Blackshear v. Secretary, Florida Department of Corrections (Clay County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TYRONE D. BLACKSHEAR SR.,

Petitioner,

v. Case No. 3:19-cv-1115-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Tyrone D. Blackshear, Sr., an inmate of the Florida penal

system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254

for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. He challenges

a state court (Clay County, Florida) judgment of conviction for two counts of

lewd or lascivious battery and one count of lewd or lascivious molestation.

Petitioner is serving a cumulative twenty-year term of incarceration to be

followed by a ten-year term of sex offender probation. Respondents filed a

Response. See Doc. 7 (Resp.).1 Petitioner filed a Reply. See Doc. 10. This case is

ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

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

1 Attached to the Response are several exhibits. The Court cites the exhibits as

“Resp. Ex.”

2 “In a habeas corpus proceeding, the burden is on the petitioner to establish

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060

(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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 and Appellate 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); Strickland v. Washington,

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

show: (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.

This two-part Strickland standard also governs a claim of ineffective

assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287

(11th Cir. 2016). When considering deficient performance by appellate counsel,

a court must presume counsel’s performance was

“within the wide range of reasonable professional

assistance.” Id. at 689, 104 S. Ct. 2052. Appellate

counsel has no duty to raise every non-frivolous issue

and may reasonably weed out weaker (albeit

meritorious) arguments. See Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). “Generally, only

when ignored issues are clearly stronger than those

presented, will the presumption of effective assistance

of counsel be overcome.” Smith v. Robbins, 528 U.S.

259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir.1986)); see also Burger v. Kemp, 483 U.S.

776, 784 (1987) (finding no ineffective assistance of

counsel when the failure to raise a particular issue had

“a sound strategic basis”).

Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)

(“failing to raise or adequately pursue [meritless issues on appeal] cannot

constitute ineffective assistance of counsel”).

To satisfy the prejudice prong of an ineffective assistance of appellate

counsel claim, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.”

Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore

v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the

neglected claim would have a reasonable probability of success on appeal”).

Also,

[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id., at 694, 104

S. Ct. 2052. It is not enough “to show that the errors

had some conceivable effect on the outcome of the

proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s

errors must be “so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id., at

687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. As such, “[a]ppellate counsel might fail to identify a

mediocre or obscure basis for reversal without being ineffective under

Strickland.” Overstreet, 811 F.3d at 1287 (citation omitted).

For both claims of ineffective assistance of trial counsel and appellate

counsel, 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.

Further, “[t]he 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. Analysis

A. Ground One

Petitioner argues that his appellate counsel was ineffective for failing to

raise on direct appeal a claim that the trial court erred in allowing the state to

present Williams3 Rule evidence at trial. Doc. 1 at 6.

Similar fact evidence, also known as “collateral crime evidence” or

Williams Rule evidence, is evidence that points to the commission of a separate

crime, and is admissible if relevant for any purpose except the demonstration

of bad character or propensity. Williams v. State, 110 So. 2d 654 (Fla. 1959).

Pursuant to section 90.404, Florida Statutes, “evidence of the defendant’s

commission of another offense or offenses of child molestation is admissible, and

may be considered for its bearing on any matter to which it is relevant.” See

also Fed. R. Evid. 414. In assessing whether such evidence is relevant, the trial

court should evaluate: “(1) the similarity of the prior acts to the act charged

regarding the location of where the acts occurred, the age and gender of the

victims, and the manner in which the acts were committed; (2) the closeness in

time of the prior acts to the act charged; (3) the frequency of the prior acts; and

(4) the presence or lack of intervening circumstances.” McLean v. State, 934 So.

2d 1248, 1262 (Fla. 2006).

3 Williams v. State, 110 So. 2d 654 (Fla. 1959).

In a Third Amended Information, the state charged Petitioner with two

counts of sexual battery by a person in familial or custodial authority and one

count of lewd or lascivious molestation. Resp. Ex. E at 2. The victim named in

each count was one of Petitioner’s stepdaughters – D.C. Id. Before trial, the

state filed a notice, pursuant to section 90.404(2), advising that it intended to

introduce the testimony of two witnesses – L.C. (D.C.’s older sister) and R.H.

(Petitioner’s former stepdaughter from prior marriage) – who would testify that

Petitioner also sexually abused them. Resp. Ex. A at 31-32. The trial court

conducted a hearing on the state’s request, during which it heard testimony

from the two Williams Rule witnesses, the mothers of the Williams Rule

witnesses, Petitioner’s mother, and Petitioner’s brother. See Resp. Exs. A at

189-200, B at 201-86. The trial court then denied the state’s request as to R.H.

but granted the request to present the testimony of L.C.

THE COURT: . . . . Everybody here is quite familiar

with the factors that I’m suppose[d] to access [sic].

Obviously clear and convincing is the standard and also

[I’m] suppose[d] to weigh probative value and

prejudicial effect . . . .

In determining probative value I’m suppose[d] to

determine if there is significant points of similarity and

based on the evidence that I’ve heard as to [L.C.], I find

that there is – it does satisfy the clear and convincing

standard. There are significant points of similarity;

where the acts occurred and the way the acts occurred

and that the age of the victims and the fact that they

followed one and the other as well as the frequency of

the acts.

Therefore I’m ruling that as to [L.C.] the

probative value does outweigh any potential prejudicial

effect nor do I believe that it would become a feature of

the trial. And as to [R.H.], I think -- well, first of all, I’m

not sure that it establish [sic] by clear and convincing

evidence, but I need not decide that because I

determined that with all of the potential impeachment

of the witnesses that would be necessitated by [R.H.]’s

testimony that that -- clearly she’s going to become a

feature of the trial. And I think it’s going to distract the

jury from essential issues in this case which is the

defendant’s guilt or innocence.

So [L.C.]’s testimony is coming in, [R.H.]’s is not.

Resp. Ex. B at 285-86. Defense counsel objected to the trial court’s ruling,

arguing the facts of the alleged prior bad acts involving L.C. were not

substantially similar to the alleged acts involving D.C. Id. at 287-88. The trial

court responded:

THE COURT: I have noted those arguments. Obviously

both McLean case and progeny clearly articulated that

in sexual molestation crimes that are both intrafamilial

or extrafamilial that there’s a relaxed standard. There

is one case, Potts [v.] State[,] 427 So. 2d 822 where the

Williams Rule evidence was two different victims -- two

separate victims who testified about events that

occurred 12, 18 years before the trial. I don’t think that

is a significant factor as far as the timeframe.

Obviously, this defendant is not only charged

with penile and digital penetration but he’s also

charged in the information with lewd and lascivious

acts that [are] similar to the conduct that is alleged to

have occurred with [L.C.]. Those objections are

overruled . . . .

Id. at 288-89. The state then asked the trial court to reconsider the exclusion of

R.H.’s testimony and suggested it could prevent that evidence from become a

feature at trial by limiting R.H.’s testimony or having the trial court instruct

the jury that her statements should not become a feature at trial. Id. at 289.

The trial court disagreed:

THE COURT: Well, here is the problem Ms. Ellis. I

understand the state really would love to have Ms. H[]

testify but the instant you put her on the stand and she

says he had me in the den on top of him grinding him,

then the defense is going to be pulling about ten

witnesses to impeach her credibility, including the fact

that she’s a serial accuser. That is clearly going to

become a feature of the trial, and I’m not going to allow

that to happen. So [R.H.] is not testifying.

Id. at 290.

At trial, the victim, D.C., testified that when she was eleven or twelve,

Petitioner began sexually abusing her and continued to do so until she was

thirteen or fourteen. Resp. Ex. B at 317. According to D.C., Petitioner always

abused her inside their home, typically upstairs, sometimes sitting her on his

lap and “grinding” her back and forth or touching her breasts and vagina. Id. at

318-19. The last time Petitioner abused her was in December 2009. Id. at 319.

D.C. was cleaning her room when Petitioner pulled D.C. into the upstairs

bathroom, pulled off her clothing, and digitally penetrated her vagina. Id. at

320-22. During the incident, D.C.’s sister, who was also in the home, called out

D.C.’s name looking for her. Id. at 323. In response, Petitioner told L.C. that

D.C. would be down soon, told D.C. to put her pants back on, and told D.C. to

go downstairs. Id. at 323-24. Once downstairs, D.C. told L.C. what happened

because L.C. suspected that Petitioner was abusing D.C. Id. at 33. L.C. and D.C.

then immediately reported the abuse to their mother. Id. at 324.

Before L.C. testified at trial, the trial court instructed the jury that L.C.’s

testimony should be considered only as it related to proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or

corroboration, and clarified that Petitioner was not being tried for any crime

not included in the Information. Id. at 351-52. L.C. then testified that she is

seventeen years old, D.C. is her younger sister, and Petitioner is their

stepfather. Id. at 354. According to L.C., when she was younger, Petitioner also

sexually abused her. Id. She explained that he began abusing her when she was

seven or eight years old, and she was thirteen years old the last time he abused

her. Id. at 356. She explained that Petitioner “touched and groped” her breasts

and vagina more than once, and sometimes sat her on his lap in a straddling

position while “grind[ing] up and down.” Id. at 355-56. The abuse always

occurred inside their home. Id. at 356. According to L.C., she finally told

someone about the abuse when she learned that Petitioner was also abusing

D.C. Id. at 361.

D.C. and L.C.’s mother testified that she eventually left the home that

she and Petitioner lived in and took her children to The Quigley House where

they reported the abuse. Resp. Ex. C at 401-02. The Department of Children

and Families was then notified, and a Child Protective Team member

interviewed both daughters. Id. at 402-03. Police were also notified and

following the DCF and CPT interviews, Petitioner was arrested. Id. at 435-37.

Following closing arguments, the jury found Petitioner guilty of two counts of

the lesser included offenses of lewd or lascivious battery and one count of lewd

or lascivious molestation as charged in the Information. Id. at 262. Petitioner

appealed and the First District Court of Appeal per curiam affirmed his

judgment and convictions. Resp. Ex. I.

Petitioner then filed a petition with the First DCA alleging ineffective

assistance of appellate counsel. Resp. Ex. J. In the petition, Petitioner argued

that his appellate counsel was ineffective for not raising on direct appeal a claim

that the trial court erred in permitting the Williams Rule evidence because: the

trial court applied the wrong standard; L.C.’s testimony was not similar to the

charged offenses; the admission of the evidence was not harmless as it was not

offered to corroborate D.C.’s testimony; and the state improperly relied on the

evidence to prove its case. Id. at 9-17. The state filed a response outlining the

similarities in D.C.’s and L.C.’s testimonies, including their ages at the time of

the abuse, familial relationship, location of abuse, as well as the type and nature

of abuse. Resp. Ex. L. The state also argued that the trial court properly applied

the McLean standard in assessing admissibility; and before the presentation of

L.C.’s trial testimony, it instructed the jury that her testimony was to be

considered for only a limited purpose and the parties must assume the jury

followed that instruction when it considered L.C.’s statements during

deliberations. Id. As such, the state argued that appellate counsel did not act

deficiently in failing to raise this issue on appeal as it would have been

meritless. Id. The First DCA denied the petition on the merits. Resp. Ex. N.

Here, Petitioner again challenges the admissibility of this Williams Rule

evidence and raises the same ineffective assistance of appellate counsel claim.

Doc. 1 at 6. First, “[a]s a general rule, a federal court in a habeas corpus case

will not review the trial court’s actions concerning the admissibility of

evidence,” because the state court “has wide discretion in determining whether

to admit evidence at trial[.]” Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir.

1994); see also Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1985) (federal

habeas corpus is not the proper vehicle to correct evidentiary rulings); Boykins

v. Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (federal courts are not

empowered to correct erroneous evidentiary rulings in state court unless

rulings deny petitioner fundamental constitutional protections). Thus,

Petitioner’s underlying challenges to the state court’s determination on the

admissibility of the Williams Rule evidence is not generally proper for this

Court’s consideration.

Second, to the extent that Petitioner challenges appellate counsel’s failure

to raise this issue during his direct appeal, the First DCA’s adjudication of this

claim is entitled to AEDPA deference. And the Court gives considerable

deference to appellate counsel’s strategic decision of selecting the issue or issues

to raise on appeal. The danger of raising weaker issues in a “kitchen-sink”

approach is that it detracts from the attention an appellate court can devote to

the stronger issues and reduces appellate counsel’s credibility. See Miller v.

Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989); see also McBride v. Sharpe, 25

F.3d 962, 973 (11th Cir. 1994). Thus, effective appellate attorneys “will weed

out weaker arguments, even though they may have merit.” Philmore, 575 F.3d

at 1264; see also Overstreet, 811 F.3d at 1287. Appellate counsel’s failure to

raise a meritless or weaker issue does not constitute deficient performance. See

Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) (citing Jones v.

Barnes, 463 U.S. 745, 754 (1983)); Owen, 568 F.3d at 915. Prejudice results only

if “the neglected claim would have a reasonable probability of success on

appeal.” Philmore, 575 F.3d at 1264-65.

The Court defers to the state court’s finding that the evidence was similar

to the charged crimes and supported the victim’s testimony. Also, the trial

court’s instruction advising the jury that the evidence was to be considered only

for a limited purpose reduced any potential risk that the evidence would become

a feature at trial. Thus, Petitioner has not shown that the outcome of his appeal

would have been different if appellate counsel challenged the Williams Rule

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

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

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts given the evidence presented to

the state court. See 28 U.S.C. § 2254(d). Ground One is denied.

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing to object

when the trial court erroneously instructed the jury on Florida Standard Jury

Instruction 3.9(e). Doc. 1 at 11. According to Petitioner, this instruction misled

the jury into believing that Petitioner made incriminating statements during a

custodial interrogation when Petitioner did not make any incriminating

statements during his police interview. Id.

Petitioner raised this claim in ground two of his pro se Florida Rule of

Criminal Procedure 3.850 motion. Resp. Ex. P at 18-22. The trial court

summarily denied the claim on the merits, finding as follows:

In Ground Two, Defendant argues counsel was

ineffective for failing to object to the reading of Florida

Standard Jury Instructions Criminal § 3.9(e)[FN2]

related to statements made by a defendant. Defendant

argues the instruction was inapplicable because there

was no introduction during the trial of an out of court

statement made by Defendant.

After reviewing Defendant’s allegations and the

record, the Court finds that, contrary to Defendant’s

contention, during the trial several statements were

claimed to have been made by Defendant. The victim

testified to the following statements made by

Defendant:

Q. And did he ever say anything to

you?

A. He said, this feels good.

. . .

Q. All right. So what happened after

you saw him seated on the couch?

A. He told me to come here and then

he stood up.

. . .

Q. Okay. Now, did he say anything

else?

A. Yes, he said to pull up my pants

and go downstairs.

. . .

In reading the instructions to the jury, the trial court

stated the following:

A statement claimed to have been made by

the defendant outside of court has been

placed before you. Such a statement should

always be considered with caution and be

weighed with great care to make ceratin

[sic] it was freely and voluntarily made.

Therefore, you must determine from the

evidence if the alleged statement was

knowingly, voluntarily, and freely made.

In making this determination, you should

consider the total circumstances, including

but not limited to: One, whether, when the

defendant made the statement, he had

been threatened in order to get him to

make it. And two, whether anyone had

promised him anything in order to get him

to make it. If you conclude the out of court

statement is not freely and voluntarily

made, you should disregard it.

The Court finds no error in including the jury

instruction regarding a defendant’s statements.

Statements purported to be made by Defendant were

placed before the jury during trial and the trial court,

in reading the instruction, followed the language of the

standard jury instruction. See Fla. Std. Jury Instr.

(Crim.) 3.9(e) (2012). Thus, counsel was not deficient

for failing to object to a jury instruction that was

applicable in this case. See Johnson, 921 So. 2d at 509.

Accordingly, no relief is warranted on Ground Two.

[FN2] In 2013, the instruction was amended and

changed from 3.9(e) to 3.9(b).

Resp. Ex. P at 221-23 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. Q at 6-9, and the First DCA per curiam affirmed the

denial without a written opinion, Resp. Ex. S.4 As such, the Court addresses the

4 Prior to denying Petitioner’s Rule 3.850 motion, the trial court conducted an

evidentiary hearing on some of Petitioner’s claims. Resp. Ex. P at 137. For purposes of

this Order, Petitioner properly exhausted all his ineffective assistance of trial counsel

claims by briefing all the claims in his appellate brief following the trial court’s denial.

Resp. Ex. Q at 6-9. See Fla. R. App. P. 9.141(b)(3)(C) (requiring the filing of an initial

brief after the grant or denial of a Rule 3.850 motion if an evidentiary hearing was

held on one or more claims); Atwater v. Crosby, 451 F.3d 799, 809-10 (11th Cir. 2006)

(“Pursuant to state procedural rules, abandonment of an issue results from submission

of a brief without argument thereon in an appeal of an order denying relief after an

evidentiary hearing.”).

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

state court adjudications.

In doing so, the Court heeds and defers to the state court’s conclusion that

the inclusion of this jury instruction did not affect the outcome of Petitioner’s

trial; and thus, Petitioner has failed to show prejudice under Strickland. In

Florida, “trial counsel’s failure to object to standard jury instructions that have

not been invalidated by [the Florida Supreme Court] do[] not render counsel’s

performance deficient.” Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000). The

jury instruction at issue, Florida Standard Jury Instruction 3.9(b), explains how

the jury can weigh the credibility of a defendant’s out of court statements.5 It is

included in the Florida Supreme Court’s standard final instructions for criminal

cases, and when the trial court read the instruction in Petitioner’s case, it

followed the standard language verbatim. Resp. Ex. A at 99. Petitioner here

argues that this instruction was created to help the jury weigh the credibility

of statements a defendant makes during police interrogations or custodial

interviews and because Petitioner never made any statements during his police

interrogation and no such statements were presented during trial, the inclusion

of the instruction misled the jury.

5 As noted in the trial court’s order, in 2013, following Petitioner’s trial, Florida

Standard Jury Instruction 3.9(e) was amended and changed to subsection 3.9(b). See

Fla. Std. Jury Instr. (Crim.) 3.9(b) (2013).

While Petitioner may be correct about the main purpose of the instruction

and that it may have been unnecessary to include it in his case, his allegation

that its inclusion affected the outcome of his trial is speculative at best. Indeed,

considering the totality of the evidence, as well as the jury instructions as a

whole, the Court cannot find that but for trial counsel’s alleged error, the

outcome of his trial would have been different. Under the deferential standard

of AEDPA review, the state court’s adjudication of this claim was neither

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts given the evidence presented in

the state court proceedings. See 28 U.S.C. § 2254(d). Ground Two is denied.

C. Ground Three

Petitioner argues that his trial counsel was ineffective for failing to object

and move for a mistrial when the prosecutor impermissibly commented during

his closing arguments about Petitioner’s right to remain silent. Doc. 1 at 12.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. P at 23-

28. The trial court ordered an evidentiary hearing on this issue and appointed

postconviction counsel to represent Petitioner at the evidentiary hearing. Id. at

138-208. During the hearing, the trial court considered testimony from

Petitioner and his trial attorney, Jennifer Love. Id. Following the hearing, the

trial court denied the claim as follows:

In Ground Three, Defendant argues counsel was

ineffective for failing to object and move for mistrial as

to the prosecutors’ improper statements made during

closing argument on Defendant’s failure to testify. In

particular, Defendant cites to the following comments,

which the Court will address as comments one, two,

and three:

Comment One

Again, you have the testimony of [D.C.] and

we’re gonna talk about her testimony in

depth, but its uncontradicted at this point.

She has told you what he did to her in the

bathroom. You have no other testimony or

evidence to the contrary.

Comment Two

You all said that what happens is there

anyone who would or could not convict

unless there was testimony or evidence

other than the victim’s word.

Comment Three

You might feel that you have to reconcile

everything you heard from the witness

stand but you don’t. You don’t. It’s solely

your decision to decide what evidence

you’re going to believe in this case. So you

don’t have to reconcile what anybody says,

anybody else’s testimony to the girl’s

testimony especially if you don’t find that

other person reliable. If you don’t want to

believe anyone in the case, you don’t have

to. There is no defense to the abuse that the

defendant imposed on the girls. There is no

excuse. There is no alternate theory.

After reviewing Defendant’s allegations, State’s

response, the testimony and evidence presented at the

May 24, 2017 evidentiary hearing, and the record, the

Court finds Defendant has failed to establish that

counsel was ineffective for failing to object and move for

mistrial based on the prosecutor’s comments.

“Commenting on the defendant’s exercise of his right to

remain silent is serious error.” Rimmer, 825 So. 2d at

322. Florida has “a very liberal rule for determining

whether a comment constitutes a comment on silence:

any comment which is ‘fairly susceptible’ of being

interpreted as a comment on silence will be treated as

such.” DiGuilio, 491 So. 2d at 1135. Allegations that a

prosecutor improperly commented on a defendant’s

right to remain silent should be evaluated in context

rather than isolation. Jones, 867 So. 2d at 400;

Whigham, 97 So. 3d at 276. “[W]here the evidence is

uncontradicted on a point that only the defendant can

contradict, a comment on the failure to contradict the

evidence becomes an impermissible comment on the

failure of the defendant to testify.” Rodriguez v. State,

753 So. 2d 29, 38 (Fla. 2000).

With regard to comments one and three, the

Court finds that viewed in context, these comments

were an invited response based on the defense’s

questioning of witnesses throughout trial, and closing

arguments purporting that the story was concocted by

the victim, her sister, and her mother. [S]ee Poole v.

State, 997 So. 2d 382, 390 (Fla. 2008) (finding

comments regarding Defendant’s lack of evidence were

invited responses and thus not improper); Brown v.

State, 771 So. 2d 603, 605 (Fla. 4th 2000) (“A narrow

exception to the rule forbidding a comment on a

defendant’s failure to testify applies where the

prosecution’s statement is invited by the defense.”).

Moreover, even if the comments are considered

improper, the Court finds that Defendant has failed to

establish prejudice. In order for improper prosecutorial

comments to require a mistrial, the comments must:

either deprive the defendant of a fair and

impartial trial, materially contribute to the

conviction, be so harmful or fundamentally

tainted as to require a new trial, or be so

inflammatory that they might have

influenced the jury to reach a more severe

verdict than that it would have otherwise.

Walls v. State, 926 So. 2d 1156, 1167 (Fla. 2006)

(quoting Spencer v. State, 645 So. 2d 377, 383 (Fla.

1994)). The Court finds that Defendant has failed to

establish that comments one and three meet this level.

See Jones v. State, 998 So. 2d 573, 589 (Fla. 2008).

With regard to comment two, the Court finds that

viewed in context, the prosecutor was not referencing

the lack of contradicting evidence or testimony on

Defendant’s part, but whether or not the jury would

convict when there was only the victim’s testimony and

no other testimony or evidence to support the victim’s

testimony. Therefore, the prosecutor’s comment was

not fairly susceptible of being interpreted as a comment

on Defendant’s right to remain silent and counsel

cannot be deemed ineffective for failing to object to the

comment and move for mistrial on this basis. See

generally Bell v. State, 108 So. 3d 639, 651 (Fla. 2013)

(finding the prosecutor’s comments during voir dire

were not fairly susceptible of being interpreted as

referring to the defendant’s failure to testify where the

prosecutor’s comments were “designed to ascertain

whether any potential juror might be inclined to

discount the testimony of a witness simply because the

witness was a child.”). Accordingly, no relief is

warranted on Ground Three.

Resp. Ex. P at 223-25 (record citations omitted). Petitioner appealed this issue,

Resp. Ex. Q at 9-14, and the First DCA per curiam affirmed the denial without

a written opinion, Resp. Ex. S. As such, the Court addresses the claim in

accordance with the deferential standard for federal court review of state court

adjudications.

In applying such deference, the Court heeds the state court’s finding that

the allegedly improper prosecutorial statements, in context, did not affect the

outcome of Petitioner’s trial. Indeed, a reviewing court must evaluate an

allegedly improper comment 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.”).

Here, Petitioner again relies on the same comments discussed in the trial

court’s order and argues these comments amounted to improper references to

Petitioner’s Fifth Amendment right to not testify at trial.6 Doc. 10 at 17. The

Court reviewed the state’s closing and rebuttal arguments and agrees that

6 In his Reply, Petitioner argues that Respondents erroneously suggest that he

is only challenging three comments when he is challenging seven comments. Doc. 10

at 17. But the seven comments Petitioner challenges are all contained within the three

excerpts discussed in the state court’s order denying his Rule 3.850 motion. Id.

these comments, taken in their proper context, were not impermissible

comments on Petitioner’s right to remain silent. See Resp. Ex. C at 471-72, 475-

76, 529; see also United States v. Blankenship, 382 F.3d 1110, 1128 (11th Cir.

2004) (a prosecutor’s statement violates a defendant’s right to remain silent if

it was “manifestly intended to be a comment on the defendant’s failure to

testify” or was “of such a character that a jury would naturally and necessarily

take it to be a comment” on the defendant’s failure to testify). When making the

arguments outlined in “comment two,” the state was arguing that the victim’s

testimony satisfied all the elements of the offenses and that the jury could rely

on only that evidence to find Petitioner guilty. Resp. Ex. C at 182. And as to

“comment one” and “comment three,” the state made those arguments in

rebuttal to defense counsel’s cross-examinations and her closing statements

challenging the credibility of each witnesses’ testimony and attempting to

highlight inconsistencies. Notably, during the evidentiary hearing, Ms. Love

testified that at trial, she made a point to argue that the victim was not credible

and that her testimony was uncontested; and Ms. Love explained that the

state’s closing arguments merely reflected and responded to her strategic

closing statements. Resp. Ex. P at 170-72.

As such, under the deferential standard of AEDPA review, the state

court’s adjudication of this claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

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

proceedings. See 28 U.S.C. § 2254(d). Ground Three is denied.

D. Ground Four

Petitioner alleges that his trial counsel was ineffective for failing to object

to the trial court’s supplemental jury instruction asking the jury to either decide

the case within a certain timeframe or come back the next day to continue

deliberations. Doc. 1 at 14. Petitioner argues that this instruction was coercive

and placed undue pressure on the jury to reach a verdict. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. P at 79.

The trial court summarily denied the claim on the merits, finding as follows:

In Ground Four, Defendant argues counsel was

ineffective for failing to object to certain instructions

made by the Court to the jury related to whether a

resolution to the case was forthwith. Defendant cites to

the following statements by the Court:

Before we bring them in, let me tell you

what I was thinking. When I bring them

out, I’d like to get a sense, kind of, where

they are. If it’s within a relatively

reasonable period of time they’re gonna

come out with a verdict that’s fine. If

they’re no where [sic] close, my thought is

to give them the option to break for the day

and come back a [sic] nine o’clock

tomorrow.

. . .

But let me ask you this. It is going on 5:30

and you’ve been going at this for a couple

hours. I’m gonna ask when you go back if

y’all will discuss amongst yourselves if you

all want to stay, if you think it’s possible a

resolution is within a relatively reasonable

period of time this evening, we’ll stay here

as long as y’all want. If some of y’all have

things you absolutely have to do or if this is

starting to create a problem and the

consensus is to break for the evening, we’ll

be happy to do that. We’ll let you go home

and y’all can come back at nine o’clock

tomorrow morning and go back to the jury

room and finish deliberating. So when y’all

go back if you’ll discuss that and let the

bailiff know and then we will proceed

accordingly, okay.

Relying on cases related to a court’s use of an Allen[7]

charge, Defendant argues he “was entitled to a

reasonable opportunity for the deliberative process to

work before the Court placed added pressure on the

jury to decide the case.”

An Allen charge is an instruction given that

allows a jury to continue deliberations after it has

stated its inability to continue, “where there is a

reasonable basis to believe a verdict is possible, while

cautioning jurors that they should not abandon their

views just to get a verdict or to accommodate the

majority.” Thomas v. State, 748 So. 2d 970, 977 (Fla.

1999). It can be fundamental error for a court to give[]

an instruction that exceeds the limits of Allen, where

the instruction becomes coercive in nature. Id. Whether

the Allen charge given is so coercive as to constitute

reversible error depends on the facts and circumstances

of a particular case and the totality of the

circumstances. Id. at 976-977.

7 Allen v. United States, 164 U.S. 492 (1896).

In giving an Allen charge, the trial court

must avoid: (1) coercive deadlines, (2)

threats of marathon deliberations, (3)

pressure for the surrender of

conscientiously held minority views, and

(4) any implication of a false duty to decide.

A trial court should say nothing to a jury

that would influence a single juror to

abandon his conscientious belief as to the

correctness of his position.

Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990)

(internal citations omitted). After reviewing

Defendant’s allegations and the record, the Court finds

that the trial court’s statements do not amount to an

Allen charge. See Fla. Std. Jury Instr. (Crim.) 4.1

(2012); Bruno v. State, 807 So. 2d 55, 66-67 (Fla. 2001)

(finding no merit on allegation that counsel was

ineffective for failing to object to a coercive instruction

where counsel testified that he believed the trial court

was just curious about the jury’s progress and the

court’s tone was not a de facto Allen charge). Moreover,

at no time did the Court restrict the jury’s deliberations

with an arbitrary deadline, attempt to coerce the jury

to reach a verdict, or lead the jury to believe that a

verdict must be reached. See Nottage v. State, 15 So.

3d 46, 50 (Fla. 3d DCA 2009); Gahley, 567 So. 2d at 460.

The Court finds that the trial court’s statements to the

jury were not coercive and did not put undue pressure

on the jury to bring a verdict. Therefore, an objection or

motion for mistrial on this basis would have been

meritless, and counsel cannot be deemed ineffective for

failing to raise a meritless issue. See Johnson, 921 So.

2d at 509. Accordingly, no relief is warranted on

Ground Four.

Resp. Ex. P at 226-27 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. Q at 14, and the First DCA per curiam affirmed the

trial court’s denial without a written opinion, Resp. Ex. S. As such, the Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

In doing so, the Court defers to the state court’s finding that the trial

court’s statements to the jury were not coercive. A review of the record shows

that after the trial court read the final jury instructions, the jury began

deliberations and eventually submitted three questions to the trial court. Resp.

Ex. C at 550. Upon receipt, the trial court discussed the questions with the

parties and agreed that in answering the substantive questions about how it

should consider certain evidence, the trial court should only advise that the jury

it must rely on its collective memory of the evidence. Id. The trial court then

told the parties that it would give the jury the option to continue deliberations

through the evening or come back in the morning. Id. at 551. Once the jury

entered the courtroom and after the trial court addressed its questions, the trial

court noted that the jury had been deliberating for a few hours already and it

was close to 5:30 p.m. Id. Thus, the trial court asked the jury to go back and

discuss if it wished to continue through the evening or return in the morning.

Id. at 551-52. The jury returned to the jury room and promptly advised the trial

court that it wished to remain and continue deliberating. Id. at 552. The jury

then found Petitioner guilty of the lesser included offenses of lewd and

lascivious battery and the charged offense of lewd or lascivious molestation. Id.

at 553.

Because the trial court gave the jury the option to continue the next day

and did not suggest that the jury was under a time restraint and required to

reach a verdict, its statements cannot be read as unduly coercive. See, e.g.,

United States v. Akel, 337 F. App’x 843, 861 (11th Cir. 2009) (finding trial

court’s question to jury about whether it wished to continue deliberating or

return in the morning was not coercive but had an opposite effect because the

question implied that the jury could take as much time as it needed to reach a

verdict).8 Any objection would have been meritless, and as a result, Petitioner

has failed to show that but for trial counsel’s alleged error, the outcome of his

trial would have been different. Under the deferential standard of AEDPA

review, the state court’s adjudication of this claim was neither contrary to nor

an unreasonable application of Strickland, and it was not based on an

unreasonable determination of the facts given the evidence presented in the

state court proceedings. See 28 U.S.C. § 2254(d). Ground Four is denied.

E. Ground Five

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

to discharge the jury panel after juror number seven had an emotional outburst

8 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

when responding to voir dire questioning and the trial court did not address the

outburst with the other potential jurors. Doc. 1 at 16. According to Petitioner,

trial counsel should have requested that the trial court question the other

potential jurors about whether they were tainted by the outburst, and counsel’s

failure to do so deprived Petitioner of a fair and impartial trial. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. P at 82.

The trial court conducted an evidentiary hearing on this issue and then denied

the claim as follows:

In Ground Five, Defendant alleges trial counsel

was ineffective for failing to move to discharge the

entire jury panel when the trial court failed to conduct

a voir dire examination of the remaining jury panel on

the issue of possible taint. Defendant argues that

counsel should have raised the issue and, in response,

the trial court should have conducted an inquiry as to

whether the remaining jury panel was tainted by the

emotional outburst of juror number seven, when she

started to cry in response to one of the prosecutor’s

questions. Defendant states that had counsel moved to

discharge the jury panel, the trial court may have

conducted a voir dire examination of the remaining jury

panel. Defendant asserts that because no inquiry was

made after the juror cried, he was deprived of a fair

trial and impartial jury because the situation may have

decreased the remaining jurors’ objectivity.

After reviewing Defendant’s allegations, State’s

response, the testimony and evidence presented at the

May 24, 2017 evidentiary hearing, and the record, the

Court finds that, Defendant failed to demonstrate that

counsel was deficient as required by Strickland. The

Court finds trial counsel’s testimony credible. Counsel

testified that, in her experience, just because someone

answers that they have been the victim of sexual abuse,

it does not necessitate asking that everyone be subject

to additional voir dire or asking to discharge the entire

jury panel. Counsel testified that she did not see

anything in the trial transcript of jury selection that

indicated that there was a reason to move to discharge

the entire panel. Based on counsel’s testimony at the

evidentiary hearing and review of the jury selection,

the Court finds reasonable that counsel would not have

found it necessary to ask that everyone on the jury

panel be subject to examination regarding whether the

prospective juror’s answer and reaction affected them

or move to discharge the entire jury panel.

Further, the Court finds that had counsel raised

the issue and moved to discharge the entire jury panel,

there is no reasonable probability that the outcome

would have been different. Defendants have a right to

an impartial jury. Holt v. State, 987 So. 2d 237, 239

(Fla. 1st DCA 2008).

The decision whether to dismiss any or all

jurors lies in the sound discretion of the

trial judge. It is within the discretion of the

trial court to determine whether remarks

made by veniremen during the

examination of the panel are prejudicial;

and the trial court’s decision not to quash

the panel will not be disturbed absent an

abuse of that discretion.

Bauta v. State, 698 So. 2d 860, 861-62 (Fla. 3d DCA

1997) (quotations and internal citations omitted).

Defendant failed to establish that the potential juror’s

remarks were prejudicial and that the trial court would

have granted a motion to discharge the jury. See

Stevens v. State, 251 So. 2d 565, 567 (Fla. 1st DCA

1971) (finding the trial court did not abuse its

discretion in refusing to discharge all prospective jurors

where one prospective juror stated she had be[en] a

victim of a crime and did not feel she could be

impartial). Defendant failed to establish that the jury

was [not] impartial. See Brower v. State, 727 So. 2d

1026, 1027 (Fla. 4th DCA 1999) (finding that the

defendant was not deprived a fair trial where the trial

court proceeded with jurors who had not made the

improper remarks and who were not shown to be

otherwise tainted). The Court finds that there is

nothing in the record to suggest that the jury was

tainted by the potential juror’s statements and crying.

After that incident, the potential jurors were further

questioned regarding their ability to fairly and

impartially consider the evidence at trial. The

prosecutor also asked, as a catch-all, whether there was

anything else that gave the potential jurors pause,

concern, or hesitation, and no one responded with any

issues. The Court finds that Defendant has failed to

demonstrate prejudice as required by Strickland.

Accordingly, no relief is warranted on Ground Five.

Resp. Ex. P at 227-29 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. Q at 18, and the First DCA per curiam affirmed the

trial court’s denial without a written opinion, Resp. Ex. S. As such, the Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

During jury selection, juror number seven advised the state that she was

a victim of sexual assault and revealed that she did not know if she could remain

neutral if she were chosen to sit on the jury. Resp. Ex. D at 52. The transcript

suggests that she was crying as she made her statement. Id. After individual

questioning, the parties further questioned the potential jurors regarding their

ability to be fair and impartial. See generally Resp. Ex. D. The venire was then

dismissed for lunch, and the trial court agreed to strike juror number seven for

cause because of “her demeanor when answering [the state’s] questions.” Resp.

Ex. D at 108. Later, the state and defense agreed on a panel of six jurors and

one alternate. Id. at 112.

During the evidentiary hearing, Ms. Love testified that she reviewed the

transcript of jury selection and nothing in the transcript gave her reason to

believe that a request to discharge the panel was warranted. Resp. Ex. P at 169.

She explained that in her experience doing voir dire for a sexual abuse case, it

is standard to ask members of the panel if they have ever been victims of sexual

abuse. Id. at 169. According to Ms. Love, if a potential juror advises that he or

she is a victim of such abuse, it is not her practice to then ask everyone else in

the panel if that particular juror’s experience has tainted their thinking. Id. She

added that if a potential juror indicates that he or she is a victim of sexual

abuse, that would not be grounds to discharge the entire panel but may support

a cause challenge to dismiss the one juror. Id. at 170.

Considering this record evidence, the Court finds that the state court’s

finding that trial counsel did not act deficiently was reasonable. Also, the

continued questioning of the venire rehabilitated the jury panel following juror

number seven’s statements. Petitioner cannot demonstrate juror number

seven’s statements influenced the six jurors who were chosen to sit on the jury,

and thus he cannot show that counsel’s alleged error affected the outcome of his

trial. Under the deferential standard of AEDPA review, the state court’s

adjudication of this claim was neither contrary to nor an unreasonable

application of Strickland, and it was not based on an unreasonable

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

proceedings. See 28 U.S.C. § 2254(d). Ground Five is denied.

F. Ground Six

Petitioner argues that his trial counsel was ineffective for failing to

convey to the state his proposed seven-year plea deal and never advising

Petitioner whether the state accepted the offer. Doc. 1 at 17. Petitioner also

asserts that the state made a plea offer but trial counsel never advised

Petitioner of the terms. Id. According to Petitioner, had counsel properly

conveyed the offer, he would have accepted it. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. P at 85-

86. Following an evidentiary hearing on the claim, the trial court denied the

issue as follows:

In Ground Six, Defendant asserts that counsel

was ineffective for failing to convey a plea offer.

Defendant asserts that he and counsel discussed

offering the State a seven year plea deal, but she never

conveyed to him whether the State accepted or rejected

the offer, so he assumed it was rejected. Defendant

states that after the Williams rule hearing, counsel told

him that the State had an offer, but she never conveyed

what the offer was to him. Defendant states that he

would have accepted the offer and the sentence under

the plea would have been for less time than he received.

Based on the testimony and evidence presented

at the May 24, 2017 evidentiary hearing, the Court

initially finds trial counsel’s testimony more credible

than Defendant’s testimony. The Court finds that the

greater weight of the evidence establishes that counsel

was not ineffective for failing to convey a plea offer.

When a defendant alleges ineffective assistance of

counsel based on the failure to convey a favorable plea

offer, the defendant must establish prejudice by

showing a reasonable probability that:

(1) he or she would have accepted the offer

had counsel advised the defendant

correctly, (2) the prosecutor would not have

withdrawn the offer, (3) the court would

have accepted the offer, and (4) the

conviction or sentence, or both, under the

offer’s terms would have been less severe

than under the judgment and sentence that

in fact were imposed.

Alcorn v. State, 121 So. 3d 419, 422 (Fla. 2013). [At the

evidentiary hearing,] Defendant testified that on

January 27, 2012, counsel told him that the State made

an offer but she never told him what the offer was.

Defendant further testified that he would have

accepted an offer from the state that was less than the

maximum if it was relayed. Counsel testified that when

she took over representation of Defendant the plea

negotiations to that point had not been good and in fact,

they were far apart. Defendant was offering three years

while the State was at fifteen years. Counsel testified

that the State was using a potential case against

Defendant in Duval County as part of negotiations.

Counsel testified that in their discussions, Defendant

stuck to making an offer to the State of seven or eight

years. Counsel testified that the offer of seven or eight

years was taken to the State and they rejected the offer,

which she told Defendant. Counsel further testified

that after the Williams rule hearing, she discussed the

potential of making a ten year prison [offer] followed by

ten year probation offer because she thought they had

a good bargaining chip with the State, but Defendant

was not receptive to that offer. Counsel testified that

the most he ever got to was eight years and the State

was standing at fifteen years. Counsel testified that the

State never relayed an offer that she did not tell

Defendant and there was never an offer below fifteen

years.

Defendant has failed to demonstrate that counsel

failed to convey a plea offer to him. The Court finds that

counsel relayed all plea offers to Defendant. Counsel

not only relayed plea offers, but also attempted to

formulate offers to present to the State that were less

than what the State was offering. However, Defendant

was not amenable to making an offer of more than

seven or eight years. Counsel made that offer of seven

or eight years to the State, which the State rejected,

and counsel advised Defendant of the rejection. The

Court further finds that, even if counsel had not

advised Defendant of the fifteen year offer from the

State, there is no reasonable probability that had

counsel advised him of it he would have accepted the

offer. Defendant would not authorize an offer higher

than seven years or eight years and would not have

accepted an offer of fifteen years. Accordingly, no relief

is warranted on Ground Six.

Resp. Ex. P at 230-31 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. Q at 20, and the First DCA per curiam affirmed the

trial court’s denial without a written opinion, Resp. Ex. S. As such, the Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

In applying deference, the Court defers to the state court’s consideration

of the evidentiary hearing testimony, its credibility determinations, and its

finding that Petitioner failed to show prejudice. In the context of a rejected plea

offer, the prejudice prong requires the movant to show “a reasonable probability

that but for counsel’s ineffectiveness: (1) ‘the plea offer would have been

presented to the court (i.e., that the defendant would have accepted the plea

and the prosecution would not have withdrawn it in light of intervening

circumstances)’; (2) ‘the court would have accepted its terms’; and (3) ‘the

conviction or sentence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact were imposed.’” Osley

v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014) (quoting Lafler v. Cooper,

566 U.S. 156, 164 (2012)). But “after the fact testimony concerning [the

movant’s] desire to plead, without more, is insufficient to establish that but for

counsel’s alleged advice or inaction, he would have accepted the plea offer.” Diaz

v. United States, 930 F.2d 832, 835 (11th Cir. 1991).

Here, even if the Court assumes that trial counsel acted deficiently,

Petitioner has not shown a reasonable probability that absent counsel’s alleged

misconduct, Petitioner would have accepted the state’s plea offers and the state

would not have withdrawn the offers given intervening circumstances. At the

evidentiary hearing, Petitioner testified that prior to Ms. Love’s representation,

he was represented by J.R. Haslett, and during Mr. Haslett’s representation,

the state made several plea offers, including a “20 and 10” offer, a “15 and 5”

offer, and a final “10 and 10” offer. Resp. Ex. P at 142, 151. Petitioner explained

that when the state made these offers, it advised him that if he rejected the

offers and proceeded with deposing the victim, the state would not be making

any further plea offers in the case. Id. at 151-52. Petitioner admits that he was

advised of the state’s conditions but knowingly rejected the state’s offers

anyway. Id. at 152. Petitioner also admitted that when he rejected these offers,

he knew he faced a thirty-year term of incarceration if he was convicted of the

charged offenses. Id. at 142. Petitioner explained that when Ms. Love began

representing him, she only mentioned a state offer one time, which was

following the Williams Rule hearing, but she never advised him of the terms of

the offer. Id.

Ms. Love testified at the evidentiary hearing that Petitioner asked her to

make a seven or eight-year plea offer to the state, but the state rejected that

offer when she conveyed it to the prosecutor. Id. at 163. Following the Williams

Rule hearing, she tried to convince Petitioner to make a ten-year offer, but he

was not receptive to the idea and the highest offer he would make was an eight-

year deal, which she knew the state had rejected. Id. at 165-66.

Given the parties’ widely divergent positions on any negotiated plea deal

and sentence, Petitioner has not shown a reasonable probability that a plea

agreement would have been reached and accepted by the trial court. Although

Petitioner may have been interested in pleading guilty, “[g]iven [Petitioner’s]

awareness of the plea offer[s], his after the fact testimony concerning his desire

to plead, without more, is insufficient to establish that but for counsel’s alleged

advice or inaction, he would have accepted the plea offer[s].” Diaz, 930 F.2d at

835. Thus, upon thorough review of the record and the applicable law, the Court

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

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts given the evidence presented to

the state court. See 28 U.S.C. § 2254(d). Ground Six is denied.

G. Ground Eight9

Petitioner argues that his trial counsel was ineffective for failing to obtain

evidence that would have supported his defense. Doc. 1 at 18. He asserts that

the state had to prove that the offenses occurred between December 1, 2009,

and December 31, 2009, but the victim’s mother testified that she received the

phone call from her daughters reporting the abuse while she was driving to the

bank in her white van. Id. According to Petitioner, however, that van was

scrapped at the recycling compound before December 1, 2009, and had counsel

9 In the Petition, Petitioner appears to inadvertently skip over a “Ground Seven”

and instead jumps from “Ground Six” to “Ground Eight” and then to “Ground Nine.”

Doc. 1 at 17-18. Petitioner raises a total of eight grounds in his Petition, however, for

consistency purposes, the Court labels the Grounds using the nomenclature Petitioner

uses in his Petition and Reply.

obtained the receipt from the recycling center, it would have corroborated his

defense theory. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. P at 89.

Following an evidentiary hearing, the trial court denied the claim as follows:

In Ground Eight, Defendant asserts that counsel

was ineffective for not obtaining a receipt from a

recycling company, which would have supported his

theory of defense. Defendant contends that the State

was required to prove that the crime occurred between

December 1, 2009, and December 31, 2009. The

testimony of the victim’s mother was that she drove to

the bank in a white van. Defendant states that the

white van was scrapped at a recycling company before

December 1, 2009, and a receipt would have

corroborated his theory that the victim and others were

lying. Defendant states that had counsel retrieved the

receipt there is a reasonable probability that the

outcome would have been different.

After reviewing Defendant’s allegations, State’s

response, the testimony and evidence presented at the

May 24, 2017 evidentiary hearing, and the record, the

Court finds that Defendant has failed to demonstrate

prejudice. The Court finds that had counsel retrieved

the recycling receipt there is no reasonable probability

that the outcome would have been different. [At the

evidentiary hearing,] Defendant testified that the

recycling receipt was necessary because it would have

established that the State had not proven that the

alleged crimes occurred between December 1, 2009, and

December 31, 2009. Counsel testified that the receipt

would be collateral and would have only impeached the

credibility of the witness, if it was even admissible.

First, the Court finds that Defendant has not

demonstrated that a recycling receipt for the white van

existed or that it would show that the van was scrapped

prior to December 2009. Even if there was a recycling

receipt showing that the van was scrapped prior to

December 2009, it would not have conclusively proven

that the crime did not occur in December 2009 or that

the crime did not occur at all. Rather, it would have

gone to the victim’s mother’s credibility about when the

crime occurred and been helpful in creating doubt

about when the crime occurred. However, counsel

sufficiently cross-examined the victim’s mother on the

issue of when the crime occurred. Counsel also pointed

out the conflicts in the testimony of the witnesses

regarding when the crime occurred during closing

arguments. The jury, therefore, was presented with

information attacking the time period of when the

witness stated the crime occurred. The Court finds that

the impeachment conducted by counsel already

weakened the victim’s mother’s testimony on the point

of when the crime occurred and therefore, the Court’s

confidence in the outcome of the proceedings is not

undermined. Accordingly, no relief is warranted on

Ground Eight.

Resp. Ex. P at 232-34 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. Q at 21, and the First DCA per curiam affirmed the

trial court’s denial without a written opinion, Resp. Ex. S. As such, the Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

In doing so, the Court finds reasonable the state court’s determination

that the receipt would merely serve as impeachment evidence. And as the state

court pointed out, during trial counsel’s cross-examination of the victim’s

mother, the mother testified that she did not remember the exact date that her

daughters called her and reported the abuse. Resp. Ex. C at 408. Indeed, she

admitted that when she was first questioned about the incident, she could not

even remember the month that the incident happened. Id. She never denied

being unsure about when exactly the offense occurred and therefore the alleged

receipt would have been cumulative to testimony and evidence already before

the jury. As such, Petitioner cannot demonstrate that but for trial counsel’s

alleged error, the outcome of his case would have been different.

Thus, upon thorough review of the record and the applicable law, the

Court finds that the state court’s decision to deny Petitioner’s claim was neither

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts given the evidence presented to

the state court. See 28 U.S.C. § 2254(d). Ground Eight is denied.

H. Ground Nine

Petitioner argues that his trial counsel was ineffective for failing to argue

that his two convictions for lewd or lascivious battery violated his double

jeopardy rights. Doc. 1 at 19. He contends that the evidence “shows that the

victim was sexually battered in a single location, in or on the same body part,

in a short period of time, with no distinct act” distinguishing the two offenses.

Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. P at 90.

Following an evidentiary hearing on the issue, the trial court denied the claim

as follows:

In Ground Nine, Defendant alleges that counsel

was ineffective for failing to argue that Defendant’s two

convictions of lewd and lascivious battery were

precluded under double jeopardy principles. Defendant

argues that the crimes occurred contemporaneously to

each other and it was part of a single criminal episode.

Defendant asserts that if counsel had raised this issue

there is a reasonable probability that Defendant would

have been acquitted of one of the two convictions.

After reviewing Defendant’s allegations, State’s

response, the testimony and evidence presented at the

May 24, 2017 evidentiary hearing, and the record, the

Court finds Defendant’s two convictions for Lewd or

Lascivious Battery on Counts One and Two do not

violate double jeopardy principles. To determine if a

double jeopardy violation has occurred, courts must

consider whether:

the charges were based on an act or acts

which occurred within the same criminal

transaction and/or episode. If the charge

did occur during the same transaction or

episode, we must then determine if the

convictions were predicated on distinct

acts. If the charges are not predicated on

distinct acts and have occurred within the

same criminal episode, we must next

decide if the charges survive a same

elements test as defined by section

775.021, Florida Statutes (2008).

Partch v. State, 43 So. 3d 75 8, 760 (Fla. 1st DCA 2010).

The Florida Supreme Court has explained that

“sexual acts of a separate character and type requiring

different elements of proof . . . are distinct criminal acts

that the Florida Legislature has decided warrant

multiple punishments.” State v. Meshell, 2 So. 3d 132,

135 (Fla. 2009) (“[T]he same double jeopardy analysis

for the sexual battery also applies to the lewd and

lascivious battery statute.”). “[T]he sex acts proscribed

in section 800.04(4) (oral, anal, or vaginal penetration)

are of a separate character and type requiring different

elements of proof and are, therefore, distinct criminal

acts.” Id. at 136. Sexual activity is defined as “oral,

anal, or vaginal penetration by, or union with, the

sexual organ of another or the anal or vaginal

penetration of another by any other object.” Fla. Stat. §

800.04(1)(a) (2009).

In the instant case, Count One involved lewd or

lascivious battery based on penile penetration of or

union with the victim’s vagina, while Count Two

involved lewd or lascivious battery based on the

victim’s vagina being penetrated by Defendant’s finger.

The victim testified to each of these separate acts.

Because these acts were of a separate character and

type requiring different elements of proof, they are

distinct criminal acts. Therefore, there is no double

jeopardy violation and counsel cannot be ineffective for

failing to make such an argument. See Johnson, 921 So.

2d at 509. Accordingly, no relief is warranted on

Ground Nine.

Resp. Ex. P at 234-35 (record citations omitted). Petitioner appealed the trial

court’s denial, Resp. Ex. Q at 24, and the First DCA per curiam affirmed the

trial court’s denial without a written opinion, Resp. Ex. S. As such, the Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

“The Double Jeopardy Clause . . . protects against multiple punishments

for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977) (internal

quotation marks and citation omitted). The Double Jeopardy Clause permits

cumulative punishments for a single incidence of criminal behavior when the

legislature clearly intends cumulative punishments. Williams v. Singletary, 78

F.3d 1510, 1512 (11th Cir. 1996). The Florida legislature has made clear its

intent that a defendant be convicted and sentenced “for each criminal offense

committed in the course of one criminal episode or transaction.” See §

775.21(4)(b), Fla. Stat. And as the state court noted, Florida courts find that

sexual batteries of a separate character and type warrant multiple

punishments even if the offenses occur during the same criminal episode. See,

e.g., Duke v. State, 444 So. 2d 492 (Fla. 2nd DCA 1984) (vaginal penetration

followed a moment later by anal penetration were two distinct acts of criminal

sexual battery). Here, Petitioner’s conviction for count one was based on

Petitioner’s sexual organ contacting or penetrating D.C.’s vagina and count two

was based on Petitioner’s digital penetration of D.C.’s vagina. Resp. Ex. A at 89.

The victim testified about these two separate acts. Resp. Ex. B at 339.

Thus, upon thorough review of the record and the applicable law, the

Court finds that the state court’s decision to deny Petitioner’s claim was neither

contrary to nor an unreasonable application of Strickland, and it was not based

on an unreasonable determination of the facts given the evidence presented to

the state court. See 28 U.S.C. § 2254(d). Ground Nine is 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 1s 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.!°

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

February, 2023.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

10 The Court should issue a certificate of appealability only if 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 (1983)). Here, after consideration of

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

AZT

Jax-7

C: Tyrone D. Blackshear, Sr., #J46616

counsel of record