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

> District Court, M.D. Florida · February 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10642141

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642141

## How later opinions describe it (automated extraction)

- finding comments regarding Defendant’s lack of evidence were invited responses and thus not improper
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642141. Public record. Not legal advice.