showing of

lewd or lascivious molestation.” See attached Trial

Transcript at 192. The Defendant argues that after the

State responded to defense counsel’s motion for JOA as

to Count 7, stating: “defense counsel did not follow

through correcting the prosecutor’s statement which

was erroneous; as the testimony of [the victim] fails to

prove ‘in a lewd or lascivious manner’ - a requirement

of the statute.” Motion at 30.

The court in Houghton v. Bond held:

With respect to the granting of a

motion for directed verdict, such a motion

should be considered by a trial court with

extreme caution, because the granting

thereof amounts to a holding that the non-

moving party’s case is devoid of probative

evidence. Perry v. Red Wing Show Co., 597

So. 2d 821 (Fla. 3d DCA 1992). A motion for

directed verdict should not be granted

unless the trial court, after viewing the

evidence in the light most favorable to the

nonmoving party, determines that no

reasonable jury could render a verdict for

the non-moving party. Great S. Peterbilt,

Inc. v. Geiger, 616 So. 2d 1127 (Fla. 1st

DCA 1993); Miller v. City of Jacksonville,

603 So. 2d 1310 (Fla. 1st DCA 1992). When

considering a motion for directed verdict,

the court must assume that the non-

moving party’s evidence, and all

reasonable inferences therefrom, are true.

Houghton v. Bond, 680 So. 2d 514, 522 (Fla. 1st DCA

1996).

The Defendant fails to argue how the State’s case

was “devoid of probative evidence,” (Perry v. Red Wing

Show Co., at 821), or that “no reasonable jury could

render a verdict for” the State. Great S. Peterbilt, Inc.

v. Geiger, at 1127. Indeed, a jury did in fact find the

Defendant guilty of the crimes as charged, including

Count 7 of the Information, which the Defendant

directly challenges here. Based upon the totality of the

evidence provided by the victim this Court could not

rule in favor of the Defendant’s motion for JOA. The

Defendant fails in the instant motion to provide any

argument that [ ] could have been made by the defense

that would have resulted in the granting of the

defense’s JOA motion, especially considering the

standard as provided above for ruling on such a motion.

Resp. Ex. II at 202-03. The First DCA per curiam affirmed the trial court’s

denial without a written opinion. Resp. Ex. LL. Upon thorough review of the

record and the applicable law, the Court finds that the state court’s decision to

deny Petitioner’s claim is neither contrary to nor an unreasonable application

of Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court. The victim’s testimony

supported the trial court’s denial of Petitioner’s judgment of acquittal as to

count seven. As such, Ground Eight is due to be denied.

i. Ground Nine

Petitioner argues his trial counsel was ineffective for failing to adequately

move for a judgment of acquittal as to counts one through six – sexual battery

by person in familial or custodial authority. Doc. 1 at 77-81. Petitioner raised

this issue in his Rule 3.850 motion. Resp. Ex. HH at 83. The trial court

summarily denied the claim, finding the following in relevant part:

The Defendant alleges that counsel was

ineffective for failing to move for acquittal at the end of

trial. Motion at 32. The Defendant argues that he was

prejudiced because the State had failed to meet its

burden by failing to produce adequate evidence. The

Defendant declares, “the State had failed to produce

competent specific testimony from [the victim] stating

vaginal penetration or union of herself with the

Defendant; as would be required to infer guilt to the

specifically articulated language; in the time periods; of

count one for year 2007; count two for year 2008; count

three for year 2009.” Motion at 32. The Defendant

continues by claiming that “the State had failed to

produce competent specific testimony from [the victim]

stating oral penetration or union of herself with the

Defendant; as would be required to infer guilt to the

specifically articulated language; in the time periods of

count four for year 2007; count five for year 2008; count

six for year 2009.” Each and every claim is directly

refuted by the record.

First, defense counsel did move for acquittal at

the end of trial, which directly refutes the Defendant’s

claim that gives rise to the Defendant’s argument that

counsel was ineffective. The record reflects that

counsel, at the end of trial, renewed all of his previously

denied motions, including the motion for judgment of

acquittal. See attached Trial Transcript at 233-234.

Defense counsel reargued this motion as to all seven

counts. Therefore, the instant claim is meritless.

However, this Court will also review once again how

the record refutes the Defendant’s claims that the

evidence did not support the charges against him.

The Defendant claims that the evidence put on by

the State did not show that vaginal penetration had

occurred for the time periods alleged in the charging

document. The victim clearly testified, in no ambiguous

terms, that vaginal penetration occurred. See attached

Trial Transcript at 114-115. The victim then testifies

that vaginal penetration continued from the time she

was 14 years of age until she was 17 years of age, at

least once or twice a week and progressing to three or

four times a week. See attached Trial Transcript at

116-117. The victim was born on December 16, 1992.

This means the the victim turned 14 at the very end of

2006, and was the age of 14 for virtually all of 2007.

Simple math shows that if vaginal penetration

occurred weekly while the victim was 14 years of age,

then sexual battery must have occurred weekly

throughout the year of 2007. Thus, at age 15 the sexual

battery continued throughout the year of 2008, and at

age 16, the sexual battery continued throughout the

year of 2009. This testimony provided by the victim

directly refutes the Defendant’s claim that vaginal

penetration evidence was not produced through the

victim’s testimony for the years of 2007, 2008, and

2009.

So too does the record refute each of the

Defendant’s claims as to lack of testimony regarding

oral penetration for the years of 2007, 2008, and 2009.

The victim testifies that the oral penetration began

around the age of 14 or 15. See attached Trial

Transcript at 117. Either way, the Defendant [sic]

turned 15 in the year 2007. The Defendant [sic]

testified that these sexual acts continued until the age

of 17. See attached Trial Transcript at 117. Therefore,

as described in the previous paragraph, the years of

2007, 2008, and 2009 are specifically attested to.

Therefore, the record directly and definitively refutes

the Defendant’s claims as to Argument Twelve.

Resp. Ex. II at 203-01. The First DCA per curiam affirmed the trial court’s

denial without a written opinion. Resp. Ex. LL. Upon thorough review of the

record and the applicable law, the Court finds that the state court’s decision to

deny Petitioner’s claim is neither contrary to nor an unreasonable application

of Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court. The victim’s testimony

supported the trial court’s denial of Petitioner’s judgment of acquittal as to

counts one through six. As such, Ground Nine is due to be denied.

j. Ground Ten

Petitioner asserts his trial counsel was ineffective for failing to suppress

non-probative testimony from state witness J.B. Doc. 1 at 82 He also argues

counsel should have prevented Detective Dicks from testifying to a “false

statement about J.B.” witnessing a sexual act, which amounted to a Giglio9

violation because J.B. merely witnessed a “stuck zipper.” Doc. 1 at 82. Petitioner

raised this claim in his Rule 3.850 motion. Resp. Ex. HH at 72. The trial court

summarily denied the claim as follows:

The Defendant alleges that counsel was

ineffective for failing to “move to suppress the non

probative but prejudicial by conjecture testimony of

witness J.B.” Motion at 21. The Defendant argues that

“counsel had grounds to suppress J.B. as his testimony

held no competent eyewitness of a crime.” Motion at 21.

The Florida Supreme Court declared in McDuffie

v. State:

“Section 90.402, Florida Statutes

(2005), a provision within the Florida

Evidence Code, provides that all relevant

evidence is admissible except as provided

by law. ‘Relevant evidence is defined as

‘evidence tending to prove or disprove a

material fact’ [but] ... ‘[r]elevant evidence is

9 Giglio v. United States, 405 U.S. 150 (1972).

inadmissible if its probative value is

substantially outweighed by the danger of

unfair prejudice, confusion of issues,

misleading the jury, or needless

presentation of cumulative evidence.’

Sliney v. State, 944 So. 2d 270, 286 (Fla.

2006) (quoting §§ 90.401, 90.403, Fla.

Stat.). ‘[P]roper application of section

90.403 requires a balancing test by the trial

judge. Only when the unfair prejudice

substantially outweighs the probative

value of the evidence must the evidence be

excluded.’” Alston v. State, 723 So. 2d 148,

156 (Fla.1998).

McDuffie v. State, 970 So. 2d 312, 326-27 (Fla. 2007).

J.B. provided testimony that he saw the victim on her

knees directly in front of the Defendant. See attached

Trial Transcript at 79-80. This testimony substantiated

the testimony given by the victim in two ways. First, it

tended to prove that the victim was in fact in a position

where the Defendant could sexually batter the victim

as the victim testified by the Defendant placing his

penis inside of the victim’s mouth. Second, the

testimony substantiated the fact that the victim had

testified that her brother (J.B.) had walked into a room

and seen the victim in the circumstances as described.

See attached Trial Transcript at 120-121. Therefore,

J.B.’s testimony was “evidence tending to prove ... a

material fact.” Sliney v. State, at 286. And, the

probative value of that testimony certainly outweighed

the “danger of unfair prejudice” against the Defendant

Id. Therefore, counsel’s actions in regard to that

testimony being admitted were neither deficient nor

prejudicial.

Resp. Ex. HH at 197-98. The First DCA per curiam affirmed the trial court’s

denial without a written opinion. Resp. Ex. LL. Upon thorough review of the

record and the applicable law, the Court finds that the state court’s decision to

deny Petitioner’s claim is neither contrary to nor an unreasonable application

of Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court.

Further, to the extent Petitioner argues the state court failed to address

his claim that Detective Dicks’ testimony that J.B. “told [her] he did recall an

incident between or that he saw a partial of an incident between his father and

his sister” amounted to a Giglio violation, Doc. 1 at 82, that claim is also without

merit. J.B. testified he saw his father and sister in a compromising position and

that he told the detective about what he saw. Thus, Detective Dicks’ testimony

was not false, and counsel was not ineffective for failing to challenge it. Ground

Ten is due to be denied.

k. Ground Eleven

While not a picture of clarity, Petitioner appears to argue that the trial

court erred in denying his postconviction motion to disqualify the Honorable

Wesley Douglas, the trial judge who issued the orders denying his Rule 3.850

motion.10 Doc. 1 at 88. In support of that claim, Petitioner argues Judge Douglas

included false, prejudicial statements in his orders of denial; and Petitioner

points to numerous statements and findings in the orders and attempts to

10 In 2015, the trial judge who presided over Petitioner’s trial and

sentencing, the Honorable Paul S. Bryan, recused himself from Petitioner’s case

and any matter in which Petitioner is involved, and Judge Douglas was

assigned to the case.

refute them with additional facts and his own version of events. Id.

About four months after Judge Douglas, on remand, entered his second

order denying ground two of Petitioner’s Rule 3.850 motion, Petitioner filed a

pro se motion to disqualify Judge Douglas based on “false statements in a

judicial rendition within the case, in two denial orders.” Resp. Ex. EE at 623.

The trial court denied the motion to disqualify as follows:

In the instant motion, the Defendant seeks to

have the undersigned disqualified from presiding over

the Defendant’s criminal case. A motion for

disqualification of a trial judge is cognizable pursuant

to Florida Rule of Judicial Administration 2.330. Rule

2.330 provides that “[a] motion to disqualify shall be

filed within a reasonable time not to exceed 10 days

after discovery of the facts constituting the grounds for

the motion and shall be promptly presented to the court

for an immediate ruling.” FL ST J ADMIN Rule

2.330(e).

The Defendant’s claim for disqualification cites

two orders entered by the undersigned denying the

Defendant’s “Amended Motion for Post Conviction

Relief.” The Defendant claims that each denial order

contained false statements and that the entrance of

these denial orders has created “objective fear of unfair

judicial actions … that constitute felony violations in

the State of Florida...” Motion at 1.

The two denial orders that the Defendant

references are the “Order Denying Amended Motion for

Postconviction Relief” and the “Order Denying

Argument Two of the Defendant’s Amended Motion for

Postconviction Relief,” entered by this Court on July 13,

2015, and May 3, 2016, respectively. As such, the

Defendant’s instant motion for disqualification, filed on

September 23, 2016, is untimely as it was filed well

beyond the 10-day limit for filing a motion for

disqualification based upon the entrance of these

orders.

Therefore, the instant motion must be denied.

Wherefore, it is ORDERED:

The “Defendant’s Demand Motion for Judge

Recusal due to Judicial Actions Invoking Chapter 18,

United States Code, Section 242, Documenting False

Statements in a Judicial Rendition within the Case, in

2 Denial Orders” is DENIED as untimely.

Resp. Ex. EE at 631. Petitioner appealed the trial court’s denial, and the First

DCA combined the appeal with Petitioner’s pending appeal of the trial court’s

second order denying ground two of Petitioner’s Rule 3.850 motion. Id. at 638.

The First DCA per curiam affirmed the trial court’s order denying the motion

to disqualify without a written opinion. Resp. Ex. HHH.

To the extent Petitioner contends that the state court erred in finding

that his motion to disqualify was untimely, such allegation is purely an issue of

state law and not cognizable on federal habeas review. Indeed, a state’s

interpretation of its own laws or rules provides no basis for federal habeas relief,

as no federal constitutional question is raised. Carrizales v. Wainwright, 699

F.2d 1053, 1055 (11th Cir. 1983). Nevertheless, even if this claim were properly

before the Court, it is without merit because the state court’s rejection of

Petitioner’s motion to disqualify was not contrary to or an unreasonable

application of clearly established federal law. And it was not based on an

unreasonable interpretation of the facts in light of the evidence presented in the

state court proceedings. Ground Eleven is due to be denied.

l. Ground Twelve

Petitioner contends his trial attorney was ineffective for failing to object

to 35 allegedly improper statements the prosecutor made during opening and

closing arguments. Doc. 1 at 97. Petitioner raised this claim as ground two of

his Rule 3.850 motion. Resp. Ex. HH at 57-64. The trial court summarily denied

this claim, along with Petitioner’s other fifteen grounds for relief. Id. at 190-94.

However, as mentioned, the First DCA reversed and remanded the trial court’s

initial denial of this claim, finding the trial court “may either grant an

evidentiary hearing, or enter summary denial a second time and attach portions

of the record that conclusively refute [Petitioner’s] allegations.” Resp. Ex. LL.

In compliance with the First DCA’s directive, the trial court issued a

second order summarily denying ground two. Resp. Ex. YY. The trial court

found the following, in relevant part:

In the instant motion, the Defendant cites to

numerous portions of the trial transcript alleging that

each citation reveals a statement made by the

prosecutor that constitutes an inappropriate statement

that should have been objected to by his defense

counsel. . . . [T]he Defendant’s claim that counsel was

ineffective for failing to object to the plethora of

prosecutorial statements cited to in the instant motion

is without legal merit as not one single prosecutorial

statement cited by the Defendant in Argument Two of

the instant motion was improper.

All of the statements made by the prosecution

that constitute the alleged misconduct were in fact

statements made by the State. Also, the record

substantiates the claim that counsel did not object to

these statements. However, the statements made by

the prosecution were not inadmissible or otherwise

inappropriate statements. The Defendant’s underlying

claim is that counsel should have objected to certain

statements made by the prosecution in opening

statements and closing arguments because the

evidence and testimony on the record did not

substantiate the prosecution’s statements. This claim

is directly refuted by the record as each and every

statement made by the prosecution that the Defendant

challenges is in fact substantiated by the evidence and

testimony on the record as this Order discusses; and

the portions of the record are attached to substantiate

each claim made by the prosecution. Thus every factual

claim made by the Defendant is refuted. Additionally,

the Defendant includes a few legal arguments as well

related to some arguments made by the prosecutor.

Each one of these claims is addressed as well and

refuted as being without ·legal merit. “We have

previously explained that counsel cannot be deemed

ineffective for failing to object to a fair comment which

is based on the evidence presented during the trial.”

Valentine v. State, 98 So. 3d 44, 55 (Fla. 2012).

Assuming, arguendo, that somehow one or more

of the statements cited to is deemed legally or factually

inappropriate, this Order explains that the Defendant

cannot demonstrate a prejudice that, but for the alleged

misstatement, the “result of the proceeding would in all

probability be different; that is, he has not

demonstrated a probability sufficient to undermine our

confidence in the outcome” of the jury trial given the

Strickland standard, because of the totality of the

evidence against the Defendant. See Simmons v. State,

105 So. 3d 475, 490 (Fla. 2012). All of the evidence and

law against the Defendant refute both the claims of

deficiency and prejudice in the instant motion as

discussed below in great detail.

Resp. Ex. YY. The trial court then thoroughly addressed each alleged

impermissible prosecutorial statement in the confines of the two-part

Strickland standard.11 Id. The First DCA per curiam affirmed the trial court’s

second summary denial without a written opinion. Resp. Ex. BBB.

To the extent that the First DCA affirmed the trial court’s denial on the

merits, the Court will address the claim in accordance with the deferential

standard for federal court review of state court adjudications. A reviewing court

must evaluate allegedly improper comments in the context of both the

prosecutor’s entire argument and the trial as a whole, because “[c]laims of

prosecutorial misconduct are fact-specific inquiries which must be conducted

against the backdrop of the entire record.” United States v. Hall, 47 F.3d 1091,

1098 (11th Cir.1995); accord United States v. Young, 470 U.S. 1, 11 (1985) (“[A]

criminal conviction is not to be lightly overturned on the basis of a prosecutor’s

comments standing alone, for the statements or conduct must be viewed in

context; only by doing so can it be determined whether the prosecutor’s conduct

affected the fairness of the trial.”).

After reviewing the prosecutor’s arguments in context, the Court finds

11 For the sake of brevity and judicial economy, the Court declines to quote

the trial court’s fifty-page order as it pertains to each individual statement and

instead takes judicial notice of the trial court’s findings.

that the prosecutor’s comments made during opening statements and closing

arguments were not improper, but rather were a summary of the evidence and

a recitation of the reasonable doubt standard. Resp. Ex. F at 26-30, 240-49, 260-

67. As such, counsel was not deficient for failing to object. Nevertheless, the

state presented an ample amount of evidence that Petitioner committed these

offenses, and thus, he cannot demonstrate that but for counsel’s alleged

deficiency, the outcome of his case would have been different.

Accordingly, upon review of the record, this Court finds that the state

court’s adjudication of this claim was not contrary to clearly established federal

law, did not involve an unreasonable application of clearly established federal

law, and was not based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceedings. Ground Twelve is due

to be denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.!2

DONE AND ORDERED at Jacksonville, Florida, this 13th day of

October, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Rodger N. Butler, #12252

Jennifer J. Moore, Esq.

12 The 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). To make this substantial showing, Petitioner “must

demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1988)). Here, after consideration of the record

as a whole, the Court will deny a certificate of appealability.

A6